Case 1:10-cv-00249-CAP Document 28-1 Filed 07/01/10 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE UNITED STATES OF AMERICA, )

)

Plaintiff,

)

v.

)

THE STATE OF GEORGIA, et al.,

) )

Defendants.

)

)

Civil Action No. 1:10-CV-0249-CAP

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Defendant the State of Georgia and the individual Defendants who are named in their official capacities (collectively, “the State” or “Georgia”) respectfully file this Memorandum of Law in Support of their Motion to Dismiss Plaintiff’s Complaint, filed on January 28, 2010 [dkt. 1].
INTRODUCTION The State of Georgia operates the Department of Behavioral Health and Developmental Disabilities (“DBHDD”). DBHDD provides services to thousands of Georgians who have been diagnosed with a developmental disability, mental illness, or substance abuse. With this lawsuit, the U.S. Department of Justice (“DOJ”) seeks nothing short of a hostile takeover of DBHDD and a total supplanting of Georgia’s policy decisions, management, and provision of such

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services. In its place, the DOJ seeks to implement a new federal vision, which is not based on law, ignorant of the limits of federal power, and inconsistent with the proper role of states in our federal system. To make matters worse, the DOJ seeks this sea change by offering a tortured reading of a straightforward statute (the Americans with Disabilities Act or “ADA”) that does not provide the proper basis for a disguised class-action lawsuit like this one. ADA allegations like those in the Complaint necessarily rely on an individual’s specific needs, clinical conditions, and assessments, all of which make a final determination on systemic claims highly improbable. Put differently, by trying to mandate systemic change through a narrow statute, the DOJ is using too blunt a tool for the precision needed for an appropriate inquiry.
Ultimately, the DOJ’s bold attempt to take over a state system through a cumbersome legal theory renders the Complaint fatally flawed and subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). The DOJ’s rhetoric attempts to shift this Court’s focus from the simple question properly before it: does the Complaint sufficiently allege that Georgia discriminates against individuals with disabilities by keeping such individuals unjustifiably isolated in state institutions? Rather than focusing on this dispositive question, the DOJ aggressively, but wrongly, seeks to expand the ADA to cover individuals’ potential
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hospitalization at some unknown point in the future. That risk is not actionable under the ADA because there is no discrimination; ADA rights vest when an individual resides in a state hospital when he otherwise could be treated in the community and wants to be treated in the community. See Olmstead v. Zimring, 527 U.S. 581, 602-06 (1999). In other words, the ADA is a remedial and not prophylactic law. The DOJ’s advocacy and new legal theory fail to state a claim for which relief can be granted because the Complaint raises an unrecognized theory of ADA liability, seeks a remedy not authorized by the ADA, and implicates an affirmative defense. The Complaint also fails to present this Court with a case or controversy within the meaning of Article III of the United States Constitution. Further, the Complaint is barred by operation of the Settlement Agreement entered into between Plaintiff and Georgia in January 2009.
PROCEDURAL HISTORY AND STATEMENT OF RELEVANT FACTS1 A. The Settlement Agreement and the Related Case The Complaint fails to mention the Settlement Agreement, which was executed by the State and the United States on January 15, 2009, after extensive
1 Facts regarding Georgia’s mental health program are stated in Defendants’ Response in Opposition to Plaintiff’s Motion for Immediate Relief (Preliminary Injunction) in the Related Case [dkt. 71] at pages 13-26. For the sake of brevity, the facts are not restated in this motion.
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and frequent negotiations. On the same day, Plaintiff filed a complaint under CRIPA (the “Related Case”), which alleged that conditions in the Georgia Psychiatric Hospitals violated (1) substantive due process; (2) Social Security provisions; (3) the ADA; (4) the Individuals with Discrimination in Education Act; and (5) Title VI of the 1965 Civil Rights Act. [Related Case, dkt. 1.] On the same day, the parties filed a joint motion for this Court to enter the parties’ Settlement Agreement and dismiss the complaint. [Related Case, dkt. 2.]
On February 10, 2009, the parties jointly moved the Court to adopt the Settlement Agreement and dismiss the complaint pursuant to Federal Rule of Civil Procedure 41(a)(2) because “[t]he Parties agree that it is in the best interest of the Parties and the individuals residing in the Facilities that the Settlement Agreement’s reforms be implemented as soon as possible.” (Related Case, Joint Mot. [dkt. 7] at 2.) On February 11, 2009, the Court “adopt[ed] the proposed settlement agreement [Doc. no. 7-2] as the temporary order of the court so that the parties can proceed with implementation and enforcement of its terms pending final approval.” (Related Case, 2/11/2009 Order [dkt. 9].)
While some advocacy groups expressed their support of the Settlement Agreement, other advocates opposed it, primarily based on their belief that financial resources should be shifted from improving conditions at Georgia’s
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hospitals to funding community services. [Related Case, dkts. 4-2, 10 & 11.] Plaintiff defended the Settlement Agreement in its original response to the objecting advocacy groups. Plaintiff affirmatively stated that it would monitor the Settlement Agreement, provide advice and assistance to the State, and “notify the State and work together to develop an effective plan” before instituting judicial remedies, should Plaintiff believe that the State was out of compliance with the Settlement Agreement. (Related Case, U.S. Resp. to Concerns of Ga. Advocates [dkt. 12] at 12.) Importantly, Plaintiff represented to this Court that it “did not seek to prescribe the exact method by which the State would obtain compliance with the Agreement,” that it was “within the State’s discretion” to develop plans to achieve compliance, and that it was “not the United States’ intention . . . to dictate to the State how its mental health system should be designed.” (Id. at 13.) With respect to potential ADA/Olmstead concerns, Plaintiff referenced the Voluntary Compliance Agreement (“VCA”), between the federal Health and Human Services Office of Civil Rights (“OCR”) and the State (since terminated by OCR), which contained a separate enforcement mechanism. (Id. at 15-16.)
The Court directed the parties and interested amici curiae to meet in an attempt to resolve the amici’s concerns. (Related Case, 4/6/2009 Order [dkt. 16]; Related Case, 6/1/2009 Order [dkt. 24].) On June 12, 2009, the parties and the
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amici filed a Joint Status Report detailing those discussions and agreeing to additional periodic meetings and certain actions, including the State’s filing an initial implementation plan concerning the Settlement Agreement. (Related Case, Joint Status Report [dkt. 26] at 3-6.) The State requested that the Court enter the Settlement Agreement as a final order; Plaintiff and the amici requested instead that the Court simply take no further action at that time. (Id. at 10.)
On September 30, 2009, the Court dismissed the parties’ joint motion for entry of the Settlement Agreement because Plaintiff “indicated that it no longer agrees with the motion.” (Related Case, 9/2/2009 Order [dkt. 29] at 2.) In dismissing the joint motion, the Court “applaud[ed] the initiative and cooperation” of the parties and the amici, “strongly encourage[d] all of the parties to maintain their level of commitment and effort,” and stated that “the parties should continue to meet, as agreed, every six months to update/monitor progress and to provide feedback.” (Id.) The Court also indicated that the parties could resubmit a motion “for the court to permanently adopt the settlement agreement.” (Id.)
That same day, Plaintiff and the amici filed a status report with the Court indicating they had “grave concerns” concerning the State’s ability to comply with the Settlement Agreement, but Plaintiff chose “not [to] seek enforcement of the Agreement at this time” because the first deadline for the State to come into
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compliance with certain provisions of the Settlement Agreement was not until one year from its effective date. (Related Case, Joint Status Report [dkt. 30] at 1-2, 23.) This provided the initial indication that Plaintiff was shifting its interest from improving conditions within Georgia’s psychiatric hospitals to the amici’s position that the State should be required to undertake significant actions in developing community services in accordance with their view of Olmstead. (Id. at 2 (“The State’s unwillingness to take seriously its obligations under Olmstead . . . and the discharge planning provisions of the Agreement is a fundamental cause of the constitutional violations that the United States has identified.”).)2
On October 8, 2009, during a telephone conference with the Court, an attorney for the State specifically asked Plaintiff’s counsel whether Plaintiff intended to abide by the terms of the Settlement Agreement:
UNIDENTIFIED SPEAKER [for Defend ants]: My question is do we still have an agreement, and its the intent of th e Department of Justice to move forward with that agreem ent and we’ll try to resolve th e issues about the Amici as we go along. UNIDENTIFIED SPEAKER [for Plaintiff]: Yeah, we believe that the agreement is still in place pursuant to the February 11 Order and we are going to continue to try and address the concerns raised by the Amici, yeah.
2 Unlike the four priority areas, the discharge planning provisions are not required to be fulfilled at any specific time within the Settlement Agreement’s five-year term.
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(Related Case, Tr. of 10/8/2009 Tel. Conf. [dkt. 35] at 5.) That same day, the Court made abundantly clear that its February 11, 2009 Order which “temporarily adopted the proposed settlement agreement is in full force and effect.” (Related Case, 10/8/2009 Order [dkt. 34].)
On December 8, 2009, Plaintiff informed the Governor of Georgia by letter that “the State Psychiatric Hospitals fail to provide adequate discharge planning to insure placement in the most integrated setting and to provide adequate supports and services necessary for successful discharge,” citing the ADA and Olmstead (Compl. Ex. 3 at 2), even though the discharge planning provisions of the Settlement Agreement were still in force with four years remaining for compliance, and the VCA was still in effect for the remaining three-and-a-half years of its term.
Governor Sonny Perdue responded to this letter with an invitation for the DOJ to meet with him and his senior staff. Before the Governor and DOJ representatives met, the Court held another telephone conference on December 30, 2009. The Court ordered Plaintiff to file a motion “outlining their concerns regarding conditions of state facilities,” with responses from the State and amici, after which the Court would determine when to hold a hearing. (Related Case, Minute Entry for 12/30/2009 Tel. Conf. [dkt. 44].)
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Governor Perdue and DOJ representatives met on January 8, 2010, at which time U.S. Assistant Attorney General for Civil Rights Thomas E. Perez advised the Governor that Plaintiff was considering filing a new lawsuit based on the ADA, notwithstanding the Settlement Agreement in this case and the VCA between the OCR and the State addressing ADA issues separately. The Office of the Governor sent letters to Mr. Perez on both January 8 and 15, 2010, containing specific information in a good faith attempt to address Plaintiff’s concerns and resolve the ADA issues cooperatively. [Related Case, dkts. 52-3 & 52-8.]
Plaintiff responded on January 22, 2010, with a proposed 50-page consent decree that would have effectively voided both the Settlement Agreement and the VCA, with an ultimatum that the State must execute the proposed consent decree or an “additional action” would be filed by the end of January. [Related Case, dkt. 52-10.] In response, the State asked for more time to review the proposal and assess the significant costs associated with it, but Plaintiff denied that request and then actually shortened the State’s time to review the proposed consent decree, stating that it would file a new ADA lawsuit on January 28, 2010. [Related Case, dkt. 52-12.] In an effort to undermine completely the VCA and the Settlement Agreement, Plaintiff then filed not only this new ADA Complaint on January 29, 2010, but also a motion to amend the complaint in the Related Case, a motion to
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consolidate this lawsuit into the Related Case, and a motion for immediate injunctive relief in the Related Case. The parties attempted to settle this lawsuit, but after four months of negotiations, were unable to reach accord.
ARGUMENT AND CITATION OF AUTHORITY The DOJ’s attempt to dramatically expand the reach of the ADA presents this Court with a fatally flawed complaint that fails to state a claim for relief for several reasons and should be dismissed. First, the Complaint seeks remedy for a new injury that is not actionable discrimination under the ADA: re-hospitalization of qualified individuals. Second, the remedy sought by Plaintiff exceeds the scope of a properly pled ADA discrimination claim. Third, the allegations in the Complaint explicitly implicate an affirmative defense that bars relief under the ADA altogether. Fourth, the Complaint does not present this Court with a case or controversy under Article III of the U.S. Constitution. Fifth, the Settlement Agreement bars Plaintiff from bringing an ADA claim or at least key allegations in the Complaint, without which, the entire Complaint fails. A. Standard of Review To survive a motion to dismiss, a complaint must set forth sufficient factual detail to support a legal right to relief. Those factual allegations “must be enough to raise a right to relief above the speculative level on the assumption that all the
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allegations in the complaint are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). On a motion to dismiss, courts must accept all well-pleaded facts as true, but are not required to accept a plaintiff’s legal conclusions. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009). B. The Complaint Should Be Dismissed Because It Fails To State a Claim
Under the ADA for Which Relief May Be Granted. Title II of the ADA, which applies to public services provided by governmental entities, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In Olmstead v. Zimring, 527 U.S. 581, 597 (1999), the Supreme Court of the United States concluded that “unjustified isolation” in a state institution can be actionable discrimination prohibited by the ADA. To be “unjustified,” the individual must remain in a state hospital after (a) state professionals determine the individual can safely and appropriately be treated in a community setting, and (b) the individual has expressed a preference to receive treatment in the community. Id. at 602-03. If discrimination exists, public entities like states must make “reasonable
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modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Another regulation, the “integration mandate,” provides that state services must be provided “in the most integrated setting appropriate to the needs of the qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).3
1. Re-Institutionalization Is Not a Cognizable Injury Under the ADA. As a basis for its ADA claim, Plaintiff alleges the injury of “rehospitalization” or “re-institutionalization.” Specifically, Plaintiff alleges that Georgia violates the ADA by not keeping qualified individuals in the community and out of the State Psychiatric Hospitals, whether or not those qualified individuals are receiving state services. The introductory paragraph to the Complaint says as much: “the State … fails to provide adequate support and services to individuals who are discharged from the institutions or who are at risk of institutionalization.” (Compl. at 1-2 (emphasis added).) Paragraphs 35 to 41 of the Complaint discuss readmissions to the State Psychiatric Hospitals and blame 3 The “integration mandate” regulation does not appear to have been challenged in the U.S. Supreme Court or the U.S. Court of Appeals for the Eleventh Circuit. See Olmstead, 527 U.S. at 592-93 (“We recite these regulations with the caveat that we do not here determine their validity.”).
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the readmissions on the State’s alleged failure to make “sufficient supports available in the community.” (Compl. ¶ 37.) Paragraph 44 also alleges a purported harm of “repeated hospitalization” (Compl. ¶ 44), and Paragraph 66 cites the same for persons with a diagnosis of substance abuse (Compl. ¶ 66).
Neither the text of the ADA, the integration mandate, nor the Olmstead decision supports the DOJ’s new re-hospitalization theory of liability. Put simply, if a qualified individual is not receiving state services, the ADA imposes no obligation for the State to provide them; also, if the qualified individual is receiving services in the community, a claim against the State for discrimination based on the ADA cannot lie. Accordingly, the threat of re-hospitalization is not a cognizable injury under the ADA. This fact is apparent based on the ADA itself, the regulations, and the Olmstead opinion.
Title II is silent as to the location of where qualified individuals will receive state services. Consequently, to the extent that the DOJ argues something other than the “unjustified isolation” claims addressed in Olmstead, it is forced to rely only on the integration regulation found in 28 C.F.R. § 35.130(d). That provision, however, makes plain that a person not receiving State services has no claim under the ADA. The trigger—the State’s provision of services—is not activated.
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Likewise, the integration regulation does not create liability for qualified individuals receiving services in the community. The regulation speaks to the location of services: “the most integrated setting.” 28 C.F.R. § 35.130(d) (emphasis added). So long as persons are receiving services in the community, the setting phrase is satisfied. See Buchanan v. Maine, 469 F.3d 158, 173 (1st Cir. 2006) (recognizing a goal of the ADA is treatment in the community). The quality, quantity, or sufficiency of services needed to prevent unjustified isolation for persons in the community is not a relevant inquiry under the ADA. Even allegedly inadequately funded community services satisfy the ADA. See Olmstead, 527 U.S. at 603 n.14 (“We do not in this opinion hold that the … ADA requires States to ‘provide a certain level of benefits to individuals with disabilities.’”) (citation omitted); see also Lincoln CERCPAC v. Health & Hosps. Corp., 147 F.3d 165, 168 (2d Cir. 1998) (noting that “the disabilities statutes do not guarantee any particular level of medical care for disabled persons, nor assure maintenance of service previously provided”).
Last, and for two reasons, Olmstead does not provide a basis for ADA liability based on “re-institutionalization.” First, the Olmstead case itself acknowledged that “[s]ome individuals … may need institutional care from time to time ‘to stabilize acute psychiatric symptoms.’” 527 U.S. at 605. The Complaint
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does not allege that those readmitted to the State Psychiatric Hospitals do not need institutional care. Second, while Olmstead identified a type of discrimination under the ADA, nothing in Olmstead changes the ADA from a remedial law to a prophylactic one. Prevention is simply not a requirement of the ADA; amelioration of discrimination is. By the terms of Olmstead, discrimination does not happen (and cannot be remedied) until after someone is (1) hospitalized in a state facility, (2) remains in the state facility after he or she has expressed a desire to leave, and (3) is deemed by the State’s professionals to be able to live safely in the community. Olmstead, 527 U.S. at 602-03. Thus, ADA rights based on “unjustified isolation” cannot vest while someone is in the community, even if that individual is subject to a high risk of reentering a state facility. See Maine, 469 F.3d at 173. Accordingly, because re-hospitalization is not a cognizable, statutory injury, the Complaint must be dismissed.
2. The ADA Does Not Require States To Create Additional Capacity for Community-Based Services or Narrow the Scope of Services Provided in State Psychiatric Hospitals.
The Court should dismiss the Complaint for the additional, independent reason that the provision of more community services or different roles for the State Psychiatric Hospitals—the relief that Plaintiff requests—is not required by or an enforceable remedy under Title II of the ADA.
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Plaintiff generally alleges that the State “fails to provide services in sufficient quality, quantity, and geographic diversity to enable individuals with mental illnesses, substance abuse diagnosis, or developmental disabilities to be served in the least restrictive setting appropriate to their needs.” (Compl. ¶ 72.) Although not specifically alleged in the Complaint, in effect, the only way for the State to remedy the alleged deficiency is for the State to fund and create additional capacity for community-based services. (See Related Case, Tr. of 2/4/2010 Tel. Conf. [dkt. 61] at 21 (Mr. Mygatt’s comments) (conceding that the relief Plaintiff seeks is a significantly increased appropriation of state dollars to build a larger network of community-based services).) Plaintiff also asks for a policy-shifting judicial fiat: “transition each of the Hospitals to a resource center that supports delivery of community services and serves as a last resort in a continuum of care for those for whom community-based services and supports have been exhausted.” (Compl., Prayer for Relief.) Both requests are futile and disregard the proper respect afforded to states in the federal judiciary. If this Court rejects Plaintiff’s sought-after relief, what would remain would be so vague as to be an unenforceable “obey the law” injunction. For these reasons, an appropriate remedy cannot be fashioned, and relief cannot be granted in this case.
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As an initial matter, “federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs.” Milliken v. Bradley, 433 U.S. 267, 280-1 (1977) (school desegregation). “In exercising their equitable powers, federal courts must recognize ‘[the] special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’” City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983) (addressing claims under 42 U.S.C. § 1983) (citations omitted).4
Within this framework, injunctive remedies must be tailored to do only so much as is required to cure the offending condition. Rogers v. Lodge, 458 U.S. 613, 628 (1982) (addressing constitutional voting rights claim). The decree must be “remedial in nature, that is, it must be designed as nearly as possible ‘to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.’” Milliken, 433 U.S. at 280 (emphasis added). Put differently, only those persons receiving services in the State Psychiatric Hospitals who have been deemed able to be treated in the community and desire to be placed
4 Particularly given Georgia’s recent endeavors to reorganize the Department of Human Resources and spin off the DBHDD to focus solely on behavioral health and developmental disabilities issues, this Court should defer to Georgia’s recent acts and give them time to work. “[A] federal court … is not the proper forum to press general complaints about the way in which government goes about its business.” Allen v. Wright, 468 U.S. 737, 760 (1984) (citing Lyons, 461 U.S. at 111-12) (ellipsis in original).
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in the community (in other words, have been discriminated against because of their disability) can reasonably be deemed victims of discriminatory conduct and entitled to relief under the ADA or Olmstead.5
First, failure to prevent re-institutionalization is not actionable under Title II of the ADA, so at least that portion of the Complaint that asserts rights for persons not currently in the State Psychiatric Hospitals should be dismissed. To allow any other claims to proceed would permit a potential remedy absent actionable discrimination.
Second, Georgia has not violated the ADA by not funding the amount or type of community services preferred by Plaintiff.6 Olmstead itself states that the ADA does not require states to “provide a certain level of benefits to individuals with disabilities”; instead, Olmstead holds only that “States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” 527 U.S. at 604 n.14 (emphasis added). In the wake of Olmstead, Circuit courts also have opined against attempts to use the ADA as a tool to require states to provide additional behavioral health services. See Maine, 469 F.3d at
5 Georgia does not concede, however, that persons in the State Psychiatric Hospitals are victims of discrimination or other unlawful conduct by the State. 6 See Complaint ¶¶ 54-56 (undefined “supported housing”), 63 (employment services), 64-65 (transportation services), 66 (substance abuse services), and 71 (inter alia, the quantity of services).
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173; Doe v. Pfrommer, 148 F.3d 73, 83-84 (2d Cir. 1998). Nor does the ADA “assure maintenance of service previously provided.” Lincoln CERCPAC, 147 F.3d at 168; see also Conner v. Branstad, 839 F. Supp. 1346, 1357 (S.D. Iowa 1993) (“[I]f Congress had actually intended to require states to provide community based programs for mentally disabled individuals currently residing in institutional settings, it surely would have found a less oblique way of doing so.”). Thus, the relief sought by Plaintiff is not compelled by the ADA, and the Court should dismiss the Complaint.
Third, Plaintiff’s criticisms that the community-based services that the State currently provides are insufficient in both quantity and quality do not state a discrimination claim under the ADA. Plaintiff does not allege that the State’s policies or practices with respect to the community treatment that it now provides are unjustified or discriminatory in violation of the ADA. Rather, Plaintiff’s ADA claim focuses on what modifications the State could make to improve its mental health program. However, such aspirational desires, which are shared by the State and all mental health professionals, do not show that a state agency’s community services are so inadequate as to violate the ADA. See Johnson v. Murphy, 2001 U.S. Dist. LEXIS 24013, at *55 (M.D. Fla. June 28, 2001) (“[W]hile the plaintiffs offered evidence that community services and facilities could be different and in
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some instances better, they have failed to prove that the defendants’ mental health program, as administered, results in unnecessary isolation of patients into segregated settings.”).
Fourth, the ADA does not require states to supplement state hospitals, nor does the statute mandate any preferred role for them. “Title II [of the ADA] provides only that ‘qualified individual[s] with a disability’ may not ‘be subjected to discrimination.’” Olmstead, 527 U.S. at 602 (quoting 42 U.S.C. § 12132). Limiting the reach of its opinion, the Olmstead majority specifically provided that “the ADA is not reasonably read to impel States to phase out institutions.” Id. at 604. Thus, Olmstead itself provides the basis to reject the Complaint: the Prayer for Relief seeks a remedy not required by the ADA, namely, the transitioning of the State Psychiatric Hospitals to mere receiving facilities on a “continuum of care.” (Compl., Prayer for Relief.)
Without the impermissible ordering of increased or different community services or transformation of the State Psychiatric Hospitals, what remains in the Complaint is a prayer to obey the law, which the Eleventh Circuit has repeatedly held to be unenforceable. Fla. Ass’n of Rehab. Facilities v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1223 (11th Cir. 2000). For example, in SEC v. Smyth, 420 F.3d 1225, 1233 n.14 (11th Cir. 2005), the Eleventh Circuit
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deemed unenforceable an injunction that tracked the provisions of the Securities Exchange Act. Plaintiff here makes the same error as the SEC in Smyth. The prayer for relief tracks the regulatory language of the ADA almost verbatim: it asks this Court to “[e]njoin Defendants (1) from administering behavioral health services in a setting that unnecessarily isolates and segregates individuals with disabilities from the community, [and] (2) to administer behavioral health services in the most integrated setting appropriate to the needs of the individuals with disabilities.” (Compl., Prayer for Relief.) Such relief cannot be had as it represents “a quintessential ‘obey-the-law’ injunction” and is thus unenforceable. Smyth, 420 F.3d at 1233 n.4. Indeed, Plaintiff’s own difficulty in articulating a valid, enforceable remedy to alleged ADA violations demonstrates the ill-suited nature of this class-action-like lawsuit, which therefore should be dismissed.
3. The Complaint Implicates an Affirmative Defense That Bars Plaintiff’s ADA Claim.
The ADA regulations provide a defense for states, specifically against “reasonable modifications in policies, practices, or procedures . . . necessary to avoid discrimination on the basis of disability … would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Olmstead acknowledged the defense, opining that the “State’s responsibility, once it provides community-based treatment to qualified persons with disabilities, is not
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boundless.” 527 U.S. at 603. The Court also clarified that the defense allows states to “show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” Id. at 604.
Thus, a state complies with the ADA if it makes a reasonable modification through its “comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Id. at 605-06. And a State is not required to make a requested modification if the relief sought amounts to a “fundamental alteration” of its program. Id. at 603-04; see Easley ex rel. Easley v. Snider, 36 F.3d 297, 305 (3d Cir. 1994); Messier v. Southbury Training Sch., 1999 U.S. Dist. LEXIS 1479, at *36 (D. Conn. Jan. 5, 1999); Williams v. Wasserman, 937 F. Supp. 524, 531 (D. Md. 1996); Dees v. Austin Travis County Mental Health & Mental Retardation, 860 F. Supp. 1186, 1190 n.7 (W.D. Tex. 1994).
Paragraph 79 of the Complaint alleges that the relief sought by Plaintiff “would not constitute a ‘fundamental alteration’ of the State’s behavioral health service system because the State already provides the services that the Patients
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require to live in a more integrated setting.” (Compl. ¶ 79.) By raising the fundamental alteration defense, Plaintiff put the defense before this Court for consideration on a motion to dismiss. “A district court . . . may dismiss a complaint on a rule 12(b)(6) motion ‘when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint.’” Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993) (quoting Quiller v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984), cert. denied, 476 U.S. 1124 (1986)).
Plaintiff’s representations about a fundamental alteration are belied by other allegations in the Complaint that seek to require the State to increase and enhance community services. Specifically, the Complaint contains:
• a request for relief that seeks nothing short of a transition of the State Psychiatric Hospitals to having a different mission based on increased community services (Compl., Prayer for Relief);
• allegations that the State should do more to meet the DOJ’s own definition of “Supported Housing,” a concept not defined by the ADA, its regulations, or controlling case law (Compl. ¶¶ 54-56);
• allegations that the State “does not offer sufficient Supported Employment Programs” (id. ¶ 63);
• allegations that transportation services are not available in all areas of the State (thereby acknowledging they would need to be added) (id. ¶ 64-65);
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• allegations that there are insufficient treatment services for persons diagnosed with substance abuse (id. ¶ 66); and
• a catch-all allegation that the State “fails to provide services in sufficient quality, quantity, and geographic diversity” (id. ¶ 72).
Individually and collectively, these allegations demonstrate the breadth of DOJ’s requested remedy and how it is facially a fundamental alteration to Georgia’s mental health system. C. The Complaint Does Not Present a Case or Controversy, and Plaintiff
Therefore Lacks Article III Standing. Article III standing requires a plaintiff to demonstrate (1) an injury in fact; (2) “fairly traceable … [to] the complained-of conduct”; and (3) redressibility, or a “likelihood that the requested relief will redress the alleged injury.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04 (1998).7 The Complaint alleges that ADA-based discrimination is the injury in fact, purportedly caused by Georgia’s lack of services in the community, and that an order imposing the provision of additional community services would remedy the injury. This construct is flawed because the remedy that is actually available—mandating 7 Plaintiff not only fails to state a claim for which relief can be granted, but also lacks Article III standing. The inquiries are distinct. The latter concerns a court’s jurisdiction, while the former considers the right to a particular remedy. See Steel Co., 523 U.S. at 89-90. Similarly, while Plaintiff may have statutory standing to bring the ADA claim, the Complaint presently before the Court lacks Article III standing. See, e.g., Amchem Prods. v. Windsor, 521 U.S. 591, 612-13 (1997) (distinguishing between statutory standing and Article III standing).
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integration of persons in state hospitals into the community at a reasonable pace— does not address much of the Complaint’s allegations. Moreover, Plaintiff pleads only tenuous causal links between the State’s conduct and the alleged injury.
For Article III purposes, redressibility means that the relief sought provides a remedy for the injury suffered. Steel Co., 523 U.S. at 107. A basic question, though, is whether the sought-after relief is available. In this case, and as demonstrated above, it is not. Assuming only for the purposes of the motion to dismiss that such relief would be warranted, the type of relief that could be available is limited to that which compels the State to move persons in the State Psychiatric Hospitals into the community at a reasonable pace—something that the law already requires. See Olmstead, 527 U.S. at 604-05. The Complaint does not allege that Georgia is not moving persons out of institutions at a reasonable pace.
Even if this Court were to grant some sweeping type of relief (which the ADA does not require), it cannot impose an order on independent third parties who are not parties to this lawsuit but provide the overwhelming majority of state services in the community. Unlike the State Psychiatric Hospitals, where the State both provides and funds the care, the State only funds community services that are provided by third parties. (Compare Compl. ¶ 14 with id. ¶ 15.) Relief aimed
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solely at the State would not fully address the injury alleged in the Complaint, because there is no guarantee that qualified individuals will have a place to go.
This involvement of third parties prevents standing in this case, as a remedy cannot be had for the injury allegedly caused by the State. See Allen v. Wright, 468 U.S. 737, 757 (1984). In Allen, advocates claimed an injury of interference with the right to receive an education in a desegregated school. They further alleged that the Internal Revenue Service caused the injury by failing to adopt “sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools.” Id. at 739. The Court concluded that the plaintiffs lacked Article III standing because the link between the injury (private schools preventing integration) was too speculatively tied to the official action (tax status determination). Id. at 758-60. The Court specifically noted several problems with the complaint, including (1) whether the removal of taxexempt status would force private schools to more quickly integrate; (2) whether any parent would transfer a child from a private school if it lost tax-exempt status; or (3) whether such decisions would be sufficient in the aggregate to provide substantive change. Id. at 758. Consequently, the allegations made
the chain of causation between the challenged Government conduct and the asserted injury … far too weak for the chain as a whole to sustain respondents’ standing [becau se] . . . [i]t involve[d] numerous third
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parties who may not even exist in respondents’ communities and whose independent decisions may not collectively have a significant effect. Id. at 759. Examples are plenty of how the same causal weakness applies to this lawsuit. First, the Complaint does not allege that there is sufficient capacity in Georgia to treat all qualified individuals in the community. Accordingly, it is entirely speculative that an order mandating increased community capacity is feasible or that increased State spending would result in such greater capacity. Second, the Complaint does not allege that third parties providing services in the community will accept the individuals currently residing in state hospitals. Thus, it is unclear if increased resources would provide community locations for persons with a history of challenging behaviors. (See, e.g., Compl. ¶ 35.) Third, the Complaint alleges that “lack of income and employment are identified as barriers to successful community integration for people with disabilities.” (Compl. ¶ 62.)8 Georgia is not required to provide qualified individuals with jobs, and hiring
8 Paragraph 62 plainly demonstrates the far-reaching aspects of the Complaint. The federal Bureau of Labor Statistics said that in May 2010, Georgia currently had an unemployment rate of 10.2%. Bureau of Labor Statistics, http://data.bls.gov/PDQ/servlet/SurveyOutputServlet?data_tool=latest_numbers&s eries_id=LASST13000003 (last visited June 28, 2010). Despite the high unemployment rate, and the utter lack of legal authority for its proposition, the DOJ reads the ADA as imposing on states the obligation to provide jobs for qualified individuals.
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decisions necessarily involve even more third parties that are not part of this lawsuit. Fourth, Paragraphs 54-56 set up an artificial and baseless definition of a term “supported housing,” and then allege that Georgia does not provide sufficient housing services. (Compl. ¶¶ 54-56.) The Complaint does not allege, however, that sufficient housing is available in the State, that landlords would accept qualified individuals, or that such qualified individuals could afford they type of housing described in the Complaint with the current provision of state services. Thus, too much of Plaintiff’s alleged injury results “from the independent action of some third party not before the court,” and the Complaint should therefore be dismissed for lack of standing. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-2 (1976). D. The Settlement Agreement Bars the Complaint.
Plaintiff voluntarily entered into the Settlement Agreement after conducting its own investigations and after extensive negotiations with the State. The Settlement Agreement is binding on Plaintiff, and despite its recent change of policy and priorities, Plaintiff cannot re-negotiate the agreement through litigation. This Court must enforce the Settlement Agreement and dismiss the Complaint, which was filed in breach of the Settlement Agreement.
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The DOJ has repeatedly claimed that ADA claims are part of the Settlement Agreement it entered into with the State of Georgia. (See, e.g., Related Case, dkt. 12 at 14-15; dkt. 37 at 2; dkt. 42 at 3; dkt. 54 at 5; dkt. 55-2 at 3-4; dkt. 72 at 2.) Accepting the DOJ’s argument for the purposes of this Motion to Dismiss, the Settlement Agreement bars the ADA lawsuit.
Whatever the status of the ADA in the Settlement Agreement, it is beyond doubt that the allegations in the Complaint reach the subject matter that is covered by the Settlement Agreement. Specifically, the Settlement Agreement contained provisions about discharge planning (Settlement Agreement § III.F) and treatment plans (id. § III.B.2). The Settlement Agreement gave the State five years to comply with the discharge planning and treatment plan provisions. (Id. § III.E.) Although the time for the State to comply has not expired, the DOJ ignored the Settlement Agreement and filed this lawsuit, which alleges deficiencies in the State’s discharge planning (see Compl. ¶¶ 37, 39, 40, 41, 43, 69 & 70) and assessments (see Compl. ¶¶ 42-47). Should this Court allow the ADA claim in general, it should dismiss any claim based on discharge planning and treatment plans, as the time to comply has yet to expire. Enforcement of the Settlement Agreement necessitates this result.
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Federal courts favor and encourage settlements as a means of resolving disputes. See Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483, 1486 (11th Cir. 1994); see also In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992) (class action); Ins. Concepts, Inc. v. W. Life Ins. Co., 639 F.2d 1108, 1111 (5th Cir. 1981); Cia Anon Venezolana De Navegacion v. Harris, 374 F.2d 33, 35 (5th Cir. 1967); J. Kahn & Co. v. Clark, 178 F.2d 111, 114 (5th Cir. 1949) (citing Williams v. First Nat’l Bank, 216 U.S. 582 (1910)).9 And settlements are presumed to be valid. See United States v. City of Miami, 614 F.2d 1322, 1333 (5th Cir. 1980) (addressing proposed consent decree).
When settlements are “fairly arrived at and properly entered into, they are generally viewed as binding, final, and as conclusive of rights as a judgment.” Ins. Concepts, Inc., 639 F.2d at 1111. Thus, “a settlement agreement once entered into cannot be repudiated by either party and will be summarily enforced.” Harris, 374 F.2d at 35. Parties to settlement agreements may not back out of them because they change their minds after execution of the agreements. See Murchison, 13 F.3d at 1487 (“We cannot allow a litigant to attack the integrity of the settlement process by attempting to recharacterize the focus of his litigation after he decides
9 All decisions of the former Fifth Circuit prior to October 1, 1981, are binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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he is unhappy with the settlement.”). And a different litigation strategy or unreached potential results do not provide a basis to breach a settlement agreement: “courts will enforce the compromise without regard to what the result might, or would have been, had the parties chosen to litigate rather than settle.” Harris, 374 F.2d at 35; see also Thomas v. Blue Cross & Blue Shield Assoc., 2010 WL 174765, at *7 (11th Cir. Jan. 20, 2010) (addressing contempt of court for violation of class action settlement).
Sound policy supports the strong preference for enforcing settlement agreements. Settlements conserve judicial and taxpayer resources. See Murchison, 13 F.3d at 1486. Though describing a class action between commercial parties, the Eleventh Circuit’s words in the In re U.S. Oil & Gas Litigation opinion apply equally here: complex litigation “can occupy a court’s docket for years on end, depleting the resources of the parties and the taxpayers while rendering meaningful relief increasingly elusive.” 967 F.2d at 493.
Settlements are also preferred in anti-discrimination lawsuits like this case. First, settlements reach a faster result. By contrast, the costs of lengthy litigation “to all sides of a full blown trial can be enormous,” and “the progress of remedying illegal discrimination is likely to slow to a snail’s pace[, a] result [which] would be entirely contrary to the goals of” anti-discrimination legislation. City of Miami,
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614 F.2d at 1334 (discussing Title VII of the 1964 Civil Rights Act). Second, settlement agreements are better for achieving the results sought by Plaintiff; when an “agreement is reached by consent, voluntary compliance is rendered more likely, and the government may have expeditious access to the court for appropriate sanctions if compliance is not forthcoming.” Id. at 1333. Third, in addition to preserving judicial resources, settlement agreements allow governments to focus their resources on providing care or remedying discrimination, instead of litigating for years. See id.
Moreover, Plaintiff cannot reap the benefits of the Settlement Agreement— enhanced information, reporting, transparency, and access to state hospitals and personnel—while at the same time Plaintiff attempts to litigate against the State in violation of those agreements. For example, Plaintiff sent the State a series of letters in 2008 and 2009, requesting information about community-based treatment and discharge planning, as well as other information about conditions and services at the State Psychiatric Hospitals. (See, e.g., Compl. Exs. 1-6.) The State complied with all of Plaintiff’s requests, but little did the State know that Plaintiff was using the requests to provide a purported factual basis to file new claims in violation of the Settlement Agreement. Such conduct should not be rewarded by permitting Plaintiff to escape its obligations under the Settlement Agreement.
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“[O]ne who agrees to settle his claim cannot subsequently seek both the benefit of the settlement and the opportunity to continue to press the claim he agreed to settle.” Kirby v. Dole, 736 F.2d 661, 664 (11th Cir. 1984).
Ultimately, Plaintiff cannot overcome the strong presumption in favor of enforcing settlement agreements. The Settlement Agreement remains valid, enforceable, and the current order of this Court. (See Settlement Agreement § I.E.) The Settlement Agreement expressly binds the State of Georgia and Plaintiff. (Id. § VI.A.) There can be no dispute that the parties began implementing the Settlement Agreement immediately upon its effective date, and the five-year term of the Settlement Agreement has not expired. (See id. §§ IV.A & V.E.) Moreover, the Settlement Agreement cannot be modified unless both parties consent to the proposed amendment (see id. § V.A), and neither party has sought to modify the agreement. Here, the Settlement Agreement remains in effect, and Plaintiff has not alleged anything to the contrary.
Put simply, Plaintiff’s filing of this Complaint is in total breach of the Settlement Agreement, and the law does not allow such brazen disregard for negotiated settlement agreements. The Settlement Agreement prohibits Plaintiff from “initiating any court proceeding” without providing the State an opportunity
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to cure any alleged non-compliance. (See id. § V.D.) Enforcement of the Settlement Agreement requires dismissal of the Complaint.
CONCLUSION The facial weakness of the Complaint can be directly traced to the DOJ’s attempt to use a highly individualized inquiry—whether qualified persons are receiving services in the most integrated setting according to their needs—to achieve systemic change based on new policies at the DOJ. By seeking to do too much, it fails to accomplish anything. The Complaint fails to state a claim for which relief may be granted, because it attempts to raise an unrecognized cause of action (re-hospitalization), seeks relief not required by the ADA (increased services and system transformation), and implicates an affirmative defense that necessitates its own dismissal. Moreover, the Complaint fails to state a case or controversy under Article III of the Constitution, and the Settlement Agreement bars the lawsuit completely. For any of these reasons, the State of Georgia respectfully asks this Court to dismiss Plaintiff’s Complaint.
(signatures on next page)
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Respectfully submitted, this 1st day of July, 2010.

THURBERT E. BAKER Attorney General Georgia Bar No. 033887
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
MARK J. CICERO Assistant Attorney General Georgia Bar No. 125686
JASON S. NAUNAS Assistant Attorney General Georgia Bar No. 142051
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ Mark H. Cohen MARK H. COHEN Special Assistant Attorney General Georgia Bar. No. 174567 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
/s/ Josh Belinfante
(with express permission by Mark H. Cohen)
JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsLaw LLC 999 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinslawllc.com

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Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Mark H. Cohen Mark H. Cohen (Georgia Bar No. 174567)
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CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Memorandum of Law in Support of Defendants’ Motion to Dismiss Plaintiff’s Complaint was electronically filed with the Clerk of Court using the CM/ECF system, which automatically serves notification of such filing to all counsel of record. This 1st day of July, 2010.
/s/ Mark H. Cohen Mark H. Cohen (Georgia Bar No. 174567)
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 Case 1:10-cv-00249-CAP Document 37 Filed 08/02/10 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE UNITED STATES OF AMERICA, )

)

Plaintiff,

)

v.

)

THE STATE OF GEORGIA, et al.,

) )

Defendants.

)

)

Civil Action No. 1:10-CV-0249-CAP

REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant the State of Georgia and the individual Defendants who are named in their official capacities (collectively, “the State” or “Georgia”) respectfully submit this reply brief in support of their Motion to Dismiss Plaintiff’s Complaint [dkt. 28] pursuant to Federal Rule of Civil Procedure 12(b)(6).
INTRODUCTION The mandatory, sweeping injunctive relief that Plaintiff seeks in this case is neither required nor authorized by the Americans with Disabilities Act (“ADA”). Plaintiff attempts to expand dramatically the reach of the ADA. In doing so, however, Plaintiff’s position itself lays bare how its fatally flawed Complaint fails to state a claim for relief: it fails to explain how a remedial statute requiring precise and discrete inquiries about individualized discrimination provides a basis to take

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over a state’s mental healthcare delivery system, and Plaintiff cannot allege any cognizable discrimination under the ADA. The ADA is simply not a means for Plaintiff to exact policy changes in a state’s mental health program without some initial showing of cognizable discrimination. Moreover, Plaintiff’s Response Brief [dkt. 30] articulates exactly why the Settlement Agreement bars relief.
First, the injury that Plaintiff alleges in the Complaint—the State’s alleged failure to provide additional community services in accordance with Plaintiff’s wishes for a systemic overhaul—is not actionable discrimination under the ADA or the related regulations. Second, the remedy that Plaintiff seeks exceeds the scope of an ADA discrimination claim, even if properly pled.1 Third, the allegations in the Complaint implicate an affirmative defense that bars relief under the ADA altogether. Fourth, the Complaint fails to present a case or controversy as required by Article III of the U.S. Constitution. Fifth, the Settlement Agreement, entered into between Plaintiff and the State in January 2009, bars Plaintiff from either asserting an ADA claim or at least key allegations in the Complaint, without which the entire Complaint fails. Because Plaintiff for all of these reasons fails to state a
1 This civil action is, in essence, a disguised class-action lawsuit, and even Plaintiff does not dispute that it seeks systemic relief. Indeed, several of the cases upon which Plaintiff relies are class actions seeking class-wide relief (see infra note 2). If the Court allows Plaintiff’s ADA claim to proceed, Plaintiff should be required to follow the strict guidelines of Federal Rule of Civil Procedure 23.
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claim upon which relief can be granted, its ADA Complaint should be dismissed pursuant to Rule 12(b)(6).
ARGUMENT AND CITATION OF AUTHORITY A. The Complaint Should Be Dismissed Because It Fails To State a Claim
Under the ADA for Which Relief May Be Granted. 1. The Risk of Re-Institutionalization Because the State Cannot Provide
New or Additional Community Services Is Not a Cognizable Injury Under the ADA. Significantly, in its Response Brief, Plaintiff admits that the gravamen of its Complaint is that “Defendants fail to provide adequate services both in the Hospitals and in the community” (Pl.’s Resp. at 6 (emphasis added)), which Plaintiff alleges runs afoul of the integration regulation, 28 C.F.R. § 35.130(d). Yet, nowhere in the Complaint does Plaintiff allege discrimination in the administration of the services that the State actually provides—in other words, Plaintiff does not and cannot allege that community-based services are otherwise available and that the State is preventing certain patients from getting those services. That spells demise for Plaintiff’s ADA claim. In its attempts to counter the State’s arguments and survive a motion to dismiss, Plaintiff overreaches and misses the point. Plaintiff’s contention that Defendants have a “fundamental lack of understanding about the ADA” (Pl.’s Resp. at 6), is nothing more than smoke and mirrors to shield Plaintiff’s
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misapplication of integration mandate case law. As its Response Brief
demonstrates, Plaintiff attempts to use factually distinguishable cases as square
pegs for the round hole of its new, unsupported theory of ADA liability and
requested relief in this case.
The cases upon which Plaintiff relies generally involve circumstances in
which a state was already providing services to eligible individuals who relied on
those services to stay in their homes, the state cut the funding or authorization for
those services, and the impacted individuals faced the identifiable and quantifiable risk of institutionalization.2 In those cases, though, the plaintiffs were simply
2 See Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003) (finding that the state’s imposition of cap on the number of prescription medications, except in nursing homes, placed participants in community-based program at high risk for premature entry into nursing homes, which presented a genuine issue of material fact as whether such action violated the integration mandate); Marlo M. v. Cansler, 679 F. Supp. 2d 635, 638-39 (E.D.N.C. 2010) (preliminarily enjoining state funding cuts that would have terminated the in-home services that the plaintiffs were already receiving and would have forced them into institutions); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1119-20 (N.D. Cal. 2009) (granting preliminary injunction to prevent state from applying a change in the law to reduce or terminate in-home services already provided to plaintiffs, which would have forced them to receive the services in hospitals and institutions, because such action would violate the integration mandate); Brantley v. MaxwellJolly, 656 F. Supp. 2d 1161, 1175 (N.D. Cal. 2009) (class action) (preliminarily enjoining implementation of funding cuts that would have reduced in-home services that the plaintiffs were already receiving and put the plaintiffs at risk of hospitalization); Ball v. Rodgers, 2009 U.S. Dist. LEXIS 45331, at *15-17 (D. Ariz. Apr. 24, 2009) (class action) (granting injunctive relief because an existing
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asking the courts to maintain the status quo and prevent the state from terminating
or reducing community or in-home services that the plaintiffs were already
receiving under existing state programs, so that they could avoid unnecessary
institutionalization. They were not demanding new or separate services that were
not already provided by the states.3
Unlike the plaintiffs in those cases, Plaintiff here asks the Court to totally
reorganize the State’s mental healthcare delivery system by forcing the State to
increase funding and provide new, additional services in the community and in the
Hospitals to a level that Plaintiff believes constitutes “adequate” quantity, quality,
and available state Medicaid program failed to provide the plaintiffs with needed services, which “threatened Plaintiffs with institutionalization, prevented them from leaving institutions, and in some instances forced them into institutions in order to receive their necessary care” in violation of the ADA); Crabtree v. Goetz, 2008 U.S. Dist. LEXIS 103097, at *67-68, 83 (M.D. Tenn. Dec. 18, 2008) (preliminarily enjoining funding cuts and reductions of in-home health care services that the plaintiffs were already receiving through the state’s Medicaid waiver program, and which would have resulted in institutionalization in order to receive the necessary care); Mental Disability Law Clinic v. Hogan, 2008 U.S. Dist. LEXIS 70684, at *50-54 (E.D.N.Y. Aug. 26, 2008) (class action) (denying motion to dismiss the plaintiffs’ claims that defendants failed to use a new law to authorize available involuntary outpatient services, which the defendants were already providing to others, in lieu of involuntary hospitalization). 3 The other cases that Plaintiff cites address challenges to the number of Medicaid waivers that the state provided, not an overhaul of the entire mental health system, like in this case. See Makin v. Hawaii, 114 F. Supp. 2d 1017, 1034-35 (D. Haw. 1999); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1304, 1309 (D. Utah 2003); Haddad v. Arnold, No. 3:10-CV-414-J-99, slip op. at 7 (M.D. Fla. June 23, 2010).
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or sufficiency of services. But neither the text of the ADA or the integration regulation nor the Olmstead decision supports Plaintiff’s theory of liability. See Olmstead v. Zimring, 527 U.S. 581, 603 n.14 (1999) (“We do not in this opinion hold that the … ADA requires States to ‘provide a certain level of benefits to individuals with disabilities.’”) (citation omitted); Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) (noting that Olmstead controls when the issue is the location of services, but not when the issue is the whether services will be provided). The ADA is not violated when an individual is “den[ied] a benefit that it provides to no one.” Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999). Olmstead stands only for the proposition that “[s]tates must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Olmstead, 527 U.S. at 603 n.14 (emphasis added).
If a qualified individual is not receiving state services, the ADA imposes no obligation for a state to provide them. Moreover, if the qualified individual is receiving services in the community, a claim against the state for discrimination based on the ADA cannot lie unless the State stops providing those services and puts that person at risk of institutionalization (see supra note 2). Accordingly, a threat of continued hospitalization or re-hospitalization simply because the State will not provide or fund a greater quantity of community services in accordance
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with Plaintiff’s wishes for a systemic overhaul is not a cognizable injury under the ADA, and the Complaint must be dismissed.4
2. The Court Cannot Afford Plaintiff the Relief That It Seeks Because the ADA Does Not Require States To Create New, Additional Community Services or Reduce the Services Provided in Hospitals.
The relief that Plaintiff seeks—the funding of and provision of more community services and changed roles for the State Psychiatric Hospitals—is not an enforceable remedy under the ADA and therefore cannot be ordered in this case. Plaintiff seems to recognize this fatal flaw in its allegations and uses tortured semantics to try to avoid dismissal. Plaintiff argues that because the State provides community supports and services to some people, it should be forced to provide those services to all people. (Pl.’s Resp. Br. at 13, 17.) Although not specifically alleged in the Complaint, Plaintiff admits in its Response Brief that what it seeks is “that the Court order the State to develop additional community supports and
4 Although Plaintiff argues that the State discriminates against those who are reinstitutionalized or who are at risk of institutionalization (Pl.’s Resp. Br. at 8 n. 1), Plaintiff does not allege that those readmitted to the State Psychiatric Hospitals do not need institutional care. See Olmstead, 527 U.S. at 605 (acknowledging that “[s]ome individuals … may need institutional care from time to time ‘to stabilize acute psychiatric symptoms’”). Nothing in Olmstead changes the ADA from a law designed to remedy discrimination to a law designed to prevent institutionalization under all circumstances.
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services.” (Pl.’s Resp. Br. at 13.) That is not required by the ADA, and certainly implicates the fundamental alteration defense.
As discussed above and in Defendants’ opening brief, the State has not violated the ADA by not funding community services at the dollar amount or of the type preferred by Plaintiff. Olmstead itself states that the ADA does not require states to “provide a certain level of benefits to individuals with disabilities”; instead, as noted above, Olmstead holds only that “States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” 527 U.S. at 603 n.14.
Plaintiff’s criticism that the community-based services that the State currently provides are insufficient in both quantity and quality does not state a discrimination claim under the ADA. Plaintiff does not allege that the State’s policies or practices with respect to the community treatment that it now provides are unjustified or discriminatory in violation of the ADA. There is no allegation in the Complaint that community services are available but not being used by the State. Rather, Plaintiff’s ADA claim focuses on what modifications the State could make to improve its mental healthcare delivery system by adding services
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and revising the focus and function of the Hospitals. 5 Such aspirational desires are shared by the State and all mental health professionals, but the State’s community services are not so inadequate as to violate the ADA without them. See Johnson v. Murphy, 2001 U.S. Dist. LEXIS 24013, at *54-55 (M.D. Fla. June 28, 2001) (finding that, while the plaintiffs “presented evidence that the community services offered by the defendants could be better, broader and more intense, . . . [they] failed to show that the community services provided by the defendants are inadequate to the point that they result in unnecessary isolated segregation in violation of the ADA”). Indeed, one of the cases that Plaintiff cites in its Response Brief actually supports Defendants’ position: in Arc of Washington State Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005), the Ninth Circuit affirmed dismissal of the ADA claim and held that forced expansion and added funding of the state’s Medicaid waiver program was not required because the state was using all of its
5 Plaintiff generally alleges that the State “fails to provide services in sufficient quality, quantity, and geographic diversity to enable individuals with mental illnesses, substance abuse diagnosis, or developmental disabilities to be served in the least restrictive setting appropriate to their needs.” (Compl. ¶ 72.) Plaintiff also asks for a policy-shifting judicial fiat: “transition each of the Hospitals to a resource center that supports delivery of community services and serves as a last resort in a continuum of care for those for whom community-based services and supports have been exhausted.” (Compl., Prayer for Relief.)
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allocated slots and making open slots available to eligible individuals as they became available. Id. at 618.
Georgia also has not violated the ADA by continuing the operation of its Hospitals. The ADA does not require states to supplement state hospitals, nor does the statute mandate any preferred role for them or define what Plaintiff describes as their “the proper function.” (See Pl.’s Resp. at 13 n.2.) The Olmstead majority specifically provided that “the ADA is not reasonably read to impel States to phase out institutions.” 527 U.S. at 604. The Prayer for Relief, however, specifically seeks a remedy not required by the ADA and in contravention of Olmstead, namely, the transitioning of the State Psychiatric Hospitals to mere receiving facilities on a “continuum of care.” (Compl., Prayer for Relief.) Olmstead itself thus provides the basis to reject the Complaint.
Without such relief, all that could remain is an unenforceable “obey the law” injunction. (See Compl., Prayer for Relief.) As Plaintiff does not dispute, the Eleventh Circuit has repeatedly held that such “obey the law” injunctions are unenforceable. See SEC v. Smyth, 420 F.3d 1225, 1233 n.14 (11th Cir. 2005); Fla. Ass’n of Rehab. Facilities v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1223 (11th Cir. 2000). The relief that Plaintiff seeks is prohibited by
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Case 1:10-cv-00249-CAP Document 37 Filed 08/02/10 Page 11 of 17
law, no other appropriate remedy can be fashioned or granted in this case, and the Court should dismiss the Complaint.
3. The Fundamental Alteration Defense Bars Plaintiff’s ADA Claim.6 Even if the Court were to assume that Plaintiff can establish discrimination in the administration of services that the State actually provides—which Plaintiff cannot do—the remedy that Plaintiff seeks in this case would go far beyond any reasonable accommodation that the ADA requires and would instead constitute a fundamental alteration of the State’s mental health program that the ADA does not require. The State is not unwilling to make reasonable modifications to its programs, but it rightly objects to a complete overhaul of its mental health system when Plaintiff has not “raise[d] a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court’s consideration at the motion to dismiss stage is not about what evidence the parties will be able to present, if the case proceeds, but rather about what is alleged or not alleged in the Complaint. While Plaintiff complains about the quantity of services provided, Plaintiff has not alleged that the current mental health system fails to deinstitutionalize individuals with an “even hand” or that the
6 Paragraph 79 of the Complaint specifically raises the “fundamental alteration” defense and therefore puts the defense before this Court for consideration on a motion to dismiss. See Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993).
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Case 1:10-cv-00249-CAP Document 37 Filed 08/02/10 Page 12 of 17
State lacks a genuine, comprehensive, and reasonable commitment to deinstitutionalization. Absent these allegations, and in light of the drastic relief sought in the Complaint, there can be no dispute that such relief “would fundamentally alter the nature of the service[s], program[s], [and] activit[ies]” provided by the State. 28 C.F.R. § 35.130(b)(7).
The State’s budgets are never infinite, and even less so in the current economic environment. “[I]n the allocation of available resources, [and] given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities,” providing the relief that Plaintiff requests in this case would indisputably qualify as a fundamental alteration. (See Defs.’ Mem. Supp. Mot. to Dismiss at 23-24 (recounting allegations in the Complaint that seek to require the State to increase and enhance community services).) See also Olmstead, 527 U.S. at 604. As such, Plaintiff’s broad, class-action-type relief as set forth on the face of its Complaint is a fundamental alteration to Georgia’s mental health system not required by the ADA or Olmstead. Accordingly, the Court should dismiss the Complaint. B. The Complaint Does Not Present a Case or Controversy, and Plaintiff
Therefore Lacks Article III Standing. Plaintiff misses the standing argument almost entirely. It devotes several pages to describing how it contends the State “administers” services. It never
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Case 1:10-cv-00249-CAP Document 37 Filed 08/02/10 Page 13 of 17
addresses the questions raised about causation and whether the State can force third parties to contract with it to provide community services to qualified individuals. Plaintiff does not even attempt to clarify (1) if the injury alleged is caused by State action or insufficient capacity; (2) whether alleged inadequate State funding causes the alleged injuries; (3) how an order of this Court would or could compel the State to provide jobs to qualified individuals; or (4) how the State can control what the Supreme Court described as “the independent action of some third party not before the court.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Because it cannot demonstrate that remedial orders can reach third parties with whom the State must contract, the Complaint lacks Article III standing. (See Defs.’ Mem. Supp. Mot. to Dismiss at 27-28.) C. The Settlement Agreement Bars the Complaint.
The farce of Plaintiff’s contention that the Settlement Agreement is not valid is addressed in the Reply Brief in Support of Defendants’ Motion to Dismiss filed in the Related Case (No. 1:09-CV-119-CAP) and will not be repeated here for purposes of judicial economy. Simply put, the State’s position is that the Settlement Agreement, which Plaintiff voluntarily entered into, is binding on Plaintiff, and despite its recent change of policy and priorities, Plaintiff cannot renegotiate the agreement through litigation.
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Plaintiff’s arguments have all been addressed in the Related Case, so only Plaintiff’s silence will be addressed here. Plaintiff never challenges, and continues to expound, that the discharge planning provisions of the Settlement Agreement provide the basis for its ADA claims (a position that Plaintiff also takes in the Related Case). (See Compl. ¶¶ 37, 39, 40, 41, 43, 69 & 70 (discharge planning) and Compl. ¶¶ 42-47 (assessments).) Plaintiff continues to ignore that the State has an additional 42 months to comply with the discharge planning section of the Settlement Agreement. (See Settlement Agreement § V.E.) Plaintiff’s silence to this point is deafening.
Plaintiff’s reliance on the discharge planning provisions renders its lawsuits premature and subject to dismissal if this Court enforces the Settlement Agreement. At the very least, should this Court allow the ADA claim to proceed at all, it should dismiss any claim based on discharge planning and treatment plans, as the time to comply under the Settlement Agreement has yet to expire.
CONCLUSION For the reasons above and in the State’s opening brief filed on July 1, 2010, the State of Georgia respectfully asks this Court to dismiss Plaintiff’s Complaint.
(signatures on following page)
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Case 1:10-cv-00249-CAP Document 37 Filed 08/02/10 Page 15 of 17

Respectfully submitted, this 2nd day of August, 2010.

THURBERT E. BAKER Attorney General Georgia Bar No. 033887
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
MARK J. CICERO Assistant Attorney General Georgia Bar No. 125686
JASON S. NAUNAS Assistant Attorney General Georgia Bar No. 142051
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ Mark H. Cohen MARK H. COHEN Special Assistant Attorney General Georgia Bar. No. 174567 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
/s/ Josh Belinfante
(with express permission by Mark H. Cohen)
JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsLaw LLC 999 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinslawllc.com

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Case 1:10-cv-00249-CAP Document 37 Filed 08/02/10 Page 16 of 17
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Mark H. Cohen Mark H. Cohen (Georgia Bar No. 174567)
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Case 1:10-cv-00249-CAP Document 37 Filed 08/02/10 Page 17 of 17
CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Reply Brief in Support of Defendants’ Motion to Dismiss Plaintiff’s Complaint was electronically filed with the Clerk of Court using the CM/ECF system, which automatically serves notification of such filing to all counsel of record. This 2nd day of August, 2010.
/s/ Mark H. Cohen Mark H. Cohen (Georgia Bar No. 174567)
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 Case 1:10-cv-00249-CAP Document 42 Filed 08/09/10 Page 1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA
v. THE STATE OF GEORGIA, et. al.,
Defendants.

CIVIL ACTION NO. 1:09-CV-119-CAP NO. 1:10-CV-249-CAP

O R D E R

On August 6, 2010, the court held a telephone status

conference with the parties and amici curiae to discuss pending

issues in case number 1:09-CV-119 (“2009 Action”) and case number

1:10-CV-249-CAP (“2010 Action”). After hearing and discussing

arguments from the parties and amici curiae, the court reached the

following conclusions and set forth the following dates and

schedules.

1.

In the 2010 Action, the court DENIES the defendants’ motion to

dismiss [Doc. No. 28] and DIRECTS the parties to initiate discovery

in the matter.

2.

In the 2009 Action, the court DIRECTS that the amici curiae

maintain their participation as previously directed by the court.

Case 1:10-cv-00249-CAP Document 42 Filed 08/09/10 Page 2 of 3
3. Joint Proposed Preliminary Reports and Discovery Plans will be filed in each case within 20 days of the date of this order.
4. Discovery shall begin in both actions upon the filing of this order. Discovery in one action may be used and incorporated in the other action.
5. In the 2009 Action, the court concludes that the plaintiff’s 90-day notice lacks specificity and DIRECTS the plaintiff to file a report, within 10 days of the date of this order, that specifies in detail which obligations under the Settlement Agreement [Doc. No. 2] the plaintiff believes that the defendants have failed to fulfill (“Report of Non-compliance”).
6. In the 2009 Action, the court will conduct a 2-week evidentiary hearing starting on November 8, 2010 (“Nov. 8 Hearing”). The court will hear testimony and evidence regarding the plaintiff’s Report of Non-compliance and remedies under the Settlement Agreement [Doc. No. 2]; as well as, all evidence to support the plaintiff’s motion for preliminary injunction [Doc. No. 55]. The parties will SUBMIT trial briefs on the issues to be

Case 1:10-cv-00249-CAP Document 42 Filed 08/09/10 Page 3 of 3
discussed at the Nov. 8 Hearing no later than October 18, 2010, with responses due no later than October 28, 2010.
SO ORDERED, this 9th day of August, 2010.
/s/ Charles A. Pannell, Jr. CHARLES A. PANNELL JR. United States District Judge

 
 Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE UNITED STATES OF AMERICA, )

)

Plaintiff,

)

v.

)

THE STATE OF GEORGIA, et al.,

) )

Defendants.

)

)

Civil Action No. 1:10-CV-0249-CAP

ANSWER Defendants The State of Georgia; Sonny Perdue, Governor, State of Georgia, in his official capacity; Frank E. Shelp, Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities, in his official capacity; and Rhonda M. Medows, Commissioner, Georgia Department of Community Health, in her official capacity (collectively “Defendants”), through their undersigned counsel of record, hereby timely file this Answer to the Complaint filed on January 28, 2010 [dkt. 1].1 Defendants deny the allegations contained in the unnumbered preamble to the Complaint. Defendants further respond that the State of Georgia does not discriminate against or unlawfully segregate persons with mental illnesses,
1 Defendants’ Motion to Dismiss [dkt. 28] was denied in an order entered by the Court on August 9, 2010 [dkt. 42].

Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 2 of 25
developmental disabilities, or addictive diseases. The Americans with Disabilities Act of 1990 (“ADA”), codified at 42 U.S.C. § 12131-12134, creates a means to stop actual and ongoing discrimination against certain persons. The ADA does not, however, provide a basis to federalize the State of Georgia’s administration of services to qualified individuals. Moreover, the ADA does not require states to close the State Psychiatric Hospitals, provide all services in a “community setting,” guarantee jobs, or provide limitless medical care, treatment, and housing. The Complaint contains many vague allegations and policy statements that treat monolithically all persons with mental illnesses, developmental disabilities, or substance abuse diagnoses, but it does not provide a basis for relief.
Defendants respond to the separately numbered paragraphs of the Complaint as follows:
1. Defendants admit that this Court has subject matter jurisdiction. Defendants deny the remaining allegations in Paragraph 1 of the Complaint.
2. Defendants admit that venue is proper in this Court. Defendants deny the remaining allegations in Paragraph 2 of the Complaint.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 3 of 25
3. Defendants admit the allegations in Paragraph 3 of the Complaint.
4. Defendants admit the allegations in Paragraph 4 of the Complaint.
5. Defendants admit the allegations in Paragraph 5 of the Complaint.
6. Defendants admit the allegations in Paragraph 6 of the Complaint.
7. Defendants deny the allegations in Paragraph 7 of the Complaint.
8. Defendants admit that the State of Georgia coordinates, finances, and delivers treatment and support services to persons with mental illnesses, developmental disabilities, and addictive diseases through the Department of Behavioral Health and Developmental Disabilities (“DBHDD”) and the Department of Community Health (“DCH”). Defendants further admit that DCH contains a Division of Healthcare Facility Regulation. Defendants deny the remaining allegations in Paragraph 8 of the Complaint.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 4 of 25
9. Defendants admit the allegations in Paragraph 9 of the Complaint.
10. Defendants admit that prior to July 1, 2009, the functions of the DBHDD were performed by the Department of Human Resources (“DHR”) and that some of the functions of DHR were transferred to DCH, effective on July 1, 2009, pursuant to legislation passed during the 2009 session of the Georgia General Assembly. Defendants deny the remaining allegations in Paragraph 10 of the Complaint.
11. Paragraph 11 of the Complaint refers to Chapter 2 of Title 37 of the Official Code of Georgia Annotated (the “Georgia Code”), which speaks for itself as to its content, and Defendants deny any allegations that are inconsistent therewith.
12. Paragraph 12 of the Complaint refers to O.C.G.A. § 37-2-1(b), which speaks for itself as to its content, and Defendants deny any allegations that are inconsistent therewith.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 5 of 25
13. Paragraph 13 of the Complaint refers to a website that speaks for itself as to its content, and Defendants deny any allegations that are inconsistent therewith or an incomplete recitation thereof.
14. Defendants admit the allegations in the first sentence of Paragraph 14 of the Complaint. The second sentence of Paragraph 14 refers to O.C.G.A. § 37-2-5.1(c), which speaks for itself as to its content, and Defendants deny any allegations that are inconsistent therewith.
15. Defendants admit the allegations in Paragraph 15 of the Complaint.
16. Defendants admit that the DBHDD offers a range of treatment and support services to help persons with mental illnesses, addictive diseases, and developmental disabilities transition, integrate, and live in the community – when such services are clinically appropriate and consistent with such person’s or person’s guardian’s choice. Defendants deny the remaining allegations in Paragraph 16 of the Complaint.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 6 of 25
17. Defendants admit that some providers of services to persons with mental illnesses, developmental disabilities, and addictive diseases are licensed and regulated by DCH. Defendants deny the remaining allegations in Paragraph 17 of the Complaint. Moreover, to the extent that Paragraph 17 refers to Paragraphs 22 and 23 of the Complaint, Defendants incorporate by reference their answers to Paragraphs 22 and 23 as if fully restated herein.
18. Defendants admit that DCH licenses and has authority to inspect some providers of services to persons with mental illnesses, developmental disabilities, and addictive diseases, including the State Psychiatric Hospitals. Defendants deny the remaining allegations in Paragraph 18 of the Complaint.
19. In response to Paragraph 19 of the Complaint, Defendants refer to Chapter 7 of Title 31 of the Georgia Code, which speaks for itself as to the statutory authority and requirements for DCH’s regulation of providers of services to persons with mental illnesses, developmental disabilities, and addictive diseases, and Defendants deny any allegations that are inconsistent therewith.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 7 of 25
20. In response to Paragraph 20 of the Complaint, Defendants refer to Chapter 7 of Title 31 of the Georgia Code, which speaks for itself as to the statutory authority and requirements for DCH’s regulation of providers of services to persons with mental illnesses, developmental disabilities, and addictive diseases, and Defendants deny any allegations that are inconsistent therewith.
21. In response to Paragraph 21 of the Complaint, Defendants refer to Chapter 7 of Title 31 of the Georgia Code, which speaks for itself as to the statutory authority and requirements for DCH’s regulation of providers of services to persons with mental illnesses, developmental disabilities, and addictive diseases, and Defendants deny any allegations that are inconsistent therewith.
22. In response to Paragraph 22 of the Complaint, Defendants refer to Chapter 7 of Title 31 of the Georgia Code, which speaks for itself as to the statutory authority and requirements for DCH’s regulation of providers of services to persons with mental illnesses, developmental disabilities, and addictive diseases, and Defendants deny any allegations that are inconsistent therewith.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 8 of 25
23. In response to Paragraph 23 of the Complaint, Defendants refer to Chapter 7 of Title 31 of the Georgia Code, which speaks for itself as to the statutory authority and requirements for DCH’s regulation of providers of services to persons with mental illnesses, developmental disabilities, and addictive diseases, and Defendants deny any allegations that are inconsistent therewith.
24. Defendants admit that some individuals with disabilities utilize services provided or administered by the DBHDD and licensed by DCH. Defendants lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 24 of the Complaint, and accordingly deny the allegations.
25. Defendants admit the allegations in Paragraph 25 of the Complaint.
26. In response to the first and second sentences of Paragraph 26 of the Complaint, Defendants admit that some persons with mental illnesses, developmental disabilities, or addictive diseases may be limited in one or more major life activities, such as eating, bathing, toileting, or taking medication. The
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 9 of 25
third sentence of Paragraph 26 contains a legal conclusion to which no response is required; however, to the extent that a response is required, Defendants deny the third sentence, as stated.
27. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 27 of the Complaint, and accordingly deny the allegations.
28. Defendants admit that while some individuals served by the State Psychiatric Hospitals do not object to receipt of treatment and services outside the hospitals, other such individuals (or their legal guardians) do object. Defendants deny the remaining allegations in Paragraph 28 of the Complaint.
29. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 29 of the Complaint, and accordingly deny the allegations.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 10 of 25
30. Paragraph 30 of the Complaint quotes from the State of Georgia’s Olmstead Plan, which speaks for itself as to its content, and Defendants deny any allegations that are inconsistent therewith.
31. Defendants admit that some individuals served by the State Psychiatric Hospitals can clinically and appropriately receive treatment and services in a community setting, if consistent with the choice of the individuals (or their legal guardians). Defendants deny the remaining allegations in Paragraph 31 of the Complaint.
32. Defendants admit that an aspiration of the State of Georgia is to provide services and supports to persons with developmental disabilities in a community setting, if clinically appropriate and consistent with the choice of the individuals (or their legal guardians). Defendants deny the remaining allegations in Paragraph 32 of the Complaint.
33. Defendants admit that some individuals with developmental disabilities are currently receiving care and treatment in the State Psychiatric Hospitals pending a
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 11 of 25
waiver slot pursuant to the State’s Medicaid Plan. Defendants deny the remaining allegations in Paragraph 33 of the Complaint.
34. Defendants admit that some persons with developmental disabilities receive crisis services in the State Psychiatric Hospitals, as is consistent with state law. Defendants deny the remaining allegations in Paragraph 34 of the Complaint.
35. Defendants admit that it can be difficult to locate and provide services in a community setting for individuals with developmental disabilities and a history of challenging behaviors. Defendants deny the remaining allegations in Paragraph 35 of the Complaint.
36. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 36 of the Complaint, and accordingly deny the allegations.
37. Defendants admit that some individuals are readmitted for short stays in the State Psychiatric Hospitals. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 37 regarding the
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 12 of 25
cause of each individual’s admission to the State Psychiatric Hospital or what services, if any, could have prevented the admission. Defendants deny the remaining allegations in Paragraph 37 of the Complaint.
38. Defendants deny the allegations in Paragraph 38 of the Complaint.
39. Defendants deny the allegations in Paragraph 39 of the Complaint.
40. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 40 of the Complaint, and accordingly deny the allegations.
41. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 41 of the Complaint, and accordingly deny the allegations.
42. Defendants deny the allegations in Paragraph 42 of the Complaint.
43. Defendants deny the allegations in Paragraph 43 of the Complaint.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 13 of 25
44. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 44 of the Complaint, and accordingly deny the allegations.
45. Defendants deny the allegations in Paragraph 45 of the Complaint.
46. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 46 of the Complaint, and accordingly deny the allegations.
47. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 47 of the Complaint, and accordingly deny the allegations.
48. Defendants deny the allegations in Paragraph 48 of the Complaint.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 14 of 25
49. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 49 of the Complaint, and accordingly deny the allegations.
50. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 50 of the Complaint, and accordingly deny the allegations.
51. Defendants deny the allegations in Paragraph 51 of the Complaint.
52. Defendants admit that the financial cost of care and treatment that some individuals are now receiving in the State Psychiatric Hospitals could be less if such care and treatment were received in the community. Defendants deny the remaining allegations in Paragraph 52 of the Complaint.
53. Defendants deny the allegations in Paragraph 53 of the Complaint.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 15 of 25
54. Defendants lack knowledge or information sufficient to determine what Plaintiff means by “supported housing,” which alleged “mental health treatment professionals” have opined about the term, or all that Plaintiff means by the phrase “services to support their success as tenants and their integration into the community.” Accordingly, Defendants deny the allegations in Paragraph 54 of the Complaint.
55. Paragraph 55 of the Complaint refers to a written document that speaks for itself as to its content, and Defendants deny any allegations that are inconsistent therewith.
56. Defendants admit that personal care homes are one source of housing for persons discharged from the State Psychiatric Hospitals. Defendants deny the remaining allegations in Paragraph 56 of the Complaint.
57. Defendants admit that the State of Georgia provides some form of housing assistance to Georgians generally, including persons with mental illnesses, developmental disabilities, and substance abuse diagnoses. Defendants lack
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 16 of 25
knowledge or information sufficient to quantify what Plaintiff means by the phrase “extremely limited,” or to define the terms “specialized services” or “supported housing”; accordingly, Defendants deny the remaining allegations in Paragraph 57 of the Complaint.
58. Defendants admit that Assertive Community Treatment (“ACT”) is an intensive form of case management services. Defendants deny the remaining allegations in Paragraph 58 of the Complaint.
59. Defendants admit the first sentence in Paragraph 59 of the Complaint. Defendants deny the allegations in the second and third sentences in Paragraph 59.
60. Defendants admit that community-based crisis stabilization services can effectively deliver care and treatment to persons with developmental disabilities, mental illnesses, or substance abuse diagnoses. Defendants deny the remaining allegations in Paragraph 60 of the Complaint.
61. Defendants admit that mobile crisis stabilization services are available in some areas of the State. Defendants lack knowledge or information sufficient to
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 17 of 25
quantify what Plaintiff means by the phrase “sufficient quantity or geographic diversity”; accordingly, Defendants deny the remaining allegations in Paragraph 61 of the Complaint.
62. Defendants admit that the lack of an income and unemployment can create difficulties for persons with disabilities. Defendants deny the remaining allegations in Paragraph 62 of the Complaint.
63. Defendants admit that some persons in the State Psychiatric Hospitals receive services in vocational rehabilitation and some types of employment training services. Defendants also admit that, as the State of Georgia’s revenues declined dramatically during the past several years, various State programs have received reduced appropriations. Defendants deny the remaining allegations in Paragraph 63 of the Complaint.
64. Defendants admit that some persons with disabilities lack a means of personal transportation, and that a lack of transportation can create difficulties. Defendants deny the remaining allegations in Paragraph 64 of the Complaint.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 18 of 25
65. Defendants admit that the State of Georgia’s transportation services vary across the State. Defendants deny the remaining allegations in Paragraph 65 of the Complaint.
66. To the extent that Paragraph 66 of the Complaint alleges deficiencies in the treatment and services that the State of Georgia provides to persons with substance abuse diagnoses, Defendants deny the allegations. To the extent that Paragraph 66 relates to other providers, Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations, and accordingly deny the allegations.
67. Defendants admit that case expediters work with the State Psychiatric Hospitals on treatment planning. To the extent that the allegations in Paragraph 67 refer to a “State policy,” such policy speaks for itself as to its content, and Defendants deny any allegations that are inconsistent therewith. Defendants deny the remaining allegations in Paragraph 67 of the Complaint.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 19 of 25
68. To the extent that the allegations in Paragraph 68 refer to the “State’s own policies,” such policies speak for themselves as to their content, and Defendants deny any allegations that are inconsistent therewith. Defendants lack knowledge or information sufficient to determine what Plaintiff refers to as “professional standards”; accordingly, Defendants deny the remaining allegations in Paragraph 68 of the Complaint.
69. Defendants lack knowledge or information sufficient to determine which clinical records Plaintiff refers to as the basis of its allegations in Paragraph 69 of the Complaint, and accordingly deny the allegations.
70. Defendants deny the allegations in Paragraph 70 of the Complaint.
71. Defendants cannot speak for the Community Service Boards or their unnamed “professionals”; thus, Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 71 of the Complaint, and accordingly deny the allegations.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 20 of 25
72. Defendants deny the allegations in Paragraph 72 of the Complaint.
73. Paragraph 73 of the Complaint refers to the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), which speaks for itself as to its content, and Defendants deny any allegations that are inconsistent therewith. Defendants deny the remaining allegations in Paragraph 73.
74. Paragraph 74 of the Complaint and its subparts refer to several written documents that speak for themselves as to their content, and Defendants deny any allegations that are inconsistent therewith. Defendants deny the remaining allegations in Paragraph 74.
75. Paragraph 75 of the Complaint refers to several written documents that speak for themselves as to their content, and Defendants deny any allegations that are inconsistent therewith.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 21 of 25
76. Paragraph 76 of the Complaint refers to several written documents that speak for themselves as to their content, and Defendants deny any allegations that are inconsistent therewith.
77. In response to Paragraph 77 of the Complaint, Defendants hereby incorporate by reference and restate their responses to Paragraphs 1 to 76.
78. Defendants deny the allegations in Paragraph 78 of the Complaint.
79. Defendants deny the allegations in Paragraph 79 of the Complaint.
80. Defendants deny the allegations in Paragraph 80 of the Complaint.
* * * Defendants deny all other allegations and claims in the Complaint that were not expressly admitted herein and also deny that Plaintiff is entitled to any of the relief requested in its Prayer for Relief.
* * *
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 22 of 25
AFFIRMATIVE DEFENSES Defendants state the following separate defenses without assuming the burden of proof that otherwise would rest with Plaintiff:
FIRST DEFENSE Plaintiff fails to state a claim for which relief can be granted.
SECOND DEFENSE Plaintiff lacks standing because the Complaint has not set forth a case or controversy under Article III of the United States Constitution.
THIRD DEFENSE Plaintiff’s claims are barred, in whole or in part, by operation of the Settlement Agreement that it executed with the State of Georgia in January 2009.
FOURTH DEFENSE Plaintiff’s claims are barred, in whole or in part, by the doctrine of unclean hands.
FIFTH DEFENSE Plaintiff is not entitled to the relief that it seeks based on the principles of federalism.
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 23 of 25
SIXTH DEFENSE Plaintiff is not entitled to the relief that it seeks because the requested modifications would constitute a “fundamental alteration” to the State of Georgia’s existing system for funding and provision of services to persons with mental illnesses, developmental disabilities, and addictive diseases, which is prohibited by federal regulations implementing the ADA, 28 C.F.R. § 35.130(b)(7), and the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581, 603 (1999).
SEVENTH DEFENSE The relief that Plaintiff seeks in the Complaint is not required by or an enforceable remedy under Title II of the ADA.
EIGHTH DEFENSE The Complaint fails to allege facts and fails to make a showing sufficient to support any grant of injunctive relief.
* * * Defendants reserve the right to assert, and hereby give notice that they intend to rely upon, any other defense(s) that may become available during discovery proceedings, and Defendants hereby reserve the right to amend their Answer to assert any such defense(s).
* * *
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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 24 of 25

WHEREFORE, Defendants respectfully request judgment in their favor and

request that the Court enter an Order dismissing Plaintiff’s Complaint in its

entirety and with prejudice and awarding Defendants any further and additional

relief as the court deems just and fair.

Respectfully submitted, this 23rd day of August, 2010.

THURBERT E. BAKER Attorney General Georgia Bar No. 033887
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
MARK J. CICERO Assistant Attorney General Georgia Bar No. 125686
JASON S. NAUNAS Assistant Attorney General Georgia Bar No. 142051
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ Mark H. Cohen MARK H. COHEN Special Assistant Attorney General Georgia Bar. No. 174567 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
/s/ Josh Belinfante
(with express permission by Mark H. Cohen)
JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 Robbins Freed & Ross LLC 999 Peachtree Street, N.E., Suite 1120 Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinslawllc.com

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Case 1:10-cv-00249-CAP Document 51 Filed 08/23/10 Page 25 of 25
CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Answer was electronically filed with the Clerk of Court using the CM/ECF system, which automatically serves notification of such filing to all counsel of record. This 23rd day of August, 2010.
/s/ Mark H. Cohen MARK H. COHEN Special Assistant Attorney General Georgia Bar. No. 174567
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 Case 1:10-cv-00249-CAP Document 90 Filed 09/24/10 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

___________________________________ )

CIVIL ACTION NO. 1:09-CV-119-CAP

MOTION FOR IMMEDIATE RELIEF

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

Court for immediate relief based on the imminent and serious threat of harm to the

life, health, and safety of individuals in Georgia’s State Hospitals in violation of

the Constitution and federal statutory law. The State of Georgia continues to fail to

serve individuals with disabilities in the most integrated setting appropriate to their

needs, and preventable deaths, suicides, and assaults continue to occur with

alarming frequency in the Hospitals.

As more fully set forth in the attached Memorandum of Law, there is a

substantial likelihood that the United States will prevail on the merits, irreparable

harm is being inflicted upon individuals in Georgia’s State Hospitals, the balance

Case 1:10-cv-00249-CAP Document 90 Filed 09/24/10 Page 2 of 5
of equities favors granting the relief, and the public interest would be advanced by the relief. A proposed order also is attached.
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Case 1:10-cv-00249-CAP Document 90 Filed 09/24/10 Page 3 of 5

Respectfully submitted, FOR THE UNITED STATES:

SALLY Q. YATES Acting United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
SHANETTA Y. CUTLAR Chief Special Litigation Section
JUDITH C. PRESTON Deputy Chief Special Litigation Section

/s/ (Express Permission) MINA RHEE [GA Bar 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Mina.Rhee@usdoj.gov

/s/ Robert A. Koch MARY R. BOHAN [DC Bar 420628] TIMOTHY D. MYGATT [PA Bar 90403] ROBERT A. KOCH [OR Bar 072004] EMILY A. GUNSTON [CA Bar 218035] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 305-2302 Robert.Koch@usdoj.gov

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Case 1:10-cv-00249-CAP Document 90 Filed 09/24/10 Page 4 of 5
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch ROBERT A. KOCH Attorney Special Litigation Section
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Case 1:10-cv-00249-CAP Document 90 Filed 09/24/10 Page 5 of 5
CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the foregoing MOTION TO CONSOLIDATE with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties in this matter via electronic notification or otherwise:
Jason S. Naunas Mark J. Cicero Assistant Attorneys General State Law Department 132 State Judicial Building 40 Capitol Square, S.W Atlanta, GA 30334-1300
Kenneth S. Canfield Doffermeyer, Shields, Canfield & Knowles, LLC 1355 Peachtree St., Suite 1600 Atlanta, GA 30309
Ira A. Burnim Alison N. Barkoff Bazelon Center for Mental Health Law 1101 15th St. NW, Suite 1212 Washington, DC 20005
Joshua H. Norris Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue, Suite 430 Decatur, GA 30030
This 28th day of January, 2010.
/s/ Robert A. Koch ROBERT A. KOCH Attorney Special Litigation Section
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 Case 1:10-cv-00249-CAP Document 91 Filed 09/24/10 Page 1 of 79

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,
Plaintiff, v.
STATE OF GEORGIA, et al.,
Defendants.

)

)

)

)

Civil Action No.

)

1:09-CV-0119-CAP

)

)

)

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR IMMEDIATE RELIEF
(PRELIMINARY INJUNCTION)

Case 1:10-cv-00249-CAP Document 91 Filed 09/24/10 Page 2 of 79
TABLE OF CONTENTS INTRODUCTION....................................................................................................1 PROCEDURAL HISTORY....................................................................................6 STATEMENT OF RELEVANT FACTS ............................................................13
I. System-Wide Infrastructure Changes and Funding Increases ...................14 A. Creation of the DBHDD .............................................................................14 B. Georgia’s Financial Commitment to the DBHDD .....................................15
II. Implementation of the Settlement Agreement ...........................................17 A. The DBHDD’s Early Efforts ......................................................................17 B. The DBHDD’s Collaboration with Dr. Nirbhay Singh ..............................17 C. The DBHDD’s State-of-the-Art Policies....................................................18
III. Safety of Patients in the Hospitals .............................................................20 A. Joint Commission Accreditation.................................................................21 B. Statistics Regarding Safety in the Hospitals ...............................................22
IV. Achievements in Decreasing the Hospital Population and Improving Community-Based Services .......................................................................22
A. Decreasing Hospital Censuses ....................................................................23 B. Increasing Use of Medicaid Waivers..........................................................24 C. Housing and Other Community Treatment Initiatives ...............................25 ARGUMENT AND CITATION OF AUTHORITY ..........................................26 I. A Preliminary Injunction Is an “Extraordinary and Drastic
Remedy,” Especially When Asserted Against a Government Agency. ......................................................................................................26

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II. Plaintiff Has Failed To Satisfy the Prerequisites for Preliminary Injunctive Relief.........................................................................................29
A. Plaintiff Cannot Demonstrate a Substantial Likelihood of Success on the Merits of Either Claim Against the State......................29
1. Plaintiff’s Substantive Due Process Claim Under the Fourteenth Amendment to the U.S. Constitution Fails Because Plaintiff Cannot Prove That the State Substantially Departed from Accepted Professional Judgment. .......................................................31
(a) The Controlling Constitutional Standard ............................................31
(b) The State’s Exercise of Professional Judgment Is Presumptively Valid, and Plaintiff Cannot Establish a Constitutional Violation.......34
(c) Plaintiff’s “Expert” Testimony Is Unreliable and Does Not Establish an Absence of Professional Judgment. ................................37
2. Plaintiff Cannot Show a Likelihood of Success on Its ADA Claim Because the VCA Addresses ADA Compliance; Plaintiff Cannot Establish a Violation of the ADA; and the Relief Plaintiff Seeks Would Result in a Fundamental Alteration of the State’s Mental Health Program. ..........................................................40
(a) The VCA Adequately Addresses the DOJ’s Concerns and Controls the Timing and Manner of the State’s Compliance with the ADA. ...............................................................................................43
(b) Plaintiff Cannot State a Discrimination Claim Under the ADA, and Plaintiff Seeks Relief That Is Not Mandated by the ADA or Olmstead. .............................................................................................45
(c) The Relief That Plaintiff Seeks Would Result in a “Fundamental Alteration” of the State’s Mental Health System, Which Is Not Required by the ADA or Olmstead. .....................................................48
3. Plaintiff Is Not Entitled to the Extensive Injunctive and Reformative Relief That It Seeks. .......................................................52
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B. Plaintiff Has Not Demonstrated Any Actual and Imminent Irreparable Harm for Which a Preliminary Injunction Must Be Issued To Prevent......................................................................................54
1. The Constitutional and Statutory Claims Asserted by Plaintiff Do Not Raise Immediate and Irreparable Harm. ................................54
2. Plaintiff’s Alleged Systemic Violations Do Not Constitute Imminent Harm. ..................................................................................58
C. The Damage That an Injunction Will Cause the State of Georgia in Continuing Its Improvement of the State Mental Health System Far Outweighs the Threatened Injury to Plaintiff. ..................61
D. The Issuance of an Injunction at This Time Would Not Serve the Public Interest. ..........................................................................................67
CONCLUSION.......................................................................................................72
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Exhibit A
Exhibit B Exhibit C Exhibit D

INDEX OF EXHIBITS
Voluntary Compliance Agreement between the State of Georgia and the U.S. Department of Health and Human Services’ Office for Civil Rights, dated July 1, 2008
Declaration of Frank E. Shelp, M.D., M.P.H.
Declaration of Donald E. Manning, M.D., M.M.M.
Declaration of Nirbhay N. Singh, Ph.D.

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Defendant the State of Georgia and the individual Defendants who are named in their official capacities (collectively, “the State” or “Georgia”) respectfully file this Response in Opposition to Plaintiff’s Motion for Immediate Relief (Preliminary Injunction), filed on January 28, 2010 [dkt. 55].
INTRODUCTION Thirteen months ago, the State of Georgia and the United States entered into a comprehensive Settlement Agreement to improve the conditions of care and treatment for patients in Georgia’s psychiatric hospitals pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, et seq. (Settlement Agreement [dkt. 7-2] § I.B.) The Settlement Agreement is effective for five years, until January 15, 2014, and requires the State to undertake significant actions in its psychiatric hospitals in areas relating to protection from harm, mental health care, treatment planning, seclusion and restraint, medical and nursing care, special needs services, and discharge planning. (Id. § III.) The Settlement Agreement expressly does not incorporate the separate Voluntary Compliance Agreement (“VCA”) that the State previously executed with the U.S. Department of Health and Human Services’ Office for Civil Rights

Case 1:10-cv-00249-CAP Document 91 Filed 09/24/10 Page 7 of 79
(“OCR”) on July 1, 2008.1 (Settlement Agreement [dkt. 7-2] § I.C.) The VCA relates to the State’s compliance with the community services and program requirements of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. In fact, aside from the carve out of the VCA, the Settlement Agreement does not mention the ADA at all.2
Section V of the Settlement Agreement specifically addresses “Modification and Termination.” (Id. § V.) First, the terms of the Settlement Agreement cannot be modified unless the party wishing to modify notifies the other party and states its reasons for the desired modification, and then the parties agree in writing to the modification. (Id. § V.A.) Second, litigation regarding the Settlement Agreement’s requirements is a last resort: unless there is an “immediate and serious threat to the life, health, or safety of patients served by Georgia’s Psychiatric Hospitals,” the United States must provide the State with notice and 90 days to cure any alleged non-compliance. (Id. § V.D.) The parties also must try to
1 A copy of the Voluntary Compliance Agreement (“VCA”) between the State and the OCR is attached hereto as Exhibit A. 2 The general discharge planning requirements contained in Section III.F of the Settlement Agreement reference only general federal law requirements that “shall be satisfied” if the specific terms of that section are achieved before the expiration of the five-year agreement. (Settlement Agreement [dkt. 7-2] § III.F.)
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resolve any differences during this 90-day period, and judicial intervention is prohibited unless these negotiation efforts fail. (Id.)
The Settlement Agreement remains the order of this Court. On February 16, 2010, this Court entered an Order confirming that “the parties’ settlement agreement [Doc. No. 2] was still in effect.” (2/16/2010 Order [dkt. 65] at 1; see also 10/8/2009 Order [dkt. 34] at 1 (“The order [Doc. No. 9] that temporarily adopted the proposed settlement agreement is in full force and effect.”).)
Notwithstanding the binding nature of the Settlement Agreement—which was not conditioned upon court approval—Plaintiff unilaterally seeks both to void the Settlement Agreement and to rewrite its provisions through litigation after only one-fifth of the Settlement Agreement’s term has elapsed. Without citing any evidence of an immediate and serious threat to the life, health, or safety, Plaintiff asks this Court to order compliance with the Settlement Agreement “now” (as Plaintiff often emphasizes), notwithstanding the Settlement Agreement’s five-year term. (See Mem. Supp. U.S. Mot. for Immediate Relief [dkt. 55-2] (“Pl.’s Br.”) at 3, 20, 23 (emphasis in original).) Plaintiff requests Court imposition of restrictions that would thwart Georgia’s current efforts to improve the mental health system in an orderly fashion and in accordance with existing plans, and Plaintiff also asks this Court to appoint a court monitor (at the State’s additional expense) to
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supervise its arbitrary changes to a plan currently being administered in good faith by the State. (See id. at 35-40.)
At its core, Plaintiff’s motion appears to be nothing more than a “bait and switch.” Thirteen months ago, the State agreed to improve Georgia’s psychiatric hospitals in a coordinated effort with the United States, which represented to the State (and this Court) that the United States had no “intention . . . to dictate to the State how its mental health process should be designed.” (U.S. Resp. to Concerns of Ga. Advocates [dkt. 12] at 12-13.) Today, however, the United States seeks unilateral alteration of the parties’ negotiated Settlement Agreement to impose its new goal of systemic reform accomplished through a policy redirection away from the hospitals and into community-based services.
Plaintiff admits that its true purpose is to alter “the Governor’s recent budget request” so as to shift the resources committed for hospital improvement—the purpose of the Settlement Agreement—to “building the necessary community capacity.” (Pl.’s Br. at 3.) Indeed, during the Court’s February 4, 2010 conference call with counsel, Plaintiff’s counsel Mr. Mygatt admitted:
All of the budgets, all of t he budget alterations that have been made here, from all that we can tell that’s been provided to us by the State devotes significant funds alm ost entirely to the hospitals them selves, and they are necessary to get the i ndividuals out of these hospital[s] , out of dangerous sit uations that are presented there, and we are very concerned that if we do not act immediately, the State is going to pour
4

Case 1:10-cv-00249-CAP Document 91 Filed 09/24/10 Page 10 of 79
a ton of resources into the wrong place, and we do not want to see that happen, Your Honor. And so that is why we acted immediately on the ADA issues in order to make s ure that the resources were not poured entirely into one place in the st ate system, the hospitals, that ultimately will end up doing the stat e a disservice and the people who are in these hospitals a disservi ce by not getting t hem out and back into the community where they most fundamentally belong. (Tr. of 2/4/2010 Tel. Conf. [dkt. 61] at 21.) In other words, squarely contradicting its disavowal to the Court last March, Plaintiff now seeks an extraordinary remedy that would allow Plaintiff “to dictate to the State how its mental health process should be designed.” (U.S. Resp. to Concerns of Ga. Advocates [dkt. 12] at 13.) Plaintiff’s Motion for Immediate Relief should be denied for at least two reasons. First, it violates the Settlement Agreement because it: (1) is not based on an immediate and serious threat to the life, health, or safety of any particular patient at one of Georgia’s psychiatric hospitals; (2) bypasses the requirement in Section V.D that the United States must provide the State of Georgia with written notice of alleged violations and an opportunity to cure the non-compliance within 90 days of the notice; and (3) seeks to modify the Settlement Agreement unilaterally to include community placement mandates. Second, Plaintiff has not established any of the four prerequisites for obtaining an “extraordinary and drastic” mandatory injunction against the State. Plaintiff cannot show a substantial likelihood of success on the merits or
5

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irreparable harm. Moreover, the balance of the equities favors the State and “the requested preliminary injunction will not serve the public interest and may actually cause more harm than good.” Kenny A. v. Perdue, No. 1:02-CV-1686-MHS, slip op. at 5 (N.D. Ga. Dec. 12, 2002) (Shoob, J.) (refusing a preliminary injunction against the Georgia Department of Human Resources and allowing the new Commissioner, in office for little more than a year, an opportunity to undertake remedial actions without the constraints sought by the plaintiffs).
PROCEDURAL HISTORY On January 15, 2009, Plaintiff filed a complaint pursuant to CRIPA, alleging that the State previously engaged in constitutional and statutory violations with respect to patients residing in Georgia’s psychiatric hospitals. [Dkt. 1.] On the same day, the parties filed a joint motion for this Court to enter the parties’ Settlement Agreement and dismiss the complaint. [Dkt. 2.] Following receipt of a letter expressing concerns with the Settlement Agreement from Ms. Cynthia Wainscott, the Court directed the parties to file a response to those concerns. [Dkts. 3 & 4.] Other advocates also opposed the Settlement Agreement, primarily based on their belief that financial resources should be shifted from improving conditions at Georgia’s psychiatric hospitals to funding community services pursuant to the U.S. Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring,
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527 U.S. 581 (1999). [Dkt. 4-2.] On February 10, 2009, the parties jointly moved the Court to adopt the Settlement Agreement and dismiss the complaint pursuant to Federal Rule of Civil Procedure 41(a)(2) because “[t]he Parties agree that it is in the best interest of the Parties and the individuals residing in the Facilities that the Settlement Agreement’s reforms be implemented as soon as possible.” (Joint Mot. [dkt. 7] at 2.) On February 11, 2009, the Court “adopt[ed] the proposed settlement agreement [Doc. no. 7-2] as the temporary order of the court so that the parties can proceed with implementation and enforcement of its terms pending final approval.” (2/11/2009 Order [dkt. 9].) Ms. Wainscott, the Georgia Advocacy Office, and certain other advocacy groups continued to oppose the Settlement Agreement, again contending that funding should be shifted from the hospitals to the community to deinstitutionalize patients.3 [Dkts. 10 & 11.]
Plaintiff defended the Settlement Agreement in its original response to the objecting advocacy groups. Plaintiff affirmatively stated that it would monitor the Settlement Agreement, would provide advice and assistance to the State, would require corrective actions from the State if necessary, and would “notify the State and work together to develop an effective plan” before instituting judicial remedies should Plaintiff believe that the State was out of compliance with the Settlement 3 Other advocacy groups contacted the Court and expressed their support of the Settlement Agreement. [Dkt. 8.]
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Agreement. (U.S. Resp. to Concerns of Ga. Advocates [dkt. 12] at 12.) Importantly, Plaintiff represented to this Court that it “did not seek to prescribe the exact method by which the State would obtain compliance with the Agreement,” that it was “within the State’s discretion” to develop plans to achieve compliance, and that it was “not the United States’ intention . . . to dictate to the State how its mental health system should be designed.” (Id. at 13.) With respect to potential ADA/Olmstead concerns, Plaintiff referenced the VCA between the OCR and the State, which contained a separate enforcement mechanism. (Id. at 15-16.)
The Court directed the parties and interested amici curiae to meet in an attempt to resolve the amici’s concerns. (4/6/2009 Order [dkt. 16]; 6/1/2009 Order [dkt. 24].) On June 12, 2009, the parties and the amici filed a Joint Status Report detailing those discussions and agreeing to additional periodic meetings and certain actions, including the State’s filing an initial implementation plan concerning the Settlement Agreement. (Joint Status Report [dkt. 26] at 3-6.) Although the parties and the amici disagreed as to whether the amici’s desired improvement and expansion of community-based services are necessary to comply with the Settlement Agreement, they agreed that the State should conduct a “needs assessment” to determine what services exist and what services need to be improved, redirected, or added. (Id. at 6-7.) The State requested that the Court
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enter the Settlement Agreement as a final order; Plaintiff and the amici requested instead that the Court simply take no further action at that time. (Id. at 10.)
On September 30, 2009, the Court dismissed the parties’ joint motion for entry of the Settlement Agreement because Plaintiff “indicated that it no longer agrees with the motion.” (9/2/2009 Order [dkt. 29] at 2.) In dismissing the joint motion, the Court “applaud[ed] the initiative and cooperation” of the parties and the amici, “strongly encourage[d] all of the parties to maintain their level of commitment and effort,” and stated that “the parties should continue to meet, as agreed, every six months to update/monitor progress and to provide feedback.” (Id.) The Court also indicated that the parties could resubmit a motion “for the court to permanently adopt the settlement agreement.” (Id.)
That same day, Plaintiff and the amici filed a status report with the Court indicating they had “grave concerns” concerning the State’s ability to comply with the Settlement Agreement, but Plaintiff chose “not [to] seek enforcement of the Agreement at this time” because the first deadline for the State to come into compliance with certain provisions of the Settlement Agreement was not until one year from its effective date. (Joint Status Report [dkt. 30] at 1-2, 23.) This provided the initial indication that Plaintiff was shifting its interest from improving conditions within Georgia’s psychiatric hospitals to the amici’s position that the
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State should be required to undertake significant actions in developing community services in accordance with their view of Olmstead. (Id. at 2 (“The State’s unwillingness to take seriously its obligations under Olmstead . . . and the discharge planning provisions of the Agreement is a fundamental cause of the constitutional violations that the United States has identified.”).)4
On October 8, 2009, during a telephone conference with the Court, an attorney for the State specifically asked Plaintiff’s counsel whether Plaintiff intended to abide by the Settlement Agreement:
UNIDENTIFIED SPEAKER [for Defend ants]: My question is do we still have an agreement, and it’s th e intent of the Dep artment of Justice to move forward with that agreement and we’ll try to resolve the issues about the Amici as we go along. UNIDENTIFIED SPEAKER [for Plaintiff]: Yeah, we believe that the agreement is still in place pursuant to the February 11 Order and we are going to continue to try and address the concerns raised by the Amici, yeah. (Tr. of 10/8/2009 Tel. Conf. [dkt. 35] at 5.) Removing all doubt as to the effect of the Settlement Agreement, that very same day, this Court entered an order clarifying its September 30, 2009 Order to unambiguously reiterate and make abundantly clear that its February 11, 2009 Order which “temporarily adopted the proposed settlement agreement is in full force and effect.” (10/8/2009 Order [dkt. 4 Unlike the four priority areas, the discharge planning provisions are not required to be fulfilled at any specific time within the Settlement Agreement’s five-year term.
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34].) The Court additionally stressed that it “fully expects the parties to continue
working towards resolution in this matter as outlined in the temporarily-adopted
proposed settlement agreement.” (Id.)
On December 8, 2009, Plaintiff informed the Governor of Georgia by letter
that “the State Psychiatric Hospitals fail to provide adequate discharge planning to
insure placement in the most integrated setting and to provide adequate supports
and services necessary for successful discharge,” citing the ADA and Olmstead
[dkt. 55-8], even though the discharge planning provisions of the Settlement Agreement were still in force with four years remaining for compliance.5
Governor Sonny Perdue responded to this letter with an invitation for the U.S.
Department of Justice (“DOJ”) to meet with him and his senior staff.
5 To address the Court’s comment during the February 16, 2010 telephone conference, the December 8, 2009 letter does not constitute the “Notice of NonCompliance,” as required by the Settlement Agreement, for at least four reasons. First, the notice was not given and served in the form required by the Settlement Agreement. (Settlement Agreement [dkt. 7-2] §§ V.D & VI.D.) Second, the Settlement Agreement grants the State 90 days from the date of proper notice to substantially cure the alleged non-compliance. (Id. § V.D.) If, in fact, the December 8th letter is deemed to be “Notice of Non-Compliance” under the Settlement Agreement, then the State would have until March 8, 2010 to submit its proposed corrective plan. Third, as noted above, the December 8th letter focuses on discharge planning, an area of the Settlement Agreement that affords the State an additional four years to comply. Fourth, Plaintiff demanded that the State execute a 50-page consent decree or be sued by the end of January 2010, a full six weeks before the State would have had to submit a curative plan if the December 8th letter was, in fact, an actual notice of non-compliance with the Settlement Agreement.
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Before the Governor and DOJ representatives met, the Court held another telephone conference on December 30, 2009. The Court ordered Plaintiff to file a motion “outlining their concerns regarding conditions of state facilities,” with responses from the State and amici, after which the Court would determine when to hold a hearing. (Minute Entry for 12/30/2009 Tel. Conf. [dkt. 44].)
Governor Perdue and DOJ representatives met on January 8, 2010, at which time U.S. Assistant Attorney General for Civil Rights Thomas E. Perez advised the Governor that the DOJ was considering filing a new lawsuit based on the ADA, notwithstanding the Settlement Agreement in this case and the existing VCA between the OCR and the State addressing ADA issues separately. The Office of the Governor sent letters to Mr. Perez on both January 8 and 15, 2010, containing specific information in a good faith attempt to address the DOJ’s concerns and resolve the ADA issues cooperatively. [Dkts. 52-3 & 52-8.] The DOJ responded on January 22, 2010, with a proposed 50-page consent decree that would have effectively voided both the Settlement Agreement and the VCA, with an ultimatum that the State must execute the proposed consent decree or an “additional action” would be filed by the end of January. [Dkt. 52-10.] The State in response asked for more time to review the proposal and assess the significant costs associated with it, but the DOJ denied that request and then actually shortened the State’s
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time to review the proposed consent decree, stating that it would file a new ADA lawsuit on January 28, 2010. [Dkt. 52-12.] In an effort to undermine completely the Settlement Agreement, Plaintiff then filed not only a new ADA lawsuit (No. 1:10-CV-249-CAP) but also the Motion to Amend, Motion to Consolidate, and Motion for Immediate Relief, which are currently pending in this case.6
STATEMENT OF RELEVANT FACTS The State of Georgia has expended and committed significant resources in an effort to comply with the Settlement Agreement’s mandates for improvement of Georgia’s psychiatric hospitals, including the establishment of a new state agency, the Department of Behavioral Health and Developmental Disabilities (“DBHDD”), on July 1, 2009. As discussed in more detail below, the DBHDD—in collaboration with a team of experts and consultants—has achieved significant improvements in patient care in just the first eight months of its existence. Dozens of additional concrete steps to achieve better safety in the hospitals are currently underway and are continuing with the goal of substantial compliance with all provisions of the Settlement Agreement before the end of its term. In addition to
6 In addition to the briefs that the State filed in response to Plaintiff’s motions, the State also filed a Motion to Enforce the Settlement Agreement [dkt. 62] on February 15, 2010, and the State incorporates by reference the arguments made in the Brief in Support of that motion [dkt. 62-2].
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in-patient care, Georgia has greatly expanded community-based services to those with mental illnesses, developmental disabilities, and substance abuse disorders. I. System-Wide Infrastructure Changes and Funding Increases
Following execution of the Settlement Agreement, the State took (and is continuing to take) significant steps to ensure that the necessary infrastructure is in place and funding is available to implement the substantive provisions of the Settlement Agreement.
A. Creation of the DBHDD Prior to July 1, 2009, Georgia’s Department of Human Resources provided mental health, developmental disabilities, and addictive diseases services through the Division of Mental Health, Developmental Disabilities and Addictive Diseases. (Declaration of Frank E. Shelp, M.D., M.P.H. [attached hereto as Exhibit B] (“Shelp Decl.”) ¶ 9.) The passage and signing of House Bill 228, which created the DBHDD, epitomized Governor Perdue’s and the General Assembly’s vision to create an independent agency focused solely on persons with behavioral health concerns, developmental disabilities, and substance abuse problems. (Id. ¶ 10.) Governor Perdue appointed Dr. Frank E. Shelp, a clinical psychologist with over twenty years of experience, as the first Commissioner of the new DBHDD on May 4, 2009, and the DBHDD became a legal entity on July 1, 2009. (Id.) The
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DBHDD oversees persons in Georgia’s custody for civil reasons (persons voluntarily or involuntarily seeking medical care and treatment, but not accused of any criminal act) and for forensic purposes (persons ordered by a court to obtain medical care and treatment and deemed not competent to stand for trial or not guilty by reason of insanity). (Id.)
This year, the DBHDD is supporting legislation that (1) improves on House Bill 228 by including more agencies in the Behavioral Health Coordinating Counsel, a group of leaders of state agencies that meet to coordinate care for Georgians generally, (2) revises the Nurse Practice Act to provide greater access to home and community-based care, and (3) facilitates some Community Service Boards’ transition to operate more as Federally Qualified Health Centers, thereby increasing community treatment capacity. (Id. ¶ 15.) This legislation is pending before the General Assembly. (Id.) In addition, the DBHDD is spearheading improvement initiatives, collaborations and partnerships with academic institutions, community engagement, and enhanced used of technology. (Id. ¶ 16.)
B. Georgia’s Financial Commitment to the DBHDD Governor Perdue’s proposed Fiscal Year 2010 Amended Budget (AFY 2010) reflects his continued commitment to the DBHDD. The Governor’s commitment is especially telling in the light of the current budget shortfalls in
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Georgia. Specifically, the proposed AFY 2010 budget recommends an additional $1,152,394,143 in cuts across the state. (Shelp Decl. ¶ 11.) The additional cuts will leave the State budget totaling approximately $17 billion, whereas in 2008, the General Assembly passed a budget for FY 2009 that would total around $21 billion. (Id.) Georgia’s budget has dropped by $4 billion, or 19%, over two years. (Id.) And State revenues continue to decrease, as the January revenue collections demonstrated a year-to-date decline of 12.9% from Fiscal Year 2009. (Id.)
In response to drastically declining revenues, the Governor recommended that some agencies be cut by as much as 14% in the AFY 2010 budget. (Id. ¶ 12.) By contrast, Governor Perdue recommended that the DBHDD receive approximately $19.7 million additional dollars in AFY 2010, or a 2.8% increase in funds appropriated in the original FY 2010 budget. (Id.) The Georgia House of Representatives passed the AFY 2010 budget on February 11, 2010, and the Georgia Senate passed the AFY 2010 budget on February 18, 2010; both agreed with the Governor’s recommendation for the DBHDD’s budget. (Id.)
The Governor’s recommended budget for the DBHDD for Fiscal Year 2011 is also in marked contrast to other state agencies. Specifically, the Governor recommended an additional $63.8 million, or 9.2% increase, in state funds to the
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DBHDD. (Id. ¶ 13.) The Georgia General Assembly is currently considering the Fiscal Year 2011 budget. (Id.) II. Implementation of the Settlement Agreement
A. The DBHDD’s Early Efforts At the outset, the DBHDD focused its efforts on the four priority areas identified in the Settlement Agreement: choking and aspiration risk assessment and prevention, suicide risk assessment and prevention, prevention of patient on patient assault, and implementation of emergency medical codes. (Declaration of Donald E. Manning, M.D., M.M.M. [attached hereto as Exhibit C] (“Manning Decl.”) ¶ 14.) The DBHDD achieved significant improvements in these four priority areas. (Id. ¶ 15.) After extensive consultation and review, the DBHDD also issued new policies (or revised existing policies) in these four priority areas to better align the hospitals with generally accepted professional standards. (Id.) B. The DBHDD’s Collaboration with Dr. Nirbhay Singh In addition to the improvements that the DBHDD had made in the four priority areas, the DBHDD sought further enhancements with respect to prevention of patient-on-patient assault. (Manning Decl. ¶ 16.) Per the DBHDD’s request, the DOJ (Mr. Mygatt) recommended Dr. Nirbhay N. Singh to assist the State in
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this endeavor. (Id.) In October 2009, Dr. Shelp retained Dr. Singh as an expert consultant, based in large part on the DOJ’s recommendation. (Shelp Decl. ¶ 21.)
Dr. Singh has assembled a team of experts that will enable the DBHDD to implement all required policies and procedures to meet the substantive requirements of the Settlement Agreement, including psychiatrists, registered nurses, clinical and behavioral psychologists, rehabilitation services personnel, behavior specialists, treatment team mentors, risk and incident management specialists, and discharge planning specialists. (Declaration of Nirbhay N. Singh [attached hereto as Exhibit D] (“Singh Decl.”) ¶ 7.) Dr. Singh anticipates a team of about 40 full-time and part-time staff that will assist the DBHDD’s hospital staff to fully implement the requirements of the Settlement Agreement. (Id.)
C. The DBHDD’s State-of-the-Art Policies Since Dr. Singh’s appointment in October 2009, the DBHDD has actively collaborated with Dr. Singh and his team in the review and development of new policies for the hospitals to achieve compliance with the entire Settlement Agreement, not just the prevention of patient-on-patient assault. (Manning Decl. ¶¶ 17-18; Singh Decl. ¶¶ 8-11.) In collaboration with Dr. Singh and his team of experts and consultants, the DBHDD has reviewed, revised, and developed policies
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and procedures to further enhance the standard of care in the four priority areas.
(Manning Decl. ¶¶ 18, 27.)
The results demonstrate significant and meaningful improvements and
progress. With respect to the four priority areas, the DBHDD—with the assistance
of experts and consultants—has developed the following new policies:
• “Physical and Nutritional Support” (anticipated effective date 3/1/2010); • Policy # 03-504 (effective 11/9/2009): “Suicide Risk Screening and
Assessment of Individuals in State Hospitals and State-Operated Crisis Stabilization Programs”; • Policy # 03-601 (effective 1/12/2010): “Risk Management”; • “Incident Management” (anticipated effective date 3/1/2010); • “Safety-Care Training and Certification Requirements” (anticipated effective date 3/1/2010); • Policy # 03-203 (effective 1/1/2010): “Cardio-Pulmonary Resuscitation (CPR), Automated External Defibrillator (AED) and First Aid Certification Requirements”; • Policy # 03-204 (effective 1/2/2010): “Emergency Code Designations for State Hospitals”; • “Medical Emergency Response System” (anticipated effective date 3/1/2010); • “Medical Emergency Respiratory Support” (anticipated effective date 3/1/2010); and • “Automated External Defibrillator” (anticipated effective date 3/1/2010).
(Singh Decl. ¶ 12 & Exs. 2-11.) The DOJ’s expert consultants who evaluated
facility practices at Central State Hospital in January 2010 agree: after reviewing
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the new policies, a consultant reported during the exit conference that the new policies and procedures are “state-of-the-art” and meet generally accepted professional standards. (Id. ¶ 14.)
Training of trainers on the new policies set forth above has already been completed by Dr. Singh’s staff of experts and consultants, and the training of all relevant staff will be completed by May 2010. (Singh Decl. ¶ 14; Manning Decl. ¶ 20.) The above policies will be fully implemented in all hospitals by May 2010. (Singh Decl. ¶ 15; Manning Decl. ¶ 21.) III. Safety of Patients in the Hospitals
Following the investigation of health and safety issues at the hospitals and the resulting Settlement Agreement, the DBHDD and the hospitals have since undertaken significant and meaningful measures to ensure the health and safety of patients. (Manning Decl. ¶ 36.) Since execution of the Settlement Agreement, and especially after the creation of the DBHDD and its collaboration with Dr. Singh, the safety and well-being of patients have substantially improved. (Id. ¶¶ 18-19, 37.) While risks to patient health and safety cannot be eliminated altogether, the hospitals currently have in place policies and procedures to minimize those risks. (Id. ¶ 40; Singh Decl. ¶ 11.) New policies developed by Dr. Singh, in
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collaboration with the DBHDD, will further minimize those risks when fully implemented. (Manning Decl. ¶ 40; Singh Decl. ¶ 11.)
A. Joint Commission Accreditation All seven hospitals are currently accredited by the Joint Commission, which is recognized nationwide as a symbol of quality that reflects an organization’s commitment to meeting certain performance standards. (Manning Decl. ¶ 28.) The Joint Commission standards address the hospitals’ performance in specific areas to ensure that patient care is provided in a safe manner and in a secure environment. (Id.) The Joint Commission develops its standards in consultation with health care experts, providers, and researchers, as well as measurement experts, purchasers, and consumers. (Id.) The standards utilized by the Joint Commission comport with generally accepted professional standards. (Id.) To maintain and earn accreditation, a hospital undergoes an extensive, unannounced on-site review by the Joint Commission to evaluate the hospital’s performance in areas that affect patient care. (Id. ¶ 29.) Joint Commission professionals, such as administrators, physicians, and nurses, evaluate the hospital’s processes and personally visit with patients and staff. (Id.) The Joint Commission awards accreditation based on how well the hospital meets the Joint Commission’s standards. (Id.) All seven of Georgia’s psychiatric hospitals have
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earned and currently maintain the Joint Commission’s “Gold Seal of Approval,” which demonstrates that the hospitals are in compliance with the most stringent standards of performance and have met national patient safety goals. (Id. ¶ 30.)
B. Statistics Regarding Safety in the Hospitals As a requirement of accreditation, the hospitals report certain performance measures to the Joint Commission on a monthly basis. (Manning Decl. ¶ 31.) With respect to the frequency of patient injury (defined as any injury requiring more than minor first aid), the hospitals currently are below the national weighted mean for psychiatric facilities. (Id. ¶¶ 32-33.) The hospitals are also below the national average with respect to assaults and self-injury (which includes suicides). (Id. ¶ 34.) IV. Achievements in Decreasing the Hospital Population and Improving Community-Based Services In 2009, the State spent more on community-based care than on hospitals. (Shelp Decl. ¶ 14.) But treatment in the community is not always less costly than treatment in the hospitals. (Id. ¶ 49.) Hospital censuses are declining, more individuals are being transitioned from the hospitals into the community, and the use of Medicaid waivers for community-based treatment is increasing. (Id. ¶¶ 3738, 41.) The State is undertaking many initiatives to increase and improve its community-based services, including hiring Mr. Bill Janes, the former Director of
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Florida’s Office of Drug Control and Assistant Secretary of Substance Abuse and Mental Health in Florida’s Department of Children and Families, to serve as Georgia’s Olmstead coordinator pursuant to the VCA. (Id. ¶ 22.) Mr. Janes is coordinating the implementation of Georgia’s comprehensive Olmstead policies, which move persons at a reasonable pace into the community for treatment when community options become available. (Id.) Mr. Janes is also updating Georgia’s Olmstead plan as required by the VCA. (Id.)
A. Decreasing Hospital Censuses Hospital censuses are trending downward, demonstrating that the State of Georgia is not attempting to keep the hospitals fully populated. (Shelp Decl. ¶ 37.) The hospitals served 2,916 inpatients in 2000; however, at the beginning of 2010, only 1,956 remained. (Id.) In 2007, there were over 1,000 developmentally disabled persons in the hospitals; yet, at the beginning of 2010, less than 800 remained. (Id.) In 2007, the hospitals served approximately 700 adult mental health consumers, but three years later, there were fewer than 500. (Id.) Children and adolescents are no longer treated in the hospitals. (Id.) Similarly, admissions into the hospitals are also declining. In October 2006, 1,338 persons were admitted into the hospitals, but three years later, 839 were admitted, which represents a decrease of 499 admissions, or 37%. (Id. ¶ 39.)
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Admissions per bed have also declined from 2.09 in October 2006 to 1.51 in October 2009. (Id.)
B. Increasing Use of Medicaid Waivers Georgia’s use of Medicaid waivers has also increased dramatically since 2003. In 2003, there were less than 14,000 disabled persons receiving services through a Community Care Services Medicaid Waiver; however, by 2009, more than 18,000 received such a waiver. (Shelp Decl. ¶ 41.) In 2003, just over 8,000 individuals with developmental disabilities were served by Georgia’s two waiver programs (called the “New Options/NOW” and “Comprehensive Supports/COMP” waivers), and 11,500 individuals were served by these waivers in FY 2009, indicating a net increase of more than 3,000 waivers since 2003. (Id.) Similarly, Georgia has opened the SOURCE program—a primary care, enhanced case management model—to the mental health and developmentally disabled population. (Id.) In 2003, just less than 3,000 persons received treatment through SOURCE; however, by 2009, the number was more than 18,000. (Id.) Georgia is continuing to grow its Medicaid program. On February 18, 2010, the State submitted its application to the Centers for Medicare and Medicaid Services for a Section 1915i benefit under its State Medicaid Plan. (Id. ¶ 42.) If approved, the Section 1915i benefit will allow the State to use Medicaid dollars to
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provide in-home and community-based care, thereby further expanding the State’s abilities to provide mental health services in a community setting, rather than in the hospitals. (Id.)
C. Housing and Other Community Treatment Initiatives The DBHDD is also creating a housing initiative, Pathways to Housing, modeled after a successful program in New York State. (Shelp Decl. ¶ 43.) The Bazelon Center introduced Dr. Shelp to the concept, and Dr. Bill McDonald, a clinical psychiatrist with Emory University, is beginning to implement the plan now. (Id.) When in place, the program will allow many DBHDD clients to receive services in supported housing, one of the DOJ’s key requests. (Id.) The number of Assertive Community Treatment (“ACT”) providers, which monitor the DBHDD’s clients in the community, has also grown more than threefold since 2006, when only six such providers were available. (Id. ¶ 44.) Now, 21 ACT teams are utilized by DBHDD clients. (Id.) The capacity of “host homes,” which provide residential services to DBHDD clients, has also increased from 160 in Fiscal Year 2004 to 800 in Fiscal Year 2009. (Id. ¶ 45.) Similarly, the number of community crisis stabilization beds has increased significantly since 2003. (Id. ¶ 46.) For children and adolescents, the number jumped from less than 300 in 2003 to more than 450 in 2009; beds for
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adult crisis stabilization increased from less than 300 to just under 400 in the same time frame. (Id.) The number of state-operated community residential programs has also increased from a little more than 20 in 2004 to more than 100 in 2009. (Id. ¶ 47.)
ARGUMENT AND CITATION OF AUTHORITY I. A Preliminary Injunction Is an “Extraordinary and Drastic Remedy,”
Especially When Asserted Against a Government Agency. Plaintiff’s Motion for Immediate Relief, brought pursuant to Federal Rule of Civil Procedure 65, is in effect a motion for a preliminary injunction. (See Pl.’s Br. at 1, 4 (“[T]his motion for immediate relief may be understood as a motion for a preliminary injunction.”).) Plaintiff, however, has not met the prerequisites for obtaining the “extraordinary and drastic” remedy of a preliminary injunction, especially as asserted against a state government. See, e.g., Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc); Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990); Dunkin’ Donuts Inc. v. Kashi Enters., Inc., 106 F. Supp. 2d 1325, 1326-27 (N.D. Ga. 2000) (Pannell, J.) (quoting McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)). To obtain a preliminary injunction, the movant must clearly demonstrate each of the four required elements: “(1) a substantial likelihood that he will
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ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest.” Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985); accord Dunkin’ Donuts, 106 F. Supp. 2d at 1326; see also Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1240 (11th Cir. 2005) (placing burden on movant); Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994) (same). “Failure to show any of the four factors is fatal.” ACLU of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009).
Where, as here, one seeks to enjoin a government, the parties and the Court must respect the “well-established rule” that the government is granted the “widest latitude” in the dispatch of its affairs. Rizzo v. Goode, 423 U.S. 362, 378-79 (1976). Indeed, in the mental health context itself, the U.S. Supreme Court has cautioned that “interference by the federal judiciary with the internal operations of these institutions should be minimized.” Youngberg v. Romeo, 457 U.S. 307, 322 (1982). “[A]n injunction requiring detailed and continuous supervision over the conduct of a political subdivision is not congenial to equitable principles and practices and will not usually be granted.” Brown v. Bd. of Trustees, 187 F.2d 20,
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24 (5th Cir. 1951).7 In the rare circumstances when it is granted, an injunction
must be narrowly tailored to “fit the nature and extent of the established violation.”
Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984); accord Dayton Bd. of
Educ. v. Brinkman, 433 U.S. 406, 420 (1977).
The type of preliminary injunction that Plaintiff seeks in this motion—a
preliminary injunction that (1) disturbs the status quo, (2) is mandatory as opposed to prohibitory,8 and (3) affords Plaintiff substantially all of the relief it seeks to
recover at the conclusion of a full trial on the merits—is disfavored and requires
Plaintiff to show that the four factors weigh heavily and compellingly in its favor.
A preliminary injunction that alters the status quo goes beyond the traditional purpose for preliminary injunctions, which is only t o preserve the status quo until a trial on the m erits may be had . . . . Mandatory injunctions are m ore burdensome than prohibitory injunctions because they affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provi de ongoing supervision to assure that the nonm ovant is abiding by the injunction . . . . Finally, a preliminary injunction that awards the movant substantially all the relief he may be en titled to if he su cceeds on the merits is sim ilar to
7 All decisions of the former Fifth Circuit rendered prior to the close of business on September 30, 1981, are binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). 8 Mandatory injunctions compel action, while prohibitory injunctions forbid action. See Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996) (stating that a mandatory injunction orders a party to “take action” and a prohibitory injunction “restrains” a party from further action); McDonald’s Corp., 147 F.3d at 1307.
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the “Sentence first–Verdict Afterwards” type of procedure parodied in Alice in Wonderland, which is an a nathema to our system of jurisprudence. SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir. 1991); see also Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979) (noting that because a preliminary injunction that alters the status quo is “particularly disfavored” the movant must make a strong showing of entitlement). Judicial reluctance to issue preliminary injunctions is especially pronounced in cases such as this one in which Plaintiff seeks mandatory injunctive relief to compel the State of Georgia to do a positive act. See Harris v. Wilters, 596 F.2d 678, 680 (5th Cir. 1979) (“Only in rare instances is the issuance of a mandatory preliminary injunction proper.”). II. Plaintiff Has Failed To Satisfy the Prerequisites for Preliminary Injunctive Relief. A. Plaintiff Cannot Demonstrate a Substantial Likelihood of Success
on the Merits of Either Claim Against the State. Plaintiff is not entitled to a preliminary injunction because it cannot prove a substantial likelihood of success on the merits of its claims. Plaintiff seeks a preliminary injunction based on two claims.9 First, Plaintiff claims that
9 Plaintiff’s proposed Amended Complaint consists of four causes of action [dkt. 53], but its Motion for Immediate Relief is based on only two of them: Counts One and Two (ADA and federal substantive due process, respectively).
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“[h]undreds of individuals, at a minimum, remain institutionalized in the hospitals in violation of their rights under the ADA and Olmstead.” (Pl.’s Br. at 10.) Second, Plaintiff claims that the conditions in the hospitals are “unconstitutional and life-threatening” and seeks relief in the form of “moving individuals with disabilities out of inappropriate institutional placements now.” (Pl.’s Br. at 23 (emphasis in original).) Plaintiff bears the burden of proving all essential elements of both claims. See United States v. Pennsylvania, 863 F. Supp. 217, 219 (E.D. Pa. 1994) (CRIPA); see also C.B. v. Bd. of Sch. Comm’rs of Mobile County, 2008 U.S. App. LEXIS 340, at *5-6 (11th Cir. Jan. 7, 2008) (ADA); United States v. Pennsylvania, 902 F. Supp. 565, 578-79 (W.D. Pa. 1995) (CRIPA).
Plaintiff is unlikely to succeed on its substantive due process claim because it cannot demonstrate that Defendants have substantially departed from accepted professional judgment in their provision of mental health services.10 Similarly, Plaintiff is unlikely to succeed on the merits of its ADA claim because (1) the VCA already addresses the State’s compliance with the ADA, (2) Plaintiff cannot establish a violation of the ADA, and (3) even if it could, the modifications that 10 Tellingly, Plaintiff dedicates the majority of its brief to seeking systemic reform based on the ADA and secondarily addresses its constitutional claim. In this Response Brief, the State addresses the constitutional claim first, then the ADA claim second, because the only issue that may be raised at this stage, in a motion for preliminary injunction, is the constitutional claim to the extent there is imminent harm. (See Settlement Agreement [dkt. 7-2] § V.D.)
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Plaintiff seeks would result in a “fundamental alteration” of the State’s program, which the ADA and Olmstead say this Court is forbidden from mandating.
1. Plaintiff’s Substantive Due Process Claim Under the Fourteenth Amendment to the U.S. Constitution Fails Because Plaintiff Cannot Prove That the State Substantially Departed from Accepted Professional Judgment. (a) The Controlling Constitutional Standard
Although states are not constitutionally obligated to provide social services to their citizens, Youngberg v. Romeo, 457 U.S. 307, 317 (1982), Georgia does provide services to its citizens who have been diagnosed with a mental illness or developmental disability. The U.S. Supreme Court has held that the Due Process Clause of the U.S. Constitution’s Fourteenth Amendment imposes an affirmative duty on the State to protect certain rights of those in its physical custody; specifically, persons in state custody “enjoy [] constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.” Id. at 324.
“Reasonable care” does not impose a constitutional standard of optimal treatment; minimal levels of care are sufficient. See id. at 323; Hanson v. Clarke County, 867 F.2d 1115, 1120 (8th Cir. 1989) (finding no constitutional right to optimal placement); Canupp v. Sheldon, 2009 U.S. Dist. LEXIS 113488, at *30 (M.D. Fla. Nov. 23, 2009) (noting that the U.S. Constitution does not require
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institutionalized persons to receive optimal treatment and mental health services); Hargett v. Adams, 2005 U.S. Dist. LEXIS 6240, at *36, 50, 53-55 (N.D. Ill. Jan. 13, 2005) (finding that Illinois’ treatment program was not “optimal,” but did not violate constitutional standards). The State is required only to provide such treatment as an appropriate professional would consider “reasonable in light of [a person’s] liberty interests in safety and freedom from unreasonable restraints.” Youngberg, 457 U.S. at 322; Lelsz v. Kavanagh, 807 F.2d 1243, 1251 (5th Cir. 1987); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d.1239, 1250 (2d Cir. 1984); Armstead v. Pingree, 629 F. Supp. 273, 276 (M.D. Fla. 1986).
In determining what constitutes “reasonable care,” the Supreme Court in Youngberg emphasized that the State “has considerable discretion in determining the nature and scope of its responsibilities.” 457 U.S. at 317. Judicial deference must be afforded to the judgment that a qualified professional exercises: “It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” Id. at 321. In fact, decisions made by such professionals are presumptively valid. See id. at 323; P.C. v. McLaughlin, 913 F.2d 1033, 1043 (2d Cir. 1990) (stating that courts should not “ascertain whether in fact the best course of action was taken”).
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Conflicting expert testimony will not overcome this presumption that the decisions of the treating professionals were valid. A plaintiff cannot meet its burden of proof by presenting nothing more than (1) a difference of professional opinion as to which practices are appropriate or (2) expert testimony that another course of action would have been better. See Youngberg, 457 U.S. at 321; Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir. 1998); Lelsz, 807 F.2d at 1243; Society for Good Will, 737 F.2d at 1248; Doe v. Gaughan, 617 F. Supp. 1477, 1487 (D. Mass. 1985), aff’d, 808 F.2d 871 (1st Cir. 1986); see also Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir. 1990) (noting that Youngberg prohibits courts from “weigh[ing] the decisions of the treating professionals against the testimony of the [plaintiffs’] professionals to decide which of several acceptable standards should apply”); Pennsylvania, 902 F. Supp. at 584 (“Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard.”).
The Court’s inquiry is limited to deciding “whether the treatment or residence setting that actually was selected was a ‘substantial departure’ from prevailing standards of practice.” Society of Good Will, 747 F.2d at 1248-49. “Liability may be imposed only when [a] decision by [a] professional is such a substantial departure from accepted professional judgment, practice, or standards
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as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Youngberg, 457 U.S. at 323. Liability is not established when experts simply opine that patients “could be more appropriately served” (Pl.’s Br. at 33 (citing consultants’ declarations)). Plaintiff cannot meet the Youngberg standard necessary to overcome the presumption of validity and, consequently, cannot demonstrate a basis for the intrusive relief that it seeks.
(b) The State’s Exercise of Professional Judgment Is Presumptively Valid, and Plaintiff Cannot Establish a Constitutional Violation.
Plaintiff is unlikely to succeed on its substantive due process claim because the hospitals provide care and safety to their patients that meet the constitutional standard set forth in Youngberg. The patient care and safety provided at the hospitals, at the very least, demonstrate the exercise of professional judgment that is presumptively valid and aligned with contemporary, accepted professional judgment, practice, or standards. (Shelp Decl. ¶ 7; Manning Decl. ¶ 10.)
Plaintiff’s representations that “the State concedes that it does not provide care and safety that is consistent with generally accepted professional standards” and “that it systematically violates the Constitution in each [of the four priority areas] at each of the hospitals” are refuted by the very exhibit that Plaintiff cites (Pl.’s Br. at 24-25 (citing Ex. 21).) The cited audit shows that the State’s efforts to
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improve treatment and conditions at the hospitals beyond the constitutional minimum are “in process.” (Pl.’s Br. Ex. 21 [dkt. 55-24].) Nothing on the face of the audit even remotely suggests that the hospitals currently provide patient care and safety that are such a “substantial departure” from prevailing standards of practice to demonstrate that the care and safety provided was not based on accepted professional judgment at all. See Youngberg, 457 U.S. at 323. Instead, the audit measured the hospitals’ level of compliance with more stringent, resultsbased performance measures, which in some areas were based on newly-issued policies. (Manning Decl. ¶¶ 22-27; see also id. ¶¶ 18-19.) The State should not be punished for trying to achieve patient care and safety standards that are above and beyond the constitutional minimum threshold. And the Court should reject Plaintiff’s improper attempt to rely on the State’s self-audit (which measures performance against the higher standards) to argue that the State fails to meet the minimal constitutional standard in Youngberg and the Settlement Agreement.11
Plaintiff’s and its consultants’ laundry list of isolated incidents, occurrences, and conditions across a broad spectrum of areas, followed by the conclusion that they “pos[e] an immediate and serious threat to the life, health, and safety of
11 The Settlement Agreement adopts the Youngberg standard. (Settlement Agreement [dkt. 7-2] § II.B.) Because the State of Georgia satisfies the Youngberg standard, it cannot be in breach of the Settlement Agreement.
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individuals in the hospitals” (Pl.’s Br. at 31), albeit tragic, does not show a substantial departure from accepted professional judgment and consequently does not prove a constitutional violation. See Williams v. Wasserman, 164 F. Supp. 2d 591, 619 (D. Md. 2001) (“It is true, and unfortunate, that the representative plaintiffs suffered injuries while they were hospitalized. Those injuries, however, do not necessarily indicate a constitutional violation.”). While Plaintiff’s consultants’ conclusions reflect a difference of professional opinion, they do not establish a prima facie case that Defendants have violated the Youngberg standard. See Johnson v. Murphy, 2001 U.S. Dist. LEXIS 24013, at *54-55 (M.D. Fla. June 28, 2001); Williams, 164 F. Supp. 2d at 619; United States v. Oregon, 782 F. Supp. 502, 513 (D. Or. 1991).
The relevant incidents cited by Plaintiff and its consultants demonstrate Plaintiff’s dated and aggressive advocacy, but they do not show any violation of the U.S. Constitution or the Settlement Agreement. Specifically, the Declaration of Carla Jo Osgood cites 30 incidents at the hospitals, but only 8 of those patient injuries post-date the Settlement Agreement. (Pl.’s Br. Ex. 17 [dkt. 55-20], Osgood Decl. ¶¶ 14-43.) Each of the 8 post-Settlement Agreement incidents that Ms. Osgood cites has been corrected or ameliorated, leaving no individual at risk of suffering immediate harm or injury. (Id. ¶¶ 39-40.) Moreover, many, if not all,
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of those incidents did not amount to the embellished description offered by Ms. Osgood. (Id. ¶ 41.) And there is no record of Ms. Osgood’s repeated claim of warning hospital staff about the risk associated with the type of beds then in place at the hospital (which have since been replaced). (Id. ¶ 40(e).)
In sum, the 8 post-Settlement Agreement incidents cited by Ms. Osgood (taken individually or collectively) do not suggest that any patient is under threat of immediate harm, do not evidence a substantial departure from accepted professional standards, and therefore do not establish a constitutional violation or a basis for injunctive relief.12 (Id. ¶¶ 35, 40-41; Shelp Decl. ¶ 58.) At best, Plaintiff’s consultants simply disagree with the level of care provided. That is not grounds for this Court to find a constitutional violation.
(c) Plaintiff’s “Expert” Testimony Is Unreliable and Does Not Establish an Absence of Professional Judgment.
Beyond being factually insufficient, Plaintiff’s consultants’ declarations are entitled to little, if any, weight. Expert testimony is a necessary element of Plaintiff’s proof in applying Youngberg, but giving credence to that testimony at this stage of the litigation—before discovery and sufficient testing of the expert’s conclusions—is particularly precarious. See Ozinga Chicago Ready Mix Concrete, 12 Additionally, Ms. Osgood has not visited Georgia Regional Hospital in Atlanta or Northwest Georgia Regional Hospital since 2007, nor has she ever visited Southwestern State Hospital. (Manning Decl. ¶ 38.)
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Inc. v. City of Chicago, 209 F. Supp. 2d 917, 918 (N.D. Ill. 2002) (“We are reluctant, however, to get deeply involved with the merits when those matters are still subject to discovery and are affected by threshold issues, such as Daubert attacks on the City’s experts and the relevance of post-enactment evidence, that have yet to be fully briefed and decided.”); see also Oregon, 782 F. Supp at 513.
Based on the evidence currently compiled, Defendants anticipate raising a challenge pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as this case proceeds. The testimony of Plaintiff’s consultants does not satisfy Daubert’s requirements of competence, reliability, and relevance.13 509 U.S. at 590-91; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Plaintiff’s consultants fail to identify the applicable professional standards, but instead apply their own subjective and idealistic political philosophy as to what they personally believe should exist, rather than what health care professionals believe is necessary to meet accepted professional standards. See Viterbo v. Dow Chem. Co., 646 F. Supp.
13 The Supreme Court in Daubert explained that Federal Rule of Evidence 702 allows the admission of expert testimony only if: (1) the expert is competent and qualified to testify regarding the matters that he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable; and (3) the expert, through scientific, technical or specialized expertise, provides testimony that assists the trier of fact to understand the evidence or determine a fact in issue. 509 U.S. at 590-91.
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1420, 1425 (E.D. Tex. 1986) (finding that testimony suggesting a “better” course of treatment did not establish a substantial departure from professional judgment).
Plaintiff’s consultants’ opinions are also unreliable because they are based on anecdotal stories and isolated incidents that do not rise to the level of a constitutional violation. Pennsylvania, 902 F. Supp. at 589 (“[I]solated examples of problems, while regrettable, do not establish constitutional violations.”) (citing Shaw v. Strackhouse, 920 F.2d at 1143); Society for Good Will, 737 F.2d at 1245 (“Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation.”); cf. Church, 30 F.3d 1332, 1345 (11th Cir. 1994). Indeed, reliance on anecdotal case studies and incident reports appears to have been uniformly rejected by courts because they lack indicia of scientific reliability, methodology, or validation required by Daubert. See, e.g., Allison v. McGhan Med. Corp., 184 F.3d 1300, 1316 (11th Cir. 1999); Siharath v. Sandoz Pharms. Corp., 131 F. Supp. 2d 1347, 1361-62 (N.D. Ga. 2001) (Thrash, J.) (sampling cases that have rejected case studies as too unreliable to satisfy the strictures of Daubert), aff’d sub nom. Rider v. Sandoz Pharms. Corp., 295 F.3d 1194 (11th Cir. 2002).
Moreover, standing alone, Plaintiff’s consultants’ use of the “magic words” of “substantial departure” (see, e.g., Pl.’s Br. at 26 (citing declarations)) does not meet the rigorous analysis required by Daubert. See Dolihite v. Maughon ex rel.
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Videon, 74 F.3d 1027, 1046 n.33 (11th Cir. 1996) (“[A]n expert opinion which is merely conclusory, even if couched in the language of the relevant legal standard, will be of little assistance to a court.”); Siharath, 131 F. Supp. 2d at 1373 (“[I]t appears that [the plaintiff’s proposed experts’] ‘testimony is based more on personal opinion than on scientific knowledge,’” and thus nothing more than “educated guesses dressed up in evening clothes.”) (citations omitted); see also Navarro v. Fuji Heavy Indus., 117 F.3d 1027, 1031 (7th Cir. 1997); Viterbo v. Dow Chem., Inc., 826 F.2d 420, 424 (5th Cir. 1987); Rogers v. Evans, 792 F.2d 1052, 1062 n.9 (11th Cir. 1986); Cartwright v. Home Depot U.S.A., Inc., 936 F. Supp. 900, 905 (M.D. Fla. 1996). Plaintiff’s consultants’ testimony consequently should be afforded minimal weight, if any, and their testimony is insufficient to overcome the presumptively valid judgment of the State’s professionals.
2. Plaintiff Cannot Show a Likelihood of Success on Its ADA Claim Because the VCA Addresses ADA Compliance; Plaintiff Cannot Establish a Violation of the ADA; and the Relief Plaintiff Seeks Would Result in a Fundamental Alteration of the State’s Mental Health Program.
Title II of the ADA, which applies to public services furnished by governmental entities, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to
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discrimination by any such entity.” 42 U.S.C. § 12132. An “integration mandate” contained in the DOJ’s regulations implementing the ADA states that services must be provided “in the most integrated setting appropriate to the needs of the qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
In Olmstead, the U.S. Supreme Court held that “unjustified isolation” can constitute discrimination under the ADA only “when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”14 527 U.S. at 587. If a state is found to have discriminated in such a manner, it must make reasonable modifications to resolve the discrimination, but its responsibility to provide community-based treatment options “is not boundless.” Id. at 603. A modification is not reasonable (and thus not required) if it will impair a state’s ability to (1) maintain a range of facilities for the care and treatment of persons with diverse disabilities and (2) administer services and apportion resources equitably across a broad spectrum of need. Id. at 603-06. 14 Plaintiff ignores this language in Olmstead and argues that the input of treatment professionals is not required. (Pl.’s Br. at 14-15.) This contention cannot be reconciled with the plain language of Olmstead and further demonstrates the DOJ’s attempt to test its new, expansive, and erroneous reading of the ADA.
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Moreover, the ADA does not require a state to implement modifications that entail a “fundamental alteration” of the state’s overall program for administering mental health services. Id. at 603-04; 28 C.F.R. § 35.130(b)(7) (“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity.”). “[T]he fundamental-alteration component . . . allow[s] the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” Olmstead, 527 U.S. at 604.
Thus, to rebut prima facie evidence of discrimination under the ADA, a state may show that it is making a reasonable modification through its “comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Id. at 605-06. Alternatively, a state may demonstrate that the relief sought amounts to a “fundamental alteration” of its program. Id. at 603-04; see Easley ex rel. Easley v.
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Snider, 36 F.3d 297, 305 (3d Cir. 1994); Messier v. Southbury Training Sch., 1999 U.S. Dist. LEXIS 1479, at *36 (D. Conn. Jan. 5, 1999); Williams v. Wasserman, 937 F. Supp. 524, 531 (D. Md. 1996); Dees v. Austin Travis County Mental Health & Mental Retardation, 860 F. Supp. 1186, 1190 n.7 (W.D. Tex. 1994).
(a) The VCA Adequately Addresses the DOJ’s Concerns and Controls the Timing and Manner of the State’s Compliance with the ADA.
The VCA is an extensive document that requires the State, in collaboration with the OCR, to devise and implement a plan for coordinating the State’s strategy for complying with the ADA, as interpreted by Olmstead. It mandates that the State have an “Olmstead Coordinator” to oversee the implementation of an “Olmstead Plan.” (See VCA, art. I, § II(A).) The Olmstead Coordinator reports directly to the Governor. (Id.) The State also is required to create an “Olmstead Committee” to oversee the implementation of the Olmstead Plan and policies. (Id. art. I, § IV(B).) The State must create developmental disabilities and mental health “Olmstead Lists,” which track consumers with those conditions and monitors their integration into the community. (Id. arts. II & III.)
The OCR is the designated agency charged with implementing application of Title II of the ADA to state health and human services programs. See 28 C.F.R. § 35.190(a)(3). As recently as February 18, 2010, State officials, including Dr.
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Shelp and Georgia’s Olmstead Coordinator, Mr. Janes, met with members of the OCR to assess Georgia’s compliance and progress. (Shelp Decl. ¶ 22.)
Also discussed at the meeting were Georgia’s strategies to address Olmstead issues under the VCA. Evidence of Georgia’s success includes: (1) declining hospital censuses; (2) increased community capacity; (3) additional Medicaid waivers; (4) initiated housing plans; and (4) proposed legislation to further increase community services. (Shelp Decl. ¶¶ 15, 36-48.) Particularly at this early stage of the litigation, the evidence of Georgia’s progress demonstrates that a significant and sufficient commitment to community integration and deinstitutionalization is “genuine, comprehensive, and reasonable.” Bryson v. Stephen, 2006 U.S. Dist. LEXIS 71775, at *16, 24-25 (D.N.H. Sept. 29, 2006); see also The ARC of Washington State, Inc. v. Braddock, 427 F.3d 615, 621 (9th Cir. 2005); Sanchez v. Johnson, 416 F.3d 1051, 1067 (9th Cir. 2005).
The VCA addresses Plaintiff’s concerns, and the State’s efforts to comply with the VCA and implement its Olmstead Plan are ongoing. Moreover, Georgia’s Olmstead strategy demonstrates that it is meeting the reasonable modification standard set forth in Olmstead itself: “If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting
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list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.” 527 U.S. at 605-06; see Williams, 164 F. Supp. 2d at 638 (entering judgment in favor of state defendants on ADA claim after concluding that “[m]easured against the three to five year time frame, and considering the need to maintain a minimum number of hospital beds and also to fund placements for other persons in need of community treatment, the State’s progress in placing members of the [] population into the community has been acceptable”).
(b) Plaintiff Cannot State a Discrimination Claim Under the ADA, and Plaintiff Seeks Relief That Is Not Mandated by the ADA or Olmstead.
Plaintiff admits that its “Olmstead claim rests on the demand that [community-based treatment] services already in limited supply be made available in sufficient supply to enable individuals who are currently inappropriately segregated in an institution to be discharged from that setting into the community and provided appropriate services there.” (Pl.’s Br. at 16-17.) Plaintiff insists that, irrespective of capacity, “meaningful numbers of individuals in the hospitals move out of their inappropriate institutional placements now.” (Id. at 20 (emphasis in original).) Plaintiff also concedes that the immediate relief it seeks is a significantly increased appropriation of state dollars to build a larger network of
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community-based services (based on an alleged immediate harm caused by the General Assembly’s consideration of the State’s budget). (Pl.’s Br. at 3; Tr. of 2/4/2010 Tel. Conf. [dkt. 61] at 21 (Mr. Mygatt’s comments).)
Plaintiff’s ADA claim and its remedial analysis are flawed in at least three ways. First, Olmstead does not require, as Plaintiff argues, statewide deinstitutionalization of all eligible disabled persons “now” or immediate creation of new community placements. See Conner v. Branstad, 839 F. Supp. 1346, 1357 (S.D. Iowa 1993) (“[I]f Congress had actually intended to require states to provide community based programs for mentally disabled individuals currently residing in institutional settings, it surely would have found a less oblique way of doing so.”); see also Oregon, 782 F. Supp. at 514 (“[P]remature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at [the hospital].”).
Second, the ADA does not require either of the remedies sought by Plaintiff—(1) creation of additional capacity for community-based services and (2) immediate discharge of patients from the hospitals “now.” (Pl.’s Br. at 3, 20, 23.) With respect to the first remedy, Olmstead itself states that the ADA does not require states to “provide a certain level of benefits to individuals with disabilities”; instead, Olmstead holds only that “States must adhere to the ADA’s
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nondiscriminatory requirement with regard to the services they in fact provide.” 527 U.S. at 604 n.14 (emphasis added). Consequently, an ADA claim cannot be based on an argument that the State must create new community-based programs or services. Plaintiff’s second remedy—immediate discharge—also cannot be reconciled with the plain language of Olmstead: the “ADA is not reasonably read to impel State to phase out institutions, placing patients in need of close care at risk. Nor is it the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting.” 527 U.S. at 604-05. Thus, neither form of relief sought by Plaintiff is compelled by the ADA.
Third, Plaintiff’s criticisms that the community-based services that the State currently provides are insufficient in both quantity and quality do not state a claim under the ADA. “[W]hile the plaintiffs offered evidence that community services and facilities could be different and in some instances better, they have failed to prove that the defendants’ mental health program, as administered, results in unnecessary isolation of patients into segregated settings.” Johnson, 2001 U.S. Dist. LEXIS 24013, at *55. In contradiction to Johnson (and the ADA), Plaintiff’s ADA claim focuses on what modifications Defendants could make to improve their mental health program, but the evidence does not support a conclusion that the State’s policies or practices are unjustified or discriminatory in violation of the
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ADA. For example, Plaintiff contends that Georgia has “insufficient community and mobile crisis services in the State” and “[s]ystemic deficiencies in treatment, discharge, and transition planning,” but Plaintiff’s own consultants merely state that Georgia’s community services could, in effect, be better, broader, and more numerous. (See Pl.’s Br. at 15.) Such aspirational desires, which are indeed shared by the State and all other mental health professionals, do not show that a state agency’s community services are so inadequate as to violate the ADA.
(c) The Relief That Plaintiff Seeks Would Result in a “Fundamental Alteration” of the State’s Mental Health System, Which Is Not Required by the ADA or Olmstead.
Even if this Court were to find that the ADA allowed the remedies sought by Plaintiff (which it should not), imposing such mandates would require a fundamental alteration of Georgia’s mental health program, which is an impermissible result under the ADA and Olmstead. The fundamental alteration analysis must include a consideration of existing budgetary constraints and the competing demands of other services that the state provides, including the maintenance of institutional care facilities. See Olmstead, 527 U.S. at 597, 605.
Funding for community-based treatment and services already constitutes the majority of State spending on mental health and developmental disabilities. (Shelp Decl. ¶ 14.) Ideally, more can always be done, but the reality is that states must
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make difficult decisions when allocating necessarily limited resources, as the Supreme Court’s Olmstead decision recognized in 1999, when there were not severe state budget constraints. 527 U.S. at 587 (recognizing the need to “tak[e] into account the resources available to the State”). “The ADA [does not] require states to raise, appropriate, and spend whatever amount is necessary to immediately afford all qualified disabled persons community-based services, without regard to other needs and spending priorities.” Bryson, 2006 U.S. Dist. LEXIS 71775, at *24-25; see Williams, 937 F. Supp. at 531 (finding that courts may not require states to transfer millions of dollars from institutions to the community); Conner, 839 F. Supp. at 1358-59 (refusing to order a state to create or expand community programs currently in existence).
The “immediate relief” that Plaintiff seeks “would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” Olmstead, 527 U.S. at 604. Forced reallocation of millions of dollars to create new community services would adversely impact the funding of services for other individuals with disabilities in the State. Hospitals must remain for, at a minimum, the forensic population that the State is obligated to treat. (Shelp Decl. ¶¶ 10, 49.) Absent increased funding— which Plaintiff has failed to demonstrate is immediately available—the State
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cannot immediately shift even more resources from hospitals to community-based programs without also compromising the State’s ability to provide necessary mental health services to other persons who depend on the State and may require hospitalization.
Plaintiff’s requested relief is unreasonable and inequitable given the demands of the State’s mental health budget and resources and would alter the essential nature of the State’s service. Accordingly, the State cannot be required to make the modification that Plaintiff seeks. See Bryson, 2006 U.S. Dist. LEXIS 71775, at *24-25 (entering judgment in favor of state defendants on ADA claim and finding that an immediate forced expansion of New Hampshire’s Medicaid waiver program and “a concomitant appropriation of the necessary state funds, sufficient to promptly include all class members in the [ ] program, would fundamentally alter the nature of the program”); Williams, 164 F. Supp. 2d at 638 (entering judgment in favor of state defendants on ADA claim because “[t]he immediate shift of resources sought by plaintiffs would have resulted in a fundamental alteration of the State’s provision of services within the meaning of Olmstead”); see also ARC, 427 F.3d at 621 (rejecting the plaintiffs’ integration mandate challenge because requiring the state to seek an increase in its Medicaid
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waiver program cap would amount to a fundamental alteration of the state’s programs); Sanchez, 416 F.3d at 1067 (same).15
Finally, Plaintiff’s desire to increase community-based treatment with no consideration for and to the exclusion and detriment of the hospitals is counterproductive to the Settlement Agreement, the aim of which is to improve the hospitals. By filing this motion and the proposed Amended Complaint, Plaintiff seeks to rewrite the Settlement Agreement and short-circuit the State’s VCA with the OCR. Even beyond violating the letter and spirit of the Settlement Agreement, the immediate relief that Plaintiff seeks would do far more harm than good by haphazardly attempting to implement the second issue (improved community placement) while diverting precious time and resources away from addressing the necessary first issue (hospital improvements). The Court should deny Plaintiff’s motion and reject Plaintiff’s invitation for the Court to assume the management of the State’s mental health system.
15 There is no evidentiary support for Plaintiff’s conclusory statement that “[p]roviding services to support a person . . . living in the community costs substantially less than providing services in an institutional setting.” (Pl.’s Br. at 22.) Overall, the State does not experience significant net cost savings as a result of moving disabled persons out of the hospitals and into the community. (Shelp Decl. ¶ 49.) See also Olmstead, 527 U.S. at 604 (quoting the United States’ own explanation in its Olmstead amicus curiae brief that “a ‘State . . . may experience increased overall expenses by funding community placements without being able to take advantage of the savings associated with the closure of institutions’”).
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3. Plaintiff Is Not Entitled to the Extensive Injunctive and Reformative Relief That It Seeks.
Even if, assuming arguendo, Plaintiff could state a claim for relief under the Fourteenth Amendment or the ADA, CRIPA limits the remedies that Plaintiff can obtain in this case. The CRIPA statutes provide that the DOJ may initiate an action only for “such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment” of constitutional rights, privileges, and immunities. 42 U.S.C. § 1997a(a) (emphasis added); Messier v. Southbury Training Sch., 916 F. Supp. 133, 137-38 (D. Conn. 1996) (contrasting the types of relief available to private plaintiffs with the Attorney General’s right under CRIPA to seek only “minimum corrective measures”).
In its motion, Plaintiff requests the following relief: (1) an order requiring that Defendants “promptly take such steps as are necessary to ensure that all individuals in the hospitals and those at risk of admission to the hospitals are served in the most integrated community settings appropriate with appropriate services, supports, and other necessary resources made available”; (2) an order requiring Defendants to “promptly place in the most integrated setting in the community and provide with appropriate services all those individuals in the hospitals who can be served in the community and who do not oppose such a placement”; (3) appointment of a monitor, paid for by the State; and (4) within 30
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days, the adoption of an “Action Plan” with specific timetables within which Defendants must achieve “reduction of the census of the hospitals” through “closure of Hospital beds” and increased placements in community settings. (Pl.’s Br. at 35-40.) These requests clearly demonstrate that Plaintiff is not seeking “minimum corrective measures,” but rather to expand Georgia’s mental health system beyond what is minimally required by the ADA and the Constitution. Plaintiff impermissibly seeks to usurp the functions of state officials and reduce them to “mere functionaries in carrying out the court’s commands.” Newman v. Alabama, 683 F.2d 1312, 1320 (11th Cir. 1982). Such relief is not authorized by CRIPA (or the ADA, see supra Part II.A.2(b)), and Plaintiff consequently cannot show a likelihood of success on either of its claims for relief.
Plaintiff’s failure to establish substantial likelihood of success on the merits on either cause of action upon which it bases its motion is especially important here because Plaintiff seeks mandatory injunctive relief. This failure requires denial of the motion without even considering the remaining three prerequisites. See Church, 30 F.3d 1332, 1342 (11th Cir. 1994); Penthouse Int’l, Ltd. v. Webb, 594 F. Supp. 1186, 1198 (N.D. Ga. 1984) (Shoob, J.).
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B. Plaintiff Has Not Demonstrated Any Actual and Imminent Irreparable Harm for Which a Preliminary Injunction Must Be Issued To Prevent.
Even if Plaintiff could establish a substantial likelihood of success on the merits, which it cannot, the absence of irreparable injury makes the preliminary injunctive relief it seeks improper. See Siegel, 234 F.3d at 1176 (“Significantly, even if Plaintiffs establish a likelihood of success on the merits, the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper.”). A showing of irreparable injury is “the sine qua non of injunctive relief.” Id. (quoting Ne. Fla. Chapter, 896 F.2d at 1285). It is also a requirement of the Settlement Agreement.
1. The Constitutional and Statutory Claims Asserted by Plaintiff Do Not Raise Immediate and Irreparable Harm.
Notwithstanding the indispensability of showing irreparable harm, Plaintiff contends that mere allegation of a constitutional infringement suffices, and “no further showing” should be necessary. (Pl.’s Br. at 32.) This contention, however, directly contradicts binding Eleventh Circuit precedent. In response to the exact same argument, the Eleventh Circuit has cautioned that even a violation of constitutional rights does not automatically constitute irreparable harm.16 See
16 “The only areas of constitutional jurisprudence where [the Eleventh Circuit has] said that an on-going violation may be presumed to cause irreparable injury
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Siegel, 234 F.3d at 1177 (“Plaintiffs also contend that a violation of constitutional rights always constitutes irreparable harm. Our case law has not gone that far, however.”).
Instead, the Eleventh Circuit has stressed that one who seeks a preliminary injunction must present facts that show a “real and immediate” threat of substantial, irreparable harm before a federal court will intervene. O’Shea v. Littleton, 414 U.S. 488, 494 (1974); see also Church, 30 F.3d at 1337 (“[A] party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.”). “[T]he asserted irreparable injury must be neither remote nor speculative, but actual and imminent.” Siegel, 234 F.3d at 1176 (citations and internal quotations omitted).
Plaintiff cannot show the constitutional harm required in Youngberg. So it relies on the ADA to provide a basis for its claim of immediate harm. Such reliance, however, is misplaced for two reasons. First, Plaintiff cites no authority for the proposition that the harm of discrimination under the ADA (the underpinning of any Olmstead claim) provides any basis for the type of immediate
involve the right of privacy and certain First Amendment claims establishing an imminent likelihood that pure speech will be chilled or prevented altogether.” Siegel, 234 F.3d at 1178 (emphasis added and citations omitted).
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and extraordinary relief sought in this compressed time frame. Second, that Plaintiff now has different policy preferences or an enhanced sense of immediacy than it did before January 2009 does not alleviate its burden of demonstrating irreparable harm. The only irreparable harm that Plaintiff has alleged in its discussion of this factor is that “[m]any, if not the majority of the individuals in the hospitals are institutionalized when they could be more appropriately served in a community-based setting.” (Pl.’s Br. at 33 (emphasis added).) Preliminary injunctions, however, are an inappropriate instrument for addressing policy aspirations such as how one can be “more appropriately served”; preliminary injunctions are appropriate only to prevent irreparable harm that is “actual and imminent.” Siegel, 234 F.3d at 1176.
Notably, the alleged injury caused by lack of community placements, is covered by the VCA, and the process of implementing the VCA’s requirements is ongoing. The fact that Plaintiff’s current view—that patients could be “more appropriately served in a community-based setting”—was specifically excluded from the Settlement Agreement cuts against Plaintiff’s argument that the issue is now so important as to justify “extraordinary and drastic” preliminary injunctive relief. See, e.g., Ne. Fla. Chapter, 896 F.2d at 1285.
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Furthermore, even if by some tortured interpretation the Settlement Agreement could be deemed to include the ADA/Olmstead community-treatment issues, in such case Plaintiff agreed that substantial compliance in this area is only required at the end of the five-year term. (Settlement Agreement [dkt. 7-2] § V.E.) The decision to allow the State five years to comply “undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable injury.” Tough Traveler, Ltd. v. Outbound Products, 60 F.3d 964, 968 (2d Cir. 1995) (citations and internal quotations omitted); see Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 903 (7th Cir. 2001) (“Delay in pursuing a preliminary injunction may raise questions regarding the plaintiff's claim that he or she will face irreparable harm if a preliminary injunction is not entered.”); Palm Beach County Envtl. Coalition v. Florida, 587 F. Supp. 2d 1254, 1257 (S.D. Fla. 2008) (stating that delay in both seeking injunctive relief when the substantial issues were known to the plaintiffs and failure to timely serve defendants “belie[] plaintiffs’ argument that there will be immediate injury absent injunctive relief”); Golden Bear Int’l, Inc. v. Bear U.S.A., Inc., 969 F. Supp. 742, 748 (N.D. Ga. 1996) (Camp, J.) (“Preliminary injunctions are issued to prevent imminent and inevitable injury to the movant, and undue delay ‘speaks volumes about whether a plaintiff is being irreparably injured.’”) (citation omitted).
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The delay can best be explained as evidence of Plaintiff’s true objective.
Plaintiff’s strategy of ignoring the Settlement Agreement and the VCA to test its
new theory of the ADA and CRIPA is laid transparent by Plaintiff’s proposed
“Action Plan.” (See Pl.’s Br. at 37-40.) That “Action Plan” and Plaintiff’s request
for a monitor to implement it relate entirely to the broad ADA/Olmstead issues of
moving patients to a community placement and do not specifically address the four
areas of choking and aspiration, suicide risk, patient assault, and emergency
medical codes. (See id.)
2. Plaintiff’s Alleged Systemic Violations Do Not Constitute Imminent Harm.
With regard to any actual and imminent issues of violence or death, Plaintiff has not alleged that any particular patient is in imminent danger.17 If Plaintiff had
done so, the State of Georgia would certainly move on its own accord without 17 In fact, the proposal that Plaintiff seeks to be implemented immediately risks far more harm to patients in Georgia’s psychiatric hospitals than do current actions of the State. The State of Georgia is actively working to develop additional community-based programs so that patients can be moved there. The fact, though, is that there are not yet enough such programs to accommodate all individuals on the Olmstead list, and the Olmstead decision itself recognizes the unrealistic nature of the immediate relief that Plaintiff seeks. 527 U.S. at 604-05 (“[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk. Nor is it the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting . . . .”) (emphasis added); see also Oregon, 782 F. Supp. at 514 (“[P]remature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at [the hospital].”).
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delay to protect that patient, without requiring the intervention of this Court. On the issue of actual harm to any patient in the State’s care, Plaintiff simply “takes us into the area of speculation and conjecture,” O’Shea, 414 U.S. at 497, and does nothing but recite prior incidents, most of which occurred before the parties entered into the Settlement Agreement. Such incidents do not support imposition of a preliminary injunction:
“[A] prospective remedy will provi de no relief for an injury that is, and likely will remain, entirely in the past.” Although “past wrongs are evidence bearing on whether ther e is a real and immediate threat of repeated injury, . . . [p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Church, 30 F.3d at 1337 (citations omitted). Because it is “wholly conjectural whether another occasion might arise,” Plaintiff did not and cannot show “‘sufficient immediacy and reality’ to [its] allegations of future injury to warrant invocation of the jurisdiction of the District Court.” O’Shea, 414 U.S. at 497. Plaintiff’s inability to show the type of “sufficient immediacy and reality” required for a preliminary injunction is borne out by the fact that the State of Georgia is addressing the four areas for which substantial compliance is currently expected pursuant to the Settlement Agreement. (Manning Decl. ¶¶ 14-19; Shelp Decl. ¶¶ 8, 58; Singh Decl. ¶¶ 6, 11, 48; Manning Decl. ¶¶ 11, 46.) Furthermore, in regard to Plaintiff’s systemic policy redirection of more community treatment—
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which it now asks this Court to impose notwithstanding no adjudication on the merits—the State itself is already moving in that direction at a more than reasonable pace. (Shelp Decl. ¶¶ 36-48.)
The State continues to welcome the opportunity to address the broader policy issues with both Plaintiff and the advocacy community in a collaborative, non-adversarial approach. This Court is an inappropriate forum for addressing these issues at this juncture. See 42 U.S.C. § 1997g (stating Congressional intent of CRIPA that conditions be corrected not just by litigation, “but also by the voluntary good faith efforts of agencies of Federal, State, and local governments”); see also id. § 1997a(a) (stating that DOJ may initiate an action only for “such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment” of constitutional rights, privileges, and immunities) (emphasis added); Messier v. Southbury Training Sch., 916 F. Supp. 133, 137-38 (D. Conn. 1996).
In short, Plaintiff has not alleged imminent harm to any particular patient in Georgia’s psychiatric hospitals. (See Manning Decl. ¶ 11.) Additionally, Plaintiff’s broad policy redirection to encourage more community treatment does not meet the test for irreparable injury, and the issuance of an injunction on this basis would violate the admonition that preliminary injunctions must be “narrowly
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tailored to fit specific legal violations, because the district court should not impose unnecessary burdens on lawful activity.” Cumulus Media, Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d 1167, 1178 (11th Cir. 2002) (citation omitted).
C. The Damage That an Injunction Will Cause the State of Georgia in Continuing Its Improvement of the State Mental Health System Far Outweighs the Threatened Injury to Plaintiff.
The balancing of the equities weighs greatly in favor of the State of Georgia. First, in balancing the hardships, a court should consider whether the injunctive relief being sought is prohibitory or mandatory, as is the case here. See generally 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2948.2 (2d ed. 1995 & Supp. 2009). As previously noted, “[o]nly in rare instances is the issuance of a mandatory preliminary injunction proper.” Harris, 596 F.2d at 680. “Mandatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.” Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976). In addition, where, as here, the preliminary injunction would give Plaintiff all or most of the relief to which it would be entitled if it were successful at trial on the merits, preliminary relief may be “excessively burdensome.” Wright & Miller, supra, § 2948.2. Plaintiff in this case is not simply seeking to stop the State of Georgia from
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engaging in a particular activity, but rather seeks to use the Court’s power to impose affirmative requirements on the State that reflect Plaintiff’s newfound policy preferences for Georgia’s mental health programs.
Indeed, Plaintiff admits that its motion and the relief sought are guided by its desire to affect the State budget process. (Pl.’s Br. at 3; Tr. of 2/4/2010 Tel. Conf. [dkt. 61] at 21.) See Taub v. Kentucky, 842 F.2d 912, 919 (6th Cir. 1988) (“A sovereign must have the authority to determine how tax revenues are to be spent, or the power to tax is illusory. Thus, state sovereignty extends to the total conduct of a state’s fiscal affairs.”); Dawson v. Childs, 665 F.2d 705, 709 (5th Cir. 1982) (“recogniz[ing] the need for judicial restraint in matters involving a state’s fiscal affairs” and emphasizing that “[u]nder our federalist system, the state governments no less than the federal government possess certain inalienable powers that the other may not encroach upon”) (citation omitted). Plaintiff here seeks what the Eleventh Circuit rejected in Newman: to make State officials “mere functionaries in carrying out the court’s commands.” 683 F.2d at 1320.
Second, even greater caution must be exercised when a government is involved, particularly when the injunction will require “‘detailed and continuous supervision’” of the government’s conduct. Brown, 187 F.2d at 24. In the mental health context specifically, the U.S. Supreme Court has warned that “interference
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by the federal judiciary with the internal operations of these institutions should be minimized.” Youngberg, 457 U.S. at 322. This is true for at least two reasons.
1. “Federal courts operate according to institutional rules and procedures that are poorly suited to the management of state agencies.” Angela R. v. Clinton, 999 F.2d 320, 326 (8th Cir. 1993). Accordingly, courts “should refrain from micromanaging the state and its agencies.” United States v. Missouri, 535 F.3d 844, 851 (8th Cir. 2008).
2. As the U.S. Supreme Court has cautioned, principles of federalism must be respected:
Where, as here, the exercise of aut hority by state officials is att acked, federal courts must be constantly m indful of the “special delicacy of the adjustment to be preserved be tween federal equitable power and State administration of its own la w” . . . . When the frame of reference moves . . . to a system of federal courts representing the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate c onsideration must be given to principles of federalism in determining the av ailability and scope of equitable relief. Rizzo v. Goode, 423 U.S. 362, 378-79 (1976) (citations omitted). These principles apply when “injunctive relief is sought against . . . those in charge of an executive branch of an agency of state or local governments.” Id. at 380. Plaintiff contends that the balancing of the equities favors it because “[p]roviding services to support a person with mental illness living in the
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community costs substantially less than providing services in an institutional setting.” (Pl.’s Br at 33.) But, ironically, in Olmstead, the United States—Plaintiff in this case—alerted the Supreme Court to the fact that “a comparison so simple overlooks costs the State cannot avoid; most notably, a ‘State . . . may experience increased overall expenses by funding community placements without being able to take advantage of the savings associated with the closure of institutions.’” 527 U.S. at 604 (quoting Br. for U.S. as Amicus Curiae at 21).
Indeed, the Olmstead decision itself recognizes “the federalism costs inherent in referring state decisions regarding the administration of treatment programs and the allocation of resources to the reviewing authority of the federal courts,” 527 U.S. at 610 (Kennedy, J. concurring), and consequently, respect should be granted to states to determine how best to provide appropriate community-based mental health programs “taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 607 (plurality opinion). “It is of central importance, then, that courts apply [the Olmstead] decision with great deference to the medical decisions of the responsible, treating physicians and, as the Court makes clear, with appropriate deference to the program funding decisions of state policymakers.” Id. at 610 (Kennedy, J., concurring).
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In violation of these principles, Plaintiff seeks to impose its particular policy preferences for more community treatment not through a collaborative process but through edicts from a monitor (whom Plaintiff additionally requests to be paid with State funds (see Pl.’s Br. at 36)), notwithstanding that (1) the Settlement Agreement the parties signed one year ago applies only to improving Georgia psychiatric hospitals; the VCA addresses Olmstead issues; and, more importantly, (2) Plaintiff itself admits that the federal Circuit Courts of Appeals “have not settled on a single standard for determining what makes a proper Olmstead plan.” (Pl.’s Br. at 21 (citing Sanchez, 416 F.3d at 1051, and Frederick L. v. Dep’t of Pub. Welfare of Pa., 364 F.3d 487 (3d Cir. 2004) (emphasis added).) See also Olmstead, 527 U.S. at 608-09 (Kennedy, J., concurring) (“It is a continuing challenge, though, to provide the care in an effective and humane way, particularly because societal attitudes and the responses of public authorities have changed from time to time.”).
The two cases that Plaintiff cites in its admission of no single standard both underscore that “federal courts should accord deference to state policymakers’ programmatic and political funding decisions regarding mental health funding.” Frederick L., 364 F.3d at 493; see Sanchez, 416 F.3d at 1067 (quoting from Olmstead that “a State must have sufficient leeway ‘to maintain a range of
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facilities and to administer services with an even hand’”). “It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” Youngberg, 457 U.S. at 321; see also 42 U.S.C. § 1997i (stating that provisions of CRIPA “shall not authorize promulgation of regulations defining standards of care”).
Finally, it is important to note that the typical purpose of a preliminary injunction is to preserve the status quo pending final determination of the lawsuit. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). As the former Fifth Circuit has emphasized, “the most compelling reason in favor of [granting a preliminary injunction] is the need to prevent the judicial process from being rendered futile by defendant’s action or refusal to act.” Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974) (citing 11 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2947 (1st ed. 1973)). “[O]nly those injuries that cannot be redressed by the application of a judicial remedy after a hearing on the merits can properly justify a preliminary injunction.” Canal Auth., 489 F.2d at 573. As Plaintiff would obtain the same relief after a trial on merits, the judicial process will not be rendered “futile” if a preliminary injunction is not granted. In contrast, granting a preliminary injunction would risk futility by giving Plaintiff all or most of the substantive relief it seeks on the merits. “[T]here is no power, the
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exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case than the issuing of [an] injunction.” Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 280 F.3d 1364, 1371 (11th Cir. 2002) (quoting Truly v. Wanzer, 46 U.S. (5 How.) 141, 142 (1847)).
D. The Issuance of an Injunction at This Time Would Not Serve the Public Interest.
It is in the public interest that the State of Georgia should be allowed time to improve its mental health system, as it is currently, by employing its expertise of the best way to allocate resources without harming the multitude of other social services programs run by the State, including services for the elderly, public education, child care regulation, public health, disability programs, child support enforcement, and foster care. Cf. Olmstead, 527 U.S. at 612-13 (Kennedy, J., concurring) (“Grave constitutional concerns are raised when a federal court is given the authority to review the State’s choices in basic matters such as establishing or declining to establish new programs.”). See generally Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L.J. 1265, 1305 (“Even if new funds are appropriated, that impact may have costs elsewhere.”).
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First, a preliminary injunction will eliminate the opportunity for the newly created DBHDD and its Commissioner, Dr. Shelp, to continue implementing their plan of innovative problem solving needed to guide a complex and intricate system. Dr. Shelp has taken great strides to improve the State’s mental health system and is already developing and implementing policies that aim to transition patients to community placements. (See generally Shelp Decl.) Dr. Shelp should be allowed to continue this program without Plaintiffs’ interference at this early stage of the litigation and in the beginning of his tenure as Commissioner.
In similar cases, district courts in this Circuit have allowed government officials to continue their programs without the heavy hand of federal oversight. For example, in the class action challenge to Georgia’s child welfare system during the past decade, Judge Shoob refused to grant a preliminary injunction and impose a monitor on the State of Georgia, emphasizing that the then-new Department of Human Resources Commissioner should be allowed the opportunity to direct the improvements himself:
The Court concludes that, at this time, the requested prelim inary injunction will not serve the public interest and may actually cause more harm than good . The Court is im pressed with the dedication and competence of Commissioner Martin. He has headed DFCS for just over a year and shoul d be given an opport unity, without mandate from this Court, to do what he says he will do.
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Kenny A. v. Barnes, 1:02-CV-1686-MHS, slip op. at 5 (N.D. Ga. Dec. 12, 2002) (emphasis added).18 Likewise, in the 1970s class action challenge to conditions in Georgia prisons, Judge Alaimo did not appoint a monitor until after consent decrees were entered. See Guthrie v. Evans, 93 F.R.D. 390, 392 (S.D. Ga. 1981) (Alaimo, J.) (discussing appointment of monitor following consent decree).
Second, Dr. Shelp is supported by many in the advocacy community, listens to their concerns, has the support of Governor Perdue, and is working diligently with the General Assembly to obtain and direct funding to rectify Plaintiff’s concerns. There is no reason for a preliminary injunction to issue when the changes that Plaintiff seeks are being implemented by the DBHDD’s Commissioner Dr. Shelp, who is the type of person that Plaintiff and advocates would want as a monitor, and by Dr. Singh, who is the exact person that Plaintiff recommended (and who has served as a monitor in other states). (Shelp Decl. ¶¶ 8, 10; Singh Decl. ¶ 4.)
Third, granting a preliminary injunction at this stage also would undermine the DBHDD’s current efforts to hire and retain the most competent and highly
18 Similarly, in the Fulton County Jail case, Foster v. Fulton County, Georgia, No. 1:99-CV-900-MHS (filed Apr. 8, 1999), Judge Shoob did not receive reports from the monitor until after final settlement by the parties. See R. Robin McDonald, Judge Orders Fulton to Fix “Disgraceful” County Jail, Fulton County Daily Report, Mar. 16, 2000 (noting monitor toured jail after final settlement was signed).
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educated staff. The State of Georgia is concerned that if the Court intervenes at this stage—especially with intervention that results in a monitor—there will occur a downward spiral complicating the DBHDD’s potential to improve mental health in Georgia. (Shelp Decl. ¶¶ 50-54, 57; Manning Decl. ¶¶ 44-46; Singh Decl. ¶¶ 48-50.) If a state agency cannot attract and hold quality employees, no federal court order can provide patients the treatment they deserve.
As discussed above, federal courts “must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’” Rizzo, 423 U.S. at 378 (quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951)). This Court in the past has understood and judiciously balanced this “special delicacy” and, along with the other district courts in this Circuit, has recognized that monitors typically should not be appointed until after final judgment or entry of a consent decree after settlement. See, e.g., Reynolds v. Ala. Dep’t of Transp., 10 F. Supp. 2d 1263, 1267 (N.D. Ala. 1998) (discussing appointment of monitor after entry of consent decree); United States v. Bd. of Pub. Instruction, 977 F. Supp. 1202, 1227 (S.D. Fla. 1997) (same); Fambro v. Fulton County, 713 F. Supp. 1426, 1427 (N.D. Ga. 1989) (Forrester, J.) (discussing monitor’s report following consent decree);
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Mobile County Jail Inmates v. Purvis, 581 F. Supp. 222, 226 (S.D. Ala. 1984) (appointing monitor following finding of contempt).
In short, Georgia should be permitted to make improvements itself without the constraints of a preliminary injunction or a monitor directing its activities. That is exactly what Congress intended when, in enacting CRIPA, it stressed,
[I]t is advisable to give States the primary responsibility for correcting unconstitutional conditions in their ow n institutions and to attem pt to reach an agreement on the necessary remedies to correct the alleged conditions through inform al and voluntary methods. Where the Attorney General recognizes that there are alternative courses of remedy by which the institution coul d correct the alleged conditions, it is the intention that the course generally be followed which is preferred by the inst itution itself. In the face of good-faith efforts by State and local officials to com ply with the constitutionally required minima, the committee deems it prefer able to give such officials the opportunity to fashion their own specific solutions. S. Rep. No. 96-416, at 32 (1980); accord H. Rep. 96-897, at 13 (1980). Here, too, Dr. Shelp and the DBHDD should be afforded the opportunity to fashion their own specific solutions. What Dr. Shelp and the DBHDD need are time and resources to continue their program of building a continuum of care to best serve the people of Georgia in the most appropriate locations. Governor Perdue and the Georgia General Assembly are providing the resources, but Plaintiff’s motion, if adopted, would deny Dr. Shelp and the DBHDD the critical time they need to improve Georgia’s mental health system, would divert fiscal resources, and would imperil
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the current progress made by the State in good faith compliance with the

Settlement Agreement and the VCA.

CONCLUSION

For the reasons set forth above, Defendants respectfully request that the

Court DENY Plaintiff’s Motion for Immediate Relief (Preliminary Injunction).

Respectfully submitted, this 22nd day of February, 2010.

THURBERT E. BAKER Attorney General Georgia Bar No. 033887
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
MARK J. CICERO Assistant Attorney General Georgia Bar No. 125686
JASON S. NAUNAS Assistant Attorney General Georgia Bar No. 142051
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ Mark H. Cohen MARK H. COHEN Special Assistant Attorney General Georgia Bar. No. 174567 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
/s/ Josh Belinfante
(with express permission by Mark H. Cohen)
JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsLaw LLC 999 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinslawllc.com

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Case 1:10-cv-00249-CAP Document 91 Filed 09/24/10 Page 78 of 79
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Mark H. Cohen Mark H. Cohen (Georgia Bar No. 174567)
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Case 1:10-cv-00249-CAP Document 91 Filed 09/24/10 Page 79 of 79
CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Defendants’ Response in Opposition to Plaintiff’s Motion for Immediate Relief (Preliminary Injunction) was electronically filed with the Clerk of Court using the CM/ECF system, which automatically serves notification of such filing to all counsel of record. This 22nd day of February, 2010.
/s/ Mark H. Cohen Mark H. Cohen (Georgia Bar No. 174567)
74

 
 Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

_______________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

JOINT MOTION TO ENTER THE PARTIES’ SETTLEMENT AGREEMENT

Plaintiff United States and Defendants State of Georgia, et al., having

entered into a Settlement Agreement, jointly move this Court to enter the

Proposed Order Entering the Parties’ Settlement Agreement pursuant to

Federal Rule of Civil Procedure 41(a)(2). The Settlement Agreement is

attached as Exhibit A.

The Parties respectfully request that the Court conditionally dismiss

the above-titled action pursuant to Federal Rule of Civil Procedure 41(a)(2)

and retain jurisdiction to enforce the Settlement Agreement. See Am.

Disability Ass’n v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir. 2002) (“[I]f the

district court either incorporates the terms of a settlement into its final order

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 2 of 50
of dismissal or expressly retains jurisdiction to enforce a settlement, it may thereafter enforce the terms of the parties’ agreement.”).
Consequently, the United States moves this Court to withdraw the United States’ Motion for Immediate Relief [Doc. No. 90], and the Parties jointly move this Court to vacate the discovery and hearing set for November 8, 2010, that the Court ordered in Doc. Nos. 42 & 93.
A proposed order is attached. Respectfully submitted,
2

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 3 of 50

FOR THE UNITED STATES:

SALLY QUILLIAN YATES United States Attorney Northern District of Georgia

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney
General

JUDY C. PRESTON Acting Chief Special Litigation Section

MARY R. BOHAN Deputy Chief Special Litigation Section

TIMOTHY D. MYGATT Special Counsel Special Litigation Section

/s/ (Express Permission)___ AILEEN BELL HUGHES
[GA 375505] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

/s/ Robert A. Koch_________ ROBERT A. KOCH [OR 072004]
MAX LAPERTOSA [IL 6276608]
RICHARD FARANO [DC 424225]
AARON S. FLEISHER [NY 4431052]
JEFFREY MURRAY [MD] JENNIFER MONDINO [NY4141636] Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-0212 Email: Robert.Koch@usdoj.gov
3

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 4 of 50

FOR THE STATE OF GEORGIA:

THURBERT E. BAKER Attorney General Georgia Bar No. 033887

DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
MARK J. CICERO Assistant Attorney General Georgia Bar No. 125686
JASON S. NAUNAS Assistant Attorney General Georgia Bar No. 142051
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ (Express Permission)___ MARK H. COHEN Special Assistant Attorney General Georgia Bar No. 174567 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
/s/ (Express Permission)___ JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsFreed 999 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinsfreed.com

4

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 5 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

_______________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

[PROPOSED] ORDER ENTERING THE PARTIES’ SETTLEMENT AGREEMENT

For good cause shown, and in consideration of the Parties’ Joint Motion

to Enter the Parties’ Settlement Agreement, the Court hereby GRANTS the

Joint Motion; dismisses the United States’ Motion for Immediate Relief [Doc.

No. 90]; conditionally dismisses the above-titled action pursuant to Federal

Rule of Civil Procedure 41(a)(2); retains jurisdiction to enforce the Settlement

Agreement, which was filed with the Court and is attached as Exhibit A, see

Am. Disability Ass’n v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir. 2002); and

vacates the discovery and hearing set for November 8, 2010, ordered by the

Court in Doc. Nos. 42 & 93.

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 6 of 50
SO ORDERED this ____ day of ______________, 2010. ___________________________ CHARLES A. PANNELL JR. United States District Judge

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 7 of 50
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Century Schoolbook, 13-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch________ ROBERT A. KOCH Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 8 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al., )

)

Defendants.

)

CIVIL ACTION NO. 1:10-CV-249-CAP

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of October, 2010, I electronically filed the JOINT MOTION TO ENTER THE PARTIES’ SETTLEMENT AGREEMENT with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the attorneys of record:

Mark J. Cicero, Esq. Jason S. Naunas, Esq. Assistant Attorneys General State Law Department
Mark H. Cohen, Esq. Lindsey Elisa Bowen, Esq. Jeremy Patrick Burnette, Esq. Steven J. Hewitson, Esq. Kevin Gregory Meeks, Esq. Lynette Eaddy Smith, Esq. Jaime L. Theriot, Esq. Troutman Sanders LLP

Joshua H. Norris, Esq. Georgia Advocacy Office
Ira Burnim, Esq. Andrew S. Penn, Esq. Lewis Bossing, Esq. Bazelon Center
for Mental Health Law
Kenneth S. Canfield, Esq. Doffermyre Shields Canfield &
Knowles, LLP

Josh Belinfante, Esq. Jeremy U. Littlefield, Esq. RobbinsFreed

/s/ Robert A. Koch_______

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 9 of 50
Exhibit A

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 10 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

_________________________________________ )

CIVIL ACTION NO. 1:10-CV-249-CAP

SETTLEMENT AGREEMENT

I. Introduction
A. The United States brought this action by the filing of a complaint seeking declaratory and injunctive relief against Defendants based upon alleged violations of the Title II of Americans with Disabilities ADA, codified at 42 U.S.C. § 12101 (“ADA”), and implementing regulations at 28 C.F.R. Part 35, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and implementing regulations at 45 C.F.R. Part 84 (“Section 504”).

B. In order to resolve all issues pending between these parties without the expense, risks, delays, and uncertainties of a trial and any appeals that might follow such a trial, the United States and Defendants agree to the terms of this Settlement Agreement as stated below.

C. On January 15, 2009, the United States Department of Justice (“DOJ”) and the State entered into a settlement agreement which the United States District Court for the Northern District of Georgia entered as an order of the Court on September 24, 2010, in Civil Action No. 1:09-CV119-CAP. This Settlement Agreement does not affect the validity of the January 15, 2009 agreement between the parties.

D. On July 1, 2008, the State entered a Voluntary Compliance Agreement (“VCA”) with the United States Department of Health and Human Services’ Office for Civil Rights (“OCR”). This agreement supersedes the VCA.

Page 1 of 40

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 11 of 50
E. By entering into this Settlement Agreement, Defendants do not admit to the truth or validity of any claim made against them by the United States. Defendants also do not speak for the Georgia General Assembly, which has the power under the Georgia Constitution and laws to determine the appropriations for, and to amend laws respecting, the State of Georgia’s programs for mental health. However, Defendants acting under their existing authority agree that it will be a condition of their conduct of the mental health program covered by this Settlement Agreement to comply with the Settlement Agreement.
F. If the United States seeks a judicial remedy for Defendants’ noncompliance with the Settlement Agreement in accordance with Section V.C., and at any stage of subsequent enforcement proceedings Defendants or their successors assert insufficient funds or the legislature’s amendment or non-amendment of state law as a legal excuse, the United States may rescind its consent to the Settlement Agreement.
G. All parties acknowledge that the Court has subject-matter jurisdiction over this case, and authority to enter this Settlement Agreement and to enforce its terms. Defendants acknowledge they are subject to personal jurisdiction of the Court, and that venue is proper in this Court.
H. The Defendants in these actions are the State of Georgia and, in their official capacities: the Governor of the State of Georgia, the Commissioner of the Department of Behavioral Health and Developmental Disabilities, and the Commissioner of the Georgia Department of Community Health.
I. No person or entity is intended to be a third-party beneficiary of the provisions of this Settlement Agreement for purposes of any other civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Settlement Agreement in any separate action. This Settlement Agreement is not intended to impair or expand the right of any person or organization to seek relief against the State or their officials, employees, or agents.
Page 2 of 40

Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 12 of 50
J. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 1345; 42 U.S.C. § 1997; and 42 U.S.C. §§ 1213112132. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
K. Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, and implementing regulations at 28 C.F.R. Part 35, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and implementing regulations at 45 C.F.R. Part 84 (“Section 504”), require, among other provisions, that, to the extent the State offers public services to qualified individuals with disabilities, such services shall be provided in the most integrated setting appropriate to meet the needs of such qualified individuals with disabilities. Accordingly, throughout this document, the Parties intend that the principle of self-determination is honored and that the goals of community integration, appropriate planning and services to support individuals at risk of institutionalization are achieved.
II. Definitions
As used in this Settlement Agreement, the following definitions apply to the terms below, without regard to case, gender, tense, or number:
A. “Assisted living facility,” for purposes of this Agreement, shall mean a residential living arrangement that serves more than 4 persons unrelated to the proprietor in which residential amenities are combined, as needed, with assistance with activities of daily living and personal care.
B. “DBHDD” shall mean the Georgia Department of Behavioral Health and Developmental Disabilities.
C. “Developmental Disability” shall mean a severe, chronic disability of an individual that: (1) is attributable to a significant intellectual disability or combination of significant intellectual disability and physical impairments; (2) is manifested before the individual attains age 22; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in three or more areas of major life activity; and (5) reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. For purposes of this Agreement, this definition also includes any individual who is served in a State Hospital as of the Effective Date of this Agreement on a ward or facility designated for individuals with developmental
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disabilities, even if the individual does not otherwise meet the above definition.
D. “DOJ” shall mean the United States Department of Justice.
E. “Effective Date” shall be the date on which this Settlement Agreement is approved and entered by the Court pursuant to Federal Rule of Civil Procedure 41(a)(2).
F. “Family supports” shall mean an array of goods and services aimed at providing families with the highly individualized support needed to prevent institutionalization and continue to care for a family member with developmental disabilities at home.
G. “Home and Community Based Waiver Services” or “State’s HCBS Waiver Program” shall mean the program approved by the Centers for Medicare and Medicaid for the purpose of providing services in community settings for eligible persons with developmental disabilities who would otherwise be served in Medicaid Intermediate Care Facilities for the Mentally Retarded (ICF/MR’s). For purposes of this Settlement Agreement, “State’s HCBS Waiver Program” includes the services of the COMP and NOW waivers as being implemented on the execution date of this agreement.
H. “Informed choice” shall mean a voluntary, well-considered decision that an individual, or where legally required, the individual’s legal guardian, makes on the basis of appropriate options, information, and understanding.
I. “OCR” shall mean the United States Department of Health and Human Services’ Office of Civil Rights.
J. “Parties” shall mean the United States and the State of Georgia.
K. “Serious and persistent mental illness” or “SPMI” shall mean a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria that has occurred within the last year, has resulted in functional impairment which substantially interferes with or limits one or more major life activities, and has episodic, recurrent, or persistent features.
L. “State” or “Georgia” shall mean the State of Georgia, its agencies, and its departments; the State’s employees, agents, or assigns; and their successors or designees.
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M. “State Hospitals” shall mean the facilities, services, and programs supplied or provided to individuals admitted to the hospital at Georgia Regional Hospital at Atlanta (“GRHA”), Georgia Regional Hospital at Savannah (“GRHS”), Central State Hospital (“CSH”), Southwestern State Hospital (“SWSH”), West Central Georgia Regional Hospital (“WCGRH”), Northwest Georgia Regional Hospital (“NWGRH”), and East Central Regional Hospital (“ECRH”).
N. “United States” shall mean DOJ and OCR and their employees, agents, or assigns, and their successors or designees.
III. Substantive Provisions
As part of this Agreement to settle and resolve pending litigation between the United States and the State of Georgia, the Parties hereto agree to the measures set forth below:
A. Serving People With Developmental Disabilities In The Community
1. Cessation of Admissions to the State Hospitals
a. By July 1, 2011, the State shall cease all admissions to the State Hospitals of all individuals for whom the reason for admission is due to a primary diagnosis of a developmental disability.
b. The State will make any necessary changes to administrative regulations and take best efforts to amend any statutes that may require such admissions.
2. Enhancement of Community Services
a. The target population for the community services described in this Section (III.A) shall be individuals with a primary diagnosis of a developmental disability who are currently hospitalized in the State Hospitals and those who are at risk of hospitalization in the State Hospitals. Inclusion in the target population does not guarantee or create a right to receipt of services.
b. HCBS Waiver Schedule & Family Supports
i. Pursuant to the schedule set forth below, the State shall provide to individuals with developmental
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disabilities in the target population the waiver services provided in the State’s HCBS Waiver Program as of the Effective Date of this agreement.
(A) By July 1, 2011, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community and the State shall create 150 waivers to accomplish this transition. In addition, the State shall move from the State Hospitals to the community all individuals with an existing and active waiver as of the Effective Date of this Agreement, provided such placement is consistent with the individual’s informed choice. The State shall provide family supports to a minimum of 400 families of people with developmental disabilities.
(B) Between July 1, 2011, and July 1, 2012, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 450 families of people with developmental disabilities.
(C) Between July 1, 2012, and July 1, 2013, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide
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family supports to an additional 500 families of people with developmental disabilities.
(D) Between July 1, 2013, and July 1, 2014, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 500 families of people with developmental disabilities.
(E) Between July 1, 2014, and July 1, 2015, the State shall attempt to move any remaining individuals with developmental disabilities from the State Hospitals to the community. The State shall create up to 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the hospitalization of individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 500 families of people with developmental disabilities.
(F) Any persons with developmental disabilities remaining in State Hospitals on July 2, 2015, shall be served in the most integrated setting appropriate to their needs.
ii. Community Living Options
(A) The State shall serve individuals in the target population receiving HCBS Waiver Program services in their own home or their family’s home consistent with each individual’s informed choice. In order to accomplish this, funds shall be provided to persons with developmental disabilities
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through the State’s HCBS Waiver Program, available federal funds, and/or State funds as necessary.
(B) Individuals in the target population shall not be served in a host home or a congregate community living setting unless such placement is consistent with the individual’s informed choice. For individuals in the target population not served in their own home or their family’s home, the number of individuals served in a host home as defined by Georgia law shall not exceed two, and the number of individuals served in any congregate community living setting shall not exceed four.
(C) Individuals receiving the State’s HCBS Waiver Program services shall not be served in a skilled nursing facility, intermediate care facility, or assisted living facility unless service in such a facility is in accordance with the individual’s informed choice.
iii. Support coordination shall be provided to all waiver participants. For the purposes of this agreement, support coordination shall mean:
(A) Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Service Plans, as required by the State’s HCBS Waiver Program, that are individualized and person centered;
(B) Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, and other services identified in the Individual Service Plan; and
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(C) Monitoring the Individual Service Plan to make additional referrals, service changes, and amendments to the plans as identified as needed.
iv. The State may provide funding for the obligations set forth in this schedule through any legal means, including the State’s current money-follows-theperson program.
c. Crisis Response i. Mobile Crisis Teams (A) By July 1, 2012, the State will have six mobile crisis teams for persons with developmental disabilities. ii. Crisis Respite Homes (A) Crisis Respite Homes provide respite services to persons with developmental disabilities and their families. Each Crisis Respite Home will have four beds for use by individuals with developmental disabilities. (B) Pursuant to the schedule set forth below, the State will establish 12 Crisis Respite Homes by July 1, 2014. (1) By July 1, 2012, the State will have five Crisis Respite Homes for individuals with developmental disabilities. (2) By July 1, 2013, the State will establish an additional four Crisis Respite Homes for individuals with developmental disabilities. (3) By July 1, 2014, the State will establish an additional three Crisis
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Respite Homes for individuals with developmental disabilities.
3. Individuals with Developmental Disabilities and Forensic Status
a. By July 1, 2013, the State shall create a program to educate judges and law enforcement officials about community supports and services for individuals with developmental disabilities and forensic status.
b. Individuals with developmental disabilities and forensic status shall be included in the target population and the waivers described in this Section, if the relevant court finds that community placement is appropriate. This paragraph shall not be interpreted as expanding the State’s obligations under paragraph III.A.2.b.
4. Assessing Quality
a. By July 1, 2013, the State will conduct an audit of community providers of waiver services.
b. By the Effective Date of this agreement, the State shall use a CMS approved Quality Improvement Organization (“QIO”) or QIO-like organization to assess the quality of services by community providers.
c. To evaluate the provision of care by community providers of waiver services, on an annual basis, the State may:
i. Conduct face-to-face person centered interviews with individuals receiving developmental disability services;
ii. Conduct assessments of care of provider services, including support coordination agencies;
iii. Collect program participant feedback on the quality of the system through participation in the National Core Indicator Survey; and
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iv. Collect provider performance data through the use of specific federal and state performance indicators.
d. The State shall assess compliance on an annual basis and shall take appropriate action based on each assessment.
B. Serving Persons With Mental Illness In The Community
1. Target Population
a. The target population for the community services described in this Section (III.B) shall be approximately 9,000 individuals by July 1, 2015, with SPMI who are currently being served in the State Hospitals, who are frequently readmitted to the State Hospitals, who are frequently seen in Emergency Rooms, who are chronically homeless, and/or who are being released from jails or prisons.
b. Individuals with serious and persistent mental illness and forensic status shall be included in the target population, if the relevant court finds that community service is appropriate.
c. Pursuant to the VCA, the State established a Mental Health Olmstead List. The State shall ensure that all individuals on the Mental Health Olmstead List as of the Effective Date of this Agreement will, if eligible for services, receive services in the community in accordance with this Settlement Agreement by July 1, 2011. The Parties acknowledge that some individuals on the Mental Health Olmstead List are required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 et seq. The Parties further acknowledge that such registration makes placement in the community more difficult. The Parties may by written consent extend the application of the date set forth in this paragraph as it applies to such individuals. The written consent described in this paragraph will not require Court approval.
d. The State shall include any individual in the target population who otherwise satisfies one of the eligibility criteria above and who has a co-occurring condition, such as substance abuse disorders or traumatic brain injuries.
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2. To comply with this Settlement Agreement, the State shall provide the following services to individuals in the target population:
a. Intensive Services for Individuals with SPMI
i. Assertive Community Treatment (“ACT”)
(A) ACT is a service that delivers comprehensive, individualized, and flexible treatment, support, and rehabilitation to individuals where they live and work. ACT is provided through a multidisciplinary team that shall include a psychiatrist, nurse, psychologist, social worker, substance abuse specialist, vocational rehabilitation specialist, and peer specialist. Services are highly individualized and customized, and address the constantly changing needs of the individual over time. Among the services that ACT teams provide are: case management, initial and ongoing assessments, psychiatric services, assistance with employment and housing, family support and education, substance abuse services, crisis services, and other services and supports critical to an individual's ability to live successfully in the community.
(B) ACT teams shall provide crisis services, including helping individuals increase their ability to recognize and deal with situations that may otherwise result in hospitalization, increase and improve their network of community and natural supports, and increase and improve their use of those supports for crisis prevention.
(C) ACT teams shall provide services to promote the successful retention of housing, including peer support, and services designed to improve daily living skills, socialization, and illness self-management.
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(D) ACT teams who serve individuals with co-occurring substance abuse disorders shall provide substance abuse treatment and referral services to those individuals. Such ACT teams shall include on their staff a clinician with substance abuse expertise.
(E) ACT services shall be available 24 hours per day, 7 days per week.
(F) The number of individuals served by an ACT team shall be no more than 10 individuals per ACT team member. ACT teams shall be comprised of 7 to 10 team members, with at least one member being a peer specialist.
(G) All ACT teams will operate with fidelity to the Dartmouth Assertive Community Treatment model.
(H) By July 1, 2013, the State shall have 22 ACT teams according to the following schedule:
(1) By July 1, 2011, the State shall have 18 ACT teams.
(2) By July 1, 2012, the State shall have 20 ACT teams.
(3) By July 1, 2013, the State shall have 22 ACT teams.
ii. Community Support Teams (“CSTs”)
(A) CSTs have at least three team members, including a nurse, certified peer specialist, and one to two paraprofessionals. CSTs provide services in the individual’s own home and ensure that community resources needed for the individual to remain in the community are in place. CST will be provided in areas of the State with lower population density than is needed for ACT, in professional workforce shortage areas, or
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in areas to complement existing ACT services. (B) CSTs will have a staff to client ratio of 1 to 20 in rural areas and 1 to 30 in urban areas. (C) By July 1, 2014, the State shall have eight CSTs pursuant to the following schedule: (1) By July 1, 2012, the State will have
two CSTs. (2) By July 1, 2013, the State will have
four CSTs. (3) By July 1, 2014, the State will have
eight CSTs. iii. Intensive Case Management (“ICM”)
(A) ICM teams provide coordination of treatment and support services for individuals in the target population. Oversight of paraprofessionals delivering ICM is provided by a licensed mental health professional. ICM teams assist individuals with SPMI in accessing community resources.
(B) Each ICM teams is comprised of 10 case fulltime case managers and one full-time supervisor.
(C) ICM teams will have a staff to client ration of 1 to 20 in rural areas and 1 to 30 in urban areas.
(D) By July 1, 2015, the State shall have 14 ICM Teams according to the following schedule: (1) By July 1, 2011, the State will have one ICM team. (2) By July 1, 2012, the State will have two ICM teams.
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(3) By July 1, 2013, the State will have three ICM teams.

(4) By July 1, 2014, the State will have eight ICM teams.

(5) By July 1, 2015, the State will have 14 ICM teams.

iv. Case Management Services

(A) Case Management Services provides coordination of treatment and support services for individuals in the target population who need ongoing support in order to maintain services and supports that are in place.

(B) Each Case Management Service provider will have a 1 to 50 client to staff ratio.

(C) By July 1, 2015, the State shall have 45 Case Management service providers according to the following schedule:.

(1) By July 1, 2012, the State will have five Case Management service providers.

(2) By July 1, 2013, the State will have 15 Case Management service providers.

(3) By July 1, 2014, the State will have 25 Case Management service providers.

(4) By July 1, 2015, the State will have 45 Case Management service providers.

b. Crisis Services for Individuals with SPMI.

i.

Crisis Service Centers (“CSCs”)

(A) Crisis Service Centers provide walk-in psychiatric and counseling services by licensed professionals in a center that is

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clinically staffed 24 hours per day, 7 days per week, to receive individuals in crisis, including individuals with co-occurring substance abuse disorders, and to assess and provide services and support, including referrals. (B) By July 1, 2015, the State agrees to establish a total of six CSCs according to the following schedule: (1) By July 1, 2013, the State will
establish one CSC. (2) By July 1, 2014, the State will
establish an additional two CSCs. (3) By July 1, 2015, the State will
establish an additional three CSCs. ii. Crisis Stabilization Programs (“CSPs”)
(A) CSPs are community-based residential services operated by community providers that provide psychiatric stabilization and detoxification services as an alternative to psychiatric hospitalization. They are located off the grounds of the State Hospitals. New CSPs will have 16 beds each.
(B) By July 1, 2014, the State will establish a total of three additional CSPs according to the following schedule: (1) The State will establish one CSP by July 1, 2012. (2) The State will establish an additional CSP by July 1, 2013. (3) The State will establish an additional CSP by July 1, 2014.
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iii. Community Hospital Beds
(A) Beginning on July 1, 2011, the State shall retain funding for 35 beds in non-State community hospitals without regard as to whether such hospitals are freestanding psychiatric hospitals or general, acute care hospitals.
iv. Crisis line
(A) The State shall operate a toll-free statewide telephone system for persons to access information about resources in the community to assist with a crisis (“Crisis Call Center”). Such assistance includes providing advice and facilitating the delivery of mental health services.
(B) The Crisis Call Center shall be staffed by skilled professionals 24 hours per day, 7 days per week, to assess, make referrals, and dispatch available mobile services. The Crisis Call Center shall promptly answer and respond to all crisis calls.
v. Mobile Crisis Services
(A) Mobile crisis services shall respond to crises anywhere in the community (e.g., homes or hospital emergency rooms) 24 hours per day, 7 days per week. The services shall be provided by clinical staff members trained to provide emergency services and shall include clinical staff members with substance abuse expertise and, when available, a peer specialist.
(B) Mobile crisis services shall be developed according to the following schedule:
(1) By July 1, 2013, the State shall have mobile crisis services within 91 of 159 counties, with an average annual
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response time of 1 hour and 10 minutes or less. (2) By July 1, 2014, the State shall have mobile crisis services within 126 of 159 counties, with an average annual response time of 1 hour and 5 minutes or less. (3) By July 1, 2015, the State shall have mobile crisis services within all 159 of 159 counties, with an average annual response time of 1 hour or less. vi. Crisis Apartments (A) Crisis apartments, located in community settings off the grounds of the State Hospitals and staffed by paraprofessionals and, when available, peer specialists, shall serve as an alternative to crisis stabilization programs and to psychiatric hospitalization. (B) Each crisis apartment will have capacity to serve two individuals with SPMI. (C) By July 1, 2015, the State will establish a total of 18 crisis apartments according to the following schedule: (1) By July 1, 2013, the State will provide six crisis apartments. (2) By July 1, 2014, the State will provide 12 crisis apartments. (3) By July 1, 2015, the State will provide 18 crisis apartments. c. Housing Supports for Individuals with SPMI. i. Supported Housing is assistance, including psychosocial supports, to persons with SPMI in the target population that will assist such individuals in attaining and maintaining safe and affordable
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housing and support their integration into the community. Supported Housing includes integrated permanent housing with tenancy rights, linked with flexible community-based services that are available to consumers when they need them, but are not mandated as a condition of tenancy.
(A) Supported Housing includes scattered-site housing as well as apartments clustered in a single building. By July 1, 2015, 50% of Supported Housing units shall be provided in scattered-site housing, which requires that no more than 20% of the units in one building, or no more than two units in one building (whichever is greater), may be used to provide Supported Housing under this agreement. Personal care homes shall not qualify as scattered-site housing.
(B) It is the intent of the parties that approximately 60% of persons in the target population receiving scattered-site Supported Housing will reside in a twobedroom apartment, and that approximately 40% of persons in the target population receiving scattered-site Supported Housing will reside in a one-bedroom apartment. Provided, however, nothing in Section III.B.2.c shall require the State to forego federal funding or federal programs to provide housing for persons in the target population with SPMI.
(C) Bridge Funding includes the provision of deposits, household necessities, living expenses, and other supports during the time needed for a person to become eligible and a recipient of federal disability or other supplemental income.
ii. Schedules:
(A) By July 1, 2015, the State will have capacity to provide Supported Housing to any of the
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9,000 persons in the target population who need such support. The Supported Housing required by this provision may be in the form of assistance from the Georgia Department of Community Affairs, the federal Department of Housing and Urban Development, and from any other governmental or private source.
(B) The State will provide housing supports for approximately 2,000 individuals in the target population with SPMI that are deemed ineligible for any other benefits pursuant to the following schedule:
(1) By July 1, 2011, the State will provide a total of 100 supported housing beds.
(2) By July 1, 2012, the State will provide a total of 500 supported housing beds.
(3) By July 1, 2013, the State will provide a total of 800 supported housing beds.
(4) By July 1, 2014, the State will provide a total 1,400 supported housing beds.
(5) By July 1, 2015, the State will provide a total 2,000 supported housing beds.
(C) The State will provide Bridge Funding for up to 1800 individuals in the target population with SPMI pursuant to the following schedule:
(1) By July 1, 2011, the State will provide Bridge Funding for 90 individuals with SPMI. The State will also commence taking reasonable efforts to assist persons with SPMI to qualify in a timely manner for eligible supplemental income.
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(2) By July 1, 2012, the State will provide Bridge Funding for 360 individuals with SPMI.
(3) By July 1, 2013, the State will provide Bridge Funding for 270 individuals with SPMI.
(4) By July 1, 2014, the State will provide Bridge Funding for 540 individuals with SPMI.
(5) By July 1, 2015, the State will provide Bridge Funding for 540 individuals with SPMI.
d. Supported Employment i. Supported Employment will be operated according to an evidence-based supported employment model, and it will be assessed by an established fidelity scale such as the scale included in the Substance Abuse and Mental Health Administration (“SAMHSA”) supported employment tool kit. ii. Enrollment in congregate programs shall not constitute Supported Employment. iii. Pursuant to the following schedule, the State shall provide Supported Employment services to 550 individuals with SPMI by July 1, 2015. (A) By July 1, 2011, the State shall provide Supported Employment services to 70 individuals with SPMI. (B) By July 1, 2012, the State shall provide Supported Employment services to 170 individuals with SPMI. (C) By July 1, 2013, the State shall provide Supported Employment services to 440 individuals with SPMI.
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(D) By July 1, 2014, the State shall provide Supported Employment services to 500 individuals with SPMI.
(E) By July 1, 2015, the State shall provide Supported Employment services to 550 individuals with SPMI.
e. Peer Support Services i. Peer Support Services are delivered by peers to improve an individual's community living skills, including their ability to cope with and manage symptoms and to develop and utilize existing community supports. Peer support services may be provided by face-to-face or telephone contact and include outreach, wellness training, and training in self-advocacy. ii. In addition to the peer support services provided by ACT and CST teams, the State will make Peer Support services available to up to an additional 835 individuals with SPMI pursuant to the following schedule: (A) By July 1, 2012, the State shall provide Peer Support services to up to 235 individuals with SPMI. (B) By July 1, 2013, the State shall provide Peer Support services to up to 535 individuals with SPMI. (C) By July 1, 2014, the State shall provide Peer Support services to up to 835 individuals with SPMI. iii. Peer Support availability will be measured by providing funding allow on average 1.5 trips per week per consumer.
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C. Services in the Community
1. Individuals under the age of 18 shall not be admitted to, or otherwise served, in the State Hospitals or on State Hospital grounds, unless the individual meets the criteria for emancipated minor, as set forth in Article 6 of Title 15, Chapter 11 of the Georgia Code, O.C.G.A. §§ 15-11-200 et seq.

2. Individuals in the target population with developmental disabilities and/or serious and persistent mental illness shall not be transferred from one institutional setting to another or from a State Hospital to a skilled nursing facility, intermediate care facility, or assisted living facility unless consistent with the individual’s informed choice or is warranted by the individual’s medical condition. Provided, however, if the State is in the process of closing all units of a certain clinical service category at a State Hospital, the State may transfer an individual from one institutional setting to another if appropriate to that individual’s needs. Further provided that the State may transfer individuals in State Hospitals with developmental disabilities who are on forensic status to another State Hospital if appropriate to that individual’s needs. The State may not transfer an individual from one institutional setting to another more than once.

3. Oversight of Community Service Boards and/or Community Providers

a. By January 1, 2012, the State shall:

i.

Establish the responsibilities of community service

boards and/or community providers through

contract, letter of agreement, or other agreement,

including but not limited to the community service

boards’ and/or community providers’

responsibilities in developing and implementing

transition plans.

ii. Identify qualified providers through a certified vendor or request for proposal process or other manner consistent with DBHDD policy or State law, including providers in geographically diverse

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areas of the State consistent with the needs of the individuals covered by this Agreement.
iii. Perform a cost rate study of provider reimbursement rates.
iv. Require community service boards and/or community providers to develop written descriptions of services it can provide, in consultation with community stakeholders. The community stakeholders will be selected by the community services boards and/or community providers.
v. Require and/or provide training to community service boards and/or community providers so that services can be maintained in a manner consistent with this Agreement.
vi. Utilize contract management and corrective action plans to achieve the goals of this Agreement and of State agencies.
b. Beginning on January 1, 2012 and on at least an annual basis, the State shall perform a network analysis to assess the availability of supports and services in the community.
c. No provision of this Agreement shall provide a basis of liability against the State for the tortious acts or omissions of community service boards and/or community providers.
D. Transition Planning
1. By July 1, 2011, the State shall have at least one case manager and by July 1, 2012, at least one transition specialist per State Hospital to review transition planning for individuals who have challenging behaviors or medical conditions that impede their transition to the community, including individuals whose transition planning team cannot agree on a transition plan or does not recommend that the individual be discharged. The transition specialists will also review all transition plans for
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individuals who have been in a State Hospital for more than 45 days.
2. The Transition Specialists will coordinate with State Hospital staff, the appropriate regional office, and the individual’s choice of community provider(s) in the development of a transition plan for these individuals and in the moving of individuals to the community.
3. Planning for transition to the community
a. For persons identified in the developmental disability and mental illness target populations of this Settlement Agreement, planning for transition to the community shall be the responsibility of the appropriate regional office and shall be carried out through collaborative engagement with the discharge planning process of the State Hospitals and provider(s) chosen by the individual or the individual’s guardian where required.
b. The regional office shall maintain and provide to the State Hospital a detailed list of all community providers, including all services offered by each provider, to be utilized to identify providers capable of meeting the needs of the individual in the community, and to provide each individual with a choice of providers when possible.
c. The regional office shall assure that, once identified and selected by the individual, community service boards and/other community providers shall actively participate in the transition plan (to include the implementation of the plan for transition to the community).
d. The community service boards and/or community providers shall be held accountable for the implementation of that portion of the transition plan for which they are responsible to support transition of the individual to the community.
IV. Quality Management
A. By January 1, 2012, the State shall institute a quality management system regarding community services for the target populations
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specified in this Agreement. The quality management system shall perform annual quality service reviews of samples of community providers, including face-to-face meetings with individuals, residents, and staff and reviews of treatment records, incident/injury data, and key-indicator performance data. The system’s review shall include:
1. The implementation of the plan regarding cessation of admissions for persons with developmental disabilities to the State Hospitals.
2. The service requirements of this Agreement.
3. The contractual compliance of community service boards and/or community providers.
4. The network analysis.
B. The State’s quality management system regarding community services shall analyze key indicator data relevant to the target population and services specified in this Agreement to measure compliance with the State’s policies and procedures.
C. Beginning on July 1, 2012 and ending on July 1, 2014, the State’s quality management system shall create a report at least once every six months summarizing quality assurance activities, findings, and recommendations. The State shall make them publicly available on the DBHDD website.
V. Implementation of the Agreement
A. The implementation of this Settlement Agreement shall begin immediately upon the Effective Date.
B. Within one month from the Effective Date of this Settlement Agreement, the State shall appoint a Settlement Agreement Coordinator to oversee compliance with this Settlement Agreement and to serve as a point of contact for the United States and the Independent Reviewer(s).
C. The State shall maintain sufficient records to document that the requirements of this Settlement Agreement are being properly implemented and shall make such records available to the Independent Reviewer(s) and United States for inspection and copying on a reasonable basis.
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D. In order to determine compliance with this Agreement, and to the extent they are within the State’s custody or control, the Independent Reviewer(s) and the United States shall have full access to persons, employees, residences, facilities, buildings, programs, services, documents, records, and materials that are necessary to assess the State’s compliance and/or implementation efforts with this Settlement Agreement. Such access shall include departmental and/or individual medical and other records. The Independent Reviewer(s) and the United States shall provide reasonable notice of any visit or inspection. In addition, the United States shall exercise its access to DBHDD employees in a manner that is reasonable and not unduly burdensome to the Department’s affairs. The Parties agree in cases where there in an emergency situation that presents an immediate threat to life, health or safety of individuals, neither the United States nor Independent Reviewer(s) will be required to provide the State notice of such visit or inspection. Such access shall continue until this case is dismissed.
E. The State shall notify the Independent Reviewer(s) promptly upon the death of any individual actively receiving services pursuant to this agreement. The State shall, via email, forward to the United States and the Independent Reviewer(s) electronic copies of all completed incident reports and final reports of investigations related to such incidents as well as any autopsies and death summaries in the State’s possession.
VI. Independent Reviewer(s)
A. The Parties have jointly selected Elizabeth Jones as the Independent Reviewer(s) for the Settlement Agreement. In the event that Elizabeth Jones is unable to fulfill his/her duties under this Settlement Agreement, the Parties will select a replacement. If the Parties are unable to agree on a replacement, they shall each submit the names of up to three candidates to the Court, and the Court shall select the replacement.
B. The Independent Reviewer(s) shall conduct the factual investigation and verification of data and documentation necessary to determine whether the State is in compliance with the terms of this Settlement Agreement at least annually, commencing on July 1, 2011 during the pendency of the Settlement Agreement. The Independent Reviewer(s) will file with the Court a written report on the State’s performance within 60 days after the close of each review cycle. The Independent
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Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 37 of 50
Reviewer(s) will provide both the United States and State a draft of his or her report at least 10 business days before issuing the report. Both Parties will have five business days to review and comment on the proposed report before it is filed with the Court. The Parties may agree to allow the Independent Reviewer(s) an additional 20 days to finalize a report after he or she receives comments from the Parties, and such an agreement does not require Court approval.
C. The Independent Reviewer(s) may:
1. Have ex parte communications with the Parties and the Court at any time, and speak with stakeholders at the Independent Reviewer(s)’ discretion.
2. Testify in this case regarding any matter relating to the implementation, enforcement, or dissolution of the Settlement Agreement, including, but not limited to, the Independent Reviewer(s)’ observations, findings, and recommendations in this matter.
D. No Independent Reviewer(s) shall be:
1. Liable for any claim, lawsuit, or demand arising out of the monitoring of this Settlement Agreement. This paragraph does not apply to any proceeding before this Court for enforcement of payment of contracts or subcontracts for monitoring this Settlement Agreement.
2. Subject to formal discovery, including, but not limited to, deposition(s), request(s) for documents, request(s) for admissions, interrogatories, or other disclosures. The Parties are not entitled to access the Independent Reviewer(s)’ records or communications, although the Independent Reviewer(s) may provide copies of records or communications at the Independent Reviewer(s)’ discretion. The Court may review all records of the Independent Reviewer(s) at the Court’s discretion.
E. To determine compliance with this Agreement, the Independent Reviewer(s) will have full access to residents, persons, employees, residences, facilities, buildings, programs, services, documents, records, and materials that are necessary to assess the State’s compliance and/or implementation efforts with this Settlement Agreement. To determine compliance with this Agreement, the Independent Reviewer(s) may also enter any facility or program
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providing services to persons covered by this Agreement and may interview, on a confidential basis or otherwise, persons directly affected by the Settlement Agreement with such person’s consent.
F. DHBDD, through its employees or agents, will collect data with regard to each element of required performance under the terms of the Settlement Agreement and make it available on a timely basis to the Independent Reviewer(s).
G. In addition to the other duties described above, by October 30, 2013, the Independent Reviewer(s) shall (1) assess whether the crisis and respite services, including mobile crisis teams, required under this agreement for individuals with developmental disabilities are adequate to address the needs of the target population; and (2) assess whether the Community Support Team model, as implemented by the State, provides services that are sufficient to meet the needs of the members of the target population who receive their services through CSTs. The Independent Reviewer(s) then shall provide recommendations to the Parties as to what, if any, additional crisis and respite services may be necessary. The parties shall consider any such recommendations and may modify the Settlement Agreement in accordance with the provisions of Section VII.E. The Independent Reviewer(s)’s assessment described in this paragraph shall neither be binding on the Parties nor given presumptive weight by the Court.
H. Budget of the Independent Reviewer(s)
1. Within 60 days of appointment, the Independent Reviewer(s) shall submit to the Court for the Court’s approval a proposed budget for the first twelve months of operations. The parties agree that the anticipated budget for the Independent Reviewer(s) shall be no more than $250,000 for fiscal year 2012 plus an equivalent amount prorated through the remainder of fiscal year 2011.
2. The Independent Reviewer(s) will provide the Parties a draft of the proposed budget at least thirty days in advance of submission to the Court. The Parties shall raise with the Independent Reviewer(s) any objections they may have to the draft of the proposed budget within ten days of its receipt. If the objection is not resolved before the Independent Reviewer(s)’ submission of a proposed budget to the Court, a Party may file the objection with the Court within ten days of the submission of
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Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 39 of 50
the proposed budget to the Court. The Court will consider such objections and make any adjustments the Court deems appropriate prior to approving the budget.
3. Thereafter, the Independent Reviewer(s) shall submit annually a proposed budget for the Court’s approval in accordance with the process set forth above.
4. At any time, but at least 30 days after sending to the Parties for review, the Independent Reviewer(s) may submit to the Court for approval a proposed revision to the approved budget, along with any explanation of the reason for the proposed revision. The Parties shall have an opportunity to submit an objection to the Court concerning a proposed revision to the approved budget in accordance with the process set forth above. Budget revisions will be effective upon approval by the Court.
I. Reimbursement and Payment Provisions
1. The cost of the Independent Reviewer(s), including the cost of any consultants to the Reviewer(s), shall be borne by the State in this action. All reasonable expenses incurred by the Independent Reviewer(s) in the course of the performance of the duties of an Independent Reviewer shall be reimbursed by the State in accordance with State regulations, and shall be paid no later than 30 days after submission. The Court retains the authority to resolve any dispute that may arise regarding the reasonableness of fees and costs charged by the Independent Reviewer(s). The United States will bear its own expenses in this matter.
2. The State shall deposit $100,000.00 into the Registry of the Court as interim payment of costs incurred by the Independent Reviewer(s). This deposit and all other deposits pursuant to this Order shall be held in the Court Registry Investment System and shall be subject to the standard registry fee imposed on depositors. The Independent Reviewer(s) shall submit monthly statements to the Court, with copies to the Parties, detailing all expenses the Independent Reviewer(s) incurred during the prior month. The Court shall order the clerk to make payments to the Independent Reviewer(s). The clerk shall make those payments within 10 days of the entry of the Order directing payment. Within 45 days of the entry of each Order directing payment, the
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State shall replenish the fund with the full amount paid by the clerk in order to restore the fund’s total to $100,000.00.
3. The Independent Reviewer(s) shall not enter into any contract with the State while serving as an Independent Reviewer. If an Independent Reviewer resigns from his or her position as Independent Reviewer, the former Independent Reviewer may not enter into any contract with the State on a matter related to this Agreement without the written consent of the United States while this Agreement remains in effect.
4. Nothing in this provision shall be interpreted as altering the role of the Independent Reviewer(s). The parties agree that an Independent Reviewer is not an agent of the Court, nor does an Independent Reviewer have any authority to act on behalf of the Court.
VII. Construction and Termination
A. The Parties agree jointly to file this Agreement with the United States District Court for the Northern District of Georgia, Atlanta Division, in United States v. Georgia, Civil Action No. 1:10-CV-249-CAP. The joint motion shall request that the Court enter the Settlement Agreement pursuant to Federal Rule of Civil Procedure 41(a)(2), conditionally dismiss the complaint in this action, and retain jurisdiction to enforce the Settlement Agreement. The Parties further agree to jointly file a motion with the Court, to withdraw the United States’ motion for preliminary injunction and to enforce the Settlement Agreement in case styled United States v. Georgia, Civil Action No. 1:09-CV-119CAP, to vacate the hearing set for November 8, 2010, and to terminate any ongoing discovery in that action; the motion shall request that the case be returned to the Court’s inactive docket. If the Court does not retain jurisdiction to enforce the Settlement Agreement, the Settlement Agreement shall be void.
1. The Parties anticipate that the State will have substantially complied with all provisions of the Settlement Agreement by July 1, 2015. Substantial compliance is achieved if any violations of the Agreement are minor or occasional and are not systemic.
2. The Court shall retain jurisdiction of this action for all purposes until the State has substantially complied with all provisions of
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Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 41 of 50
this Settlement Agreement and maintain substantial compliance with all provisions for one year.
3. The Parties may agree to jointly ask the Court to terminate the Settlement Agreement before the end of the five-year term, provided the State has substantially complied with all provisions of the Settlement Agreement and maintained substantial compliance with all provisions for one year. If the case has not yet been dismissed, the Parties agree to ask the Court for a non-evidentiary hearing on the status of compliance on or near July 1, 2015. If the Parties agree that there is noncompliance, or if there is a dispute about compliance, the Parties will so inform the Court, and the Court may set additional hearing dates as appropriate. The Parties may agree jointly at any time to allow for additional time to resolve compliance issues.
B. If the State believes it has achieved substantial compliance with a portion of the Settlement Agreement and has maintained substantial compliance for one year, it shall notify the United States and Independent Reviewer(s). If the United States and the Independent Reviewer(s) agree with the State’s assessment of substantial compliance, the State shall be relieved of that portion of the Settlement Agreement.
C. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals covered by this Agreement, if the United States believes that the State has failed to fulfill any obligation under this Settlement Agreement, the United States shall, prior to initiating any court proceeding to remedy such failure, give written notice to the State which, with specificity, sets for the details of the alleged noncompliance.
1. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals covered by this Agreement, the State shall have 45 days from the date of such written notice to respond to the United States in writing by denying that substantial noncompliance has occurred, or by accepting (without necessarily admitting) the allegation of noncompliance and proposing steps that the State will take, and by when, to cure the alleged noncompliance.
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2. If the State fails to respond with 45 days or denies that substantial noncompliance has occurred, the United States may seek an appropriate judicial remedy.
D. If the State timely responds by proposing curative action by a specified deadline, the United States may accept the State’s proposal or offer a counterproposal for a different curative action or deadline, but in no event shall the United States seek an appropriate judicial remedy for the alleged noncompliance until at least 30 days after the State has responded under Subsection VII.C above and until both sides have conferred in good faith to resolve any outstanding differences.
1. The parties may, by mutual agreement, extend the time period specified in this paragraph. If the Parties reach an agreement that varies from the provisions of this Settlement Agreement, the new agreement shall be reduced to writing, signed, and filed with the Court for approval.
2. If the Parties fail to reach agreement on a plan for curative action, the United States may seek an appropriate judicial remedy.
3. Notwithstanding the provisions of Sections VII.C & D, with the exception of conditions that pose an immediate and serious threat to the life, health, or safety of individuals covered under this Settlement Agreement, the United States shall not issue a noncompliance notice nor seek a judicial remedy for the first nine months after the entry of this Settlement Agreement.
E Any modification of this Settlement Agreement shall be executed in writing by the Parties, shall be filed with the Court, and shall not be effective until the Court enters the modified agreement and retains jurisdiction to enforce it.
F. The Settlement Agreement shall be applicable to, and binding upon, all Parties, their employees, assigns, and their successors in office. If the State contracts with an outside provider for any of the services provided in this agreement, the agreement shall be binding on the contracted parties, including agents and assigns.
G. The State shall ensure that all appropriate State agencies take any actions necessary for the State to comply with provisions of this Settlement Agreement.
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Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 43 of 50
H. If the State fails to make any necessary appropriations to comply with this Settlement Agreement, the United States has the right to withdraw its consent to this Agreement and revive any claims otherwise barred by operation of this Settlement Agreement.
I. The United States and the State shall bear the cost of their fees and expenses incurred in connection with this case.
VIII. General Provisions
A. The State agrees that it shall not retaliate against any person because that person has filed or may file a complaint, provided assistance or information, or participated in any other manner in the DOJ’s and/or OCR’s investigations related to this Settlement Agreement. The State agrees that it shall timely and thoroughly investigate any allegations of retaliation in violation of this Settlement Agreement and the nonretaliation provision of CRIPA and take any necessary corrective actions identified through such investigations.
B. If an unforeseen circumstance occurs that causes a failure to timely fulfill any requirements of this Settlement Agreement, the State shall notify the United States and the Independent Reviewer(s) in writing within 20 calendar days after the State becomes aware of the unforeseen circumstance and its impact on the State’s ability to perform under the Settlement Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall take all reasonable measures to avoid or minimize any such failure.
C. Failure by any Party to enforce this entire Settlement Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver, including of its right to enforce other deadlines and provisions of this Settlement Agreement.
D. The Parties shall promptly notify each other of any court or administrative challenge to this Settlement Agreement or any portion thereof, and shall defend against any challenge to the Settlement Agreement.
E. The United States and the State of Georgia release the other from any and all claims and obligations arising out of the allegations set forth in the complaint. Except as provided in this Settlement Agreement,
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Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 44 of 50
during the term of this Agreement, the United States will not bring a claim arising under the ADA or the Rehabilitation Act for those claims.
F. The Parties represent and acknowledge this Settlement Agreement is the result of extensive, thorough and good faith negotiations. The Parties further represent and acknowledge that the terms of this Settlement Agreement have been voluntarily accepted, after consultation with counsel, for the purpose of making a full and final compromise and settlement of any and all claims and for the express purpose of precluding any further or additional claims arising out of the allegations set forth in the complaints and pleadings in these Actions. Each Party to this Settlement Agreement represents and warrants that the person who has signed this Settlement Agreement on behalf of his or her entity is duly authorized to enter into this Settlement Agreement and to bind that Party to the terms and conditions of this Settlement Agreement.
G. The Parties agree that the provisions of this Settlement Agreement are lawful, fair, adequate, and a reasonable resolution of the pending lawsuit.
H. Nothing in this Settlement Agreement shall be construed as an acknowledgement, an admission, or evidence of liability of the State under the Constitution of the United States, federal or state law, and this Agreement may not be used as evidence of liability in this or any other civil or criminal proceeding.
I. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall together constitute one and the same agreement, notwithstanding that each party is not a signatory to the original or the same counterpart.
J. “Notice” under this Settlement Agreement shall be provided by overnight courier to the following or their successors:
Chief of the Special Litigation Section United States Department of Justice Civil Rights Division 601 D Street, N.W. Washington, D.C. 20004
Director of the Office for Civil Rights United States Department of Health and Human Services 200 Independence Avenue, S.W.
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Case 1:10-cv-00249-CAP Document 112 Filed 10/19/10 Page 45 of 50 Room 515F, HHH Building Washington, D.C. 20201 Attorney General of Georgia 40 Capitol Square, S.W. Atlanta, Georgia 30334 Executive Counsel to the Governor 201 State Capitol Atlanta, GA 30334 Independent Reviewer(s)
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 Case 1:10-cv-00249-CAP Document 115 Filed 10/29/10 Page 1 of 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES, Plaintiff,
v. STATE OF GEORGIA,
Defendant.

CIVIL ACTION NO. 1:10-CV-249-CAP

O R D E R
Currently before the court is the Parties’ Joint Motion to
Enter the Parties’ Settlement Agreement [Doc. No. 112]. The court
has reviewed the agreement and conferred with counsel for the
parties. At the court’s suggestion, the parties have agreed to
replace Sections VI (H) and VI(I) with the language below:
H. Budget of the Independent Reviewer
1. Within 60 days of the appointment of any Independent Reviewer, the parties shall submit to the Court a mutually agreed upon budget for the Independent Reviewer(s) for the remainder of that fiscal year. Said budget shall be sufficiently detailed as to both the type and amounts of acceptable expenditures so as to facilitate party approval of expense vouchers and prompt payments to the Independent Reviewer(s).
2. The parties anticipate that the budget for the Independent Reviewer(s) for fiscal year 2012 shall be no more than $250,000, and that the budget for fiscal year 2011 shall be no more than the total of 1/12 of $250,000 for every month or part thereof remaining in the fiscal year at the time this agreement enters into effect.
3. The Independent Reviewer(s) will provide the parties a draft proposed budget no later than 30 days in advance of the date the parties must submit the agreed budget to the Court. The parties

Case 1:10-cv-00249-CAP Document 115 Filed 10/29/10 Page 2 of 4
shall raise with the Independent Reviewer(s) any objections they may have to the draft propo sed budget within 10 days of their receipt of said draft. If the parties are unable to resolve any objection to the proposed budget prior to the time for submission to the Court, the parties will notify the Court as follows:
- the fact that the parties have failed to agree on a budget;
- the name of the mutually agreed upon third party mediator to whom the objections have been submitted at the parties expense for resolution; and
- a proposed new date for s ubmission of an agreed budget to the Court.
In the event the parties are unable to agree on a budget, the Court will be so apprised.
4. For each year after the initial agreed budget is submitted to the Court, the Independent Reviewer(s) and the parties shall submit the annual budget to the Court in accordance with the process set forth above, except that the agreed budget shall be submitted to the Court no later than 60 days prior to the end of the prior fiscal year.
5. At any time, the Independent Reviewer(s) may submit to the parties for approval a proposed revision to the budget, along with any explanation of the reason for the proposed revision. Should the parties and Independent Reviewer(s) not be able to agree on the proposed revision, the Court will be notified as set forth in paragraph H.3. above for objections to the budget.
I. Reimbursement and Payment Provisions
1. The cost of the Independent Reviewer(s) including the cost of any consultants to the Reviewer(s) shall be borne by the State in this action. The United States will bear its own expenses in this action.
2. Within 60 days of the effective date of this agreement, the State shall deposit $100,000 into the Registry of the Court for interim payment of costs incurred by the Independent Reviewer(s). This deposit and all other deposits pursuant to this Order shall be held in the Court Registry Investment System and shall be subject to the standard registry fee imposed on depositors. Within 45 days
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of the Clerk's issuance of any payment from these funds, the State shall replenish the fund with the full amount paid by the Clerk in order to restore the total amount of funds on deposit to $100,000.
3. Within 30 days of the end of the month, the Independent Reviewer(s) shall submit monthly statements to the parties detailing all expenses the Independent Reviewer(s) incurred during the prior month. Said statements shall be submitted only by the Independent Reviewer(s) and shall include all expenses incurred by or at the direction or request of the Independent Reviewer(s), including, but not limited to the expenses of associated consultants. The parties shall review such statements for reasonableness and the State shall review them for compliance with State regulations. Upon completion of the parties’ review, but in no case more than 30 days after submission of the statements by the Independent Reviewer(s), the parties will notify the Independent Reviewer(s) of their approval of the statement. Upon receipt of the parties' approval, the Independent Reviewer(s) may submit the statement to the Court for payment. The statement submitted to the Court will contain the following sentence signed by the Independent Reviewer(s): This statement has been reviewed and approved by the parties. In the event the parties cannot agree on approval of a statement, the parties will notify the Court as set forth in paragraph H.3. herein for objections to the budget.
4. Upon receipt of an Order from the Court directing payment, the Clerk will ensure timely payment of all approved statements received from the Independent Reviewer(s).
5. The Independent Reviewer(s) shall not enter into any contract with the State while serving as the Independent Reviewer. If an Independent Reviewer resigns from his or her position as Independent Reviewer, the former Independent Reviewer may not enter into any contract with the State on a matter related to this Agreement without the written consent of the United States while this Agreement remains in effect.
6. Nothing in this provision shall be interpreted as altering the role of the Independent Reviewer(s). The parties agree that an Independent Reviewer is not an agent of the Court, nor does an Independent Reviewer have any authority to act on behalf of the Court.
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The court HEREBY adopts the Settlement Agreement [Doc. No. 112, pp. 10-50] as revised above. The motion for immediate relief [Doc. No. 90] is DISMISSED as moot. The clerk is DIRECTED to administratively close this civil action. The court will retain jurisdiction to enforce the Settlement Agreement (as revised).
SO ORDERED, this 29th day of October, 2010. /s/ Charles A. Pannell, Jr. CHARLES A. PANNELL, JR. United States District Judge
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 Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 1 of 27
FILED IN CLERKS OFFICE

J61P.N. .2,8 me

UNITED STATES DISTRICT COURT

1Arf E N . ~ . c~_~~

FOR THE NORTHERN DISTRICT OF GEORGIA $y~ Z-`Deputy aft*

ATLANTA DIVISION

THE UNITED STATES OF AMERICA,
Plaintiff,
V.
THE STATE OF GEORGIA ; SONNY PERDUE, Governor, State of Georgia, in his official capacity ; FRANK E . SHELP, Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities, in his official capacity ; and RHONDA M. MEDOWS, Commissioner, Georgia Department of Community Health, in her official capacity,
Defendants .

Civil No .

T-ASAIj

COMPLAINT The United States alleges that the State of Georgia ("State") discriminates against persons with disabilities in violation of Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S .C . §§ 12131-12134, and its implementing regulations, as interpreted in Olmstead v . L.C ., 527 U.S . 581 (1999) . Specifically, the State segregates hundreds of individuals with mental illness, developmental disabilities, and addictive diseases in institutions that are not the

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 2 of 27
most integrated setting appropriate to their needs, and fails to provide adequate supports and services to individuals who are discharged from the institutions or who are at risk of institutionalization . The alleged discrimination goes to the heart of the ADA and Congress' intent to eliminate the segregation and isolation of individuals with disabilities . As Congress stated in the Findings and Purposes of the ADA: "Historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U .S .C. § 12101(a)(2) .
JURISDICTION AND VENUE 1 . The Court has jurisdiction of this action under Title II of the ADA,
42 U.S .C. §§ 12131-12132, and 28 U .S .C . §§ 1331 and 1345 . The Court may grant the relief sought in this action pursuant to 28 U .S .C . §§ 2201 and 2202 . 2. Venue is proper in this district pursuant to 28 U .S .C . § 1391, as a substantial portion of the acts and omissions giving rise to this action occurred in the Northern District of Georgia . 28 U .S .C. § 1391(b) .
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PARTIES 3 . Plaintiff is the United States of America. 4 . Defendant the State of Georgia, is a "public entity" within the meaning of
the ADA, 42 U .S .C. § 12131(1) ; 28 C.F .R . § 35 .104, and is therefore subject to title II of the ADA, 42 U .S.C. §§ 1 213 1 et.s,eqand its implementing regulations, 28 C .F.R. Part 35 . 5 . Defendant Sonny Perdue, Governor of the State of Georgia, is the Chief Executive of the State and responsible for operation of its executive agencies . Defendant Perdue is sued in his official capacity as Governor . 6 . Defendant Frank E. Shelp is the Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities ("DBHDD"), and responsible for all operations of DBHDD . Defendant Shelp is sued in his official capacity as Commissioner of DBHDD . 7 . Defendant Rhonda M. Medows is the Commissioner of the Georgia Department of Community Health ("DCH"), and responsible for all operations of DCH . Defendant Medows is sued in her official capacity as Commissioner of DCH . 8 . Defendant State delivers mental health, developmental disability, addictive disease, and other disability services (collectively "behavioral health
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Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 4 of 27
services") primarily through DBHDD and DCH, which includes the Division of Healthcare Facility Regulation ("HFR") 9 . The Commissioners of DBHDD and DCH are appointed members of the State's Behavioral Health Coordinating Council ("BHCC") . BHCC develops solutions to the systemic barriers or problems to the delivery of behavioral health services by making recommendations that implement funding, policy changes, practice changes, and evaluation of specific goals designed to improve services delivery and outcomes for individuals served by departments within the State, including DBHDD and DCH . 10. Prior to July 1, 2009, the functions of DBHDD, DCH, and BHCC were performed by the State Department of Human Resources ("DHR"), Division of Mental Health, Developmental Disabilities and Addictive Diseases ("MHDDAD"), and Office of Regulatory Services ("ORS") . These agencies were reorganized pursuant to legislative mandate, effective July 1, 2009, and all of the behavioral health services duties and responsibilities of DHR, MHDDAD, and ORS were assumed by DBHDD, DCH, and BHCC . References to acts, omissions, duties, and
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responsibilities of DBHDD, DCH, and BHCC throughout shall be understood to include the acts and omissions of their respective predecessor agencies .
FACTS The State's Behavioral Health Care System 11 . DBHDD, DCH, and BHCC (collectively the "State Agencies") administer the State's behavioral health service system, plan the settings in which behavioral health services are provided, ensure quality of care and consumer safety across facilities, and allocate within the behavioral health service system all funds appropriated from federal, state, and any other sources . See, e. g., O .C.G.A. § 37-2 et 5g-q. (2009). 12 . The State Agencies operate the behavioral health service system to further the State's policy of providing adequate mental health, developmental disability, addictive disease, and other disability services to Georgia citizens through a unified system that encourages cooperation and sharing of resources among all providers of services, both governmental and private . See e . g ., O.C .G .A. § 37-2-1(b). 13 . DBHDD provides a range of behavioral health care services . These services include treatment and support to people of all ages, with mental illnesses,
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addictive diseases, and developmental disabilities . See e . g., DBHDD, Welcome to the Georgia Department of Behavioral Health & Developmental Disabilities, htt p://dbadd.georgia. gov/portal/sitelDBHDD/ (last visited Dec . 29, 2009) . 14 . DBHDD administers five Regional Offices that are charged with implementing statewide initiatives, developing new services, and expanding existing services . All state, federal, and other funds appropriated for the purpose of delivering services are distributed by DBHDD, which allocates funds between community and institutional programs based on client needs and utilization. See O .C .G .A. § 37-2-5.1(c) . 15 . DBHDD operates seven separate state psychiatric hospitals which provide inpatient services to persons with mental illnesses, addictive diseases, and developmental disabilities . The seven hospitals are : Central State Hospital in Milledgeville ("CSH"), Georgia Regional Hospital in Atlanta ("GRHA"), Northwest Georgia Regional Hospital in Rome ("NWGRH"), Georgia Regional Hospital at Savannah ("GRHS"), East Central Regional Hospital in Augusta ("ECRH"), Southwestern State Hospital in Thomasville ("SWSH"), and West Central Georgia Regional Hospital in Columbus ("WCGRH") (collectively the "State Psychiatric Hospitals")
6

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16 . DBHDD offers a range of treatment and support services to help persons with mental illnesses, addictive diseases, and developmental disabilities integrate into, and live in, the community . These include crisis services, outpatient services, community support services, day and employment services, residential support, family support, supported employment, respite services, community residential services, personal support, and day support .
17 . The State's behavioral health service delivery system also includes those providers that are licensed and regulated by DCH . See infra ¶¶ 22-23 .
18 . DCH licenses and inspects behavioral health service providers, including the State Psychiatric Hospitals .
19 . DCH's enforcement activities include : inspection of facilities, investigation surveys based on complaints at any facility, follow-up visits, monitoring facility self-reports of serious incidents, and enforcement actions. During inspections, DCH reviews compliance with state and federal regulations that set basic safety standards . DCH reviews care provided, range of services provided, staffing and credentialing, systems for ensuring quality of care, and facilities and equipment .
7

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 8 of 27
20. DCH triages, investigates, and responds to complaints at facilities including the State Psychiatric Hospitals . DCH issues inspection reports and may require a plan of correction to be submitted by the facility .
21 . DCH evaluates community service providers' compliance with contract requirements and monitors the services delivered by providers throughout the behavioral health care delivery system to ensure access to and quality of care .
22 . DCH monitors consumer care and safety at acute health care facilities, including, but not limited to, hospices, hospitals, drug abuse treatment centers, home health agencies, intensive residential treatment centers, intermediate care facilities for the mentally retarded, and narcotic treatment centers. Individuals with disabilities frequently utilize these acute health care services and rely upon the availability of such services to support their ability to live in the community .
23 . DCH monitors consumer care and safety at long-term care facilities, including adult day care centers, community living arrangements, nursing homes, and personal care homes .
8

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 9 of 27
24 . Individuals with disabilities frequently utilize the services provided by DBHDD and monitored by DCH, and rely upon the availability of those services to remain living outside the State Psychiatric Hospitals . The Individuals Confined to the State Psychiatric Hospitals
25 . The individuals served by the State Psychiatric Hospitals include persons with diagnoses of mental illness, addictive disease and/or developmental disability (collectively "Patients") .
26 . For each of these individuals, the impairment signified by their diagnosis substantially limits one or more major life activities . Many of the individuals served require assistance with one or more of the activities of daily living, such as eating, bathing, toileting, or taking medication . Each of the Patients is a qualified individual with a disability, as defined in the ADA .
27 . For example, representative Patient A had a diagnosis of schizophrenia and required supervision to ensure that he took medication necessary to control the symptoms of his illness. Representative Patient B has multiple disabilities including mental retardation and a seizure disorder, and requires assistance in all activities of daily living . Representative Patient C has dual diagnoses of schizophrenia and moderate mental retardation and is capable 9

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 10 of 27
of performing most self-care skills independently, however, his treatment team recommends that he receive assistance in managing his health care, medications, and money, and that he needs behavior supports, vocational support, and advocacy services . 28 . The Patients in the State Psychiatric Hospitals typically do not object to receiving services in a setting less-restrictive than a State Psychiatric Hospital ; indeed, most have affirmatively expressed a preference for community living. 29. For example, representative Patient C has enjoyed living in the community in the past, and during interviews with treatment professionals at the State Psychiatric Hospital where he is currently confined, asks repeatedly, "can I go home next week?" 30. The State admits that "[i]ndividuals with disabilities, including some currently living in institutions, can live successfully in the community . To succeed, they need decent, safe, affordable and accessible housing that is separate from, but provides access to, the community-based supports and services they want and need to live as independently as possible ." 31 . The State's treatment professionals agree that hundreds of Patients currently confined to the State Psychiatric Hospitals can be served in the community .
10

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 11 of 27
32, All of the nearly 800 individuals with developmental disabilities confined to the State Psychiatric Hospitals can be served successfully in a more integrated setting in the community . The State's policy is to provide services to these individuals in the community . Virtually all professional staff working with these individuals in the State Psychiatric Hospitals agree that these Patients can be served in the community.
33 . Many individuals with developmental disabilities continue to be segregated in the State Psychiatric Hospitals for no reason other than waiting for funding to become available to support their placement in a Home and Community-based waiver slot under the federal Medicaid Waiver Program .
34. Many Patients with developmental disabilities are hospitalized because there are insufficient crisis stabilization services in the community to address the normal behavioral needs of persons with developmental disabilities and to respond to those needs with additional support on an as-needed basis.
35 . Patients with both a developmental disability and a history of challenging behaviors face a particularly acute shortage of community placements .
36. For example, Patient C was involved in an incident of aggression at his community home that was being investigated as potential abuse by the ll

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 12 of 27
caregiver. His record notes that "there was no where else for him to remain in the community so he was readmitted ." 37 . Hundreds of individuals are repeatedly re-admitted to the State Psychiatric Hospitals, typically for short stays . These individuals could remain in the community if the State made sufficient supports available in the community . Indeed, the State's treatment professionals regularly find that these Patients do not require continued confinement in the State Psychiatric Hospitals and discharge them to the community, where adequate supports and services are not provided, frequently resulting in emergency readmission . 38 . Treatment professionals in . the State Psychiatric Hospitals routinely fail to analyze and address effectively the reasons for readmission for those Patients who are repeatedly readmitted . 39 . Many of the individuals with frequent readmissions to the State Psychiatric Hospitals are discharged to a variety of unsupervised locations, including emergency shelters, the streets, and personal care homes, none of which provides the level of support necessary to support a person with severe mental illness . 40 . For example, representative Patient A's family requested that he be placed in supervised and supported housing prior to his discharge ; instead,
12

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 13 of 27
Patient A was repeatedly discharged to the streets, without any connection to necessary supports. In a pattern repeated numerous times before his untimely death in January 2009, Patient A would stop taking his medication and become ill enough to require re-hospitalization . 41 . Representative Patient D has a substance abuse history and a diagnosis of personality disorder, and has been admitted more than 100 times to a State Psychiatric Hospital. There is no evidence that Patient D, and others like him, receive necessary substance abuse services or supports upon discharge . Patient D's treatment professionals prognosticate that he will return repeatedly to the hospital. 42 . The State's own reviews conclude that assessments conducted by the State Psychiatric Hospitals, including assessments that determine whether Patients can be served in a less restrictive setting, are "totally inadequate ." 43 . Hundreds of individuals confined to the State Psychiatric Hospitals receive deficient psychiatric care and treatment, beginning with inadequate psychiatric assessments . Inadequate assessments lead frequently to inaccurate diagnoses, which typically result in insufficient treatment and discharge planning . While confined to the State Psychiatric Hospitals, these
13

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 14 of 27
Patients do not receive appropriate treatment to support their recovery and eventual discharge to a less restrictive setting in the community . 44. For example, Patient E is 19 years old, and already has been admitted to a State Psychiatric Hospital 28 times in her young life . Her diagnoses include moderate mental retardation and four "not otherwise specified" ("NOS") psychiatric diagnoses . Accepted professional standards require that treatment professionals attempt to resolve NOS diagnoses through further assessment and testing ; despite Patient E's frequent hospitalizations, her treatment professional have yet to resolve her NOS diagnoses . Without an accurate diagnosis, Patient E's treatment is severely compromised and the likelihood that she will be transitioned to the community with supports and services that adequately address her needs is diminished . For Patient E and others like her, repeated hospitalization is likely . 45 . Individuals who have been confined to the State Psychiatric Hospitals for many years are not actively assessed for opportunities to move to the least restrictive setting appropriate to their needs . 46. For example, Patient H has multiple diagnoses including mental retardation, and has been confined to a State Psychiatric Hospital for 22 years . At the annual review of her treatment plan, her treatment professionals focused on
14

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 15 of 27
goals and objectives that were relevant only in an institutional setting, rather than goals that would facilitate community placement . 47. Patient I resides in a skilled nursing unit and has been confined to a State Psychiatric Hospital for 44 years . At the quarterly review of her treatment plan, her treatment professionals did not review any assessments or discuss any community placement goals .
Facts Concerning the Most Integrated Settings 48 . The State Psychiatric Hospitals are institutions that segregate individuals
with mental illness and developmental disabilities from the community . The State Psychiatric Hospital setting discourages patients from engaging independently in activities of daily living, fosters dependence on institutional supports, and erodes the skills necessary for community living . While confined to the State Psychiatric Hospitals, patients have limited access to community activities and amenities and limited opportunities to interact with people who do not have disabilities . 49 . For example, Patient J, a gregarious person with a developmental disability whose treatment team has previously recommended that he be placed in the community, gets his haircut at the hospital when he could and should be receiving this most basic of services in the community .
15

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 16 of 27
50 . Patient K was hospitalized with a diagnosis of depression despite her continuing to work at a local hotel . She was confined to a State Psychiatric Hospital for more than three months until an advocate secured a placement for her outside the hospital .
51 . The State Psychiatric Hospitals are not the most integrated setting appropriate to the needs of the Patients confined to these institutions . Numerous individuals continue to be confined to the State Hospitals because the services necessary to address their medical or behavioral health needs are offered by the State, but not in sufficient quality, quantity, and geographic diversity to serve Patients' needs .
52 . Providing supports and services in the community to Patients with developmental disabilities, mental illness, or substance abuse diagnoses can generate significant cost savings compared to the cost of institutionalizing Patients in the State Psychiatric Hospitals.
53 . The State has not conducted an adequate assessment of the needs of the behavioral health services system, including, particularly, those services necessary in order to provide services to all Patients in the least restrictive settings appropriate to their needs . An adequate assessment, including specific numbers of persons requiring services and realistic cost proposals 16

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 17 of 27
for those services is a prerequisite to marshaling sufficient resources to provide those services . 54 . Supported Housing is a setting in which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community . Supported housing providers offer a variety of supports to meet each individual's needs and allow the individual to live in a more "normalized" setting . Mental Health treatment professionals agree that many, if not all, people with serious mental illness can live successfully in the community in supported housing . 55 . The Governor's own 2008 Mental Health Service Delivery Commission admits that individuals with developmental disabilities, mental illness, or substance abuse can live successfully in the community in supported housing . 56. Personal care homes are one source of housing for Patients discharged from the State Psychiatric Hospitals . Personal care homes are not supported housing and often are not settings sufficient to meet the discharged individuals' needs . 57 . DBHDD provides extremely limited supported housing services, and numerous individuals continue to be confined to the State Psychiatric
17

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 18 of 27
Hospitals because specialized services, including supported housing, are not available in sufficient quantity to meet the needs of all Patients requiring those services . 58 . Assertive Community Treatment ("ACT") is an intensive form of case management services that often is necessary to enable a person with serious mental illness to live in the community . 59. The State provides ACT teams in some, but not all, geographic areas of the State . Even in areas where ACT services are available, the State's own audits repeatedly conclude that there are insufficient numbers of ACT teams to support all of the individuals who require these services . The State has failed to fill this critical and long-standing gap in the behavioral health care system . 60 . Community-based crisis stabilization services are an essential part of a behavioral health service system that effectively delivers treatment and supports to Patients in the least restrictive setting appropriate to their needs . 61 . Mobile Crisis Stabilization services and short-term crisis stabilization beds are available in some areas of the State, but not in sufficient quantity or geographic diversity to serve all qualified individuals who require these services .
18

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 19 of 27
62 . Lack of income and employment are identified barriers to successful community integration for people with disabilities .
63 . The State Psychiatric Hospitals receive little support from the State's office of vocational rehabilitation, and Supported Employment programs in the State have suffered from budget cuts and services cutbacks in each of the past several fiscal years . The State does not offer sufficient Supported Employment programs to serve all qualified individuals who require these services .
64. Adequate transportation services are essential to ensuring access to necessary behavioral health care services for individuals with developmental disabilities, mental illness, and substance abuse diagnoses who live in the community .
65 . Transportation services in the State are not coordinated and not available in all areas of the State . The State does not offer sufficient transportation services to serve all qualified individuals who require them to access necessary services .
66. Patients with substance abuse diagnoses are not provided with sufficient treatment services to address addiction and avoid repeated relapse and rein stitutionalizati on. 19

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 20 of 27
67 . Certain DBHDD staff, known as case expediters, and community providers are required by State policy to work with the State Psychiatric Hospitals in developing transition plans for the individuals confined to the State Psychiatric Hospitals, but they frequently fail to do so . Transition plans do not include the active participation of community providers and, therefore, do not adequately provide individuals confined to the State Psychiatric Hospitals with an appropriate transition to a community placement .
68 . Professional standards and the State's own policies dictate that assessment decisions be based on what is appropriate for the individual, and that the State identify and marshal necessary resources to meet those needs in the
most integrated setting . 69 . The treatment professionals at the State Psychiatric Hospitals typically tailor
their assessment of a Patient's appropriateness for community placement based upon an understanding of what limited community resources are available (or not available), rather than specifying what supports and services a Patient needs in order to be adequately supported in the community . For example, none of the discharge plans recently reviewed by the State's own Mental Health Consultant included supported housing or supported employment, both of which enable many individuals with
20

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 21 of 27
disabilities to live successfully in the community, but neither of which the State adequately supplies . 70 . The State does not collect after-care data sufficient to determine the efficacy of its discharge plans and of the services and supports provided to individuals upon discharge from the State Psychiatric Hospitals. 71 . The State's own Community Service Board professionals have concluded that, without a continuum of services that includes healthy and fully functional community-based programs, the State Psychiatric Hospitals cannot provide services in a safe and effective manner . 72 . The State, through DBHDD, fails to provide services in sufficient quality, quantity, and geographic diversity to enable individuals with mental illnesses, substance abuse diagnoses, or developmental disabilities to be served in the least restrictive setting appropriate to their needs . 73 . The State has had long-standing notice of the deficiencies in its community-based supports and services . In Olmstead v . L.C ., 527 U .S . 581, 605 (1999), the Supreme Court stated that Georgia's practice of discharging institutionalized persons to homeless shelters was inappropriate . Yet, the State continues to discharge hundreds of patients each year to homeless
21

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 22 of 27
shelters, and recent data from CSH shows that the rate of discharges to shelters increased in the past few months . 74. The deficiencies in the State's community-based supports and services have been highlighted in the following reports commissioned and/or issued by State entities : a. The State's 2003 Olmstead Plan admitted :
Individuals with disabilities, including some currently living in institutions, can live successfully in the community . To succeed, they need decent, safe, affordable and accessible housing that is separate from, but provides access to, the community-based supports and services they want and need to live as independently as possible . Nationally, there is a critical shortage of affordable housing . Similarly, Georgia does not have enough affordable housing . b . The State's 2005 Mental Health Gap analysis concluded that the number of Assertive Community Treatment teams was insufficient to provide services to all discharged patients who require them . c . A 2007 Medical College of Georgia survey warned that individuals with developmental disabilities face unnecessary or premature admission to CSH, the largest of the Hospitals housing people with developmental disabilities, because supports in the community for
22

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 23 of 27
crisis intervention appear inadequate to handle the normal behavioral variability of some persons with developmental disabilities . d. Defendant Governor Sonny Perdue's 2008 Mental Health Service Delivery Commission Final Report concluded that the State Psychiatric Hospitals currently function as the "front door" to accessing mental health services in the State, rather than as a last resort in a continuum of care for those with chronic mental illness for whom community-based services and supports have been exhausted . e . The 2008 Mental Health Service Delivery Commission Final Report and the 2005 Georgia Mental Health Gap Analysis study document extremely high rates of re-admission at the State Psychiatric Hospitals . In each quarter of fiscal year 2009, the State missed its own targets for reducing re-admissions to the Hospitals . f. In fiscal year 2009, after budget cuts adversely affected available community housing, the State's Community Service Boards warned DBHDD that redirecting scarce funds in future budgets from community behavioral health services to the institutions would have adverse consequences .
23

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 24 of 27
75 . The State has had specific notice of the deficiencies causing the violations of federal rights alleged herein, as detailed in three letters to Defendant Governor Sonny Perdue from the Assistant Attorney General of the Civil Rights Division of the U .S . Department of Justice, dated May 30, 2008 ; January 15, 2009 ; and December 8, 2009 (Attached as Exhibits 1-3, respectively) .
76 . The State has had specific notice of additional deficiencies causing harm to Patients inappropriately confined to the State Psychiatric Hospitals, as detailed in the three letters from the U .S. Department of Justice to Counsel for the State, dated September 9, 2009 ; November 19, 2009 ; and November 25, 2009 (Attached as Exhibits 4-8, respectively) . VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT
77 . The allegations of Paragraphs 1 through 76 are hereby realleged and incorporated by reference .
78 . Defendants discriminate against "qualified individual[s] with a disability," within the meaning of the ADA, by administering the State's behavioral health system in a manner that denies hundreds of Georgians with mental illness, addictive diseases, and/or developmental disabilities the opportunity to receive services in the most integrated setting appropriate to their needs . 24

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 25 of 27
These individuals are qualified to receive services in a more integrated setting and do not oppose receiving services in a more integrated setting . 79 . The relief sought would not constitute a "fundamental alteration" of the State's behavioral health service system because the State already provides the services that the Patients require to live in a more integrated setting . Thus, there is no defense for the State's failure to provide services in a more integrated setting . 80 . The State's actions as alleged herein constitute discrimination in violation of Title II of the ADA, 42 U .S .C . § 12132, and its implementing regulations .
PRAYER FOR RELIEF WHEREFORE, the United States of America prays that the Court : A. Enjoin Defendants (1) from administering behavioral health services in a setting that unnecessarily isolates and segregates individuals with disabilities from the community, (2) to administer behavioral health services in the most integrated setting appropriate to the needs of the individuals with disabilities, and (3) to transition each of the Hospitals to a resource center that supports delivery of community services and serves as a last resort in a continuum of care for those for whom community-based services and supports have been exhausted ; and B. Order such other appropriate relief as the interests of justice require .
25

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 26 of 27

Dated: a
Respectfully submitted, FOR THE UNITED STATES :

SALLY ATES / United States Attorney
Northern District of Georgia

q-1-' C- cj~
THOMAS E . PEREZ Assistant Attorney General
SAMUEL R. BAGENSTOS Deputy Assistant Attorney General

Y. CUTLAR
Special Litigation Section
- C~~
JUDIT .PRESTON Deputy Chief
Special Litigation Section

26

Case 1:10-cv-00249-CAP Document 1 Filed 01/28/10 Page 27 of 27

MINA RAE [GA Bar 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel : (404) 581-6302 Fax : (404) 581-6163 Email : Mina.Rhee@usdoj .gov

MARY . BO N [DC Bar 420628] TIMOTHY D . MYGATT [PA Bar 90403] ROBERT A . KOCH [OR Bar 072004] EMILY A . GUNSTON [CA Bar 218035] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel : (202) 514-6255 Email : Ma .Bohan usdo' . av

27

 
 Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

______________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

NOTICE OF JOINT FILING OF THE REPORT OF THE INDEPENDENT REVIEWER

Plaintiff United States and Defendants State of Georgia, et al., file this

notice of joint filing of a report of the Independent Reviewer pursuant to

¶ VI.B of the Settlement Agreement [Docket Nos. 112 & 115], attached as

Attachment A.

Respectfully submitted,

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 2 of 29

FOR THE UNITED STATES:

SALLY QUILLIAN YATES United States Attorney Northern District of Georgia

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

EVE HILL Senior Counsel

JONATHAN M. SMITH Chief Special Litigation Section

MARY R. BOHAN Deputy Chief Special Litigation Section

/s/ (Express Permission)___ AILEEN BELL HUGHES [GA 375505] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

/s/ Robert A. Koch_________ ROBERT A. KOCH [OR 072004] T. JACK MORSE [GA 449134] Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 305-2302 Fax: (202) 514-0212 Email: Robert.Koch@usdoj.gov

2

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 3 of 29

FOR THE STATE OF GEORGIA:

SAMUEL S. OLENS Attorney General Georgia Bar No. 551540

DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
MARK J. CICERO Assistant Attorney General Georgia Bar No. 125686
JASON S. NAUNAS Assistant Attorney General Georgia Bar No. 142051
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ (Express Permission)___ MARK H. COHEN Special Assistant Attorney General Georgia Bar No. 174567 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
/s/ (Express Permission)___ JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsFreed 999 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinsfreed.com

3

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 4 of 29
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Century Schoolbook, 13-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch________ ROBERT A. KOCH Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 5 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al., )

)

Defendants.

)

_________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of October, 2011, I electronically filed the JOINT FILING OF THE REPORT OF THE INDEPENDENT REVIEWER with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the attorneys of record:

Mark J. Cicero, Esq. Jason S. Naunas, Esq. State Law Department

Josh Belinfante, Esq. Jeremy U. Littlefield, Esq. RobbinsFreed

Mark H. Cohen, Esq. Jaime L. Theriot, Esq. Lynette Eaddy Smith, Esq. Jeremy Patrick Burnette, Esq. Steven J. Hewitson, Esq. Lindsey B. Mann, Esq. Kevin Gregory Meeks, Esq. Troutman Sanders LLP

/s/ Robert A. Koch___

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 6 of 29
Attachment A

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 7 of 29
    REPORTOFTHEINDEPENDENTREVIEWER InTheMatterOf UnitedStatesofAmericav.TheStateofGeorgia  CivilActionNo.1:10ͲCVͲ249ͲCAP            SubmittedBy:ElizabethJones,IndependentReviewer October5,2011   

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 8 of 29

EXECUTIVESUMMARY

TheSettlementAgreementbetweentheUnitedStatesofAmericaandtheStateofGeorgiawas approvedbytheCourtonOctober29,2010.
ByJuly1,2011,itwasagreedthattheDepartmentofBehavioralHealthandDevelopmentalDisabilities wouldcomplywiththirtyͲfiveprovisions.Asummaryofcompliancefindingsisattached.
ThePartiesacknowledgedtheeffortrequiredfortheimplementationoftheSettlementAgreementby establishingatimeframethroughJuly1,2015.Bystructuringcompliancerequirementsonan incrementalbasis,theSettlementAgreementrecognizedthatchangetakestime;thattherearelessons tobelearnedandunlearnedaboutimplementation;thatprovidercapacitymustbebuilt;that stakeholderknowledgeandinvolvementmustbestrengthened;andthatareliablesystemfor monitoring,evaluationandcorrectiveactionwouldneedtoevolveatboththeStateandlocallevel.
ThisfirstreportrecognizesthatthisisthebaselineyearofthisSettlementAgreement.Infact,theState hashadonlyeightmonthstocompletetheinitialsetofobligations.Theseobligationsarecritical componentsforthedevelopmentofasystemthatistrulyresponsivetoandresponsibleforthetarget populationofindividualsidentifiedbytheSettlementAgreementwithadevelopmentaldisabilityor seriousandpersistentmentalillnesswhoareeitherinstitutionalizedcurrentlyoratriskofbeing institutionalizedinthefuture;whoarefrequentlyseeninEmergencyRooms;whoarechronically homeless;and/orwhoarebeingreleasedfromjailsorprisons.
TheStatehasdemonstratedgoodfaithinitseffortstocomplywiththeobligationsduetobecompleted byJuly1,2011.TheStateLegislaturehaspassedessentialamendmentstoChapter4ofTitle37and approvedthefundingrequiredforthefullimplementationoftheSettlementAgreementinthebaseline year.Additionalfundingwasauthorizedfortheprovisionofsupportstofamilies.TheCommissionerof theDepartmentofBehavioralHealthandDevelopmentalDisabilitieshasemphasizedrepeatedly,and withsincerity,theimportanceofthiscommitment;hisstaff,atalllevelsoftheorganization,have workeddiligentlytoimplementtheirresponsibilities;andaverycapableSettlementCoordinatorhas beendesignatedtoassistwiththerequirementsoftheSettlementAgreementandthemanyrequestsof theIndependentReviewer.
GeorgiaisfortunatetohaveanarticulateandwellͲinformedgroupofstakeholderswhoaredeeply committedtotheprinciplesandgoalsoftheSettlementAgreementandwhoareenergizedandeagerto participateinitsactualimplementation.Thisstakeholderinvolvementisimportanttothereform envisionedbythePartiestotheSettlementAgreement.Meaningfulintegrationintocommunitylifefor peoplewithdisabilitiesisaidedbythecollaborationandinclusionofvaluedmembersofthecommunity itself.Throughoutthelasteightmonths,theinterestandopennesstochangedemonstratedbythose withaninvestmentintheworkoftheDepartmentofBehavioralHealthandDevelopmentalDisabilities hasbeenhighlyvisibleandclearlyexpressedbytheirparticipationinandoversightofthereformefforts.



2

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 9 of 29
ThepartnershipbetweentheState’sofficersanditscitizensshouldcontinuetoevolveifthereforms initiatedbylegalactionaretobesustainedoncethetermsoftheSettlementAgreementareconcluded.



3

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 10 of 29

Summary of Compliance: Year One

Settlement Agreement Reference
III III.A.1.a III.A.1.b
III.A.2.b.i(A)
III.A.2.b.ii(B)

Provision

Rating

Comments

Substantive Provisions By July 1, 2011, the State shall cease all admissions to the State Hospitals of all individuals for whom the reason for admission is due to a primary diagnosis of a developmental disability.

Compliance

The Commissioner of the Department of Behavioral Health and Developmental Disabilities has complied with this provision and has expressed his intent to develop community based alternatives to institutional care. There was no evidence to indicate that individuals with a developmental disability have been transferred between State Hospitals in contradiction of the commitment to cease admissions.

The State will make any necessary changes to administrative regulations and take best efforts to amend any statutes that may require such admissions.

Compliance

In House Bill 324, the State Legislature amended Chapter 4 of Title 37 of the Official Code of Georgia Annotated.

By July 1, 2011, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community and the State shall create 150 waivers to accomplish this transition. In addition, the State shall move from the State Hospitals to the community all individuals with an existing and active waiver as of the Effective Date of this Agreement, provided such placement is consistent with the individual’s informed choice. The State shall provide family supports to a minimum of 400 families of people with developmental disabilities.

Compliance

The Department placed more than 150 individuals with a developmental disability into community residential settings supported by the Home and CommunityͲ Based Waiver. A sample of 48 individuals was reviewed. Identified concerns were referred to the Department and corrective actions were initiated. Nine of the 11 individuals hospitalized with an existing Waiver were discharged to community settings. Two individuals remained hospitalized. Delays in placement were attributed to family objections or to providerͲrelated issues. The Department continued to pursue appropriate community placements for these two individuals. More than 400 individuals were provided with family supports. Because there was substantial compliance with this provision, a positive rating was given.

Individuals in the target population shall not be served in a host home or a congregate community living setting unless such placement is consistent with the individual’s informed choice. For individuals in the target population not served in their own home or their family’s home, the number of individuals served in a host home as defined by Georgia law shall not exceed two, and the number of individuals served in any congregate community living setting shall not exceed four.

Compliance

Of the 48 individuals reviewed in the sample, none were placed in host homes with more than two individuals or in congregate community living settings with more than four individuals.
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Settlement Agreement Reference III.A.2.b.iii(A)
III.A.2.b.iii(B)
III.A.2.b.iii(C) III.A.4.b

Provision

Rating

Comments

Assembling professionals and nonͲ professionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Service Plans, as required by the State’s HCBS Waiver Program, that are individualized and person centered.

Compliance

Individual Service Plans were reviewed for the 48 individuals in the sample. The format used by the Department focused on the needs and preferences of each individual.

Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, and other services identified in the Individual Service Plan.

NonͲ compliance

The review of 48 individuals found that needed supports were lacking. For example, 14 individuals (30%) lacked consistent day program activities; weight fluctuations were not tracked and addressed in 35% of individuals reviewed; unsafe practices were observed with individuals being presented as "selfͲ medicating with staff assistance;" informed consent to psychotropic medication was found to be lacking.

Monitoring the Individual Service Plan to make additional referrals, service changes, and amendments to the plans as identified as needed.

NonͲ compliance

Although there were Support Coordinators assigned to each individual in the sample, as noted above, needed supports were found to be lacking.

By the Effective Date of this Agreement, the State shall use a CMS approved Quality Improvement Organization (“QIO”) or QIOͲ like organization to assess the quality of services by community providers.

Compliance

The Department utilized the services of the Delmarva Foundation to design and implement a quality assurance review process.

The State shall assess compliance on an

The Delmarva Foundation issued an

annual basis and shall take appropriate

annual report assessing the quality of

III.A.4.d

action based on each assessment.

Compliance services by community providers for

individuals with a developmental

disability.
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Settlement Agreement Reference
III.B.1.c
III.B.2.a.i(A)
III.B.2.a.i(B)

Provision

Rating

Comments

Pursuant to the Volntary Compliance Agreement with Health and Human Services, the State established a Mental Health Olmstead List. The State shall ensure that all individuals on the Mental Health Olmstead List as of the Effective Date of this Agreement will, if eligible for services, receive services in the community in accordance with this Settlement Agreement by July 1, 2011. The Parties acknowledge that some individuals on the Mental Health Olmstead List are required to register as sex offenders pursuant to O.C.G.A. § 42Ͳ1Ͳ12 et seq. The Parties further acknowledge that such registration makes placement in the community more difficult. The Parties may by written consent extend the application of the date set forth in this paragraph as it applies to such individuals. The written consent described in this paragraph will not require Court approval.

Compliance

At the time the Settlement Agreement was signed, there were 27 individuals on the Olmstead List. All of these individuals were discharged from the State Hospitals and were provided community services.

ACT is a service that delivers comprehensive, individualized, and flexible treatment, support, and rehabilitation to individuals where they live and work. ACT is provided through a multidisciplinary team that shall include a psychiatrist, nurse, psychologist, social worker, substance abuse specialist, vocational rehabilitation specialist, and peer specialist. Services are highly individualized and customized, and address the constantly changing needs of the individual over time. Among the services that ACT teams provide are: case management, initial and ongoing assessments, psychiatric services, assistance with employment and housing, family support and education, substance abuse services, crisis services, and other services and supports critical to an individual's ability to live successfully in the community. ACT teams shall provide crisis services, including helping individuals increase their ability to recognize and deal with situations that may otherwise result in hospitalization, increase and improve their network of community and natural supports, and increase and improve their use of those supports for crisis prevention.

Compliance Compliance

The Assertive Community Treatment (ACT) teams funded by the Department were designed to provide the services stipulated by the Settlement Agreement.
The Assertive Community Treatment (ACT) teams funded by the Department were designed to provide crisis services.

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Settlement Agreement Reference
III.B.2.a.i(C)

Provision
ACT teams shall provide services to promote the successful retention of housing, including peer support, and services designed to improve daily living skills, socialization, and illness selfͲ management.

Rating

Comments

Compliance

The Assertive Community Treatment (ACT) teams funded by the Department were designed to provide these services and supports.

III.B.2.a.i(D) III.B.2.a.i(E)

ACT teams who serve individuals with coͲ occurring substance abuse disorders shall provide substance abuse treatment and referral services to those individuals. Such ACT teams shall include on their staff a clinician with substance abuse expertise.
ACT services shall be available 24 hours per day, 7 days per week.

Compliance

The Assertive Community Treatment (ACT) teams funded by the Department were designed to provide these services and supports.

Compliance

The Assertive Community Treatment (ACT) teams funded by the Department were available 24 hours per day, 7 days per week.

III.B.2.a.i(F)

The number of individuals served by an ACT team shall be no more than 10 individuals per ACT team member. ACT teams shall be comprised of 7 to 10 team members, with at least one member being a peer specialist.

Compliance

The Assertive Community Treatment (ACT) teams funded by the Department comply with this requirement.

III.B.2.a.i(G)

All ACT teams will operate with fidelity to the Dartmouth Assertive Community Treatment model.

Compliance

The Assertive Community Treatment (ACT) teams funded by the Department are expected to operate with fidelity to the Dartmouth Assertive Community Treatment model. Since the teams were established in April, 2011, their adherence to the fidelity standards will be assessed next year.

By July 1, 2011, the State shall have 18 ACT

The Department has funded 18 Assertive

III.B.2.a.i(H)(1) teams.

Compliance Community Treatment teams.

By July 1, 2011, the State will have one III.B.2.a.iii(D)(1) ICM team.

The Department has established two Compliance Intensive Case Management teams.

III.B.2.b.iii(A) III.B.2.b.iv(A)

Beginning on July 1, 2011, the State shall retain funding for 35 beds in nonͲState community hospitals without regard as to whether such hospitals are freestanding psychiatric hospitals or general, acute care hospitals.

Compliance

The Department has funded hospital bed days in five community hospitals.

The State shall operate a tollͲfree statewide telephone system for persons to access information about resources in the community to assist with a crisis (“Crisis Call Center”). Such assistance includes providing advice and facilitating the delivery of mental health services.

Compliance

The Georgia Crisis and Access Line operated by Behavioral Health Link provided these services.

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Settlement Agreement Reference
III.B.2.b.iv(B)
III.B.2.c.ii(B)(1)

Provision

Rating

Comments

The Crisis Call Center shall be staffed by skilled professionals 24 hours per day, 7 days per week, to assess, make referrals, and dispatch available mobile services. The Crisis Call Center shall promptly answer and respond to all crisis calls.

Compliance

The Georgia Crisis and Access Line complied with these requirements.

By July 1, 2011, the State will provide a total of 100 supported housing beds.

Compliance

Although the Department provided the requisite housing vouchers, concern was noted about the review of eligibility and access for hospitalized individuals.

III.B.2.c.ii(C)(1) III.B.2.d.i III.B.2.d.ii
III.B.2.d.iii(A)

By July 1, 2011, the State will provide Bridge Funding for 90 individuals with SPMI. The State will also commence taking reasonable efforts to assist persons with SPMI to qualify in a timely manner for eligible supplemental income.

Compliance

The Department provided Bridge Funding as required.

Supported Employment will be operated according to an evidenceͲbased supported employment model, and it will be assessed by an established fidelity scale such as the scale included in the Substance Abuse and Mental Health Administration (“SAMHSA”) supported employment tool kit.

NonͲ compliance

Fidelity scale assessments were not completed. According to the State, fidelity scale assessments will be completed next year.

Enrollment in congregate programs shall not constitute Supported Employment.

Enrollment in congregate programs was
Compliance not considered to be Supported Employment.

By July 1, 2011, the State shall provide Supported Employment services to 70 individuals with SPMI.

Compliance

The Department provided Supported Employment services to more than 70 individuals with SPMI. Since individuals were assigned to the Supported Employment providers in May, only eight were employed by July, 2011. A higher rate of employment will be expected next year.

III.C.1

Individuals under the age of 18 shall not be admitted to, or otherwise served, in the State Hospitals or on State Hospital grounds, unless the individual meets the criteria for emancipated minor, as set forth in Article 6 of Title 15, Chapter 11 of the Georgia Code, O.C.G.A. §§ 15Ͳ11Ͳ200 et seq.

NonͲ compliance

The Department is working to accomplish the appropriate placement of two minors currently placed in State Hospitals.

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Settlement Agreement Reference
III.C.2
III.D.1
III.D.3.a

Provision

Rating

Comments

Individuals in the target population with developmental disabilities and/or serious and persistent mental illness shall not be transferred from one institutional setting to another or from a State Hospital to a skilled nursing facility, intermediate care facility, or assisted living facility unless consistent with the individual’s informed choice or is warranted by the individual’s medical condition. Provided, however, if the State is in the process of closing all units of a certain clinical service category at a State Hospital, the State may transfer an individual from one institutional setting to another if appropriate to that individual’s needs. Further provided that the State may transfer individuals in State Hospitals with developmental disabilities who are on forensic status to another State Hospital if appropriate to that individual’s needs. The State may not transfer an individual from one institutional setting to another more than once.

Compliance

There was no evidence of inappropriate transfers from one institution to another.

By July 1, 2011, the State shall have at least one case manager and by July 1, 2012, at least one transition specialist per State Hospital to review transition planning for individuals who have challenging behaviors or medical conditions that impede their transition to the community, including individuals whose transition planning team cannot agree on a transition plan or does not recommend that the individual be discharged. The transition specialists will also review all transition plans for individuals who have been in a State Hospital for more than 45 days.

Case Managers were assigned at each State Hospital.
Compliance

For persons identified in the

There was evidence of coordination

developmental disability and mental

between the Regional Office and State

illness target populations of this

Hospital.

Settlement Agreement, planning for

transition to the community shall be the

responsibility of the appropriate regional

office and shall be carried out through

Compliance

collaborative engagement with the

discharge planning process of the State

Hospitals and provider(s) chosen by the

individual or the individual’s guardian

where required.
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Settlement Agreement Reference
III.D.3.b
III.D.3.c
III.D.3.d IV
IV.E


Provision

Rating

Comments

The regional office shall maintain and provide to the State Hospital a detailed list of all community providers, including all services offered by each provider, to be utilized to identify providers capable of meeting the needs of the individual in the community, and to provide each individual with a choice of providers when possible.

Compliance

The Regional Offices provided a list to the State Hospitals of all community providers.

The regional office shall assure that, once identified and selected by the individual, community service boards and/other community providers shall actively participate in the transition plan (to include the implementation of the plan for transition to the community).

Compliance

In the sample reviewed, there was evidence of participation by community providers. The transition of people with mental illness from State Hospitals will be examined more closely next year.

The community service boards and/or community providers shall be held accountable for the implementation of that portion of the transition plan for which they are responsible to support transition of the individual to the community.

Compliance

In the sample reviewed, there was evidence of accountability by community providers.

Quality Management The State shall notify the Independent Reviewer(s) promptly upon the death of any individual actively receiving services pursuant to this Agreement. The State shall, via email, forward to the United States and the Independent Reviewer(s) electronic copies of all completed incident reports and final reports of investigations related to such incidents as well as any autopsies and death summaries in the State’s possession.

Compliance

The Independent Reviewer and the United States were notified of deaths and other critical incidents.
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DISCUSSIONOFCOMPLIANCEFINDINGS

Methodology
Theinformationforthisreportwasgatheredthroughmultiplemeans.DuringthethirtyͲsevendays spentonͲsiteinGeorgia,sitevisitsweremadetotheStateHospitalsprimarilyinvolvedinthisevaluation period(GeorgiaRegionalHospitalatAtlanta,CentralStateHospital,SouthwesternStateHospital, NorthwestGeorgiaRegionalHospital,andEastCentralRegionalHospital).Thesesitevisitsincluded discussionswithHospitalandRegionalstaff,documentreviewandmeetingswith/observationof hospitalizedindividuals.(Notalloftheseindividualswerescheduledfordischarge.)Meetingswereheld withcommunityproviderslinkedtotheserviceareasneartheaboveͲreferencedStateHospitals.The meetingswithprovidersweresupplementedwithsitevisitstocommunityresidentialanddayprograms. Meetingswereheldandtelephonecalls/emailswereexchangedwithmembersofthestakeholdergroup includingpeers,advocates,familymembers,localsheriffs,andprofessionalsengagedinthefieldof mentaldisability.
Thesesitevisitsanddiscussionsprovidedusefulinformationaboutthecommunityservicescurrently availableinGeorgiaaswellasplansforfuturedevelopment.Sixofthecommunityprovidersinterviewed bytheIndependentReviewerprovidedresidentialsupportstoindividualsincludedinthesample discussedbelow.
Foreachcompliancerequirement,theDepartmentofBehavioralHealthandDevelopmentalDisabilities wasaskedtoprovidedocumentationofitswork.Thisinformationwasconsideredinthepreparationof thisreport.
ExpertconsultantswereretainedtoassistwiththereviewofarandomsampleoffortyͲeightindividuals withadevelopmentaldisabilitywhowereplacedfromaStateHospitalintothecommunity.Thereview wasguidedbyamonitoringtoolprovidedtothePartieswellinadvance.Thismonitoringtoolwas adaptedfromsimilartoolsusedtoassesscommunityplacementsinotherStates(NewMexico, MassachusettsandtheDistrictofColumbia.)ThetoolwasnottestedforinterͲraterreliabilityspecifically foritsuseinGeorgia;however,itwastestedpriortoitsuseintheDistrictofColumbia.
Therandomsampleof48individualshadaconfidencelevelof90%.Aproportionalrandomsampling methodwasusedtoensurerepresentationacrossallRegions.Becauseofthesmallnumberof individualsplacedinRegion6,thatRegionwasoversampledtoensurerepresentationinthesurvey.
Thereportsissuedfromthereviewsoftheindividualsinthesamplehavebeendistributedtothe Parties.TheDepartmentofBehavioralHealthandDevelopmentalDisabilitiesisintheprocessof analyzingthesereportsandhasinstructeditsRegionalstafftotakecorrectiveactions,asappropriate.
InadditiontothereviewofthefortyͲeightindividuals,twoexpertconsultantswereretainedtoevaluate theadherenceofinitiativesinsupportedemploymentandAssertiveCommunityTreatment(ACT)tothe wellestablishedprinciplesfortheseEvidenceͲBasedPracticesinthefieldofmentalhealth.TheState

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HealthAuthorityYardstick(SHAY),atooldevelopedatDartmouthUniversity,wasusedforthese evaluations.TheevaluationinstrumentwasprovidedtothePartiesinadvance.Informationwas gatheredthroughinterviewsanddocumentreview.
Also,twoexpertsinthefieldofsupportedhousingforadultswithseriousandpersistentmentalillness wereretainedtoreviewtheDepartment’seffortsregardingtheprovisionofhousingvouchersand BridgeFunding.TheymetwithstafffromtheDepartmentofBehavioralHealthandDevelopmental Disabilitiesandwithagroupofstakeholders.
Thereportsregardingsupportedemployment,supportedhousingandAssertiveCommunityTreatment havebeenprovidedtotheParties.
Thisyear’sreviewofthementalhealthinitiativesfocusedprimarilyonthestructureofthoseinitiatives. Nextyear’sreportwillincludeareviewofservicestoadiscretesampleofadultswithaseriousand persistentmentalillness.
Additionally,anursewhoishighlyexperiencedandexpertinthefieldofdevelopmentaldisabilitieswas askedtoassistinthereviewofthethreeminorswhowerehospitalizedatthetimeoftheSettlement Agreement.Heranalysisofeachindividual’ssupportneedshasbeensharedwiththeParties.
Finally,asstipulatedintheSettlementAgreement,thisreportwasprovidedindraftformtotheParties forreviewandcommentpriortosubmissiontotheCourt.Ameetingtodiscussthedraftreportwasheld onAugust25,2011.Subsequently,writtencommentsfromtheStatewerereceivedandreviewed.On September6,2011,theCommissioneroftheDepartmentofBehavioralHealthandDevelopmental DisabilitiesmetwiththeIndependentReviewerforamosthelpfuldiscussionofthedraftreport.His suggestionsforthereportandforcollaborativeeffortsinYearTwoweregreatlyappreciated.

ReviewofObligationsforYearOne
A.ServingPeoplewithDevelopmentalDisabilitiesintheCommunity
1.CessationofAdmissionstoStateHospitals
ByJuly1,2011,theStateagreedtoceasealladmissionstotheStateHospitalsofallindividualsfor whomthereasonforadmissionisduetoaprimarydiagnosisofadevelopmentaldisability.TheState alsoagreedtomakeanynecessarychangestoadministrativeregulationsandtakebesteffortstoamend anystatutesthatmayrequiresuchadmissions.
TheDepartmentofBehavioralHealthandDevelopmentalDisabilitiesdevelopedandimplementedthe GeorgiaCrisisResponseSystemforindividualswhoneedaccesstoalternatecareratherthanState HospitalswiththecessationofTemporaryandImmediateCareadmissions(TIC).
Therefore,asrequired,theDepartmentofBehavioralHealthandDevelopmentalDisabilitieshas stoppedadmissionsofindividualstoaStateHospitalduetoaprimarydiagnosisofadevelopmental

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disability.InHouseBill324,passedbyboththeHouseandtheSenate,theStateLegislatureamended Chapter4ofTitle37oftheOfficialCodeofGeorgiaAnnotated.
ThecessationofadmissionsisalandmarkaccomplishmentfortheState.Onanumberofoccasions,the CommissioneroftheDepartmentofBehavioralHealthandDevelopmentalDisabilitieshasexpressedhis intenttodevelopcommunityͲbasedalternativestoinstitutionalcareintheStateHospitals.No individualswithadevelopmentaldisabilityhavebeentransferredbetweenStateHospitalsin contradictionofthecommitmenttoceaseadmissions.
2.EnhancementofCommunityServices
TheStateagreedtomove150individualswithdevelopmentaldisabilitiesfromtheStateHospitalstothe communityandtocreate150HomeandCommunityͲBasedServicesWaiverstoaccomplishthis transition.Inaddition,theStateagreedtomovefromtheStateHospitalstothecommunityall individualswithanexistingandactiveWaiverasoftheeffectivedateofthisAgreement,providedsuch placementisconsistentwiththeindividual’sinformedchoice.TheStateagreedtoprovidefamily supportstoaminimumof400familiesofpeoplewithdevelopmentaldisabilities.
TheStateprovidedafinallistof192individualsplacedintocommunityresidentialsettingssupportedby theHomeandCommunityͲBasedServicesWaiverapprovedbytheCentersforMedicareandMedicaid Services.ThenumericaltargetundertheSettlementAgreementwasmet.
However,theSettlementAgreementalsorequiresthatthecommunityplacementsbeappropriately supportedbyservicesthatareindividualizedaccordingtotheperson’sstrengthsandneeds.
Inordertoevaluatetheindividualization,communityintegrationandappropriatesupportsofthe communityplacementsaccomplishedunderthetermsoftheSettlementAgreement,asampleoffortyͲ eightindividualswasselectedfromtheDepartment’slist;aproportionalrandomsamplingmethodwas usedtoensurerepresentationacrossthesixRegionsoftheDepartmentofBehavioralHealthand DevelopmentalDisabilities.
Themonitoringtoolusedtoreviewthecommunityplacementsfocusedonthepotentialforcommunity integration;thepresenceofindividualizedsupports;andtheprovisionofbasichealthcareand behavioralinterventions.Interviewswiththeindividual(insomecases,withassistancefromstaff) affordedinsightintotheexerciseofchoiceandtheaccessibilitytocommunityresourcesandactivities withindividualswithoutadisability.Sixindividualsinthesamplealsowereevaluatedbyapsychologist duetotheirneedsforintensivebehavioralsupports.
Theindividualsintherandomsamplewerepredominatelymale(69%);betweentheagesof31Ͳ40 (23%);andambulatorywithoutsupport(60%).Althougheighteenindividualscouldspeakwithout assistance,evenifspokenlanguagemightbelimited,supportstaffparticipatedinthemajorityof interviewsconductedduringthereviews.However,mostofthestaff(84%)hadknowntheindividual lessthanayear.

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Themajorityofresidentialsettingswerelocatednearcommunityresources,intypicalneighborhoods (98%).Mostoftheindividuals(87%)hadtheirownbedrooms;privatespacewasaccessiblefor98%of theindividuals,ifsodesired.Sitevisitsindicatedthatthemajority,butnotall,oftheresidenceswere clean(83%);freeofsafetyconcerns(94%);andhadadequatefoodandsupplies(96%).Therewereno morethanfourindividualsinanyoftheresidencesreviewedforthisreport.(Allplacementsreviewed metthisrequirementoftheSettlementAgreement.)Overall,giventhelocation,sizeandavailable resources,theresidencesprovidedareasonablefoundationforintegrationintothecommunity. However,physicalintegrationisnotthesameassocialintegration;thatis,active,meaningful participationintypicallyvaluedcommunityexperiences.
Forexample,withinthelastthreemonths,althoughalmostall(92%)oftheindividualsparticipatedin communityoutingsonaconsistentweeklybasis,most(61%)wentoutwiththeirhousematesasa group.Participationinreligiousactivitieswasexperiencedbythemajorityofindividuals(83%)but participationincommunityclubsororganizations,alsoconsideredopportunitiesforfriendshipsand naturalsupports,wasenjoyedbyonlyaquarter(25%)oftheindividuals.Neighborshadnotbeenmetby overathird(37%)oftheindividuals,despitethecloseproximityoftheirresidencesinneighborhood settings.
Thechoicesmadeavailabletotheindividualsinthesampleappearedtobelimited.Nearly11%ofthe individualsreviewedwantedtoberegisteredtovote;overhalfoftheindividualsdidnotopentheirown mail;andoverathird(35%)didnotparticipateinbuyingorselectingtheirownclothes.Choicesabout dayprogramsweredocumentedtobelimited,aswell.Although31%oftheindividualsinterviewed chosetheirowndayprograms,18%ofthoseaskedthisquestionrespondedthattheywouldratherbe doingsomethingelseduringtheday.Mostoften,thepreferredactivitywasemployment.
Forexample,A.A.,whowasinterviewedathisdayprogram,refusedtoparticipateintheclassroom activities.Headamantlyfashionedhisownscheduleasajanitor’shelperandexpressedhisinterestin beingabletofindajanitorialpositionandtohavehisownapartment.B.B.andC.C.bothstatedthat theywouldratherhaveajobthanattendadayprograminacongregatesetting.
IndividualSupportPlansweredocumentedforeachofthefortyͲeightindividualsinthesample. However,therewerenotablegapsintheprovisionofidentifiedsupports.Forexample,habilitationfor anindividualwithadevelopmentaldisabilityrequiresthattherebecontinuous,individualized opportunitiesfortheacquisitionandexerciseofskills,regardlessoftheircomplexity.Atthetimeofthe review,itwasdocumentedthatfourteenindividuals(30%)lackedconsistentdayprogramactivities.An inordinateamountoftimeinbedduringthedaywasnotedforD.D.andE.E.TheIndividualSupportPlan documentationreviewedforF.F.statedthatapprovalforhisdayprogram“willbeawhiledueto workingontheremainingindividualsintheStateHospitalandgettingthemoutinthecommunity.”G.G. wasincarceratedandlosthisdayprogram;thelackofdayprogramactivitiesorsupportedemployment placeshimatrisk.
Inadditiontotheabovereferencedissuesabouthabilitation,thereviewssurfacedanumberof concernsabouttheprovisionofadequatehealthcare.Inreportingtheseconcerns,itisrecognizedthat

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hosthomeswillnothavethelevelofdocumentationornursingpresencefoundininstitutionalsettings. Nonetheless,itisimportantthatreliablesystemsbeinplacetomonitorhealthandtoinitiate interventionsinatimelymanner.Forexample,in35%oftheindividualsreviewed,weightfluctuations werenottrackedandaddressed.ItwasdocumentedthatH.H.,whohasahistoryoffecalimpaction,did nothaveabowelmovementforeightdaysandtherewasnoattentionpaidtothat;I.I.didnotreceive herdietarysupplementasorderedand,consequently,lostfourteenpoundsbetweenSeptember9, 2010andMarch24,2011;themanagementofJ.J.’snutritionalstatuswasofconcernduetothefailure toimplementthenutritionist’srecommendation.
Medicationsandmedicationadministrationwerereviewedduringthesitevisits.Unsafepracticeswere observedwithatleastfiveindividualsbeingpresentedas“selfͲmedicatingwithstaffassistance.”Itwas obvioustothereviewersthatcertainindividualswerenotcapableofselfͲadministeringtheir medicationsandthatunlicensedstaffwereactuallycompletingallthestepsofthemedication administration.Forexample,unlicensed/untrainedstaffwereactuallycrushingthemedicationsand administeringtheminapplesauceorpuddingundertheguiseofselfͲadministration.Thesepractices appearedtobeinviolationoftheGeorgiaNursePracticeAct.
Theuseofpsychotropicmedicationswasdocumentedfor57%oftheindividualsreviewedinthe sample.Theavailabledocumentationindicatedthatconsenttopsychotropicmedicationwaspresentin thirteen(48%)oftheapplicableindividualcases.However,thepersonprovidingconsentinsevenof thesecaseswastheindividualwithadevelopmentaldisabilityand,intwocases,theprovider.Giventhe potentialsideeffectsofpsychotropicmedication,thiswasamatterofgraveconcern.Itiscriticalthat theStatetakethenecessaryactionstoensurethatproperconsentisobtainedforpsychotropic medication(andanyothermedicalprocedureorBehaviorSupportPlan)priortodischargefromthe StateHospital.
TheDepartmentofBehavioralHealthandDevelopmentalDisabilitieswasinformedpromptlyofthe mostcriticalissuesdocumentedduringtheindividualreviews.Althoughnotspecificallyrequiredunder theSettlementAgreement,procedureshavebeeninstitutedtoinvestigateconcernsanddevelop correctiveactionplans.Forexample,inthecaseofoneindividualwhowasreͲhospitalizedafterhis communityplacement,theDepartmentconductedarootcauseanalysisanddocumentedthefollowing “lessonslearned”:inadequatesupportduringtransition;theneedforabetterworkingrelationship betweentheadvocacysystemandhospitalstaff;theneedforproviderstomeetwithlocallaw enforcementofficersasappropriate;delaysinobtainingproviderlicensureimpactnegativelyon transitions;pressuretotransitionindividualsoutintothecommunitycanresultininadequatesupport andreadmission;andtrainingeffortsshouldincludeboththehospitalandthecommunity.
Furthermore,afterreviewingthedraftreport,theCommissioneroftheDepartmentofBehavioral HealthandDevelopmentalDisabilitiesreiteratedhiscommitmenttotheprincipleofcommunity integration.HeaskedtheIndependentReviewertoworkwithhimandhisstafftodiscussanddevelop specificoutcomemeasuresforuseinYearTwotodeterminetheextentofcommunityintegrationfor individualsplacedfromtheStateHospitals.

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AtthetimethattheSettlementAgreementwassignedbytheCourt,therewereelevenindividualsin theStateHospitalswithanexistingWaiver.Asofthisdate,nineofthoseindividualshavebeen dischargedtocommunityplacements;twoindividualsremainhospitalized.Delaysinplacementwere duetotheneedtoaddressproviderͲrelatedissuesandfamilyconcerns.TheDepartmentofBehavioral HealthandDevelopmentalDisabilitiescontinuestopursueappropriatecommunityresidentialsupports forbothoftheseindividuals.
TheDepartmentofBehavioralHealthandDevelopmentalDisabilitiessubmittedalistofover2000 individuals(2291)towhomfamilysupportswereprovidedundertheWaiver.Anextensiveinterview, includingthereviewofsupportingdocumentation,withamajorprovideroffamilysupportservices confirmedthattheDepartmenthasmetthisprovisionoftheSettlementAgreement.
3.AssessingQuality
BytheeffectivedateofthisAgreement,theStateagreedtouseaCentersforMedicareandMedicaid ServicesapprovedQualityImprovementOrganization(“QIO”)orQIOͲlikeorganizationtoassessthe qualityofservicesbycommunityproviders.
The Department of Behavioral Health and Developmental Disabilities has selected the Delmarva Foundation to design and implement a quality assurance review process. Delmarva is a Federally DesignatedExternalQualityReviewOrganization(EQRO)asdesignatedbytheCentersforMedicareand MedicaidServices.Underitscontract,itisresponsibleforassessingthequalityofservicesbycommunity providersforindividualswithadevelopmentaldisability.ThelastavailablereportwasdatedAugust31, 2010. The forthcoming annual report will be reviewed and discussed in the evaluation of the Quality ManagementSystemtobeinstitutedbytheStatenolaterthanJanuary1,2012.

B.ServingPersonswithMentalIllnessintheCommunity
InreviewingtheactionstakentocomplywiththisSectionoftheSettlementAgreement,fourexpert consultantswereretainedbytheIndependentReviewertoassessandevaluatetheimplementationof supportedemployment,supportedhousingandAssertiveCommunityTreatment(ACT).Thisapproach wastaken,incontrasttothereviewsofindividualswithadevelopmentaldisability,inorderto determinewhethertheappropriatefoundationwasbeingconstructedtosupportandsustainthe adherencetofidelityrequiredbytheSettlementAgreement.(Nextyear’sreportwillincludeareviewof adiscretesampleofindividualswithaseriousandpersistentmentalillness.)
ThereportsfromthefourexpertshavebeenprovidedtotheParties.Discussionsaboutsupported housing,supportedemploymentandAssertiveCommunityTreatmentwerecontinuingwiththe DepartmentofBehavioralHealthandDevelopmentalDisabilitiesatthetimethisreportwasbeing finalized.
1.TargetPopulation

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ByJuly1,2011,theStateistoensurethatallindividualsontheMentalHealthOlmsteadListasofthe EffectiveDateofthisAgreement,ifeligibleforservices,willreceiveservicesinthecommunityin accordancewiththisSettlementAgreement.
WhentheSettlementAgreementwasapprovedbytheCourt,thereweretwentyͲsevenindividualson theOlmsteadList.AccordingtotheDepartmentofBehavioralHealthandDevelopmentalDisabilities,all havebeendischargedfromtheStateHospitalandreceiveservicesinthecommunity.Theseindividuals willbereviewednextyear.
2.IntensiveServicesforIndividualswithSevereandPersistentMentalIllness
a.AssertiveCommunityTreatment(ACT):
TheSettlementAgreementrequiresthatalleighteenACTteamswilloperatewithfidelitytothe DartmouthAssertiveCommunityTreatmentmodel.
OnJuly18,2011,asrequiredbytheprovisionsoftheSettlementAgreement,theDepartmentof BehavioralHealthandDevelopmentalDisabilitiesreportedthatithasestablishedeighteenACTteams. TheteamsareoperatedbyAnkaBehavioralHealth(8teams);FultonͲDekalbHospitalAuthority(2 teams);GRNCommunityServicesBoard(1team);AmericanWork(2teams);RiverEdgeBehavioral HealthSystems(1)team;AdvantageBehavioralHealthSystems(1team);andSouthwesternState Hospital(3teams).
A“ProgramOperationsManualforAssertiveCommunityTreatment(ACT)Teams”wasissuedon February10,2011.TherequirementsoutlinedinthisManualareconsistentwiththerequirementsof theSettlementAgreement,includingtheexpectationsthatACTservicesshallbeavailable24hoursper day,sevendaysaweekandthatallACTteamswilloperatewithfidelitytotheDartmouthAssertive CommunityTreatmentmodel.
InordertoassesstheeffectivenessofACTteamsandtodeterminewhethertheywereconsistentwith thestandardsreflectedintheDartmouthAssertiveCommunityTreatmentmodel,anexpertconsultant fromtheACTCenterofIndianarevieweddocumentationandmetwithrelevantstafffromthe DepartmentofBehavioralHealthandDevelopmentalDisabilities,providersofACTservicesand interestedstakeholders.
Inconductingherreview,withagreementfromtheParties,theexpertconsultantutilizedtheState HealthAuthorityYardstick(SHAY).Thisinstrumentwasdesignedbyagroupofmentalhealth researchersandimplementerswhowereinterestedinassessingthefacilitatingconditionsforthe adoptionofEvidenceͲBasedPracticescreatedbyastate’shealthormentalhealthauthority.TheState HealthAuthorityYardstickevaluatesplanning;theadequacyoffunding;traininginitiatives;leadership; thepresenceandeffectivenessofpoliciesandregulations;andthepresenceofqualityimprovement strategies.
TheCommissioneroftheDepartmentofBehavioralHealthandDevelopmentalDisabilitieshasagreed thattheStateHealthAuthorityYardstickisausefulmeasurebutthatinterͲraterreliabilityneedstobe

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established.TheIndependentReviewerhasagreedwiththisobservationandwillworkwiththe Departmentandtheexpertconsultantstoresolveanysuchquestionspriortoitsfutureuse.
Theexpertconsultant’sreportrecognizestheprioritizationofACTservicesbytheleadershipofthe DepartmentofBehavioralHealthServices;thepresenceofexperiencedteammembersintheState;the fundingmadeavailableasaresultoftheSettlementAgreement;andtheinitialattemptstoestablish fidelitymonitoringfunctions,althoughtheyarestillinrudimentarystages.
ThereportdoesproviderecommendationsforconsiderationbytheStateincludingenhancedtraining andtechnicalassistancetotheACTteams;adjustingtherequirementsforpriorauthorization;and providingclarificationonthefidelitymeasuresthattheACTteamsareexpectedtomeetforcontinued funding.
Initsresponsetothedraftreport,theDepartmentofBehavioralHealthandDevelopmentalDisabilities statedthatallACTteamshavehadatleastonereviewwithtechnicalassistanceduringandfollowingthe review.Thesereviewslastedonetothreedaysandincludedchartreviews,interviewswithindividuals, focusgroups,reviewsofpoliciesandattendanceatteammeetings.
Basedondiscussionswithproviders,thisstatementcouldnotbeconfirmedinitsentirety.Therefore,in YearTwo,theIndependentReviewer’sexpertswillevaluatetheprocessoffidelitymonitoring,fidelity scoreresults,andthetechnicalassistanceprovidedbasedonfidelitymonitoringfromboththeState andproviderperspective.
TheDepartmentalsoemphasizeditsprovisionoftrainingtotheACTteams.Thistrainingis acknowledgedbytheIndependentReviewer’sconsultant.
3.IntensiveCaseManagement
ByJuly1,2011,theStateagreedtohaveoneIntensiveCaseManagementTeamtoprovidecoordination oftreatmentandsupportservicesforindividualsinthetargetpopulation.
Infact,theStatehasestablishedtwoIntensiveCaseManagementTeams.Oneteamislocatedinthe Cobb/DouglasCountiesarea;thesecondteamislocatedinthemetroAtlantaregion.Thecaseloadsize andstaffingfortheIntensiveCaseManagementTeamcomplywiththeprovisionoftheSettlement Agreement.
4.CrisisServicesforIndividualswithSevereandPersistentMentalIllness
a. CommunityHospitalBeds
TheStateagreedtoretainfundingfor35bedsinnonͲStatecommunityhospitalswithoutregardasto whethersuchhospitalsarefreestandingpsychiatrichospitalsorgeneral,acutecarehospitals.These bedswereestablishedbeginninginApril2011.Therearenowfivecommunityhospitals(Cobb, NortheastGeorgiaMedicalCenter,TannerMedicalCenter,SummitridgeandPeachfordHospital)with contractstoprovideinpatientpsychiatriccaretoindividualsreferredthroughtheDepartmentof

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BehavioralHealthandDevelopmentalDisabilities.Inpart,thesecommunityhospitalsreplacetheState HospitalbedsnolongeravailableattheNorthwestRegionalHospitalinRome.
b. CrisisLine
TheGeorgiaCrisisandAccessLineisoperatedbyBehavioralHealthLink.AsrequiredbytheSettlement Agreement,thecrisislineisstaffedtwentyͲfourhoursaday,sevendaysaweekwithprofessionalsocial workersandcounselorstoassistinurgentandemergencyneeds.Callerswhoneedmoreroutine servicesaredirectlyconnectedtoanagencyoftheirchoiceandgivenanappointment.Dataoncrisis utilizationcanbeobtainedthroughitswebsite.
c. HousingSupports
AsofJuly1,2011,theStatewastoprovideatotalof100supportedhousingbedsforindividualswith seriousandpersistentmentalillnesswhoareinthetargetpopulation.InordertoevaluatetheState’s planning,developmentandsustainabilityofsupportedhousing,twoconsultantswithexpertiseinboth housingandcommunitymentalhealthwereretainedbytheIndependentConsultanttoconductsite visitsandinterviewswiththerelevanthousingspecialistsintheDepartmentofBehavioralHealthand DevelopmentalDisabilities.Providersofsupportedhousingandstakeholderswithaninterestinthis issuewerealsoinvitedtomeetwiththeexpertconsultants.
TheState’sdevelopmentofthe100supportedhousingbedstargetedforYearOneanditsprovisionof Bridgefundingtoatleast90individualswithaseriousandpersistentmentalillnesswerecommended bytheconsultants.TheyrecognizedtheexpertiseandexperienceoftheDirectorofHousing Development;theadherencetoqualitystandards;andtheplantodevelopaprioritizationprocess.At thesametime,theStatewasurgedtobeveryintentionalinitseffortstoensurethepopulationtargeted intheSettlementAgreementgetsaccesstoaffordablehousing.Also,itwasrecommendedthatthe DepartmentofBehavioralHealthandDevelopmentalDisabilitiescollaborateregularlywithstateand localhousingorganizationstoensurethatindividualswithdisabilitiesgettheirfairshareofthelimited availabilityofaffordablehousingandtomakecertainthatthehousingorganizationswhoqualifyfor stateandfederalresourcesactivelyseekthatfunding.
Theexpertconsultantscautionedthattheremustbeattentiontoinfrastructure,capacitybuilding,and collaborativeactionwithhousingagencypartnersandcommunityagencies,iffuturehousingtargetsare tobeachieved.Inaddition,theexpertconsultantssuggestedthattheDepartmentaugmentitsRecovery PlanningprocesseswithCriticalTimeintervention(CTI)orCommunitySupportPlanning(CSP)toolsto helpstaffandhospitalizedindividualsconsiderdirectplacementintosupportedhousingasanoption.
d. SupportedEmployment
AsrequiredinthisphaseoftheSettlementAgreement,therewereatleastseventyindividualsprovided withopportunitiesinYearOne.Infact,theStateexceededtheexpectationbysubmittingthenamesof 105individualswhowereenrolledinSupportedEmploymentPrograms.ThreeSupportedEmployment providersenrolledthemajorityoftheseindividualsbetweenMay1andJune30,2011.Ofthese

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individuals,eight(8%)werecompetitivelyemployedatdifferentbusinessesbyJune30,2011.Ofthose notyetemployed,fourteenindividualshadfirstcontactswithpotentialemployers;allbuttwoofthose contactswerewithinonemonthofenrollmentinSupportedEmploymentservices.Sinceindividuals wereassignedtotheSupportedEmploymentprovidersinMay,onlyeightwereemployedbyJuly1, 2011.Ahigherrateofemploymentwillbeexpectednextyear.
ThestructureandsubstanceofGeorgia’sSupportedEmploymentprogramswerereviewedbya consultanttotheIndependentReviewer.TheconsultantisonthestaffoftheDartmouthPsychiatric ResearchCenterandisexpertinthefieldofSupportedEmploymentforindividualswithaseriousand persistentmentalillness.
ThereportonGeorgia’sprogramsstressedthevaluableexpertiseofcertainprovideragencieswitha longhistoryofinvolvementwithSupportedEmploymentasanEvidenceͲBasedPractice.Theenthusiasm ofstakeholdersforemploymentasameanstowardsrecoverywasalsohighlightedasverypositive.
TheconsultantutilizedtheStateHealthAuthorityYardstick(SHAY),describedintheabovesection regardingAssertiveCommunityTreatment,tomeasuretheState’scommitmenttoSupported Employment,itstrainingandtechnicalassistanceefforts,anditsqualityassuranceefforts.
Thereportoffersseveralrecommendationsforconsideration,includingthedevelopmentofaplanfor thisEvidenceͲBasedPractice;inputfromstakeholdersintheplanningprocesswasencouraged.Other recommendationsincludeinvestinginworkforcetrainingandconsultation;identifyingaqualifiedstaff personwithsufficienttimetoleadtheimprovementprocessandcollaboratewithstakeholders;and addressingthelackofoutcomesrelatedtoSupportedEmploymentonasystemͲwidebasis.

C.ServicesintheCommunity
TheSettlementAgreementstatesthatindividualsundertheageof18shallnotbeadmittedto,or otherwiseserved,intheStateHospitalsoronStateHospitalgrounds,unlesstheindividualmeetsthe criteriaforanemancipatedminor.
AtthetimetheSettlementAgreementwassigned,therewerethreeminorsinstitutionalizedinState Hospitals.Thoseindividuals,twoteenagersandatenyearold,remainhospitalized.Thisobligationwas notmet.
ThePartiesagreedthattheStatewouldworkcooperativelywiththeIndependentReviewerandher nurseconsultanttomoveforwardonthedevelopmentandimplementationofappropriatelydesigned communityplacementsforthesethreeindividuals.Overthelastthreemonths,therehavebeen numerousassessmentsanddiscussions;thenurseconsultantconductedsitevisitsinorderto meet/observeeachoftheindividuals,reviewmedicalrecordsandinterviewrelevantstaff,includingthe MedicalDirectors.Thereisagreementthattwooftheindividualscanbesupportedinthecommunityby hostfamilieswithexperienceandsufficientassistance.Thethirdindividualisveryseriouslymedically compromised.Thereisagreementthatamovetoacommunityplacementatthistimewouldnotbein

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herbestinterest.TheIndependentReviewerandherexpertconsultant,whohasbeenveryengagedin theseongoingdiscussions,concurthatplacementshouldnotoccuratthistime.
Atthistime,neitherofthetwoplacementshasbeensecured.Therehavebeendifficultiesinidentifying and/orretainingappropriatehosthomeproviders.Intheinterim,withtheurgingoftheDepartmentof Justice,theyoungestchildhasbeguntoattendalocalpublicschoolwithappropriatesupportsforthe implementationofherIndividualEducationPlan.
Whilethreeminorsremaininstitutionalized,andtheurgencyofthisprovisionremains,thereisagood faitheffortunderwaytodevelopindividualizedsupportsandrelationshipswithqualifiedhostfamiliesso thatatleasttwooftheyoungpeoplecanbenefitfromtheexperiencesandrelationshipsofa communitysettingwithoutunnecessarydelays.

D.TransitionPlanning
IntheSettlementAgreement,theStateagreedtohaveatleastonecasemanagerperStateHospitalto reviewtransitionplanningforindividualswhohavechallengingbehaviorsormedicalconditionsthat impedetheirtransitiontothecommunity.
TheStatealsoagreedthatplanningfortransitiontothecommunitywillbetheresponsibilityofthe appropriateRegionalOfficeandwillbecarriedoutthroughcollaborativeengagementwiththe dischargeplanningprocessoftheStateHospitalsandprovider(s)chosenbytheindividualorthe individual’sguardian,whererequired.TheRegionalOfficeisrequiredtomaintainandsubmittothe StateHospitaladetailedlistofallcommunityproviders,includingallservicesprovidedbyeachprovider.
RegionalOfficeshaveassumedtheprimaryresponsibilityfordischargeplanningfromtheState Hospitals.Althoughthisobligationwillbestudiedinmoredepththisyear(YearTwo),therewas evidenceofcoordinateddischargeplanningandeffectivecollaborationintheplanningforthe communityplacementsofthetwoyounggirlsreferencedabove.Furthermore,theStatehasretained twoveryexperiencedandcapableconsultantstoassistintheassessmentanddischargeplanningfor individualswhohavechallengingmedicalconditionsthatmightimpedetheirtransitiontothe community.Basedonrecentexperiencewiththem,theyhavedemonstratedeffectiveproblemͲsolving skillsandflexibilityindesigningindividualizedsupports.Theseconsultantshaveworkedverycloselywith thenurseconsultantretainedbytheIndependentReviewer.
CopiesofthelistsofcommunityprovidersprovidedtotheStateHospitalswereobtained.Theselistsare updatedperiodically.

E.ImplementationoftheAgreement



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Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 28 of 29
TheStatehasmetitsobligationtoreportthedeathofanyindividualactivelyreceivingservicespursuant tothisSettlementAgreement.Thenotificationsofdeaths(andothercriticalincidents)havebeen followedbycopiesoftheinvestigationreportsandresponsestoqueriesbytheIndependentReviewer.
CorrectiveActionPlanswererequestedandreceivedfollowingnoticeofthedeathofK.K.Inthatcase, theallegationofneglectbythehosthomeproviderwassubstantiated.Asaresult,shenolongerhas responsibilityforvulnerableindividualsundertheresponsibilityoftheDepartmentofBehavioralHealth andDevelopmentalDisabilities.
BasedonaletterfromthefatherofL.L.,theCourthasaskedtheIndependentReviewertotake appropriateactiontoreviewthisindividual’sdeath.ThismatterwasdiscussedwiththePartiesatthe meetingheldonAugust25,2011.

Conclusion
TheState,throughitsDepartmentofBehavioralHealthandDevelopmentalDisabilities,has demonstratedgoodfaithandcommitmentinitsimplementationoftheYearOneobligationsunderthe SettlementAgreement.TheStateLegislatureapprovedthefundingessentialtothedevelopmentofthe requisiteprogramsand,inaddition,authorizedanunanticipatedexpansionoffundingfortheprovision offamilysupports.
AssummarizedthroughoutthisReport,anumberofimportantmilestoneshavebeenachieved, includingthecessationofadmissionstotheStateHospitalsduetoaprimarydiagnosisofa developmentaldisabilityandtheexpansionofresidentialplacementsfundedbytheHomeand CommunityͲBasedWaiver.ThementalhealthsystemintheStatehasbeenstrengthenedbytheaddition ofAssertiveCommunityTreatmentteams;twoIntensiveCaseManagementteams;communityhospital bedsinRegion1;andthecontinuingoperationoftheCrisisLine.Significantprogresshasbeenmadein theexpansionofsupportedhousingandintheopportunitiesforsupportedemployment.
WhilerecognizingtheimportantaccomplishmentsmadethroughthediligenteffortsoftheDepartment ofBehavioralHealthandDevelopmentalDisabilities,thisindependentreviewalsohighlightedcritical issuesrequiringcorrectiveaction.Thefailurestoprovidemeaningfulandadequatedayprogramming,to fullymonitorhealthcare,andtoobtaininformedconsentforpsychotropicmedicationsandbehavioral supportplanswerenotedforsomeoftheindividualsplacedfromtheStateHospitalsintocommunity settingsunderthetermsofthisSettlementAgreement.Theseconcernshavebeenbroughttothe attentionoftheDepartmentofBehavioralHealthandDevelopmentalDisabilities;correctiveactions havebeenidentifiedandimplemented.
Challengesremaininthedevelopmentofsupportedhousingandsupportedemployment;these challengescanaffectcompliancewiththeSettlementAgreementinthefuture.Inaddition,concerns wereraisedbysomekeystakeholdersabouttheavailabilityofcrisisandotherservicesinmorerural



22

Case 1:10-cv-00249-CAP Document 131 Filed 10/07/11 Page 29 of 29

areasoftheState.Theirconcernsarerelevanttothedevelopmentofmentalhealthservicesmandated bytheSettlementAgreement.

IndraftingthelanguageoftheSettlementAgreement,thePartiesstatedtheirintentthat“theprinciple ofselfͲdeterminationishonoredandthatthegoalsofcommunityintegration,appropriateplanningand servicestosupportindividualsatriskofinstitutionalizationareachieved.”Thisstatementofintentis entirelyconsistentwiththegoaloftheCommissioneroftheDepartmentofBehavioralHealthand DevelopmentalDisabilitiesthatacontinuumofservicesbereasonablyaccessibletoeveryGeorgianwith adisability.

Inthisbaselineyear,theStatehasdemonstratedthatitcanandwillhonoritsobligationtocomplywith thesubstantiveprovisionsoftheSettlementAgreement.













RespectfullySubmitted,













_______________/s/_______________











ElizabethJones,IndependentReviewer

 





October5,2011



23

 
 Case 1:10-cv-00249-CAP Document 30 Filed 07/15/10 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

_______________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

UNITED STATES’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT

Defendants State of Georgia, et al., administer Georgia’s mental health

services in a manner that warehouses individuals with mental illness,

developmental disabilities, and addictive diseases in dangerous institutions—

where they are subjected to homicide, rapes, suicides, assaults, and grievous

harm—that are not the most integrated setting appropriate to those

individuals’ needs. In the Complaint, the United States properly pleaded

claims of serious, systemic discrimination by the State in its administration

of its mental health system, claims upon which relief can and should be

granted. Accordingly, Defendants’ Motion to Dismiss, Doc. No. 28, should be

denied.

Case 1:10-cv-00249-CAP Document 30 Filed 07/15/10 Page 2 of 36
Defendants blithely mischaracterize the United States’ efforts at enforcing federal law as a “hostile takeover” due to a “recent change of policy and priorities.” Mot. Dismiss, Doc. No. 28, at 1, 28. The Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131–12134, was enacted more than 20 years ago, and the Supreme Court decided Olmstead v. L.C., 527 U.S. 581 (1999), interpreting the ADA more than 10 years ago. Yet Defendants, who operate the same hospital at issue in Olmstead, have failed to comply with the law’s mandate. Furthermore, Defendants’ motion to dismiss misreads the United States’ Complaint, misconstrues precedent, conflicts with prior positions taken before this Court, and demonstrates a fundamental lack of understanding by Defendants of their duties under federal law.
Remarkably, Defendants also attempt to bar the Complaint by citing to an agreement in the related case of United States v. Georgia, No. 1:09-cv-119-CAP (N.D. Ga.), despite a lack of a meeting of the minds over material terms in the agreement, Defendants’ failing to abide by this Court’s orders to address concerns with the agreement, and Defendants’ complete
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lack of willingness or ability to comply with the agreement. No agreement

exists to bar the Complaint.

Discussion

Defendants argue that the Court should dismiss the United States’

Complaint in this action because the Complaint fails to state a claim for

which relief may be granted, the United States lacks Article III standing, and

a settlement agreement bars the Complaint in this action. None of

Defendants’ arguments has merit.
A. The United States Pleaded Claims Under the ADA for Which Relief Can Be Granted

In deciding a motion to dismiss, a court “take[s] the factual allegations

in the complaint as true and construe[s] them in the light most favorable to

the plaintiffs.” Edwards v. Prime Inc., 602 F.3d 1283, 1291 (11th Cir. 2010).

“Dismissal for failure to state a claim is proper if the factual allegations are

not enough to raise a right to relief above the speculative level. . . . Stated

differently, the factual allegations in the complaint must possess enough heft

to set forth a plausible entitlement to relief.” Id. (internal quotation marks

omitted).

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Here, the United States alleged that Defendants administer Georgia’s mental health services in a manner that unjustifiably segregates individuals with mental illness, developmental disabilities, and addictive diseases in dangerous institutions, Compl. ¶¶ 11–76—where they are subjected to homicide, rapes, suicides, suicide attempts, questionable medical deaths, assaults by peers, regression and loss of skills from inadequate treatment and services, harm from excessive restraint and administration of sedating medications, harm from inadequate medical and nursing care, harm from the lack of services to persons with specialized needs, and harm from inadequate discharge planning, Compl. ¶¶ 11–76; Am. Compl., No. 1:09-cv-119-CAP, Doc. No. 53, Ex. A, at ¶¶ 32–189 (N.D. Ga. Jan. 28, 2010)—that are not the most integrated setting appropriate to those individuals’ needs, Compl. ¶¶ 25–76, in violation of the ADA, Compl. ¶¶ 77–80. A fundamental cause of the needlessly prolonged institutionalization of individuals in the State Hospitals and the attendant harm suffered there is Defendants’ failure to administer community-based supports and services adequately. Compl. ¶¶ 30, 33–37, 51–66, 72–74. The United States alleged claims upon which relief can and should be granted.
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Defendants argue that the United States’ Complaint fails to state a

claim under which relief can be granted because 1) reinstitutionalization is

not a cognizable injury under the ADA, 2) an appropriate remedy cannot be

fashioned, and 3) the United States’ requested remedy would fundamentally

alter the State’s mental health system. Defendants are wrong on all three

counts. 1.

Defendants discriminate against individuals with mental illness, developmental disabilities, and addictive diseases, in violation of the ADA.

Defendants argue that the United States failed to allege a cognizable

injury under the ADA because “[n]either the text of the ADA, the integration

mandate, nor the Olmstead decision supports the DOJ’s new re-

hospitalization theory of liability.” Mot. Dismiss at 13. Defendants reason

that “a person not receiving State services has no claim under the ADA” and

that “[t]he quality, quantity, or sufficiency of services needed to prevent

unjustified isolation for persons in the community is not a relevant inquiry

under the ADA.” Id. at 13–14. Defendants’ argument defies all logic and

precedent.

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As an initial matter, Defendants leave unstated and unchallenged the gravamen of the United States’ Complaint: individuals are institutionalized and remain institutionalized in the State Hospitals often for months and years past any legitimate need for hospitalization because Defendants fail to provide adequate services both in the Hospitals and in the community to enable these individuals to be served in the most integrated setting appropriate to their needs—the community. See Compl. ¶¶ 28–47. This alone warrants denying Defendants’ motion to dismiss the United States’ Complaint.
The argument that Defendants actually make displays a fundamental lack of understanding about the ADA. Congress enacted the ADA in 1990 to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits discrimination in access to public services by requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
6

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In Olmstead, 527 U.S. at 582, 600–01, the Supreme Court held that the discrimination forbidden under the ADA includes “unnecessary segregation” and “[u]njustified isolation” of individuals with disabilities. “Unjustified isolation of the disabled” amounts to discrimination because it “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and “severely diminishes everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 560–61.
The ADA’s integration mandate specifies that persons with disabilities receive services in the “most integrated setting appropriate to their needs.” 28 C.F.R. § 35.130(d). The “most integrated setting” is “‘a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.’” Olmstead, 527 U.S. at 592 (quoting 28 C.F.R. pt. 35 app. A). This mandate advances one of the principal purposes of Title II of the ADA—“ending the isolation and segregation” of people with disabilities. Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005).
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Contrary to Defendants’ unsupported assertions, the risk of institutionalization itself is sufficient to demonstrate a violation of the ADA.1 “Olmstead does not imply that disabled persons who . . . stand imperiled with segregation, may not bring a challenge to . . . state policy under the ADA’s integration regulation without first submitting to institutionalization.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003). The protections of the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Id. at 1181. In an opinion issued just last week in this Circuit, a district court granted a preliminary injunction where “Plaintiff ha[d] provided ample evidence that she will have to enter an institution in order to receive the in-home services that would allow her to
1 Defendants erroneously simplify the United States’ Complaint as alleging an injury of “reinstitutionalization.” See Mot. Dismiss at 12. Although the Complaint does allege discrimination against those subjected to repeated institutionalizations, see, e.g., Compl. ¶ 41 (discussing an individual “admitted more than 100 times to a State Hospital”), the Complaint also alleges discrimination against those at risk of institutionalization due to Defendants’ discriminatory administration of Georgia’s mental health system, Compl. ¶¶ 72–78.
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remain in the community.” Haddad v. Arnold, No. 3:10-cv-414, Doc. No. 49, at 30 (M.D. Fla. July 9, 2010); see also Marlo M. v. Cansler, 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010) (granting a preliminary injunction where “[t]ermination of funding by Defendants will force Plaintiffs from their present living situations, in which they are well integrated into the community, into group homes or institutional settings”); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1119 (N.D. Cal. 2009) (“[P]laintiffs who currently reside in community settings may assert ADA integration claims to challenge state actions that give rise to a risk of unnecessary institutionalization.”); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1170 (N.D. Cal. 2009) (“[T]he risk of institutionalization is sufficient to demonstrate a violation of Title II.” (emphasis in original)); Ball v. Rogers, No. 00-67, 2009 WL 1395423, at *5–6 (D. Ariz. April 24, 2009) (holding that the state’s “actions discriminated against Plaintiffs based upon their disabilities in violation of the ADA” because of the state’s “failure to provide adequate services to avoid unnecessary gaps in service and institutionalization”); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (concluding that the ADA’s integration mandate applies equally to those individuals already institutionalized and to
9

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those at risk of institutionalization); Makin v. Hawaii, 114 F. Supp. 2d 1017, 1034 (D. Haw. 1999) (allowing an ADA challenge where the “statute could potentially force Plaintiffs into institutions”); Mental Disability Law Clinic v. Hogan, No. 06-cv-6320, 2008 WL 4104460, at *15 (E.D.N.Y. Aug. 28, 2008) (unpublished decision) (“[E]ven the risk of unjustified segregation may be sufficient under Olmstead.”); Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506, at *30 (M.D. Tenn. Dec. 19, 2008) (unpublished decision) (“Plaintiffs have demonstrated a strong likelihood of success on the merits of their [ADA] claims that the Defendants’ drastic cuts of their home health care services will force their institutionalization in nursing homes.”).
Defendants’ citations to Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006), and Lincoln CERCPAC v. Health & Hospitals Corp., 147 F.3d 165 (2d Cir. 1998), are inapposite. Buchanan, by its express terms, “was not about discriminatory denial of services, but rather about the adequacy of treatment” provided to an individual with mental illness who was killed in an unfortunate encounter with the police. 469 F.3d at 173. The question of risk of institutionalization simply was not presented. And Lincoln, decided pre-Olmstead, based its holding on the proposition that, to establish a
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violation of the ADA, individuals with disabilities must allege disparate treatment compared to individuals who are not disabled, 147 F.3d at 167–68, a proposition that the Supreme Court squarely rejected in Olmstead, 527 U.S. at 598 (“We are satisfied that Congress had a more comprehensive view of the concept of discrimination advanced in the ADA.”). Consequently, Defendants advance no applicable legal support for their argument.
In short, the Complaint alleges cognizable violations of the ADA regarding both individuals institutionalized in the State Hospitals and individuals at risk of institutionalization in the State Hospitals. Defendants’ motion to dismiss for failing to state a cognizable injury under the ADA should be denied.
2. The United States requests an adequate remedy. Defendants next challenge the remedies sought by the United States and this Court’s authority to order them. Mot. Dismiss at 15–21. This argument, like many of the others raised by Defendants, is inappropriate for a motion to dismiss. As an initial matter, the demand for relief in a complaint need not be lengthy or detailed. Indeed, the Federal Rules of Civil Procedure mandate
11

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only that a demand for relief be “short,” “plain,” and “concise.” Fed. R. Civ. P. 8. The precise relief sought can be set forth later in the proceedings, and the Federal Rules of Civil Procedure permit the demand for relief to be amended at a later date if necessary. See Kenny A. v. Perdue, 218 F.R.D. 277, 286 n.5 (N.D. Ga. 2003) (noting that, on motion to dismiss, the relief sought by plaintiffs included declaratory relief and an injunction enforcing constitutional and statutory rights without detailing the precise contours of the relief, but that “the Court is confident that, if plaintiffs prevail on their claims, specific relief can be crafted”); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1255 (3d ed. 2004) (“The liberal policies reflected in Rules 15(a) and 15(b) permit the demand to be amended either before or during trial.”).
Perhaps more importantly, the Court may grant any relief to which the party is entitled, “even if the party has not demanded that relief in its pleadings.” Fed. R. Civ. P. 54(c); see also 5 Wright & Miller, Federal Practice and Procedure § 1255 & n.8 (3d ed. 2004) (collecting cases). Thus, even if the United States’ prayer for relief is somehow infirm, and it is not, the
12

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appropriate remedy would not be to dismiss the complaint, but to grant the relief to which the United States is entitled based on the evidence at trial.
In any event, the relief requested by the United States is not impermissible. The United States has alleged that the State unnecessarily isolates and segregates hundreds of individuals with disabilities, see Compl. ¶¶ 31–32, that these individuals make up the vast majority of the residents in the State Hospitals, see id.,2 and that a fundamental cause of this segregation is the dearth of community resources, see Compl. ¶¶ 30, 33–37, 51–66, 72–74. A request that the Court order the State to develop additional community supports and services—community supports and services already provided by the State, see Compl. ¶¶ 51, 57, 59, 61, 63, 65–66, but not in sufficient quantity, quality, or geographic diversity—so that Defendants
2 Once these individuals transition to the community, the population in the State Hospitals will be greatly reduced, so the United States’ request that the Hospitals serve as a last resort for those for whom community services have been exhausted is appropriate. See Compl. at Prayer for Relief. Notably, this is not a request that the Court order the State to “phase out” institutions as Defendants allege, but rather to reduce the Hospitals to their proper function. See Olmstead, 527 U.S. at 600–02 (stating that “institutional placement of persons who can handle and benefit from community settings” is discrimination under the ADA, but the ADA does not require “termination of institutional settings for persons unable to handle or benefit from community settings”).
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“administer behavioral health services in the most integrated setting appropriate to the needs of the individuals with disabilities,” Compl. at Prayer for Relief, is precisely the appropriate relief to remedy the violations of federal law alleged in the Complaint. Cf. 28 C.F.R. § 35.130(d) (1998) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”). Indeed, other courts have ordered relief similar to that requested by the United States. See, e.g., Disability Advocates, Inc. v. Paterson, 653 F. Supp.2d 184, 312–14 (E.D.N.Y. 2009); Marlo M., 679 F. Supp. 2d at 638; Ball, 2009 WL 1395423, at *5–6.3
The very cases cited in the Motion to Dismiss recognize that the Court has the authority to order the relief requested by the United States. Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977), see Mot. Dismiss at 17, is the seminal case on the broad authority granted to federal courts to order measures necessary to remedy past discrimination. As that case recognized, if state and local authorities “‘fail in their affirmative obligations’” as the
3 These were not mere “obey the law” injunctions, and the United States is confident that the relief crafted in this case will similarly be specific and enforceable. Cf. Mot. Dismiss at 20–21.
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United States has alleged here, “‘judicial authority may be invoked.’” 433 U.S. at 281 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). “Once invoked, ‘the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.’” Id. In Milliken II, the Supreme Court upheld the District Court’s remedial order designed to ameliorate the effects of racial segregation in the Detroit Public Schools. 433 U.S. at 279. The order included, among other things, the transportation of over 50,000 students; the provision of magnet schools and vocational high schools; several remedial programs, including training for teachers and administrators, guidance and counseling programs, revised testing procedures, and a reading program; and that the cost of the programs would be borne equally by the school district and the State. 433 U.S. at 272–77.
Similarly, Rogers v. Lodge, 458 U.S. 613 (1982), see Mot. Dismiss at 17, upheld the District Court’s order requiring that the county institute singlemember districts to elect members to the Board of Commissioners to remedy past discrimination. 458 U.S. at 627–28. Rather than suggesting that the Court lacks the authority to order the relief requested by the United States
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as Defendants contend, these cases instead support the Court’s broad authority to remedy the discrimination alleged in the United States’ Complaint.
Defendants’ remaining assertions regarding the United States’ requested relief misconstrue the Complaint and dispute facts alleged therein. As an initial matter, on a motion to dismiss, the United States prevails if Defendants’ arguments merely dispute facts which, if true, state a claim. See Edwards, 602 F.3d at 1291. And, as previously established, the failure to address the risk of institutionalization is cognizable under Title II of the ADA, so this argument fails. Moreover, Defendants’ failure to provide community services that are sufficient in quantity and quality does state a discrimination claim under the ADA, cf. Mot. Dismiss at 19, if the failure to provide the quantity and quality of community services results in unjustified isolation and segregation. See Olmstead, 527 U.S. 600–01. The unreported case cited by Defendants in support of their contention explicitly recognizes this point. See Johnson v. Murphy, No. 8:87-CV-369-T-24TBM, 2001 U.S. Dist. LEXIS 24013, at *55 (M.D. Fl. June 28, 2001) (“[W]hile the plaintiffs offered evidence that community services and facilities could be different and
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in some instances better, they have failed to prove that the defendants’ mental health program, as administered, results in unnecessary isolation of patients into segregated settings.” (emphasis added)). Of course, that is precisely what the United States alleges here: that the insufficient quantity, quality, and geographic diversity of the State’s community services have resulted in unnecessary and unlawful segregation. See Compl. ¶¶ 30–37, 51– 66, 72–74. Because the allegations of the Complaint must be taken as true at this stage in the proceedings, Defendants’ argument is without merit.
Likewise, Defendants misconstrue the Complaint when they assert that the United States seeks to require the State to provide new and additional services, purportedly in violation of the Court’s ruling in Olmstead. See Mot. Dismiss at 18–19. The Complaint plainly asserts, however, that the State already in fact provides these services, see Compl. ¶¶ 51, 57, 59, 61, 63, 65–66, but not in sufficient quantity, quality, or geographic diversity in the community; cf. Olmstead, 527 U.S. at 603 n.14 (“States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” (emphasis added)). Indeed, many of the services that Defendants provide in the State Hospitals could easily be
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provided in the community. See, e.g., Compl. ¶ 49. As with L.C. and E.W.—
the plaintiffs in Olmstead who were unnecessarily segregated in one of the
State Hospitals at issue here—the individuals with disabilities addressed in
the Complaint suffer discrimination when they are unnecessarily segregated
because Defendants do not have community services in sufficient quantity,
quality, or geographic diversity, even though Defendants provide the services
to other individuals with disabilities. See id. at 597–603.4
4 Defendants also assert that, “In the wake of Olmstead, Circuit courts also have opined against attempts to use the ADA as a tool to require states to provide additional behavioral health services.” Mot. Dismiss at 18–19. None of the cases cited by Defendants stand for this proposition. Three of the cases cited by Defendants predate the decision in Olmstead, and they each plainly conflict with Olmstead’s holding. Lincoln, 147 F.3d 165, and Doe, 148 F.3d 73, both decided the year before the Olmstead decision, base their holdings on the proposition that, to establish discrimination in violation of the ADA, individuals with disabilities must allege disparate treatment compared to individuals who are not disabled. See Lincoln, 147 F.3d at 167– 68; Doe, 148 F.3d at 83-84. Olmstead flatly contradicts this holding; indeed, it is the precise issue upon which the dissent is based. Olmstead, 527 U.S. at 598 & n.10. Connor v. Branstad, 839 F. Supp. 1346 (S.D. Ia. 1993), also predates Olmstead and, curiously, holds that nothing in the ADA’s legislative history calls for “deinstitutionalization of mentally disabled individuals.” Connor, 839 F. Supp. at 1357–58. As the decision in Olmstead recognized, the legislative findings for the ADA explicitly identify the unjustified segregation of individuals with disabilities as a form of discrimination. Olmstead, 527 U.S. at 600. Buchanan, 469 F.3d 158, is inapposite. Buchanan concerned an individual with mental illness who was killed in a
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Because the allegations in the Complaint and the prayer for relief are
adequate, particularly at this stage in the proceedings, Defendants’ motion to
dismiss should be denied. 3. The United States does not seek a fundamental alteration of Defendants’ services.
Defendants argue that the Complaint is barred because it seeks a fundamental alteration of Defendants’ mental health services. Motion to Dismiss at 21–24. Defendants reason that the Complaint “seek[s] to require the State to increase and enhance community services” and that “the breadth of DOJ’s requested remedy . . . is facially a fundamental alteration to Georgia’s mental health system.”5 Id. at 23–24. Once again, Defendants
tragic encounter with the police. It was uncontested that the individual was receiving services from the State, and the dispute was over whether the services the individual received were adequate. 469 F.3d at 175. The plaintiff presented no evidence that the additional services were required, and the individual refused some of the services. Id. at 176. 5 Defendants also note that, “[b]y raising the fundamental alteration defense, Plaintiff put the defense before this Court for consideration on a motion for dismiss” and imply that the Court can dismiss the Complaint merely because of “‘the existence of an affirmative defense.’” Motion to Dismiss at 23 (quoting Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993)). Defendants’ quotation of Fortner is misleading. “[G]enerally, the existence of an affirmative defense will not support a rule 12(b)(6) motion to dismiss for failure to state a claim.” Fortner, 983 F.2d at 1028. When a complaint indicates the existence of an affirmative defense, a court still “must
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advance an argument that defies logic and precedent, has no legal support, and presents a factual dispute inappropriate in a motion to dismiss.
“[P]ublic entities are required to ‘make reasonable modifications in policies, practices, or procedures’ in order to avoid the discrimination inherent in the unjustified segregation of the disabled.” Fisher, 335 F.3d at 1181 (quoting 28 C.F.R. § 35.130(b)(7)). As alleged in the Complaint, “the State already provides the services that the Patients require to live in a more integrated setting,” and “[p]roviding supports and services in the community to Patients with developmental disabilities, mental illness, or substance abuse diagnoses can generate significant cost savings compared to the cost of institutionalizing Patients in the State Psychiatric Hospitals.” Compl. ¶¶ 52, 79. Under those facts, which must be accepted as true and construed in the light most favorable to the United States, Edwards, 602 F.3d at 1291, the United States requests, at most, a reasonable modification of Defendants’ services. Thus, Defendants’ argument must fail.
A state’s obligation to provide services in the most integrated setting may be excused only where a state can prove that the relief sought would
examine the complaint . . . under the most favorable version of the facts alleged.” Id. (internal quotation marks omitted).
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result in a “fundamental alteration” of the state’s service system. See Olmstead, 527 U.S. at 601–03. Fundamental alteration is a defense that Defendants have the burden of establishing. See Olmstead, 527 U.S. at 603; Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 492 n.4 (3d Cir. 2004); Disability Advocates, 653 F. Supp. 2d at 301 n.890. “[W]hether an accommodation causes a fundamental alteration is an intensively fact-based inquiry.” Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 845 (9th Cir. 2004).
Defendants rest their entire argument on the observation that they would have to modify their provision of community services in order to comply. This specious argument has been rejected by the courts:
[P]olicy choices that isolate the disabled cannot be upheld solely because offering integrated services would change the segregated way in which existing services are provided. . . . [P]recisely that alteration was at issue in Olmstead, and Olmstead did not regard the transfer of services to a community setting, without more, as a fundamental alteration. Townsend v. Quasim, 328 F.3d 511, 519 (9th Cir. 2003). Notably, although Defendants mention that a state might comply with the ADA by having a “‘comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a
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waiting list that move[s] at a reasonable pace,’” Motion to Dismiss at 22 (quoting Olmstead, 527 U.S. at 605–06), Defendants do not assert that they have either a comprehensive, effectively working plan, or a waiting list that moves at a reasonable pace. Any such argument would raise a factual dispute inappropriate for a motion to dismiss and, ultimately, would fail. As alleged in the Complaint, all of the nearly 800 individuals with developmental disabilities in the State Hospitals can be served successfully in a more integrated setting in the community and yet remain institutionalized. Compl. ¶ 32. Because Defendants cannot show that they have a comprehensive, effectively working plan, any fundamental alteration defense must fail. See Pa. Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005) (“[T]he only sensible reading of the integration mandate consistent with the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA . . . .”).
Defendants also do not raise a cost-based fundamental alteration argument, which also would fail. See id. at 380 (3d Cir. 2005) (“[B]udgetary constraints alone are insufficient to establish a fundamental alteration
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defense.”); Fisher, 335 F.3d at 1183 (“If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.”); see also Disability Advocates, 653 F. Supp. 2d at 308 (concluding that, because the relief requested would save the state money, it would not interfere with the state’s ability to serve others with mental illness).
In short, the United States requests a reasonable modification of Defendants’ mental health services. Defendants’ motion to dismiss under a fundamental alteration defense should be denied. B. The United States Has Article III Standing
Defendants argue that the United States lacks Article III standing. Mot. Dismiss at 24–28. To establish Article III standing, a plaintiff “must demonstrate: 1) an injury in fact or an invasion of a legally protected interest; 2) a direct causal relationship between the injury and the challenged action; and 3) a likelihood of redressability.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1223 (11th Cir. 2004) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “Redressability is established . . . when a favorable decision ‘would amount to a significant increase in the
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likelihood that the plaintiff would obtain relief that directly redresses the injury suffered,’” Harrell v. Fla. Bar, No. 09-11910, 2010 WL 2403344, at *14 n.7 (11th Cir. June 17, 2010) (quoting Utah v. Evans, 536 U.S. 452, 464 (2002)), as opposed to “a significantly more speculative likelihood of obtaining ultimate relief,” Evans, 536 U.S. at 464.
Defendants do not dispute that the United States’ Complaint properly demonstrates an injury in fact, nor do they clearly articulate whether they challenge the causality and/or redressability of the allegations in the United States’ Complaint. See Mot. Dismiss at 25–28. Regardless, the United States’ Complaint demonstrates both causality and redressabilty to establish Article III standing.
As alleged in the Complaint, Defendants administer Georgia’s mental health services, Compl. ¶¶ 11–24, and they administer those services in a manner that unjustifiably segregates individuals with mental illness, developmental disabilities, and addictive diseases in dangerous institutions. See Compl. ¶¶ 11–76; Am. Compl., No. 1:09-cv-119, at ¶¶ 32–189 (N.D. Ga. Jan. 28, 2010). The Complaint further alleges that the institutions are not the most integrated setting appropriate to those individuals’ needs, see
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Compl. ¶¶ 25–76, in violation of the ADA, see Compl. ¶¶ 77–80, and that a fundamental cause of the needlessly prolonged institutionalization of individuals in the State Hospitals and the attendant harm suffered there is Defendants’ failure to administer community-based supports and services adequately. Compl. ¶¶ 30, 33–37, 51–66, 72–74.
Defendants attempt to disclaim responsibility by relying on the fact that they utilize third parties to provide mental health services in the community, but this reliance betrays Defendants’ fundamental misunderstanding of their obligations under federal law to administer those services in a nondiscriminatory manner.6 See Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 317–18 (E.D.N.Y. 2009) (“Discrimination, in
6 This reliance is also both improper and incorrect. In deciding a motion to dismiss, a court “take[s] the factual allegations in the complaint as true and construe[s] them in the light most favorable to the plaintiffs.” Edwards, 602 F.3d at 1291. Defendants attempt to introduce facts about the State’s relationship with these third parties that were not alleged in the United States’ Complaint and construe them in the light most favorable to Defendants. Moreover, Defendants’ statement that “the State only funds community services that are provided by third parties,” Mot. Dismiss at 25, is incorrect. Under Georgia law, “community service boards may enroll and contract . . . to become a provider of mental health, developmental disabilities, and addictive diseases services . . . . Such boards shall be considered public agencies. Each community service board shall be a public corporation and an instrumentality of the state.” O.C.G.A. § 37-2-6(a).
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the form of unjustified segregation of individuals with disabilities in institutions, is thus prohibited in the administration of state programs. . . . The State cannot evade its obligation to comply with the ADA by using private entities to deliver some of those services.” (emphasis in original)); 28 C.F.R. § 35.130(d) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” (emphasis added)).
Georgia law bestows upon Defendants the authority and responsibility to administer Georgia’s mental health system, in direct contravention of their suggestion that they are powerless to rectify the alleged discrimination because of the involvement of third parties and, thus, that any court order would lack redressability. Defendants “[e]stablish, administer, and supervise the state programs for mental health, developmental disabilities, and addictive diseases,” O.C.G.A. § 37-1-20(1), “[h]ave authority to contract for services with community service boards, private agencies, and other public entities for the provision of services within a service area so as to provide an adequate array of services and choice of providers for consumers and to comply with the applicable federal laws and rules and regulations,” id. § 37-1-
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20(5), “[e]stablish, operate, supervise, and staff programs and facilities for the treatment of disabilities throughout th[e] state,” id. § 37-1-20(12), “adopt and promulgate written rules, regulations, and standards as may be deemed necessary . . . and which shall be the basis of state financial participation in mental health, developmental disabilities, and addictive diseases programs,” id. § 37-1-22, “enter into contracts . . . with any hospital, community service board, or other public or private providers,” id. § 37-2-5.2(5), “[s]upervise the administration of contracts with any hospital, community service board, or any public or private providers,” id. § 37-1-20(16), “allocate funds available for services so as to provide an adequate disability services program,” id. § 37-2-11(a), and “ensure that all providers, public or private, meet minimum standards of quality and competency,” id. Given the scope of authority Defendants exercise over every aspect of Georgia’s mental health system, a court order regarding Defendants’ administration of Georgia’s mental health services in compliance with the ADA and Olmstead would redress the injuries alleged in the United States’ Complaint.7
7 Defendants charge that the United States “set up an artificial and baseless definition of a term ‘supported housing,’ and then allege that
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Defendants also state that “the type of relief that could be available is limited to that which compels the State to move persons in the State Psychiatric Hospitals into the community at a reasonable pace,” and that “[t]he Complaint does not allege that Georgia is not moving persons out of institutions at a reasonable pace.” Mot. Dismiss at 25. As previously discussed in Section A, the type of relief under the ADA is not so limited, but even if it were, Defendants misread the Complaint. For example, as alleged, all of the nearly 800 individuals with developmental disabilities in the State Hospitals can be served successfully in a more integrated setting in the community and yet remain institutionalized. Compl. ¶ 32. By definition, those individuals are not moving into the community at a reasonable pace. In any event, Defendants can introduce evidence to this Court if they believe
Georgia does not provide sufficient housing services.” Mot. Dismiss at 28. The United States notes that the term supported housing is a common and understood term in the field, see Disability Advocates, 653 F. Supp. 2d at 218–19 (“Supported housing . . . is a setting in which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community.”), and Defendants’ own documents recognize the paucity of this service in Georgia, see Governor Sonny Perdue’s Mental Health Service Delivery Commission Final Report 7, 15–18 (Dec. 4, 2008), cited by Compl. ¶ 55, available at Mot. Immediate Relief, No. 1:09-cv-119-CAP, Doc. No. 55-28 (Jan. 28, 2010).
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that they are moving individuals into the community at a reasonable pace, but this defense is a factual matter inappropriate for a motion to dismiss.
The United States’ Complaint demonstrates an injury in fact, a direct causal relationship between the injury and the challenged action, and a likelihood of redressability. Defendants’ motion to dismiss for lack of Article III standing should be denied. C. No Agreement Exists to Bar the Complaint
Defendants extensively discuss an agreement entered into between the United States and the State of Georgia in a related case, United States v. Georgia, No. 1:09-cv-119-CAP (N.D. Ga.).8 Mot. Dismiss at 3–10. Defendants then argue that the “Court must enforce the Settlement Agreement and dismiss the Complaint, which was filed in breach of the Settlement
8 The United States filed a motion to consolidate the two cases, see No. 1:09-cv-119-CAP, Doc. No. 54 (N.D. Ga. Jan. 28, 2010), which remains pending, and which Defendants do not oppose, see No. 1:09-cv-119-CAP, Doc. No. 69 (N.D. Ga. Feb. 22, 2010).
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Agreement.”9 Mot. Dismiss at 28. However, no valid agreement exists to bar
the Complaint.
Defendants state that “[s]ound policy supports the strong preference for
enforcing settlement agreements” and note that “settlement agreements are
better for achieving the results sought by Plaintiff; when an agreement is
reached by consent, voluntary compliance is rendered more likely, and the
government may have expeditious access to the court for appropriate
sanctions if compliance is not forthcoming.” Id. at 31–32. The United States
9 To the extent Defendants argue res judicata, their argument is misplaced. “Under res judicata, . . . a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action.” Kaiser Aerospace & Elecs. Corp. v. Teledyne Indus., Inc. (In re Piper Aircraft Corp.), 244 F.3d 1289, 1296 (11th Cir. 2001). “An order granting a plaintiff’s motion for voluntary dismissal pursuant to Rule 41(a)(2) qualifies as a final judgment,” McGregor v. Bd. of Comm’rs, 956 F.2d 1017, 1020 (11th Cir. 1992), and “a judgment of dismissal pursuant to Rule 41 should be given the same res judicata effect as any other judgment,” Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir. 2004). Here, however, there is no final judgment in the related case. As Defendants themselves have noted, “this Court has not dismissed Plaintiff’s complaint.” Mot. Enforce, No. 1:09-cv-119-CAP, Doc. No. 62-2, at 19 (N.D. Ga. Feb. 15, 2010). In any event, “[r]es judicata does not bar a suit based on claims that accrue after a previous suit was filed.” Smith v. Potter, 513 F.3d 781, 783 (7th Cir. 2008). “The filing of a suit does not entitle the defendant to continue or repeat the unlawful conduct with immunity from further suit.” Id. (citing Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328 (1955)).
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does not disagree with these hortatory statements, which is why it spent the last four months extensively negotiating with Defendants and the amici curiae over a resolution to the United States’ Motion for Immediate Relief, Amended Complaint in the related case, and Complaint in this case. See Doc. No. 26.
As briefed more fully in the United States’ Response to Defendants’ Motion to Dismiss in the related case, No. 1:09-cv-119-CAP, Doc. No. 83 (N.D. Ga. July 15, 2010), the arguments of which the United States hereby incorporates by reference, Defendants’ exhortations belie a lack of a meeting of the minds over material terms in the agreement, Defendants’ failing to abide by this Court’s orders to address concerns with the agreement, and Defendants’ complete lack of willingness or ability to comply with the agreement.
Indeed, in the months since the United States filed its Motion for Immediate Relief, while the United States attempted to negotiate a positive resolution with Defendants, grievous harm has continued unabated in the State Hospitals. For example, the United States has received allegations that, in February 2010, a 73-year-old patient who could have been served in
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the community instead was boiled to near death in a hospital. The woman was scalded by hot water while being bathed by a State employee who was responsible for seven other women at the time, including one patient on lineof-sight observation. The State had had longstanding knowledge of problems with the water temperature in the showers. The burns resulted in 40% of the woman’s skin sloughing off, including along her feet, legs, buttocks, and genital area. And, in May 2010, a patient almost died from an adverse drug reaction despite having informed his State Hospital treatment team that he did not want to take the drug because he almost died while on that drug during his last hospitalization. See also additional examples No. 1:09-cv-119CAP, Doc. No. 83, at 11–13. The State Hospitals remain dangerous institutions for the patients confined therein, and many of the institutional conditions that present dangers to those patients do not exist in community settings.
After expressly denying to this Court and to the United States that they must comply with the ADA and Olmstead under the agreement, see, e.g., No. 1:09-cv-119-CAP, Doc. No. 36, at 17 (“Olmstead is not part of the Settlement Agreement.”), Defendants now state that, “for the purposes of this
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Motion to Dismiss,” “ADA claims are part of the agreement.” Mot. Dismiss at 29. The Court should not countenance Defendants’ legal gamesmanship “according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal quotation marks omitted). Implicit in Defendants’ statement is their abiding belief that, unless they are arguing for the Court to dismiss the United States’ ADA Complaint, they have no ADA and Olmstead responsibilities under the agreement.
In short, Defendants have failed to come to a meeting of the minds with the United States over material terms in the agreement, have failed to abide by this Court’s orders to address concerns with the agreement, and have demonstrated their complete lack of willingness or ability to comply with the agreement. No valid agreement exists to bar the Complaint. Defendants’ motion to dismiss for breach of the agreement should be denied.
Conclusion For the foregoing reasons, the United States respectfully requests that the Court deny Defendants’ Motion to Dismiss.
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Respectfully submitted, this 15th day of July, 2010.

FOR THE UNITED STATES:

SALLY QUILLIAN YATES United States Attorney Northern District of Georgia

THOMAS E. PEREZ Assistant Attorney General
SAMUEL R. BAGENSTOS Principal Deputy Assistant
Attorney General Civil Rights Division

JUDY C. PRESTON Acting Chief Special Litigation Section

MARY R. BOHAN Acting Deputy Chief Special Litigation Section

/s/ (Express Permission)___ MINA RHEE [GA 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Mina.Rhee@usdoj.gov

/s/ Robert A. Koch_________ TIMOTHY D. MYGATT [PA 90403] ROBERT A. KOCH [OR 072004] Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-0212 Email: Robert.Koch@usdoj.gov

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Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Century Schoolbook, 13-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch__ ______ ROBERT A. KOCH [OR 072004] Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section
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CERTIFICATE OF SERVICE I hereby certify that on this 15th day of July, 2010, I electronically filed the foregoing UNITED STATES’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT with the Clerk of Court using the CM/ECF system which automatically serves notification of such filing to all counsel of record.
/s/ Robert A. Koch___ _____ ROBERT A. KOCH [OR 072004] Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section
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 Case 1:10-cv-00249-CAP Document 90-1 Filed 09/24/10 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

___________________________________ )

CIVIL ACTION NO. 1:09-CV-119-CAP

MEMORANDUM OF LAW IN SUPPORT OF THE UNITED STATES’ MOTION FOR IMMEDIATE RELIEF

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

Court for immediate relief based on the imminent and serious threat of harm to the

life, health, and safety of individuals served by Georgia’s seven State hospitals

(collectively, the “hospitals”). The State of Georgia continues to fail to serve

individuals confined in the hospitals (“individuals in the hospitals”) in the most

integrated setting appropriate to their needs, and preventable deaths, suicides, and

assaults continue to occur with alarming frequency in the hospitals.

The needlessly prolonged institutionalization of many individuals with

disabilities is a fundamental cause of the harm. The State provides services to far

too many individuals with disabilities in the most segregated setting

imaginable—the hospitals. The State’s own treatment professionals have

Case 1:10-cv-00249-CAP Document 90-1 Filed 09/24/10 Page 2 of 44
determined that community placement is appropriate for more than 800 individuals currently confined to the hospitals1. Even for those individuals who lack a treatment professional’s recommendation for community placement, the hospitals are not the most integrated setting in many cases. See Disability Advocates, Inc. (DAI) v. Patterson 653 F. Supp.2d 184, 259 (E.D.N.Y. 2009) (Olmstead plaintiffs “need not prove ‘qualification’ [for community services] in the form of determinations from [their] ‘treatment professionals.’”) (citing cases). The great majority of those individuals do not oppose community placement. Yet, they remain institutionalized, segregated from the community, and at risk of irreparable bodily harm caused by the State’s admitted departures from generally accepted professional standards and the Constitution in providing services within the institutions.
1 In its reports to the Office for Civil Rights, United States Department of Health and Human Services, the State reported that 804 of the 923 individuals with developmental disabilities in the hospitals in June 2009 were placed on the State’s Olmstead list, signifying the State’s determination that these individuals could be served in a community setting and did not oppose such a placement. For individuals with mental illness, the State placed 54 of 651 individuals with mental illness on its Olmstead list (the State excluded from its count some individuals whose commitment status was determined by a criminal court, for example, individuals who had been committed by a court after being found not guilty by reason of insanity). See Exhibit 1, Olmstead Monthly Report FY 2009.
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Immediate relief is necessary to stop the ongoing severe and irreparable harm. That relief must target the conditions at the hospitals that place individuals confined there at the most imminent risk–conditions that have led to suicides, homicides, rapes, and other assaults–while requiring the State to make significant progress now in moving individuals in the hospitals out of that unsafe and inappropriate institutional environment. A year of experience under the Settlement Agreement (“Agreement”), attached as Exhibit 2, has taught that an effective remedy for unconstitutional conditions at the hospitals is inseparable from an effective effort to place in community settings the hundreds of individuals in the hospitals who are inappropriately institutionalized. Conversely, any remedy that focuses merely on the conditions at the hospitals will, as the Governor’s recent budget request shows, encourage the State to direct resources away from building the necessary community capacity and toward a focus on the hospitals–an inequity that will only perpetuate the inappropriate and harmful institutionalization of Georgians with mental disabilities.
The status of the Agreement in this case is unclear. That Agreement has not been effective in bringing the State into compliance with federal law, and there is a fundamental disagreement between the parties regarding the scope of the Agreement, particularly regarding the United States’ claims pursuant to the
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Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12132-12134, and Olmstead v. L.C., 527 U.S. 581 (1999). Moreover, although this Court entered the Agreement as an interim order (Document 9), it rejected the parties’ joint motion to enter the Agreement as a final order (Document 2), and we do not intend to pursue a renewed motion to enter the Agreement. Accordingly, this motion for immediate relief may be understood as a motion for a preliminary injunction. The United States has, today, filed a separate action bringing a claim under the ADA. We have asked that the ADA case be consolidated with this case. If the Court agrees that the Agreement is no longer in effect, the United States requests relief based on the Amended Complaint in this case and the Complaint filed in the ADA case. If the Court determines that the Agreement is still in effect, the United States files this brief as a motion to enforce the Agreement and as a motion for immediate relief in the ADA case.2 I. FACTUAL BACKGROUND
On January 15, 2009, the United States filed the original Complaint in this action, alleging that certain conditions and aspects of care at the hospitals deprive
2 Even if the Court determines that the Settlement Agreement is still in effect, the United States may bring this Motion for immediate relief without waiting 90 days, as the conditions, care, and treatment that are the subject of this Motion “pose an immediate and serious threat to the life, health, or safety of patients served by the State Psychiatric Hospitals.” See Agreement, Ex. 2, ¶ V.D.
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the individuals confined to those hospitals of rights, privileges, or immunities secured or protected by the Constitution and the laws of the United States. The hospitals provide inpatient services to persons with mental illnesses, addictive diseases, and developmental disabilities.
Also on January 15, 2009, the United States and the State entered into the Agreement, which resolved the United States’ investigation of the hospitals under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. In accordance with the Agreement, on January 15, 2009, the United States filed the Complaint initiating this action with the Court and, on the same day, filed a joint motion with the State requesting that the Court conditionally dismiss the case and retain jurisdiction to enforce the terms of the Agreement. See Agreement, Ex. 2 ¶ V.C.
On January 23, 2009, the majority of the advocacy groups now appearing as amici curiae sent a letter to the Court expressing concern about the Agreement. Following the Court’s order, the parties met with representatives of the amici on May 14, July 14, and August 25, 2009, to address the concerns raised by the advocates, but many of these concerns remain unresolved.
While these meetings were proceeding, the United States, accompanied by expert consultants in the fields of psychiatry, psychology, psychiatric nursing,
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protection from harm, and discharge planning and community integration, conducted compliance tours of six of the seven hospitals.3 These compliance tours included interviews with hospital administrators, clinical staff, direct care staff, and individuals in the hospitals, as well as review of a wide variety of documents, including policies and procedures, incident reports, and medical and mental health records.
The compliance tours have revealed that conditions in the hospitals continue to pose an immediate and serious threat to the life, health, and safety of the individuals in the hospitals, and that serious harm continues to occur. See, e.g., ECRH Compliance Letter and Expert Report (Sept. 9, 2009); GRHS Compliance Letter and Expert Report (Nov. 19, 2009); Findings Letter for CSH, GRHS, ECRH, SWSH, and WCGRH (Dec. 8, 2009) (Attached as Exhibits 3-5, respectively). Between April 2009 and January 2010, the United States also sent
3 The six hospitals were: ECRH (May 4-8, 2009), GRHS (June 22-26, 2009), GRHA (August 3-7, 2009), SWSH (October 13-16, 2009), CSH (November 2-7, 2009; January 11-15, 2010), and WCGRH (November 30 through December 3, 2009). The United States also conducted two emergency tours of CSH following an alleged homicide (April 8-9, 2009 and June 30 through July 1, 2009). During the investigation leading to the filing of the original Complaint, the United States visited GRHA (September 17-21, 2007), GRHS (December 17-21, 2008), and the seventh of the hospitals, NWGRH (October 29 through November 2, 2007).
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Defendants 11 emergency letters requesting immediate information, follow-up, and/or corrective actions to address conditions or practices that posed an immediate and serious threat to the life, health, and/or safety of individuals in the hospitals. The letters concerned a homicide at CSH, questionable medical deaths at CSH, a rape at SWSH, two alleged rapes at ECRH, a suicide at GRHS, a suicide attempt at ECRH, life-threatening conditions at CSH, a questionable medical death at SWSH, and a suicide at SWSH. See Exhibits 6-16.
Demonstrably, the Agreement has not been effective in bringing the State into compliance with the Constitution and federal statutory law. By January 15, 2010, the Agreement required the State to be in substantial compliance with generally accepted professional standards in four “priority areas” that addressed immediate and serious threats to the life, health, and safety of the individuals in the hospitals: suicide risk assessments and prevention, prevention of patient-on-patient assaults, choking and aspiration risk assessments and prevention, and implementation of emergency medical codes. See Agreement, Ex. 2, ¶ V.E.. Throughout our compliance monitoring, our experts found that the hospitals substantially departed from generally accepted professional standards in the four priority areas and in other areas critical to preventing the threat of immediate and
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serious harm in the hospitals. See Osgood Decl., Ex. 17; El-Sabaawi Decl., Ex. 18; Oswald Decl., Ex. 19; Franczak Decl., Ex. 20.
Moreover, the State’s Report of Compliance and Plan of Implementation (“POI”), System-wide Comprehensive Audit (“Audit”), and Quality Management Report (“QM Report”), all submitted on January 15, 2010, confirm our experts’ assessments. The State concedes that it does not provide care consistent with the Constitution in any of the four priority areas at any of the seven hospitals. See Audit, Ex. 21, pp. 1-18. The State estimates that the earliest date by which it could fully implement any of the provisions of the Agreement in compliance with generally accepted professional standards is July 15, 2010. See POI, Ex. 22, pp. 3-6.
The State’s own documents further acknowledge that individuals in the hospitals are not being released from the hospitals by their discharge dates and both the number of individuals waiting to leave the hospitals and the amount of time they are waiting have increased. According to Defendants’ own Olmstead Monthly Progress Report, in September 2009, there were 765 persons with developmental disabilities on the Olmstead list. The total number of individuals with developmental disabilities on the Olmstead list stayed relatively constant during the period from September 2008 through September 2009. Moreover, the
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number of placements slowed considerably in July, August, and September 2009. Between September 2008 and September 2009, the average number of days on the Olmstead list for persons with developmental disabilities doubled, and 86 individuals remained waiting for more integrated services after the date set by their treatment team for their discharge had come (and gone). Olmstead Monthly Progress Report, Ex. 1.
We note that part of the relief sought in this motion is the expansion of community services and supports that are largely already available in the community. See e.g., Sonny Perdue, “The Governor’s Olmstead Budget Report (FY 2009 through FY 2011) (“Olmstead Budget Report”), Ex. 24. Therefore, we do not seek a fundamental alteration of the State’s program of services. Instead, we ask that services already available, albeit in limited supply, be made available in sufficient supply to enable individuals in the hospitals to be served in the most integrated setting appropriate to their needs. We do not demand an inequitable allocation of resources given the needs of others with disabilities. See Olmstead, 527 U.S. at 604. Not only is funding an expanded array of community services a substantially less expensive option than continuing to provide services through needless institutionalization, but discharging individuals from the hospitals would remove those individuals from the immediate and serious threats of harm therein,
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and would help alleviate the gross under-staffing concerns identified by the State itself. II. LEGAL STANDARDS
“To obtain a preliminary injunction, the moving party must show (1) a substantial likelihood of success, (2) irreparable harm, (3) that the balance of equities favors granting the injunction, and (4) that the public interest would not be harmed by the injunction.” Mesa Air Group, Inc., v. Delta Air Lines, Inc., 573 F.3d 1124, 1128 (11th Cir. 2009). “Preliminary injunctive relief derives from the necessity to restrain or compel conduct in those extraordinary situations where irreparable injury might result from delay or inaction.” Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1133 (11th Cir. 2005). The United States hereby requests a hearing on this Motion for Immediate Relief. III. THE UNITED STATES WILL LIKELY PREVAIL ON THE MERITS.
A. Hundreds of Individuals Remain Inappropriately Institutionalized in the Hospitals in Violation of the ADA and Olmstead.
Hundreds of individuals, at minimum, remain institutionalized in the hospitals in violation of their rights under the ADA and Olmstead. The ADA
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requires that the State provide services to qualified individuals with disabilities4 in the most integrated setting appropriate to their needs. See 42 U.S.C. § 12132 (“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”), and its implementing regulations, 28 C.F.R. § 35.130(d); see also Olmstead, 527 U.S. at 607. Yet the State provides services to far too many individuals with disabilities in the most segregated setting imaginable—the hospitals. See Franczak Decl., Ex. 20. Institutionalization stigmatizes individuals and prevents them from building lives in the community, forming personal relationships, and obtaining employment. Id., ¶12. As the Supreme Court explained in Olmstead, inappropriate institutionalization “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and “severely diminishes the everyday life activities of individuals.” Olmstead, 527 U.S. 600-601. In Georgia, inappropriate
4 There is no dispute that the individuals in the hospitals are qualified individuals with disabilities under the ADA and its implementing regulations. They are individuals whose disabilities have substantially limited their participation in major life activities.
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institutionalization has claimed the lives of numerous individuals with disabilities and threatened the lives and safety of many more. See § B, infra.
In construing the anti-discrimination provision contained within the ADA, the Supreme Court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. The Court applied the integration mandate of the regulations implementing Title II of the ADA: “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
A violation of the integration mandate is made out if the institutionalized individual is “qualified” for community placement–that is, that he or she can “handle or benefit from community settings” and does not oppose community placement. Olmstead, 527 U.S. at 601-603. The State, however, may interpose a defense that community placement would “entail a fundamenta[l] alter[ation]’ of [its] services and programs.” Id. at 603 (plurality opinion). The Olmstead plurality explained that a state can show fundamental alteration by demonstrating that it has “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a
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reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Id. at 605-606.
The United States has a strong likelihood of succeeding on the merits of its Olmstead claim. First, evidence indicates that literally hundreds of individuals in the hospitals can “handle or benefit from community settings.” Olmstead, 527 U.S. 601-602. For the more than 800 of these individuals who have been placed on the Olmstead list, “the State’s treatment professionals have determined that community placement is appropriate,” id., at 587, consistent with the facts of Olmstead itself.
The State has determined that all individuals with developmental disabilities in the hospitals can be served in more integrated settings. Franczak Decl., Ex. 20, ¶ 15. Yet, in June 2009, more than 900 individuals with developmental disabilities remained institutionalized in the hospitals. See Olmstead Monthly Progress Report, Ex. 1. And 50 or more additional individuals with mental illness in the hospitals appear on the State’s monthly report of those determined appropriate for community placement, yet the State reports that fewer than a third of those individuals are released from the hospitals. Id. Many more have never been assessed by a treatment professional to determine whether they could be
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served in the community, nor has the question of what services would be required for them to do so been addressed effectively by a treatment professional.
Although Olmstead itself involved two plaintiffs whose treatment professionals had determined community placement was appropriate, the integration mandate is not limited to that narrow fact setting. The regulation that creates the integration mandate does not refer to treating professionals; it simply requires services to be administered “in the most integrated setting appropriate to the needs of” the individual 28 CFR §35.130(d). The regulation does not in any way purport to limit the evidence on which a plaintiff may rely in showing that a more integrated setting is appropriate. And a requirement that Olmstead plaintiffs come to court armed with the recommendation of a state’s treating professional would “allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.” Frederick L., 157 F. Supp.2d at 540; see also DAI, 653 F. Supp.2d at 258 (“The court does not read Olmstead as creating a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a ‘treatment provider’ and found eligible to be served in a more integrated setting.”); Joseph S., 561 F. Supp.2d at 291 (“[I]t is not clear whether Olmstead even requires a specific
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determination by any medical professional that an individual with mental illness may receive services in a less restrictive setting or whether that just happened to be what occurred in Olmstead.”).
As one of the United States’s experts concluded, “many, if not the majority, of the individuals in the state hospitals are institutionalized when they could be more appropriately served in a community-based setting.” Oswald Decl. Ex. 17, ¶ 12. Another expert explained that many individuals in the hospitals are institutionalized only because there are insufficient community and mobile crisis services in the State. Franczak Decl. Ex. 20, ¶ 37. “[I]n most states,” he explained, “many of these individuals experiencing short term crises would not have to be hospitalized.” Id., at ¶ 10. Many other individuals in the hospitals, he found, experienced a cycle of needless repeated institutionalization.” Ibid. Systemic deficiencies in treatment, discharge, and transition planning have kept these individuals from receiving a treating professional’s recommendation of community placement. See Franczak Decl., Ex. 20, ¶ 11-15. But all “could be served successfully in the community” and there is no indication that substantial numbers oppose community placement. Franczak Decl., Ex.20, ¶ 17.
Placing qualified individuals in the hospitals in appropriate community settings would work only a “reasonable modification” of the State’s program.
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Olmstead, at 603. The State already provides to individuals in the community services of the type the individuals in the hospitals would need to live in the community. See Olmstead Budget Report, Ex. 23 (funded services include supportive housing, crisis stabilization, substance abuse treatment, supported employment, peer support, mental health mobile crisis, transportation, psychosocial rehabilitation and more). But those services are woefully inadequate to meet the needs of those individuals. In a presentation to a coalition of advocacy groups in January 2010, the State conceded:
the State on paper has a relatively complete array of services available. It is recognized that not all services are available in all parts of the State and that capacity of some services in limited in many parts of the State. See State of Georgia Planning Initiative on Mental Health and Addictive Services, Georgia DBHDD (undated document), attached as Exhibit 25. State audits and commissions have repeatedly reached this same conclusion. See, e.g., Governor Sonny Perdue's Mental Health Service Delivery Commission Final Report (December 4, 2008) ("Mental Health Commission Report"), Ex. 26. The United States’ Olmstead claim rests on the demand that those services already in limited supply be made available in sufficient supply to enable individuals who are currently inappropriately segregated in an institution to be discharged from that
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setting into the community and provided appropriate services there. See DAI at 269 (it is a reasonable modification to expand existing community programs to include currently institutionalized individuals).
A number of barriers have kept individuals in the hospitals from receiving services in appropriate community settings. Some of those barriers are internal to the hospitals. The hospitals do not provide individuals in the hospitals with a plan for transition to community services until after the treatment team has determined that the individual is appropriate for community placement–a perverse requirement that an expert characterized as “exactly backwards.” Franczak Decl, Ex. 20, ¶ 14. Individuals who stay in the hospitals for less than 60 days at a time do not receive an adequate determination of what services are required to support them in a more integrated setting–even if they are repeatedly readmitted to the Hospital. Id., ¶ 1415. And when they do discharge individuals, the hospitals often discharge them to inappropriate settings like “night shelters, transportation terminals, and the public buildings and streets”–settings that lack necessary supports and typically receive no advance notice of the discharge. Id., ¶ 28. These discharges to inappropriate settings “place the affected individuals at risk of significant harm.” Id., ¶ 30. See also Olmstead (recognizing that discharge to a homeless shelter is inappropriate). One person recently discharged from a Hospital to a shelter was three months
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pregnant, and was discharged with several prescriptions, but no connection to a medical care provider or other behavioral health supports. Franczak Decl., Ex.20, ¶ 30. Another had a history of ten prior admissions, but was nonetheless discharged to a shelter. He was readmitted a few days later, after experiencing an overdose of medication. Id., ¶ 30.
Individuals are needlessly institutionalized and discharged to these inappropriate settings and re-admitted due to a lack of adequate community capacity in Georgia. For example, “[i]nsufficient supported housing opportunities in the State result in individuals having to reside in inappropriate settings that do not support their recovery and their return to the community.” Franczak Decl., Ex. 20, ¶ 35. Supported housing “is a setting in which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community.” DAI, 653 F. Supp.2d at 218-219. Development of a comprehensive, statewide supported housing program was identified as a priority by the Governor’s Mental Health Commission in 2008. The State’s 2009 draft Olmstead report indicated “that a minimum of 2,000 supportive housing units over a five year period will be needed to serve individuals with mental illness in the State.” See Letter from Georgina Verdugo, Director, Office for Civil Rights, Department of Health and Human Services to Governor Perdue (Jan. 26, 2010)
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(“OCR Letter”), Ex. 27. Supported housing is a centerpiece of an Olmsteadcompliant mental health system, but Georgia’s efforts to set up such housing have been woefully insufficient to meet the need. Moreover, the State has failed to provide sufficient community-based services such as assertive community treatment, intensive case management, and community crisis intervention, all of which operate hand in glove with supported housing to prevent unnecessary hospitalization. See Franczak Decl., Ex. 20, ¶ 36-37; Mental Health Commission Report, Ex. 26; see also DAI at 220-221 (discussing the importance of these services to community integration).
There are too few crisis, community support, and mobile crisis intervention services for individuals with disabilities, many of whom are re-institutionalized due to short-term crises that could have been stabilized in the community. For example, one individual with a developmental disability who had enjoyed a community placement was readmitted to a Hospital, according to his records, because “there was no where for him to remain in the community” during an investigation of possible care giver abuse following an incident. Franczak Decl., Ex. 20, ¶ 10.
The State’s lack of assertive community treatment or intensive case management services causes individuals to have to be hospitalized when they are
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not adherent to their medication regimes. These services, which are inadequate in Georgia, are effective because they can improve medication adherence and prevent hospitalization. An intensive staffing ratio of 1:12 allows more intensive supervision for persons who require this level of care. Many individuals with mental illness in the hospitals need assertive community treatment upon discharge, but do not receive this service because they do not exist in sufficient supply. Franczak Decl., Ex. 20, ¶ 36. An assertive community treatment (“ACT”) team typically costs at least $1.2 million for one year, id., yet the State’s proposed budget through FY 2011 does not fund even one additional ACT team. See Olmstead Budget Report, Ex., 23 at 9.
Immediate relief is necessary to break these barriers to appropriate community placement and ensure that meaningful numbers of individuals in the hospitals move out of their inappropriate institutional placements now. The State cannot establish that such relief would work a fundamental alteration, because that defense is available only when the State has a “comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated.” Olmstead. at 605-06 (plurality opinion). The courts of appeals have not settled on a single standard for
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determining what makes a proper Olmstead plan. Compare Frederick L. v. Department of Public Welfare of Com. Of Pennsylvania, 364 F.3d. 487 (3d Cir. 2004) with Sanchez v. Johnson, 416 F.3d. 1051 (9th Cir. 2004). But the courts of appeals have all agreed that, at a minimum, the plan must be “comprehensive, detailed, and most importantly, ‘effectively working.’” DAI 653 F. Supp. 2d at 304 (quoting Sanchez, 416 F.3d at 1067); see also Pennsylvania Protection & Advocacy v. Dep’t of Public Welfare, 402 F.3d 374, 384 (3d Cir. 2005) (permitting a fundamental alteration defense “only if the accused agency has developed and implemented a plan to come into compliance with the ADA”) (citing Frederick L., 364 F.3d at 500). “[R]outine, individualized review of patients does not amount to a sufficient deinstitutionalization plan.” Ibid.
Georgia has not implemented anything close to such a comprehensive plan, even though Olmstead was decided over a decade ago and involved these very institutions. As the United States Department of Health and Human Services recently concluded, since July 2008 the State’s rate of discharge has decreased: “The number of institutionalized individuals with mental illness and developmental disabilities waiting past their discharge dates for community services has steadily increased, and the amount of time they are waiting has risen preciptiously as well.” OCR Letter, Ex. 27, at 30. Georgia’s Olmstead coordinator has not made and
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published “meaningful annual estimates of the needs for community services.” Id. at 4. The State has repeatedly delayed its multi-year Olmstead plan. Id. at 5-6. And the results speak for themselves–the State has not made meaningful progress in reducing hospital censuses in any recent year.
“In considering the resources available to the State,” a court cannot look at the state’s current budget for community services in isolation; rather, “the relevant budget is the ‘mental health budget,’ which includes any money the state receives, allots for spending, and/or spends on services and programs for individuals with mental illness.” DAI, 653 F.Supp.2d at 269. And the court must consider not just short-term outlays and transition costs, “but also savings that will result if the requested relief is implemented.” Ibid.
Providing services to support a person with mental illness or a person with a developmental disability living in the community costs substantially less than providing services in an institutional setting. The figures used in a draft Olmstead Behavioral Health Initiative Five-Year Community Funding Plan, supported by data from Georgia’s own Department of Community Affairs, support a substantial cost savings when serving a person with mental illness in the community. See Franczak Decl., Ex. 20 ¶ 42. The United States’s likelihood of success on the merits of the Olmstead claim is therefore very strong.
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B. Preventable deaths, suicides, and assaults continue to occur in the Hospitals.
The harm of unnecessary institutionalization in the hospitals is compounded by–and contributes to–the unconstitutional and life-threatening conditions in the hospitals. These conditions require targeted relief in the hospitals, and they underscore the urgency of moving individuals with disabilities out of inappropriate institutional placements now. The Constitution requires that Defendants provide reasonable care and safety to individuals in the hospitals. Defendants fail to meet this obligation. Specifically, the Fourteenth Amendment Due Process Clause requires a state mental health care facility to provide “adequate food, shelter, clothing, and medical care,” Youngberg v. Romeo, 457 U.S. 307, 315 (1982), along with “conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests,” id. at 324. Individualized treatment must be provided to give individuals in the hospitals “a reasonable opportunity to be cured or to improve [their] mental condition.” Donaldson v. O’Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated on other grounds, O’Connor v. Donaldson, 422 U.S. 563 (1975); see D.W. v. Rogers, 113 F.3d 1214, 1217-18 (11th Cir. 1997) (holding that the constitutional right to psychiatric care and treatment is triggered by the State’s physical
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confinement of an individual with mental illness; the court noted the holding of Fifth Circuit cases, including Donaldson, which are binding upon the Eleventh Circuit if decided before September 30, 1981); see also Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974).
The measure of inadequate treatment is whether it substantially departs from generally accepted professional judgment, practice, or standards. Youngberg, 457 U.S. at 320-23. Individuals in the hospitals have a due process right to have all major decisions regarding their treatment be made in accordance with the judgment of qualified professionals acting within professional standards. Griffith v. Ledbetter, 711 F. Supp. 1108, 1110 (N.D. Ga. 1989). For example, states must ensure that individuals in the hospitals are not given hazardous drugs that are “not shown to be necessary, used in excessive dosages, or used in the absence of appropriate monitoring for adverse effects.” Thomas S. v. Flaherty, 699 F. Supp. 1178, 1200 (W.D.N.C. 1988), aff’d., 902 F.2d 250 (4th Cir. 1990).
The State concedes that it does not provide care and safety that is consistent with generally accepted professional standards—the constitutional standard—in any of the four priority areas at any of the seven hospitals, despite the Agreement’s requirement that the State do so by January 15, 2010. See Audit, Ex. 21, pp. 1-18; Agreement, ¶ V.E; Youngberg, 457 U.S. at 320-23. The State’s Audit sets forth
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the outcomes the State has determined that it must attain in order to provide care and safety consistent with the Constitution, and not one of hospitals has attained substantial compliance with all of the required outcomes in any of the four priority areas. See Audit, Ex. 21, p. 2-18.
Although constitutional violations threaten safety and welfare in a variety of contexts, including medical and nursing care and nutrition management, the most imminent and life-threatening constitutional violations–and the ones that call out for immediate relief from this Court–relate to the longstanding and widespread pattern of violence and suicides in the hospitals. The hospitals fail to assess suicide risk, prevent suicides, and prevent patient-on-patient assault, in a substantial departure from generally accepted professional standards and in violation of the Constitution. The State admits that it has not attained substantial compliance with any of the outcomes required to meet generally accepted professional standards in these areas at any of the hospitals. See Audit, Ex. 21, pp. 7-15. In other words, the State concedes that it systemically violates the Constitution in each of these areas at each of the hospitals.
Our experts agree. See El-Sabaawi Decl., Ex. 18, ¶¶ 13-25; Oswald Decl., Ex. 19, ¶¶ 15-26. Initial suicide and violence risk assessments often are not completed at all or, if they are completed, lack critical information, in a substantial
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departure from generally accepted professional standards. See El-Sabaawi Decl., Ex. 18, ¶ 14-19. Reassessments are similarly inadequate and untimely. See id., ¶ 20. In addition, treatment plans fail to include behavioral interventions for dangerous and maladaptive behaviors, in a substantial departure from generally accepted professional standards, so individuals in the hospitals do not receive adequate treatment to protect themselves and others from potential violence. See Oswald Decl., Ex. 19, ¶ 15.
Moreover, the hospitals’ incident, risk, and quality management systems fail to manage the risks of suicide and violence, in a substantial departure from generally accepted professional standards. See Osgood Decl., Ex. 17, ¶¶ 6-43. Internal investigations into abuse, neglect, and suspicious injuries in the hospitals systematically fail to include information that is necessary to finding the root cause of an incident or to delve sufficiently into the possible origins of incidents. See id. ¶ 9. The hospitals fail to reliably and adequately analyze the data that they collect, rendering State and Hospital officials incapable of recognizing adverse trends and correcting issues that directly lead to patient harm and death. See id. ¶ 10. And, for risks that they identify, the hospitals fail to implement corrective and preventive actions in a timely manner, if at all, or to monitor those actions as necessary to reduce or eliminate the risk of harm. See id. ¶ 11.
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Without adequately assessing risks of suicide or violence, identifying risks
or trends of harm, or objectively measuring and monitoring the quality of care, the
hospitals cannot even begin to recognize serious issues affecting the health and
safety of individuals in the hospitals, much less develop and implement remedial
measures designed to prevent further grievous harm. See id. ¶ 12. As a result of
these systemic constitutional violations, individuals in the hospitals suffer grave
harm that is frequent, recurrent, and preventable. See id. ¶ 13.
Individuals in the hospitals continue to be killed with alarming frequency.
For example:
• In April 2009, an individual at CSH assaulted and killed another individual in the Hospital. See id. ¶ 36. The aggressor had been accused of two separate homicides prior to his admission, including killing his jail cell mate immediately before his transfer to CSH in January 2009. Yet the State failed to adequately supervise him and failed to develop a behavior plan for him before he killed a fellow patient. See id.; Oswald Decl., Ex. 19, ¶ 18.
• In October 2008, a patient at WCGRH died of a ruptured spleen due to blunt force trauma. Earlier that morning he had complained of not feeling well and, hours later, was found naked on the floor in his own urine. The State treated him by giving him antipsychotic medication, despite his displaying no psychotic symptoms. The State failed to investigate, much less determine, how he suffered trauma so significant that it ruptured his spleen, or why he was given antipsychotic medication while he internally bled to death. See Osgood Decl., Ex. 17, ¶ 34.
• In August 2008, a patient at WCGRH assaulted and killed another patient. Earlier that morning, the victim had assaulted the aggressor, and both patients had a history of aggression. When the aggressor and victim later
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confronted one another, the State failed to intervene, despite an instructor in de-escalation techniques standing close by. Instead, the aggressor assaulted the victim, who fell and struck his head, knocking him unconscious and causing blood to trickle out of his ear. The State failed to call an emergency code blue, so an ambulance did not arrive for 50 minutes. The victim died a few days later from blunt force trauma to the head. The State transferred the aggressor to CSH but failed to include in the discharge summary any information about this incident or the extent of his aggressive behaviors. The aggressor currently remains at CSH, and the State still has failed to implement adequate behavioral interventions to prevent him from seriously injuring others. See id. ¶ 33.
Individuals in the hospitals kill, and attempt to kill, themselves with
alarming frequency in the hospitals. For example:
• A mere three weeks ago, at SWSH, a patient committed suicide within 24 hours of being transferred to an alternative unit on campus grounds. The patient had been admitted a month prior for attempting to hang herself, her third attempt in recent years, yet the State failed to prevent her from acquiring a shoe string that she then used to strangle herself. One day prior to successfully taking her own life, the woman expressed suicidal thoughts, paranoia, and significant anxiety regarding her transfer. The State failed to complete a suicide risk assessment before transferring her, in violation of State policy, and erroneously stated in her discharge summary that her suicidal thoughts had completely disappeared. See id. ¶ 43.
• In August 2009, a patient at GRHS committed suicide by tipping his bed up on end to create a tie-off point on which to hang himself. The State failed to heed our experts’ warnings throughout our on-site visits about the suicide risks of the beds. Moreover, GRHS failed to heed our experts’ warnings during an on-site visit two months prior to the suicide about the deficiencies in its suicide assessments and risk management system. See id. ¶ 39.
• In April 2006, a patient at NWGRH committed suicide within 24 hours of her admission by climbing high into a tree and jumping to her death in front of staff and patients. The State failed to place her on heightened observation
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even though she was an emergency involuntary admission with a diagnosis of paranoid schizophrenia, a history of auditory and visual hallucinations, and had refused to answer whether she was suicidal. Consequently, when her unit was taken outside, she climbed a tree, tried to hang herself with her shoelaces, and then jumped out of the tree to her death. See id. ¶ 14.
• In September 2009, a patient at ECRH attempted to commit suicide by hanging himself with a sheet tied around his neck, the same way he had tried to kill himself at CSH eight months earlier. Despite these similarities, the State failed to investigate, much less determine, how to avoid a third strangulation attempt. Instead, the investigation of the September suicide attempt focused primarily on staff’s response to the emergency code blue call and recommended only that “ECRH should review with staff the need for accuracy in reporting, particularly of times of events.” See id. ¶ 40.
• In August 2007, a patient was admitted at GRHA after running into traffic with a broken glass bottle in her hand, threatening to kill herself. Approximately one week after her admission, the State discharged her to a homeless shelter. She returned suicidal three days later. A mere seven hours after she arrived on a residential unit, the State failed to follow its own heightened observation level for her, and found her lying face down in a pool of blood outside her bedroom doorway, unresponsive, with a cord wrapped tightly around her neck, bleeding from her mouth and nose. State employees then removed from her medical record progress notes and eyewitness statements describing both the lapse in observation level and an argument between the patient and staff shortly before the suicide attempt. See id. ¶ 27.
• In October 2006, a patient at NWGRH attempted to commit suicide by slitting his throat from ear to ear with a razor. The State had given the patient the razor and let him go into the bathroom unattended, despite the patient having a history of suicide attempts and self-mutilation. After the suicide attempt, the State never reassessed the patient’s emotional stability or risk of harm, and never made or modified treatment or behavioral interventions. See id. ¶ 16.
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Physical and sexual assaults continue to occur with alarming frequency in
the hospitals. For example:
• In October 2009, a State employee at CSH pulled a patient out of his chair, walked him down the hallway, pulled him into his room, shut the door, and beat him. See id. ¶ 41.
• In August 2009, at ECRH, an individual with intellectual disabilities reported being raped by a peer on his living unit. The State failed to investigate when and by whom the victim was sexually assaulted. Before having received the results of the emergency services rape examination, which revealed semen in the victim’s peri-anal region, the State concluded that the allegation was unsubstantiated because of a lack of physical evidence. See id. ¶ 38.
• In December 2008, staff at SWSH found a 22-year-old patient, who had a history of sexually assaultive behavior and an admission for being incompetent to stand trial for charges that he molested a seven-year-old boy, in the bed of a 64-year-old patient known to be easily frightened and intimidated by others. The State had placed the two together as roommates and then failed to investigate the incident, even though the patients gave conflicting accounts as to whether sexual relations had occurred. Seven months later, in July 2009, the 22-year-old patient threatened and raped the 64-year-old in the restroom. As part of that investigation, the victim reported that the perpetrator had raped him seven months earlier. See id. ¶ 37.
• In September 2007, a patient at NWGRH suffered a fractured clavicle. Staff noticed a large bruise on the patient’s shoulder but did not report the bruise until a day later. The State never questioned the patient about the injury or how it occurred, and never determined its cause. See id. ¶ 31.
• In June 2007, a patient at GRHA sexually assaulted another patient. The aggressor patient was on “sexual protocol,” which required that he be on line-of-sight observation and that he sleep in a single bedroom to prevent him from sexually assaulting other patients. The State failed to follow its
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own protocol. The State assigned the aggressor to a bedroom with four other patients and, the very first night, he sexually assaulted one of them. The State later discharged the aggressor to a personal care home and failed even to mention the sexual assault in his progress notes, discharge summary, or aftercare plan. See id. ¶ 25. • In February 2007, a patient at GRHA choked another patient to the point of sending the victim to the emergency room. The aggressor patient was on line-of-sight observation at the time, but the State failed to follow its own heightened observation level for him and only discovered the choking after hearing loud noises coming from his bedroom. See id. ¶ 19. These constitutional violations continue unabated, posing an immediate and serious threat to the life, health, and safety of individuals in the hospitals. They underscore the need to move individuals in the hospitals out of inappropriate placements in the hospitals now.
IV. THE INDIVIDUALS IN THE HOSPITALS ARE SUFFERING IRREPARABLE HARM Death constitutes irreparable harm. Schiavo ex rel. Schindler v. Schiavo ex
rel. Schiavo, 403 F.3d 1223, 1232 (11th Cir. 2005). Additionally, rapes and sexual assaults cause physical and possibly permanent mental damage that money cannot effectively remedy. See Coker v. Georgia, 433 U.S. 584, 611-12 (1977) (Burger, C.J., dissenting) (finding that rape causes serious psychological and physical harm, and likely has an irreparable long range effect). Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1123 (W.D. Wis. 2001) (holding that “pain, suffering and the risk of
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death” constitute irreparable harm sufficient to support a preliminary injunction) (citing Von Colln v. County of Ventura, 189 F.R.D. 583, 598 (C.D. Cal. 1999) (“Defendants do not argue that pain and suffering is not irreparable harm, nor could they.”)) Duran v. Anaya, 642 F. Supp. 510, 526-27 (D.N.M. 1986) (preliminarily enjoining prison from reducing medical and mental health care staff because resulting deaths, extreme pain, and self-mutilation constitute irreparable harm). As detailed above, the inappropriate institutionalization of hundreds in Georgia’s hospitals, combined with the extensive constitutional violations there, are putting individuals in the hospitals at imminent risk of serious physical and psychological harm, and even death.
Moreover, “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Charles Alan Wright, et. al., Federal Practice and Procedure § 2948.1 (2d ed. 1995) (citing Elrod v. Burns, 427 U.S. 347, 373-74 (1976). “[A]n alleged constitutional infringement will often alone constitute irreparable harm.” R.G. v. Koller, 415 F. Supp. 2d 1129, 1162 (D. Haw. 2006) (quoting Associated Gen. Contractors of Cal. v. Coal. for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir.1991) (quoting Goldie's Bookstore v. Superior Ct., 739 F.2d 466, 472 (9th Cir.1984)).
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Many, if not the majority, of the individuals in the hospitals are institutionalized when they could be more appropriately served in a community-based setting. See Oswald Decl., Ex. 19, ¶ 12; Franczak Decl., Ex. 20, ¶¶ 14-17. As long as these people remain unnecessarily instituionalized, segregated from the community, they remain at risk of irreparable physical and psychological harm. See Fanczak Decl., Ex. 20, ¶¶ 9-13. Indeed, “[a]ll individuals inappropriately institutionalized face ongoing and significant harm.” Id. ¶ 13. Immediate relief is therefore necessary. V. THE BALANCE OF EQUITIES FAVORS GRANTING THE
INJUNCTION This Court must next determine whether the above threatened irreparable injuries outweigh whatever damage the proposed injunction may cause the Defendants. Mesa Air Group, Inc, 573 F.3d at 1128. The severe injuries exemplified above all heavily outweigh the costs to the Defendants of ending the unnecessary segregation and remedying the unsafe conditions. Providing services to support a person with mental illness living in the community costs substantially less than providing services in an institutional setting. See Franczak Decl., Ex.20, ¶ 42.
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Moreover, depriving institutionalized individuals of their Constitutional rights can not be justified by a lack of funding. Ramos v. Lamm, 639 F.2d 559, 574 fn. 19 (10th Cir. 1980). “Protection of constitutional rights is a compelling public interest” and protection of Constitutional rights “weighs heavily in the balancing of harms, for the protection of those rights is . . . a benefit . . . to all citizens.” R.G. v. Koller, 415 F. Supp. 2d 1129, 1162 (D. Haw. 2006), citing Int'l Soc'y for Krishna Consciousness v. Kearnes, 454 F.Supp. 116, 125 (E.D.Cal.1978). VI. THE PUBLIC INTEREST WOULD BE ADVANCED BY GRANTING
THE REQUESTED RELIEF Last, this Court must determine that the preliminary injunction would not be adverse to the public interest. Mesa Air Group, Inc., 573 F.3d 1124, 1128 (11th Cir. 2009). This factor weighs unquestionably in favor of the preliminary injunction, because “there is the highest public interest in the due observance of all the constitutional guarantees.” United States v. Raines, 362 U.S. 17, 27 (1960). Beyond the Constitution, Congress highlighted the public interest in protecting institutionalized persons from these types of harms when it enacted the Civil Rights of Institutionalized Person Act. Moreover, there is a strong public interest in eliminating the harm that attends unnecessary and inappropriate institutionalization. As noted in Olmstead,
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the unjustified segregation of persons with disabilities perpetuates unwarranted assumptions that they are incapable or unworthy of participating in community life. Olmstead, 527 U.S. at 600. Moreover, it severely diminishes the individuals’ ability to enjoy activities of daily life, such as family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Id., at 601. “The Mental Health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Jaffee v. Redmond, 518 U.S. 1, 11 (1996). Thus, the public interest strongly supports targeting the most immediate life-threatening needs in the hospitals and providing individuals with disabilities with services in the most integrated setting appropriate to their needs.
VII. RELIEF REQUESTED To remedy these violations of the Constitution and federal statutory law, the United States respectfully requests that the Court order the following relief, as well as any other immediate relief the Court deems appropriate after a hearing on this motion: 1. The State shall promptly take such steps as are necessary to ensure
that all individuals in the hospitals and those at risk of admission to the hospitals are served in the most integrated community settings
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appropriate with appropriate services, supports, and other necessary resources made available. 2. The State shall promptly place in the most integrated setting in the community and provide with appropriate services all those individuals in the hospitals who can be served in the community and who do not oppose such a placement. 3. Within 14 days of this Order, an Independent Monitor shall be chosen to monitor the State’s implementation of this Order. The State shall bear the costs of the Independent Monitor. The Independent Monitor shall have substantial experience in expanding community services for people with mental disabilities and in moving people with mental disabilities out of inappropriate institutional placements. The Parties, with the input of the amici, shall jointly choose the individual who will be appointed as the Independent Monitor and shall notify the Court of their joint selection. If the Parties and the amici are unable to agree on the individual within 14 days of this Order, the Parties and the amici shall jointly petition the Court to make the selection. In this petition, the Parties and the amici will be permitted to propose the names of three alternate candidates for the position, from which the
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Court shall select the Independent Monitor. The Parties and the amici shall submit the candidates’ curricula vitae, along with other pertinent information regarding the proposed candidates, at the time of the submission of the names of the candidates. 4. Within one month from his or her appointment, the Independent Monitor shall issue a comprehensive action plan (“Action Plan”). The Action Plan shall contain the following components: a. The Action Plan shall set forth specific numerical targets and
timetables for reduction of the census of the hospitals. These targets shall ensure that individuals who are inappropriately institutionalized will move to appropriate community settings at a reasonable pace, with a substantial number of individuals with psychiatric disabilities, and a substantial number of individuals with developmental disabilities, to move to appropriate community settings within nine months of the issuance of the Action Plan. The Action Plan shall consider the savings that can be realized from the closure of Hospital beds and redirected to develop community capacity.
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b. The Action Plan shall identify with specificity the barriers to moving individuals in the hospitals to integrated settings. The Action Plan shall specify all such barriers, whether they relate to the discharge planning process or to community capacity. The Action Plan shall identify specific policy changes that are necessary to overcome those barriers, including specific numbers of additional supported housing slots, ACT teams, ICM case managers, and mobile crisis interventions, together with timetables for adopting those changes.
c. The Action Plan shall identify specific and targeted changes in the policies and practices of the hospitals that will adequately address the suicide risks and resident-on-resident assaults in the hospitals.
d. The Action Plan shall identify potential sources of funding for community services and actions the State must take to access those sources, including actions to maximize appropriate federal funds to reallocate mental health budget funds to the community.
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5. The Parties and Amici shall have an opportunity to object to the Action Plan. Any such objections shall be raised with the Court within two weeks of the Independent Monitor’s issuance of the Action Plan. If not the subject of timely objection, or once approved by the Court, the Action Plan shall be entered as an order of this Court pursuant to Fed. R. Civ. P. 65.
6. The State shall implement the Action Plan. In particular, the State shall meet the numerical requirements and timetables in the Action Plan and take steps to ensure that all individuals in the hospitals are protected from harm, included harm from resident-on-resident assaults and self-harm.
7. Beginning two months after his/her appointment, the Independent Monitor shall monthly file with the Court a report detailing the Defendants’ compliance with the Action Plan.
8. Within one month of this Order and every month thereafter, the State shall provide the Independent Monitor with a list of individuals in the hospitals that the State deems appropriate for community placement and a list of all other individuals in the hospitals. All individuals in the hospitals not on the community placement list shall, within 60 - 39 -

Case 1:10-cv-00249-CAP Document 90-1 Filed 09/24/10 Page 40 of 44
days, be evaluated by the Independent Monitor, or someone under the Independent Monitor’s auspices, to determine the barriers to community placement for each such individual. The Independent Monitor shall also evaluate the monthly lists to identify systemic problems that are barriers to community placement and set forth actions that the State must take to redress these problems. The State shall promptly take action to remove barriers for each Individual in the Hospital and to address identified systemic problems. VIII. CONCLUSION For the forgoing reasons, the United States requests that the Court order immediate relief and that the Court set a hearing date to consider this request.
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Respectfully submitted, FOR THE UNITED STATES:

SALLY Q. YATES Acting United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
SHANETTA Y. CUTLAR Chief Special Litigation Section
JUDITH C. PRESTON Deputy Chief Special Litigation Section

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Case 1:10-cv-00249-CAP Document 90-1 Filed 09/24/10 Page 42 of 44

/s/ (Express Permission) MINA RHEE [GA Bar 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Mina.Rhee@usdoj.gov

/s/ Robert A. Koch MARY R. BOHAN [DC Bar 420628] TIMOTHY D. MYGATT [PA Bar 90403] ROBERT A. KOCH [OR Bar 072004] EMILY A. GUNSTON [CA Bar 218035] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6270 Email: Robert.Koch@usdoj.gov

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Case 1:10-cv-00249-CAP Document 90-1 Filed 09/24/10 Page 43 of 44
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch ROBERT A. KOCH Attorney Special Litigation Section
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Case 1:10-cv-00249-CAP Document 90-1 Filed 09/24/10 Page 44 of 44
CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the foregoing MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties in this matter via electronic notification or otherwise:
Jason S. Naunas Mark J. Cicero Assistant Attorneys General State Law Department 132 State Judicial Building 40 Capitol Square, S.W Atlanta, GA 30334-1300
Kenneth S. Canfield Doffermeyer, Shields, Canfield & Knowles, LLC 1355 Peachtree St., Suite 1600 Atlanta, GA 30309
Ira A. Burnim Alison N. Barkoff Bazelon Center for Mental Health Law 1101 15th St. NW, Suite 1212 Washington, DC 20005
Joshua H. Norris Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue, Suite 430 Decatur, GA 30030
This 28th day of January, 2010.
/s/ Robert A. Koch ROBERT A. KOCH Attorney Special Litigation Section

 
 Case 1:10-cv-00249-CAP Document 208 Filed 09/18/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION


UNITED STATES OF AMERICA,

)


)


Plaintiff,

)


)


v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

_______________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

NOTICE OF JOINT FILING OF THE REPORT OF THE INDEPENDENT REVIEWER

Plaintiff United States and Defendants State of Georgia, et al., jointly

file the Report of the Independent Reviewer pursuant to ¶ VI.B of the

Settlement Agreement [Docket Nos. 112, 115, 151 &171]. The Independent

Reviewer’s report is included as Attachment A (its referenced attachments

are included as Attachment B).

Pursuant to ¶ VII.A.3 of the Settlement Agreement, the parties jointly

request a non-evidentiary status conference.

Respectfully submitted,

Case 1:10-cv-00249-CAP Document 208 Filed 09/18/15 Page 2 of 5

FOR THE UNITED STATES:
JOHN A. HORN Acting United States Attorney Northern District of Georgia

VANITA GUPTA Principal Deputy Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
JUDITH PRESTON Acting Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section

/s/ (Express Permission)___ AILEEN BELL HOUGHES [GA 375505] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

/s/ Katherine Houston________ KATHERINE HOUSTON [CA 224692] REGAN BAILEY [WA 39142] Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 307-0652 Fax: (202) 514-0212 Email: Katherine.Houston@usdoj.gov

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Case 1:10-cv-00249-CAP Document 208 Filed 09/18/15 Page 3 of 5

FOR THE STATE OF GEORGIA:

SAMUEL S. OLENS Attorney General Georgia Bar No. 551540

DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
MARK J. CICERO Assistant Attorney General Georgia Bar No. 125686
JASON S. NAUNAS Assistant Attorney General Georgia Bar No. 142051
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ (Express Permission)___ JAIME THERIOT Special Assistant Attorney General Georgia Bar No. 497652 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3534 Facsimile: (404) 962-6748 Email:
jaime.theriot@troutmansanders.com
/s/ (Express Permission)___ JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsLaw LLC 999 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinslawllc.com

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Case 1:10-cv-00249-CAP Document 208 Filed 09/18/15 Page 4 of 5
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Century Schoolbook, 13-point font in compliance with Local Rule 5.1B.
/s/ Katherine Houston___ KATHERINE HOUSTON Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section

Case 1:10-cv-00249-CAP Document 208 Filed 09/18/15 Page 5 of 5
CERTIFICATE OF SERVICE
 I hereby certify that on this 18th day of September, 2015, I electronically filed the JOINT FILING OF THE REPORT OF THE INDEPENDENT REVIEWER with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to all of the attorneys of record.
/s/ Katherine Houston___ KATHERINE HOUSTON

Attachment A


REPORT OF THE INDEPENDENT REVIEWER
 In The Matter Of

United States of America v. The State of Georgia
 Civil Action No. 1:10-CV-249-CAP

Submitted By: Elizabeth Jones, Independent Reviewer
 September 17, 2015


INTRODUCTORY COMMENTS

This is the fifth Annual Report issued on the status of compliance with the provisions of the Settlement Agreement in United States v. Georgia. The Report documents and discusses the State’s efforts to meet obligations to be completed by July 1, 2015.
As in each year of this Agreement, it is clear that the State of Georgia has undertaken its Settlement Agreement obligations with a commitment to systemic reform. The Governor and the State Legislature have continued to approve the funding requested for the implementation of the Settlement Agreement. Although there are findings of non-compliance with certain provisions, the State, through its leadership at the Department of Behavioral Health and Developmental Disabilities (DBHDD), has demonstrated a consistent good faith effort to work to address acknowledged concerns and to implement its overall obligations. As will be discussed in this Report, discrete aspects of the Settlement Agreement will require additional time and resources in order to reach substantial compliance.
This Report describes the findings of the independent Reviewer and her subject matter consultants. As required, the Parties were provided a copy of the draft Report and the consultants’ reports on August 17, 2015. The Independent Reviewer and her consultants carefully considered all comments and recommendations.
OVERALL FINDINGS
Provisions Related to Individuals with a Developmental Disability
On March 20, 2015, the Independent Reviewer’s Supplemental Report was filed with this Court. The Supplemental Report focused on the remediation of implementation concerns referenced in both her previous Annual Report, filed by the Parties in September 2014, and her first Supplemental Report, filed in March 2014.
The March 2015 Supplemental Report again documented the failure to resolve non-compliance with key provisions of the Settlement Agreement. Those provisions included the obligations to:
• Move 150 individuals with developmental disabilities from the State Hospitals to the community [III.A.2.b.i (D)];
• Assemble professionals and non-professionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individualized Service Plans, as required by the State’s HCBS Waiver Program, that are individualized and person centered [III.A.2.b.iii (A)];
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• Assist the individual to gain access to needed medical, social, education, transportation, housing, nutritional and other services identified in the Individual Service Plan [III.A.2.b.iii (B)]; and
• Monitor the Individual Service Plan to make additional referrals, service changes, and amendments to the plans as identified as needed [III.A.2.b.iii. (C)].
This Settlement Agreement is focused on community integration. In order to meaningfully experience the opportunities and relationships offered in community settings, adults with a developmental disability must receive appropriately individualized supports that help them to develop their skills and to minimize any adverse risks, including injury or death. Essential safeguards must be present at the individual, programmatic and systemic levels. These multiple safeguards must be continually assessed for their adequacy and effectiveness.
As discussed in this Report, as of this date, those areas of non-compliance have not been remedied. Although the State has proposed, and begun to implement, some reasonable plans to rectify these recurrent gaps in the community system, there has been inadequate progress statewide and a failure to establish and meet meaningful timelines. Thus, substantial compliance with these provisions will require additional time, resources and strategies for reform.
As past Reports have documented, on June 30, 2014, the State issued a Priority Plan in response to seven of the nine recommendations made by the Independent Reviewer. Those seven recommendations were:
1. Realign the responsibilities and competencies of support coordinators to include developing and implementing an individualized plan of supports, revising the plan to address changing needs, and oversight to ensure needed services are delivered and outcomes are achieved.
2. Strengthen the transition process from the State hospitals to community-based settings, including providing individualized and relevant competency based training for community providers.
3. Ensure competent and sufficient health practitioner oversight of medically fragile individuals including providing competency-based training on writing and implementing nursing plans of care, proper positioning techniques, and proper monitoring of food and fluid intakes.
4. Design and implement Intensive Support Coordination for high-risk individuals, including pursuing an amendment to the Home and Community-Based Services Waiver.
5. Restructure the roles and responsibilities of regional offices, including examining how the regional offices inter-relate with the DD Division and with community providers, including Support Coordination agencies.
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6. Develop and implement sustainable strategies for the ongoing monitoring and evaluation of community placements to remedy issues such as lack of communication, information sharing, and feedback.
7. Recruit and retain provider agencies with requisite experience with individuals with medical and behavioral complexities.1
The State has proposed, and has begun to implement to varying degrees, its plans to address these recommendations. Consultants, with the expertise necessary for this major reform, have been retained and qualified DBHDD staff has been assigned to the work involved in transition planning; the oversight of health care; the development of clinical interventions and the realignment of the Regional offices (now called Field Offices).
At this time, however, these new resources and assignments continue to be in the formative stages and to have limited availability.
For example, community-based clinical teams are absolutely essential if the health and therapy needs of medically fragile and behaviorally challenged individuals are to be supported and safeguarded in each Region of the State. As of April 2015, the State has established one Integrated Clinical Support Team (ICST) through Benchmark Human Services, a well-regarded provider agency in Georgia. Reports from the Benchmark ICST indicate that their professional staff’s technical assistance and training have been well received but, as of June 2015, they have provided technical assistance to only eight agencies in Region 2 and, for a number of reasons, including scheduling demands and the need for more information, they have not been able to complete all requests for assessments. (There have been ninety referrals from community agencies since April 2015.) Notwithstanding the demand in Region 2 alone, at this time, there are plans only to develop one ICST. Given the size of the State and the highly varied availability of clinical professionals, especially in the rural areas, more than one ICST is required for successful oversight and the delivery of individualized clinical supports.
Given the relative scarcity of clinical professionals, other approaches may need to be considered. In Region 4, the model developed for the Community Clinical Team, established in FY14, utilizes clinical professionals from the now-closed Southwestern State Hospital to provide consultation to community providers, including Primary Care Physicians and medical facilities, serving medically complex individuals. Recently, a physician and psychiatrist have joined the neurologist already assigned to this function. In order to meet statewide demand, there should be consideration of the retraining and reassignment of other clinical professionals currently working within the system.
1 The other two recommendations focused on conducting independent mortality reviews and identifying exit criteria to enable the State to reach identifiable goals necessary for compliance.
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Following the receipt of the draft version of this Report, DBHDD’s leadership met with the Independent Reviewer to discuss her recommendation about the expansion for the communitybased Integrated Clinical Support Team (ICST). There is agreement that this discussion will continue. A meeting for this purpose has been scheduled for September 29, 2015.
The consultant and leadership resources invested in the systemic reforms, clearly outlined in the Priority Plan and in the Pioneer Project, have placed only four individuals in community residential settings, the last two placements occurring on June 22, 2015. While these placements have been examined by the Independent Reviewer and found to be very positive in both the planning and implementation aspects, they are limited in number. This is especially troubling because 266 individuals are still confined to state hospitals2 and the completion of a comprehensive transition plan/process has been pushed forward to July 1, 2016. (The Independent Reviewer has been given a copy of the draft Transition Manual, dated August 6, 2015, but it is not yet in effect.) Although the clinical resources are not sufficiently available yet to warrant additional placements of the adults with the most complex behavioral and medical needs, there are other institutionalized individuals who could be placed in a responsible manner with appropriately individualized supports.
In fact, during this Fiscal Year, there were ten individuals with forensic histories who were discharged from State hospitals as a result of Court orders for their release or whose families/guardians requested their discharge. These individuals were reviewed through the Transition Fidelity Committee, a Committee comprised of key DBHDD staff mandated to review each discharge plan for its sufficiency prior to any approval of the community placement. For individuals without medical or behavioral complexity, review by the Transition Fidelity Committee may be sufficient, as long as the engagement of Support Coordination is provided well before discharge.
2 As of August 12, 2015, it was reported that there were 223 individuals at Gracewood and 43 individuals at Atlanta Regional. Of these, 179 adults are in the ICF units of Gracewood, 44 individuals are in the SNF at Gracewood and 43 individuals are in the SNF at Atlanta Regional. There were 20 people transferred from Southwestern State Hospital when it closed in December 2013. Two individuals are included in the Gracewood census. Fourteen individuals were sent to Atlanta Regional. Of these, 3 have died, 1 was transferred to Easter Seals in Region 4 (she was visited by the Independent Reviewer and the Director of Settlement Services and was doing well), and 10 remain at Atlanta Regional today. When the Craig Center closed in June 2015, there had been 60 individuals transferred to State Hospitals: 2 individuals went to an adult mental health unit; 32 were transferred to Gracewood. Twenty-nine individuals remain at Gracewood, 3 have died; 26 individuals were transferred to Atlanta Regional. Five have died and 21 remain there. Of the 8 deaths, 5 were expected and 3 were unexpected.
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Current information from DBHDD reported that there are twenty-three institutionalized individuals on the transition list for community placements. However, major barriers have been identified for seventeen of these individuals; two individuals are having their barriers to placement addressed; and four individuals are well into the discharge process.
Support Coordination is the linchpin to the implementation of the Individual Support Plan. It is also an essential safeguard for minimizing adverse risk. There are plans in the initial stages to strengthen Support Coordination. The four individuals placed under the Pioneer Project in Region 2 had extended engagement prior to their discharges. Intensive Support Coordination resources still are available to a limited number of individuals in Region 4 only. Pending the changes to the State’s Home and Community-Based Waiver, there has not yet been an extension of these plans to other areas of the State or to other individuals who are currently institutionalized. The roles and expectations for Support Coordination have not yet been standardized statewide. DBHDD has reported that this change will occur in the second phase of the current cost rate study.
DBHDD is currently revising the Individual Support Plan format to strengthen its personcenteredness. This desired goal is to be implemented in conjunction with the new Administrative Services Organization; the timeline, as reported in the “Interim Quality Management Report,” is January 2016.
The “Interim Quality Management Report” issued by DBHDD on August 1, 2015, described in very unsettling detail the lack of trained staff currently responsible for individuals with a developmental disability in twenty-seven provider agencies.3 The findings point to the urgency to recruit and retain competent providers:
• 41% of the professional staff attached to the organization was not properly trained, licensed, credentialed, experienced and competent.
• 15% of all other staff was not properly trained, licensed, credentialed, experienced and competent.
• Job descriptions were not in place for 64% of the personnel. • 52% of all staff having direct contact with consumers did not have all required annual
training within the first sixty days and annually thereafter.
3 The findings in this most recent report are comparable to findings described in the Annual Quality Management Report dated February 2015. This report showed a decline in provider compliance with training requirements essential to the safeguarding of individuals under their responsibility.
6


• 42% of the organizations with oversight for medication or that administer medication did not follow federal and state laws, rules, regulations and best practices.4
The “Interim Report” did not describe the specific actions taken to address these failures to 
 meet fundamental expectations. As a result, it is not clear as to whether corrective actions have 
 been implemented. The “Interim Report” did, however, conclude this Section by stating: “The 
 Division of DD must continue to hold providers accountable regarding responsibilities to train 
 staff and conduct background screening, to ensure that there is a greater chance individuals will 
 be treated with respect and maintain health and safety. If staff has the knowledge regarding 
 health issues, medications, rights, safety, and person centered practices, the more likely they 
 are to share this information with individuals served, to help them become more independent 
 and knowledgeable. Technical assistance and accountability will be increased with the 
 implementation of the Georgia Collaborative ASO.”5 

In its recently released “2013/2014 Annual Mortality Report,” dated August 15, 2015, DBHDD 
 stated that it would “utilize a database that is being developed to track the identification of 
 deficient practices and the corresponding recommendations and corrective actions that are 
 described in quality review, audit reports, and reports concerning providers’ performance 
 including compliance with contractual, regulatory, and programmatic requirements; CMRC 
 (Community Mortality Review Committee) and external mortality review recommendations will 
 be included in his database.”6 DBHDD has reported that this database will be operational in 
 September 2015. 

Training for provider agencies on critical aspects for the prevention of aspiration, bowel 
 obstruction, GERD, seizures and dehydration (the “Fatal Five”) was led by Karen Green 
 McGowan Consultants, another well-regarded professional team, on June 24 and 25, 2015. (The 
 training was designed originally for agencies in Region 2 but other agencies then were invited to 
 attend.) This training was held over a two-day period; additional training is scheduled. Clearly, 
 this instruction is of very high importance and it is critical that there be much more training of 
 this nature statewide. (During the reviews conducted this summer, at least two provider 
 agencies asked the Independent Reviewer’s nurse consultants for additional guidance on 
 preventing aspiration pneumonia. Descriptive material on the importance of oral hygiene was 
 forwarded to them after the visits.) 

4 See page 50. The reviews documented Qualifications and Training as part of the QEPR
 Administrative Review conducted by Delmarva between July 1, 2014 and March 21, 2015.
 5 See page 55 of the “interim Quality Management Report.”
 6 See page 41 of the “2013/2014 Annual Mortality Report,” dated August 15, 2015.

7


The Independent Reviewer’s 2014 recommendations were substantially addressed in the Priority Plan issued by DBHDD. The conceptual framework outlined in that Plan is reasonable and reflects expected practices in the field. However, as noted in the March 2015 Supplemental Report,7 the timeframes and resources available for implementation of the Plan have been of concern. As a result, there has been only incremental progress to date in the implementation of these reforms. A greater sense of urgency is needed, if the critically required changes in Georgia’s system are to be accomplished, as intended by the leadership of DBHDD. Explicit timelines need to be established, disseminated throughout the system and met. Given the difficulties described by leadership staff in their attempts to restructure the system, there may need to be additional resources assigned to the Pioneer Project in Region 2 in order to expand its goals and effect its implementation in other parts of the State.
Provisions Related to Individuals with a Serious and Persistent Mental Illness
At this time, based on the information derived from myriad sources over the course of the year, it is the Independent Reviewer’s professional judgment that the State has reached substantial compliance with the majority of its obligations under the Settlement Agreement related to the development of a comprehensive community-based system of support for adults with a serious and persistent mental illness. Although there is non-compliance with one specific provision related to supported housing [III.B.2.c.ii(A)] and there are important issues to be addressed regarding discharge planning, significant strides have been made in the availability of Assertive Community Treatment, crisis services, supported employment and supported housing. As documented in the attached supplemental reports:
• The requirement for the provision of supported employment has been exceeded. It has been confirmed that six hundred and fifteen adults are being assisted in their search for competitive employment. Over fifty percent of these individuals have been employed.
• There are twenty-two Assertive Community Treatment teams throughout the State. These teams continue to substantially meet the fidelity scale measures mandated by the Settlement Agreement. There is evidence of an increased, although still evolving, focus on the recovery model. The gains in the implementation of the recovery model are not yet uniform but promising practices have been demonstrated, as a result of
7 The Independent Reviewer’s Supplemental Report stated: “On June 30, 2014, the State’s Priority Plan was submitted in a timely manner. Upon review, it was considered to be responsive to the overall obligations of the Settlement Agreement. However, the Department of Justice, the Amici and the Independent Reviewer expressed concern regarding both the availability of resources required for implementation and the time that would be needed to implement the expected reforms.” (See page 3)
8


technical assistance and guidance from the Department’s leadership and its Office of Recovery Transformation. • The components of the crisis service system for adults with a serious mental illness interact appropriately. The work of GCAL, the crisis line and epicenter of referrals for assistance, is especially effective. The use of Crisis Stabilization Programs has reduced the use of state hospital beds. For example, in Region 1, the use of state hospital beds for adults in crisis has declined from 25% (in 2010) to less than 2% (in 2015). In Region 2, there has been a 48% decrease in hospital admissions from a high of 1730 in FY11 to 824 in FY14. Thus far, in FY15, crisis services have diverted 53.6% of the individuals seen in Region 2 from inpatient hospitalization. • Supported housing vouchers have been made available to 2428 adults who were hospitalized, homeless, or under-housed. Bridge funding was provided to 871 adults. For the fifth consecutive year, the requirements of the Settlement Agreement were exceeded. The collaboration between the Department of Behavioral Health and Developmental Disabilities, its sister agency, the Department of Community Affairs, and Local Housing Authorities is exemplary. The implementation of the Georgia Housing Voucher Program can be considered a national model.
The impact of these successful initiatives on the daily lives of individuals with serious mental illness cannot be overstated. For example:
• A twenty-eight year old woman, who resides in the Augusta area (Region 2), spent most of the last fifteen years in a state hospital with only brief periods in community-based residential programs. She has both a serious mental illness and a developmental disability. For over two years, the Assertive Community Treatment team in that Region worked strenuously with hospital and regional staff to accomplish her discharge. Since November 2014, she has lived in her own (spotlessly maintained) apartment funded with a Home and Community-Based Services waiver. Her ACT team visits her frequently and serves as her representative payee, as she cannot read. She has had one Emergency Room visit for a medical issue. She has learned to manage her own medications. She is demonstrably proud of her success and would like to graduate from ACT services but “not yet.”
As the Department refines its information management systems, it is expected that more data about the effect of its reforms can be shared with key stakeholders and with the general public. The Administrative Services Organization (ASO) contract has been awarded and implementation is underway for its work with the mental health and developmental disability services under the Department’s responsibility.
9


Notwithstanding the major strides described above, there are two very critical obligations related to the provision of mental health services that were not found to be in compliance. It is highly recommended that both of these obligations continue to receive independent oversight.
First, as is recognized by the State, compliance has not been achieved with the provision that requires that: “By July 1, 2015, the State will have the capacity to provide Supported Housing to any of the 9,000 persons in the target population who need such support. The Supported Housing required by this provision may be in the form of assistance from the Georgia Department of Community Affairs, the federal Department of Housing and Urban Development, and from any other governmental or private source.” [III.B.2.c.ii.(A.)].
There has been extensive discussion about this provision. The State will require additional time to complete its plans for determining need and choice and for ensuring that adults with serious and persistent mental illness confined to correctional facilities are fully included.
The Independent Reviewer and her consultant on housing, Ms. Knisley, are hopeful that the Parties and the Court will agree to the additional time required to achieve full compliance with the terms of this provision.
Second, the Settlement Agreement states: “Individuals with serious and persistent mental illness and forensic status shall be included in the target population if the relevant court finds that community service is appropriate.” (See III.B.1.b.) In order to review the access to community services for individuals included in this definition, the Independent Reviewer began to review discharge planning. This work was performed under provision III.D.3.a. and, in part, under the aegis of the “Notice of Termination of Settlement Agreement and Joint Request to Close Case,” filed by the Parties, on February 5, 2014, regarding the CRIPA action. This document states that “The parties agree that effective implementation of the discharge and planning terms are essential to compliance with the 2010 Settlement Agreement and will be subject to the Court’s jurisdiction and enforcement, if necessary, in Civil Action No. 1:10-CV249.” After review, it was concluded that the weaknesses and fragmentation noted in the forensic discharge planning process may create barriers to community placement. This finding is in contrast to the very commendable progress recently seen in discharge planning for ten adults with both a developmental disability and forensic status. Their discharges illustrate that, with proper planning, forensic clients can make successful transitions to community-based services.
In addition to the problems with discharge planning, members of the Judiciary interviewed by the Independent Reviewer for this Annual Report cited a lack of confidence in risk assessments; the failure to provide sufficient detail about the plans for community placement, including the levels of supervision and oversight; and the absence of consistent and reliable clinical presence
10


in the discussion of discharge plans during the Court hearings. Furthermore, Judges (and a District Attorney) expressed an interest in learning more about the fidelity standards for Assertive Community Treatment and other community-based interventions and indicated an interest in actually visiting community-based mental health programs. These are all opportunities for enhanced attention by the State. The Settlement Agreement requires that the State maintain substantial compliance with all provisions for a period of one year. (See VII. 2). As referenced in last year’s Annual Report, there are certain aspects of the mental health system that must not lose focused attention:
• Implementation of a recovery-based model must be present throughout the system. All agencies should demonstrate knowledge of and commitment to these principles in order to receive State funding;
• There must be evidence of continuity of care. The mental health system must work as a whole rather than as a series of parts.
• Access to recovery-based supports must be available for each member of the target population, including those with a forensic history.
Given the significant accomplishments in the mental health system, it would be timely and appropriate for the State to discuss its plans for the forthcoming year and to inform its stakeholders of its strategies for ensuring sustainability. It would also be very important to celebrate these achievements and to recognize the efforts that have been underway by so many people for the last five years.
11


Summar~ of Com~li ance: Year Five

Settle ment Agreement Reference

Provision

Rating

Comments

ill ii i.A.l.a lii.A.l.b iii.A.2.b.i(A)
iii .A.2.b.i(B)

Substantive Provisions By July 1, 2011, the State shall cease all admissions to the State Hospitals of all individuals for w hom the reason for admission is due to a primary diagnosis of a developmental disability.

Com pliance

The State has complied w ith this provision . There is no evi dence to indicate that indivi duals with a developmental disability have been transferred between State Hospitals in contradiction of the commitment to cease admissions.

The State will make any necessary changes to administrative regu lations and take best efforts to amend any statutes that may require such admissions.
By July 1, 2011, the State shall move 1SO individua ls w ith developmental disabilities from the State Hospitals to the community and the State shall create 150 wa ivers to accomplish this t ransition. In addition, the State shall move from the State Hospitals to the community all individuals with an existing and active w aiver as of the Effective Date of this Agreement, provided such placement is consistent w ith the individual's informed choice. The State shall provide family supports to a minimum of 400 fam ilies of people with developmental disabilities.

Compliance Compliance

In House Bill 324, the State Legislature amended Chapter 4 of Title 37 of the Official Code of Georgia Annotated .
By July 1, 2011, the Department placed more than 1SO individua ls with a developmental disability into community residential settings supported by the Home and Community-Based Waiver. A sample of 48 individuals w as reviewed . Identified concerns were referred to the Department and corrective actions were initiated . Nine of the 11 individuals hospitalized with an existi ng Wa iver were discharged to com munity settings. Two individuals remained hospitalized . Delays in placement were attributed to family objections or to provider-related issues. The Department continued to pursue appro priate community placements for these two individ uals. More than 400 indivi duals were provided with fam ily supports. Because there w as substantial compliance with this provision, a positive rating was given .

Between July 1, 2011, and July 1, 2012, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide fam ily supports to an additional 450 fam ilies of people with developmental disabilities.

Compliance

The Department placed 164 individuals with a developmental disability into community residential settings supported by the Home and Community-Based Waiver. A statistically relevant sample of 48 individ uals was revi ewed . Identified concerns have been referred to the Department and corrective actions are being initiated . Although in compliance, it is recommended that the Department review its policies and guidance regarding expectations for communit y placement and to provide greater oversight of service coordination at the Regional level. The two hospitalized individ ua ls referenced in the provision above have either been placed or have a placement in process . Two other individuals with exist ing and active Wa ivers at t h e time of the Settlement Agreement w ere rehosp italized. Those individuals were reviewed by a psychologist consulting w ith the Independent Reviewer. Communit y placements are being actively pursued; an experienced provider has been recruited. The Department issued 117 Waivers to avo id institutionalization of individuals with a developmental disability residing in the community. Family supports w ere provided for 2248 individuals through 38 provider agencies.

12


Settlement Agreement Reference

Provision

Ra t in g

Comme nt s

III.A.2.b.i(C)

Between July 1, 2012, and July 1, 2013, the State shall create at least 250 waivers to serve individuals w ith developmental disabilities in communit y settings. The State shall move up to 150 individuals with developmental disabilities from the State Hospitals to the commun ity using those waivers. The remaining wa ivers shall be used to prevent the institutionalization of individuals with developmental d isabilities who are currently in the community. The State shall provide fami ly supports to an additional 500 fami lies of people with developmental disabilities.

Compliance

The Court's Order, dated Ju ly 26, 2013, modified the language of this provision. The Department has issued 597 wa ivers to serve individuals w ith deve lopmental disabilities in community settings. These waivers have been used to prevent institutionalization and to sustain individuals with a developmental disability with their fami lies. The number of individuals w ith a disability who have moved from state hospitals us ing these wa ivers will be reviewed in the Independent Reviewer's report to be issued in late Winter 2014. As of this date, seventy nine individuals w ith a developmental disability have been transitioned from state hospitals to community residential settings.

III.A.2.b. i(D)

Between July 1, 2013, and July 1, 2014, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomp lish this transition. The State shall a lso create 100 add itiona l wa ivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide fami ly supports to an add itional 500 fami lies of people with developmental disabilities.

No n complia n ce

With fe w exceptions (three ), pla cements from State Hospitals have been suspended. The Department is planning and developing remedial actions to permit the resumption of individualized community placements. A "pioneer" project is be ing initiated in Region 2 to demonstrate improved transition, support coordination and habilitation practices. In total, 46 individuals were transitioned from State Hospitals during this Fiscal Year. The State issued 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in t he community. In FY14, the State provided fam ily supports to a tota l of 1155 fami lies of people w ith deve lopmental disabilities.

III.A.2.b.i(E)

Between Ju ly 1, 2014, and Ju ly 1, 2015, t he State sh all attempt to move any re maining individua ls with development a l d isab ilities from t he State Hospitals to the community. The St at e shall create up t o 1SO waivers to a ccomp lish th is t ransit ion. The State shall also create 100 additional waivers to prevent the hospitalizat ion of individuals with developmental disabilities who are currently in t he commun ity. Th e State sh all provide family supports to an a dditional SOO fa m ilies of peop le with developmental d isabilities.

Noncompliance

With few except ions (fourtee n), placements from State Hospitals have been su spended. The Dep artment continues to plan a nd develop remedia l actions t o permit t he resumption of individua lized community placement s. However, t he pace of reform has been slower t han anticipated. A "Pioneer Project" h as been init iated in Region 2 to demonstrate improved t ransition, support coor dinat ion and habilitation practices. In FY15, the State reported that it provided family supports to a n a dditiona l 1,136 fa milies of people with developmental disabilit ies.

III.A.2.b.i(F)

Any persons with developmental disabilities remain ing in State Hospita Is on Ju ly 2, 2015, shall be served in t he most integrated setting appropriate to their needs.

It is pre mature t o r ate t his provision. Deferred

III.A.2.b. ii( B)

Individuals in the target population shall not be served in a host home or a congregate communit y living setting unless such placement is consistent w ith the individua l' s informed choice. For individuals in the target population not served in the ir own home or their family's home, the number of individuals served in a host home as defined by Georgia law shall not exceed two, and the number of individuals served in any congregate community living setting shall not exceed four.

Co m p l i a n c e

The Department remains in substantia l compliance with this provision. All host homes reviewed to date have no more than two individuals. With one recently identified exception, the number of individuals served in any congregate community livi ng setting has not exceeded four.

13


Settlement Agreement Reference

Provision

Rating

Comments

III.A.2.b.ii i(A)

Assembling professionals and nonprofessiona ls w ho provide individualized supports, as well as the individual be ing served and other persons important to the individual being served, who, th rough the ir combined expertise and involvement, develop Individual Service Plans, as required by the State' s HCBS Wa iver Program, that are individua lized and person centered .

Noncompliance

The rating of this provision was deferred initially by Court Order until January 2014. As of July 1, 2015, the Department has not achieved compliance with this provision. There are plans underway to achieve compliance but additional time is needed.

III.A.2.b.iii(B) III.A.2.b.iii(C) III.A.2.b.ii i(D)

Assisting the individual to gain a ccess to needed medical, social, education, tra nsportation, housing, nutritiona l, and other services identifie d in the Individ ual Service Plan. Monitoring the Individua l Service Plan to ma ke additiona l referrals, service changes, and amendments t o the plans a s identifie d as needed.
The Independent Revie wer will not a ssess the provisions of this section, III.A.2.b.iii.(A)-(C), in her report for the period ending Ju ly 1, 2013. Instead, the revie w period for th is section will be extended six months until January 1, 2014, after which the Independent Revie wer w ill repo rt on this section pursuant to the d raft, review, and comment deadlines enumerated in VI.A.

Noncompliance
Noncompliance
Completed

The rating of this provision was deferred initially by Court Order until January 2014. As of July 1, 2015, the Department has not achieved compliance with this provision. There are plans underway to achieve compliance but additional time is needed. The rating of this provision was deferred initially by Court Order until January 2014. As of July 1, 2015, the Department has not achieved compliance with this provision. There are plans underway to achieve compliance but additional time is needed. The Independent Reviewer has complied with this requirement. Her first Supplemental Report was filed with the Court on March 24, 2014. Her second Supplemental Report was filed with the Court on March 20, 2015.

III.A.2.c.i(A)

By July 1, 2012, the State will ha ve six mobile crisis teams fo r persons w ith developmenta l disa b il it ie s .

By July 1, 2012, the State will have five Crisis
Respite Homes for individuals with III.A.2.c.ii(B)(l) developme ntal d isabilities.

By July 1, 2013, the State will establish an III.A.2.c.ii(B)(2) additiona l four Crisis Respite Homes fo r
individuals w ith developmental disabilities.
By July 1, 2014, the State will establish an additiona l three Crisis Respite Homes for III.A.2.c.ii(B)(3) individua ls w ith deve lopmental disab ilities.

III.A.3.a

By July 1, 2013, the State shall create a program to educate judges and law enforcement officia ls about community supports and services for individuals w ith developmental d isabilities and forens ic status.

There are 12 mobile crisis teams for individuals with
Co mpliance developmental disabilities. They are located in every Region.

Co mpliance

There are 11 Crisis Respite Homes, including one for children. One individual in the sample of 48 was review ed in his crisis home; supports w ere adequate and individua lized.

Compliance Non-
compliance
Compliance

There are 11 Crisis Respite Homes across the State. There are 2 homes in each Region, except for Region 3 which has one Home. There w ere 270 individuals served in FY13. There are 11 Crisis Respite Homes across the State. A contract for the twelfth Home was issued but as of July 1, 2015 the Home has not been opened. Furthermore, there are serious concerns about the use of these homes for long lengths of stay. The Department has initiated a program to provide education to judges and law enforcement individuals. In FY14, training was provided to 1433 individuals, including 130 Judges, 1279 law enforcement officials and 24 attorneys. In FY15, training was provided to 889 individuals, including 11 Judges, 827 law enforcement officials and 51 attorneys.

14


Settlement Agreement Re f e r e n ce

Provision

Rating

Comments

III.A.3.b II I.A.4.a III.A.4.b III.A.4.d
II I.B.l.c

Indivi duals with developmental disabilitie s and forensic status shall be included in the target popu lation and the waivers described in this Section, if the relevant court finds that community placement is appropriate. This paragraph shall not be interpreted as expanding the State's obligations under paragraph III.A.2.b. By July 1, 2013, the State will conduct an audit of community providers of wa iver services.

Compliance

There is evidence that individuals wit h a developmental disability and forensic status are included in the t a rget population. In FY15, 10 individuals were transferred from State hospitals to commun ity placements. The placements reviewed to date have been appropriately designed and implemented.

C o m p l ia n c e

The Georgia Quality Management System (GQMS) contract with the Delmarva Foundation mandates that each provider rendering services through the Med icaid wa ivers to individuals w ith deve lopmental disabilities has one annual revie w over the course of five years. Therefore, 40 providers are reviewed each year (39 service providers and one support coordinator agency) . The providers are selected ra ndomly. Findings from these revie ws are summarized in the Quality Management reports issued by the Department.

By the Effective Date of this Agreement, the State shall use a CMS approved Quality Improvement Organization ("QIO" ) or QIO-Iike organization to assess the quality of services by community providers.

C o m p l ia n c e

In FY15, the Department aga in utilized the services of the Delmarva Foundation to design and implement a quality assurance review p rocess. Delmarva also assessed the quality of services by community providers. The Department participated in t he Nationa l Core Indicator surveys.

The State shall assess comp liance on an annual basis and shall take appropriate action based on each assessment.

Noncompliance

The Delmarva Foundation issues annual reports assessing the quality of services by community providers fo r individuals with a developmenta l disability. The most recent report was issued to the Independent Reviewer and the Department of Justice on August 1, 2015. Annual reports are post ed on the Delmarva websit e. The State will need to continue it s review of the quality of services to ensure that any remedial actions have occured in a timely manner. The Regions receive the information from Delmarva and a re expected to t ake timely remedial action. As cit ed in this Report, no evidence was provided that remedial action was taken to address serious deficits in provider compliance with training requirements.

Pursuant to the Voluntary Compliance Agreement w ith Health and Human Services, the State established a Mental Health Olmstead list. The State shall ensure that a ll indivi duals on the Mental Health Olmstead List as of the Effective Date of this Agreement w ill, if e ligible for services, rece ive services in the community in accordance with this Settlement Agreement by July 1, 2011. The Parties acknowledge that some individuals on the Mental Health Olmstead List are required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 et seq. The Parties further acknowledge that such registration ma kes placement in the community more difficult. The Parties may by written consent extend the application of the date set forth in th is paragraph as it applies to such individuals. The written consent described in this paragraph will not requ ire Court approval.

Compliance

At the time the Settlement Agreement w as signed, there were 27 individuals on the Olmstead list. All of these individuals were discharged from the State Hospitals and were provided community services.

15


S et tl e m e n t Agreement R e f e r e n ce

Provision

Ali ACT t ea ms w ill o pe rate w ith fidelity to the Da rtmouth Assertive Co mmunity Treatment mo d e l.

iii.B .2. a . i{ G)

By Ju ly 1, 2011, the State shall have 18 iii.B.2.a.i{H}{1} Assertive Commun ity Treatment team s.
By Ju ly 1, 2012, the State shall have 20 Assertive Commun ity Treatment team s. iii.B .2. a.i{H){ 2 )
By Ju ly 1, 2013, the State shall have 22 Assertive Commun ity Treatment team s. iii.B .2. a.i{H){ 3 )
By Ju ly 1, 2012, the State will ha ve two Com munity Suppo rt Teams. iii.B.2.a .ii{C){1)
By Ju ly 1, 2013, the State will ha ve four Co mmunity Support Team s.
iii.B.2.a .ii{C){2)
By July 1, 2014, t he State will have e ight iii.B.2.a .ii{C){3) Community Sup port Te ams.

Rat ing

Comments

Co m p l i a n c e

In FY12, The Parties, with concu rre nce by t he Independent Reviewer, requested that the Court defer evaluat io n of this provisio n. The Court approved t his request on August 29, 2012 with e xplicit inst ructio ns regarding repo rting, root cause analysis and corrective actio n plans. The se instructio ns were co mplie d with by the De partme nt with close invo lve m ent of the Inde pe ndent Reviewer and her expert consultants. In FY15, this provisio n cont inues t o be in co mpliance. All t e ams funded unde r t his Agreeme nt are exp ected t o ope rate with fide lity to the Dartmouth mode l. Certain low er performing t e ams received additio nal oversight and review; s co res improved after technical assistance was provided by DBHDD. Additio nal info rmation is included in the attache d repo rt by Angela Ro llins.

The De partment has funded 18 Assertive Co mmunity Compliance Treatment teams.

Co m p l i a n c e Co m p l i a n c e

Th e State has funded 20 Assertive Co mmunity Treatment team s. Howeve r, change in the compositio n of the tea ms is unde rway. The De partment is proceed ing with remed ia l action a s required by the Co urt's Order and w ith consultatio n by the Independent Review er, the Department of Justice and ot her interested stakeholders. The De partment has funded 22 Assertive Community Trea t m ent teams. They are distributed thro ugh all six Re gio ns of the state. As of June 30, 2015, there were 1,477 individuals participating in services w ith t he ACT teams. Fo r a discussio n of the ACT teams, see attached re po rt by Ange la Ro llins.

Co mpliance Co m p l i a n c e

The State has established two Community Support Te a ms. Altho ugh one team wa s t ra nsfe rred to an other provide r beginn ing in FY13, bot h teams funct io ned and provided se rvice s fro m the time of their co ntract. The two teams suppo rted a to tal of 7 1 ind ividua ls in FY12. The De partment has established four Community Suppo rt Tea ms (CSTs}. They are located in four rura l area s of the State. A to ta l of 145 individua ls received se rvice s fro m the CSTs in FY13. Under the te rms of the Agreement, the Independent Reviewe r mu st asse ss w hethe r the Commun ity Suppo rt Team mo del provide s service s that are sufficient t o meet the needs of the membe rs of the ta rget populatio n w ho re ceive these service s. The Inde pendent Revie wer's assessment and re commendatio ns a re due by Octobe r 30, 2013.

Co m p l i a n c e

The re are 8 Co mmunity Suppo rt Te ams ope rating within 5 of the 6 Regio ns. On June 30, 2015, the number of people participating in CST service s was 289.

16


Settlement Agreement Reference

Provision

III.B.2.a.iii{D)(1) By July 1, 2011, the State will have one Intensive Case Management team. By July 1, 2012, the State will have two
III. B.2.a.iii{D}(2} Intensive Case Management teams.

By July 1, 2013, the State will have three Intensive Case Management teams. III. B.2.a.iii{D}(3}

By July 1, 2014, the State will ha ve e ight III.B.2.a.iii{D)(4) Intensive Case Management teams.

Ra t in g

Comme nt s

C o m p l ia n c e Compliance Compliance
C o m p l ia n c e

The Department has established t wo Intensive Case Management teams. The Department has established t wo Intensive Case Management teams.The two teams supported a total of 387 individuals in FY12. The Department has established three Intensive Case Management teams in Regions 1, 3 and 5. These three teams served a total of 235 individuals in FY13. The Independent Reviewer has requested additiona l information about the case load in Region 3. There are 8 Intensive Case Management teams throughout the 6 Regions. On June 30, 2014, the number of people partici pating in ICM services w as 885.

By July 1, 2015, the State will ha ve 14 Intensive Case Management teams. Ill. B.2.a.iii{D)(S)
By July 1, 2012, the State will have five Case Ill. B.2.a.iv{C)( 1) Management service providers.
By July 1, 2013, the State will have 15 Case Management service providers. II I.B.2.a.iv{C)(2)

Compliance C o m p l ia n c e Compliance

There a re 14 Intensive Case Management teams throughout the 6 Regions. On June 30, 2015, the number of people participating in ICM services was 1450. The Department has established five Case Management service providers. Case Management services were provided to 257 individuals in FY12. The 15 case management positions funded by the Department supported 1,893 individuals throughout the six Regions. The Independent Revi ew er has requested add itional information regarding caseload expectations.

By July 1, 2014, the State will ha ve 25 Case III.B.2.a.iv{C)(3) Management service providers.
By July 1, 2015, the State will have 45 Case Ill. B.2.a.iv{C)(4) Management service providers.
By July 1, 2013, the State will establish one Crisis Se rvice Center. III. B.2.b.i{B}(1}
By July 1, 2014, the State will establish an III.B.2.b.i{B)(2) additional two Crisis Service Ce nters.
By July 1, 2015, the Stat e will establish a n additional three Crisis Service Centers. II I.B.2.b.i{B)(3)
III.B.2.b.ii{B)(1) The State will establish one Crisis Stabilization Program by Ju ly 1, 2012.
III.B.2.b.ii{B)(2) The State will establish an additiona l Crisis Stabilization Program by July 1, 2013.
III.B.2.b.ii{B)(3) The State will establish an additional Crisis Stabilization Program by July 1, 2014. Beginning on July 1, 2011, the State shall retain funding for 35 beds in non-State
III.B.2.b.iii{A) community hospitals without regard as to whether such hospita Is are freestanding psychiatric hospitals or general, acute care h o s p it a ls.

Compliance C o m p l ia n c e
C o m p l ia n c e
Compliance C o m p l ia n c e Compliance Compliance C o m p l ia n c e Compliance

There are 25 Case Management se rvice providers throughout the six Regions. On June 30, 2014, the number of people partipating in CM services was 761. There a re 52 Case Management positions and 19 provider agencies throughout the six Regions. On June 30, 2015, t he n umber of people part ipating in CM services was 1364. The Department opened a 24-hour, walk-in Crisis Service Center on March 1, 2013. From March 1, 2013 through June 30, 2013, 177 individuals received services in this Center. This is not an unduplicated count and some individuals may have rece ived more than one episode of care during this time period. There are four 24-hour Crisis Service Centers. Three are in Region 4; and one is in Region 6. During FY14, 3,309
people received esc services.
There are six 24-hou r Crisis Service Centers in operation. A seventh center opened on Ju ne 30, 2015. Th ree a re in Region 4; th ree a re in Region 6; and one is in Region 2. During FYlS, 7139 people {duplicated
count) received esc services.
The Department has established t wo Crisis Stabilization Programs. The Department's t wo Crisis Stabilization Programs have rema ined operational. They each have 16 beds. A third 16-bed Crisis Stabilization Program was opened in Savannah on June 30, 2014. The Department has continued to fund hospital bed days in community hospitals in FY15. The contract beds are u sed primarily in Regions 1 and 4.

17


Se t tlemen t Agreement Reference

Provision

Rat ing

Comment s

III.B.2.b.iv(A) III.B .2.b. iv(B) III.B.2.b.v(A)

The State shall operate a toll-free sta tewide te lephone system for persons to access information about resou rces in t he community to assist w ith a crisis (" Cr isis Call Cen ter"). Such assist ance includes providing advice and facilit ating t he de livery of me ntal health services. The Crisis Call Center shall be staffed by skilled professiona ls 24 hou rs per day, 7 days per week, to assess, make r efe rrals, and dispatch ava ilable mobile services. The Crisis Call Center shall prom ptly answe r and respond to all crisis call s. Mobile crisis services shall respond t o crises anywhe re in t he community (e.g., homes o r hospital emergency rooms) 24 hours per day, 7 days per week. The services shall be provided by clinica l staff membe rs t rained t o provide emergency services and shall include cl inica l st aff members w ith subst ance abuse expertise and, w hen ava ilable, a pee r specia list .

Co mpliance Co mpliance Co mpliance

The Geo rgia Crisis and Access Line operated by Behavio ral Health Link continued t o provide th ese services in FY15.
Th e Geo rgia Crisis and Access Li ne complied with these requirements.
The m obile crisis services provided by the Department comply with these requirements.

By Ju ly 1, 2013, t he State shall have mobile crisis services w ithin 91 of 159 count ies, w ith an average annua l response t ime of 1 hou r and 10 m inu tes or less.
III.B .2. b.v(B){1)

Co mpliance

Mobile crisis services have been est ablished in 100 counties, exceed ing the requ irements of t his provision. Statewide, t here we re 840 individuals served by t hese t eams. The average response time ranged from 49 to 56 m inut es, aga in excee ding the requ irement s of this provision. The disposition for the majority of individua ls (230) served was involunt ary inpatient hospitalizat ion. The Independent Reviewer w ill work with the De partment's staff to better under stan d the range of options investigated by t he teams and whet her t he least restrictive measure was co nsistent ly employed by t he teams.

III.B .2. b.v(B)(2) III.B .2. b.v(B){3)

By Ju ly 1, 2014, t he State shall have mobile crisis services w ithin 126 of 159 count ies, with an average annua I response time of 1 hou r and 5 m inutes or less. By July 1, 2015, the State shall have mo bile crisis services within aii1S9 of 159 counties, with an average annual response time of 1 ho ur or less.

Co mpliance Co mpliance

Th ere are two mobile crisis providers covering all 159 count ies in the State. The average response t ime was 49 minut es in FY14. As of June 30, 2014, 14,981 people had rece ived mobile crisis services. There are two mobile crisis pro viders covering all159 counties in the State. The average response time was 55 minutes in FY15. As of June 30, 2015, 18,052 peo ple had received m obile crisis services.

III.B .2.b .vi(A) III.B .2. b. vi( B)

Crisis apartments, located in community settings off the grounds of t he State Hospitals and st affed by paraprofessionals and, when ava ilable, pee r specialists, shall serve as an alterna tive t o crisis stabilization programs and to psychiatric hosp it alization. Each crisis apartment w ill have capacity to serve t wo individuals wit h SPMI.

The De partment has complied w ith t he staffing and locat ion requ irement s of t his provisio n. Co mpliance
The De partment has now compl ied with th is provision. Co mpliance Crisis apartments have the ca pacit y to serve two
individuals with SPMI.

18


Settlement Agreement Reference

Provision

Rating

Comments

By Ju ly 1, 2013, the State will provide six crisis a partme nts. III.B.2.b.vi(C)(1)
By Ju ly 1, 2014, the State will provide 12 crisis III.B.2.b.vi(C)(2) a partme nts.
By July 1, 2015, the State will provide 18 crisis III.B.2.b.vi(C}(3) apartments.

The De part ment has not complied with t his provision.

Noncompliance

There we re t hree a part ments operat ional, fo r a total of six beds, at t he end of FY13. A co ntract was executed on June 27, 2013 fo r an add itional 4 apartments but t hey

we re not yet operatio nal.

There are 13 crisis apartments w it h a total of 25 beds

Compliance t hrough out four Regions. 159 individ uals were served in

FY14.

There are 19 crisis apartments with a total of 37 beds

Compliance throughout all Regions in the State. 313 individuals

were served in FY15.

III.B.2.c.i(A) III.B.2.c.i(B)

Supported Housing includes scattered-site housing as well as apartments clustered in a single building. By July 1, 2015, 50% of Supported Housing units shall be provided in scattered-site housing, which requires that no more than 20% of the units in one building, or no more than two units in one building (whichever is greater), may be used to provide Supported Housing under this agreement. Personal care homes shall not qualify as scattered-site housing. It is the intent of the parties t hat approximately 60% of persons in the target population receiving scattered-site Supported Housing will reside in a two- bedroom apartment, and t hat approximately 40% of persons in the target population receiving scattered-site Supported Housing will reside in a one-bedroom apartment. Provided, however, nothing in Section III.B.2.c shall require the State to forego federal funding or federal programs to provide housing for persons in the target population with SPMI.

Compliance Compliance

The State has complied with this provision. For detailed information, s ee the attached report by Martha Knisley.
The State has complied with t his provision. For detailed information, see the attached report by Martha Knisley.

III.B.2.c.i(C) III.B.2.c.ii(A)

Bridge Funding includes the provision of deposits, household necessities, living expenses, and other supports during the time needed for a person to become eligible and a recipient of federal disability or other supplemental income. By July 1, 2015, the State will have capacity to provide Supported Housing to any of the 9,000 persons in the target population who need such support. The Supported Housing required by this provision may be in the form of assistance from the Georgia Department of Community Affairs, the federal Department of Housing and Urban Development, and from any other governmental or private source.

Compliance
Noncompliance

The State has complied with this provision. For detailed informat ion, see the attached report by Martha Knisley.
As discussed in the attached report by Martha Knisley, the State does not yet have this capacity. Additional work is required; this work is underway. Compliance with this provision will require additional time.

19


Settlement Agreement Reference

Provision

Rating

Comments

By July 1, 2011, the State w ill provide a tota l of III.B.2.c.ii(B)(1) 100 supported hous ing beds.
By July 1, 2012, the State w ill provide a tota l of 500 supported hous ing beds. III.B.2.c.ii(B){2)
By July 1, 2013, the State w ill provide a tota l of 800 supported housing beds.
III.B.2.c.ii(B)(3)
By July 1, 2014, the State w ill provide a tota l of III.B.2.c.ii(B)(4) 1,400 supported housing beds.
By July 1, 2015, the St ate will provide a t ot al III.B.2.c.ii(B)(5) of 2,000 supported housing beds.
By July 1, 2011, the State w ill provide Br idge Fund ing for 90 individuals with SPM I. The State will also commence taking reasonable efforts III.B.2.c.ii(C)(1) to assist persons with SPMI to qua lify in a t imely manner for eligible supplemental i ncom e. By July 1, 2012, the State w ill provide Br idge III.B.2.c.ii(C)(2) Fund ing for 360 ind ividua ls w ith SPM I.
By July 1, 2013, the State w ill provide Br idge III.B.2.c.ii(C)(3) Fund ing for 270 ind ividua ls w it h SPMI.

Compliance Compliance
Compliance Compliance Compliance Compliance Compliance Compliance

Although the Depa rtment provided the requ isite housing vouchers, concern was noted abo ut the r eview of eligibi lit y and access for hospita lized individuals. The State has exceeded this obligation . (See Consultant's report.) The Department aw arded 648 housing vouchers and reassessed its prior it ization for these awards. Further collaboration is planned betw een the Independent Reviewer and the Department to further ana lyze refe rrals fo r the housing vouche rs. The State has exceeded this obligation . In FY13, it aw arded a tota l of 1,002 housing vouchers. The Department made adjustments to its review po licies and worked closely w ith its regiona l offices, service providers, DCA and other organizat ions to increase program effectiveness and expand housing resources. (See attached report of Martha Knisley .) By July 1, 2014, there w ere 1,649 individua ls served in supported housing beds. (See attached report of Martha Knisley.) By July 1, 2015, there were 2428 individuals served in supported housing beds. See attached report of Martha Knisley. The Department provided Bridge Funding as required.
The State has exceeded this obligation . (See Consultant's report.) The Department provided Bridge Funding for 568 individuals. The State has exceeded this obligation . In FY13, the Depa rtment provided Bridge Funding for 383 ind ividuals w ith SPM I. (See attached repo rt of M artha Knis ley.)

III.B.2.c.ii(C)(4) By July 1, 2014, the State w ill provide Br idge Fund ing for 540 ind ividua ls w it h SPMI. By July 1, 2015, the State will provide Bridge
III.B.2.c.ii(C)(5) Funding for 540 individuals wit h SPMI. By July 1, 2011, the State shall provide Su pported Emp loyment services to 70 individuals with SPMI.
III.B.2.d.iii(A)
By July 1, 2012, the State shall pr ovide Su pported Emp loyment services to 170 individuals w ith SPMI.
III.B.2.d.iii(B)

Compliance Compliance Compliance
Compliance

Bridge Funding was provided for 709 participant s in FY14. (See attached report of Martha Knisley.) Bridge Funding was provided for 871 participants in FY15. (See attached report of Martha Knisley.) The Department provided Supported Employment services to more than 70 ind ividuals w ith SPMI. Since individuals w ere assigned to the Sup ported Employment providers in M ay, only eight were emp loyed by July, 20 11. A higher rate of employment w ill be expected next year. The Department has met th is ob ligation . Supported Employment services were provided to 181 indiv idua Is as of June 30, 2012. (See Consu ltant's report.) A Memorandum of Unde rsta nding has been signed betw een DBHDD and the Department of Vocationa l Services . The Depa rtment is in the process of preparing a written pian, with stakeholder involvement, regard ing the provision of Supported Employment. In FY12, 51 individuals gained competitive employment.

20


Se t tlemen t Agreement Reference

Provision

Rat ing

Comment s

By Ju ly 1, 2013, t he State shall provide Supported Em ployment services to 440 individua ls w ith SPMI.
III.B .2.d. iii(C)

III.B.2.d.iii(D)

By Ju ly 1, 2014, t he Stat e shall provide Supported Employment services to 500 individua ls w it h SPMI.

III.B .2.d. iii(E)

By July 1, 2015, the State shall pro vide Supported Employment services t o 550 individuals with SPMI.

III.B.2.e.ii(A)

By Ju ly 1, 2012, t he Stat e shall provide Pee r Support services to up to 235 individua ls wit h SPM I. By Ju ly 1, 2013, t he Stat e shall provide Pee r Support services to up to 535 individua ls wit h SPM I.

III.B.Z.e.ii(B)

III.B.2.e.ii(C)

By Ju ly 1, 2014, t he Stat e shall provide Pee r Support services to up to 835 individua ls wit h SPM I.

III. C.1

Individua ls unde r t he age of 18 shall not be admitted t o, or otherw ise served, in t he State Hos pitals or on St ate Hospital grounds, unless t he ind ividua l meets the criteria for ema ncipated minor, as set forth in Article 6 of Tit le 15, Chapter 11 of t he Geo rgia Code, O.C.G.A. §§ 15-11-200 et seq.

Co mpliance
Co mpliance Co mpliance Co mpliance

Th e State has exceeded t his obligatio n. According to a report issued by the Department and reviewed by the Indepe nden t Reviewe r's expert consultant , Supported Employme nt services, with strong adhe rence to t he Dartmout h fidelity sca le, we re provided t o 682 ind ividuals during FY13. The mont hly rate of employment was 42.1%. (See attached report of David Lynde.) The State has exceeded th is obligat io n. Supported Employme nt services were provided t o 988 individua ls during FY14. The monthly rate of emp loymen t w as 47.3%. (See attached report of David Lynde.) The State has exceeded this obligation . Supported Employment services w ere provided to 615 individuals during FY15. The mo nthly rate of employment was 51.5% across all programs. (See attached report of David Lynde.) There are 3000 consumers en rolled; t her e are 72 Pee r Support sites in Georgia.

Co mpliance Co mpliance

The Depa rtment has made a su bst antial commitment t o t he meaningful involveme nt of peer support services. The Depa rtment's commitment w as conf irmed by t he leade rship of t he Georgia Menta l Health Consume r Network du ri ng a Ju ly 2013 site visit by t he Inde pendent Reviewe r. Re ported ly, and ve rified by the subm ission of names, 57 1 ind ividuals received pee r support services provided by the Georgia Ment al Hea lth Consume r Network's t hree Peer Wellness and Respite Ce nters and t hrough its Peer Me nto ring program. Since January 1, 2011, a total of 1,583 ind ividuals have received Pee r Support services provided by Geo rgia Me nt al Health Consumer Net wo rk's th r ee Pee r Wellness and Respite Cente rs and t hrough its Peer Men to ring program. In FY14, t here was docume nt ation of 767 discrete un its of support. The Depa rtment has complied w it h t his obligation.

Co mpliance

21


Set tlemen t Agreement Reference

Provision

Rat ing

Comment s

III. C.2
III. C. 3.a.i III.C.3.a.ii III.C.3.a.iii III.C.3.a.iv

Individua ls in t he t arget population w ith develo pme nt al disabilit ies and/or serio us and persist ent ment al ill ness shall not be t ransferred fr om o ne instit ut ional setting t o anot her or from a St ate Hospital t o a skilled nu rsing facility, int erme diat e care facility, o r assist ed living facilit y un less cons istent w it h the ind ividual' s info rme d choice or is warranted by t he individua l' s medical cond itio n. Provided, however, if t he St ate is in t he pro cess of closing all units of a cert ain cl inical service category at a State Hospital, t he State may t ransfe r an individual from one inst itut iona l setti ng t o anothe r if appropriat e t o th at ind ividual' s needs. Further provided t hat t he St ate may t ransfer individuals in State Hospitals w it h developmenta l disabilit ies who are on forensic status t o anot her St ate Hospital if appropriate to that individua l's needs. Th e State may not t ransfe r an individua l from one inst itutional setting to anot her mo re t han once.

Co mpliance

In FY14, th e primary f ocus of inst it utional closures has been at Southw est ern State Hospit al and t he Craig Ce nt er at Cent ral Sta te Hospital. Sout hw este rn State Hospit al closed on Decembe r 30, 2013. Currently, placement s fro m the Craig Center are pending fu rther review and approval. Ind ividua ls have bee n t ransfe rred t o Gracewood and Georgia Regio nal Hospital in At lant a. The Independent Review er has been closely t racki ng t hese t ransfe rs and has been conduct ing site visit s t o bot h of t hese instit ut ions. in FYlS, the Craig Center closed. individuals w ere transferred t o Gracewood and Georgia Regional Hospital in Atlanta. The Independent Reviewer continues t o track these transfers and conduct site visits t o both of th ese institutions.

By January 1, 2012, t he St ate shall establish the responsibilit ies of commun it y service boards and/or commu nit y providers t hrough contract, letter of agreement, or other agreement, includ ing but not lim ited t o th e co mmu nit y service boards' and/o r communit y providers' responsibilit ies in developing and im pleme nt ing t ransitio n plans. By January 1, 2012, t he St ate shall identify qualified provide rs t hrough a certifi ed vendor or request f or proposa l process or ot her manner consistent w it h DBHDD po licy or St at e law, including provide rs in geographically diverse areas of t he St at e consiste nt wit h t he needs of t he ind ividuals covered by t his Agreement . By January 1, 20 12, t he St ate shall perform a cost rate study of provider reimbursement r at es . By January 1, 20 12, t he State shall require commu nit y service boards and/or community provide rs t o develop written descript ions of services it ca n provide, in consult ation wit h communit y stakeholders. The commun ity stake holde rs w ill be select ed by t he communit y services boards and/or commun it y provide rs.

Contract language delineates responsibilit y f or developi ng and implement ing t r ansition plann ing.
Co mpliance
Th is provision has bee n im plemented.
Co mpliance
A new cost rate study is underway. It is f ocused on Co mpliance services f or individuals with a d evelopmental
disability. Two w ebsites have been developed t o provide com prehensive information and descript ion of stat ew ide services. Individual co mmun ity service boards have information on t heir w ebsites regarding services. Co mpliance Stakeholde rs are incl uded on t he commun ity services b o ar ds.

22


Settlement Agreement Reference

Provision

Rating

Comments

IILC.3.a.v IILC.3.a.vi
IILC.3.b IILD.l
IILD.3.a IILD.3.b

By Janua ry 1, 2012, the State shall require and/or p rovide training to co mmunit y service boa rds and/ o r community provide rs so that service s can be maintained in a manne r consistent with th is Agreement.
By Janua ry 1, 2012, the State shall utilize contract management and corrective a ct io n plans to ach ieve the goa ls of this Agreement and of State agencies.

Noncompliance

Based on DBHDD's latest Quality Management report, compliance with training requirements was not maintained by a significant number of provider agencies responsible for individuals with a developmental disability.

Compliance

The Inde pendent Reviewe r has been info rmed of actions taken to achieve the goals of t h is Agreement and of State agenci es. Such a ct io ns include the term inatio n of p rovider co ntracts. In FY14, nine provider contracts we re terminated . Seven we re provide rs of deve lo pmental disa bilitie s service s and t wo we re providers for behaviora l health se rvice s. In FYlS, six provider contracts were terminated.

Beginning o n January 1, 2012 and o n at least an annual ba sis, the State sha ll perform a network analysis to a ssess the ava ilabilit y of supports and se rvices in the commun it y.
By July 1, 2011, the State shall have at least o ne case manager and by July 1, 2012, at least o ne t ransitio n speci alist per State Hos pital to review transition planning fo r individuals who have challenging behavio rs or med ica l conditio ns that im pede the ir t ransitio n t o the co mmunit y, including individuals w hose transitio n planning tea m cannot agree on a t ransitio n plan o r doe s not recommend that the individua I be discharged. The t ransitio n s pecialists w ill a lso review all transition plans for individuals wh o have been in a State Hosp ital for more than 45 days.

Compliance

This obligation continues to be met. The Independent Reviewer was provided a copy of the Regional Network Analysis completed this year. The Independent Reviewer appreciated the work that went into the preparation of these reports. It is her understanding that the Regional Network Analysis will be discontinued in its current form .

Case Managers and Transition Specialists were assigned at each State HospitaL However, at this time, with limited exceptions, community placements have been suspended.

Noncompliance

Fo r persons identified in the deve lopmental disa bility and mental ill ness target po pulatio ns of this Settlement Agreement, planning for t ransitio n to the communit y sha ll be the respo nsibility of the a pprop riate regio nal offi ce and shall be carried out thro ugh colla bo rative engagement w ith the discharge plann ing process of the State Hospitals and provider(s) chosen by the individual or the individual' s guardian w here required.

Noncompliance

At this time, the entire transition process continues to be under review and placements have been limited. Furthermore, as discussed in the Report narrative, preliminary concerns have been identified about the effectiveness of discharge planning and require further examination by the Independent Reviewer and consultation with the Parties.

The regio nal offi ce shall maintain and provide to the State Hos pital a detailed list of all co mmunit y providers, including a ll se rvices offered by each provider, t o be utilized t o identify providers capable of meeting the needs of the individual in the com munity, and to provide each individual w ith a cho ice of providers when possible.

The Regio nal Office s provided a list t o the State Hos pitals of all communit y provide rs. The Inde pendent Review er has copies of this info rmation.
Compliance

23


Settlement Agreement Reference

Provision

Ra t in g

Comme nt s

II I.D.3.c II I.D.3.d
IV IV.A
IV.A.1 IV.A.2 IV.A.3

The regional office shall assure that, once identified and selected by the individual, commun ity service boards and/ other communit y providers shall actively participate in the transition pian (to include the implementation of the plan for transition to the communit y).
The community service boards and/ or communit y providers shall be held accountable for the implementation of that portion of the transition plan for w hich they are responsible to support transition of the individual to the community.
Quality Management By January 1, 2012, the State shall institute a quality management system regard ing community services for t he target populations specified in this Agreement. The quality management system shall perform annual qualit y service reviews of samples of community providers, includ ing face -to-face meetings w ith individuals, residents, and staff and reviews of treatment records, incident/injury data, and key-indicator performance data.

Compliance C o m p l ia n c e

in the sample reviewed in FY12, there w as e vidence of participation by community providers. Although it is evident that community providers continue to participate actively in the transit ion process, this matter continues to be under review by the Department and the independent Reviewer. In FY15, community providers were actively involved in t he transit ions that did occu r. Once problems were identified, commu nity service boards and/or community providers were held accountable. There is cont inuing evidence of this accou ntability measure in FY15.

Noncompliance

The Quality Management system pian and t he report issued most recently on August 1, 2015 document the focus on the community services implemented for the t arget pop ulation specified in this Agreement. The reports substantiat e that ann ual q uality service reviews are conducted by the Delmarva Foundation and APS, the External Review O rganizations. Incident/injury data was maintained and reviewed for the community system and key-indicator performance dat a was referenced in the Qua lity Management system reports. However, there was no evidence that the negative findings from the annual quality service reviews were addressed in a timely and complete manner. The Quality Management report issued in February 2015 documented similar negative findings.

The system's review shall include the implementation of the plan regarding cessation of adm issions for persons with developmental d isabilities to the State Hospitals.

C o m p l ia n c e

The Department tracks data related to the provision of alternatives to state hospital admissions for individuals w ith a developmental disability. These data focus on various forms of crisis services, including mobile crisis teams and crisis respite care. Since t he Department routinely tracks these sets of information and reviews them on a regular basis in preparation of the Qua lity Management reports, this provision is rated in substantial compliance.

The system' s review shall include the service requirements of this Agreement.
The system's revie w shall include the contractual compliance of community service boards and/ or communit y providers.

Compliance Compliance

The Quality Management reports issued by the Department document the review of the services provided under the terms of this Agreement. in addition, data regarding services/ supports are maintained by the respective Divisions of the Department. The Independent Reviewer was provided with the data from these sources for the preparation of this report. The Quality Management revised plan and subsequent reports describe the oversight structure for key performance indicators and outcomes as well as t h e requirements for service providers. External Revi ew Organ izations (APS and Delmarva) conduct on-site reviews of provider agencies on an established periodic basis. The Department of Community Health audits community service boards every three years.

24


S et tl e m e n t Agreement R e f e r e n ce

Provision

Rat ing

Comments

IV.A.4 IV.B
IV.C

The system's re view shall include t he network a na lysis.
The State's qua lity management system regarding commun ity services shall analyze key indicat or data relevant to t he ta rget po pu latio n and services specified in this Agreement to measure co mplia nce w ith the State's po licies and procedures.
Beginn ing o n February 1, 2013 and ending on Februa ry 1, 2015, the State' s qua lity management system shall create a report at least o nce e very six mo nths summarizing quality assura nce a ctivities, findings, and recommendat io ns. The State sha ll also provide a n upda ted quality ma nagement plan by July 1, 20 12, and a provisio nal quality management system report by Octobe r 1, 2012. The provisio na l qua lity management system report shall not be subject t o review by the Independe nt Reviewe r unde r Sect ion VI.B of the Settlement Agreement. The State sha ll ma ke a ll qua lity mana gement reports pub licly available o n the DBHDD website.

Co mpliance Co mpliance
Co m p l i a n c e

A comprehensive netwo rk analysis was submitte d to the Independe nt Reviewer on June 30, 2015. In this re po rt, detailed info rmat io n was provided ab out available services/suppo rts in each of the s ix regions as we ll as the currently existing gaps in service s. Detailed info rmat io n was also provided ab out the demographics of each region and t he target po pulat io ns t o be served. Th e Qua lity Ma nagement repo rts subm itted to date conta in analyses of key performance ind icato rs re lated t o specific services required unde r t his Settleme nt Agreement. Fo r example , there a re key perfo rmance indicat ors re lated to ACT, suppo rted employment, case management, ho using and community suppo rt teams. Altho ugh this provisio n ende d on Fe bruary 1, 2015, the Department continue s to be in co mpliance with this provisio n. Re po rts continue to be submitted in a timely manner to the Independent Reviewer and the Departme nt of Justice.

v

Implementation of the Agreeme nt

The State shall notify t he Independent

Altho ugh there have been some issues with timeline ss,

Reviewe r(s) pro mptly upon the death of any

the De partme nt re mains in substantial compliance

individua l actively re ceiving services pursuant

with this p rovisio n. The Independe nt Re viewe r and the

to this Agreement. The State shall, via ema il,

United State s a re notified of de aths and the results of

forwa rd to the United States a nd the

investigations. At this time, the De partment's

Independent Reviewe r(s) e le ctro nic copie s of

mo rtality review process continues to unde rgo

a li co mpleted incident repo rts a nd fina l

s crutiny and revisio n. The inde pendent Revie wer is

reports of investigat io ns re lated to such

working close ly with the Department o n this matter.

incidents a s we ll as any auto psies and death

Th e Department has retain ed a qualifie d independe nt

summa ries in the State's po ssessio n.

entity, the Columbus Organizatio n, to revie w the

deaths of individuals t ransitio ned from Sta te Hospitals

V.E

Compliance t o co mmunity place ments. In additio n, the

Departme nt has cont racted with t wo co nsultants who

review all de aths by suicid e . Furthermore, o n August

15, 2015, t he De partme nt iss ue d its first Annual

Mo rtality Re vie w Re po rt. The inde pe nde nt Reviewe r

has cont inued to tra ck the numb e rs and causes of

d e at h of individuals in the target po pulat io n. In FY15,

she fo llowe d up o n the implementatio n of

recommendatio ns made by t he Co lumbus

Organizatio n. She continues t o b ring concerns to the

attentio n of DBHDD.

25


ADDITIONAL DISCUSSION OF SPECIFIC COMPLIANCE FINDINGS
The following narrative provides further discussion on selected findings related to the provisions summarized in the above Compliance Chart. Extensive examination of the major requirements related to the mental health system is found in the attached reports by the Independent Reviewer’s subject matter consultants in supported housing, supported employment, crisis services and Assertive Community Treatment (ACT). Recommendations are summarized at the end of this Report.
METHODOLOGY
The leadership and staff of the Department of Behavioral Health and Developmental Disabilities (DBHDD) have been accessible in a timely and forthright manner to the Independent Reviewer and all of her expert consultants. All requests for documents, interviews and site visits were respectfully and graciously complied with through the assistance of the Director of Settlement Services, Pamela Schuble. The Independent Reviewer and all of her consultants want to express their genuine appreciation for her work.
The Independent Reviewer and her seven expert consultants in supported housing, supported employment, crisis services, Assertive Community Treatment (ACT), behavioral interventions and health care drew from a variety of sources to form their professional judgments regarding compliance with the Settlement Agreement obligations for Georgia’s individuals with mental illness and/or a developmental disability. These sources included multiple site visits, throughout the year, in every Region of the State. The on-site work involved attendance at team meetings; observations of staff performing their duties; interviews with staff and the individuals receiving support; and visits, some as long as five hours, to residential and day program locations. In addition, the information and data contained in numerous documents were reviewed. There were many thoughtful discussions with the leadership and staff of the Department of Behavioral Health and Developmental Disabilities (DBHDD) as well as fruitful conversations with provider agency staff, individuals receiving services/supports, their families and their advocates, including members of the Judiciary. Parties’ meetings were held until March 2015, the beginning of the Parties’ negotiations on a possible extension to certain provisions of the Agreement. When convened, these discussions were collaborative, informative and focused on important issues of concern to both Parties.
The attached reports from the Independent Reviewer’s subject matter consultants describe the methods each used to obtain and confirm data and other forms of information.
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The Independent Reviewer organized the work performed to review individuals with a developmental disability. Access to individuals, sites and documents was coordinated with and assisted by the Director of Settlement Services. There were several discrete components to these efforts.
First, the list of forty-eight individuals reviewed by the Independent Reviewer and her nurse consultants in 2011, the first year of the Settlement Agreement, was retrieved. The statistician consulting to the Independent Reviewer drew a random sample of twenty-one individuals from the list after the names of three deceased individuals were removed as well as the name of one individual who has asked to be excluded from further review. (After a difficult transition, this young woman is now very successfully living in a group home in Region 2. She is an active member of the Pioneer Project Advisory Group.) Each of the selected individuals was assigned for review to either a nurse consultant or a behavioral psychologist, depending on the major issues identified in their 2011 review. (Both nurses, Marisa Brown and Shirley Roth, have Masters degrees in nursing and both have over thirty years of experience in the field of developmental disabilities. The psychologist, Patrick Heick, is a Board certified Doctoral level Behavior Analyst. He worked with DBHDD’s behavior analyst at the time to develop the criteria to be monitored in the Behavioral Interventions section of the Monitoring Tool. The Monitoring Tool and its Interpretive Guidelines have been agreed to by DBHDD and, in fact, have been used with Regional staff.) Twelve individuals were assigned to the “Health Group”; nine individuals were assigned to the “Behavioral Group.” Site visits were conducted to each of the selected individuals; the individual was seen at either the residential or day program and the Monitoring Tool was completed based on observation, interview and document review.
In addition, two individuals who were not institutionalized previously and are now receiving residential supports under the Home and Community-Based Services Waiver were randomly selected for review by a nurse consultant. Each received the same level of examination as the individuals described above. Another two women, previously institutionalized in Region 4 and identified in DBHDD monitoring records as at-risk for weight loss, also were selected for review by the nurse consultant.
Second, after it was learned that certain individuals had been placed in Crisis Respite Homes for lengthy periods of time, the Independent Reviewer selected four individuals for review by Dr. Heick. The selection was based on the length of time in the Crisis Respite Home. Both the Independent Reviewer and Dr. Heick made site visits to the two Crisis Respite Homes. In addition, two other individuals, who were seen by a Mobile Crisis Team in Region 1, were selected for Dr. Heick’s review after a site visit made by the Independent Reviewer and her consultant on crisis services, Stephen Baron.
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Third, the Independent Reviewer asked Dr. Heick to review the two men who were recently placed through the Pioneer Project. Dr. Heick interviewed the men and visited their home.
Finally, the Independent Reviewer asked that three individuals be reviewed to determine the current status of each and whether, if applicable, their community residences appeared to be supporting their needs. The Independent Reviewer and the Director of Settlement Services have followed the two men quite closely over the five years of this Agreement. The third individual is a young woman who was one of the three minors referenced in the Settlement Agreement.
In total, there were 36 individuals with a developmental disability reviewed for this Report.
Copies of all completed Monitoring Tools have been shared with the Parties.
OBSERVATIONS AND FINDINGS
Selected Issues Related to the Support of Individuals with a Developmental Disability
A. Crisis Services:
The Settlement Agreement requires that by July 1, 2014, the State develop and implement an array of community-based crisis services. These interventions include six mobile crisis teams and twelve Crisis Respite Homes. As documented in last year’s Annual Report, the provision for mobile crisis teams has been in compliance since July 1, 2012 but the State operationalized only eleven Crisis Respite Homes. It was found in non-compliance with that provision [III.A.2.c.ii.(B)(2)]. As of July 1, 2015, the State remains in non-compliance. There are eleven Crisis Respite Homes and one new contract for a site in Warner-Robbins (Peach County), GA. That Crisis Respite Home is projected to be in use by the latter part of 2015.
However, the review of crisis services conducted in preparation for this Report has identified even deeper concerns. The Independent Reviewer and her consulting psychologist have confirmed that Crisis Respite Homes have been used for long-term residential placements instead of their intended purpose of seven to ten days of respite care. Confirmation of this fact was reached after site visits by the Independent Reviewer and the Director of Settlement Services to eight of the eleven Homes. Further, an intensive review was completed of four individuals who are now placed in Crisis Respite Homes in Region 2. Site visits to and interviews with both the individuals and their staff documented that:
• S.G.’s stay in the Crisis Respite Home has exceeded 2.5 years. There are no plans for an alternative placement.
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• T.F. has been living in the Crisis Respite Home for over six months. A placement plan has been discussed but was not approved at the time of the site visit.
• F.D. has been placed in the Crisis Respite Home for fourteen months. There is no alternative placement plan in place. (He was not in crisis at the time of his admission; he had asked to leave his current provider and this option was used as the alternative.)
• T.H. has been in the Crisis Respite Home for more than three years, since June 12, 2012. There are no plans for his discharge; in fact, during the site visits, it was stated that T.H. should remain there since he has formed trusting relationships with the staff.
The Independent Reviewer met another individual, B.B., who has been in the Crisis Respite Home for eight months. This was her third admission. The previous admission lasted nine months. B.B. was not reviewed in depth; staff at the Crisis Respite Home reported that another placement was being explored but was not finalized.
The review of the first four individuals referenced above documented that none of the individuals had a current Behavior Support Plan. There was no guardian/individual involved in any planning for a Behavior Support Plan. There were no descriptions found of the staff training required for work with these four individuals, except in emergency situations, and, therefore, no evidence of training in positive behavioral supports. In fact, the lack of involvement by trained Behavioral Specialists was notably disturbing.
Although reasonable measures certainly must be taken to minimize risk that may be present during a crisis situation, it is important to emphasize the restrictions and the sterile environments experienced in these Crisis Respite Homes, originally designed for short-term placements. There is plexiglass over the televisions and there are no mirrors. Furniture, with the exception of dining room chairs, is bolted to the floor. In two of the three houses referenced above, there is no cooking or preparation of meals. Food for all meals is prepared at either a nearby hospital or day program and delivered to the houses. (The very thoughtful manager of one Crisis Respite Home has planted a garden so that there may be some fresh vegetables.) Space for personal belongings is very limited and there is a notable absence of any personalization. For example, despite the fact that B.B. has had two admissions of at least eight months each, her belongings were crammed onto a small shelf in an alcove of her bedroom wall. She had no dresser and no chair.
The Independent Reviewer has provided DBHDD with examples of less restrictive and more amenable crisis program environments. This provision has been found to be in non-compliance because the twelfth Crisis Respite Home was not operational by July 1, 2015 and because there is clear evidence that these residences are being used for lengthy placement periods, far exceeding the seven to ten days established by policy.
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Again, it is strongly recommended that DBHDD complete an intensive review of the use of these houses and prioritize the development of appropriate community-based alternatives for individuals presenting with the need for other places to live.
It is also recommended that DBHDD perform a comprehensive review of its entire array of crisis resources for individuals with a developmental disability. After this thorough analysis, it may be valuable to convert some of the Crisis Respite beds (developed under the terms of the Settlement Agreement) into more specialized residential placement options.
Since the issuance of her draft Report, the Independent Reviewer has been informed that DBHDD intends to begin this comprehensive review in October 2015.
B. Supports for Health Care:
The twelve individuals randomly selected for the reviews by the nurse consultants lived in group homes (8), host homes (3) and with their family (1). (Two of the women lived in the same house as the young woman who was placed from the State Hospital as a minor.)
Four of these individuals (33%) had moved at least once since their discharge from the State Hospital. This is important information given the risks of transfer trauma.8 In addition, these changes in placement raise questions about the adequacy of transition planning or the sufficiency of the placements themselves. For example, one individual was brought back to his family home due to serious concerns about care in his original placement.
All reports have been forwarded to the Parties. As documented in the nurse consultant reports:
• Two of the twelve individuals received nursing care that did not meet professional standards of care. One individual (C.P.) was referred to DBHDD for further attention. He was experiencing weight loss and blackened stools. There was insufficient attention to these concerns by the nursing staff at this individual’s residence. Regional staff investigated the situation and found that, following the nurse consultant’s visit and expressed concerns, C.P. had been taken to his physician for further examination and tests. (The results of those tests are not known at this time.) In the other situation, the family of B.M. voiced concern that their brother’s physical changes (toe drop) had not been addressed.
8 Transfer Trauma is a well-researched and documented risk. Avoidance of transfer trauma requires careful planning and support by trained staff. According to information provided by DBHDD, of the 430 individuals with a developmental disability transferred from State Hospitals and now living in community settings, 76 (18%) have changed providers since discharge and 66 (15%) have moved within residential settings under the responsibility of the same provider.
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• The three Host Home families for E.L., W.C., and R.T. were observed to provide conscientious care. In addition, it was noted that the individuals had become part of an extended family and were treated with consideration and affection.
• The two women (Cy.P. and M.A.S.) who lived in the same house, along with the young woman placed as a minor, were noted to have a very competent team of nurses providing support. There was evidence of strong coordination in addressing health issues. It was noted, however, that no active treatment was observed in the five hours of the site visit.
• The man (J.M.) living with his sister was noted to require more support than his sister was currently receiving. She raised concerns about the ISP process, the turnover of direct support staff helping her to care for her brother, and the lack of reliable transportation. This individual needed adaptive equipment and environmental modifications, including a communication device and a ramp. (DBHDD has informed the Independent Reviewer that the concerns about adaptive equipment and environmental modification now have been addressed.)
• Nursing staff working with medically complex individuals in two sites asked the nurse consultants for more guidance about minimizing the risk of aspiration pneumonia. It was highly recommended by the Independent Reviewer’s nurse consultants that training on this subject be expedited and resource materials be widely distributed. Although aspiration pneumonia is not wholly preventable, there are specific steps, including increased oral hygiene, which can help to reduce its occurrence in vulnerable individuals.
• There were concerns, including a risk for pica and the failure to use her communication book, cited about the day program for Z.C.
C. Behavioral Supports:
The nine individuals reviewed in this cluster lived in group homes (3), Host Homes (3), with family (1), in a crisis respite home, until removed by DBHDD (1), and in the State Hospital (1).
Three of the individuals (33%) had been relocated from their original placements.
The reports from these nine reviews have been forwarded to the Parties. Notable findings included:
• The individual (J.R.) residing in the State Hospital has been confined there since May 31, 2014—more than fourteen months. He has Behavioral Guidelines rather than a more robustly developed Behavior Support Plan. He has been in the community only twice since his admission. On both occasions, his behavior was appropriate. However, he
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shows a reluctance for social interaction, perhaps because has difficulty with expressive language. He has limited opportunity for skill development. There is no current plan for his discharge from the State Hospital. • The Host Home provider for one individual (M.F.) has supported him since his 2010 discharge from the State Hospital. He has made numerous repairs to his home due to the individual’s undesired behaviors (urinating, sometimes volitionally, on the bed, floor and his clothing.) There was a strong smell of urine in the bedroom. The Behavior Support Plan was current but there were significant gaps noted, including the identification of positive reinforcement. • It was observed that staff was vigilant and cautious in observing one individual (M.G.) for pica. As a result of their high level of management, there has been an absence of pica. In addition, the individual’s elopement and property destruction behaviors have not been an issue. • An individual (D.B.) who lives with his family and receives in-home supports is waiting for Medicaid authorization for a swallow study. His Behavior Support Plan does not address his hoarding or self-injurious behavior. As a result, this individual’s mother has installed a monitoring device so she can be alerted if her son gets up during the night. • Finally, one individual (C.B.) in the sample reviewed by the Independent Reviewer’s behavioral consultant was reported to DBHDD due to the perceived risks in her host home respite setting. The risks were related to her behavior, the lack of trained staff and the absence of appropriate behavioral programming. After the Independent Reviewer’s telephone call, DBHDD took immediate action and removed C.B. to a Crisis Respite House.
D. Additional Reviews:
At the Independent Reviewer’s request, there were fifteen targeted reviews completed in addition to the twenty-one randomly selected reviews discussed above. Four of these reviews were referenced in the section regarding crisis services. The other reviews included:
• Two individuals with a developmental disability received crisis intervention from a Mobile Crisis Team and Crisis Respite Home in Region 1. One individual (O.B.) was in jail and, during his interview, described his personal goals for an apartment, a job, and a girlfriend. He will need considerable support to accomplish these goals, which staff think are unrealistic. There was no plan in place for the supports he will require after he leaves jail. It was assumed that he would be placed in a crisis home. The second individual (S.G.) is dually diagnosed and had been admitted to a State Hospital. She declined an attempt to interview her shortly after the interview began.
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• One of the individuals placed in 2011 (M.S.) experienced very short community tenure. His provider at the time stated that his discharge was not adequately planned. The Independent Reviewer has followed his treatment trajectory for five years now. He remains confined to the State Hospital and, although his name is on the Region 2 transition list, it is reported that there are major barriers to his release from the Hospital. Although M.S. is not a forensic client, he was placed on a forensic unit based on his treating professionals’ opinion that he required more structure than available on the non-forensic units. The Independent Reviewer has noted several times that this is a rights restriction. The decision should be reviewed, especially if M.S. is to move towards discharge in a reasonable period of time.
• A nurse consultant reviewed two women (B.Y. and J.G.) in Region 4 who were reported to have weight loss concerns. Although the provider had been cited for numerous deficiencies at one point, there were no deficiencies in care noted during the site visit.
• A nurse consultant reviewed the young woman (A.C.) included in the group of three minors. She is thriving in her community placement and was described as receiving excellent nursing care. She has gained weight and grown in height. Although the nursing care was very attentive, she has been hospitalized three times for aspiration pneumonia and needs to be watched carefully during meals to minimize risk, as described in her mealtime protocol.
• Both the Independent Reviewer and the Director of Settlement Services have monitored the several precarious community placements of an individual (R.B.) who requires careful attention by trained staff. His last placement, in a crisis host home, raised serious concerns. He was noted to be at risk of falls and choking. As a result, he was transitioned to another provider agency. He was recently observed to have adjusted well to his new surroundings, housemates and staff. The Independent Reviewer had hoped to document his entire history of community placements but his records have not been safeguarded during his changes in placement and there is scant evidence now of his past experiences. It has been recommended that DBHDD take definitive actions to secure records.
• A nurse consultant reviewed two men (R.G. and K.T.) who receive Waiver-funded services and entered services from the community. Both men live in Host Homes. K.T. was placed into his new residence in May 2015. It appeared to be a supportive setting with a number of community experiences, including plans for line dancing. R.G. has lived with his host family since he was six years old. He is now twenty-seven years old and is clearly an integral part of the family. There were no issues or concerns noted at either site.
• The Independent Reviewer’s consulting Behavioral Analyst reviewed the two men (G.J. and A.S.) who have most recently been transitioned from State Hospitals to community
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placements under the guidelines of the Pioneer Project. Both men expressed satisfaction with their new home and activities. The preparations for their transitions were well thought out and there now appears to be many positive experiences in their daily lives.
These reviews reflect a cross-section of the issues discussed in this Report. The findings range from situations that could or do present risk to the individual to residential settings that offer a nurturing environment with trusting relationships. It is hoped that these examples will provoke thoughtful discussion and be the catalyst for concrete actions to enhance the quality of community supports.
Finally, it will be noted that the Compliance Chart has a rating of Non-compliance for two provisions regarding Quality Management (III.A.4.d and IV.A.) because of the lack of information available to the Independent Reviewer regarding the corrective actions taken to address the negative findings from the QEPR. In addition, the “interim Quality Management Report” stated that the “crisis data shows that the system is operating as it should, with the individual receiving crisis supports in the least restrictive environment as possible…” 9 This is inaccurate. The review of long lengths of stay in residences designed for short-term stays undercuts this assumption.
Selected Issues Related to the Support of Individuals with a Serious Mental Illness
Many of the findings from this year’s review of community mental health programs have been discussed or highlighted throughout this Report. Although specific details and examples will vary across the various components of the mental health system, there are several overarching themes that can be identified:
• Continuing education is required throughout the mental health system to move away from the concept of a “readiness model” that arbitrarily establishes prerequisites for greater independence and self-determination. This barrier to a recovery-oriented system of care has been highlighted repeatedly throughout the last five years. In addition to training that is value-based, there needs to be pragmatic examples of successful programmatic strategies for supporting an individual who wishes to have his/her own apartment, for example. The work done by the Beck Institute, funded by DBHDD, is an excellent example of teaching and mentoring new approaches that will have a substantial impact on an individual’s recovery from mental illness. The transformation of this work from out-of-state consultants to a locus within Georgia is also illustrative of how practices can be encouraged to change.
9 See page 14 of the “Interim Quality Management Report.”
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• Interagency collaboration has been a definite strength in the work to increase supported housing and supported employment. The collaboration between advocates, community providers, DBHDD staff and local jails, such as the Nick Project and the Gwinnett County initiative, are examples that could be expanded statewide, if resources were available.
• Continuity of care across the discrete components of the mental health system will require continuing attention, if reforms are to be sustained. Now that the building blocks of the mental health system are largely in place, it would be useful to take a step back to look at whether the system works as a whole.
• The impact of the systemic reform still needs to be captured through outcome data and data that demonstrate cost-effectiveness. The measures should stretch beyond what is presently done. For example, a reduction in jail days and Emergency Room visits may be as important to quantify as a reduction in the use of state hospital beds.
• The examination of State Hospital discharge practices must be continued, even after the end of the Settlement Agreement. In particular, the lengthy hospital stays of individuals with a dual diagnosis of mental illness and a developmental disability require careful scrutiny, preferably by practitioners who are independent of the system. An additional area of focus should be discharges from hospitals to shelters. This year, the Independent Reviewer interviewed two operators of shelters for homeless adults in Regions 1 and 3 and confirmed that this practice continues to occur, sometimes with very damaging results.
• The State’s plans for sustainability should be discussed with key stakeholders. As noted in at least two consultant reports, there are concerns about the cessation or reduction of funding. These concerns should be addressed.
• There should be known consequences for repeated failures to perform to expected standards. This was referenced in the consultant report on Assertive Community Treatment but it applies to other components of the mental health system as well. (DBHDD has informed the Independent Reviewer that the continuing development of both the Office of Accountability and Compliance and the Office of Quality Improvement and Provider Management is the proposed solution.)
• Now that the foundation of the mental health system has gone beyond the initial stages of construction, it would be valuable to investigate other models for discrete program elements. For example, the Crisis Stabilization Units have a distinctly institutional quality with nursing stations and other characteristics of State Hospital admission wards. Effective treatment and safety can be maintained in more welcoming environments, especially with the presence of peer mentors. The recent redesign of the crisis apartments to include some one-bedroom units is an example of a positive action taken by DBHDD.
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These themes are meant to help strengthen the system, even as the numerical and programmatic requirements included in the Settlement Agreement are sustained. There is an opportunity now to think into the years ahead and to envision what additional actions can be taken to refine the system’s design and to increase its responsiveness to its constituents.
CONCLUDING COMMENTS
As discussed in earlier sections of this Report and as described in detail by the Independent Reviewer’s subject matter consultants, this fifth year marks a turning point in the evolution of Georgia’s mental health system. The building blocks for a comprehensive system have been put into place and have set the stage for the next set of reforms.
These reforms must focus on ensuring equality of access for all individuals with a serious and persistent mental illness. In addition, members of the advocacy community have suggested that there be enhanced efforts to expand cultural and linguistic access by engaging bilingual or trilingual licensed clinicians. These professional resources are not widely available and will require creative recruitment and retention strategies. At this time, for example, it was reported that Assertive Community Treatment Teams have limited ability to work with the Latino community members who are experiencing mental health challenges. Advocates have also recommended that there be an effort to inquire whether consumer members of Assertive Community Treatment Teams feel supported in their roles and that actions be taken to address any expressed concerns.
The reports prepared by the Independent Reviewer’s consultants have stressed the need to continue to incorporate a recovery orientation into every aspect of the mental health system. While there have been significant efforts noted, especially in the past year, ongoing instruction and direction are still essential at this stage in the system’s evolution. It will be important to provide further education about the principles of and strategies for recovery to the Courts, housing providers, the staff of community agencies and other key stakeholders.
The initiation of the Administrative Services Organization now permits DBHDD to collect and analyze data to an extent not previously possible. Throughout the last five years, despite valiant efforts by Departmental staff, it has been difficult to capture sufficient data about outcomes. As the focus on sustainability sharpens in the next year, it will be critical to present evidence of the mental health system’s reforms and the resulting impact on individuals, communities and the State as a whole. An inter-agency initiative to collaborate on outcome data would be very beneficial to advocates and other stakeholders interested in seeing cost-effective results.
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Finally, while it has been challenging to retrieve certain outcome data, the use of the State Health Authority Yardstick (SHAY) has demonstrated, over this five-year period, that the State has facilitated the evolution and implementation of two Evidence-Based Practices. The overall scores for Supported Employment and Assertive Community Treatment have increased from 2.9 and 3.58 respectively in the earliest years to 4.6 and 4.4 in this fifth year. The requisite changes for these two Evidence-Based Practices have been incorporated into critical dimensions of the system’s foundation. They now will need to be sustained.
This fifth year of the Settlement Agreement finds the system for individuals with a developmental disability to be striving to ameliorate substantial structural and programmatic weaknesses. Although there was evidence of harm in the early transitions from the State Hospitals, the gravity of the problems was not clearly recognized until the placements were suspended and a deeper investigation was initiated. It was important to suspend the placements; the Commissioner is to be commended for that decision.
Now, the reforms that are beginning to occur require additional time and resources, if adverse risks are to be minimized to the greatest extent possible. The Independent Reviewer strongly urges that additional time be granted for non-compliance to be cured. At this stage in the history of services and supports for individuals with intellectual/developmental disabilities, there are lessons that have been learned that can help shape the new direction and help avoid costly mistakes. The Priority Plan developed by the State outlines many of those lessons. The Pioneer Project includes those lessons in its strategies. However, there also must be a series of stringent timelines, specific outcome measures and a frank assessment of available resources, if the systemic reform is to move forward in a reasonable manner without unnecessary delay and risk.
Georgia is incredibly fortunate to have such a seasoned and committed advocacy and peer support community. The meaningful involvement of such respected and experienced people is especially valuable at this critical time. In the end, the strongest safeguards of quality will come from the knowledgeable and caring members of Georgia’s own communities.
I would like to express my deep appreciation for all of the generous assistance, guidance and honest discussion that I have experienced from so many people over the last five years. It has been a privilege to be part of the reform efforts in Georgia and, in my role as Independent Reviewer, to participate in the building of community alternatives to institutions.
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2015 RECOMMENDATIONS

There are recommendations included throughout this Report. They include the following:
• In order to ensure the implementation of Individual Support Plans, as required under this Agreement, DBHDD should consider expanding the number of Integrated Clinical Support Teams (ICSTs) throughout the State.
STATUS: the Department’s leadership has agreed to consider this recommendation and has held an initial discussion with the Independent Reviewer about it. The discussion wil be continued at a meeting scheduled for September 29, 2015.
• In order to meet statewide demand, there should be consideration of the retraining and reassignment of other clinical professionals currently working within the system.
• In order to ensure timely community placement for currently institutionalized individuals with a developmental disability who are not medically or behaviorally complex, DBHDD should consider appropriate strategies, including comprehensive review by the Transition Fidelity Committee, to expedite the discharge process from State Hospitals. Individuals with previously identified community placements should be prioritized to prevent erosion of skills and to fulfill the individual’s expectations for discharge.
• The roles and expectations for Support Coordination should be standardized statewide.
STATUS: DBHDD has reported that this change will occur in the second phase of the current cost rate study.
• DBHDD should continue to take definitive actions to promote continuity of care by cross-training providers responsible for the programs supporting adults with a mental illness.
• DBHDD should complete an intensive review of the use of Crisis Respite Homes and prioritize the development of appropriate community-based alternatives for individuals presenting with the need for a place to live. DBHDD should perform a comprehensive review of its entire array of crisis resources for individuals with a developmental disability.
STATUS: DBHDD has informed the Independent Reviewer that this review is scheduled to begin on October 1, 2015.
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• The Independent Reviewer’s nurse consultants have strongly recommended that statewide training on aspiration pneumonia be expedited and that the most recent resource materials be widely distributed to the provider community.
• DBHDD should take definitive actions to secure records.
• DBHDD is encouraged to continue to deliver competency-based training related to the implementation of a recovery-oriented system of treatment.
• Interagency collaboration should continue to be a priority and successful initiatives, such as the collaboration between advocates, community providers, DBHDD staff and local jails, as evidenced in the Nick Project and in Gwinnett County, should be expanded statewide.
• Now that the building blocks of the mental health system are largely in place, DBHDD and its stakeholders should take a step back to look at whether the system works as a whole.
• The impact of the systemic reform still needs to be captured through outcome data and data that demonstrate cost-effectiveness. The measures should stretch beyond what is presently done. For example, a reduction in jail days and Emergency Room visits may be as important to quantify as a reduction in the use of state hospital beds.
• The examination of State Hospital discharge practices must be continued, even after the end of the Settlement Agreement. In particular, the lengthy hospital stays of individuals with a dual diagnosis of mental illness and a developmental disability require careful scrutiny, preferably by practitioners who are independent of the system. An additional area of focus should be discharges from hospitals to shelters.
• The State’s plans for sustainability should be discussed with key stakeholders. As noted in at least two consultant reports, there are concerns about the cessation or reduction of funding. These concerns should be addressed.
• There should be known consequences for repeated failures to perform to expected standards. This was referenced in the consultant report on Assertive Community Treatment but it applies to other components of the mental health system as well.
STATUS: DBHDD has informed the Independent Reviewer that the continuing development of both the Office of Accountability and Compliance and the Office of Quality Improvement and Provider Management is the proposed solution.
• Members of the advocacy community have suggested that there be enhanced efforts to expand cultural and linguistic access by engaging bilingual or trilingual licensed
39


clinicians. These professional resources are not widely available and will require creative recruitment and retention strategies.
• Now that the foundation of the mental health system has gone beyond the initial stages of construction, it would be valuable for DBHDD to investigate other models for discrete program elements. For example, the Crisis Stabilization Units have a distinctly institutional quality with nursing stations and other characteristics of State Hospital admission wards. Effective treatment and safety can be maintained in more welcoming environments, especially with the presence of peer mentors.
SUPPORTED HOUSING:
Below is a list of the earlier recommendations and actions. Explanations are provided if the recommendations were modified, developed further, still in progress and/or under review:
1. Further develop and sustain Supported Housing capacity through the DCA-DBHDD Partnership: In February's report, the State's progress to develop capacity through this joint arrangement was noted along with recommendations for steps to create capacity for up to 9,000 individuals in the target population who are in need of Supported Housing.
• DBHDD and DCA should establish a broad written Memorandum of Agreement (MOA) to meet current commitments and set "actionable" goals to expand Supported Housing resources. As stated above, a comprehensive actionable MOA was completed in April 2015. Over time, this joint effort will do more than any other feasible activity for the State to reach its maximum supported housing capacity. As stated in the discussion section of this Report, the DCA commitment to "furthering fair housing" is both laudable and unique. Likewise the agencies’ approaches to maximize resources are both sound and laudable. Completed
• DCA should request an extension of the HUD approved Remedial Tenant Selection Preference Agreement to enable the State to meet its future Olmstead obligations, including meeting capacity of up to 9,000 individuals with SPMI as defined in the current Settlement Agreement. DCA and DBHDD made this request to HUD to extend the Preference Agreement beyond the June 30, 2015 expiration date. This request was granted on April 23, 2015 for the time period necessary for the State to meet its housing obligation under this Agreement. Completed
• DCA should request Public Housing Authorities to consider a modest set aside of turnover HCVs over a three year period per the TAC report (in addition to the preference arrangement referenced in the 2014 DCA QAP) to further the State's ability to meet its Olmstead obligation and goals. The DCA refined this recommendation in
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their 2015 QAP as part of their overall QAP strategy for meeting their Olmstead obligations and as furthered referenced below. In Progress
• DBHDD was asked to examine their current working agreements (across each initiative) and to refine them to assure adequate resources are in place to maximize the HUD approved Selection Preference Agreement, to meet the 2013 and the 2014 811 PRA requirements and to meet any additional arrangements to implement the 2014 LIHTC program Integrated Supported Housing and Target Population Preference. Completed
• DCA should request (and monitor) each project awarded Low Income Housing Tax Credits and implement an Affirmatively Furthering Fair Housing Marketing Plan that meets the intent of the DCA policy for owners/property managers to affirmatively market units to the SPMI population as "tenants with special needs." This includes each selected LIHTC Applicant providing reasonable accommodations for tenants with special needs who are also in the Settlement Agreement target population. Completed
• DCA and DBHDD should continuously evaluate the need for expanding housing resources. As referenced in this report, DCA has added incentives in the QAP; they and DBHDD are working with PHAs to add Project Based Subsidies to LIHTC funded projects (with a disability preference). DBHDD has asked the two "moving to work" PHAs, Macon and Atlanta, to offer HCVs to individuals in the GHVP. As these initiatives are further developed, DCA and DBHDD will have more precise projection of their potential expanded capacity for the next 24-48 months depending on award and production schedules. In Progress
• DCA should assume responsibility for GHVP inspections which consolidates this function in one place. There may be other functions that need to be consolidated across agencies to maximize sustainability as the program continues to grow. For example, 811 PRA referral processes should be the same or as similar as possible with HCV referrals. DCA and DBHDD should work out how housing search will work simultaneously across these two programs. DCA and DBHDD are jointly developing a uniform referral process and DBHDD has suggested the Georgia Mental Health Consumer Network take on responsibility for managing GHVP-HCV transition administrative tasks and reauthorization tasks in concert with service providers. In Progress
2. DBHDD should request an expansion of the GHVP and Bridge funding for FY 2016 to narrow the gap between projected need and capacity to sustain the Settlement Agreement gains. Completed
3. DBHDD should assess the potential for increasing referrals from hospitals, intensive residential settings, group homes and personal care homes. The number of referrals
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from hospitals and intensive residential settings has increased but DBHDD depends on referrals from discharge planners and may be unaware of the potential for more referrals. As referenced in February 2015, DBHDD should be constantly targeting these settings for referrals. The same is true for personal care and group homes where low numbers of individuals being referred may or may not reflect the true need or that consumers are given a choice to move. It may be more a reflection of perceived "readiness" or concern on the part of providers that they may lose revenue. Through the newly developed Needs and Choice Evaluation, DBHDD is positioned to track these referrals more closely and provide training and technical assistance where necessary to increase referrals. In Progress
4. Assessing Need
• Implement process to determine need now and in the future: DBHDD is well underway with its Supported Housing Needs and Choice Evaluation but this process is complex and will require at least two to three more months to complete. One issue DBHDD is just now adding to their protocol is a baseline assessment of individuals exiting jails and prisons. In Progress
• Establish objective criteria for determining need: Based on the June 1, 2015 Policy and in recent discussions and observation, DBHDD is following through on this recommendation and implementation will occur in the Post Baseline Phase of the Needs and Choice Evaluation. In Progress
• Project Capacity and Need for the future. Based on progress to date and the need for more time to evaluate capacity and need, a finding of Capacity and Need is not being made at this time. However, there are positive signs that this finding can be made during this fiscal year. DBHDD should continue to implement its planned actions. In Progress
5. Quality and Performance Improvements. It is recommended that DBHDD and DCA establish performance benchmarks in FY 2016.
6. The State should make certain that GHVP is resource of last resort. The State has made good faith efforts to include this provision in their MOA and in their work with PHAs and Regional Transition Coordinators and providers. Making progress.
7. DBHDD should develop stronger ties across its own programs. In the 2014 report, a recommendation was made to link the ACT, Supported Employment and Supported Housing strategies, operations, requirements, care management, fidelity or other reviews, expectations and/or training to build stronger ties among these initiatives to improve overall performance and outcomes. The 2015 site visits amplify the urgent need for stronger ties across these initiatives.
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DBHDD is taking the opportunity of the Supported Housing Needs and Choice Evaluation to offer more training and create a curriculum for building provider capacity and doing it in a manner to develop stronger ties. Embedding the DBHDD Supported Housing Unit more deeply in the DBHDD Office of Adult Mental Health is a positive move. It is recommended that DBHDD focus on strengthening ties across the forensic initiatives and add technical assistance to the Housing Needs and Choice Evaluation initiative, as training is important but not likely sufficient to improve overall performance to the level needed for this initiative to succeed.
DBHDD and DCA are exploring an additional contract with the Georgia Mental Health Consumer Network for critical administrative tasks. This is also an ideal time to further embed supported housing services interventions into the Certified Peer Specialist certification curriculum and to explore additional options for Certified Peer Specialists to be direct service providers, in addition to managing administrative and evaluator functions.
8. DBHDD should continue to include individuals with intellectual disabilities as a priority population for its new initiatives. Making Progress.
DISCHARGE PLANNING:
1. There should be training of all clinical staff, both in the Hospital and for the Regional staff responsible for transition planning, on the DBHDD policies related to transition planning so they know and understand their role and the role of others as recommended.
2. DBHDD should create a database that tracks all Court, treatment meetings and assessments so that important forensic deadlines are stated, evaluations are completed timely and clinical decisions can be thoughtfully prepared.
3. Risk Assessments must be reviewed for clinical sufficiency. Specificity about the current risk factors, and what supports, environment, and skills can be used to mitigate their likelihood, should be standard across all risk assessments.
4. DBHDD must address the serious vacancy issue among most of the clinical disciplines necessary to appropriately plan and effectuate discharge for forensic clients. While forensic status individuals require the expertise of each discipline, the existing clinical staff is called upon to opine on individuals who they may not know well and to sometimes testify on important legal/psychiatric issues without the benefit of time necessary to know the individual.
5. DBHDD should immediately state that all individuals who are ready for discharge should be in the most integrated setting. The Department must, through policy and practice,
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demonstrate that housing choices are individualized, taking into consideration all the important domains that reduce risk and increase the likelihood of success.
DBHDD should determine the amount and type of housing options needed for those in forensic status.
6. DBHDD should regularly offer to train the Court, the defense bar, prosecutors and providers regarding behavioral health issues and forensic status. Familiarity and ongoing conversation is needed among all parties.
CRISIS SERVICES:
1. DBHDD leadership should ensure that there is a robust comprehensive crisis system in place that produces regular data reports that are widely shared; that the reports measure the critical components of the system including, but not limited to, timely access to care and the utilization of community based crisis services; that problems are identified in a timely manner and addressed; and that roles and responsibilities for problem solving are well known throughout the Department, with other State agencies, as well as with family members, advocates, law enforcement and other key stakeholders.
2. Addressing the crisis service needs for individuals with a developmental disability must be a priority.
• Based on the relatively small number of individuals seen more than once by the mobile crisis teams (556) as well as the number of individuals staying far more than the initial seven day limit of the Crisis Respite Homes, a process needs to be put place for formal planning and problem solving for individuals with developmental disabilities who have complex needs and challenges that must be addressed in order for them to have a positive quality of life in the community.
• While recognizing the geographic challenges of a large state such as Georgia, the State should evaluate if it is offering the right range of services to meet the crisis and immediate needs demands of individuals with developmental disabilities. The State should re-evaluate the way it offers services to see what services are missing and what should be retained. For example, is it cost effective to offer forty-eight beds through the Crisis Respite Homes that have such low utilization rates or are there more efficient ways to utilize these resources that could better address the needs of individuals with developmental disabilities.
STATUS: DBHDD has informed the Independent Reviewer that its review of the crisis service system will begin on October 1, 2015.
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3. The Department should continue to support the CSBs to provide open access. The State should determine if it should strengthen its current policy of strongly encouraging same day access to services and, if it does, the State needs to understand the fiscal impact to CSBs as well as the possible return on this investment to the State on using less costly ambulatory services that have some potential to reduce more expensive services offered by BHCCs, CSPs, or other acute inpatient service.
4. The State should determine the number of CSP beds needed statewide and also review if there is any potential revenue from third-party payers that may be available to CSPs.
5. It would be very beneficial for DBHDD to address stakeholder concerns about access and information and to develop viable ways of sharing data about the use of crisis services and their effectiveness with the larger community.
ASSERTIVE COMMUNITY TREATMENT
Areas for improvement remain, including:
1. Sustainability concerns with regard to outcomes monitoring and Medicaid.
• Although the State did a small evaluation of the impact of ACT on hospitalization over time, this work needs to continue, with an examination of other outcomes, wider sampling methods, and answering other key questions from stakeholders. In addition, the Independent Reviewer’s consultant met several consumers with success stories that exemplify the personal impact on consumers underlying the quantitative outcomes in graphs. Both methods should be highlighted for various stakeholder groups in a way that depicts what ACT services can do in Georgia.
• Some sites reported improvements in Medicaid penetration across ACT caseloads, while others still struggle. The State should continue to work with providers using tools developed for fiscal planning and offering Medicaid enrollment support via regional office staff.
2. Recovery orientation of ACT should continue to be a focus, although much effort was exerted in training and onsite technical assistance and found useful this past year by several teams. Future work could include engaging teams or individual staff that exemplify recovery-oriented ACT to work with other teams, such as offering peers the opportunity to network and shadow strong peers in the field (e.g., one peer observed on a site visit was particularly good at engaging a new consumer).
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• Emphasize independent living options for ACT consumers – some teams still seem resistant to this idea while others appear to be doing a good job of helping consumers live independently or semi-independently after periods of long hospitalization.
• Emphasize supported employment and good job development skills for ACT employment specialists. Although the role of the ACT employment specialist was properly clarified this year, most ACT employment specialists continue to struggle with how to do this work (e.g., how to perform proper job development for this population) and maintain productivity standards.
• Re-emphasize the goal of ACT services as person-centered, relationship-centered, intensive mental health services as opposed to getting consumers to take medications. These sentiments vary widely across teams and across staff within a single team.
3. Although progress in the specification and follow-up with corrective action plans was noted this year, continued progress should be to define consequences for repeated noncompliance with DACTS standards in the event this becomes necessary.
SUPPORTED EMPLOYMENT
1. Given the approaching end of the “Settlement Agreement,” it is strongly recommended that DBHDD leadership develop a concise SE plan that focuses exclusively on sustaining the progress that the Department and its partners have made in the development of SE services and the infrastructure to support those services. This plan should describe all efforts and strategies underway to diversify and secure funding for SE providers after the completion of the “Settlement Agreement” as well as other activities at the state-level to secure and develop strategic partnerships with agencies like the Georgia Vocational Rehabilitation Agency.
2. It is recommended that DBHDD consider developing a written post-settlement SE document that describes the planned funding integration methods. It is also recommended that DBHDD continue its existing outreach efforts to engage SE providers in a hearty dialogue about TORS funding and SE services.
3. In order to maintain the successful progress that has been made to integrate fidelity measures into the DBHDD system, it is vital for DBHDD leadership to find ways to address and remediate these provider concerns and questions regarding SE fidelity.
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RECOMMENDATION SUMMARIES
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NOTE: Each year, since 2012, the subject matter experts working with the Independent Reviewer have included recommendations in their respective reports. All of those recommendations will not be repeated here. However, the recommendations described below draw from the findings of the expert consultants as well as from the Independent Reviewer’s own observations and experiences.
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SUMMARY OF YEAR FOUR RECOMMENDATIONS (September 2014 Report)
The following recommendations were included in the Independent Reviewer’s FY 2014 Report. A brief update of the current status of each recommendation is noted below in bold type:
Recommendation One:
It is strongly recommended that the Independent Reviewer prepare a second Supplemental Report under the same timeframes and expectations as the first Supplemental Report filed in March 2014. The second Supplemental Report should be filed with the Court.
The second Supplemental Report should address the status of the provisions related to transitions, support coordination and the implementation of Individual Support Plans for individuals with a developmental disability, including those placed from State hospitals and those receiving Home and Community-Based Waiver Services under the terms of the Settlement Agreement.
In addition, the next Supplemental Report should address the actions taken by the Department (DBHDD) to improve the performance and outcomes of the lower-performing Assertive Community Treatment (ACT) teams identified by the Independent Reviewer and her expert consultants. For each of the limited number of teams, the Department should report on the progress that has been made to improve DACTS scores, especially those related to intensity of service, frequency of contact, and informal supports.
The Independent Reviewer will consult with the Parties to this Agreement to determine whether other provisions should be reviewed and included in the second Supplemental Report.
Current Status: The Independent Reviewer’s Supplemental Report, dated March 17, 2015, was filed with the Court, as recommended above. The report contained a review of the actions taken by the State to begin to address acknowledged deficiencies in the communitybased systems of support for individuals with a developmental disability. The report also included documentation of the progress made by the Department of Behavioral Health and Developmental Disabilities (DBHDD) in improving the performance of certain Assertive Community Treatment (ACT) teams and in continuing its efforts to achieve full compliance with the Settlement Agreement’s provisions regarding supported housing. The Supplemental Report’s findings were discussed multiple times in the Independent Reviewer’s meetings with the State as well as in the meetings held with the State by her consultants in supported
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housing, Martha Knisley from the Technical Assistance Collaborative, and in Assertive Community Treatment, Dr. Angela Rollins, Research Director for the ACT Center of Indiana.
Recommendation Two:
Although there has been some progress documented in the referral of individuals with forensic histories to Assertive Community Treatment (ACT) teams and to supported independent housing, this group of adults remain seriously under-represented in the implementation of the provisions of the Settlement Agreement. Therefore, substantial effort and evidence of inclusion must be confirmed in Year Five.
The Independent Reviewer is in the process of retaining an expert consultant to assist her in the review of community-based housing and other programmatic supports for individuals with forensic histories. She requests that the Department (DBHDD) identify the appropriate staff to work with her as she plans and implements her work related to forensic clients.
Current Status: The Independent Reviewer retained the expertise of Dr. Patrick Canavan, then Director of St. Elizabeths Hospital in Washington, D.C., to advise her on the accessibility and availability of community-based services and supports for individuals with forensic histories, as defined in the Settlement Agreement’s target population. He was greatly assisted by DBHDD staff and legal advocates in obtaining the information he needed. His work is under discussion with the Parties.
Recommendation Three:
The review of crisis services requires ongoing attention by both the Department (DBHDD) and by the Independent Reviewer. The need for this review was referenced in FY 2013.
In particular, the Independent Reviewer is concerned that there does not appear to be a concentrated focus on the crisis services provided to individuals with a developmental disability. The Priority Plan addresses crisis management only briefly (see page 30).
It is recommended that the Independent Reviewer continue to work with the Department (DBHDD) as it implements its “Community Behavioral Health Crisis Continuum Strategic Plan.” Reports from the quarterly meetings of the Behavioral Health Crisis Continuum workgroup should be provided to the Independent Reviewer.
The Independent Reviewer is in the process of retaining an expert consultant to assist her in the review of crisis services for individuals included in the target population for the Settlement
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Agreement. She requests that the Department (DBHDD) identify the appropriate staff to work with her as she plans and implements her work related to crisis services. Current Status: The Independent Reviewer retained consultation from Stephen Baron, former Director of the Department of Behavioral Health in the District of Columbia and former President/Chief Executive Officer of Baltimore Mental Health Services, a public mental health system. Mr. Baron reviewed crisis services for both individuals with a mental illness and those with a developmental disability. His report is attached. Mr. Baron’s recommendations were discussed with the State on September 4, 2015. Mr. Baron was provided with timely and responsive assistance from the leadership of DBHDD.
Recommendation Four: The Settlement Agreement requires that “By July 1, 2015, the State will have capacity to provide Supported Housing to any of the 9,000 persons in the target population who need such support.” (See Provision III. B. 2. c. ii. (A).) As evidenced by the attached report prepared for the Department (DBHDD) by the Technical Assistance Collaborative, efforts have been initiated to identify the sources of available housing that will be essential to compliance with this Provision. It is recommended that the Parties prioritize their attention to the requirements of this Provision and to the resources and timelines that will be needed for compliance. An initial discussion is scheduled with the Parties for October 7, 2014. The Independent Reviewer’s expert consultant on Supported Housing will be present. Current Status: As discussed in the attached report by the Independent Reviewer’s consultant for supported housing, Martha Knisley, extensive work is underway to reach compliance with this Provision. Numerous discussions have been held with the leadership of DBHDD in order to design a strategic process for achieving the requisite capacity. The work regarding Needs Assessment and Choice has begun but is not yet completed. The State has acknowledged that additional time will be required to reach compliance. Ms. Knisley continues to review the work of DBHDD and its sister agency, the Department of Community Affairs (DCA).
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Recommendation Five: As referenced in the review of recommendations for 2013, the Department has taken steps to educate providers of Assertive Community Treatment (ACT), Intensive Case Management, Supported Employment and Community Support Teams about the resources available to them from other components of the behavioral health system. These efforts are important to increasing collaboration across all parts of the mental health system. It is recommended that they be intensified in Year Five. In particular, added emphasis on the principles and practices of a recovery-orientation would be important to ensuring consistency of performance across all provider agencies. In this previous year, in an effort to evaluate the mental health system as a whole, the Independent Reviewer has asked her expert consultants to conduct site visits together and to discuss their respective observations. This collaboration has been very useful and will be continued into the next year. Current Status: As referenced in the attached reports on Assertive Community Treatment, Supported Employment and Supported Housing by Dr. Rollins, Mr. Lynde and Ms. Knisley, respectively, there is evidence of an increased focus on moving the community mental health system towards a recovery-orientation. The efforts of the Office of Recovery Transformation and those of the Georgia Consumer Network have been instrumental to these efforts. It is recognized that these efforts must be sustained. The Independent Reviewer and her consultants worked together and often conducted joint site-visits to ensure accuracy in their fact-finding and to obtain a deeper understanding of the complexities of the mental health system.
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SUMMARY OF RECOMMENDATIONS (MARCH 2014 SUPPLEMENTAL REPORT)
Recommendation One:
As referenced earlier, there is an urgent need to develop and implement sufficient health practitioner oversight of the medically fragile individuals transferred from State Hospitals to community settings. Other state jurisdictions have had to confront similar challenges. As a result, there is a solid base of knowledge to draw from in designing appropriately individualized supports for this group of high-risk individuals. It has been recommended that the Department explore the development of a Medical Safeguards Project, such as those implemented in Pennsylvania and Massachusetts, to assist in the building of its oversight capacity. In addition, there needs to be further examination of the availability of clinical expertise in the community, including occupational and physical therapists, in order to ensure the availability of appropriate supports.
Current Status: This recommendation continues to require decisive and urgent attention if adverse risks are to be minimized/avoided. The development of the Integrated Clinical Support Team and the Pioneer Project are responsive to this recommendation but are currently operational only in Region 2.
Recommendation Two:
The Department took decisive action in removing individuals from poorly performing or negligent provider agencies. However, the options for new placements were limited and, thus, constrained the smooth and timely transition to other residential settings. The need for additional resources should be explored in order to ensure sufficient capacity for emergency situations involving an entire provider agency. In addition, the experiences with these three provider agencies should be the catalyst for additional review of provider agency qualifications once problems/concerns are initially discovered.
Current Status: This recommendation continues to require decisive and urgent attention.
Recommendation Three:
The Department’s efforts to strengthen the transition process have identified the clear need to obtain a more complete understanding of those individuals still placed in State Hospitals. An updated assessment would permit more accurate planning for the development of community
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resources. It is recommended that these assessments be conducted on a regional basis and that the findings be compared against the current availability of requisite resources, including clinical expertise. Current Status: Although there has been the beginning of such assessments, this recommendation continues to require substantial attention.
Recommendation Four: The Department should retain an independent consultant/consultant group to conduct mortality reviews for individuals placed under the Settlement Agreement. Independent review of any such deaths would strengthen the Department’s knowledge about provider agencies and the availability/provision of critical supports. Current Status: DBHDD implemented this recommendation, but only for individuals who have been placed from state hospitals under the aegis of the Settlement Agreement, when it retained the Columbus Organization. DBHDD has reported that it intends to learn from these reviews in order to improve its own investigations and to implement system improvements. It has begun this work and will continue to review it with the Independent Reviewer.
Recommendation Five: The Department and the Independent Reviewer have agreed to develop a joint review process under the supervision of the Independent Reviewer. Details of team composition are still in the discussion stage but the process is anticipated to begin by early Summer 2014, in time for the preparation of the next Annual Report by the Independent Reviewer. The Department has increased the Independent Reviewer’s budget to permit this work to commence. Current Status: There was initial work implemented to address this recommendation. The Independent Reviewer and staff from Region 2 and 3 completed some joint reviews. However, the initiative was not sustained, primarily because of the other work assigned to the Regional staff.
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SUMMARY OF YEAR THREE RECOMMENDATIONS (September 2013 Report)
The following recommendations were included in the Independent Reviewer’s FY 2013 Report. A brief update of the current status of each recommendation is noted below:
Recommendation One:
In the professional judgment of the Independent Reviewer, it is critical that there be a more concentrated focus on the analysis and reporting of the effects from the above-referenced cessation of admissions to the state hospitals of people with developmental disabilities. For example, the Department could track the admission of individuals with both an intellectual disability and a mental illness to its psychiatric hospitals in order to evaluate the effectiveness of its crisis system.
Prior Status: Although the Department reported that it tracks this information, the data are not currently used to assess its system or its crisis services. The forthcoming implementation of the Administrative Services Organization (ASO) may affect the utilization of these data.
Current Status: The Independent Reviewer continues to recommend that the state hospital admissions of individuals with both an intellectual disability and a mental illness be tracked and analyzed, especially as it relates to length of stay and the efficacy of treatment modalities.
Recommendation Two:
In concert with the Independent Reviewer, it is recommended that the Department review the components of the crisis services system to determine if they are organized and coordinated as effectively as possible.
Prior Status: The Independent Reviewer and the Department discussed this recommendation. The Department had recognized that “crisis services are often the first point of encounter with the behavioral health delivery system for an individual or family, and can, therefore, set the future course of the individual’s or family’s attitude toward, and relationship with, the system.” Stakeholder meetings held in October and December 2012 were followed by the formation of a Steering Committee that met from February to June 2013. Over the period of August 2013 through April 2014, a “Community Behavioral Health Crisis Continuum Strategic Plan” was developed by a Departmental workgroup that included staff from adult mental health, child and adolescent mental health, addictive diseases, suicide prevention and the Office of Recovery.
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The Strategic Plan was based on the findings and recommendations of the Steering Committee. The Departmental workgroup has continued to meet quarterly to move forward the work required for the implementation of the Strategic Plan. The Independent Reviewer was provided a copy of the Strategic Plan. It outlines goals and timelines that extend until June 30, 2016. The Independent Reviewer and Departmental staff intend to meet periodically to ascertain progress towards these goals.
The above initiative did not include the crisis services provided to individuals with a developmental disability. The Independent Reviewer has recommended that a concerted effort be made to pinpoint the responsibility for implementing a similar analysis and developing a strategic plan with measurable goals and objectives.
The Independent Reviewer is in the process of retaining a subject matter expert to assist in her continuing review of crisis services.
Current Status: The report of the Independent Reviewer’s consultant has been completed and has been shared with the Parties. It was strongly recommended that the DBHDD prioritize a review of the crisis services for individuals with a developmental disability. This review is scheduled to begin on October 1, 2015.
Recommendation Three:
Attention must be given to infrastructure capacity and collaboration with housing agency partners and community agencies, if future housing targets are to be achieved. While the state met the targets again this year, it was agreed that meeting future targets would be more difficult because the expectations are greater. Similarly, maintaining the program at the level required by this Settlement Agreement requires "sustained" capacity at the provider, Regional and state level. It will be important to give further attention to “turnover” and sustaining provider capacity.
Prior Status: The attached report by the Independent Reviewer’s expert consultant, Martha Knisley, discusses the Department’s efforts to determine and sustain adequate capacity through collaboration with other State and Federal agencies. This issue is the subject of ongoing discussion between the Department and the Independent Reviewer and her expert consultant. The next discussion with the Parties about the status of housing for the Settlement Agreement’s target population is scheduled for October 7, 2014.
Current Status: DBHDD and its sister agency the Department of Community Affairs (DCA) have forged an extremely effective working relationship. There also is evidence of strong
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partnerships at the Regional level as the respective agencies collaborate to increase the availability of supported housing for individuals with a serious mental illness.
Recommendation Four:
Collaboration must be strengthened with the DCA HCV program staff, Continuums of Care, local jails and prisons, the Veterans Administration and local Public Housing Authorities. It is strongly recommended that action steps and outcomes for these collaborations include, for example, formal referral agreements, interagency training, the DCA-DBHDD-provider "boot camps" and activities, and relationship building events. The development of a work plan would help "size" the planning process and make clear expectations for these activities.
Prior Status: As documented in the attached report by Ms. Knisley, the Department has initiated and implemented numerous positive actions to increase collaboration with its partners in the provision of housing. This issue also continues to be the subject of ongoing discussion between the Department and the Independent Reviewer and her expert consultant.
Current Status: As discussed in the most recent report by Ms. Knisley, these initiatives have continued to be implemented and there is evidence of strengthened collaboration as a result.
Recommendations Five and Six:
For Assertive Community Treatment programs and Supported Housing programs, the Department should assess the potential for increasing referrals from hospitals and intensive residential programs.
For Assertive Community Treatment and Supported Housing programs, the Department should take concrete steps to increase referrals from jails and prisons. These steps include building relationships and working agreements between Regional staff, local providers/community service boards and local Sheriffs and other officials for access, screening and referral arrangements.
Prior Status: Although more work will be required to address both of these recommendations, progress has been documented in the efforts to increase referrals from hospitals, intensive residential programs, jails and prisons. However, as discussed in both the Independent Reviewer’s narrative summary and the attached reports by her experts, Ms. Knisley and Dr. Rollins, substantial work remains to be planned and implemented in the Fifth Year, if these provisions of the Settlement Agreement are to be fully satisfied.
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Current Status: Both of these recommendations continue to require attention and concerted action in order to ensure maximum access to supported housing for individuals who are currently living in intensive residential treatment programs or who are currently confined to state hospitals, especially the forensic units, jails and prisons.
Recommendation Seven:
The Department should intensify its efforts to make provisions for supported housing for individuals with developmental disabilities and those with co-occurring mental illness and developmental disabilities.
Prior Status: There has been virtually no progress made towards addressing this recommendation. The Independent Reviewer will continue to discuss this recommendation with the Department as it implements its reform efforts, especially those now beginning in Region 2.
Current Status: At this time, it is reported that more than twenty-seven individuals with a developmental disability have been provided Georgia Housing Vouchers through DBHDD. Region 5 has the greatest concentration with fourteen individuals so placed. This is very encouraging and these examples should be used as illustrations of this possibility.
Recommendation Eight:
The Department should consider ways in which to further refine, expand and improve Supported Housing, Assertive Community Treatment, Intensive Case Management and Supported Employment as interconnected initiatives. A simple crosswalk of the initiatives would reveal many opportunities for connecting the programs. As noted, providing opportunities for peers to be a part of these processes will add incredible value.
Prior Status: There is documentation that confirms the Department’s efforts to increase collaboration between the programmatic components of its behavioral health system. For example, the agendas for monthly meetings/teleconferences with providers responsible for Supported Employment, Assertive Community Treatment, and Community Support consistently reflect discussion about understanding and using resources, including housing vouchers, available throughout the State’s system. On January 15, 2014, providers responsible for these services as well as those responsible for crisis services and Intensive Case Management held a combined meeting/retreat to strengthen their collaboration. On February 20, 2014, providers of Assertive Community Treatment and Community Support met for joint training. On February
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25, 2014, a training session on “Recovery-Oriented Engagement and Service Delivery” was held in Macon, Georgia. Further, the Quality Councils for Behavioral Health review the data, discuss the findings and issue recommendations. These efforts are positive and are commended. Nonetheless, continuing and expanded efforts are strongly recommended, especially in the area of recovery-oriented training. As discussed in the attached reports by Ms. Knisley, Mr. Lynde and Dr. Rollins, the understanding of recovery-oriented principles and practices appears to be uneven and some providers are in need of more intense support and supervision. This recommendation by the Independent Reviewer and her expert consultants is repeated and will be reviewed in future reports. Current Status: Progress has been noted in this recommendation for increased collaboration towards a recovery-orientation in the various components of the mental health system. These actions are applauded; it is encouraged that they be continued and expanded.
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SUMMARY OF RECOMMENDATIONS (September 2012 Report)
The FY12 Report offered the following recommendations for consideration by the State. The Department’s leadership and staff addressed the details of the recommendations both in Parties’ meetings and in meetings with the Independent Reviewer. On June 1, 2013, a formal response to the recommendations was provided. This response summarized the State’s actions to date as well as its future plans.
Recommendation One:
Consider providing training to Department staff and providers on “social role valorization” and more clearly articulate expectations regarding the standards for community placement. This values-based training focuses on developing and sustaining community membership for individuals who have been denied opportunities for meaningful participation in their communities. As the Department continues to establish new community-based services and supports, such values-based training could be helpful in designing and ensuring maximum opportunity for interaction with non-disabled people.
Prior Status: The Department contracted with the highly regarded “Social Role Valorization Implementation Project” to provide a series of introductory sessions to the principles of social role valorization. These seven training sessions were held in various locations across the State; over two hundred and sixty individuals attended the training. Additional training is scheduled in November 2013. The Department has planned to continue this training at least until June 2015.
The provision of this training was responsive to this recommendation and also to the findings of the Delmarva report on the need to increase community integration and membership.
Current Status: This training was not continued as planned. Values-based training continues to be recommended by the Independent Reviewer as well as training in “practical’ programmatic strategies to ensure meaningful community integration and participation for members of the target population.
Recommendation Two:
It is recommended that the Department examine the reasons why host homes are not used more frequently for community placements. As demonstrated by current and past site visits, host home placements generally afforded increased individualization and greater likelihood of social integration.
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Prior Status: The enhanced value of host home placements was underscored in the most recent Delmarva report (Quarter 3, 2013) issued by the Department. During FY13, site visits by the Independent Reviewer and the Settlement Coordinator to three individuals placed in three host homes again demonstrated the increased social interaction and individualization inherent in this residential setting. The Department supports the use of host homes and has pointed out that 13% of the individuals transitioned from hospitals in the last three years live in homes of their own/family homes or host homes. The Department’s focus on the design of individualized supports is appropriate. However, it continues to be recommended that the Department conduct a more systemic analysis to identify any barriers to the expansion of this residential model by community-based providers.
Current Status: The use of host homes as an alternative to group settings continues to be recommended by the Independent Reviewer. The most recent reviews completed by her health and behavioral consultants have confirmed the very positive outcomes achieved in this setting with well-trained and well-supported host home providers.
Recommendation Three:
Consider strategies to more clearly articulate and document the plan for sustaining the structural and programmatic accomplishments resulting from the Settlement Agreement.
Prior Status: In response to this recommendation, the Department stated that it would continue its documentation of Family Support and its capacity to assist families to meet support needs at less than Waiver costs. Such documentation would be provided to the legislature as it considers future funding. Additionally, the Department will continue to work with Family Support providers and the Family Support workgroup to strengthen and sustain its efforts.
It is recommended that the Department continue to explore and document additional strategies to sustain the structural and programmatic accomplishments resulting from the Settlement Agreement. For example, such strategies might build on the Department’s “White Paper: Housing for People with Developmental Disabilities and Behavioral Health Needs,” issued in July 2013. This document clearly articulates the Department’s vision for the development of integrated housing opportunities and its commitment to the principles and mandates of the Olmstead decision and the Americans with Disabilities Act. The document also outlines the challenges and barriers (stigma, resources and paradigm shift) that must be addressed.
Current Status: As this fifth year comes to an end, the State has acknowledged its obligation to demonstrate sustainability. The Independent Reviewer encourages the State to continue
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to reach out to stakeholders and to discuss its intentions and plans to continue to evolve and strengthen its array of services and supports for people in the target population. As noted in the most recent reports on supported housing and Assertive Community Treatment, there is evidence of concern and a need for reassurance with specific plans.
Recommendation Four: In order to ensure equality of access for all individuals in the target groups, work with the Independent Reviewer to analyze referral of supported housing vouchers and Bridge Funding. Prior Status: As noted in this and previous reports, the Department has exceeded its obligations under the Settlement Agreement in terms of the number of housing vouchers awarded. The Department has emphasized that it constantly monitors the referral source of each person entering the Georgia Housing Voucher Program (GHVP). Each year, priority is given to those individuals being discharged from state hospitals. The Department also conducted cross training for hospital personnel on community-based resources, transition planning and the GVHP. The Department is partnering with the Georgia Tech College of Public Policy to review GHVP tenants’ service history and sub populations to better understand the initial benefits of the program and referral access. The Department and the Independent Reviewer’s expert consultant on housing continue to work together to analyze referrals to the supported housing vouchers and Bridge Funding. There is agreement between the Department and the Independent Reviewer that work on this issue will continue in the year ahead. Current Status: This work continued as planned.
Recommendation Five: In conjunction with the Independent Reviewer, review the long-term arrangements for ensuring the availability of housing resources in each of the next three years. Prior Status: The Department and the Independent Reviewer’s housing expert continue to work together on the details related to this recommendation. Additional recommendations will be suggested and discussed in the coming year. Current Status: This work continued as planned.
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Recommendation Six:
In collaboration with the Independent Reviewer, determine if further clarity is needed to ensure that the “ineligibility for any other benefits” is uniformly understood and applied to all applicable benefits.
Prior Status: The Department has revised its intake form to ensure that providers with other housing resources (e.g. Shelter Plus Care) are utilized before requesting resources from the Georgia Housing Voucher Program (GHVP). The Department has entered into a partnership with the Veterans Administration to assist their efforts at fully utilizing the Veterans Administration’s supported housing program so that GHVP rental assistance would not be required for a similar settlement population (chronic homelessness.)
Current Status: As discussed in the most recent report on supported housing by Ms. Knisley, the State either has addressed these issues and recommendations or is making progress in doing so.
Recommendation Seven:
In conjunction with the Independent Reviewer, review any potential barriers to community placement for individuals awaiting discharge from forensic units.
Prior Status: Since this recommendation was made, the Department has organized a workgroup consisting of leadership from forensic services, the regions, mental health, community transition planning and others to identify the barriers related to transition. As a result, on June 14, 2013, training was provided to all forensic hospital staff responsible for discharge planning on the purpose, availability and location of such community services as ACT, intensive case management housing, and Community Support Teams. Criteria for access/eligibility were discussed. Case studies were utilized to problem solve specific relevant examples. The workgroup intends to continue to meet to ensure ongoing coordination. In addition, the Behavioral Health Coordinating Council created a workgroup to address the joint concerns of partner agencies regarding individuals with behavioral issues transitioning from correctional institutions into the community. The Department chairs this workgroup. There is an interagency committee charged with identifying barriers and coming up with proposed solutions. This collaborative work is ongoing.
This recommendation continues to be a priority for the Independent Reviewer and further examination of the Department’s efforts and outcomes will continue in FY14.
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Current Status: The access to integrated community opportunities for individuals in the forensic system continues to require attention and the implementation of remedial actions. The Independent Reviewer continues to discuss this recommendation with the Parties.
Recommendation Eight:
Consider the use of housing vouchers for individuals with developmental disabilities placed under the Settlement Agreement.
Prior Status: The Department is in agreement with this recommendation. In conjunction with the Department’s Director of Housing, increased opportunities have been identified for the utilization of housing vouchers for individuals with a developmental disability placed under the Settlement Agreement. These opportunities now are available for individuals transitioning from the state hospitals, from congregate community settings (group homes), or from Waiverfunded residential settings. Individuals with more challenging placement issues, such as individuals with a developmental disability who have a forensic history, may also benefit from the use of housing vouchers. Additional specialized voucher programs available through the Department of Community Affairs are currently planned for the transition of several individuals with a developmental disability from the state hospitals to a community setting.
This recommendation remains a priority for the Independent Reviewer and her expert consultant in housing and will be reviewed throughout FY14.
Current Status: As referenced above, to date, more than twenty-seven adults with a developmental disability have received supported housing through the provision of Georgia’s housing vouchers. This opportunity continues to be important for heightened attention by DBHDD at the regional and State Office levels.
Recommendation Nine:
Develop, with stakeholder input, a written plan regarding the implementation of Supported Employment services.
Prior Status: This recommendation has been implemented. The Supported Employment State Plan has been finalized and was reviewed by the Independent Reviewer’s expert consultant. Continued dissemination and implementation of the Plan is anticipated.
Current Status: This recommendation has been satisfied.
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Recommendation Ten: Share the findings of the cost rate study, as well as the data and the calculation process used to complete this study, with providers and other stakeholders. Prior Status: The Department and the Independent Reviewer will continue to discuss this recommendation. The cost rate study for Supported Employment Services has not been completed and continues to be a recommendation from the Independent Reviewer’s expert consultant in his FY13 report. Current Status: DBHDD continues to review rates and this matter continues to be under advisement.
Recommendation Eleven: Review training curriculum to ensure that all of the defined principles of evidence-based Supported Employment are addressed. Provide access to trainers who can model skills for employment specialists. Specific and explicit fidelity expectations and expectations related to employment outcomes should be revisited with Supported Employment providers. Prior Status: This recommendation has been implemented. The training is discussed and evaluated in the FY13 report from the Independent Reviewer’s expert consultant on Supported Employment. Current Status: This recommendation has been addressed. DBHDD is encouraged to continue its training initiatives; they are well received.
Recommendation Twelve: Consider convening Supported Employment coalition meetings in rotating Regions across the State so that providers have the opportunity to attend some meetings in person. Prior Status: This recommendation has been implemented. The coalition meetings are now held in Macon, a location considered more central to the six regions. Current Status: This recommendation has been implemented.
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Recommendation Thirteen: Ensure that the outcomes from corrective action plans resulting from critical incidents are transmitted promptly to the Independent Reviewer and the Department of Justice. Prior Status: The review of critical incidents continues to be a priority for the State, the Department of Justice and the Independent Reviewer. Information requested regarding specific incidents has been transmitted in a timely manner to the Independent Reviewer. The Settlement Agreement Coordinator and the Independent Reviewer are continuing to work together to analyze incidents and any remedial actions that are to be implemented. These efforts will continue in FY14. Current Status: Although the Independent Reviewer has been provided with whatever information she has requested, it is recommended that the State continue to explore and implement effective actions for the prompt review and remediation of critical incidents. DBHDD is strongly encouraged to include independent oversight.
Recommendation Fourteen: Ensure that consents for psychotropic and other medications are documented prior to transition from State Hospitals. Prior Status: The Department concurs with the importance of this issue. Although the Department has planned reasonable steps to address this concern, the actual degree to which this issue has been resolved requires the consideration of additional information. This information is being obtained from the monitoring of community placements currently underway by both the Department and the Independent Reviewer. Therefore, comment on this recommendation will be deferred. Current Status: This serious issue is not resolved. Recent reviews conducted by the Independent Reviewer document that individuals diagnosed with a profound intellectual disability or with impaired cognitive ability are still being asked to sign consent for medication and other treatment interventions.
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Attachment B


ATTACHMENTS: CONSULTANT REPORTS
Supported Housing: Martha Knisley Supported	  Employment:	  David	  Lynde Crisis	  Services:	  Stephen Baron Assertive Community Treatment: Angela Rollins

2015 Review Georgia Supported Housing and Bridge Funding United States of America v the	  State	  of Georgia
(Civil	  Action No.	  1:10-­‐CV-­‐249-­‐CAP)
Martha Knisley
 Technical Assistance Collaborative, Inc.

September 14, 2015


Introduction
This report	  to the Independent	  Reviewer summarizes the progress of the Supported Housing and Bridge Funding programs required by the Settlement Agreement in United States of America v the State of Georgia (Civil Action No. 1:10-­‐CV-­‐249-­‐CAP), referred to hereafter as the Settlement Agreement, for the period of February 1, 2015 through June 30, 2015.	  
An earlier Supplemental Supported Housing and Bridge Funding Report	  was submitted to the Independent Reviewer on February 16, 2015 describing the state's potential compliance with the Settlement	  Agreement	  requirements. This current report	  covers actions taken and reports generated by the State from February 1, 2015 to June 30, 2015, to demonstrate progress towards compliance with the recommendations made in February and this report	  includes seven	  recommendations for additional actions for the State to take to come into compliance and make improvements for the future.
Information analyzed for this report	  was obtained from written documents provided by the Georgia	  Department of Behavioral Health and Developmental Disabilities (DBHDD) and the Georgia Department of Community Affairs (DCA); key informant	  interviews with the Amici and DBHDD staff, including interviews with Judy Fitzgerald, Chief of Staff, Monica	  Parker, Director of the DBHDD Division of Community Mental Health,	  Dr.	  Terri Timberlake,	  Director, Office of Adult	   Mental Health,	  Letitia Robinson, Office of Adult	  Mental Health Program Coordinator for Residential Support	  Services, Pam Schuble, Director of Settlement	  Services and Doug Scott, Office of Adult	  Mental Health Director of Housing on two separate dates and observation of one of the regional sessions	  of the "Housing First	  Training for Intensive Community Services and State Hospitals" held in Tucker, Georgia	  on June 24, 2015. This training is part	  of the DBHDD Housing	  Need and Choice Evaluation training sessions.
A meeting was held with Department	  of Community Affairs (DCA) Deputy Commissioner Carmen Chubb and key DCA staff, Judy Fitzgerald and key DBHDD staff. This review also included	  site visits to Thomasville and Columbus on July 23 and 24 that	  included meetings with Jennifer Dunn, Regional Services Administrator for Region 4, Sharon Pyles, Region 4 Transitional (housing) Coordinator and Sam Page, Region 6 Transitional (housing)	  Coordinator plus a home visit and drive by visits in Region 4 (Thomasville) and a meeting with community housing leaders in Region 6 (Columbus).
This report	  focuses on the State's progress in three areas: 1.)	  meeting	  the Georgia Housing Voucher Program (GHVP sometimes referred to as GHVs or GHV)	  and Bridge Funding targets by type of housing, number of subsidies	  funded, target	  population, scattered site and bridge funding requirements for the year ending June 30, 2015 and projected GHVP allocations for FY 2016;	   2.)	  program implementation and expansion; and 3.) the State's progress to meet	  the July	   1, 2015 requirement	  to "have capacity to provide Supported Housing to any of the 9,000	   individuals in the target	  population	  who	  need	  such	  support."	  
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Observations and Findings
1. Housing (GHVP) and Bridge Funding
Georgia	  Housing Voucher Program The DBHDD continues to exceed GHVP numerical targets. DBHDD was required to "provide 2,000 supported housing beds by July 1, 2015." There were 2,428 individuals housed	  by the end of FY 20151. This	  is the fifth year DBHDD has surpassed 110% of its annual leasing target. There were 1,623 signed leases in the GHVP on June 30, 2015. On July	  1, 2015,	  236 were "active" meaning they were in housing search status; other slots are still available but	   individuals not	  yet in "active" housing search.	  
The number of slots approved for funding and total number of individuals who were housed during the year is used	  to measure compliance. The metric reported annually is the number of housing referrals given; referred to as the "notice to proceed." The DBHDD Supported Housing Director verifies an individual is eligible for the program and the individual can proceed with the housing search. In FY 2015,	  66% of individuals with a "notice to proceed" had signed leases before the end of the fiscal year2. Data is not	  reported on time from referral to "notice to proceed" but	  the pace of "notice to proceed" to leases being signed seems reasonably timely.	  
The number of people with signed leases on the last	  day of the fiscal year may be lower than the total number of individuals who were housed during the year because individuals are constantly looking for housing, moving in and leaving their homes.	   This "churn" process	  is predictable for any rental program although there is one cautionary note with the State's GHVP leasing numbers; the program only had an 81% occupancy rate on June 30, 2015.	   This means that on any given day, 19% of the subsidies are not	  in use although, as referenced above, 236 individuals were actively looking for housing at the end of the year.
There were approximately 10%	  of the leases cancelled, which is slightly but	  not significantly higher than the 8% cancelled in the previous year. Not	  all referrals resulted in individuals getting housing and some individuals were terminated or chose to leave the program during the year. This is typical but	  it will be important	  to continue to assess the "churn" rate3 to fully assess the number of individuals seeking or leaving housing at any given time, the costs associated with the churn rate over time and the program's capacity to manage and reduce the churn rate.
The number of properties under contract	  in the past	  two years increased from 661 to 986, a 42% increase. Participants are	  living	  in GHVP arrangements in 88 different	  counties which is a 16% increase over the past	  year.	   The number of providers actively serving participants
1 Georgia Housing Voucher and Bridge Funding Program Summary (7/02/15);	  most data in this section comes from this summary 2 The primary reason that only 66% had signed leases is that "notices to proceed" can be issued until the end of the fiscal year	   and the	  individual was then signing	  a lease the following month or in the new fiscal	  year 3 number of units being leased	  (new and	  turnover) and	  vacated	  during the year
3

increased substantially from 45 to 77 providers	  (30%) over the past	  two years. These figures	   are significant for two reasons.	   One, the program must	  be considered successful by local property managers and landlords for there to be this level of growth. The affordable housing rental community is generally well organized locally and information about	  this program often travels by word of mouth. If the view of the program was negative, this level	  of growth could not be achieved or sustained. Secondly, the growth to properties in 88 counties means that	   access is increased for individuals who choose to live in rural areas. Individuals typically have difficulty finding decent, affordable, safe housing in rural communities. This also means there are 71 counties where vouchers are not	  being used; these are rural counties. One Regional Transitional Coordinator reported he did not	  have a wait	  list. This means	  housing is available and not	  having a list	  is indicative of the Regional staff keeping up with their workload and having reliable housing sources in their communities.
In FY 15,	  42% of participants had zero income and the monthly average rental payment	  was $407.81, down from the previous year; this is a positive step because lower rental payments over time enables the program to increase the number of units that	  can be leased.	  
Bridge	  Funding Bridge funding was provided to 871 participants in FY 2015, which is 39% above the goal for the year. The state also met	  its overall target	  for bridge funding required in the Settlement	   Agreement. The average	  "bridge"	  cost per participant	  is approximately $3,200.4. Furnishings	   and first and second month rent	  account for 48% of this cost	  and provider fees account	  for 20%. The remaining funds (32%) are allocated for household items, food, transportation, medications,	  moving	  expenses,	  utility and security deposits and other expenses.
FY2015 Allocation The SFY 2015 allocation for the GHVP and the Bridge subsidy combined was approximately $11 million. For planning purposes, the State has combined the two line items to cover costs associated with additional individuals moving into rental units. This is important	  going forward especially as the program expands with more individuals getting HCVs, project	  based subsidies and 811 PRA. By combining line items,	  the State has the flexibility to allocate more funding for bridge resources	  for individuals moving into units with other subsidies.
Scattered Site The Settlement	  Agreement requires Supported Housing to include scattered-­‐site housing as well as apartments clustered in a single building. "By July 1, 2015, 50% of Supported Housing units shall be provided in scattered-­‐site housing, which requires that	  no more than 30% of the units in one building, or no more than two units in one building (whichever is greater), may	  be	   used to provide Supported Housing under this Agreement.	   Personal care homes shall not	   qualify as scattered site housing."5 A survey conducted by DBHDD in June, 2015 found that	   87% of housing was scattered site (1,381/1,581), 37% above the minimum standard. This
4 This number may go higher when all the requests are reported 5 Georgia Settlement Agreement, Section III.B.2.c.i.(B)
4

reviewer and the Independent	  Reviewer drove through multiple properties listed in Cobb County to verify the DBHDD designations of scattered site in January 2015 and Regional Transition Coordinators used the same process for further verification. Further evidence for scattered site is in the DBHDD report	  on total numbers of locations and property owners involved in the program. The new 811 PRA, HCV (preference) program units are scattered site as well. Personal care homes have never been used for GHVP.
2. Program Implementation and Expansion
Program implementation refers to the State's ability to assist	  individuals in the target	   population to get	  the services	  and resources they qualify for to be referred to the available housing and to sustain their housing and become more	  fully integrated into the community. As referenced in previous reports,	  this task is very challenging.	   Historically, individuals in the target population haven't had opportunities to move into their own	  home which means staff may not	  be fully knowledgeable or familiar with supported housing. Likewise, individuals with a severe and persistent	  mental illness are often labeled "not	  ready," "needing structure" or incapable of living on their own. Or, if given the opportunity, may get	  housing but	  may not	  be successful in retaining their housing and/or remain very isolated in their community. Some referral sources such as PATH	  teams and some discharge planners have this type of planning included	  in their job requirements, are more adept	  and/or cognizant	  of assisting with transitions; for others such as correctional personnel this may be more difficult. Likewise, there are significant	  barriers to accessing affordable housing at this scale for this target	  population.
For this review, program implementation was measured quantitatively with program documents (DBHDD and DCA), referral information and housing stability outcomes, other information prepared by the DBHDD and DCA staff and qualitatively through key informant	   interviews and home visits.	  
Referrals There have been 2,809 approved referrals to the GHVP over the past	  five years.	  Since 2012, the categories of where people were living at the time of referral as a percentage of approved referrals has been fairly consistent	  across the five categories (target	  population) even as the overall number of referrals has increased substantially.	   Individuals who were homeless at the time of referral comprise 52% of all approved referrals. In Region 3 in FY 2015, the percentage of referrals that were homeless at the time of referral is 73% (560/764) and the percentage in each of the other Regions is less than 50%. Effectively, this means in Region III, the GHVP is a subsidy program for individuals who have a disability and are chronically homeless. But	  based on previous site visits,	  a significant	  number of individuals referred to the GHVP may have qualified for the program from one category in the target	  population but	  their recent	  (2 year) history would indicate they could have qualified in multiple categories.
The number of referrals of persons hospitalized rose slightly, 332 to 370 over the previous year but accounted for a slightly lower percentage of referrals overall (16% in FY 2014 down to 13% in FY 2015). The percentage of referrals of individuals residing in intensive residential settings
5

at the time of referral increased from 8% in FY 2014 to 14% in FY 2015 (217/280) but	  this percentage is closer to the 16% recorded for FY 2013. Referrals of individuals living with families also increased from	  8% in FY 13 to 13% in FY 14 (251/343).	   Regions 1, 4 and 5 have a much higher percentage of referrals of individuals living with family and friends; 78% of all referrals in this category.	   Referrals from	  individuals residing in CSUs (and CAs) and PCHs and GHs remain low, 1% and 5% respectively (total 132/172).	   DBHDD added a “rent	  burdened only” category to their list	  of "current	  residential status" but	  only 2% of referrals were from individuals in this category.
Referrals of individuals in jails and prisons increased from "5" over a three year period to 26 in FY 14 to 67 in FY 2015.	   But this number is only part	  of the story. It is difficult for individuals who are incarcerated to get	  referred, get	  an ID upon release, make a housing choice,	   go through an eligibility process(es) and move before release from a correctional facility or jail. For jail releases, the issue is often related to how quickly release decisions are made by the court and often with little or no notice.	   For prisons, the difficulty is more often related to the reality that	  individuals are not	  routinely sent	  to prisons near their home so it	  is more difficult	  to make discharge arrangements if a person will be	  moving	  across the state when released. DBHDD broadened the time frame for qualifying as a referral following release to get	  a clearer picture of the number of individuals exiting jails or prisons and coming into the GHVP or other supported housing programs.
As reported in February 2015, DBHDD has placed a high priority on getting correctional facility and jail referrals. Specifically, Regional Transition Coordinators are forming stronger relationships with Department	  of Corrections personnel at Valdosta	  and Zebulon and in the Fulton and DeKalb jails along with Atlanta	  Legal Aid. But these efforts notwithstanding, according to Regional Transition Coordinators, the process is still arduous and the numbers of referrals remain low.
DBHDD is employing a "housing first" approach for many individuals being referred, meaning referrals come directly from homeless outreach, from hospitals, CSUs or intensive residential programs to providers without	  first being "transitioned" through group living arrangements.	   As referenced last	  year, DBHDD has not	  made a policy decision that	  people need to live in "structured" settings first	  before moving into supported housing arrangements. As the State rolls out	  its Need and Choice Evaluation system, being clear on assuring individuals have the opportunity to move to the most	  integrated setting, including not	  using a “step down” where	   not necessary, will need clarity in policy and training. There will be individuals who can benefit	   from	  a "brief" transition “step down” option and this has shown to be beneficial for jail and prison referrals when there is inadequate time or access to make a supported housing referral. The key though is always making this time brief. Across the country, there are many examples of how this approach went	  awry when brief became long term.
This year the Independent	  Reviewer requested a review of Forensic Services and referrals. This review raised questions regarding the referral practices for individuals exiting hospitals who were on a forensic (legal) status at the time of admission and then treated as a forensic patient.
6

Typically, individuals with this type of status have more challenges getting into a subsidized housing arrangement	  and often staff (hospital and community) are reluctant	  to attempt	  those arrangements or they consider them inappropriate. The Community Integration Home (CIH) program, which was created for individuals who no longer require inpatient	  care, is often the first option considered even though DBHDD reports the majority of individuals move	  to other residential options.	  
The CIH	  program is expanding this coming year. However, two issues	  arise from the DBHDD placement approach. One, it	  is not	  clear individuals are given a choice based on their request, need and safety concerns (typically an issue raised by the court) to have options, including a GHVP slot, especially if their desire is to move to a county that	  does not	  have a CIH	  program. Secondly, individuals may not	  have been given the opportunity to move from the CIH	  to the GHVP as their safety and any remaining clinical issues are satisfied. According to 2014 data6, 59% of CIH	  residents remained in the program more than a year and over the 68 individuals in the program on 5/22/14, four had been in CIH	  for over five years.
This is a broader issue than forensic sub-­‐population access. DBHDD should affirmatively assure that any sub-­‐population or "status" group that	  is being under-­‐referred consistently, such as individuals with a forensic status at admission to a state psychiatric hospital, is being offered	   the same opportunity to move into a more integrated setting offered through the GHVP.	  
Another sub-­‐population is individuals residing in group or personal care homes.	   Combined, these groups only represent	  7% of the referrals to the program.	   The DBHDD "ADA" service criteria for access supportive housing would appear to exclude most	  individuals who in the past	   moved into group homes and personal care homes.	   While it	  is true these settings are more community-­‐like than larger institutions, they have often been referred to as “transitional” when in reality people stay there because they or their providers do not	  believe they are capable of living in their own home. Likewise in an interview with a major provider in one Region in July, 2015, when asked what	  resources were needed, she replied "more personal care homes.” It was clear from the interview that	  this provider was of the belief that	  some individuals could not	   live in a more integrated setting but	  more importantly if an individual moves to one of these settings they may not	  qualify for supported housing later on.
DBHDD also reports that	  many people living in these settings are referred to more independent	   living options operated by residential providers. According to DBHDD, a significant	  number of provider-­‐based options could also be considered supported housing because they meet	  the definitional requirements of supported housing. DBHDD has raised the potential for these options to be included in the State's overall supported housing capacity and DBHDD has agreed to identify these options using the Settlement	  Agreement definition of supported housing to propose a number that	  then can be verified before adding these options to the State's supported housing capacity numbers.
6 Current	  Forensic CIH resident	  data (5/22/14).
7

The DBHDD Office of Adult	  Mental Health is responsible for the Housing Needs and Choice Evaluation and as part	  of that	  implementation is taking the opportunity to broaden the DBHDD referral strategies and combining current	  programs into one supported housing portfolio. This	   is a very important	  step and one that	  can certainly expand choices. However, this reviewer had not been apprised that these options exist	  until recently and will	  take additional steps to verify that these options meet the definitional requirements and to ensure the target	  population has access to these options. A recommendation on target	  population access is included in this	   report.
The February 2015 report	  included a reference to DBHDD entering into a working relationship with the VA Homeless Veterans programs to assist	  individuals in the Settlement	  target population who qualify for VASH	  vouchers to get	  a VASH	  voucher rather than having to use limited GHVP resources.	   Some homeless veterans may be able to also qualify for Support	   Services	  for Low-­‐income Families (SSVF), gaining access to resources including security deposits and back rent. If this resource is available, it	  should be used first.	   So, overall, both the VA and DBHDD benefit	  from this arrangement. In FY 15, 26 individuals got	  $36,410 in Bridge funding for an average of $461 per individual funded.	   Likewise 37 individuals exiting hospitals got	   $41,962 for an average of $1,134 per individual in Bridge	  funding	  only. These options are an excellent use of a small amount	  of funds as long as they are considered last	  dollar spent and leverage other resources.	  
The DBHDD has consistently maintained good working relationships with CoCs. CoCs and local homeless programs have benefitted from the GHVP because otherwise they would have had to tap their scarce resources	  for rental assistance.	  In FY 15, 1,467 individuals who were homeless	   were referred for a GHV. But as with the Veterans program, Georgia's Shelter Plus Care program has funding capacity for 1,350 individuals and these resources should be used where available as well. Additionally, individuals are screened out	  if Shelter Plus Care Resources are available and CoCs are encouraged to apply for new funds when possible which helps the State increase capacity.
Section III.B.2.c.ii(B5) of the Settlement	  Agreement requires the State to "provide housing supports for approximately 2,000 individuals in the target	  population with Severe and Persistent Mental Illness (SPMI) (by July 2015) that are deemed ineligible for any other benefits..." This section has been repeatedly referenced in earlier reports, as many individuals in the program are eligible for other benefits. Individuals not	  having benefits when referred is not the same as their being ineligible	  for	  benefits. It is also the case that	  getting into the GHVP helps a person be in a better position to get	  benefits; in part, because if a person isn't	  stably housed, their getting through the eligibility and award process is often more difficult.
Each of the last	  three years, Regional housing staff and, more recently, DCA have referenced the difficulties getting individuals transitioned to HCVs because the GHVP was paying rent	   above the HCV payment	  standard and even paying above 110% of the standard. While it	  is important to engage property managers and landlords and give them incentives to lease to individuals in the target	  population, it	  also has a downside when new resources (with federal
8

payment rules) become available.

It is to DBHDD's benefit	  to build strong reciprocal working relationships across systems, even those with housing resources. The State has affirmed the GHVP is always the last	  not first option thus assuring GVHP resources are available to those who are going to be deemed	   ineligible for other benefits.

The DBHDD and DCA should be commended for these new approaches and partnerships as it	   allows the DBHDD to use GHVP funds selectively and in turn increase capacity.

Housing Access and Stability Housing stability is measured by DBHDD at the six month mark, which is the same measure HUD uses to measure housing stability (#	  < 6 mos leaving/ # > 6 mos in housing). HUD's standard is 77% at that	  mark and the State was at 92% or 15% above that	  mark for new tenants in each of the first	  four years of implementation. DBHDD also set	  their own standard for re-­‐ engagement of "negative leavers" at 10% and has exceeded that	  standard by 10%	  with 20%	  of	   negative leavers being re-­‐engaged in FY 15. HUD uses this standard to measure Public Housing Authority performance;	  however, this is not	  the only measure that	  should be used to measure stability of renters-­‐-­‐-­‐six months is simply not	  sufficient for measuring stability.	   In addition to measuring tenure, it	  is also essential to monitor “negative leavers” for trends.

As previously	  referenced for purposes of this Settlement	  Agreement,	  it is more useful to measure stability over the long term and measure the performance of the program. In FY 15,	   DBHDD reported on longer term housing stability as follows:

FY 2011 Program Participants: 82 out	  of 117 70%

FY 2012 Program Participants: 350 out	  of 483 72%

FY 2013 Program Participants: 281 out	  of 363 77%

FY 2014 Program Participants: 533 out	  of 577 83%

FY 2015 Program Participants: 769 out	  of 816 94%

Total Placed:

1,993 out	  of 2412 82%

Even though it	  is difficult	  to make comparisons across states,	  these longer term percentages are within the acceptable range for a state funded "housing first" Supported Housing program. With transitions to the DCA HCV program, the GHVP percentage dips to 85%. Maintaining 85% is a desirable long term goal. It is recommended the DBHDD and DCA use this same stability measuring yardstick across all the rental programs in the future.

Taking supported housing programs to scale across a state is a very daunting task. It becomes an even greater challenge if the program experiences a great	  deal of turnover or if referrals are slow, which can happen if referring organizations are either not	  well organized or not	  convinced the program can work for the target	  population. Or this may happen because of the paucity of quality affordable housing in many communities, many individuals not	  meeting background requirements for leasing their own apartments or some owners not	  being willing to include
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utilities in rent, which would enable more individuals with "zero income" to get	  into units under the Fair Market	  Rent (FMR) rent	  threshold.	  
Providers are often challenged with shifting their staff's skills to supporting individuals in their own home. This is a result	  of their not	  having experience providing this type of support	  before or because they are much more accustomed to operating group residences, which requires	   different skills sets, approaches and knowledge. Often, this is described as providers having a different	  philosophy, believing in a continuum approach, where people move from institutions or homelessness to group residences where they are "supervised" or need "structure" before moving on their own. Regardless of the reasons, skills and knowledge or philosophy, the need for a consistent	  presence (DBHDD Regional and State staff), training and coaching can close the gap between the desired outcomes of this program and current	  provider knowledge, skill and philosophical differences with this approach. Building provider capacity is always a challenge. The State though has many providers who are going the extra	  mile to assist	  consumers, who have made the shifts described above and are enthusiastic about	  how getting into housing is opening up new opportunities	  for individuals in the target	  populations.
Housing Need The DBHDD will have the opportunity this fiscal year to complete their comprehensive "Housing Need and Choice Evaluation Process" and demonstrate their capacity to meet	  the supported housing need of individuals in the target	  population. The Settlement	  Agreement states "the State will have the capacity to provide Supported Housing to any of the 9,000 individuals in the target	  population who need such support". Need can be translated into "projected annual demand.” This can be estimated once the needs assessment	  is completed and verified for completeness. Since demand is fluid and since the DBHDD is not	  reporting 9,000 individuals in service, the projected demand will likely be less than 9,000.
However DBHDD will also need to demonstrate that	  individuals in the target	  population can gain access to supported housing. This means that	  on ongoing basis individuals in the target	   population will be provided access to housing based on their expressed choice and need. The above referenced verification process will include verification for access.
The DBHDD began their "Housing Need and Choice Evaluation Process" over six months ago to assess the need of up to 9,000 individuals in the target population. DBHDD has divided this initiative into five action steps: (1) set	  policy for a Supported Housing Needs and Choice Evaluation tool to be administered to individuals meeting the ADA Settlement	  criteria who are currently served in ten (10) services or	  programs (established June 1, 2015); (2) conduct	  a baseline of the level of need for supported housing during a three month period from date of their Policy; (3) establish ongoing evaluations for individuals admitted to State Hospitals, newly enrolled in community-­‐based adult	  mental health services, follow-­‐up risk assessments and housing plan follow-­‐up and documentation; (4) implementation of a Quality Assurance and Compliance Monitoring system; and (5) training for all applicable providers on the	   implementation this policy and its component	  activities.	   This will	  include training on "housing first" and community based service approaches that	  lead to individuals being able to sustain
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their recovery and life in the most	  integrated setting possible. DBHDD has contracted with the Georgia Mental Health Consumer Network to provide the Housing Need Evaluators (HNEs) to complete the initial evaluation.
The reviewer has reviewed documents, discussed progress of the initiative with staff on multiple occasions and attended one of the provider trainings in June. The Supported Housing Needs and Choice Evaluation policy applies to individuals who qualify for services7 and who reside	  in CSUs, CIH	  and CRR	  programs but	  not personal care homes. Housing Choice and Needs evaluations and Risk Assessments will need to be conducted for the entire Settlement	  target population who qualify for services, specifically referrals from the criminal justice system. DBHDD has indicated it	  will use a sampling process to add jail and prison populations in the baseline review. It may be more complicated to get	  referrals from personal care homes but	   DBHDD should consider how this could be accomplished.
This is a very ambitious proposal and it	  will be another six months before a valid assessment	  of the effectiveness of this initiative can be made.	  
Provider Capacity Ongoing challenges exist	  with the behavioral health care system's capacity to provide recovery-­‐ oriented services and in-­‐vivo supports that	  are focused, highly individualized and well organized as they do in any state's disabilities services programs.	   In the February 2015 report, a concern was raised about	  the supported housing program being separated organizationally, in operations, provider expectations and in provider performance and quality review approaches.
With the transition to the DBHDD Office of Adult	  Services having more responsibility for Supported housing implementation, with the Housing First	  and Residential Services Training and the Choice and Need Evaluation and Implementation underway, the DBHDD has a great	   opportunity to make progress on the provider capacity issue.
3.	   Program Expansion
Along with assessing need, the State's biggest	  challenge in meeting and sustaining Settlement	   Agreement	  supported housing targets is taking supported housing to scale so individuals with SPMI who need supported housing will have access to it. The Supported Housing required by this provision may be in the form of assistance from the Georgia	  Department of Community Affairs, the federal Department of Housing and Urban Development, and from any other governmental or private source.8" This section includes a summary of program expansion in FY 15 and a summary of Georgia's progress and plans to meet	  the above referenced obligation.
7 The DBHDD has a very specific entrance criterion for	  ACT, ICM, CST or	  CM.	   It includes the individual	  being:	  Homeless (one
 year or 4 times within 3 years, in hospital (last 6 months), in	  jail or correctional facility	  (last 6 months) or using ERs	  (3 times in
 the last	  12 months) in addition to other more detailed level	  of need and functioning requirements.
 8 Settlement Agreement, Section III.B.2.c.ii.(A)

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Additionally, it	  is important	  to continue to reference that	  Georgia, like most	  states, is experiencing challenges in the availability of decent, affordable, accessible multi-­‐family rental housing.	   Housing Choice Vouchers, especially in urban areas, are very limited. The monthly cost for a one bedroom market	  rate rental unit	  in Georgia	  is equal to 93% of an individual's SSI	   monthly check and, in the Atlanta	  and Savannah Metropolitan Statistical Areas, exceeds 100% of an individual's SSI	  check.9 According	  to the National Low Income Housing Coalition10, there are only 29 affordable and available housing units per 100 households with incomes 30% or	   below the Area	  Median Income (AMI). In many rural Georgia	  communities, Regional Transitional Coordinators report	  there is simply not	  available affordable, decent	  multi-­‐family rental stock. These issues have to be carefully considered when measuring the state's ability to secure affordable housing for the target	  population.
4. Housing Resources
Joint DCA-­‐DBHDD MOA and Resource Expansion In April 2015, the DCA and DBHDD signed a seminal Memorandum of Agreement	  (MOA) that	  is remarkable in its breadth and level of commitment, with each agency committing to tangible steps and outcomes not	  often seen between state housing and human service agencies. Several of the commitments in the MOA codify already developed	  joint initiatives, including the HCV with the Tenant	  Selection Preference and 811 PRA applications to HUD. This MOA though goes	  beyond the existing partnership.
The MOA includes the following items:	   (1) Develop and implement	  a Unified Referral Strategy; (2) Develop and implement	  a Determination of Need for Permanent	  Supported Housing; (3) Maximize the Use of the GHVP (with the GHVP being considered only for individuals who are not eligible for other resources or not	  able to access other resources in a timely manner);	   (4) Maximize the HUD approved HCV Tenant	  Selection Preference for the Settlement	  Agreement	   Population; (5) Maximize Housing Resources; and (6) Provide the most	  efficient use of State resources and maximize the expertise of each individual state agency. Each of these items is both comprehensive and concrete with responsibilities well delineated and target	  dates for completion. If the agencies are successful in accomplishing these strategies, they will have made the best	  use of the "partnership" options available to them.
The 4th strategy, the DCA Housing Choice Voucher Program (DCA HCVP or HCV) expansion, began three years ago and provides needed housing resources in areas of the state where these resources are the primary HCVs available. In 2012, the Georgia	  Department of Community Affairs (DCA) received approval from the US Department	  of Housing and Urban Development	   (HUD) to provide preferences in the HCVP for individuals with "specific disabilities” identified in this Agreement. This approval was in force until July 1, 2015 and DCA agreed to allow this preference for up to 50% of their turnover units (DCA's total HCV capacity is 16,936) during this
9 Priced Out , The Technical Assistance Collaborative,	  2014	   10 Affordable Housing	  Nowhere to	  be Found	  for Millions, Housing Spotlight, Volume 5, Issue 1, The National Low Income Coalition	  (March	  2015)
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period of time. By the end of FY 2015,	  168 individuals had been transitioned to this new program.	   This opportunity came with multiple challenges including the fact	  that the DCA HCV program operates mostly	  in rural counties where there are both fewer staff to assist	  and fewer individuals in the target	  population who could also qualify for a HCV.	   The HCV program is a federal program with more regulations that	  require more time for processing and validation, including a requirement	  that rental payments cannot	  exceed 110% of the HUD payment	   standard.
As reported in February 2015, the DCA and DBHDD requested an extension of the HUD approved Remedial Tenant	  Selection Preference Agreement	  to enable the State to meet	  their future Olmstead obligations. On April	  23, 2015, HUD granted this extension for the time period necessary for the State to meet	  its housing obligation under this Agreement. While this time period is unknown, DCA has committed to moving forward to utilize as many HCVs as possible during this extension including taking direct	  referrals to the HCV.
According to the 2015 GHVP-­‐HCVP Status Update, 168 vouchers have been converted. In the February 2015 report, the challenges with staffing to assist	  individuals with making an application for Section 8 and also with assisting individuals with GHVP renewals were raised as an impediment	  to conversions and renewals being completed in a timely manner. The same issue will arise once the 811 PRA program gets underway. The DBHDD is exploring the potential for a contract	  with the Georgia	  Mental Health Consumer Network to manage the Renewals and Conversions with individuals and providers. This would have the potential to create expertise in one organization to manage this process, much like a state hires an administrative services organization to manage services. While it	  is not	  clear yet	  that this approach will increase timeliness, choices and potential numbers of referrals, it	  is an interesting concept	  worth pursuing. Likewise, DCA has committed to taking referrals directly of individuals who have not	  yet been in the GHVP to help increase the number of referrals for the HCV program.
The 5th strategy is already in motion with the DCA LIHTC program as described above. The DCA's	  2015 Qualified Allocation Plan (QAP) included an Affirmatively Furthering Fair Housing Marketing Plan and Tenant	  Selection Plan in their Low Income Housing Tax Credit	  (LIHTC) Qualified Allocation Plan (QAP). This marketing plan is more specific than typically found in LIHTC QAPs and, among a number of requirements, focuses the attention of owners/developers towards affirmatively marketing units to persons with disabilities and persons who are homeless and builds in a requirement	  for establishing a screening process recognizing the need for reasonable accommodations, making the application process accessible to people with disabilities.
The DCA selects projects to be funded through an elaborate scoring system, giving value to those housing amenities, locations, accessibility, priority populations, etc. consistent	  with their priorities. DCA added a 2 point	  incentive for integrated housing opportunities for individuals with disabilities in 2014 and 21 successful LIHTC applications included units for up to 160 individuals. In 2015, the number of applications increased to 65 out	  of 75 applications for over
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400 additional units. The DCA added a 3 point	  incentive for an application with a commitment	   of HUD Section 8 project	  based rental assistance from a Public Housing Authority for persons in the target	  population and additional persons with disabilities, including individuals in the Money Follows the Person (MFP) program and persons with developmental disabilities.	   The DCA hosted a meeting with twelve (12) prominent	  Georgia PHAs (including Atlanta, Columbus, Augusta, Macon, Savannah and DeKalb Housing Authorities) inviting them to join DCA in an effort to provide a tenant	  preference for individuals covered under the Settlement	  Agreement. DeKalb has already received the preference and Macon's is in progress. Eight	  applications (across 3 communities-­‐Macon, Dekalb and Atlanta) claimed points for this section. Another three applications claimed points for innovative integrative housing opportunities for disabled populations.
Working agreements with CoCs, PHAs, the DCA and the VA Four groups, Continuums of Care (CoCs), which are homeless services planning consortiums, Public Housing Authorities (PHAs), the Veterans Administration (VA) and the DCA, have access to plan, plan for and/or fund affordable housing. DBHDD and DCA are working jointly on CoC partnerships and DBHDD has also taken steps to increase referrals to the VA's VASH	  program. As referenced above, the DBHDD made an agreement	  with the VA to use Bridge funding for some VASH	  referrals. Both the DCA and DBHDD work with local CoCs to create more housing opportunities. The DBHDD and DCA have also agreed to step up their efforts to engage local PHAs to also enter into "preference" agreements with HUD to access HCVs. This would likely need to happen on turnover in the same manner the DCA HCV program is operating. DCA has considerable leverage with PHAs and should take the lead in this endeavor.
Section 811 PRA Demonstration In FY 2013, Georgia	  was one of the first	  thirteen states to be awarded an 811 PRA Demo award and one of six states to receive a second award in 2015.	   This program is managed by the DCA but DBHDD is a full partner in this new modernized 811 program. DCA received funding for 150 permanent project based rental subsidies in 2013 and another 350 in 2015 for a total value of $14,335,178 for the first	  five years of assistance, renewable up to a total of 30 years.
While the 811 PRA program is a great	  opportunity, the program is just	  getting underway, is also somewhat complicated to implement, especially to assure referrals of individuals covered by	   the Settlement	  Agreement are made in a timely manner. DCA forecasts this population will get	   up to	  70% of the PRA 811 assistance based on preliminary projections. After a review of the application protocols, this percentage appears doable but	  not without a great	  deal of work by DBHDD at all levels. A discussion with staff and review of the Statewide 811 Operations Committee agendas reveals the State is moving forward and hopes to have 50 Rental Assistance Contracts (RACs) signed in the fall of 2015. Columbus is one of the first	  communities being targeted for this assistance. During the site visit	  to	  Columbus	  in July, the roundtable participants made the same projections, having already targeted 7 units, but	  voiced concern about paperwork and complexities of the program.
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GHVP-­‐PHA transitions In addition to the balance of State DCA HCV and the LIHTCs projects with project	  based subsidies, the Atlanta	  and Columbus Housing Authorities have made commitments to transfer individuals on a GHVP to their HCV programs. Both are "moving to work" PHAs which means they are able to offer more flexible demonstration programs at the local level. DBHDD estimates 100 individuals in Atlanta	  and 10 in Columbus can transfer per year with these new arrangements, thereby freeing up GHVs for re-­‐use.	  
In the near future, the DBHDD and DCA will be able to make a more concrete estimate of the approximate number of existing and new resources to report	  "capacity," as required in this Settlement Agreement. Later this fiscal year, when the Need and Choice Evaluation implementation is satisfactorily underway and further steps are taken with 811 PRA and work with PHAs, this Reviewer will be able to make a reasonably reliable estimate of "need and capacity" per the requirement	  of this Settlement	  Agreement.
Infrastructure and Program Capacity DBHDD has built	  a solid infrastructure for the GHVP and Bridge Funding program. Seventy seven	  (77) contract	  providers are delivering services to people moving into newly developed	  (or turnover) housing arrangements in 986 different	  properties.	   According to DBHDD, over 50 providers	  have added staff to carry out	  functions associated with the GHVP, the HCV and other housing initiatives underway. Taking these programs to scale and sustaining them is requiring expanded infrastructure, increased provider capacity and performance, the ability to secure additional safe, decent	  affordable rental units. The infrastructure issues and overall scalability of the program is heightened exponentially when the State begins adding additional housing resources including, but	  not limited to, the DCA HCV, additional PHA HCVs and 811 PRA.
DBHDD staff recognizes the Supported Housing program needs to evolve and expand to meet	   the demands of the program and the Settlement	  Agreement. As reported previously, staff carries out a range of duties ranging from filing, assuring monthly rent	  obligations are paid, working with staff in each region-­‐-­‐both Regional staff and providers on routine matters -­‐-­‐ plus trying to make and manage new housing connections to enable the program to grow. The GHVP, now the 8th largest	  rental assistance provider in the State, is quite efficient. Checks to landlords are processed quickly, processing times have been streamlined and are very low. The GHVP grew by 140% over the past	  two years-­‐-­‐-­‐but	  when considering the additional program capacity, the overall program grew by nearly 200% during this time period.	  
As referenced in the February 2015 report, the most	  encouraging sign of the DBHDD capacity to achieve its targets and sustain the program is the increasing capacity and performance of the Regional Transition Coordinators. In July, visits were made to Thomasville and Columbus to meet with the Housing Coordinators and review their workload and challenges. These visits further confirm that	  one of the primary reasons the State housing program is succeeding	  is their performance and creativity. They are also key to the State's ability to strengthen provider capacity, along with the attention the GHVP operations staff in the Office of Adult	  Services and DCA is giving the program.
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Recommendations
February 2015's report	  contained a summary of seven broad recommendations. This report	   summarizes the State's progress toward meeting those recommendations and additional steps or further actions recommended for the State to sustain or achieve compliance. Several of the earlier recommendations will be referenced as "Completed," others will be referenced as "In Progress" or "Incomplete." Findings referenced as "in progress" should not	  be construed as the State unable to demonstrate compliance but	  rather indicate	  progress	  is on track and it	  is a matter of time before the steps/tasks can be completed	  so that	  a more definitive compliance finding can be recommended.	   "Incomplete" indicates that	  it is not	  clear yet	  that all the steps necessary to meet	  the Settlement	  terms are underway. So the distinction between "in progress" and “incomplete" is that	  "in progress" refers to the State having taken actions that	  by all indications will likely enable them to meet	  their obligations and "incomplete" refers to actions still needing to be taken to demonstrate that	  the State is on track to meet	  their obligations.
Below is a list	  of the earlier recommendations and actions. Explanations are provided if the recommendations were modified,	  developed further, still in progress and/or under review:
1. Further develop and sustain Supported	  Housing capacity through	  the DCA-­‐DBHDD Partnership: In February's report	  the State's	  progress to develop capacity through this joint	   arrangement was noted along with recommendations for steps to create capacity for up to 9,000 individuals in the target	  population who are in need of Supported Housing.
A. DBHDD and DCA	  should establish a broad written Memorandum	  of	  Agreement	  (MOA) to meet current commitments and set	  "actionable"	  goals to expand Supported	   Housing resources. As stated above, a comprehensive actionable MOA was completed in April, 2015.	   Over time, this joint	  effort will do more than any other feasible activity for the State to reach its maximum supported housing capacity. As stated in the discussion section of this Report, the DCA commitment	  to "furthering fair housing" is both laudable and unique. Likewise the agencies’ approaches to maximize resources are both sound and laudable. Completed
B. DCA should	  request an extension	  of the HUD approved	  Remedial Tenant	  Selection Preference Agreement to enable the state to meet their future Olmstead obligations	   including have the capacity to provide Supported	  Housing to any of the 9000 persons	   in the target	  population	  who	  need	  such	  support. DCA and DBHDD made this request	   to HUD to extend the Preference Agreement	  beyond the June 30, 2015 expiration date. This request	  was granted on April	  23, 2015 for the time period necessary for the State to meet its housing obligation under this Agreement. Completed
C. DCA should request Public	  Housing Authorities to consider	  a modest set aside	  of turnover HCVs	  over a three year period	  per the TAC report (in addition to preference
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arrangement referenced in the 2014 DCA	  QAP) to further the state's	  ability to meet	  its Olmstead obligation	  and goals. The DCA refined this recommendation in their 2015 QAP as part	  of their overall QAP strategy for meeting their Olmstead obligations and as furthered referenced in E. and F. below. In	  Progress
D. DBHDD	  was asked to examine	  their	  current working agreements	  (across	  each	   initiative)	  and refine them to assure adequate resources	  are in place to maximize the HUD approved	  Selection	  Preference Agreement, to meet the 2013 and the 2014 811 PRA requirements and to meet	  any additional arrangements	  to implement	  the 2014 LIHTC program Integrated	  Supported Housing and Target	  Population	  Preference. Completed
E. DCA should request (and monitor) each project awarded Low	  Income	  Housing	  Tax	   Credits	   and implement an Affirmatively Furthering Fair Housing Marketing Plan that meets the intent of the DCA	  policy for	  owners/property managers to affirmatively	   market units to the SPMI population as "tenants with special needs."	   This includes each selected LIHTC Applicant	  providing reasonable accommodations for	  tenants with special	  needs	  who are also in the Settlement Agreement target	  population. Completed
F. DCA and DBHDD should continuously	  evaluate the need	  for expanding housing	   resources. As referenced in this report, DCA has added incentives in the QAP and they and DBHDD are working with PHAs to add Project	  Based Subsidies to LIHTC funded projects (with a disability preference). DBHDD has asked the two "moving to work" PHAs, Columbus and Atlanta, to offer HCVs to individuals in the GHVP. As these initiatives are further developed, the DCA and DBHDD will have more precise projection of their potential expanded capacity for the next	  24-­‐48 months depending on award and production schedules. In Progress
G. The DCA should assume responsibility	  for GHVP inspections which consolidates	  this	   function in one	  place.	   There	  may be	  other	  functions that need to be	  consolidated across	  agencies	  to maximize sustainability as the program continues	  to grow.	   For example, 811 PRA referral processes should be	  the	  same	  or	  as similar	  as possible	  with HCV referrals. DCA	  and DBHDD should work	  out how housing search will work	   simultaneously	  across	  these two programs. DCA and DBHDD are jointly developing a uniform referral process and DBHDD has suggested the Georgia	  Mental Health Consumer Network take on responsibility for managing GHVP-­‐HCV transition administrative tasks and reauthorization tasks in concert	  with service providers. In Progress
2. DBHDD	  should request an expansion of	  the	  GHVP and Bridge	  funding	  for FY 2016 to narrow the gap	  between	  projected	  need	  and capacity	  to sustain the Settlement	   Agreement gains. Completed
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3. DBHDD	  should assess	  the potential	  for increasing referrals	  of individuals	  who	  qualify	  for services	  from	  hospitals,	  intensive residential	  settings , group homes	  and personal care homes. The number of referrals from hospitals and intensive residential settings has increased but	  the DBHDD depends on referrals from discharge planners and they may not	   be aware of the potential for making referrals for services and Supported Housing. It is also not clear how many individuals are being referred to group homes or personal care homes who qualify for services and Supported Housing. Hopefully these issues should surface and be addressed as the new needs assessment	  process takes effect.	   As referenced in February 2015, DBHDD should be constantly targeting these settings for referrals. Through the newly developed Needs and Choice Evaluation, DBHDD is positioned to track these referrals more closely and provide training and technical assistance where necessary to increase referrals. In Progress
4. Assess Need
4.a. Implement	  process	  to determine need	  now and in the future: The DBHDD is well underway with their Supported Housing Needs and Choice Evaluation but	  this process is complex and will require at least	  two to three more months to complete. One issue DBHDD is just	  now adding to their protocol is a baseline assessment	  of individuals exiting jails and prisons. In Progress
4.b. Establish	  objective criteria	  for determining	  need: Based on the June 1, 2015 Policy and in recent	  discussions and observation, DBHDD is following through on this recommendation and implementation will occur in the Post	  Baseline Phase of the Needs and Choice Evaluation. In Progress
4. c.	   Project	  Capacity	  and Need	  for the future. Based on progress to date and the need for more time to evaluate capacity and need, a finding of meeting Capacity and Need is not	   being made at this time. However, there are positive signs that	  this finding can be made during this fiscal year. In Progress
5. Quality and Performance	  Improvements. This report	  provides relevant	  touch points for success of this initiative. It is listed as incomplete but	  this is not	  a sign the State has failed to complete this item but	  rather this is a matter of staff needing to give future attention to Quality and Performance as they complete transitions and other tasks. These can be addressed individually but	  it is recommended that DBHDD put	  a quality management	  plan structure in place that	  includes performance goals and targets. This plan should not	  be isolated to the DBHDD Supported Housing unit	  or to DBHDD functions. It should include either service provider fidelity or quality reviews that	  include random routine site visits. Some items such as shortening the length of time from referral to "move in" and measuring tenure, should be done jointly with DCA.	  Targeting an increase in the number and type of referrals or successful implementation of the PRA 811 initiative are examples of other options. Developing this type of approach is also a good vehicle for an annual review of the program's progress and for assessing and demonstrating substantial compliance with the
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Settlement Agreement. It is recommended that	  DBHDD and DCA establish performance benchmarks in FY 2016.
6. Make certain GHVP is resource of last resort. The State has made good faith efforts to include this provision in their MOA and in their work with PHAs and Regional Transition Coordinators and providers. Making progress.
7. Develop stronger	  ties across DBHDD	  programs. In the 2014 report, a recommendation was made to link the ACT, Supported Employment	  and Supported Housing strategies, operations, requirements, care management, fidelity or other reviews, expectations and/or training to build stronger ties among these initiatives to improve overall performance and outcomes.	   The merger of the housing unit	  into the Office of Adult	  Mental Health was viewed as instrumental to building these stronger ties and better service integration. The 2015 site visits reflected the progress being made and reflected the importance the stronger ties across initiatives.	   Making progress
The DBHDD is taking the opportunity of the Supported Housing Needs and Choice Evaluation to offer more training and create a curriculum for building provider capacity and doing it	  in a manner to develop stronger ties. Embedding the DBHDD Supported Housing Unit more deeply in the DBHDD Office of Adult	  Mental Health is a positive move. It is recommended DBHDD focus on strengthening ties across the forensic initiatives and to add technical assistance to the Housing Needs and Choice Evaluation initiative, as training is important but not likely sufficient	  to improve overall performance to the level needed for this initiative to succeed.
DBHDD and DCA are exploring an additional contract	  with the Georgia	  Mental Health Consumer Network for critical administrative tasks. This is also an ideal time to further embed supported housing services interventions into the Certified Peer Specialist	   certification curriculum and to explore additional options for Certified Peer Specialists to be direct service providers in addition to managing administrative and evaluator functions.
Lastly, the DBHDD has an ideal opportunity with the rollout	  of the 811 PRA and expansion of PHA involvement	  to include individuals with intellectual disabilities to this target	  population as priority populations for these new resources. Making	  Progress.
Summary One of the most	  instructive findings in the February 2015 review was the uniform response from staff and participants of the value of Georgia's Supported Housing Program. That report spoke about	  the broad consensus of the importance of "home"	  in consumers’ recovery. In June and July, this optimism was evident	  again in meetings with DBHDD and DCA, with Region 4 staff in Thomasville and then with Region 6 staff and three individuals representing community agencies engaged with DBHDD and DCA in Columbus.	   What has become clearer this year is that	  creating supported housing is not	  just a DBHDD central office initiative or a Settlement	  Agreement	  requirement and the GHVP is not	  just a rental
19

subsidy program but	  a springboard for building capacity. The DBHDD also made available feedback from individuals who had moved into their new rental unit	  and each spoke simply but elegantly of the impact	  of the GHVP saying things like "I feel like I have a purpose now" and "I now have a safe place I can call my own and I don't	  feel like I'm	  thrown away." No state can meet	  its Olmstead or a Settlement	  Agreement housing obligations with a state rental subsidy alone. Creating capacity to meet	  those obligations comes from exploring and creating as many potential housing options as possible. Utilizing the capacity comes from the belief that	  recovery is possible.	  Otherwise, the persons moving into supported housing would not	  have been referred. Even with some providers still questioning this shift, there	  is a critical mass of people committed to making community integration, especially housing integration, a reality for individuals who choose and need supportive housing. DBHDD and DCA MOA implementation will keep this high energy effort	  alive well into the future.	   Everyone working on this initiative, state and local, spend their days asking a funder, an elected official, an owner, developer, government	  agency, provider or a landlord to take a chance on a person they would otherwise not	  do, make a commitment	  or a decision to broaden the reach of this initiative. Sometimes they may ask when odds are not in their favor that	  they will get	  a favorable answer. But	  they share a common goal:	   create more supported housing capacity in their community and	  their State. They have the vision and tenacity to get	  the job done. It's rare to see this combination of idealism and pragmatism, but	  it's what	  it will take to make integration for people with disabilities a reality.	  
20

State of Georgia
 Review of Supported Employment Services
 Under the United States v. Georgia Settlement Agreement

and the 
 Findings from the State Health Authority Yardstick

Requested by Elizabeth Jones, Independent Reviewer 

David Lynde, MSW 
 August 6, 2015 


Table of Contents

Settlement Agreement Provisions SHAY Executive Summary SHAY Introduction SHAY Findings Georgia SHAY Scores 2015 Georgia SHAY Scores 2012 –2015 Sustainability

Page 3 5 6 8 27 28 29

2

United States v. Georgia Settlement Agreement
The reviewer was asked to advise again whether the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) has met the requirements of the Settlement Agreement regarding the provision of Supported Employment programs, and then to evaluate the quality of these services by completing a State Health Authority Yardstick (SHAY) review. The Settlement Agreement section on Supported Employment contains the following language:
“Supported Employment i. Supported Employment will be operated according to an evidence-based supported employment model, and it will be assessed by an established fidelity scale such as the scale included in the Substance Abuse and Mental Health Administration (“SAMHSA”) supported employment tool kit. ii. Enrollment in congregate programs shall not constitute Supported Employment. iii. Pursuant to the following schedule…
(E) By July 1, 2015, the State shall provide Supported Employment services to 550 individuals with SPMI.”
While it is beyond the scope of the work of this reviewer to check the validity and the reliability of the specific data provided by DBHDD, the data presented from DBHDD and the information confirmed by a variety of stakeholders (including providers) who were interviewed do indicate that DBHDD is in compliance with the Supported Employment provisions of the Settlement Agreement.
As of June 1, 2015, there were 1,270 individuals receiving Supported Employment services, with in excess of 550 identified individuals receiving SE who met the ADA criteria, based on the document received from DBHDD titled “Supported Employment (SE) (Supplemental Information-7/30/15).”
According to data received from Dr. Timberlake, the monthly rate of employment was 51.5 percent across Supported Employment programs in May 2015. It is worth noting that 51.5 percent employment represents a slight increase in the employment rate from last year and it constitutes a reasonable and appropriate rate for people in Supported Employment services.
3

The SHAY, which was focused on the supported employment “slots” under the Settlement Agreement, may be viewed as an instrument to measure the extent and quality of that compliance.
4

SHAY Executive Summary This document provides a summary of the status of the work that has been done by DBHDD regarding the implementation and dissemination of evidence based Supported Employment (SE) services for adults with severe mental illness (SMI) in the State of Georgia. This is the fifth annual SHAY report that has been completed at the request of Elizabeth Jones, Independent Reviewer. The last SHAY report was completed in September 2014.
5

SHAY Introduction
The State Health Authority Yardstick (SHAY) was designed by a group of mental health researchers and implementers who were interested in assessing the facilitating conditions for the adoption of Evidence-Based Practices (EBPs) created by a state’s health or mental health authority.
The reviewer spent three days in July 2015, specifically; July 06, 07 and 08, reviewing documentation, including: agency fidelity reports, monthly programmatic data for SE programs, SE coalition meeting notes, training documents, fidelity outcomes summary, technical assistance and consultation reports, as well as report summaries from an independent SE consultant. During the three days in July 2015, the reviewer also attended meetings with and interviewed a variety of stakeholders in the State of Georgia. The July 2015 interviews and meetings in Georgia included: staff from DBHDD, providers of SE services for adults with mental illness, family members, consumers participating in Supported Employment services, as well as representatives from consumer and family advocacy organizations and other mental health advocates.
Of particular note, the reviewer also was able to meet in person with Commissioner Frank Berry and Deputy Commissioner Judith Fitzgerald during the July 2015 visit. In addition to the July 2015 visit, the reviewer made one interim visit to Georgia in October 2014.
The reviewer was asked to assess the extent to which policies, procedures and practices are present in Georgia regarding SE services. Evidence-based Supported Employment is a Substance Abuse and Mental Health Services (SAMHSA) recognized practice that has been repeatedly demonstrated to be the most effective means to help adults with SMI to obtain and retain competitive employment as part of their recovery process.
The reviewer is grateful for the warm and friendly professional courtesies that have been kindly extended by the leadership and staff at DBHDD for all of the visits and communications
6

that have occurred over the past year. The reviewer also appreciates the open and frank discussions that occurred at several levels of the Georgia DBHDD system regarding evidence-based Supported Employment services over the same time frame.
The SHAY is a tool for assessing the state health or mental health authority responsible for mental health policy and Medicaid policies in a state. As with the previous report, the scope (or unit of analysis) for the SHAY is focused on the SE (“ADA” or “DOJ”) slots defined by the “Settlement Agreement.” The SHAY examines the policies, procedures and actions that are currently in place within a state system, or in this case, part of the state system. The SHAY does not incorporate planned activities; rather it focuses exclusively on what has been accomplished and what is currently occurring within a state. For the purposes of this, DBHDD has been identified as the “State Mental Health Authority (SMHA).” This report details the findings from information gathered in each of fifteen separate items contained in the SHAY. For each item, the report includes a brief description of the item and identifies the scoring criteria. Each item is scored on a numerical scale ranging from “five” being fully implemented to a “one” designating substantial deficits in implementation. Recommendations for improvement also are included with each item. A summary table for the scoring of the SHAY items is contained at the end of the report.
7

SHAY Findings

1. EBP Plan

The SMHA has an Evidence Based Practices (EBP) plan to address the following:

Present
Present
Present Present Present Present
Present
Present
Present
Present

1. A defined scope for initial and future implementation efforts
2. Strategy for outreach, education, and consensus building among providers and other stakeholders
3. Identification of partners and community champions 4. Sources of funding 5. Training resources 6. Identification of policy and regulatory levers to
support EBP 7. Role of other state agencies in supporting and/or
implementing the EBP 8. Defines how EBP interfaces with other SMHA
priorities and supports SMHA mission 9. Evaluation for implementation and outcomes of the
EBP 10. The plan is a written document, endorsed by the
SMHA

Narrative
DBHDD developed a well-written document, “2013 Georgia Department of Health and
Developmental Disabilities Supported Employment Strategic Plan,” that provides a well-
described framework for the implementation of Supported Employment services in the State
of Georgia. While DBHDD has completed the development of a formal written SE plan, the
current strong concerns raised by SE providers across the state warrants revisiting the same
recommendation provided in this section last year.
“Given the approaching end of the “Settlement Agreement,” it is strongly recommended that DBHDD leadership develop a concise SE plan that focuses exclusively on sustaining the progress that the Department and its partners have made in the development of SE services and the infrastructure to support those services. This plan should describe all efforts and strategies underway to diversify and secure funding for SE providers after the completion of the “Settlement Agreement” as well as other activities at the state-level to secure and develop strategic partnerships with agencies like the Georgia Vocational Rehabilitation Agency.”

8

2. Financing: Adequacy
Is the funding model for the EBP adequate to cover costs, including direct service, supervision, and reasonable overhead? Are all EBP sites funded at the same level? Do sites have adequate funding so that practice pays for itself?

Present

1. No components of services are reimbursable
2. Some costs are covered
3. Most costs are covered
4. Service pays for itself (e.g. all costs covered adequately, or finding of covered components compensates for noncovered components)
5. Service pays for itself and reimbursement rates attractive relative to competing non-EBP services.

Narrative
For the purposes of the Settlement Agreement, funding for the designated SE slots (sometimes referred to as “ADA (Americans with Disabilities Act) slots”) remains fixed at the same rate of $410.00 per slot for each provider. This rate has remained unchanged since the beginning of the Settlement Agreement.

Unlike most SE systems, this funding is “slot-specific” and not specific to individual clients in SE services or tied to SE landmarks or outcomes. Enrollment in the designated SE slots is defined in the Settlement Agreement:

The target population for the community services described in this Section (III.B) shall be approximately 9,000 individuals by July 1, 2015, with SPMI who are currently being served in the State Hospitals, who are frequently readmitted to the State Hospitals, who are frequently seen in Emergency Rooms, who are chronically homeless, and/or who are being released from jails or prisons.
b. Individuals with serious and persistent mental illness and forensic status shall be included in the target population, if the relevant court finds that community service is appropriate.

9

The most prominent concern among SE providers remains, specifically, that payments for SE services will be radically reduced at cessation of the Settlement Agreement. As one SE provider stated, “We are all waiting to see if we still have jobs ourselves after the Settlement Agreement ends.”
Another area of prominent concern for SE providers is how the new VR funding will be merged with other State funds to provide financial stability for SE services after the Settlement Agreement is completed.
Additionally, SE providers continue to express anxiety and angst with the ongoing attempts by DBHDD to implement Task Oriented Rehabilitation Services (TORS) as another funding mechanism for SE services. Providers state they have received little technical support and few answers to concerns that using TORS funding via Medicaid will create significant documentation complications as well as a requirement to “focus on diagnosis and symptoms rather than strengths and abilities which is what Supported Employment is supposed to be about,” as one provider stated. Another provider stated, “The Medicaid requirements will be so different that the only way we will be able to provide SE services and bill Medicaid is to hire specific different employment specialists.” It appears the fears and concerns about the use of TORS as a funding mechanism is even stronger this year than last year.
Once again, it is recommended that DBHDD consider developing a written post-settlement SE document that describes the planned funding integration methods. It is also recommended that DBHDD continue its existing outreach efforts to engage SE providers in a hearty dialogue about TORS funding and SE services.
10

3. Financing: Start-Up & Conversion Costs
Are costs of start up and or conversion covered, including: 1) Lost productivity for staff training, 2) hiring staff before clients enrolled (e.g. ACT), 3) any costs associated with agency planning and meetings, 4) changing medical records if necessary, 5) computer hardware and/or software if necessary, etc.

Present

1. No costs of start-up are covered 2. Few costs are covered 3. Some costs are covered 4. Majority of costs are covered 5. Programs are fully compensated for costs of
conversion

Narrative
DBHDD has continued to add more new SE slots in the past year for providers. To their credit, DBHDD leadership has worked with new SE providers by creating access to some training and consultation activities. DBHDD leadership has verbally expressed a commitment to review any written requests from new SE providers regarding potential financial resources for starting SE services.

11

4. Training: Ongoing consultation and technical support

Is there ongoing training, supervision and consultation for the program leader and clinical staff to support implementation of the EBP and clinical skills:

Present Present Present Present
Present

1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training)
2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training)
3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months)
4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months)
5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months)

No components covered

Narrative
DBHDD has continued their SE training and consultation agreement with the Institute on Human Development and Disability at the University of Georgia. The training has provided specific modules for SE staff who have experience with the practice and for staff who are new to SE services and have had little to no previous training. The training continues to rely heavily on the use of webinars as the primary source of training. While this is an important ingredient, it is not sufficient by itself to help SE provider staff to learn all the skills necessary for high quality SE services.

12

Staff from several SE programs commented on the current level of training and consultation being provided by DBHDD in collaboration with Doug Crandall and the University of Georgia; some described the training as extremely helpful. Several people described the current model as “being quite effective.” Others commented that the level and quality of the training being provided “Started out good and has been getting better.” Numerous SE providers cited the training and consultation that they received from Ms. Meka McNeal, an independent SE trainer and consultant from Maryland who has been contracted by GA DBHDD to provide onsite consultation and training to SE sites, as being an excellent resource to help them improve their SE programs.
13

5. Training: Quality

Is high quality training delivered to each site? High quality training should include the following:

Present Present
Present Present Present
Present

1) Credible and expert trainer
2) Active learning strategies (e.g. role play, group work, feedback
3) Good quality manual, e.g. SAMHSA Toolkit 4) Comprehensively addresses all elements of the EBP
5) Modeling of practice for trainees, or opportunities to shadow/observe high fidelity clinical work delivered
6) High quality teaching aides/materials including workbooks/work sheets, slides, videos, handouts, etc., e.g. SAMHSA Toolkit

Narrative
DBHDD has continued their ongoing training relationship with the Institute on Human Development and Disability at the University of Georgia. One frequently praised change in the delivery of training resources includes the opportunity for SE programs with good fidelity scores to act as shadow or demonstration sites for other SE programs. DBHDD has worked diligently to become a partner in the training process for staff at SE provider agencies across the state. Maintaining the quality and consistency of the training resources will play an important role in sustaining good employment outcomes from SE programs.

14

6. Training: Infrastructure / Sustainability

Has the state established a mechanism to allow for continuation and expansion of training activities related to this EBP, for example relationship with a university training and research center, establishing a center for excellence, establishing a learning network or learning collaborative. This mechanism should include the following components:

Present Present Present
Present Present Present
Present

1) Offers skills training in the EBP 2) Offers ongoing supervision and consultation to
clinicians to support implementation in new sites 3) Offer ongoing consultation and training for program
EBP leaders to support their role as clinical supervisors and leaders of the EBP 4) Build site capacity to train and supervise their own staff in the EBP 5) Offers technical assistance and booster trainings in existing EBP sites as needed 6) Expansion plan beyond currently identified EBP sites 7) One or more identified model programs with documented high fidelity that offer shadowing opportunities for new programs 8) SMHA commitment to sustain mechanism (e.g. center of excellence, university contracts) for foreseeable future, and a method for funding has been identified

No components covered

Narrative As previously recognized, DBHDD has made some enhancements regarding the provision of SE trainings and consultation services for SE providers in the state. The continuation of these training resources will be critical to the sustainability of good quality SE services for the citizens of Georgia. One part of the sustainability for training that would benefit from some investment is the area of developing provider agencies’ own ability to train staff to provide SE services. Some states have developed “train-the-trainer” programs where designated provider agency staff are trained on how to train their own new staff to provide good quality SE services.

15

7. Training: Penetration
What percent of sites have been provided high quality training
(Defined as having a score of “3 or higher” on item #4. Training: Ongoing consultation and technical support)
Ongoing training should include 3 or more of the following components: 1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training) 2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training) 3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months) 4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months) 5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months)

Present

1. 0 – 20 %
2. 20 – 40%
3. 40 – 60% 4. 60 – 80% 5. 80 – 100%

Narrative
DBHDD has dedicated funds and developed important local resources in order to provide SE trainings to provider agencies in their communities. All providers agree they have access to good basic SE training now, thanks to the work done at DBHDD and in partnership with the Institute on Human Development and Disability at the University of Georgia.

16

8. SMHA Leadership: Commissioner Level
Commissioner is perceived as a effective leader (influence, authority, persistence, knows how to get things done) concerning EBP implementation who has established EBPs among the top priorities of the SMHA as manifested by:

Present Present
Present Present
Present

1) EBP initiative is incorporated in the state plan, and or other state documents that establish SMHA priorities
2) Allocating one or more staff to EBP, including identifying and delegating necessary authority to an EBP leader for the SMHA
3) Allocation of non-personnel resources to EBP (e.g. money, IT resources, etc.)
4) Uses internal and external meetings, including meetings with stakeholders, to express support for, focus attention on, and move EBP agenda
5) Can cite successful examples of removing policy barriers or establishing new policy supports for EBP

Narrative The Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities is Frank Berry who, along with Chief of Staff Judith Fitzgerald, was interviewed in person during the review. Nearly all stakeholders describe Commissioner Berry as a leader, “Who talks about Supported Employment and Recovery every chance he gets.” Some SE providers cited recent visits to their agencies by the Commissioner as being very supportive.

17

9. SMHA Leadership: Central Office EBP Leader

There is an identified EBP leader that is characterized by the following:

Present Present Present Present

1) EBP leader has adequate dedicated time for EBP implementation (min 10%), and time is protected from distractions, conflicting priorities, and crises
2) There is evidence that the EBP leader has necessary authority to run the implementation
3) There is evidence that EBP leader has good relationships with community programs
4) Is viewed as an effective leader (influence, authority, persistence, knows how to get things done) for the EBP, and can site examples of overcoming implementation barriers or establishing new EBP supports

Narrative
DBHDD has worked to develop better communication, collaboration and leadership regarding Supported Employment services in Georgia over the past few years. During that time, Mr. Vernell Jones has developed a sound reputation in the community as the Central Office SE Leader. One staff member from an SE provider seemed to speak for many when she described Mr. Jones as, “very approachable, accessible and always responds when asked for something.”

Providers were also clear that they now have a variety of resources they can contact regarding SE services, including Dr. Timberlake and staff from the Regional Offices. Several agencies described receiving good consultation and supports for SE services from DBHDD staff at their local Regional Offices.

18

10. Policy and Regulations: Non SMHA State Agencies
The SMHA has developed effective interagency relations (other state agencies, counties, governors office, state legislature) to support and promote the EBP as necessary/appropriate, identifying and removing or mitigating any barriers to EBP implementation, and has introduced new key facilitating regulations as necessary to support the EBP.
Examples of supporting policies: • Medicaid agency provides reimbursement for the EBP (If Medicaid not under the SMHA) • The state’s vocational rehabilitation agency pays for supported employment programs
Examples of policies that create barriers: • Medicaid agency excludes EBP, or critical component, e.g. disallows any services delivered in the community (If Medicaid agency not under the SMHA) • State vocational rehabilitation agency does not allow all clients looking for work access to services, or prohibits delivery of other aspects of the supported employment model

Present

Virtually all policies and regulations impacting the EBP serve as barriers On balance, policies that create barriers outweigh policies that support/promote the EBP Policies that support/promote the EBP are approximately equally balanced by policies that create barriers On balance, policies that support/promote the EBP outweigh policies that create barriers Virtually all policies and regulations impacting the EBP support/promote the EBP

Narrative The Georgia Department of Behavioral Health and Developmental Disabilities and the Georgia Vocational Rehabilitation Agency (GVRA) have developed a positive collaboration over the past two years. Through their work together, they have signed and implemented a Memorandum of Understanding (MOU) regarding how SE services can partner with Vocational Rehabilitation services. They piloted the MOU to work out the implementation of this process in two sites and took the lessons learned from the pilot statewide. They have also been able to identify fourteen local Vocational Rehabilitation Counselors who are considered liaisons to SE programs and have received shared training with SE providers.

19

Leadership at GVRA appears genuinely passionate and excited regarding providing collaborative employment services to some of Georgia’s must vulnerable citizens. The collaborative partnership, and the resulting changes in shared services with GVRA, received praise from all stakeholders in Georgia. Several providers described some differences in how their partnership is being rolled out on the ground level. However, the most pronounced concern was the lack of such identified liaisons at other GVRA offices across the state. Many providers commented that they serve several counties and have only one county where the local GVRA office has an SE liaison. Providers nearly universally described their concern that the improved collaboration and partnership has not spread beyond the fourteen offices with designated SE liaisons. As one SE provider stated, “We have made some significant progress, but it is time for another SE and VR roundtable discussion.”
20

11. Policies and Regulations: SMHA

The SMHA has reviewed its own regulations, policies and procedures to identify and remove or mitigate any barriers to EBP implementation, and has introduced new key regulations as necessary to support and promote the EBP.

Examples of supporting policies:
• SMHA ties EBP delivery to contracts • SMHA ties EBP to licensing/ certification/ regulation • SMHA develops EBP standards consistent with the EBP model • SMHA develops clinical guidelines or fiscal model designed to
support model EBP implementation Examples of policies that create barriers:
• SMHA licensing/ certification/ regulations directly interfere with programs ability to implement EBP

Present

Score: 1. Virtually all policies and regulations impacting the EBP act as barriers 2. On balance, policies that create barriers outweigh policies that support/promote the EBP 3. Policies that are support/promote the EBP are approximately equally balanced by policies that create barriers 4. On balance, policies that support/promote the EBP outweigh policies that create barriers 5. Virtually all policies and regulations impacting the EBP support/promote the EBP

Narrative
DBHDD previously incorporated language into their contracting procedures that Supported Employment providers are required to provide SE services consistent with the description of evidence-based Supported Employment in the SAMHSA toolkits as well as most of the identified principles of evidence-based Supported Employment services.

As previously described, many providers are concerned about how the use of TORS funding will affect SE services. A number of SE providers voiced concerns about this becoming a significant SE policy barrier.

21

12. Policies and Regulations: SMHA EBP Program Standards

The SMHA has developed and implemented EBP standards consistent with the EBP model with the following components:

Present
Present
Present Present

1) Explicit EBP program standards and expectations, consonant with all EBP principles and fidelity components, for delivery of EBP services
2) SMHA has incorporated EBP standards into contracts, criteria for grant awards, licensing, certification, accreditation processes and/or other mechanisms
3) Monitors whether EBP standards have been met
4) Defines explicit consequences if EBP standards not met (e.g. contracts require delivery of model supported employment services, and contract penalties or nonrenewal if standards not met; or licensing/accreditation standards if not met result in consequences for program license.)

Narrative

As stated previously, DBHDD has included language in provider contracts that specifies that SE services will be consistent with the principles of evidence-based Supported Employment services as described in the SAMHSA Supported Employment toolkit. This information is shared with SE providers at some of the Supported Employment Coalition Meetings that occur in the State regularly.

22

11. Quality Improvement: Fidelity Assessment

There is a system in place for conducting ongoing fidelity reviews by trained reviewers characterized by the following components:

Present Present
Present Present Present Present Present
Present

1) EBP fidelity (or functional equivalent designed to assess adherence to all critical components of the EBP model) is measured at defined intervals
2) GOI fidelity (or functional equivalent designed to assess adherence to all critical components required to implement and sustain delivery of EBP) is measured at defined intervals
3) Fidelity assessment is measured independent – i.e. not assessed by program itself, but by SMHA or contracted agency
4) Fidelity is measured a minimum of annually 5) Fidelity performance data is given to programs
and used for purposes of quality improvement 6) Fidelity performance data is reviewed by the
SMHA +/- local MHA 7) The SMHA routinely uses fidelity performance
data for purposes of quality improvement, to identify and response to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.) 8) The fidelity performance data is made public (e.g. website, published in newspaper, etc.)

No components covered

Narrative
Over the past few years, DBHDD has identified, recruited and trained a small group of staff to provide fidelity reviews for SE providers across the State. During that time, the fidelity team worked to improve provider relationships during the review process and to approach fidelity reviews as a collaborative quality improvement process. During the past year, there have been some changes in staffing and in how fidelity reviews were provided at a few agencies.

When asked about fidelity reviews in the past year, SE providers noted some changes in how the reviews are being conducted. Several providers, who had been very positive regarding
23

last year’s fidelity reviews, stated there was a significant change in the tone and manner in which reviews were completed at agencies. A number of SE providers commented on the conduct of the DBHDD reviewers. Many agencies reported comments from reviewers about their needing to leave agencies early and not completing the review thoroughly. As one provider stated, “I spend days pulling together information and scheduling for the review and they (reviewers) were more worried about their commute home than about assessing the quality of our program.” Staff from other agencies echoed the same comments and concerns. Additionally some programs also stated the reviewers have returned to conducting the review more in audit fashion. Several people experienced the reviewers as having the “we got you” approach to reviews rather than the collaborative approach that has characterized reviews in the past two years.
On the other hand, some agencies reported their reviews were much like last year in that they were, as described by one SE supervisor, “Very fair and consistent. The reviewers at our agency were very open with us and receptive, they took lots of time with us to do the review.”
A handful of agencies were given the opportunity to participate in “desktop” reviews where the fidelity reviewers were off-site and gathered information via web-based video meetings and other electronic means. The agencies that experienced these reviews found them to be less intrusive and a much less complicated process. It will be important for DBHDD to carefully watch outcomes at agencies where a desktop review is permitted to ensure the desktop reviews are capturing all the critical quality improvement information for SE services.
Given the significantly increased concerns and comments regarding the DBHDD SE fidelity review process, it is worth revisiting the recommendation made in this section in 2014:
In order to maintain the successful progress that has been made to integrate fidelity measures into the DBHDD system, it is vital for DBHDD leadership to find ways to address and remediate these provider concerns and questions regarding SE fidelity.
24

14. Quality Improvement: Client Outcomes
A mechanism is in place for collecting and using client outcome data characterized by the following:

Present
Present Present Present
Present

1) Outcome measures, or indicators are standardized statewide, AND the outcome measures have documented reliability/validity, or indicators are nationally developed/recognized
2) Client outcomes are measured every 6 months at a minimum
3) Client outcome data is used routinely to develop reports on agency performance
4) Client specific outcome data are given to programs and practitioners to support clinical decision making and treatment planning
5) Agency performance data are given to programs and used for purposes of quality improvement
6) Agency performance data are reviewed by the SMHA +/local MHA
7) The SMHA routinely uses agency performance data for purposes of quality improvement; performance data trigger state action. Client outcome data is used as a mechanism for identification and response to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.)
8) The agency performance data is made public (e.g. website, published in newspaper, etc.)

Narrative DBHDD has made some progress in this area. Outcome reports are now made available to providers on a regular basis. Providers were aware of the general outcomes for people in SE services across the state. However, the outcomes for SE programs (specifically the percent of people in SE service who are competitively employed at a point in time) do not appear to be available on the DBHDD website where SE fidelity reports remain accessible.

It is not clear how outcomes are being used by the leadership at DBHDD or by specific SE providers as a mechanism for quality improvement. For example, SE fidelity reports are being used to identify which providers should provide shadowing opportunities for other providers

25

who are struggling in identified areas. A similar process has not been established regarding employment rates or outcomes.
26

15. Stakeholders

The degree to which consumers, families, and providers are opposed or supportive of EBP implementation.

Consumer Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

4. Generally supportive, but no partnerships, or active proponents.

Present

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

Family Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

Present

4. Generally supportive, but no partnerships, or active proponents.

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

Provider Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

4. Generally supportive, but no partnerships, or active proponents.

Present

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

5

15. Summary Stakeholder Score: (Average of 3 scores below)

5

15.a Consumers Stakeholders Score

4

15.b Family Stakeholders Score

5

15.c Providers Stakeholders Score

Narrative The support and engagement among providers, consumers and family members in Georgia for Supported Employment continues to develop based on the successes that have occurred.

27

The improved partnerships between DBHDD and provider organizations; the vocal active leadership from the Commissioner’s office; the collaborative training and shadowing programs; an increased presence at the Georgia APSE conference; and a significantly improved relationship between Georgia Vocational Rehabilitation and DBHDD have all contributed to strong support for Supported Employment services for Georgia’s citizens whose lives are affected by mental illness.
28

Summary Table of Georgia SHAY Scores 2015

1.EBP Plan

5

2.Financing: Adequacy

3

3.Financing: Start-up and Conversion Costs

3

4.Training: Ongoing Consultation & Technical Support

5

5.Training: Quality

5

6.Training: Infrastructure / Sustainability

5

7.Training: Penetration

5

8.SMHA Leadership: Commissioner Level

5

9.SMHA Leadership: EBP Leader

5

10. Policy and Regulations: Non-SMHA

5

11. Policy and Regulations: SMHA

4

12. Policy and Regulations: SMHA EBP Program Standards 5

13. Quality Improvement: Fidelity Assessment

5

14. Quality Improvement: Client Outcome

4

15. Stakeholders: Average Score

5

(Consumer, Family, Provider)

69

Total SHAY Score

4.6

Average SHAY Item Score

29

Summary Table of Georgia SHAY Scores 2012 – 2015

SHAY Item 1. EBP Plan

2012 score
4

2013 score
5

2014 score
5

2015 score
5

2. Financing: Adequacy

3

3

3

3

3. Financing: Start-up and Conversion Costs

1

2

3

3

4. Training: Ongoing Consultation & Technical Support

2

4

4

5

5. Training: Quality

3

4

4

5

6. Training: Infrastructure / Sustainability

3

4

5

5

7. Training: Penetration

1

5

5

5

8. SMHA Leadership: Commissioner Level

4

5

5

5

9. SMHA Leadership: EBP Leader

3

5

5

5

10. Policy and Regulations: Non-SMHA

2

3

4

5

11. Policy and Regulations: SMHA

4

4

4

4

12. Policy and Regulations: SMHA EBP Program Standards

3

5

5

5

13. Quality Improvement: Fidelity Assessment

3

4

5

5

14. Quality Improvement: Client Outcome

3

3

4

4

15. Stakeholders: Average Score (Consumer, Family, Provider)
Total SHAY Score
Average SHAY Item Score

4

5

5

5

43

61

66 69

2.9 4.0 4.4 4.6

30

Sustainability
Over the past five years, DBHDD has worked effectively at improving their infrastructure, policy and resource allocations to better facilitate the adoption and practice of evidence-based Supported Employment services by a wide range of providers in the State. During that time, DBHDD has developed its own internal SE team that provides leadership, support, consultation, regular communication and fidelity reviews to ensure the quality of SE services in the State. DBHDD has also written a comprehensive State plan regarding SE services and developed a multi-media training and consultation partnership with the Institute on Human Development and Disability at the University of Georgia. DBHDD has also instituted regular SE coalition meetings with providers and has been developing a much more collaborative partnership with SE agencies regarding the provision of good quality Supported Employment services. Most recently, DBHDD has made noteworthy progress in their collaborative relationship with the Georgia Vocational Rehabilitation Agency. All stakeholders noted the benefits and effects of this collaboration during a recent visit. Most, if not all, of these changes, would not have happened without the committed and focused leadership support that SE has received at all levels of DBHDD, including the Commissioner.
It is incumbent on the leadership at DBHDD to carefully and regularly monitor these significant improvements and transformative changes for erosion. As was demonstrated by the provider feedback regarding changes in the staffing of fidelity reviews, some positive changes can be quickly lost (i.e. several providers commented that the reviews were back to the tone of compliance audits versus the desired tone of collaboration and partnership) and recovering from those changes presents a new challenge.
Some areas that appear to be at high risk for potentially losing progress include the improvement to the fidelity process and the partnership around ongoing funding mechanisms and strategies for SE services. Providers have expressed, over the past two years, a strong reservation and many misgivings regarding the use of Medicaid dollars to fund SE in GA.
31

The training and consultation work through the Institute of Human Development and Disability at the University of Georgia has been well received and has given agencies the chance to have staff trained in providing SE services which is critical to the success of the service. Fortunately, Georgia has a pool of experienced SE providers, effective leadership at DBHDD regarding Supported Employment, and a system now built to capture useful ongoing quality improvement data at many levels, all of which will be critical to sustaining the opportunity for Georgia’s citizens who live with mental illness to have effective services to help them further their own recovery through competitive employment in their communities.
32

REVIEW OF CRISIS SERVICES

The purpose of this report is to determine the compliance of the Department of Behavioral Health and Developmental Disabilities (DBHDD) with the requirements for crisis services as described in the State of Georgia’s Settlement Agreement with the Department of Justice. In addition, this report offers an assessment as to how well the different components of the crisis requirements are integrated to form a comprehensive crisis service system for individuals with behavioral health needs and/or developmental disabilities.
Introductory Comments
In developing this report, I reviewed the Settlement Agreement between the State of Georgia and the Department of Justice, had an opportunity to meet with the leadership and senior managers of DBHDD, reviewed Departmental data reports and visited a number of programs around the State. Specifically, I met twice with Commissioner Berry and his Chief of Staff Judy Fitzgerald. I also met a number of senior managers individually or in group settings. All of these meetings were in person with the exception of a phone conversation with Ms. Atkins. The following are the members of the Department I met with:
• Dr. Emile Risby, Chief Medical Officer • Ms. Monica Parker, Director of Behavioral Health • Dr. Chris Gault, Director of Performance Management and Quality Improvement • Dr. Terri Timberlake, Director of Adult Mental Health Services • Mr. Dan Howell, Director of Developmental Disabilities • Mr. Eddie Towson, Developmental Disabilities Quality Management Director • Mr. Mark Baker, Director of Recovery and Transformation • Mr. Charles Fetner, Region 1 Coordinator • Ms. Debbie Atkins, the newly appointed Director of Crisis Services.
I also visited the following programs around the State:
• GCSS’s Crisis Respite Home in Rome; I met with their mobile crisis staff • Highland Rivers Community Service Board’s Assertive Community Treatment Team where
I met with members of the ACT Team • Benchmarks Human Services’s mobile crisis team where I met with their regional manager
and members of the mobile crisis team • The Georgia Crisis and Access Line (GCAL) where I met with their Executive Director • Grady Health Systems’ main site; I toured their Emergency Department and short-term
inpatient unit and met with the Executive Director of their mental health services and his staff • McIntosh Trail Community Service Board’s Behavioral Health Crisis Centers (BHCC); I met with staff and observed their admission process and crisis stabilization unit • Advocates in a meeting convened by legal advocates.
1
	  

I am grateful to Pamela Schuble, Director Settlement Services, for her assistance in providing me with a number of documents that described the various crisis services as well as data reports on service utilization. In addition, Ms. Schuble was very helpful in arranging my various meetings and visits throughout the State.
Findings
Developmental Disabilities
1. Mobile Crisis Teams for individuals with Developmental Disabilities (A) By July 1, 2012, the State will have six mobile crisis teams for persons with developmental disabilities. The State does have six crisis teams, one for each region of the state, which are operated by four providers. In FY’15, the mobile crisis teams provided 1,128 episodes of care to 556 individuals. The data provided indicated that just over 80% of the mobile crisis calls resulted in crisis stabilization and that 225 or 20% of the interventions led to a referral for inpatient services. All of the developmentally disabled individuals admitted to an inpatient setting had a co-occurring psychiatric diagnosis.
2. By July 1, 2014, the State will have established twelve Crisis Respite Homes with four beds each. These forty-eight beds will provide respite services to persons with developmental disabilities and their families. The purpose of the Crisis Respite Homes is to offer time-limited services to an individual due to their need for support and protection. Homes are required to have capacity for four or less individuals and each individual is to have their own bedroom. The Crisis Respite Homes are designed to offer a stay of up to seven days. If an individual requires a longer length of stay, the Regional Office can provide authorization for an extended stay. In my review of the data for the Crisis Respite Homes, there are concerns about utilization of these beds. The State only established eleven Crisis Respite Homes and is not in compliance with this Provision of the Agreement. Therefore, the Crisis Respite Homes have a total of fortyfour beds that are to provide an average length of stay of up to seven days. I have calculated the annual capacity of the Crisis Respite Homes by using the following methodology:
Dividing 365 by 7, each bed can have 52 admissions; however, there will be reasons such as an extended length of stay or other reasons that a bed will not be available. Therefore, I have used a 75% expected utilization rate which would equal 39 admissions/per bed/year and multiplying that by 44 would provide a capacity of 1,721admissions per year. The State reported a total of 109 admissions for 88 individuals to the Crisis Respite Homes for FY’15 which would be 6% of the admissions capacity. Another way to look at the Crisis Respite Home utilization is to analyze the bed occupancy rates: The 44 beds have the capacity to offer 12,045 bed days, which was determined by multiplying 44 beds x 365 days x 75%.
2
	  

In FY’15, the State reported that there were 9,045 bed days used in crisis beds or 75% of the capacity bed days. The reason for the difference between admissions and bed utilization is that there are a number of individuals who are staying in the Crisis Respite Homes for long periods of time, some for years. The average length of stay for all admissions in FY’15 was sixty-eight days. There were sixteen individuals who had more than one admission. (Dr. Heick has documented a more in-depth review of six of these individuals.) The data were also analyzed to get an understanding of how the utilization of the beds compared to the intended goal of a 7 to 10 day stay. The data were presented in a manner that only allowed for an accurate analysis of length of stay per admission episode for individuals with just one admission. The one admission population represented the majority of users as they were 72 or 82% of the 88 individuals who used the crisis beds. The analysis of the data found the following:
• 9 of the individuals or 12.5% had stays of 250 days or more • 30 of the individuals or 42% had stays of 90 days or more • 55 of the individuals or 76% had stays of more than 10 days
Therefore, less than a quarter of those admitted to the crisis beds had stays within the intended use of the service. This data should encourage the State to review the intended purpose of the crisis beds to determine the reason(s) for the extended stays and determine if there is a need for a different type of service to better serve the relatively small number of individuals using the crisis beds.
Other components of the crisis system for individuals with development disabilities do not appear to be serving a significant number of individuals. In-home services for individuals served by the mobile team and who did not require a crisis home admission accounted for 58 individuals who received 138 in-home services during the course of FY’15.

Mental Health

3. Crisis Service Centers (CSCs) are to provide walk-in services, staffed by clinicians, 24 hours per day, 7 days per week to serve individuals in crisis, including individuals with cooccurring illness. The obligation is that the State will have six CSCs in operation by July 1, 2015.

CSCs are now known as Behavioral Health Crisis Centers (BHCCs). As of June 30, 2015, the State had six BHCCs opened. They are:

• River Edge Crisis Service Center • Bradley Center • Aspire • Georgia Pines • BHS of South Georgia • McIntosh Trail • Pathways

opened 4/12 opened 7/1/13 opened 8/1/13 opened 1/17/14 opened 1/17/14 opened 6/4/15 opened 6/30/15

The BHCCs are all operated by a Community Service Board (CSB) provider and are full service crisis centers that provide assessments for individuals who voluntarily walk-in as well as for individuals brought by law enforcement for an involuntary evaluation; provide observation beds; and offer short-term (7-10 day) crisis stabilization beds.

3
	  

In addition to the development of the BHCCs, the Department is making a concerted effort to improve the system’s ability to serve, in an outpatient clinic setting, individuals experiencing a behavioral health urgent need. In early FY’15, the Department contracted with MTM services to provide year-long technical support to both Regional staff of the Department as well as Community Service Boards (CSBs). An aspect of the technical assistance was training on both clinical and financial strategies for the CSBs to offer open and timely access to the residents in their community seeking immediate services. To support this commitment of expanding same day services, the State’s policy encourages the CSBs to have open access as stated in Policy 01201 “DBHDD strongly encourages same day access to services.”
In addition to the open access initiative, the State tracks the time it takes for an individual referred for Assertive Community Treatment (ACT) to be admitted to an ACT program. The goal is 70% or more should be admitted within three days. The State’s performance exceeds this expectation. In the first three quarters of FY’15, approximately 73% of the referrals were accepted into the program within three days.
4. By July 1, 2014, the State was to establish a total of three additional Community Stabilization Programs (CSPs). As of July 1, 2015, there are twenty agencies that provide 448 CSP beds. All CSPs are operated by CSBs and six of the programs are contained within a BHCC. A major goal of the CSPs is to offer community-based services as an alternative to the use of a state hospital.
A critical component of the CSPs is their ability to accept involuntary admissions. In many states, general hospitals provide acute psychiatric care for both voluntary and involuntary admissions. In Georgia, there appears to be a minimum number of acute psychiatric units within general hospitals. While there are a number of private psychiatric hospitals in the State, their capacity to provide acute inpatient care to Medicaid recipients is limited by the Institutions for Mental Diseases (IMD) restrictions, as IMDs are prohibited from receiving Medicaid reimbursements for individuals aged twenty-two to sixty-four. Therefore, the CSPs perform many of the functions that you would find in a general hospital and the average length of stay of just fewer than eight days is very similar to acute general hospital length of stays.
5. As of July 1, 2011, the State shall retain funding for thirty-five beds in non-State community hospitals.
The vast majority of the thirty-five contract beds are used in Region 1 and they provide on average 2,200 episodes of care and a length of stay of just around six days.
It appears that the use of the CSPs and State contracts with hospitals have been successful in shifting the locus of acute care from the state hospital to the community. Using data from Region 1 as an example, as capacity of the CSPs and community hospital beds has increased, state hospital admissions declined. Region 1 reported: “In FY’10, of the people who needed inpatient level of care or that of a CSU, 25% were served in a state hospital. In FY’15, less than 2% of the Region 1 people were admitted to a State Hospital.”
6. The State shall establish a statewide Crisis Call Center that shall be staffed by skilled professionals.
4
	  

Such a call line exists and is operated by Behavioral Health Links (BHL) and known as the Georgia Crisis & Access Line (GCAL). GCAL receives on average between 20,000 and 25,000 calls per month. GCAL is well known among the behavioral health providers in the State and is an essential component of the Georgia crisis system. GCAL publishes regular reports on its website (www.behavioralhealthlink.com) that document the reasons for calls, time of the call, demographics about the callers, locations of the callers, and the timeliness of services, including the number of business days for a scheduled appointment. GCAL and the providers have established procedures that allow GCAL staff to schedule appointments at the most appropriate Community Service Board location. In addition, GCAL deploys the mental health mobile crisis teams and the teams stay in close contact with GCAL during their response and report back to GCAL when the crisis situation is resolved. This allows GCAL to report on the amount of time it takes for a crisis episode to be resolved and to provide telephonic assistance to the team. GCAL is well integrated into Georgia’s public behavioral health system and, as of July 1, 2015, GCAL is a component of Georgia’s new Administrative Services Organization (ASO) contract.
7. By July 1, 2015, the State shall have mobile crisis services within all 159 of its counties and the teams should have an average response time of one hour or less. The data for the first eleven months of FY’15 indicate that the State has met this objective. The data through May 2015 indicate the following:
• There is an average of just over 1,500 mobile crisis deployments per month. • The average response time in FY’15 was 55 minutes with only one month having an average response of more than 60 minutes, which was 73 minutes for the first month of the fiscal year. Between December and May of this past fiscal year, the average response time was slightly above fifty-one minutes, which would be a 30% improvement from July of 2014.
• Regions 2 and 3 represent 46% of all mobile crisis responses.
8. By July 1, 2015, the State will establish a total of eighteen crisis apartments with the capacity to serve two individuals with Serious and Persistent Mental Illness (SPMI) at a time.
Based on reporting from the State, there are nineteen apartments that provide thirty-seven beds. In FY’15, 313 individuals accessed these beds. Based on a one day survey for June 30, 2015, twenty of the thirty-nine beds were occupied.
Grady Health Systems plays a major role in providing acute care and crisis services to residents of Fulton and Dekalb Counties. In FY’13, its comprehensive services provided almost 40,000 episodes of care to a population that is either uninsured (65%) on Medicaid (30%) or Medicare (5%). The majority of the behavioral health clients served through Grady enter care through the emergency room, brought by either the Emergency Medical Service (EMS), law enforcement or voluntarily walk-in. In any given month, approximately 700-800 individuals are seen in the emergency room and about 40% are diverted to a more appropriate level of care. Grady also operates a thirty-two person capacity short-term unit (up to 72 hours) that serves between 400-
5
	  

500 episodes of care per month and operates its own twenty four bed inpatient unit. In addition, Grady Health Systems operates very active outpatient services that include same day urgent care access, Assertive Community Treatment (ACT) teams as well as psychosocial rehabilitation and peer support programs. Since there is no CSB in Fulton County, Grady Health Systems works directly with the State’s regional structure.
Recommendations
1. The management of crisis services has been dispersed throughout the Department and there has not been a single person whose job is to manage and help develop a crisis system. The Department’s senior management is aware of these issues and has recently created a new position to manage all of the crisis services. This new hire began her employment the first week of July 2015 and, hopefully, with the right support, she will be able to provide the much needed leadership and organization of the crisis system. There is a wealth of data available as well as a number of significant activities taking place to ensure that Georgia residents have access to timely quality crisis services. It is now up to the Department leadership to ensure that there is a robust comprehensive crisis system in place that produces regular data reports that are widely shared; that the reports measure the critical components of the system including, but not limited to, timely access to care and the utilization of community based crisis services; that problems are identified in a timely manner and addressed; and that roles and responsibilities for problem solving are well known throughout the Department, with other State agencies, as well as with family members, advocates, law enforcement and other key stakeholders.
2. Addressing the crisis service needs for individuals with a developmental disability must be a priority.
• Based on the relatively small number of individuals seen more than once by the mobile crisis teams (556) as well as the number of individuals staying far more than the initial seven day limit of the Crisis Respite Homes, a process needs to be put place for formal planning and problem solving for individuals with developmental disabilities who have complex needs and challenges that must be addressed in order for them to have a positive quality of life in the community.
• While recognizing the geographic challenges of a large state such as Georgia, the State should evaluate if it is offering the right range of services to meet the crisis and immediate needs demands of individuals with developmental disabilities. The State should re-evaluate the way it offers services to see what services are missing and what should be retained. For example, is it cost effective to offer forty-eight beds through the Crisis Respite Homes that have such low utilization rates or are there more efficient ways to utilize these resources that could better address the needs of individuals with developmental disabilities.
6
	  

3. The Department should continue to support the CSBs to provide open access. The State should determine if it should strengthen its current policy of strongly encouraging same day access to services and, if it does, the State needs to understand the fiscal impact to CSBs as well as the possible return on this investment to the State on using less costly ambulatory services that have some potential to reduce more expensive services offered by BHCCs, CSPs, or other acute inpatient service.
4. The State should determine the number of CSP beds needed statewide and also review if there is any potential revenue from third-party payers that may be available to CSPs.
5. Finally, I also want to note that in meeting with about fifteen individuals representing providers, family members, law enforcement, advocates and interested parties there was an overwhelming negative sentiment expressed about challenges related to access to care, the lack of data available and the perceived absence of a formal process for problem solving. A number of the participants noted that if they reached the right person in the Department that the immediate concern would get addressed but reported not being aware of formal problem solving processes. It would be very beneficial for the Department to address these concerns about access and information and develop viable ways of sharing data about the use of crisis services and their effectiveness with the larger community.
Based on my review of the crisis system, it appears that there has been significant progress made on meeting the mental health objectives established by the Settlement Agreement. The locus of care has undergone a major shift from the state hospital to community services; the range of community-based services has greatly expanded; and the State has a structure in place to track the critical components of a crisis system. However, there is still much work to be done for individuals with a developmental disability. Hopefully, with the establishment of the new Director of Crisis Services, there will be a focused and intensive effort to most effectively address the needs of the developmentally disabled individuals who are in need of a community based crisis service.
Stephen T. Baron Consultant to the Independent Reviewer September 12, 2015
7
	  

State Health Authority Yardstick (SHAY)
 Report for Georgia Assertive Community Treatment (ACT) Services

Angela L. Rollins, PhD
 August 12, 2015

1

Introduction
The purpose of this report is to inform the Independent Reviewer regarding Georgia’s compliance with their Settlement Agreement with the US Department of Justice, regarding implementation of Assertive Community Treatment (ACT). The Independent Reviewer requested comments on the following specific topics: • Assessment of Georgia’s compliance with the Settlement Agreement with the US
Department of Justice • Assessment of Georgia’s support for Assertive Community Treatment (ACT)
services using the State Health Authority Yardstick (SHAY) • Georgia’s overall progress with ACT implementation over the past year (including
progress on recommendations in the 2014 report), as well as more broad reflections regarding progress over the past five years • Recommendations for further improvements and sustainability of progress.
Key recommendations in the 2014 report that were a focus in this year’s assessment, included: • Improving sustainability: focus attention on being able to answer key questions
about ACT’s impact and improving financial sustainability by maximizing federal funding sources for ACT (e.g., Medicaid reimbursement) • Encouraging teams to use independent living housing options for consumers • Improving recovery potential for ACT consumers by maximizing various ACT specialist positions (e.g., employment specialists work on competitive employment placements for ACT consumers; maximizing the use of peer specialists), including onsite technical assistance • Strengthen the consequences within corrective action plans, asking for agencies to demonstrate progress on the DACTS item that is deficient.
Data Collection Informing this Report: The author of this report spent four days in July 2015 completing a series of interviews with a variety of stakeholders in the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) system, including: • Commissioner, DBHDD • Chief of Staff, DBHDD • Director, Division of Behavior Health, DBHDD • Director, Adult Mental Health, within Division of Behavioral Health, DBHDD • DOJ ADA Settlement Coordinator • ACT fidelity assessment team, DBHDD • Director, Office of Performance Analysis (under new Division of Performance
Management and Quality), DBHDD • Former APS and now current Beacon (external Medicaid monitoring agency) care
managers for ACT services, their team leader • Director, Office of Recovery Transformation, DBHDD • External trainers who provided ACT-specific recovery trainings during the course of
the last year
2

• Community stakeholders including representatives from a number of mental health advocacy organizations and criminal justice system representatives (e.g., public defender’s office)
The author also reviewed relevant documentation provided, including but not limited to: • State Plan for ACT (from 2013) • ACT service definition • Georgia Program Toolkit for ACT • ACT fidelity reports and fidelity score tracking tables, ACT consumer census tables;
ACT team plans of correction for low fidelity and correspondence, corrective action plan updates • Log of all ACT-related trainings, webinars, team leader retreat (with sign-in sheets) and some ACT training materials; documentation of ACT team technical assistance consultations and shadowing experiences • ACT client outcomes reporting templates and reports • APS audit tool items and sample reports; Summary of APS ACT authorizations by team and statewide • Agendas and minutes for each ACT Coalition meeting held during the last fiscal year • Memos documenting ACT policy changes during the last fiscal year
During the July 2015 visit, the author conducted site visits for three ACT teams, including interviews with team leader, supervisors, team staff, and consumers. In total from October 2014 to July 2015, the author conducted site visits in all six regions covering ten separate teams (one team visited twice for eleven total visits). Most teams were selected for review based on low fidelity scores or other performance concerns, while some teams were selected to establish broader coverage of site visits to extend beyond Region 3 (Metro Atlanta).
Given the 2014 recommendations, additional contact with DBHDD staff this fiscal year included a series of conference calls regarding improving consumer outcomes monitoring for ACT, a key recommendation in previous annual reports for quantifying ACT’s impact and influencing potential sustainability of the program after the Settlement Agreement period.
As in previous years, interviews with both DBHDD staff and with various stakeholders outside DBHDD were productive, frank, and emphasized a willingness to discuss struggles with ACT implementation and openness to ideas about improvements. Much emphasis in this author’s inquiries are not a concern over basic ACT implementation, which has been solidly in place since about 2012, but on continuing to improve existing supports to strengthen weak areas and to think more strategically about sustainability for ACT after the Settlement Agreement period ends.
3

Brief Summary of Report Findings: Although it does not impact a SHAY score or compliance with the Settlement Agreement, I observed repeatedly that consumers served in the metro Atlanta area have a higher level of functional losses in a variety of life domains that compound psychiatric symptom acuity. For example, in metro Atlanta, consumers often are coming to teams in a state of chaos, having been discharged from institutions (e.g., jail, prison, hospitals) that often present limitations in housing options (e.g., landlords do not like to rent to persons with felonies), with no identification, no income, no insurance of any kind, and often with no experience with the provider organization. In contrast, this may occasionally happen in less urban areas of Georgia, but it seems that their new clients are more likely to be previously known to the providers (e.g., consumers experienced hospitalizations while receiving the provider’s less intensive services or consumers enrolled after long periods of discharge planning with state hospital staff– both examples still of a very appropriate use of ACT services). Of course, every ACT team experiences enrolling consumers across this spectrum, but the proportions of the client base in each category seem to be where the distinctions emerge in my observations. These observations could offer important context for thinking about the future penetration of ACT, supports needed for various types of teams (e.g., urban, forensic-focused), and time needed to engage consumers properly. Stakeholders should be aware of the fidelity standard to take no more than six new clients each month (with less being ideal). This is particularly important in cases where newly enrolled ACT consumers require extensive time in relationship building and supplying basic necessities as the foundation for recovery. The role of peer specialists on these teams is critical for engaging consumers and building strong helping relationships. One recommendation is to encourage these teams to use multiple peers for engaging consumers.
The state is in compliance with regard to ACT implementation, though several opportunities for improvement remain.
Staff turnover seemed to be a recurring theme in both fidelity scores and in observations of teams. In some cases, turnover has a cascade effect on other ACT fidelity items, such as low staffing results in lower frequency of contacts or loss of some programming (e.g., loss of the substance abuse specialist has an impact on other substance abuse service items). Teams are encouraged to offer or require shadowing experiences prior to making job offers to ensure that candidates know what they mean by community-based services (e.g., it is more than just non-hospital based care). In some cases, however, turnover of staff who are a poor fit for ACT or recovery-oriented ACT followed by the hire of staff who are a better fit has resulted in positive overall change for at least a couple of teams in the state.
Frequency of contact and work with informal support network items could also be improved across the state. As stated above, frequency of contact is likely impacted by high turnover. In addition, the DACTS scoring for this particular item are quite stringent. However, further technical assistance with teams could identify other barriers to frequent contacts needed for ACT. DBHDD documentation of technical assistance for
4

some teams indicates discussion of collaborative documentation techniques which can reduce the burden of documentation outside of clinical contacts and “free up” some time for direct work with consumers. More work in identifying barriers to frequent contact and possible solutions at the individual team level is warranted. Work with informal support network is another item where the DACTS standard is very high and difficult to meet for even good teams. In my July visits, I observed two ACT teams engaging with consumers’ families in important and meaningful ways, dampening my concern about this particular item. These teams might be great examples to highlight to other teams in an ACT coalition meeting or another gathering (e.g., the team leader retreat) to bolster other teams’ meaningful contact with informal support networks of consumers in support of recovery.
Strengths of ACT implementation include a steadily progressing infrastructure largely supportive of ACT:
• Robust fidelity monitoring system and team that are found to be competent and helpful to providers, as well as regional office staff who spend a great deal of time onsite providing support and guidance to ACT teams
• Continuous improvement in state-level fidelity indicators, including improvements in the state mean and median fidelity scores and reduction in the number of teams scoring below a 4.0
• Strong leadership and attention focused on ACT policies from DBHDD team • Strong funding package for ACT services remain, although there is concern
about the potential for changes with no fee-for-service contracting and the end of the Settlement Agreement • Statewide emphasis on using ACT to serve the intended population, i.e., to serve the state’s most vulnerable consumers with ACT, including consumers with substantial histories of long-term state psychiatric hospitalizations (see case example described under SHAY item 4) or other forms of institutional care.
Areas for improvement remain, including: • Sustainability concerns with regard to outcomes monitoring and Medicaid. o Although the State did a small evaluation of the impact of ACT on hospitalization over time, this work needs to continue, with an examination of other outcomes, wider sampling methods, and answering other key questions from stakeholders. In addition, I met several consumers with success stories that exemplify the personal impact on consumers underlying the quantitative outcomes in graphs. Both methods should be highlighted for various stakeholder groups in a way that depicts what ACT services can do in Georgia. o Some sites reported improvements in Medicaid penetration across ACT caseloads, while others still struggle. The State should continue to work with providers using tools developed for fiscal planning and offering Medicaid enrollment support via regional office staff. • Recovery orientation of ACT should continue to be a focus, although much effort was exerted in training and onsite technical assistance and found useful this past year by several teams. Future work could include engaging teams or individual
5

staff that exemplify recovery-oriented ACT to work with other teams, such as offering peers the opportunity to network and shadow strong peers in the field (e.g., one peer observed on a site visit was particularly good at engaging a new consumer)
o Emphasize independent living options for ACT consumers – some teams still seem resistant to this idea while others appear to be doing a good job of helping consumers live independently, or semi-independently after periods of long hospitalization.
o Emphasize supported employment and good job development skills for ACT employment specialists. Although the role of the ACT employment specialist was properly clarified this year, most ACT employment specialists continue to struggle with how to do this work (e.g., how to perform proper job development for this population) and maintain productivity standards.
o Re-emphasize the goal of ACT services as person-centered, relationshipcentered, intensive mental health services as opposed to getting consumers to take medications. These sentiments vary widely across teams and across staff within a single team.
• Although progress in the specification and follow-up with corrective action plans was noted this year, continued progress should be to define consequences for repeated non-compliance with DACTS standards in the event this becomes necessary
Comment on Compliance with Settlement Agreement
This author finds that the State of Georgia is in compliance with the Settlement Agreement requirement to establish twenty-two ACT teams by July 1, 2013. As of the end of June 2015, the twenty-two teams collectively were serving 1,477 consumers, according to the state’s tracking report, an increase over 2013 and 2014 census data. One team reported that these census tracking methods are conservative and exclude other ACT consumers served by teams, such as when an ACT authorization is pending but the consumer is actively receiving ACT services. From the APS authorization decisions report received from DBHDD covering FY15, five hundred ninety seven consumers were newly authorized for ACT services, while three thousand thirty-four received ongoing authorizations and sixteen received an updated authorization. Although in combination these authorization figures would overestimate the number of unique consumers served by ACT teams over FY15 (i.e., some new enrollees may also be counted when renewed under an ongoing authorization), we could estimate that 1,409 on census in June 2014, plus 597 new ACT enrollment authorizations in FY15, would total over 2,000 unique ACT consumers likely served by the twenty-two ACT teams in FY15. The twenty-two teams have an average Dartmouth Assertive Community Treatment Scale fidelity score of 4.2, a slight improvement over FY13 and FY14 averages (4.1). Only two of the twenty-two teams scored below a 4.0, another improvement over previous years where at least 5 teams would score below 4.0. No single team scored below 3.9, which is still a respectable ACT score on the DACTS. As indicated in my FY14 report, a score of 3.9 is a high score to obtain for any non-ACT
6

program. The State is also in compliance with regards to additional requirements related to the composition of ACT teams with multidisciplinary staff, including a dedicated team leader, and the range of services to be provided by the team, including the availability of 24/7 crisis services. Despite finding evidence for compliance, several improvements to ACT services are still recommended based on both fidelity scores and observations by this author and/or other stakeholders and are summarized above and detailed in individual SHAY items below.
7

Findings from the State Health Authority Yardstick Background on the SHAY Assessment: The SHAY was designed by a group of mental health researchers and implementers who were interested in assessing the facilitating conditions for the adoption of EvidenceBased Practices (EBPs) created by the State’s (mental) health authority. The focus of this report is the state’s implementation of Assertive Community Treatment (ACT) services. The SHAY is a tool for assessing the State Health Authority responsible for mental health policy in a given state. For the purposes of this assessment, Georgia’s DBHDD has been identified as the State Health Authority. SHAY Findings Based on the information gathered, the author assessed each category of the SHAY as follows.
8

1. EBP Plan

The SMHA has an EBP plan to address the following:


(Use boxes to identify which components are included in the plan)


Note: The plan does not have to be a written document, or if written, does not

have to be distinct document, but could be part of the state’s overall strategic plan.

However if not written the plan must be common knowledge among state

employees, e.g. if several different staff are asked, they are able to communicate

the plan clearly and consistently.

X

1) A defined scope for initial and future

implementation efforts,

X

2) Strategy for outreach, education, and consensus

building among providers and other stakeholders,

X

3) Identification of partners and community

champions,

X

4) Sources of funding,

X

5) Training resources,

X

6) Identification of policy and regulatory levers to

support EBP,

X

7) Role of other state agencies in supporting and/or

implementing the EBP,

X

8) Defines how EBP interfaces with other SMHA

priorities and supports SMHA mission

X

9) Evaluation for implementation and outcomes of the

EBP

X

10) The plan is a written document, endorsed by the

SMHA

Score

1. No planning activities

2. 1 – 3 components of planning

3. 4 – 6 components of planning

4. 7 – 9 components

X

5. 10 components

Comments:

The State Plan for ACT (written in 2013) is thorough and includes substantive policies supportive of ACT.

9

2. Financing: Adequacy Is the funding model for the EBP adequate to cover costs, including direct service, supervision, and reasonable overhead? Are all EBP sites funded at the same level? Do sites have adequate funding so that practice pays for itself? Note: Consider all sources of funding for the EBP that apply (Medicaid fee-forservice, Medicaid waiver, insurance, special grant funds, vocational rehabilitation funds, department of education funds, etc.) Adequate funding (score of 4 or 5) would mean that the practice pays for itself; all components of the practice financed adequately, or funding of covered components is sufficient to compensate for non-covered components (e.g. Medicaid reimbursement for covered supported employment services compensates for non-covered on inadequately covered services, e.g. job development in absence of consumer). Sources: state operations and budget, site program managers. If financing is variable among sites, estimate average.

2014 – losses reported by
two agencies (5
teams) 2015 – no
specific losses were reported 2013

Score: 1. No components of services are reimbursable 2. Some costs are covered 3. Most costs are covered
4. Services pays for itself (e.g. all costs covered adequately, or finding of covered components compensates for non-covered components)
5. Service pays for itself and reimbursement rates are attractive relative to competing non-EBP services.

Comments:

At each of the ten team visits, I attempted to make contact with at least one provider representative knowledgeable about ACT financing and contracting. While a couple of ACT providers had estimated financial losses on ACT services in FY14, I received no specific loss estimates when speaking with provider agency managers this year. Most managers did express some fear that with new contracting policy changes at DBHDD, they may struggle to “break even” on ACT services, but I received no reports of specific loss totals to date in this fiscal year. Several teams indicated that rates of Medicaid for ACT consumers continue to be a concern, although many teams reported continued, gradual improvements in these rates. Many teams continue to appreciate the efforts of Medicaid Eligibility Specialists at each DBHDD regional office (an example of State technical assistance regionalized). A couple of teams also indicated some ACT

10

consumers have a form of Medicaid that does not cover ACT services. One example given to me was Wellcare, meant for children and families. Although some agencies were not concerned about the new redesign and accountability measures included in DBHDD’s redesign, a few expressed concerns that much of the details of new contracting procedures have yet to be articulated. Other agencies continue to cite the expense of some positions required by ACT services (e.g., psychiatrist effort) and whether they can sustain ACT services over the long-term with even minor cuts to state contracts because of these expenses required by the model. Given that the majority of concerns expressed this fiscal year seemed to come from fears about future reductions in revenue, rather than current revenue, I am concluding that ACT services are currently cost neutral for the majority of ACT teams. I continue to recommend DBHDD guard the financial sustainability of ACT. Examples include: continuing to use staff financial planning tools with agencies statewide (moving beyond piloting with a few teams), considering urban/rural contextual differences that impact Medicaid penetration rates (i.e., urban consumers who may require months of ACT services simply to get documentation in place to apply for Medicaid, in addition to time spent appealing a denial or waiting for approval), identifying some mechanism for presumptive Medicaid eligibility for ACT consumers, and continuing to document the value of ACT services (e.g., statewide quantitative reports on hospitalizations as well as rich, qualitative stories about recovery with ACT services – see my example under SHAY item 4) for stakeholders to protect Georgia’s current fiscal supports for ACT.
11

3. Financing: Start-Up & Conversion Costs
Are costs of start up and or conversion covered, including: 1) Lost productivity for staff training, 2) hiring staff before clients enrolled (e.g. ACT), 3) any costs associated with agency planning and meetings, 4) changing medical records if necessary, 5) computer hardware and/or software if necessary, etc. Note: If overall fiscal model is adequate to cover start-up costs then can rate 5. If financing is variable among sites, estimate average. Important to verify with community EBP program leaders/ site program managers.

Score:

1. No costs of start-up are covered

2. Few costs are covered

3. Some costs are covered

4. Majority of costs are covered

X

5. Programs are fully compensated for costs of conversion

Comments:
As mentioned in previous reports, ACT start-up costs appear to be covered with larger State contracts in Year 1 supplemented by ACT Medicaid reimbursement. The teams reporting losses in FY14 were in their second year of implementation or beyond.

12

4. Training: Ongoing consultation and technical support

Is there ongoing training, supervision and consultation for the program leader

and clinical staff to support implementation of the EBP and clinical skills:

(Use boxes to indicate criteria met.)

Note: If there is variability among sites, then calculate/estimate the average

visits per site.

X

1) Initial didactic training in the EBP provided to clinicians

(e.g. 1-5 days intensive training)

X

2) Initial agency consultation re. implementation strategies,

policies and procedures, etc. (e.g. 1 - 3 meetings with

leadership prior to implementation or during initial training)

Getting

3) Ongoing training for practitioners to reinforce application

better but

of EBP and address emergent practice difficulties until

still needs

they are competent in the practice (minimum of 3 months,

support for

e.g. monthly x 12 months)

key areas

More this

4) On site supervision for practitioners, including observation

year, will

of trainees clinical work and routines in their work setting,

need to

and feedback on practice. Videoconferencing that

continue

includes clients can substitute for onsite work (minimum of

3 supervision meetings or sessions for each trainee, e.g.

monthly x 12 months)

X (ACT

5) Ongoing administrative consultation for program

Coalition)

administrators until the practice is incorporated into

routine work flow, policies and procedures at the agency

(minimum of 3 months, e.g. monthly X 12 months)

Score

1. 0-1 components

2. 2 components

3. 3 components

X

4. 4 components

5. 5 components

Comments:

In the last year, I heard several reports from the field regarding more training and ongoing consultation being provided to teams. Documentation provided by DBHDD indicated more than ten different training event topics in addition to the community mental health symposium, the ACT team leader retreat, and technical assistance offerings. Some topics of note that indicate a response to the FY14 report: ACT vocational specialist training and shadowing experiences, motivational interviewing, integrated dual disorders treatment, forensic ACT, housing first, and recovery-oriented systems of care.

13

Representatives from the Office of Recovery Transformation worked onsite with many teams during the course of fidelity assessments. For instance, they spent time working with some peer specialists to try to bolster their confidence and define their role within the team. Jon Ramos was invited back to Georgia to work with some struggling teams and continued to hold conference calls to help them strategize engaging more resistant consumers. Teams spoke positively of this ongoing consultative relationship. Teams highlighted the responsiveness and competence of DBHDD fidelity assessors and regional office staff who work directly with the teams. Building this potential to provide consultation and training with existing Georgia staff is ideal and increases sustainability.
Work should continue in areas outlined in last year’s report: improving the general recovery culture of teams, improving the function and skills of ACT employment specialists, improving the function and integration of peer specialists, and emphasizing independent living options over congregate living situations.
For recovery culture, ongoing work should include emphasis on person-centered culture of the ACT team, including an emphasis on relationship building as the foundation for ACT (as opposed to a sole emphasis on medication or other treatment compliance). Teams might also benefit from work on strengths-based assessment methods. Recovery trainers hired by DBHDD also suggested engaging some of the ACT teams with higher recovery orientation to lead initiatives and provide examples for other Georgia teams, as opposed to out of state trainers bringing out of state examples.
Employment specialist roles were a point of contention this past year that was cleared up by DBHDD. Work should continue to help guide agency leadership in thinking about how best to use these positions for supported employment work, as opposed to case management. Some SE specialists, for example, reported difficulty working on employment issues for ACT consumers because their agency’s productivity standards would not be met (i.e., many SE tasks would not be billable services under ACT Medicaid). Other employment specialists will require ongoing consultation and training to bolster their skills in job development. Many SE specialists are still simply searching for existing open positions as opposed to creatively networking with employers around consumer job skills and preferences.
Some teams continue to struggle with placing consumers in independent housing while others seem to do well with identifying independent housing options. In one positive case example, I observed a consumer with both psychiatric and developmental disabilities who had spent most of the last fifteen years in a state hospital with a few periods in the community lasting no more than three months. During her last four-year stay in the state hospital, the ACT team, their agency’s hospital liaison, DBHDD regional staff, and hospital staff worked on a discharge plan that included ACT services, DD services (gradually decreased from several hours in the evening offered daily to just a few days per week offered currently), and her own apartment in a complex with some minimal staffing on evenings and weekends (36 hours per week). This consumer proudly took me on a tour of her apartment and talked about how well she was doing living on her own with ACT services. Although she wants to move and graduate from
14

ACT services eventually, she is proud of her progress. The team reported that DD service providers were hesitant to transition her out, but everyone (including the hospital staff) agreed to try to discharge with the addition of ACT services. The ACT team made ample use of the State’s Community Transition Planning funding mechanism to fund their discharge planning and engagement efforts with the consumer. Also, in the six months since her discharge from the state hospital, she has only had one emergency room visit for a medical issue (i.e., no hospitalizations). This was a touching example of how ACT and other services provided by the Settlement Agreement have profoundly changed a life. This was just one example of many I have observed over the last five years, but one that I am sure would be compelling to Georgia stakeholders, if disseminated more widely. A few teams have requested additional help with serving consumers with both psychiatric and developmental disabilities, some with extensive legal histories and behavioral issues. In the case above, the various providers had to coordinate and layer various services, but the ACT team leadership seemed to be key in instigating the discharge to community placement. Relevant to this SHAY item, this particular ACT team could be asked to talk about their approach for this person and how teams can capitalize on ACT services to serve consumers who might otherwise remain institutionalized and persuade skeptical hospital staff or other providers into trying out creative placements.
15

5. Training: Quality

Is high quality training delivered to each site? High quality training should
 include the following:
 (Use boxes to indicate which components are in place.
 Note: If there is variation among sites calculate/estimate the average number of components of training across sites.)

X

1) credible and expert trainer

X

2) active learning strategies (e.g. role play, group work,

feedback

X

3) good quality manual, e.g. SAMHSA Toolkit

X

4) comprehensively addresses all elements of the EBP

On demand only 5) modeling of practice for trainees, or opportunities to

shadow/observe high fidelity clinical work delivered

X

6) high quality teaching aides/materials including

workbooks/work sheets, slides, videos, handouts, etc.,

e.g. SAMHSA Toolkit/ West Institute

Score

1. 0 components

2. 1 – 2 components

3. 3 – 4 components

X

4. 5 components

5. All 6 components of high quality training

Comments:

Progress on this area of support for ACT has been maintained in FY15. Training topics were varied and noted SHAY item 4 above. Many topics addressing areas needing improvement (e.g., recovery orientation, SE, housing philosophy, integrated dual disorders treatment). ACT staff and their supervisors in the field continue to speak highly of the quality of training offered.

16

6. Training: Infrastructure / Sustainability

Has the state established a mechanism to allow for continuation and expansion of

training activities related to this EBP, for example relationship with a university training

and research center, establishing a center for excellence, establishing a learning

network or learning collaborative. This mechanism should include the following

components:

(Use boxes to indicate which components are in place)

X

1) offers skills training in the EBP

X

2) offers ongoing supervision and consultation to clinicians to

support implementation in new sites

X

3) offer ongoing consultation and training for program EBP

leaders to support their role as clinical supervisors and

leaders of the EBP

Variable

4) build site capacity to train and supervise their own staff in

the EBP

Improved

5) offers technical assistance and booster trainings in existing

EBP sites as needed

Non-state

6) expansion plan beyond currently identified EBP sites

funded teams

X

7) one or more identified model programs with documented

high fidelity that offer shadowing opportunities for new

programs

Some

8) SMHA commitment to sustain mechanism (e.g. center of

excellence, university contracts) for foreseeable future, and

a method for funding has been identified

Score

1. No mechanism

2. 1 – 2 components

3. 3 – 4 components of planning

X

4. 5 – 6 components

5. 7 – 8 components

Comments:

As noted above, ACT staff and supervisors generally have given positive reactions to the training offered by DBHDD in support of ACT. Greater attention this year was focused on both didactic/seminar trainings on recovery-oriented ACT and on-site technical assistance provided to teams by the Office of Recovery Transformation. ACT recovery trainers I spoke with (Hawkins and Stayne, both out of state trainers) also discussed ideas for incorporating Georgia ACT teams who do well with some recovery concepts (e.g., strengths-based assessments, person-centered planning rather than exclusive focus on medication compliance) to engage in training and technical assistance efforts. This suggestion would also address the issue of sustainability as some of this expertise would then be packaged and disseminated with existing in-state

17

human resources. I encourage DBHDD to brainstorm with Hawkins, Stayne, and/or others about these ideas for future work.
18

7. Training: Penetration What percent of sites have been provided high quality training (score of 3 or 
 better on question #5, see note below), and ongoing training (score of 3 or 
 better on question #4, see note below).
 Note: If both criteria are not met, does not count for penetration. Refers to
 designated EBP sites only.
 High quality training should include 3 or more of the following components:

1) credible and expert trainer,
 2) active learning strategies (e.g. role play, group work, feedback), 
 3) good quality manual (e.g. SAMHSA toolkit),
 4) comprehensively addresses all elements of the EBP,
 5) modeling of practice for trainees, or opportunities to shadow/observe high

fidelity clinical work delivered, 6) high quality teaching aids/ materials including workbooks/ work sheets,
slides, videos, handouts, etc. e.g. SAMHSA toolkit/ West Institute. Ongoing training should include 3 or more of the following components:
1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training),
2) Initial agency consultation re. implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training),
3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months),
4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months),
5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months).

Score: 1. 0-20%

2. 20-40%

3. 40-60%

4. 60-80%


X


5. 80-100%

Comments:

Penetration of basic ACT trainings is high. Some sites are looking forward to repeated offerings of other non-basic trainings (e.g., recovery-oriented services) so that more staff is able to attend.

19

8. SMHA Leadership: Commissioner Level

Commissioner is perceived as an effective leader (influence, authority,


persistence, knows how to get things done) concerning EBP implementation


and who has established EBPs among the top priorities of the SMHA as 


manifested by:


(Use boxes to indicate components in place.)


Note: Rate existing Commissioner, even if new to post.

Yes

1) EBP initiative is incorporated in the state plan, and or other

state documents that establish SMHA priorities,

Yes

2) Allocating one or more staff to EBP, including identifying

and delegating necessary authority to an EBP leader for the

SMHA,

Yes

3) Allocation of non-personnel resources to EBP (e.g. money,

IT resources, etc.),

Yes

4) Uses internal and external meetings, including meetings

with stakeholders, to express support for, focus attention

on, and move EBP agenda,

Yes

5) Can cite successful examples of removing policy barriers or

establishing new policy supports for EBP.

Score

1. 0-1 component

2. 2 components

3. 3 components

4. 4 components

X

5. All 5 components

Comments:

No concerns on state-level leadership. The Commissioner, Chief of Staff, and others have a strong grasp of policies to support ACT services. I did recommend to these leaders, and want to reiterate in this report, that the State work to continue to develop, refine, and disseminate both quantitative and qualitative reports on ACT’s positive impact for Georgia consumers. This information will be key in sustaining ACT services over the long-term.

20

9. SMHA Leadership: Central Office (GA DMH) EBP Leader

There is an identified EBP leader (or coordinating team) that is characterized by


the following: 


(Use boxes to indicate which components in place.) 


Note: Rate current EBP leader, even if new to post.

X

1) EBP leader has adequate dedicated time for EBP

implementation (min 10%), and time is protected from

distractions, conflicting priorities, and crises,

X

2) There is evidence that the EBP leader has necessary

authority to run the implementation,

X

3) There is evidence that the EBP leader has good

relationships with community programs,

Strong

4) Is viewed as an effective leader (influence, authority,

persistence, knows how to get things done) for the

EBP, and can site examples of overcoming

implementation barriers or establishing new EBP

supports.

Score

1. No EBP leader

2. 1 components

3. 2 components

4. 3 components

X

5. All 4 components

Comments:

The DBHDD Director of Adult Mental Health continues to be a strong leader for ACT, devotes more than 10% effort to ACT, has and exercises her authority to make policy changes related to ACT, and is observed to be very responsive to consumer, provider, and other community stakeholders with regard to ACT.

21

10. Policy and Regulations: Non SMHA State Agencies
The SMHA has developed effective interagency relations (other state agencies, counties, governor’s office, state legislature) to support and promote the EBP as necessary/appropriate, identifying and removing or mitigating any barriers to EBP implementation, and has introduced new key facilitating regulations as necessary to support the EBP. Ask SMHA staff and site leadership: What regulations or policies support the EBP implementation? What regulations or policies get in the way? Note: give most weight to policies that impact funding. Examples of supporting policies:
• Medicaid agency provides reimbursement for the EBP (If Medicaid not under the SMHA)
• The state’s vocational rehabilitation agency pays for supported
 employment programs

• The state’s substance abuse agency pays for integrated treatment for dual disorders
• Department of Professional Licensing requires EBP training for MH professionals
Examples of policies that create barriers:
• Medicaid agency excludes EBP, or critical component, e.g. disallows any services delivered in the community (If Medicaid agency not under the SMHA)
• State substance abuse agency prohibits integrated treatment, or will not reimburse for integrated treatment
• State substance abuse agency and state mental health authority are divided, and create obstacles for programs attempting to develop integrated service programs
• State vocational rehabilitation agency does not allow all clients looking for work access to services, or prohibits delivery of other aspects of the supported employment model
• Department of Corrections policies that create barriers to implementation of EBPs

Score

1. Virtually all policies and regulations impacting the EBP act as

barriers.

2. On balance, policies that create barriers outweigh policies that

support/promote EBP.

3. Policies that support/promote are approximately equally

balanced by policies that create barriers.

X

4. On balance, policies that support/promote the EBP outweigh

policies that create barriers.

5. Virtually all policies and regulations impacting the EBP 


support/promote the EBP.


22

Comments: The State has worked this year on helping teams secure Medicaid eligibility for consumers whenever possible, such as providing regional office staff to help problemsolve Medicaid issues. During the course of FY15, we also noted some confusion among ACT teams regarding the use of their supported employment specialists to provide the full array of supported employment services. After some discussion, DBHDD provided better guidance to ACT staff on this issue and the role of SE programs in supporting ACT SE specialists around skill building (i.e., SE programs outside of the ACT team are not to provide job placement or follow-along services to ACT consumers directly – this is the role of the ACT SE specialist).
23

11. Policies and Regulations: SMHA

The SMHA has reviewed its own regulations, policies and procedures to identify and remove or mitigate any barriers to EBP implementation, and has introduced new key regulations as necessary to support and promote the EBP. Ask SMHA staff and site leadership: What regulations or policies support the
 EBP implementation? What regulations or policies get in the way?
 Examples of supporting policies:

• SMHA ties EBP delivery to contracts • SMHA ties EBP to licensing/ certification/ regulation • SMHA develops EBP standards consistent with the EBP model • SMHA develops clinical guidelines or fiscal model designed to support
model EBP implementation Examples of policies that create barriers:
• SMHA develops a fiscal model or clinical guidelines that directly conflict with EBP model, e.g. ACT staffing model with 1:20 ratio
• SMHA licensing/ certification/ regulations directly interfere with programs ability to implement EBP

Score:

1. Virtually all policies and regulations impacting the EBP act as

barriers.

2. On balance, policies that create barriers outweigh policies that

support/promote the EBP.

3. Policies that are support/promote the EBP are approximately

equally balanced by policies that create barriers.

4. On balance, policies that support/promote the EBP outweigh

policies that create barriers.

X

5. Virtually all policies and regulations impacting the EBP

support/promote the EBP.

Comments:

DBHDD policies are clearly supportive of high quality ACT. Policy updates in FY15 included clarification on expectations for use of the Community Transition Planning funding mechanism and other standards of care for transitioning consumers out of institutions (e.g., hospitals and jails). This policy change addressed an ongoing concern from stakeholders that some ACT teams were active enough in engaging consumers in these locations, sometimes as a result of no ability to bill for engagement services prior to discharge. Another policy change added the ability to receive reimbursement from DBHDD for consumer transportation needs for recovery goals when unable to be provided by Medicaid or other sources. One SE specialist highlighted the helpfulness of this policy change for consumers who needed help getting to work (i.e., a recovery goal for this consumer) during hours when public transportation is not available in their area. Previous policy changes (mostly from 2012 and 2013 – included here for a comprehensive summary of progress):

24

• Establishing systematic fidelity monitoring system and tying contracts to ACT standards.
• Changing the ACT authorization periods to six months and later extending the initial authorization to one year to more closely fit with the longer-term nature of ACT services.
• Streamlining regulatory documents to avoid confusion (e.g., making operations manual align with service definitions and designating the operations manual as a guide rather than a regulatory document).
• Modifying ACT admission criteria. • Modifying APS authorization and audit processes and tools to eliminate conflicts
with the model (there are still a few audit tool items best assessed at the program level rather than the record level). • Allowing dual authorizations for ACT and other services to allow for a coordinated graduation from ACT to less intensive services. • Allowing collateral contact billing. • Eliminating an overly strict policy that demanded ACT psychiatrists deliver services in the field (i.e., allowing the metrics of the fidelity item for this standard to determine if services are too office-based). • Removal of the Tier 3 (lowest) funding so that teams now can bill state contract amounts up to $780,000 per year starting in their second year and continuing on while under contract.
25

12. Policies and Regulations: SMHA EBP Program Standards

The SMHA has developed and implemented EBP standards consistent with the
 EBP model with the following components:
 (Use boxes to identify which criteria have been met)


X

1) Explicit EBP program standards and expectations,

consonant with all EBP principles and fidelity components,

for delivery of EBP services. (Note: fidelity scale may be

considered EBP program standards, e.g. contract requires

fidelity assessment with performance expectation)

X

2) SMHA has incorporated EBP standards into contracts,

criteria for grant awards, licensing, certification, accreditation processes and/or other mechanisms

X

3) Monitors whether EBP standards have been met,

Improved – need
consequences

4) Defines explicit consequences if EBP standards not met (e.g. contracts require delivery of model ACT services, and contract penalties or non-renewal if standards not met; or licensing/accreditation standards if not met result in consequences for program license.)

Score

1. No components (e.g., no standards and not using available

mechanisms at this time).

2. 1 components

3. 2 components

X

4. 3 components

5. 4 components

Comments:
Following recommendations made last year, corrective action plans and follow-up on those plans were improved in terms of detail and follow-up for low scoring teams. Teams with corrective action plans have monthly follow-up from DBHDD which mostly consisted of phone calls or submission of updated reports with information regarding deficient items. What remains an issue (keeping the fourth component from being satisfied on this SHAY item) is that there is still no clear indication of what would happen if a team does not correct the action. The teams I spoke with were not entirely sure at what point a severe consequence may occur, such as losing the state contract, etc. I recommend thinking about a probationary status of some sort if a team is not able to correct performance to meet the State’s overall standard. I gave examples of states where teams can only bill at a partial rate until they perform at the criterion level, after which the final step is removal of contract or ability to bill for ACT services.

26

13. Quality Improvement: Fidelity Assessment

There is a system in place for conducting ongoing fidelity reviews by trained


reviewers characterized by the following components:


(Use boxes to indicate criteria met.)


Note: If fidelity is measured in some but not all sites, answer for the typical site.

X

1) EBP fidelity (or functional equivalent designed to

assess adherence to all critical components of the

EBP model) is measured at defined intervals,

2) GOI fidelity (or functional equivalent designed to

assess adherence to all critical components required

to implement and sustain delivery of EBP) is measured

at defined intervals,

X

3) Fidelity assessment is measured independently – i.e.

not assessed by program itself, but by SMHA or

contracted agency,

X

4) Fidelity is measured a minimum of annually,

X

5) Fidelity performance data is given to programs and

used for purposes of quality improvement,

X

6) Fidelity performance data is reviewed by the SMHA +/-

local MHA,

X

7) The SMHA routinely uses fidelity performance data for

purposes of quality improvement, to identify and

respond to high and low performers (e.g. recognition of

high performers, or for low performers develop

corrective action plan, training & consultation, or

financial consequences, etc.),

X

8) The fidelity performance data is made public (e.g.

website, published in newspaper, etc.).

Score

1. 0-1 components

2. 2-3 components

3. 4-5 components

X

4. 6-7 components

5. All 8 components

Comments:

Fidelity reviews have improved over time. The GOI is still omitted but not necessarily something I would choose to focus on. As I stated in my report last year, focus on the quality of recovery oriented services, supported employment practices on the team, and other roles for team members would be a much better use of time for ACT fidelity assessors and other DBHDD staff.

27

In past years, I have recommended that the fidelity review team split up ACT team fidelity assessments to gain some efficiencies in their effort and to also make more time to visit teams in between annual fidelity visits. I want to reiterate this recommendation since all three staff are now fully trained in fidelity assessments. One assessor and someone from the Office of Recovery Transformation, for instance, could perform the basic assessment, followed by a visit at a later date to provide more on-site technical assistance or training on areas of weakness found in the report or self-identified by the team. In terms of sustainability, this modification may help DBHDD be able to support ongoing support of quality ACT (including and expanding beyond the DACTS criteria) with existing resources and personnel. Several teams also highlighted the competent and helpful input of DBHDD regional staff who could also continue to be engaged for fidelity assessments to “stretch” central office staff resources.
28

14. Quality Improvement: Client Outcomes

A mechanism is in place for collecting and using client outcome data


characterized by the following:


(Use boxes to indicate criteria met.)


Note: Client outcomes must be appropriate for the EBP, e.g. Supported

employment outcome is persons in competitive employment, and excludes

prevoc work, transitional employment, and shelter workshops. If outcome

measurement is variable among sites, consider typical site.

X

1) Outcome measures, or indicators are standardized

statewide, AND the outcome measures have

documented reliability/validity, or indicators are

nationally developed/recognized,

X

2) Client outcomes are measured every 6 months at a

minimum,

X

3) Client outcome data are used routinely to develop

reports on agency performance,

4) Client specific outcome data are given to programs and

practitioners to support clinical decision making and

treatment planning,

X

5) Agency performance data are given to programs and

used for purposes of quality improvement,

X

6) Agency performance data are reviewed by the SMHA

+/- local MHA,

X

7) The SMHA routinely uses agency performance data for

purposes of quality improvement; performance data

trigger state action. Client outcome data are used as a

mechanism for identification and response to high and

low performers (e.g. recognition of high performers, or

for low performers develop corrective action plan,

training & consultation, or financial consequences, etc.),

8) The agency performance data are made public (e.g.

website, published in newspaper, etc.).

Score

1. 0-1 components

2. 2-3 components

3. 4-5 components

X

4. 6-7 components

5. All 8 components

Comments:
DBHDD made considerable effort to produce a hospitalization report on a subsample of consumers receiving ACT services, reporting on reductions in hospitalization events and days after ACT enrollment (as opposed to team-wide reports on hospitalization in
29

each quarter, regardless of tenure on the team). I commend the State for taking on this step forward in documenting the impact of ACT within Georgia. The report was produced recently and may need to be vetted to stakeholders for key questions or clarifications and be published publicly. Several ACT stakeholders had questions regarding this report and the sample selection, as well as ideas on other outcomes of interest. With the re-organization of DBHDD to include the Office of Performance Analysis (under new Division of Performance Management and Quality), DBHDD is well-positioned to expand on this work. DBHDD is also anticipating data to be managed by Beacon (the new administrative services organization). My only caution is that systems data is always difficult to collect and report in a meaningful way, especially if data systems are not in place to capture critical consumers (e.g., consumers served by ACT regardless of Medicaid status) or their outcomes (e.g., hospitalizations of any kind, whether funded by state contract, Medicaid, other insurance, or no insurance). As mentioned previously, having a field in the state data system noting when an episode of ACT services starts and stops will be a key element of any new tracking system. For instance, even on the DBHDD-provided census of ACT consumers, teams told me that this report excludes consumers whose ACT authorization is pending but are still being served by the team. This sort of glitch can certainly impact systems reporting if the method for collecting the data in the numerator and/or denominator is prone to errors that cannot be addressed in some other way. DBHDD should be prepared to refine and extend their existing methods in the event that their new ASO cannot deliver data-driven reports right away. Low tech and simple methods may suffice while waiting on bigger systems to get up and running properly. The critical next step is to circulate the hospitalization report to teams and stakeholders to see if it makes sense to them, and revisit methods if needed.
30

15. Stakeholders The degree to which consumers, families, and providers are opposed or supportive of EBP implementation. Note: Ask - Did stakeholders initially have concerns about or oppose EBPs? Why? What steps were taken to reassure/engage/partner with stakeholders? Were these efforts successful? To what extent are stakeholders currently supportive this EBP? Opposed? In what ways are stakeholders currently supporting/ advocating against this EBP? Rate only current opposition/support.
Scores: 1. Active, ongoing opposition to the EBP, 2. Opposition outweighs support, or opinion is evenly split, but no active campaigning against EBP, 3. Stakeholder is generally indifferent, 4. Generally supportive, but no partnerships, or active proponents, 5. Stakeholder advocacy organization leadership/opinion leaders currently offer active, ongoing support for the EBP. Evidence of partnering on initiative.
4.3 15. Summary Stakeholder Score: (Average of 3 scores below) 4 15.a Consumers Stakeholders Score 4 15.b Family Stakeholders Score 5 15.c Providers Stakeholders Score
Comments:
Most ACT providers continue to have a sense of strong partnership with DBHDD around ACT services. Even when concerns were expressed around the sustainability of ACT funding and infrastructure supports, one agency leader stated: “If we get to keep even 80% of what we have gotten from the Settlement, I would be happy.” Consumer, family, and other advocate groups continue to express much support for ACT services, but do express concern over the sustainability of ACT and whether DBHDD has built a strong enough case for retaining ACT after the Settlement Agreement period ends.
31

Summary of SHAY Scores Over Time

1. EBP Plan 2. Financing: Adequacy 3. Financing: Start-up and Conversion Costs 4. Training: Ongoing Consultation & Technical Support 5. Training: Quality 6. Training: Infrastructure / Sustainability 7. Training: Penetration 8. SMHA Leadership: Commissioner Level 9. SMHA Leadership: EBP Leader 10. Policy and Regulations: NonSMHA 11. Policy and Regulations: SMHA 12. Policy and Regulations: SMHA EBP Program Standards 13. Quality Improvement: Fidelity Assessment 14. Quality Improvement: Client Outcome 15. Stakeholders: Aver. Score (Consumer, Family, Provider)
SHAY average = average over all 15 items

2012 3 5 3
2
3 1
4 5
3 3
2 3
1
1
4
3.58

2013 5 5 5
4
4 4
5 5
5 4
5 5
4
4
4
4.53

2014 5 3 5
4
4 4
5 5
5 4
5 4
4
4
4
4.33

2015 5 4 5
4
4 4
5 5
5 4
5 4
4
4
4
4.40

*For information on the specific numeric scoring methods for each item, please see the SHAY Rating Scale

32

 
 Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

___________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

) CIVIL ACTION NO.

) 1:09-CV-119-CAP

THE STATE OF GEORGIA;

)

SONNY PERDUE, Governor of the State )

of Georgia, in his official capacity only; )

B.J. WALKER, Commissioner, Georgia )

Department of Human Resources, in her )

official capacity only; GWENDOLYN )

SKINNER, Director, Georgia Division of )

Mental Health, Developmental Disabilities )

and Addictive Diseases, in her official

)

capacity only; and SUSAN TRUEBLOOD, )

Administrator, Georgia Regional

)

Hospital/Atlanta, in her official capacity )

only,

)

)

Defendants.

)

___________________________________ )

JOINT STATUS REPORT

In response to the Court’s April 6, 2009, Order, the Parties and the coalition

of advocacy groups, appearing in this case as amici curiae, have met and now

report below the following, jointly as to all sections except Section B.

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 2 of 14
I. BACKGROUND On January 15, 2009, the United States and the State of Georgia entered into
a Settlement Agreement (the “Agreement”) that resolved the United States’ investigation of the seven state psychiatric hospitals in Georgia (collectively, the “Georgia Psychiatric Hospitals”) under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. In accordance with the Agreement, on January 15, 2009, the United States filed the Complaint initiating this action with the Court and, on the same day, it filed with the State of Georgia a joint motion of the Parties, requesting that the Court conditionally dismiss the case and retain jurisdiction to enforce the terms of the Agreement. See Agreement, ¶ V.C.
On January 23, 2009, the majority of the advocacy groups now appearing as amici curiae sent a letter to the Court expressing concern about the Agreement. The United States and the amici curiae discussed these concerns, and the Parties and the amici curiae submitted briefings to the Court regarding the concerns and recommendations raised by the amici curiae. Subsequently, the court directed the Parties to meet with all of the interested Parties to this case no later than June 5, 2009, in order to discuss the various issues of concern and attempt to reach a resolution amongst themselves. The Court further ordered that all interested Parties should file a report by no later than June 12, 2009, with the Court
- 2 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 3 of 14
regarding the outcome of the meeting, including any resolutions that were made and outstanding issues. Accordingly, the Parties met with representatives of the amici curiae1 on May 14, 2009, at the Carter Center. See Exhibit A (Agenda and List of Attendees). II. REPORT TO THE COURT
The Parties and amici curiae report to the Court the following: A. Agreement Regarding Plan of Implementation for the Agreement.
The Parties and the amici curiae have agreed that an implementation plan is the most beneficial method for achieving compliance with the Agreement and have further agreed to a process for the development of the plan.
The State has already begun a process to develop a concrete implementation plan that will lay out specific actions the State will take to achieve each element of the Agreement, the person(s) responsible for the actions, the dates by which the outcomes will be achieved, measures of progress/compliance, and the anticipated date for compliance. On April 30, 2009, the State submitted to the United States a partial draft of an implementation plan addressing initial “priority areas” in the Agreement. Agreement, ¶ V.E.
1 For the purposes of this Joint Status Report, the term “amici curiae” includes the National Alliance on Mental Illness.
- 3 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 4 of 14
The Parties and the amici curiae agreed that, going forward, the State will continue to develop the implementation plan with input from the United States Department of Justice (“DOJ”), including members of the DOJ’s expert monitoring team, and the amici curiae. The specific process is as follows:
1. DOJ and the amici curiae will provide written feedback to the State regarding its April 30, 2009, draft “Plan of Implementation” by June 30, 2009. DOJ and the amici curiae will also provide the State a list of suggested “focus areas” to be addressed next in the implementation plan.
2. The State, DOJ (including some members of DOJ’s expert monitoring team), and the amici curiae will meet in person on July 14, 2009, to begin further work on the implementation plan. This meeting will focus on the areas addressed in the State’s current draft of its implementation plan as well as any identified “focus areas” to be addressed next in the implementation plan.
3. The State, DOJ (including some members of DOJ’s expert monitoring team), and the amici curiae will meet again in person on a mutually agreed day in August to continue working on the implementation plan. This meeting will address additional, agreed-upon “focus areas”
- 4 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 5 of 14
to be addressed next in the implementation plan, including discharge planning pursuant to the requirements of ¶ III.F of the Agreement, including, but not limited to, ¶ III.F.1.b. 4. As future portions of the implementation plan are developed by the State, the United States and the amici curiae will continue to meet periodically with the State to provide comments and recommendations to ensure that the plan is targeted to achieve compliance with the Agreement until an implementation plan has been developed for all obligations in the Agreement. The Parties and the amici curiae further agreed that: 1. The initial implementation plan will be filed with the Court by September 15, 2009, as an exhibit to the State’s first compliance report due to the DOJ, as provided in ¶ IV.D of the Agreement. The Parties agreed to move the due date for the State’s first compliance report from July 15 to September 15, 2009, to permit the State to submit a report that reflects the revisions to the implementation plan. The extension of the due date for the first report will not impact the due date for subsequent reports, and the second compliance report from the State will still be due on January 15, 2010.
- 5 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 6 of 14
2. The Parties and amici curiae will hold meetings at least once every six months to discuss implementation of the Agreement and get feedback from the amici curiae.
B. Agreement Regarding Community-Based Services. As indicated, the Parties and the amici curiae reached agreement regarding
community-based services at the May 14, 2009, meeting. The amici curiae and the DOJ believe that the following language represents the agreement that was reached: The Parties and the amici curiae agreed that there needs to be an expansion of community-based services to support people who are discharged from the hospitals into the community and those who are at risk of hospitalization. The State will conduct a comprehensive “needs assessment,” which will include examining what community-based services exist and what are needed services, as well as what community-based services need to be improved, redirected, and added. The amici curiae and the DOJ will be included in the planning process for the needs assessment. The State will then use the information from the needs assessment to improve, redirect, and add community-based services where appropriate. Where this improvement, redirection, and addition of community-based services is necessary to comply with the provisions of the Agreement, the State has agreed to
- 6 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 7 of 14
include these actions in the implementation plan. Development of the needs assessment and a discussion of how information will be used to improve, redirect, and add services will be among the topics discussed at the August planning meeting, see infra at 4-5.
The State believes the following reflects the agreement that was reached: The parties and the amici curiae agreed that there needs to be an assessment of community-based services to support people who are discharged from the hospitals into the community and those who are at risk of hospitalization. The State will conduct a comprehensive “needs assessment,” which will include examining what community-based services exist and what are needed services, as well as what community based serviced need to be improved, redirected, and/or added. The amici curiae and DOJ will be included in the planning process for the needs assessment. The State agreed to consider the results of such “needs assessment” in implementing section III.F of the Settlement Agreement. Development of the needs assessment and a discussion of how information will be used to improve, redirect, and/or add services will be among the topics discussed at the August planning meeting.
- 7 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 8 of 14
C. Agreement Regarding Judicial Oversight The Parties and the amici curiae agreed that the Court should be periodically
apprised of the State’s compliance with the Agreement. To this end, the Parties and the amici curiae agreed that:
1. The State will file the reports regarding compliance with the Agreement, as required by ¶ IV.D of the Agreement to be submitted to the United States, with the Court. These filings will include as an attachment the most current version of the implementation plan.
2. Once the compliance reporting required by ¶ IV.D of the Agreement is to occur on an annual basis, the State or DOJ will continue to file the most current version of the implementation plan every six months and the ¶ IV.D compliance report will be filed annually.
3. Simultaneous with the filing of reports on implementation, DOJ will file with the Court a listing of its monitoring visits since the last filing.
4. All reports regarding implementation of the Agreement, including the Quality Assurance reports required by ¶ IV.K. of the Agreement and DOJ's monitoring reports, will be publicly available on the State's website, or through a similar mechanism, in a reasonable time period
- 8 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 9 of 14
and, in any event, no later than after 30 days are completed from the issuing of the relevant report. The Parties and the amici curiae further agreed that: 1. The State will create a process for the amici curiae to bring individual cases to the State’s attention for investigation. The State will investigate, attempt to resolve the issues, and will inform the amici curiae how the issue was addressed, unless prohibited by law. The development of this process will be one of the topics addressed at either the July 14 or August implementation planning meetings. 2. The amici curiae will notify the DOJ about individual cases of concern. Because of the statutory limitations imposed by CRIPA, which prohibit the United States from representing individuals, the amici curiae recognize that the DOJ will use the information provided by the amici curiae to assist in identifying potentially systemic issues for remedial actions.
- 9 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 10 of 14
III. CONCLUSION Therefore, because the State will file its initial implementation plan for the
Agreement with the Court on September 15, 2009, the amici curiae and the DOJ respectfully request that the Court permit them to file a joint report2 updating the Court as to the status of the case and any remaining issues no later than September 30, 2009. The amici curiae and the DOJ further request that the Court conduct a status conference with regard to the remaining issue regarding community-based services upon which the Parties cannot reach agreement. The State respectfully requests an opportunity to respond to such report if necessary.
The State further respectfully requests this Court approve the Parties’ Joint Motion that the Court Enter the Parties’ Negotiated Settlement Agreement. The DOJ and the amici curiae respectfully request that this Court take no further action prior to conducting a status conference.
2 The State does not believe that a joint status report is necessary but reserves the right to file a response to any such report filed with the Court.
- 10 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 11 of 14

Respectfully submitted,
FOR THE UNITED STATES:
SALLY Q. YATES Acting United States Attorney Northern District of Georgia

LORETTA KING Acting Assistant Attorney General Civil Rights Division
SHANETTA Y. CUTLAR Chief Special Litigation Section
JUDITH C. PRESTON Deputy Chief Special Litigation Section

/s/Mina Rhee MINA RHEE [GA Bar 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Mina.Rhee@usdoj.gov

/s/David Deutsch DAVID DEUTSCH [DC Bar 248120] MARY R. BOHAN [DC Bar 420628] TIMOTHY D. MYGATT [PA Bar 90403] AMIN AMINFAR [NC Bar 36589] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6270 Fax: (202) 514-6273 Email: David.Deutsch@usdoj.gov

- 11 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 12 of 14

FOR THE STATE OF GEORGIA:

PLEASE SEND ALL COMMUNICATIONS TO: JASON S. NAUNAS MARK J. CICERO Assistant Attorneys General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: 404-656-3357 Facsimile: 404-463-1062 E-mail: jnaunas@law.ga.gov E-mail: mcicero@law.ga.gov

THURBERT E. BAKER Attorney General

033887

DENNIS R. DUNN Deputy Attorney General

234098

SHALEN S. NELSON

636575

Senior Assistant Attorney General

/s/( Express Permission)

JASON S. NAUNAS

Georgia Bar No.

142051

Assistant Attorney General

Attorney for Defendant

/s/( Express Permission) MARK

J. CICERO

Georgia Bar No.

125686

Assistant Attorney General

Attorney for Defendant

- 12 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 13 of 14

FOR THE AMICI CURIAE:

FOR CYNTHIA WAINSCOTT, CARTER CENTER MENTAL HEALTH PROGRAM, MENTAL HEALTH AMERICA, MENTAL HEALTH AMERICA OF GEORGIA, GEORGIA MENTAL HEALTH CONSUMER NETWORK, GEORGIA PARENT SUPPORT NETWORK, DEPRESSION AND BIPOLAR SUPPORT ALLIANCE, DR. JOHN J. GATES, GEORGIA COUNCIL ON SUBSTANCE ABUSE, AND ATLANTA LEGAL AID SOCIETY’S MENTAL HEALTH AND DISABILITY RIGHTS UNIT

/s/ (Express Permission )

/s/ ( Express Permission)

Kenneth S. Canfield

Ira A. Burnim (DC Bar No. 406154)

GA Bar No. 107744

Alison N. Barkoff (DC Bar No. 495659)

Doffermeyer, Shields, Canfield

Admitted Pro hac vice

& Knowles, LLC

Bazelon Center for Mental Health Law

1355 Peachtree St., Suite 1600

1101 15th St. NW, Suite 1212

Atlanta, GA 30309

Washington, D.C. 20005

404-881-8900

202-467-5730

FOR THE GEORGIA ADVOCACY OFFICE, INC.

/s/ ( Express Permission) Joshua H. Harris GA Bar No. 545854 Attorney for Amicus Curiae Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue Suite 430 Decatur, GA 30030 404-885-1234

- 13 -

Case 1:09-cv-00119-CAP Document 26 Filed 06/12/2009 Page 14 of 14
FOR THE NATIONAL ALLIANCE ON MENTAL ILLNESS - NATIONAL AND THE NATIONAL ALLIANCE ON MENTAL ILLNESS - GEORGIA:
/s/ (Express Permission) Ron Honberg Director of Policy and Legal Affairs National Alliance on Mental Illness 2107 Wilson Boulevard, Suite 300 Arlington, VA 22201-3042 703-524-7600
- 14 -

 
 Case 1:09-cv-00119-CAP Document 29 Filed 09/30/2009 Page 1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA
v. THE STATE OF GEORGIA, et. al.,

CIVIL ACTION NO. 1:09-CV-119-CAP

Defendants. O R D E R
This matter is currently pending before the court on the parties’ joint motion for entry of settlement agreement [Doc. No. 2].
The parties filed a joint status report [Doc. No. 26], which updated the court on the agreements reached between and progress made by the parties, including the coalition of advocacy groups (appearing in this case as amici curiae). In the conclusion paragraph of the status report, the State of Georgia specifically requested this court to approve the parties’ joint motion that the court enter the parties’ negotiated settlement agreement [Doc. No. 2]. On the other hand, the Department of Justice (“DOJ”), on behalf of the United States, requested that this court take no further action prior to conducting a status conference sometime after October 1, 2009. The DOJ’s request is based upon its desire to submit a status report, along with the coalition of advocacy

Case 1:09-cv-00119-CAP Document 29 Filed 09/30/2009 Page 2 of 3
groups, to the court regarding community based services in the Georgia Mental Health System before September 30, 2009.
The court applauds the initiative and cooperation displayed thus far amongst all of the involved parties. The court specifically commends the named parties to this lawsuit for permitting the coalition of advocacy groups to become involved in the pursuit of a solution to the issues and deficiencies in the Georgia Mental Health System. The court strongly encourages all of the parties involved to maintain their level of commitment and effort as they work towards a better mental health system in Georgia. The court directs the parties to continue working together in the development of the implementation plan for the State of Georgia. Further, the parties should continue to meet, as agreed, every six months to update/monitor progress and to provide feedback.
With regard to the parties’ joint motion for entry of settlement agreement [Doc. No. 2], the court hereby DISMISSES the motion because the DOJ has indicated that it no longer agrees with the motion. Upon the court’s receipt of the joint status report filed by the DOJ and the coalition of advocacy groups, the court will determine whether a status conference is necessary. Moreover, the State of Georgia will be permitted an opportunity to respond to such report if necessary. Finally, the named parties may also
-2-

Case 1:09-cv-00119-CAP Document 29 Filed 09/30/2009 Page 3 of 3 resubmit a motion for the court to permanently adopt the settlement agreement.
SO ORDERED, this 30th day of September, 2009. /a/ Charles A. Pannell, Jr. CHARLES A. PANNELL JR. United States District Judge
-3-

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

___________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

) CIVIL ACTION NO.

) 1:09-CV-119-CAP

THE STATE OF GEORGIA;

)

SONNY PERDUE, Governor of the State )

of Georgia, in his official capacity only; )

B.J. WALKER, Commissioner, Georgia )

Department of Human Resources, in her )

official capacity only; GWENDOLYN )

SKINNER, Director, Georgia Division of )

Mental Health, Developmental Disabilities )

and Addictive Diseases, in her official

)

capacity only; and SUSAN TRUEBLOOD, )

Administrator, Georgia Regional

)

Hospital/Atlanta, in her official capacity )

only,

)

)

Defendants.

)

___________________________________ )

JOINT STATUS REPORT OF THE UNITED STATES AND AMICI CURIAE

Pursuant to the Joint Status Report filed on June 12, 2009, the United States

and amici curiae file this Joint Status Report updating the Court regarding the case

and the remaining issues for resolution. The United States and the amici curiae

have grave concerns regarding the State of Georgia’s ability to comply with the

1

Settlement Agreement (the “Agreement”) executed over nine months ago. The State has failed to develop a plan of implementation that adequately describes the steps necessary to achieve compliance with the Agreement.
The plan of implementation submitted to the Court on September 15, 2009, (the “POI”) also makes evident that the State has made little progress in implementing the requirements of the Agreement. See Compliance Report, Ex. 1. Indeed, the United States continues to find harmful and unsafe conditions at the hospitals during its monitoring tours, and critical events at several hospitals, including assaults, suicide attempts, and deaths, demonstrate that patients continue to suffer preventable harm due to deficient practices. The State’s unwillingness to take seriously its obligations under Olmstead v. L.C., 527 U.S. 581 (1999), and the discharge planning provisions of the Agreement is a fundamental cause of the constitutional violations that the United States has identified.
The United States and the amici curiae believe an effective plan of implementation is essential to implement the terms of the Agreement. The amici curiae believe these circumstances require a status conference with the Court to facilitate developing an appropriate plan of implementation and holding the State accountable for implementing it once developed. The United States does not object to the amici curiae’s request for a status conference. However, because the
2

Agreement grants the State one year to come into compliance with certain priority areas, the United States does not, at this time, seek enforcement of the Agreement by the Court. I. BACKGROUND
On January 15, 2009, the United States and the State of Georgia entered into the Agreement, which resolved the United States’ investigation of the seven state psychiatric hospitals in Georgia under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. In accordance with the Agreement, on January 15, 2009, the United States filed the Complaint initiating this action with the Court and, on the same day, it filed, together with the State of Georgia, a joint motion of the parties, requesting that the Court conditionally dismiss the case and retain jurisdiction to enforce the terms of the Agreement. See Agreement, ¶ V.C.
On January 23, 2009, the majority of the advocacy groups now appearing as amici curiae sent a letter to the Court expressing concern about the Agreement, including that it did not require the State to develop a plan of implementation with specific actions, concrete goals and timeframes for compliance; it did not provide for sufficient monitoring of implementation by the Court; and it failed to meaningfully address the lack of community-based services causing people to be
3

needlessly institutionalized in its hospitals. Following the Court’s order, the parties met with representatives of the amici curiae on May 14, 2009.
The parties and amici curiae filed a Joint Status Report with the Court on June 12, 2009, advising the Court of the progress made in resolving the issues raised by the amici curiae in their objections to the Agreement. The parties and amici curiae agreed that a plan of implementation would be developed by the State of Georgia with input from the United States and the amici curiae and a process was agreed to for the development of the plan. The United States and amici curiae believed they had reached an agreement with the State on May 14, 2009, regarding the necessary expansion of community-based services to address the State’s obligations regarding discharge planning. The State, however, did not agree to the language drafted by the United States memorializing the agreement reached in the May 14, 2009, meeting. The parties and amici curiae also agreed to a series of filings to apprise the Court of the State’s compliance with the Agreement. In the June 12, 2009, Status Report to the Court, the United States and amici curiae requested a status conference regarding the unresolved issue of the expansion of community-based services.
The parties and the amici curiae met on July 14 and August 25, 2009, to provide input to the State regarding the development of a plan of implementation.
4

Before the July 14 meeting, the State produced a “Plan of Implementation
Tracking Document” that contained an “Interim Status Report as of 4.30.2009”
addressing the initial priority areas defined in Paragraph V.E. of the Agreement.
The tracking document consisted of a spreadsheet with the language from the
Agreement and contained substantive content for a limited number of the hundreds
of boxes in the spreadsheet.
The amici curiae provided written feedback to the State regarding the
tracking document in letters dated June 30 and August 14, 2009, and the United
States did so in letters dated July 8 and August 20, 2009. See Ex. 1, 2, 3 and 4.
The letters state clearly that the draft document was not an adequate plan of
implementation, and highlight the United States’ and amici curiae’s position that:
the development of an effective POI remains essential and must be a priority as the State proceeds to implement the Settlement Agreement. An effective POI must identify the specific actions it will take to achieve each requirement of the Settlement Agreement, the dates by which these actions will be taken, and anticipated time frames for achievement of compliance. Accordingly, the POI needs to set forth specific goals, objectives, and tasks to be completed to implement the provisions of the Settlement Agreement; target and deadline dates for implementation of goals, objectives, and tasks; and compliance assessment methods and requirements, including setting forth specific data to be collected and maintained, to ensure compliance with the POI and the Settlement Agreement in a timely and effective manner.
5

Ex. 3 at 2. At the July 14 and August 25 meetings, the United States,
representatives of the amici curiae, and their respective experts1 spent a
considerable portion of the meeting discussing with the State the necessary
elements of a plan of implementation, as well as the necessity of expanding
community-based services to address both the problems in the hospital and the
State’s obligations with respect to discharge planning and community integration.
The State filed a Compliance Report with the POI attached on
September 15, 2009.2
1 The United States, the State, and amici curiae agreed that feedback from experts would be most helpful in developing a plan. Experts retained by the United States included consultants in psychiatry, psychology, psychiatric nursing, protection from harm, and discharge planning and community integration – all of whom are involved in the compliance monitoring tours of the State psychiatric hospitals in Georgia. Experts retained by the amici curiae included a former mental health director, a board-certified community psychiatrist, a community psychologist who has been involved in system reform work in other states’ mental health systems, consumers of mental health services, and a former court monitor in other system reform work.
2 The POI dated September 15, 2009, as submitted to the Court, is the first full version of the POI that the United States and amici curiae have reviewed. The document produced on April 30, 2009 was an “Interim Status Report” that focused on the “priority areas” in the Agreement. That document did not contain any of the elements of a POI and differs substantially from the POI submitted to the Court on September 15, 2009.
6

While these meetings on the plan of implementation were proceeding, the United States, accompanied by expert consultants in the fields of psychiatry, psychology, psychiatric nursing, protection from harm, and discharge planning and community integration, conducted week-long compliance tours of three of the seven Georgia psychiatric hospitals.3 These compliance tours included interviews with hospital administrators, clinical staff, direct care staff, and patients, as well as review of a wide variety of documents, including policies and procedures, incident reports, and medical and mental health records. II. REPORT TO THE COURT
The United States and amici curiae have grave concerns regarding the State’s ability to comply with the Agreement. Almost nine months after the execution of the Agreement and two and one half years after the United States began its investigation, the United States continues to find harmful and unsafe conditions in its recent monitoring tours of the hospitals and has seen little substantive, sustained improvement in the hospitals.
3 The three hospitals were: East Central Regional Hospital (May 4-8); Georgia Regional Hospital at Savannah (June 22-26); and Georgia Regional Hospital at Atlanta (August 3-7). The United States also conducted two emergency tours of Central State Hospital following an alleged homicide (April 8-9 and June 30July 1). A tour of Southwestern State Hospital is scheduled for the week of October 13-16 and of Central State Hospital for the week of November 2-7.
7

Most troubling is the lack of progress found in the four priority areas in
which the State is required to achieve substantial compliance by January 2010:
prevention of patient-on-patient assaults; suicide risk reduction; prevention of
aspiration and choking; and implementation of emergency procedures. See
Agreement, ¶ V.E. Critical incidents at several hospitals in recent weeks indicate
that additional urgent attention is required in each of these areas, because patients
continue to suffer harm due to deficient practices. The continued incidents of
serious assaults, suicide attempts, and deaths highlight the continued deficiencies
in the State’s ability to come into compliance in the priority areas identified in the
Agreement.
Moreover, the State has not developed an adequate plan of implementation
to address the ongoing harms and violations of the rights of individuals confined to
the State psychiatric hospitals, and has shown an unwillingness to meaningfully
address the expansion of community-based services that will be necessary to meet its obligations under the Agreement.4 Indeed, the State’s failure to comply with
4 Over the past several months, the amici curiae have offered the State technical assistance regarding community capabilities, including an opportunity for key personnel of the Georgia Department of Behavioral Health and Developmental Disabilities to visit programs that represent national models for community integration and to receive consultation about how these programs can be financed through a federally funded contract with the Substance Abuse and Mental Health Services Administration (“SAMHSA”). To date, the State has made no request to
8

Olmstead, 527 U.S. 581, contributes significantly to the ongoing constitutional violations that the United States has identified in the State psychiatric hospitals.
The United States and the amici curiae believe an effective plan of implementation is essential to implement the terms of the Agreement. The amici curiae believe these circumstances require a status conference to facilitate the development of an appropriate plan of implementation and hold the State accountable to implementing it once developed. The United States does not object to the amici curiae’s request for a status conference. However, because the Agreement grants the State one year to come into compliance with the priority areas, the United States does not, at this time, seek enforcement of the Agreement by the Court.
A. Conditions in the State Hospitals 1. Serious Harm Continues
Critical incidents at several hospitals in recent weeks demonstrate that patients continue to suffer preventable harm due to deficient practices, even in the identified “priority areas” in the Agreement. On April 5, 2009, a patient in Central State Hospital, under close observation due to his past history, allegedly assaulted and murdered another patient. On May 9, 2009, and August 2, 2009, two separate
avail itself of such assistance.
9

patients at East Central Regional Hospital (“ECRH”) were allegedly sexually assaulted. On July 19, 2009, a patient was admittedly raped at Southwestern State Hospital. On August 27, 2009, a patient in Georgia Regional Hospital in Savannah (“GRHS”) committed suicide.5 Most recently, on September 22, 2009, a patient at ECRH attempted suicide after informing staff that he had nothing to live for and requesting to speak to a nurse.
The suicide at GRHS, the attempted suicide at ECRH, and one of the sexual assaults at ECRH are particularly troubling, as they occurred after the United States’ compliance tours of those facilities, during which the United States noted the serious concerns it had with the suicide prevention and protection from harm measures at those facilities and recommended that steps be taken immediately to address those concerns. The continuation of these grave incidents demonstrates the State’s failure to implement the Agreement in a timely manner.
2. The State’s POI Reveals the State’s Lack of Progress A review of the POI reveals that, by the State’s own admission, the State has not even begun to achieve compliance with the vast majority of the provisions of the Agreement, even in the areas deemed to be a priority. The State’s POI
5 The United States sent emergency letters to the State regarding these and other incidents at the State psychiatric hospitals in which patients suffered or may suffer preventable harm due to deficient practices. See Ex. 5-11.
10

indicates that only a single step, the adoption of an assessment tool, has been completed to prevent patient-on-patient assault. POI at 7. In suicide assessment and prevention, the State has not yet finalized its suicide risk assessment policy. POI at 41. In fact, the parties who are listed as responsible for developing such a policy have yet to be hired. Id. The status for nearly all of the suicide prevention provisions is marked as “ongoing,” without any further clarification or detail, and it is unclear whether this indicates that any new measures have been taken since the entry of the Agreement. POI at 43-45.
For choking and aspiration risk assessment and prevention, only five of the approximately 30 steps identified by the State as necessary to come into substantial compliance have been completed. POI at 68-74. In fact, despite the State’s obligation to be in substantial compliance by January 2010, the State’s POI indicates that staff at all hospitals will not be trained in all aspects of physical nutritional management of patients until the end of March 2010. POI at 69. Moreover, dietary staff who would be instrumental in implementing the physical nutritional management plan are not projected to be hired until June 2010 at the earliest. POI at 72.
Regarding implementation of emergency medical codes, the State claims to have completed eight of the 15 steps it identified as necessary to achieve
11

compliance with the Agreement. POI at 75-77. The United States’ compliance tours, however, revealed that many of the steps the State claims to have completed have not, in fact, been implemented adequately. For example, the State claims on page 76 of the POI that emergency equipment are checked daily and documented, but the United States’ consultants found that nurses were not adequately trained on how to operate the emergency equipment, so that the equipment checks could not reliably indicate whether the equipment was actually in working order.
Beyond the four priority areas, the State appears to have barely even begun implementation of the steps necessary to achieve compliance with the Agreement. According to the POI, for the protection from harm provisions of the Agreement, not a single step is marked as completed. POI at 11-20. By the State’s own assessment, only three of the approximately 170 steps identified by the State as necessary to achieve compliance with the mental health care provisions of the Agreement have been completed. POI at 20-49. Only two of the approximately 30 steps identified by the State as necessary to achieve compliance with the seclusion and restraint provisions of the Agreement have been completed. POI at 49-57. Only 14 of the approximately 100 steps identified by the State as necessary to achieve compliance with the medical care provisions of the Agreement have been completed. POI at 57-78. And only two of the approximately 25 steps identified
12

by the State as necessary to achieve compliance with the discharge planning provisions of the Agreement have been completed. POI at 79-84.
In many instances, the steps identified by the State are only the preliminary measures necessary to achieve compliance with the Agreement. For example, Paragraph III.D.13 of the Agreement requires the State to provide “adequate, appropriate, and timely rehabilitation/habilitation therapy services and appropriate adaptive equipment . . .,” but the only steps contained in the POI to address this provision are to hire activity and occupational therapists. POI at 74-75. The POI contains no steps regarding how the therapy services will actually be provided, including any steps to assess whether they are “adequate, appropriate, and timely,” nor does it contain any steps regarding the provision of adaptive equipment.
In short, the POI highlights the State’s lack of progress in implementing the Agreement, even in those areas deemed to be a priority. This is troubling, given that more than nine months have passed since the entry of the Agreement.
3. The Compliance Tours Reveal the Lack of Progress The United States has seen little progress toward compliance required with the Agreement during its compliance tours. On September 9, 2009, the United States issued its compliance letter regarding ECRH. In the letter, the United States explicitly noted of the lack of progress found in the four priority areas in which the
13

State is required to achieve substantial compliance by January 2010. Ex. 12. The United States found that, with regard to the approximately 61 provisions of the Agreement that relate to the four priority areas, the State had not begun to achieve compliance with the vast majority, and the State had not achieved substantial compliance with any of the provisions. Id. at 2. The United States expressed similar concerns during its exit briefings following the compliance tours of GRHS and Geogia Regional Hospital at Atlanta. Given this lack of progress, the United States and amici curiae have grave concerns that the State will be unable to achieve substantial compliance in the four priority areas of the Agreement with less than four months remaining.
B. The Plan of Implementation is Insufficient The parties and amici curiae agreed in their June 12, 2009, Joint Status Report that “an implementation plan is the most beneficial method for achieving compliance with the Agreement.” See Joint Status Report at 3 (June 12, 2009). A viable implementation plan would lay out the State’s blueprint for achieving essential reforms required by the Agreement and would establish benchmarks that would ensure a clear and common understanding among concerned parties of the efficacy of corrective actions. The POI submitted by the State on September 15, 2009, is insufficient to achieve compliance with the Agreement.
14

The United States and amici curiae provided the State with the framework
and elements necessary for the development of a comprehensive and effective plan
of implementation. In the June 30, 2009, letter providing feedback to the State
regarding its April 30, 2009, “Interim Status Report,” the amici curiae provided the
following description of the framework and necessary elements of a plan of
implementation:
The Implementation Plan must be designed to assure oversight, accountability and successful implementation. It must contain a set of overarching goals and objectives that will guide the development and implementation of the Plan. It must specify the desired short- and long-term outcomes sought in relation to specific problems identified by the DOJ investigation. These goals and objectives will serve as a reference point by which to measure the Plan’s success and to guide modifications of the Plan to make it more effective.
The Implementation Plan must include the following:
 Specific goals and objectives  Tasks to be completed  Target and deadline dates  Assigned persons responsible for task implementation
and oversight  Reporting requirements  Methods of evaluation (including evaluating how policy
implementation impacts individual people confined to and discharged from state hospitals)  Process for responding to obstacles and barriers to implementation  Process for modifying the Plan
15

As part of the Plan, standards need to be established for the development of policies, the documentation of various activities, the collection of data, the analysis of data and the development of corrective actions. Additionally, standards are needed to evaluate whether the policies developed and actions taken are achieving their desired outcomes, both on an individual and systemic level.”
Ex. 1 at 2. The United States provided a similar framework for the development of
a plan of implementation in its letter dated July 8, 2009. See Ex. 3. Further, the
United States and the amici curiae have provided the State with significant
technical assistance and feedback regarding the development of a plan of
implementation, including letters providing specific feedback regarding quality
management, treatment planning and discharge planning, see Ex. 1, 2, 3 and 4, and
participating in meetings with State officials to discuss the development of the POI
and provide feedback. Despite this technical assistance, the State’s POI is
insufficient in a number of respects.
1. The POI Fails to Address the Necessary Expansion of Community-Based Services
Any effort by the State to achieve effective and appropriate discharge
planning must address the most significant barrier to successful discharge and a
primary cause of repeated hospital admissions—the lack of community-based
services for people who are ready to be discharged from the State hospitals and for
those who are at risk of hospitalization, including readmission to a State hospital.
16

The State’s failure to comply with Olmstead is a fundamental cause of the constitutional violations that the United States has identified in the hospitals, and it has needlessly prolonged the institutionalization of many patients in Georgia’s hospitals, many of whom could be served in the community if there were sufficient services.
Nevertheless, the discharge planning section of the POI is particularly void of specific measures and steps the State intends to take to achieve compliance. It fails to contain any procedure for identifying and addressing the lack of community services as a barrier to discharge, or for tracking and addressing the lack of needed community-based services for patients who are readmitted to the hospital. This failure is particularly distressing because the State’s own data indicate that it has failed to meet its targets for re-admission rates for the last four quarters for which it has collected data. See Ex. 13 at 25.
While the POI does mention that the State plans to consider performing an analysis of the gaps in services provided in the community, the POI does not indicate that an analysis of the needs of patients in the State hospitals will be performed. POI at 88. This full assessment of needs and services is essential to effective discharge and transition planning in compliance with Olmstead, 527 U.S. 581, and for compliance with the Agreement. Indeed, the State agreed to
17

perform such an assessment at the May 14, 2009, meeting and in the Joint Status Report dated June 12, 2009. The failure to include this needs assessment in the POI suggests that the State is backing away from the commitment it made at the May 14, 2009, meeting, namely, that it would actually use the information from the assessment to expand needed services for individuals in the State psychiatric hospitals.6
Indeed, the POI does not contain any provisions regarding the expansion of community-based services for people discharged from the hospitals into the community and those who are at risk of hospitalization. Without a commitment from the State to expand needed community-based services—a necessary action to meeting its obligations under the Agreement, amici curiae continue to object to this Court’s final approval of the Agreement. The United States believes that, to meet the requirements of the Agreement, discharge planning must be addressed in the POI through the expansion of community-based services.
2. The POI Does Not Contain Sufficient Operational Detail In its 90 pages, the POI claims to present numerous “Outcomes” to be achieved, hundreds of “Steps,” “Responsible Parties,” associated “Target
6 The United States and amici curiae requested the Court hold a status hearing on this issue. See Joint Status Report at 10 (June 12, 2009).
18

date/Status,” and a section entitled “Compliance Check.” The length of the POI
and this reasonable set of categories might give the impression of a meaningful
plan, but in fact the document is glaringly deficient. Much of the Plan is simply a
recitation of generic activities associated with the basic operations of a psychiatric
hospital. Indeed, the steps to achieve the POI’s outcomes are frequently little more
than a rewording of the outcome itself.7
7 For example, for the outcome “medication ordered is given as prescribed,” the implementation steps, in their entirety, are:
I. Medication is given as prescribed and documented ii. Medication processes include confirmation of the
1. Right medication 2. Right dose 3. Right patient 4. Right route 5. Right time iii. If the medication is refused or otherwise not given, the result is clearly documented.
See POI at 56. In other words, the State's plan to ensure that hospital patients are given the correct medication is to document that they are given the correct medication by checking that it is the right medication, given in the right amount and manner at the right time to the right individual. The lack of any meaningful, specific steps to address the problem is particularly egregious given that the State's own recent State-Level Quality Management Report (“QM Report”) states that it has failed to meet its own benchmark for medication errors for every month since it began collecting data in July 2008. See Ex. 13 at 20.
19

3. The State Lacks the Infrastructure to Implement the Agreement The POI makes clear that the State lacks the infrastructure to implement the Agreement. Many vital positions on the State’s leadership team are vacant and, accordingly, the leadership necessary to implement the POI—i.e., those identified throughout the POI as “Responsible Parties”—are not yet in place. For example, the State has yet to hire a medical director, a clinical director, or a nurse executive. POI at 5. These positions comprise three out of four members of the State’s Clinical Management Team, and they are also key members of the State’s Hospital Management Team. Critically, the POI assigns responsibility to the Clinical Management Team and Hospital Management Team to carry out more than 100 of the action steps listed in the POI and nearly every high level step necessary to achieve compliance with the Agreement. Numerous other staff members are not yet in place, and the POI makes clear that many will not be in place for years to come. See, e.g., POI at 72, 74-75 (listing target dates for hiring staff as late as June 2012).
4. The POI Has No Measureable Goals and Objectives The POI also fails to set out measureable goals and objectives. Without a set of clearly defined goals and objectives correlated to the problems identified by the United States and the requirements of the Agreement, the State, through the POI,
20

has no objective means to measure whether implementation has been successful. The POI should include explicit goals, such as “the Department seeks to reduce person-on-person injuries in hospitals statewide by ___% by [date].” Ex. 1 at 3. It is not enough to simply state that the State seeks to reduce person-on-person injuries, and that it will develop policies and will train employees. The POI must state the indicia of success for each goal. This is particularly urgent for the “priority areas” under the Agreement, as those issues must be addressed promptly to prevent further injuries and deaths.
5. The State Lacks the Quality Management System Necessary to Implement the Agreement
The State does not have a quality management system in place nor does it have the leadership in place to develop one. Currently, the position of Director of Quality Management for the State is vacant. POI at 3. The Director of Quality Management is a critical member of the State’s Hospital Management Team, see POI at 3, and is the Responsible Party for the majority of quality management steps contained in the POI. POI at 15-20. Indeed, the POI calls for the Director of Quality Management to develop and implement a comprehensive quality management system. Until this position is filled, the State is operating its hospitals without an effective quality management system.
21

A quality management system is crucial to attaining compliance with the Agreement, and particularly to attaining compliance with the provisions related to protection from harm, including priority areas such as the prevention of patient-onpatient assault. Without such a system in place, the State will be unable to measure progress towards goals and identify problems in the implementation of the POI.8 The State cannot come into substantial compliance with the Agreement until an effective quality management system is in place.
C. Court Oversight The situation in Georgia’s hospitals remains dire. Patients continue to suffer grievous harm, including death, and individuals are needlessly confined who are ready for discharge. Georgia still has no meaningful plan to address the problems identified by the United States more than two years ago, despite six weeks of site visits by the United States’ consultants during the investigative and monitoring phases of this matter, and additional technical assistance from the United States’ and amici curiae’s experts in conjunction with two all-day meetings on the State’s POI. More than nine months into implementation of the Agreement, and with less
8 The State has produced Quality Management Reports to the United States as provided by the Agreement. See Agreement, ¶ IV.K. These reports, however, fail meaningfully to measure whether the State is effectively implementing the requirements of the Agreement.
22

than four months left before the State is required to be in compliance with the priority areas of the Agreement, the State has made little progress. Accordingly, the amici curiae believe the need for strong Court supervision is essential now more than ever. III. CONCLUSION
For the foregoing reasons, the United States and the amici curiae believe an effective plan of implementation is essential to implement the terms of the Agreement. The amici curiae believe these circumstances require a prompt status conference with the Court to address the deficiencies of the POI and a Court directive ordering the State to hire outside consultant experts to develop a meaningful plan of implementation within 30 days. The United States does not oppose the amici curiae’s request for a status conference, but does not seek enforcement of the Agreement at this time, because the Agreement grants the State one year to come into compliance with certain priority areas.
Additionally, the amici curiae continue to object to Court approval of the Agreement unless a meaningful plan of implementation is developed, including a plan to expand the community-based services that are needed to successfully discharge individuals who are being needlessly confined in hospitals, prevent
23

unnecessary readmissions to hospitals, and prevent admission of individuals who are at-risk of unnecessary hospitalizations. Once an acceptable plan of implementation is developed, the amici curiae seek to have the plan of implementation incorporated into the Agreement or other court-enforceable order so that its terms may be properly enforceable. Finally, the amici curiae request that the Court hold regular status conferences on the implementation of the plan.
24

Respectfully submitted,
FOR THE UNITED STATES:
SALLY Q. YATES Acting United States Attorney Northern District of Georgia

LORETTA KING Acting Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
SHANETTA Y. CUTLAR Chief Special Litigation Section
JUDITH C. PRESTON Deputy Chief Special Litigation Section

/s/ (Express Permission) MINA RHEE [GA Bar 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Mina.Rhee@usdoj.gov

/s/ (Express Permission) DAVID DEUTSCH [DC Bar 248120] MARY R. BOHAN [DC Bar 420628] TIMOTHY D. MYGATT [PA Bar 90403] ROBERT A. KOCH [OR Bar 072004] EMILY A. GUNSTON [CA Bar 218035] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6270 Fax: (202) 514-6273 Email: David.Deutsch@usdoj.gov
25

FOR THE AMICI CURIAE:

FOR CYNTHIA WAINSCOTT, CARTER CENTER MENTAL HEALTH PROGRAM, MENTAL HEALTH AMERICA, MENTAL HEALTH AMERICA OF GEORGIA, GEORGIA MENTAL HEALTH CONSUMER NETWORK, GEORGIA PARENT SUPPORT NETWORK, DEPRESSION AND BIPOLAR SUPPORT ALLIANCE, DR. JOHN J. GATES, GEORGIA COUNCIL ON SUBSTANCE ABUSE, ATLANTA LEGAL AID SOCIETY’S MENTAL HEALTH AND DISABILITY RIGHTS UNIT, NATIONAL ALLIANCE ON MENTAL ILLNESS NATIONAL AND THE NATIONAL ALLIANCE ON MENTAL ILLNESS GEORGIA

/s/ (Express Permission) KENNETH S. CANFIELD GA Bar No. 107744 Doffermeyer, Shields, Canfield
& Knowles, LLC 1355 Peachtree St., Suite 1600 Atlanta, GA 30309 (404) 81-8900

/s/ (Express Permission) IRA A. BURNIM [DC Bar No. 406154] ALISON N. BARKOFF [DC Bar No. 495659] Admitted Pro hac vice Bazelon Center for Mental Health Law 1101 15th St. NW, Suite 1212 Washington, D.C. 20005 (202) 467-5730

FOR THE GEORGIA ADVOCACY OFFICE, INC.

/s/ Joshua H. Norris JOSHUA H. NORRIS GA Bar No. 545854 Attorney for Amicus Curiae Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue Suite 430 Decatur, GA 30030 (404) 885-1234

26

Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Joshua H. Norris JOSHUA H. NORRIS
27

CERTIFICATE OF SERVICE This is to certify that I have this day electronically filed the foregoing JOINT STATUS REPORT OF THE UNITED STATES AND AMICI CURIAE with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties in this matter via electronic notification or otherwise:
Jason S. Naunas Mark J. Cicero Assistant Attorneys General State Law Department 132 State Judicial Building 40 Capitol Square, S.W Atlanta, GA 30334-1300 jnaunas@law.state.ga.us This 30th day of September, 2009.
/s/ Joshua H. Norris JOSHUA H. NORRIS Attorney for Amicus Curiae Georgia Advocacy Office, Inc.
28

 
 Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

___________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et. al,

)

)

Defendants.

)

___________________________________ )

CIVIL ACTION NO. 1:09-CV-119-CAP

AMICI’S RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS AND REQUEST FOR DISAPPROVAL OF SETTLEMENT AGREEMENT

In their motions to dismiss, Defendants contend that the settlement

agreement signed by the U.S. Department of Justice (DOJ) and Georgia in January

2009 (agreement) precludes the relief being sought by DOJ. Amici agree with DOJ

that the agreement has no such effect.

Amici write separately to affirm that, even if the agreement had the

preclusive effect claimed by Defendants, this Court is not required to give the

agreement continuing legal effect. This Court cast considerable doubt on the

validity and adequacy of the agreement when it dismissed the motion for entry of

1

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 2 of 18
the agreement, Sept. 30, 2009 Order at 2 [Dkt. 29] (dismissing the motion because “the DOJ has indicated it no longer agrees with the motion” and ordering the State and DOJ to continue meeting with the Amici to address their objections to the agreement), and the Court has long hesitated to give final approval to the agreement. See, e.g., Feb. 11, 2009 Order [Dkt. 9] (adopting the agreement as temporary order of the Court pending final approval after the Amici filed objections to the agreement) (emphasis added); Oct. 9, 2009 Order [Dkt. 34] (noting that the agreement had only been “temporarily adopted” and ordering the parties “to continue to work towards resolution”); Transcript of Proceedings Held on Feb. 16, 2010 [Dkt. 67] (“I have hesitated and put off as adopting [the agreement] as a final Order of the Court . . . .”).1 The time has come, Amici submit, for the Court to declare the agreement a nullity. The Court has ample power to reject the agreement and, because the agreement is a wholly inadequate remedy for the legal violations confirmed by DOJ, the Court should do so. The agreement gives Georgia too long to cure legal violations, it neither includes nor 1 The Department of Justice agrees that the “status of the Agreement in this case is unclear” and has made clear that it does “not intend to pursue a renewed motion to enter the Agreement.” See Memorandum of Law in Support of the United States‟ Motion for Immediate Relief [Dkt. 55] at 3-4.
2

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 3 of 18
requires a meaningful plan of action, it virtually ignores the needless hospitalization of thousands of Georgians, and it makes no provision for meaningful judicial oversight. 2 Giving the agreement this Court‟s imprimatur is contrary to the public interest, especially if, as Defendants claim, the pendency of the agreement bars DOJ from pursing effective relief on behalf of people confined to state hospitals.
Amici have attached to this response declarations from three national experts – a former director of Georgia‟s Division of Mental Health, Mental Retardation and Substance Abuse,3 a nationally-respected disability rights litigator, and the executive director of the Georgia Advocacy Office – comprehensively describing
2 Amici know of no Georgia organization that supports the agreement. Although they know better, Defendants have asserted that NAMI National and NAMI-GA support the agreement. While this was true initially, they have been part of the group of Amici opposing the agreement and represented by the Bazelon Center since May 2009. 3 The Division is now called the Department of Behavioral Health and Developmental Disabilities.
3

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 4 of 18
the inadequacies of the agreement.4 Amici would welcome the opportunity to
present to the Court live testimony from these experts.
I. THE COURT HAS A DUTY TO REVIEW THE SETTLEMENT Defendants are correct that United States v. Miami, 614 F.2d 1322 (5th Cir. 1980),5 addresses the Court‟s task in this case. Br. in Support of Defendants‟
Motion to Enforce the Settlement Agreement [Dkt. 62] at 15-19; Defendants‟
Reply Br. [Dkt. 80] at 3; Defendants‟ Motion to Dismiss and Brief in Support [Dkt.
81] (“In support of this motion, Defendants hereby incorporate by reference the
arguments in the Brief in Support of Defendants Motion to Enforce the Settlement
Agreement [dkt. 62] and Reply Brief [dkt. 80].”). However, the case does not
4 The declarations more fully describe these individuals‟ background and experience. The declaration of Steve Schwartz, who has nearly four decades of experience working on cases involving institutional conditions and community integration, is attached as exhibit 1. The declarations of Ruby Moore (executive director of the Georgia Advocacy Office) and John Gates (former director of Georgia‟s Division of Mental Health, Mental Retardation and Substance Abuse), attached to this filing as exhibits 2 and 3, were previously filed. See March 2, 2009 Objections by the Georgia Advocacy Office [Dkt. 11] , Ex. 3 (Declaration of Ruby Moore); April 21, 2009 Reply of Amici to the United States‟ and Georgia‟s Response to the Concerns of the Georgia Advocates [Dkt. 20], Ex. 2 (Declaration of John Gates).
5 Decisions from the former Fifth Circuit prior to October 1, 1981 are binding precedent in the 11th Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
4

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 5 of 18
support Defendants‟ arguments. Instead, the case stands firmly for the proposition that this Court has the authority and the obligation to review the adequacy and fairness of the settlement agreement between DOJ and Georgia.
U.S. v. Miami concerned a settlement agreement between DOJ and the City of Miami. The Court of Appeals recognized that the case was not “ordinary litigation” in which “one private party [brings suit] against another private party.” 614 F.2d at 1330. In such “ordinary” cases, the Court declared, a settlement “will not affect the rights of any other persons” and [i]f the parties can agree to terms, they are free to settle the litigation at any time, and the court need not and should not get involved.” Id. In cases, like this one, however, where “the interests of individuals and organizations other than those approving the settlement may be implicated,” and particularly where those third parties object to the agreement, a district court has a different and more active role. Id. at 1331. When the public interest is at stake, a court may not take “a totally „hands-off‟ attitude toward the settlement reached,” id. at 1331, and instead should not accept a settlement that is unfair, inadequate, unreasonable, or contrary to public policy. Id. at 1330-33; accord Janus Films Inc. v. Miller, 801 F.2d 578, 582 (2nd Cir. 1986) (““The court has a larger role … where a consent judgment or a settlement judgment resolves . .
5

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 6 of 18
. suits affecting the public interest” and “[i]n such cases, the court must be satisfied of the fairness of the settlement.”) (internal citations omitted); Amoco Oil Co. v. Dingwell, 690 F. Supp. 78, 85 (D. Me. 1988) (“There are certain special situations, however where a trial court may be required to take a more active role in approving settlement agreements. . . . [In] any suits affecting the public interest, a court must determine that the settlement is fair, adequate and reasonable.”) (internal quotations omitted).
In U.S. v. Miami, the district court vacated an approved consent decree after objections were filed by third parties impacted by the agreement. Miami, 614 F.2d at 1327. The district court held hearings where it raised concerns with the proposed decree based on those objections. The court required the parties to address those concerns before approving a revised agreement. Id. Here, as in U.S. v. Miami, impacted third parties have raised substantial objections to the agreement that must be addressed for the matter to be fairly, adequately and reasonably resolved.
The court‟s duty to evaluate the fairness and adequacy of agreements impacting the public interest, as set forth in U.S. v. Miami, applies with full force to cases, like this one, brought under the Civil Rights of Institutionalized Persons
6

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 7 of 18
Act (CRIPA). See, e.g., United States v. Pennsylvania, 160 F.R.D. 46, 48 (E.D. Pa. 1994) (finding a CRIPA settlement agreement “fair, adequate and reasonable” where it, among other things, provided for community placement of residents and the appointment of a court monitor and panel of experts to oversee compliance); United States v. Michigan, 680 F. Supp. 928, 946-49 (W.D. Mich. 1987) (finding a CRIPA settlement agreement was not “fair, adequate and reasonable” based on considerations of “the fairness of the decree to those affected, the adequacy of the settlement . . . , and the public interest.”).
It is irrelevant that DOJ and Defendants have not characterized the agreement as being a consent order or judgment. Defendants have asked this Court to give its imprimatur to the agreement and, in so doing, to deny relief sought by DOJ. As U.S. v. Miami makes clear, this Court may not give the agreement legal effect if it is unfair, inadequate, unreasonable, or contrary to public policy. Miami, 614 F.2d at 1330-33; accord Michigan, 680 F. Supp. at 945 (“judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties”).6
6 Similarly, a district court “enjoys broad discretion in determining whether to allow a voluntary dismissal under Rule 41(a) (2).” Pontenberg v. Boston Scientific
7

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 8 of 18
Throughout this proceeding, the Court has recognized its role in evaluating the adequacy and fairness of the agreement. The Court adopted the Agreement only as a “temporary order … pending final approval.” [Dkt. 9] The Court invited Amici to file a summary of their concerns [Dkt. 3] and directed the parties to respond to those concerns. [Dkt. 10 and 11] . The Court also directed “all of the interested parties to meet … in order to . . . attempt to reach a resolution amongst themselves.” [Dkt. 16].7 Moreover, the Court indicated it would allow Amici to present witnesses on the adequacy and fairness of the agreement at the previously scheduled hearing on DOJ‟s motion for a preliminary injunction. Tr. of Proceedings Held on Feb. 16, 2010 [Dkt. 67] at 21-25. Defendants have now squarely asked the Court to give the agreement legal effect. The Court should decline the invitation. If this Court believes it cannot make a determination on
Corp., 252 F.3d 1253, 1255 (11th Cir. 2001). In “exercising its broad equitable discretion, [a court] must weigh the relevant equities and do justice.” Id.; accord McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir. 1986). 7 The parties and Amici met on May 14, 2009. The United States and Amici believed an agreement was reached at that meeting for the State to develop an implementation plan, expand community services, and report regularly to the Court. The State apparently had a different view. See June 12, 2009 Joint Status Report [Dkt. 26], and September 30, 2009 Joint Status Report [Dkt. 30].
8

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 9 of 18
this record, it has the authority to “hold whatever hearings [it] deems necessary to garner that information,” Miami, 614 F.2d at 1333, and Amici are prepared to
present witnesses about the inadequacy and unfairness of the agreement.
II. THE AGREEMENT IS WHOLLY INADEQUATE TO REDRESS THE DOCUMENTED HARM, UNFAIR TO THE INDIVIDUALS CONFINED IN THE STATE HOSPITALS, UNREASONABLE AND CONTRARY TO PUBLIC POLICY
Amici have discussed the agreement‟s deficiencies in various filings,8 and
the attached affidavits comprehensively describe why the agreement should be
rejected. Below, Amici summarize their chief concerns.
First, the agreement gives Georgia far too long to come into compliance with
basic legal protections. See, Declaration of Steve Schwartz (Schwartz Dec.), attached as Ex. 1, at ¶¶ 23-24 (Agreement has “very generous time frame[s]”);
Declaration of Ruby Moore (Moore Dec.), attached as Ex. 2, at ¶¶ 20-21 ( “lack of urgency” in the Agreement‟s deadlines); Declaration of John Gates, attached as Ex.
8 See, e.g. March 2, 2009 Objections to the Settlement Agreement by Cynthia Wainscott and Other Georgia Advocates [Dkt. 10]; Objections to the Settlement Agreement by the Georgia Advocacy Office [Dkt. 11]; April 21, 2009 Reply of Amici to the United States‟ and Georgia‟s Response to the Concerns of the Georgia Advocates [Dkt. 20]; April 21, 2009 Reply of Georgia Advocacy Office to the United States‟ and Georgia‟s Response to the Concerns of the Georgia Advocates [Dkt. 23]; Sept. 30, 2009 Joint Status Report of the United States and Amici Curiae [Dkt. 30].
9

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 10 of 18
3, at ¶ 5 (Agreement‟s time frames “are far too long given the life-and-death situation in the hospitals). According to the parties, the agreement gave Defendants a full year before they had to provide basic safety protections to individuals at significant risk of death or serious injury. See, e.g., Br. in Support of Defendants‟ Motion to Enforce the Settlement Agreement [Dkt. 62] at 5 (one year compliance for agreement‟s provisions regarding choking and aspiration, suicide risk assessment and prevention, prevention of patient on patient assault, and implementation of emergency medical codes); United States Response to Defendants‟ Motion to Enforce the Settlement Agreement [Dkt. 72] at 6 (same). Additionally, at least according to Defendants, Georgia may take an additional four years to come into compliance with the agreement‟s other provisions. Br. in Support of Defendants‟ Motion to Enforce the Settlement Agreement [Dkt. 62] at 5 (“Georgia has five years, until January 2014, to come into substantial compliance with the requirements of the Settlement Agreement.”). Amici believe it would be unconscionable to allow Georgia five years before being required to respect basic rights of individuals confined to state hospitals. Accord Schwartz Dec. at ¶ 24 (“[T]he five year drop dead date for ending the Agreement, regardless of whether
10

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 11 of 18
the Psychiatric Hospitals have improved an iota, create perverse incentives for perpetuating federal law violations.”).
Second, the agreement does not contain or require a concrete plan for remedying the harms and rights violations found in the hospitals. See, e.g., Gates Dec. at ¶¶ 6-8 (The Agreement “lacks a specific plan for remedying the identified problems. It is a document with well-intentioned promises of a vague sort. There are no specific goals, benchmarks for improvements or target dates for making changes.”); Moore Dec. at ¶¶ 12-15 (“The breadth of necessary changes quite clearly calls for a plan. . . . The Agreement, however, requires no planning by the State, does not require that any plan be submitted or approved, and with few exceptions, sets no deadlines for implementation of any of its requirements) (emphasis in original); Schwartz Dec. at ¶ 22 (“[T]he Agreement leaves it to the State to decide how, when and through what means it will cure the very constitutional violations that it created and perpetuates to this day, and even to measure whether it has done so.”). Despite its many pages and seeming substance, the agreement in reality does little more than restate the constitutional law applicable to Georgia‟s hospitals. See Youngberg v. Romeo, 457 U.S. 307, 321 (1982) (state must operate its public institutions in accord with recognized
11

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 12 of 18
professional standards). To the extent it imposes substantive obligations, the agreement merely recites accepted professional standards.9 See Schwartz Dec. at ¶ 22. However, it neither provides nor requires a roadmap or plan for ensuring those standards are met. The result has been that, 18 months after the agreement was signed, substandard care and needless institutionalization continue to be the norm, as DOJ has confirmed. A meaningful implementation plan is required if hospital residents‟ rights are to be protected, but Defendants insist that no such plan is required by the agreement. Using the agreement as a shield, Defendants deny that they have an obligation to develop an implementation plan acceptable to DOJ or even to this Court.
Third, the Agreement provides virtually no relief for Defendants‟ violations of residents‟ rights under the Americans with Disabilities Act (ADA), as recognized in Olmstead v. L.C., 527 U.S. 521 (1999). See, e.g., Gates Dec. at ¶¶ 10-11 (“The Settlement Agreement must be improved to address one of the major underlying causes of the problems related to the hospitals – the lack of community-
9 In addition, it is unclear whether contempt sanctions are available for violations of standards set forth in the agreement. See, e.g., Schwartz Dec. at ¶ 24. Both DOJ and the Defendants have at times raised questions about the availability of such sanctions.
12

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 13 of 18
based services to support people who are or could be discharged from the hospital.”); Schwartz Dec. at ¶¶ 15-21 (“The glaring absence of remedies required to comply with the ADA renders this Agreement inconsistent with federal law and a substantial departure from accepted professional standards for providing mental health services to persons with psychiatric disabilities); Moore Dec. at ¶ 9 (“[T]he proposed remedies do not adequately address the serious problems in Georgia‟s state psychiatric and developmental services institutions and the attendant harm to people with disabilities in the institutions who are waiting for appropriate discharge planning and community services.”). The Governor‟s own Mental Health Service Delivery Commission found in December 2008 that 60% of the people presently in Georgia‟s state hospitals could be served in their communities if services were expanded and stressed the need to expand crisis services, case management, supportive housing, and other community services. United States‟ Motion for Immediate Relief [Dkt. 55], Exh. 26 at 6-7. Yet, nowhere in the agreement is there any provision for an expansion of community services. This failing not only ignores hospital residents‟ rights under the ADA and Olmstead, but also dooms any effort to redress the harms in the hospitals. See, e.g., Gates Dec. at ¶ 11 (“In my experience, the best way to improve the conditions within the
13

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 14 of 18
hospitals is to ensure that there are adequate community-based services for people who do not need a hospital level of care.”); Schwartz Dec. at ¶ 26 (The Agreement “is not reasonably likely to improve conditions in [the psychiatric] facilities, and certainly will have no impact on the likelihood that the resident[s] will remain unnecessarily segregated.”). As the Amici have emphasized, census reduction is essential to correcting the problems that afflict Georgia‟s hospitals. Admission and readmission rates remain unacceptably high; the hospitals continue to be overcrowded, understaffed, and overburdened; and, as a result, hospital residents continue to be at risk.
Finally, the agreement has no provision for meaningful judicial oversight. The agreement anticipates little active role for the Court. See Moore Dec. at ¶ 10, 16-19 (“The Settlement Agreement provides no effective mechanism for the Court, as guardian of the rights of individuals who are currently being detained at the hospitals, often illegally and unnecessarily, to be informed on compliance challenges or to be assured that compliance has been achieved.”); Gates Dec. at ¶ 9 (“Relying on Georgia in large part to monitor itself is unacceptable.”). The parties apparently intended for the case to be dismissed as soon as the Court approved the agreement, and for the Court to have no future role unless requested. There would
14

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 15 of 18
be no regular reports to the Court, no status hearings, and as a result no opportunity for the Court to inquire about or influence the provision of basic protections and services to people confined to the state hospitals. See Schwartz Dec. at ¶¶ 24, 25 (“I have been a party to a wide range of remedial orders and settlements, and have reviewed hundreds more in my role as litigation consultant to disability lawyers throughout the country. These orders and settlements employ a wide range of procedures designed to facilitate compliance and rectify federal law violations. But rarely have I seen a settlement that has such lax enforcement procedures and has such a low probability of achieving meaningful reforms.”). Concomitantly, the agreement makes no provision whatsoever for informing stakeholders of either progress or barriers. It is neither fair nor reasonable that the Court and stakeholders should play so little a role in addressing so monumental a problem.
III. CONCLUSION For these reasons, Amici respectfully request that this Court deny Defendants‟ Motion to Dismiss and Motion to Enforce the Settlement Agreement. In doing so, the Court should reject the settlement agreement as unfair, inadequate and contrary to public interest and refuse to approve any agreement that does not address the concerns raised by the Amici.
15

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 16 of 18
LOCAL RULE 7.1D CERTIFICATION In accordance with Local Rule 7.1D, Amici‟s counsel certifies that this brief has been prepared in 14-point Times New Roman font in compliance with Local Rule 5.1.
Respectfully submitted this 15th day of July, 2010.
FOR THE GEORGIA ADVOCACY OFFICE, INC. s/Joshua H. Norris JOSHUA H. NORRIS Georgia Bar No. 545854
Georgia Advocacy Office 150 E. Ponce de Leon Avenue Suite 430 Decatur, Georgia 30030 Telephone: (404) 885-1234 Facsimile: (404) 378-0031 E-mail: jnorris@thegao.org
16

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 17 of 18
FOR CYNTHIA WAINSCOTT, CARTER CENTER MENTAL HEALTH PROGRAM, MENTAL HEALTH AMERICA, MENTAL HEALTH AMERICA OF GEORGIA, GEORGIA MENTAL HEALTH CONSUMER NETWORK, GEORGIA PARENT SUPPORT NETWORK, DEPRESSION AND BIPOLAR SUPPORT ALLIANCE, DR. JOHN J. GATES, GEORGIA COUNCIL ON SUBSTANCE ABUSE, AND ATLANTA LEGAL AID SOCIETY‟S MENTAL HEALTH LAW AND DISABILITY RIGHTS UNIT
s/ (Express Permission) IRA BURNIM ALISON BARKOFF Admitted Pro hac vice
Bazelon Center for Mental Health Law 1101 15th Street, NW Suite 1212 Washington, D.C. 20005 Telephone: (202) 467-5730
s/ (Express Permission) KENNETH S. CANFIELD GA Bar No. 107744
Doffermeyer, Shields, Canfield & Knowles, LLC 1355 Peachtree Street Suite 1600 Atlanta, Georgia 30309 Telephone: (404) 881-8900
17

Case 1:09-cv-00119-CAP Document 85 Filed 07/15/2010 Page 18 of 18
CERTIFICATE OF SERVICE I hereby certify that on this 15th day of July, 2010, I electronically filed the foregoing AMICI‟S RESPONSE TO DEFENDANTS‟ MOTIONS TO DISMISS AND REQUEST FOR DISAPPROVAL OF SETTLEMENT AGREEMENT with the Clerk of Court using the CM/ECF system which automatically serves notification of such filing to all counsel of record.
s/Joshua H. Norris JOSHUA H. NORRIS Georgia Bar No. 545854
18

 
 Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 1 of 19
Exhibit A

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 2 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA, Plaintiff,
V.
THE STATE OF GEORGIA, et a!., Defendants.

)

)

)

)

CIVIL ACTION NO.

)

1:1 0-CV-249-CAP

)

)

)

)

EXTENSION OF SETTLEMENT AGREEMENT
1. The State of Georgia, the Governor of the State of Georgia, the Commissioner ofthe Depmiment of Behavioral Health and Development Disabilities (''DBHDD''), and the Commissioner of the Georgia Department of Community Health (collectively, the ''State") and the United States (together referenced herein as the '·Parties'') entered into a settlement agreement that the United States District Court for the Nmihern District of Georgia entered as an order of the CoUii on October 29, 2010, in Civil Action No. I: 10-CV-249-CAP ("Settlement Agreement").
2. Pursuant to Section VII.A.l of the Settlement Agreement, the anticipated date by w·hich the State \Vould substantially comply with all provisions of the Settlement Agreement was 1uly I. 2015. Although the State has asserted compliance with a majority of the provisions of the Settlement Agreement by that date, the United States has asserted noncompliance with the following provisions of the Settlement Agreement: Section lll.A.2.b.i.(D)-(F): Section III.A.2.b.iii; Section III.A.2.c.ii.(B)(3); Section III.A.4.d; Section III.B.2.c.ii.(A): Section III.C.3.a.v; and Section III.D. The pmiies have agreed to meet and confer as to the provisions with w·hich the State asserts compliance, and the Pmiies agree to address the United States' assertions of noncompliance as set forth below.
3. Section VILE of the Settlement Agreement provides that any modification shall be executed in writing, shall be filed with the CoUii, and shall not be effective until the CoUii enters the modified agreement and retains jurisdiction to enforce it.
4. The Parties therefore enter into this Extension of the Settlement Agreement ("'Extension Agreement"').
5. The State's obligations under all provisions ofthe Settlement Agreement remain in force until they have been terminated pursuant to Section Vli.B of the Settlement Agreement.

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 3 of 19
PROVISIONS RELATED TO PERSONS WITH DEVELOPMENTAL DISABILITIES ("DD")
Transitions from State Hospitals to the Community
6. Between July 1, 2015, and June 30.2016. the State shall transition at least 25 individuals with DD from the State Hospitals to the community. The State shall provide COMP waivers to accomplish these transitions.
7. Between July 1, 2016, and June 30.2018, the State shall create and regularly update a planning list for prioritizing transitions of the remaining persons with DD in the care of State Hospitals for whom a community placement is the most integrated setting appropriate to his or her needs. The State shall transition individuals on the list to the community at a reasonable pace. The State shall provide COMP waivers to accomplish these transitions.
8. Any individuals with DO remaining in the State Hospitals on June 30, 2018, shall be served in the most integrated setting appropriate to their needs.
9. In determining whether to include an individual on the transition planning list, the State shall consider the recommendations of the individual's hospital treatment team and representatives from the Office of Transition Services who have experience with and knowledge of service delivery in the community, as well as the preferences of the individual, family member(s). and, as the individual indicates, other persons who are impmiant to the individual and/or \Vho may suppmi the individual in the community.
10. The State shall notify the Independent Reviewer within 7 days of when the State determines that any individual's most integrated setting is a State Hospital or any public or private skilled nursing facility, intermediate care facility for developmental disabilities. or psychiatric facility. In that instance. the State shall provide the Independent Reviewer with all information relied upon to make that determination so that the Independent Revie,ver may conduct an independent assessment and report the assessment to the Pmiies. lfthe State makes no such determination, the expectation is that the individual \Vill be placed on the transition planning list (referenced in Paragraph 7) for transition to a community home.
11. The State shall form a transition planning team for every individual upon placement of that individual on the transition planning list. The transition planning team shall consist ofthe individuaL hospital treatment team. case expeditor. support coordinator, Integrated Clinical Suppmi Team. community service providers (once selected). the individual's family member(s). and. as the individual indicates. other persons \Vho are important to the individual and/or who may suppmi the individual in the community. The transition planning team must identify (using protocols or criteria established by DBHDD that employ person-centered planning) the types of supports.
l

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 4 of 19
services. adaptive equipment, supervision, and oppmiunities for community integration that will promote a successful transition for the individual. Prior to the individual's discharge, all contracted residential, day, clinical, medical, and other providers (once selected) shall pmiicipate in the transition process and receive training in any procedures or protocols needed to serve the individual. All non-contracted providers who will be providing services to the individual may participate in the transition process and receive training in any procedures or protocols needed to serve the individual. The transition planning team shall verify that the supports, services, adaptive equipment, and supervision identified in the transition plan are 31Tanged and in place at discharge.
12. The State shall monitor individuals during and after transition from the State Hospitals (a) to identify and address identified gaps or issues with services, suppmis, adaptive equipment, and clinical, medical, day, residential, or other providers to reduce the risk of admission to other institutional settings, deaths, or injuries, and (b) to track community integration and positive outcomes. The State shall conduct posttransition monitoring with, at a minimum, in-person visits by the individual's support coordinator within 24 hours of transition, at least once a week during the first month the individual is in the community, and at least monthly for the next three months.
Supports and Services Provided to Individuals with DD in the Community
13. The State shall operate a system that provides the needed services and supports to individuals with DD in the community through a network of contracted community providers overseen and monitored by the State or its agents. To identify, assess, monitor, and stabilize individuals with DD in the community who face a heightened level of risk due to the complexity of their medical or behavioral needs and/or their community providers' inability to meet those needs, the State shall maintain a High Risk Surveillance List as set forth in Paragraph 14, provide statewide clinical oversight as set fmih in Paragraph 15, and administer support coordination as set forth in Paragraph 16.
14. High Risk Surveillance List
a. The State shall maintain a "High Risk Surveillance List'" (the "List") that includes all individuals with DD who have transitioned from the State Hospitals to the community during the term of the Settlement Agreement and this Extension Agreement. The List shall include each individual's name, date ofbirth, provider(s), CUITent address, region, HRST score, and a summary of critical incident repmis and clinical findings that indicate medical or behavioral needs that may create a heightened risk for the individual. The State shall monitor the following information for all individuals on the List: critical incident reports, support coordination notes, and clinical assessments. The State shall update the List at least once per month.

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 5 of 19

b. Based on a records-based clinical review. uniform screening criteria. and other indications of heightened risk factors or concem. the State designated. and will continue to designate, certain individuals on the List as ··High Risk:· The State may escalate other individuals on the List to ··High Risk"" status in the following circumstances (or ··escalation criteria""):
(i) Health-Related: an increase in HRST score; known emergency room visit or hospitalization; recurring serious illness without resolution; diagnosis with an episode of aspiration, seizures, bowel obstruction, dehydration, gastro-esophageal reflux disease (or GERD); or unmet need for medical equipment or healthcare consultation;
(ii) Behavioral: material changes in behavior, a behavioral incident with intervention by law enforcement, or functional or cognitive decline;
(iii) Environmental: threat of or actual discharge from a residential provider, change in residence, stafftraining or suitability concern, or accessibility issues that relate to the health or safety of the individual (including loss of involved family member or natural supports or discharge from a day provider).
(iv) Other: confirmed identification of any factor above by a provider, support coordinator, family member, or advocate.

c. For each individual on the List designated as ·'High Risk," the State shall conduct the oversight and intervention outlined in the following subpmis, until the State determines that the individual is stable and no longer designated as '"High Risk."

(i) Upon designation of an individual as ··High Risk," the State (through the Office of Health and Wellness) shall oversee that the initial responses to the identified risk(s) are completed and documented on the schedule set fmih below, until the risk is resolved:

( 1) For an emergency. the provider shall initiate appropriate emergency steps immediately. including calling 911 or crisis services, and shall notify the individual"s suppmi coordinator, the Field Office, and the Oftice of Health and Wellness.

(2) For deteriorating health that is not imminently lifethreatening. the provider shall respond and inform the individual"s support coordinator within the first 24 hours. If the risk is not resoh·ed within 72 hours. the support coordinator (or provider) shall notify the Field Office and the Oftice of Health and Wellness.

(3) For a health. behavioral. or environmental risk not

resulting ~

in

destabilization

of

health

or

safet.v

ofthe

individuaL.

the

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 6 of 19
provider shall respond, inform the individual"s suppmi coordinator. and verify completion of responsive steps with the suppmi coordinator no later than the suppmi coordinator's next visit, or 30 days. \Vhichever is sooner.
(ii) If the risk is not resolved through the initial responses outlined in Paragraph 14.c.(i), the State shall conduct an in-person assessment of that individual in the time period indicated by the imminence and severity of the risk, but no later than 7 days after completion of the initial response.
( 1) The assessment shall be conducted by a Registered Nurse or other trained medical professional with an advanced medical degree and expe1iise in the area(s) of risk identified for the individual. The assessment shall include direct observation of staff who work with the individual to verify the staffs knowledge and competencies to implement all prescribed risk reduction interventions (e.g., meal time protocols or behavior support plans). The assessment shall, at a minimum, identify any concerns or issues regarding the individual's health or behavioral needs and identify necessary follow-up activities (with a schedule for completion) to address those concerns or issues.
(2) The findings ofthe assessment, plus any follow-up activities and schedules, must be noted on the List and recorded in the individual"s electronic record for access by the individual's suppmi coordinator. community providers, the Integrated Clinical Suppmi Team, Field Office staff, and the Office of Health and Wellness.
(3) If the assessment finds service delivery deficiencies that jeopardize the physical or behavioral health of an individual, the State shall require all provider staff (including direct support staff, house managers. Registered Nurses. Licensed Practical Nurses, and Ce1iitied Nursing Assistants) who are responsible for delivering services to that individual to receive competency-based training in that service delivery area (i.e., training through which the staff demonstrates successful service delivery in a scenario closely resembling one in \vhich the services will be delivered).
(4) The State (through the Otlice of Health and Wellness) shall oversee that the follow-up activities identified in the assessment are completed and documented (and repeated or revised, as needed). until the risk is resolved.
5

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 7 of 19
15. Statewide Clinical Oversight
a. The State shall implement statewide clinical oversight that is available in all regions to minimize risks to individuals with DD in the community who face a heightened level of risk due to the complexity of their medical or behavioral needs, as indicated by one or more of the circumstances listed in Paragraph 14.b.(i)-(iv) above. This includes multidisciplinary assessment, monitoring, training, technical assistance, and mobile response to contracted providers and support coordinators who provide care and treatment to individuals with DD in the community.
b. Statewide clinical oversight is provided through a team of registered nurses with experience caring for individuals with DD, behavioral expe1is (with a master's level degree in behavior analysis, psychology, social work, or counseling), occupational therapists, physical therapists, and speech and language therapists. This team includes personnel in the Office of Health and Wellness and each regional Field Office.
c. No later than March 31, 2017, the State shall develop a protocol that includes the following components:
(i) The protocol shall state the responsibilities and timeframes for contracted providers and support coordinators to engage the statewide clinical oversight team to assist in addressing issues that place individuals at heightened risk. The protocol must include the following schedule for completion and documentation of the responses to the identified risk(s), until the risk is resolved:
(1) For an emergency, the provider shall initiate appropriate emergency steps immediately, including calling 911 or crisis services, and shall notify the individual's support coordinator, the Field Office, and the Office of Health and Wellness.
(2) For deteriorating health that is not imminently lifethreatening, the provider shall respond and inform the individual's suppmi coordinator within the first 24 hours. If the risk is not resolved w·ithin 72 hours. the suppmi coordinator (or provider) shall notify the Field Office and the Office of Health and Wellness.
(3) For a health. behavioral. or environmental risk not
- . resultin.g... in destabilization of health or safetv ofthe individual the
provider shall respond. inform the individual"s suppmt coordinator, and verify completion of responsive steps with the suppmt
6

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 8 of 19
coordinator no later than the supp011 coordinator's next visit. or 30 days. whichever is sooner.
(ii) The protocol shall determine the circumstances when. and set fm1h mechanisms through which, the statewide clinical oversight team receives electronic notification wh.en individuals with DD in the community face a heightened level of risk, which may include the circumstances listed in Paragraph 14.b.(i)-(iv). The protocol shall set forth the timeframes for the State's review and response and shall require that the State's response be based on the imminence and severity of the risk.
d. No later than June 30, 2017, the State shall train its contracted providers and supp011 coordinators on the protocol developed under Paragraph 15.c.(i), how to recognize issues that place an individual at heightened risk (including through critical incident reports and the State's support coordination tool), and how to request consultation and/or technical assistance from the Field Offices and the Office of Health and Wellness. The protocol shall become effective no later than July I, 2017.
e. The State shall provide or facilitate consultation (by phone, email, or in person), technical assistance, and training to contracted providers and support coordinators who serve individuals with DD in the community who face a heightened level of risk due to the complexity of their medical or behavioral needs. No later than June 30, 2017, the State shall provide a centralized and continuously monitored hotline and email address to receive requests for consultation and/or technical assistance. The State shall assess, assign for response, and respond to such requests as indicated by the nature, imminence, and severity of the need identified in the request.
f. No later than June 30, 2017, the State shall have medical and clinical staff available to consult with community health practitioners, including primary care physicians, dentists, hospitals, emergency rooms. or other clinical specialists. who are treating individuals with DD in the community who face a heightened level of risk due to the complexity of their medical or behavioral needs and/or to provide assistance to community providers and supp011 coordinators who rep011 difficulty accessing or receiving services from community healthcare practitioners.
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16. Support Coordination
a. No later than July I, 2016, the State shall revise and implement the roles and responsibilities of suppmi coordinators, and the State shall oversee and monitor that suppmi coordinators develop individual support plans, monitor the implementation of the plans. recognize the individual's needs and risks (if any), promote community integration, and respond by refen·ing, directly linking, or advocating for resources to assist the individual in gaining access to needed services and supports.
b. No later than July 1, 2016, the State shall require all suppmi coordinators statewide to use a uniform tool that covers, at a minimum, the following areas: environment (i.e., accessibility, privacy, adequate food and clothing, cleanliness, safety), appearance/health (i.e., changes in health status, recent hospital visits or emergency room visits), suppmis and services (i.e., provision of services with respect, delivery with fidelity to ISP), behavioral and emotional status (i.e., implementation ofBSP, recent crisis calls), community living (i.e., existence of natural suppmis, services in most integrated setting, participation in community activities, employment opportunities, access to transportation), control of personal finances, and the individual's satisfaction with cuJTent suppmis and services. The support coordination tool and the guidelines for implementation shall include criteria, responsibilities, and timeframes for refeiTals and actions to address risks to the individual and obtain needed services or supports for the individual.
c. At least annually, the State shall consider the data collected by suppmi coordinators in the tool and assess the perfmmance of the suppmi coordination agencies in each of the areas set forth in Paragraph 16.a.
d. No later than June 30, 2017, the State shall provide support coordinators with access to incident reports, investigation reports, and conective action plans regarding any individual to whom they are assigned. Suppmi coordinators shall be responsible for reviewing this documentation and addressing any findings of gaps in services or supports to minimize the health and safety risks to the individual. (Suppmi coordinators are not responsible for regulatory oversight of providers or enforcing providers· compliance with cmTective action plans.)
e. The caseload for support coordinators shall be a maximum of 40 individuals. The caseload for intensive support coordinators shall be a maximum of 20 individuals.
f. Support coordinators shall have an in-person visit \vith the individual at least once per month (or per quarter for individuals \Vho receive only suppmied employment or day services). Intensive support coordinators shall have an in-
8

••
Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 10 of 19

person visit with the individual as determined by the individual's needs, but at least once per month. Some individuals may need \veekly in-person visits. which can be reduced to monthly once the intensive supp011 coordinator has determined that the individual is stable. In-person visits may rotate between the individual's home and other places where the individual may be during the day. Some visits shall be unannounced.

g. For individuals with DD transitioning from State Hospitals, a supp011 coordinator shall be assigned and engaged in transition planning at least 60 days prior to discharge.

17. Crisis Respite Homes

a. Crisis respite homes provide short-tenn crisis services in a residential setting of no more than four people.

b.

Individuals living in crisis respite homes shall receive additional

clinical oversight and intervention, as set forth in Paragraph 15.

c. The State shall track the length of stay in crisis respite homes, and, on a monthly basis, shall create a list of individuals who are in a crisis respite home for 30 days or longer, the reasons why each individual entered the crisis respite home, the date of entry to the home, and the barriers to discharge. The State shall provide these monthly lists to the United States and the Independent Reviewer.

d. The State shall assess its crisis response system for individuals with DD in the community, including the use of crisis respite homes and altemative models for addressing short-term crises. Follmving that assessment, and no later than June 30, 2017, the State shall meet with the Independent Revie\ver, the United States, and the Amici to discuss the State's plans for restructuring the crisis system, including methods of minimizing the occuiTence of individuals leaving their homes during crisis and limiting individuals' out-of-home lengths of stay at crisis respite homes.

18. Provider Recruitment

Within six months of the Effective Date of this Extension Agreement, the State shall develop and implement a strategic plan for provider recruitment and development that is based on the needs of individuals with DD in the State Hospitals and in the community. The plan shall identify the service capacity needed to support individuals \Vith DD and complex needs in community settings. The plan shall take into account services and supports that promote successful transitions and community integration. The State shall use the plan to identify and recruit providers who can supp011 individuals \Vith DD and complex needs in community settings.

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Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 11 of 19
19. Additional HCBS Waivers
The State shall create a minimum of 100 NOW waivers and 100 COMP waivers between July 1. 2015 and June 30. 2016; 100 NOW waivers and 125 COMP waivers between July 1. 20 16 and June 30. 20 17; and 100 NOW waivers and 150 COMP waivers between July 1, 2017 and June 30, 2018, for individuals with DD who are on the wait list to prevent admission to a public or private skilled nursing facility, intermediate care facility for developmental disabilities, or psychiatric facility.
Investigations, Mortality Reviews, Risk Management, and Quality Reviews
20. The State shall implement an effective process for reporting, investigating, and addressing deaths and critical incidents involving alleged criminal acts, abuse or neglect, negligent or deficient conduct by a community provider, or serious injuries to an individual.
21. The State shall conduct a mortality review of deaths of individuals with DD who are receiving HCBS waiver services from community providers according to the following:
a. An investigation ofthe death shall be completed by an investigator who has completed nationally ce1iified training in conducting mortality investigations, and an investigation report must submitted to the Office of Incident Management and Investigations ("OIMI") within 30 days after the death is reported, unless an extension is granted by the State for good cause. The investigator must review or document the unavailability of: medical records, including physician case notes and nurses' notes (if available); incident reports for the three months preceding the individual's death; the death certificate and autopsy repmi (if available); and the most recent individual suppmi plan. The investigator may also interview direct care staff who served the individual in the community. The investigation report must address any known health conditions at the time of death. regardless of whether they are identified as the cause of death. The State shall conduct a statistically significant sample of '"look-behind"' investigations to assess the accuracy and completeness of provider-conducted investigations of deaths, and the State shall require providers to take conective action to address any deficiency findings.
b. The Community Mortality Review Committee ('"CMRC") shall conduct a mmiality review of all unexpected deaths. any expected death that is identified by the State· s Medical Director or OIMI Director. and any expected death \Vhere a condition cited as a cause of death \\as identified fe\Yer than 30 days before the death. The mmiality review shall be completed \\ ithin 30 days of completion of the investigation and receipt of relevant documentation. The
10

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 12 of 19
minutes ofthe CMRC's meetings will document its deficiency findings and its recommendations. if any.
22. The State shall require providers to take corrective actions in response to the CMRCs deficiency findings, and the State shall implement a system that records the deficiencies identified in investigative repmis and mmiality reviews and that tracks the corrective action plans, including the community providers' timely completion of required actions. The State shall separately track the CMRC's recommendations.
23. The State shall generate a monthly report that includes each death since July I, 2015; any coJTective action plan(s) resulting from the death; the community provider(s) involved; the conective action taken by the community provider, as verified by the State; and any disciplinary action taken against the provider(s) for failure to implement coJTective action (if applicable). The State shall provide the repmi to the United States and the Independent Reviewer.
24. The State shall collect and review its data regarding deaths of individuals with DD in the community to identify systemic, regional, and provider-level trends, if any. The State shall consider its mortality data, publicly available national mortality data, and recommendations from the CMRC. The State shall develop and implement quality improvement initiatives, including those to reduce mortality rates for individuals with DD in the community, as determined by the State from its assessment of mortality data and trends.
25. At least annually, the State shall publish a report on aggregate mmiality data including the number of deaths, causes of death, classification of death, and trends.
26. DBHDD shall identify and attempt to address baiTiers to obtaining hospital records for the purpose of revie\vs of deaths of individuals with DD in the community.
27. The State shall develop a protocol for determining which deaths of individuals \vith DD in the community should result in an autopsy. The protocol (as may be amended) shall be applied to all deaths that occur after the protocol is effective. The State shall provide a copy of the protocol to the Independent Reviewer, the United States, and the Amici for comment before it is tinalized.
28. By June 30, 2017. the State shall require all of its support coordination agencies and contracted providers serving individuals \vith DD in the community to develop internal risk management and quality improvement programs in the following areas: incidents and accidents: healthcare standards and ,,·eJfare: complaints and grievances: individual rights violations: practices that limit freedom of choice or movement: medication manJgcment; infection control: positive behavior support pLm tracking and monitoring: breaches of confidentiality; protection of health and human rights: implementation ofiSPs: and community integration.
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Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 13 of 19
29. The State shall provide to the Department of Justice copies of the waiver assurances that the State submits to the Center for Medicare Services ('"CMS''). Quality review·s. which are used to report \Vaiver assurances as required by CMS. shall include, at a minimum, (a) data derived from face-to-face interviews of the individual, and. as indicated and available, relevant professional staff and other people involved in the individual's life, (b) assessments, and (c) clinical records. Quality reviews shall be conducted on a sample of individuals and providers in each region. The sampling shall be informed by data from DBHDD's incident management system, mortality reviews, and other indicators overseen by the Office of Health and Wellness. At least annually, the State shall consider these quality reviews, and shall either develop and implement quality improvement initiatives or continue implementation of existing quality improvement initiatives, as determined by the State from its assessment of the quality reviews.
PROVISIONS RELATED TO PERSONS WITH SERIOUS AND PERSISTENT MENTAL ILLNESS ("SPMI")
30. For purposes of Paragraphs 31 to 40, the "Target Population'' includes the approximately 9,000 individuals with SPMI who are currently being served in State Hospitals, who are frequently readmitted to the State Hospitals, who are frequently seen in emergency rooms, who are chronically homeless, and/or who are being released from jails or prisons. The Target Population also includes individuals with SPMI and forensic status in the care of DBHDD in the State Hospitals, if the relevant couti finds that community services are appropriate, and individuals with SPMI and a co-occurring condition, such as substance abuse disorders or traumatic brain injuries.
Bridge Funding and Georgia Housing Voucher Program
31. Bridge Funding and the Georgia Housing Voucher Program ("'GHVP'') are specific types of housing assistance that may include the provision of security deposits, household necessities, living expenses, and other suppmis during the time needed for a person to become eligible and receive federal disability or other supplemental income.
32. By June 30, 2016, the State shall provide Bridge Funding for at least an additional 300 individuals in the Target Population.
33. By June 30, 2017. the State shall provide Bridge Funding for at least an additional 300 individuals in the Target Population.
3-L By June 30. .20 16. the State sh3ll provide GHVP vouchers for an additional 358 individuals in the Target Population.
35. By June 30, 2017, the State shall provide GHVP vouchers for at least an additional .275 individuals in the Target Population.
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Supported Housing
36. Supported Housing is assistance, including psychosocial suppm1s, provided to persons with SPMI to assist them in attaining and maintaining safe and affordable housing and suppm1 their integration into the community. Supported Housing includes integrated permanent housing with tenancy rights, linked with t1exible community-based services that are available to consumers when they need them, but are not mandated as a condition of tenancy. Suppm1ed Housing is available to anyone in the Target Population, even if he or she is not receiving services through DBHDD.
37. Supported Housing includes scattered-site housing as well as apartments clustered in a single building. Under this Extension Agreement, the State shall continue to provide at least 50% of Suppm1ed Housing units in scattered-site housing, which requires that no more than 20% of the units in one building, or no more than two units in one building (whichever is greater), may be used to provide Supported Housing.
38. Under this Extension Agreement, by June 30, 2018, the State will have capacity to provide Supported Housing to any of the individuals in the Target Population who have an assessed need for such support.
39. Between the Effective Date ofthis Extension Agreement and June 30, 2018, the State shall continue to build capacity to provide Suppm1ed Housing by implementing a Memorandum of Agreement between DBHDD and the Georgia Department of Community Affairs, which includes the following components:
a. a unified refen·al strategy (including education and outreach to providers, stakeholders, and individuals in the Target Population) regarding housing options at the point of referral;
b. a statewide detennination of need for Supported Housing, including developing a tool to assess need, forming an advisory committee to oversee the needs assessment, developing a curriculum to train assessors, training and ce11ifying assessors, and analyzing and repm1ing statewide data:
c. maximization of the Georgia Housing Voucher Program: d. housing choice voucher tenant selection preferences (granted by the U.S. Department of Housing and Urban Development); e. effective utilization of available housing resources (such as Section 811 and public housing authorities); and f. coordination of available state resources and state agencies.
40. The State shall implement procedures that enable individuals with SPMI in the Target Population to be referred to Supported Housing ifthe need is identified at the time of discharge from a State Hospital. jail. prison. emergency room. or homeless shelter.
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OVERSIGHT AND MONITORING
41. The Parties have agreed that the Independent Reviewer for the Settlement Agreement, Elizabeth Jones, will be the Independent Reviewer for this Extension Agreement. Section VI.A of the Settlement Agreement shall apply in the event that a new reviewer must be selected.
42. The Independent Reviewer shall issue compliance reports semi-annually. These reports shall include a detailed reporting on each discrete task and timeframe in this Extension Agreement. Either Party or the Independent Reviewer may request a comi status conference.
43. The Parties, the Independent Reviewer, and the Amici shall convene quarterly meetings (in person or via telephone) to discuss implementation of this Extension Agreement and address any batTiers to achieving compliance. The Parties, Independent Reviewer, and the Amici may agree to modify the frequency oftheir meetings, without a formal amendment to this Extension Agreement.
CONSTRUCTION AND TERMINATION
44. The '"Effective Date" of this Extension Agreement shall be the date on \vhich this Extension Agreement is approved and entered by the Comi.
45. The Parties agree that this is a court-enforceable modification of the Settlement Agreement, as provided for under Section VI I.E of the Settlement Agreement.
46. Unless otherwise noted, all definitions, obligations, and terms and conditions in the Settlement Agreement remain in effect for the term of this Extension Agreement. This Extension Agreement supplements and does not supplant the Settlement Agreement.
47. The State may provide funding for the obligations set forth in this Extension Agreement through any legal means. If an unforeseen circumstance causes a failure to meet any requirements of this Agreement, the State shall notify the United States in writing within 30 calendar days after the State becomes aware of the unforeseen circumstance and its impact on the State's ability to perform under the Extension Agreement. The notice shall describe the cause ofthe failure to perfmm and the measures that the State has taken to prevent or minimize the failure. The State shall take all reasonable measures to avoid or minimize any such failure.
48. The Parties anticipate that the State will have substantially complied with all provisions of the Extension Agreement by June 30, 2018. Substantial compliance is achieved if any violations of the Extension Agreement are minor or occasional and are not systemic.
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Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 16 of 19
49. If the State believes it has achieved substantial compliance with a provision ofthis Extension Agreement it shall notify the United States and Independent Revie\\er in writing. Within 45 days of receipt ofthe State's notification, the United States and Independent Reviewer shall either deny or accept each assertion of substantial compliance in writing. If the Parties disagree about the asserted substantial compliance and are unable to resolve the dispute within 60 days following the response letter, the State may request that the Court hold a hearing to determine whether the State has achieved substantial compliance with the provision. The State shall be relieved of that provision ofthe Extension Agreement, ifthe United States and the Independent Reviewer agree with the State's assertion of substantial compliance, if the United States does not respond to the State's notification, or ifthe Court finds substantial compliance.
50. Section VII.A.3 ofthe Settlement Agreement is stricken and replaced with the following: The Parties may agree to jointly ask the Comt to terminate the Settlement Agreement and the Extension Agreement before 1uly 1, 2018, provided the State has substantially complied with all provisions of the Settlement Agreement and Extension Agreement. If the case has not yet been dismissed, the Parties agree to ask the Court for a non-evidentiary hearing on the status of compliance on or near July 1, 2018. If the Parties agree that there is non-compliance, or if there is a dispute about compliance, the Parties will inform the Comt, and the Court may set additional hearing dates as appropriate. The Patties may agree jointly at any time to allow for additional time to resolve compliance issues.
Executed on this ~ day of ~, 2016,
FOR THE UNITED STATES:
10 United States ~ torney Nmthern District of Georgia
AILEEN BELL HUGHES Assistant United States Attorney Northern District of Georgia
15

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 17 of 19
Executed on this lf_ day of M<llj , 2016.
FOR THE UNITED STATES:
VANITA GUPTA Principal Deputy Assistant Attorney General U.S. Department of Justice Civil Rights Division EVE L. HILL Deputy Assistant Attorney General Civil Rights Division STEVEN H. ROSENBAUM Chief Special Litigation Section MARY R. BOHAN Deputy Chief Special Litigation Section ASHLEY McDONALD KATHERINE HOUSTON REGAN BAILEY Attorneys Special Litigation Section
16

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 18 of 19

f-;1 , /~L
__<[ Executed on this I day of

~7 2016.

FOR THE STATE:

NATHAN DEAL Governor, State of Georgia

FRANK W. BERRY Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities

CLYDE L. REESE, III Commissioner, Georgia Deprutment of Community Health

17

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 19 of 19
Executed on this _ _ day of_ _ _, 2016.
FOR THE STATE:
NATHAN DEAL Governor, State of Georgia FRANK W. BERRY Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities CLYDE L. REESE, III Commissioner, Georgia Department of Community Health
17

 
 Case 1:10-cv-00249-CAP Document 261 Filed 06/21/16 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION


UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

____________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

NOTICE OF JOINT FILING OF THE SUPPLEMENTAL REPORT OF THE INDEPENDENT REVIEWER

Plaintiff United States and Defendants State of Georgia, et al., jointly file the Supplemental Report of the Independent Reviewer pursuant to ¶ VI.B of the Settlement Agreement [Docket Nos. 112, 115, 151 &171]. The Independent Reviewer’s report (with its referenced attachments) is included as Attachment A hereto.
Respectfully submitted, this 21st day of June, 2016.

Case 1:10-cv-00249-CAP Document 261 Filed 06/21/16 Page 2 of 5

FOR THE UNITED STATES:
JOHN A. HORN United States Attorney Northern District of Georgia
/s/ (Express Permission)___ AILEEN BELL HUGHES [GA 375505] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

VANITA GUPTA Principal Deputy Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
/s/ Regan Bailey REGAN BAILEY [DC 465677] Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 305-3113 Fax: (202) 514-0212 Email: Regan.Bailey@usdoj.gov

2 


Case 1:10-cv-00249-CAP Document 261 Filed 06/21/16 Page 3 of 5

FOR THE STATE OF GEORGIA:
SAMUEL S. OLENS Attorney General Georgia Bar No. 551540
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
MARK J. CICERO Assistant Attorney General Georgia Bar No. 125686
JASON S. NAUNAS Assistant Attorney General Georgia Bar No. 142051
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ (Express Permission)___ JAIME THERIOT Special Assistant Attorney General Georgia Bar No. 497652 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3534 Facsimile: (404) 962-6748 Email: jaime.theriot@troutmansanders.com
/s/ (Express Permission)___ JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsLaw LLC 999 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinslawllc.com

3 


Case 1:10-cv-00249-CAP Document 261 Filed 06/21/16 Page 4 of 5

Local Rule 7.1D Certification

By signature below, counsel certifies that the foregoing document was prepared in Times New Roman 14-point font in compliance with Local Rule 5.1B.

/s/ Regan Bailey

.

REGAN BAILEY

Trial Attorney

U.S. Department of Justice

Civil Rights Division

Special Litigation Section

Case 1:10-cv-00249-CAP Document 261 Filed 06/21/16 Page 5 of 5
CERTIFICATE OF SERVICE I hereby certify that on this 21st day of June, 2016, I electronically filed the JOINT FILING OF THE REPORT OF THE INDEPENDENT REVIEWER with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to all of the attorneys of record.
/s/ Regan Bailey___ REGAN BAILEY

Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 1 of 39

ATTACHMENT A


Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 2 of 39
SUPPLEMENTAL REPORT In the Matter of

United States v. Georgia
 (Civil Action 1:10-cv-00249-CAP)
Submitted by:
 Elizabeth Jones, Independent Reviewer

June 20, 2016

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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 3 of 39
INTRODUCTORY COMMENTS

The Settlement Agreement requires the Independent Reviewer to prepare an annual report, summarizing the State’s progress towards compliance with its terms. This annual report is prepared after the close of the Fiscal Year and contains detailed descriptions of the State of Georgia’s efforts to provide appropriate planning and services to support individuals at risk of institutionalization. The annual report typically is filed with the Court in September of the following Fiscal Year.
Periodically, a Supplemental Report by the Independent Reviewer has been filed with the Court in order to address matters of heightened interest or importance to the Parties. The Supplemental Report is not intended to be as comprehensive as the annual report or to contain ratings about compliance with the terms of the Settlement Agreement.
This Supplemental Report is being written to provide an update on a selected set of issues relevant to the upcoming annual report. These issues include: access to housing for individuals in the target population with a serious mental illness; the transition of individuals with a developmental disability from the state hospitals to community-based residential settings; and the status of previously placed individuals with a developmental disability who transitioned from the state hospitals in the earlier years of the Settlement Agreement.
The Settlement Agreement has reached the end of its anticipated five-year term. The year of sustainability of effort for certain obligations has been in effect since July 1, 2015 and is scheduled to end on June 30, 2016.
At the time of this report’s preparation, the Parties had negotiated and signed a twoyear Extension to the Settlement Agreement. On May 27, 2016, the Court granted the Parties’ Joint Motion to enter the Extension of the Settlement Agreement and agreed to retain jurisdiction to enforce its terms. 1
The Extension to the Settlement Agreement will focus on and address the issues discussed in this Supplemental Report.
As with each report, the generous and capable efforts of many colleagues have been critical to the work of the Independent Reviewer. This assistance and guidance is greatly appreciated and has been instrumental to shaping the findings of this Supplemental Report.
1 United States District Court for the Northern District of Georgia, Atlanta Division, Case 1:10-cv-00249-CAP, Document 259, filed 05/27/16.
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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 4 of 39
OVERALL METHODOLOGY
The information for this report was obtained through numerous sources and strategies.
Fact-finding was completed between January and the middle of May 2016.
The Independent Reviewer retained consultants with expertise in supported housing, clinical psychology, behavior analysis and nursing in order to complete individual reviews of people in the target population and to assess the implementation of community supports on programmatic and systemic levels. Their work was performed through discussions with staff from the Department of Behavioral Health and Developmental Disabilities, advocates and, in many instances, the individuals eligible for the community-supports under review. Site visits to community programs and state hospitals were completed in Regions 1, 2, 3, 4, and 5. Documentation was provided and reviewed, as relevant.
The Independent Reviewer met often with Department leadership and programmatic staff. The Director of Settlement Services ably responded to requests for documentation and other information. Site visits were conducted to community residential settings on both an unannounced and announced basis. Observations also took place in three shelters for homeless individuals in the metro Atlanta area. Attorneys for the State of Georgia and the United States Department of Justice were most helpful in responding to questions and requests for assistance. Members of the advocacy community, especially members of the Amici, were accessible and responsive with their time and thoughtful observations.
The individuals reviewed during this reporting period were selected both by random and purposeful sampling. A senior researcher at Virginia Commonwealth University selected all samples.
The thirty-one individuals with a developmental disability living in communitybased residences were monitored using a questionnaire developed in collaboration with staff from the Department of Behavioral Health and Developmental Disabilities. Copies of the completed questionnaires were provided to the Parties.
As required by the Settlement Agreement, a draft of this report was submitted to the Parties for review and comment prior to its finalization. All comments were carefully considered; changes were made in the narrative, as appropriate.
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FINDINGS
Community Supports for Individuals with Serious Mental Illness
Stable housing with supports is a critical component of recovery from serious mental illness. Without this foundation, it is difficult to form and retain trusting relationships, learn and exercise skills, develop a predictable routine and rhythm of the day, manage limited resources effectively, safeguard one’s health and safety, and contribute to one’s community.
Well-established research in the field of behavioral health has documented the positive effect of housing with supports, especially for individuals with histories characterized by multiple psychiatric hospitalizations, homelessness and reluctance to engage in treatment.
The Settlement Agreement requires the State of Georgia to provide access to housing with supports to members of the target population with a serious mental illness.
Throughout the course of the Agreement, the State has exceeded its obligation to fund housing vouchers and to provide Bridge Funding. In fact, the State has been continuously applauded for its efforts. Without a doubt, numerous individual examples have confirmed that the provision of stable housing with supports has made a critical difference.
The Annual Report filed with the Court in September 2015 documented the State’s many successful efforts to ensure access to housing and supports. However, it was agreed that additional time would be needed for the State to comply with Provision III. B. 2. c. ii. (A):
By July 1, 2015, The State will have capacity to provide Supported Housing to any of the 9,000 persons in the target population who need such support.
Supported Housing Needs Assessment:
At the end of the last Fiscal Year (2015), a primary objective of the Department of Behavioral Health and Developmental Disabilities was to conduct an assessment of the need for supported housing. The planning for the implementation of the assessment process was shared in a timely and forthright manner with the Independent Reviewer, her expert consultant in housing and with members of an advisory group comprised of advocates and other stakeholders.
As of this date, the Department continues to make progress implementing its Supported Housing Needs Assessment. As part of Phase I, it has established a baseline of the number of individuals who require supported housing and are currently receiving it. The Supported Housing Needs and Choice tool has been
4

Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 6 of 39
administered in three jails and two correctional facilities. Under the Department’s direction, a nationally recognized consulting group, the Technical Assistance Collaborative (TAC), has offered training on the importance of supported housing to the staff of provider agencies.
However, Phase I also revealed a number of significant challenges to the validity of the planned process for defining and implementing the supported housing needs of the target population.
First, the Department’s current process for obtaining supported housing may be an obstacle for some members of the target population, especially those exiting jails and correctional institutions. The current protocol requires individuals to be identified, assessed, referred for services to a provider agency and then referred, by that provider, for housing. The Department collaborates with the Georgia Department of Corrections and a few local jails to try to plan for post-release services and housing. Staff have reported that the process can be cumbersome. Institutions where individuals are incarcerated are not always in close proximity to where people are moving upon release. In addition, obtaining housing and benefits takes time. Therefore, it is not always possible to make housing and other needed arrangements in a timely manner for individuals leaving jails or correctional facilities.
Second, as noted since the inception of the Georgia Housing Voucher Program in 2011 and again after this baseline phase, individuals being discharged from state hospitals, or private hospitals under contract with the Department, are referred to providers who make the referral to the Georgia Housing Voucher Program. To date in Fiscal Year 2016, only fifty-five individuals leaving state/private hospitals under contract and fifty-six individuals exiting jails have been housed out of the 614 individuals with signed leases under the Georgia Housing Voucher Program. In addition, the number of people in the target population who are exiting jails and correctional institutions, and could qualify for and benefit from supported housing, is largely unknown. The baseline assessment process was not robust enough to project this number.
The number of individuals leaving the four state psychiatric hospitals and the private psychiatric hospitals, under contract with the Department, who are in need of supported housing, is still unknown primarily because the processes and timeframes for discharge from a hospital do not match with the requirements of the current referral protocol described above. For example, at some point after admission, hospital staff screen and evaluate individuals for their interest in/need for supported housing. Staff utilize the Housing Need and Choice Survey to identify their interest/need for housing. Field Office-based Hospital Transition Specialists, Field Office staff, and Crisis/Inpatient Staff work with Hospital Recovery Planning Teams to integrate these findings into the individual’s Transition Action Plan (TAP). This information is then sent electronically to a potential “receiving community provider.” The provider then has thirty days from receipt of the electronic referral
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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 7 of 39
to complete a Risk Assessment and Housing Plan. In many cases, the individual is ready for discharge well before the end of the thirty-day period. (The average length of stay is reported as ten days.) As a result, supported housing is not available for the individual in a timely manner and discharge options are limited in scope.
An additional concern is the unfortunate pattern of hospitals, both state and private, discharging individuals to shelters for homeless people. As discussed further below, there is documented evidence that these individuals, many at high risk and with “revolving door” histories of psychiatric hospitalization, are not being referred for supported housing. A significant number of individuals brought to Georgia Regional Hospital Atlanta are not admitted. Thus, they do not receive the Housing Need and Choice Survey, even though they fall under the Settlement Agreement criteria. As a result, many have not been, and are unlikely to be, included in the Supported Housing Need and Choice evaluation process as currently designed and implemented.
At this time, as a result of the lack of inclusion of individuals exiting most jails, all of the State’s correctional institutions and state/private psychiatric hospitals, the Department has not demonstrated that it has met the threshold requirement of identifying the need for supported housing for the target population. This matter requires prompt discussion among the Parties to the Settlement Agreement.
Discharges to Shelters:
The review of individuals discharged from state hospitals to shelters for homeless people began in February 2016 as follow-up to the receipt of a Critical Incident Report.
On February 9, 2016, a meeting was held with the Department’s leadership to review the protocols for discharge to a shelter, the revised policy directives from the Medical Director, and the number of shelter discharges in Fiscal Year 2015. The Independent Reviewer requested the Department to provide ongoing quarterly data about discharges to shelters. That request has been addressed in a timely manner.
According to the Department’s report, in Fiscal Year 2015, there were 217 discharges, for 195 individuals, from three state hospitals to shelters for homeless people. (Some individuals were discharged to a shelter more than once.) This appears to be largely an issue in the Atlanta metropolitan area. During this time period, there were 177 shelter discharges for 157 individuals from Georgia Regional Hospital Atlanta.2 Thirty-four of these individuals had histories of ten or more hospital admissions.
2 There were a total of thirty-four discharges to shelters for thirty-two individuals hospitalized in Georgia Regional Savannah. Six individuals were discharged to shelters from East Central Regional Hospital. There were no shelter discharges from the state hospital in Columbus.
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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 8 of 39
In the months of January, February and March 2016 (the third Quarter of the Fiscal Year), there were fourteen individuals discharged to shelters from Georgia Regional Hospital Atlanta. Four of these discharges took place after the initiation of the Department’s revised policy on discharge to a shelter; a decrease of one person per month for the previous two months. This policy permits PATH Teams to be contacted directly by the state hospital so that they may begin work with an individual known to be homeless.
On March 30, 2016, the Independent Reviewer made unannounced visits to two shelters in downtown Atlanta to inquire about the admission of individuals with a serious mental illness who were recently discharged from a psychiatric hospital.
On March 31, 2016, the Independent Reviewer examined records of a sample of six individuals discharged from Georgia Regional Hospital Atlanta to shelters in Fiscal Year 2015 in order to become familiar with the documentation and some of the case examples, including the reasons for discharge to a shelter rather than to housing with supports.
Based on that preliminary review, a sample of twenty-three individuals discharged from Georgia Regional Hospital Atlanta to shelters in Fiscal Year 2015 was selected by the Independent Reviewer for further review.3 On April 21 and 22, 2016, the Independent Reviewer and her housing consultant reviewed sections of these individuals’ hospital records; interviewed hospital, Regional Field Office and PATH staff knowledgeable about discharge decision-making; and briefly interviewed two individuals who were readmitted to the hospital after discharge to a shelter. In addition, an unannounced site visit was made to a large shelter for homeless individuals in mid-town Atlanta.4
On May 9, 2016, the Independent Reviewer and her housing consultant visited a transitional housing facility and met with Department leadership to discuss the preliminary findings from the work described above.
On May 10, 11 and 12, 2016, a clinical psychologist retained by the Independent Reviewer met with staff at Georgia Regional Hospital Atlanta and reviewed the records of all fourteen individuals discharged to shelters during the months of
3 The individuals in the sample all had histories of ten or more psychiatric hospitalizations at Georgia Regional Hospital Atlanta. 4 The Independent Reviewer has made three unannounced visits to this shelter. In her opinion, and as discussed with the Department, the conditions are simply unacceptable. During her last visit, shelter staff reported that the Department of Health makes two to three visits weekly to test for tuberculosis. It was necessary to walk through standing water from a broken pipe in order to reach the area where the shelter’s residents remain during the daytime hours. A man identified, by staff, as having a mental illness was interviewed briefly.
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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 9 of 39
January, February and March 2016. She interviewed two individuals who were readmitted after discharge and were still hospitalized.
The clinical psychologist’s report, describing the findings from the last set of reviews and interviews, has been shared with the Parties. In order to protect confidentiality, the information regarding discharge practices, is summarized below:
• Of the fourteen individuals discharged to shelters, five individuals (36%) have been re-hospitalized, since discharge, at Georgia Regional Hospital Atlanta.
• Despite the change in the Department’s protocol for discharge to a shelter, only two of the requisite forms (15%) had documentation of the necessary approval. 5
• Eight of the fourteen individuals (57%) were homeless at the time of admission. Three individuals (21%) lived with family. One individual (7%) was living in a motel and one individual (7%) was living in an apartment.
• Seven of the fourteen individuals (50%) were discharged to the shelter described above in Footnote 4.
• There was documentation that four individuals were referred to a PATH Team, part of the revised protocol implemented by the Department to reduce discharges to shelters.
The record reviews and interviews conducted about discharges to shelters provide important information about the current effectiveness of the Department’s policies and practices. For example:
• At this time, there is a lack of consistency in implementing the Department’s revised policy about discharge to a shelter, including the requirement that the Medical Director give prior approval.
• Planning for discharge from a psychiatric hospital must begin at the time of admission. Based on information in the records, it was known that 57% of the individuals were homeless at the time they entered Georgia Regional Hospital Atlanta. Preparations for supported housing were not initiated at an early enough point in time to enable the development of a trusting relationship between the individual and a potential provider of housing.
5 At the February 9, 2016 meeting, the Department’s Medical Director indicated that his prior approval was now required for discharge to a shelter.
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Although PATH Teams6 are noted for their expertise in reaching out to people with long histories of homelessness, in these cases, they were not given sufficient time to establish a meaningful connection with the hospitalized person. As a result, the referral to the PATH Team was rejected or not secured sufficiently prior to discharge.
• The Department’s protocol for referring individuals to supported housing is not effective or timely for individuals leaving a psychiatric hospital who lack reliable options for transitional housing or who are reluctant to engage in mental health services through a provider agency. A Housing First policy must begin with the provision of housing rather than the requirement to accept treatment. Research in the field clearly confirms that individuals begin to accept the idea of treatment once they are living in stable housing that is consistent with their preferences for self-determination. While not fully meeting the Housing First definition, PATH teams have been allocated funds to assist individuals meeting the Settlement Agreement criteria to move to transitional housing7 locations that would enable them to have more time to seek housing. While too early to determine the efficacy of this approach, it may provide an opportunity to help the transition for individuals with shortterm hospital stays.
• There was scant documentation about the use of Assertive Community Treatment (ACT) Teams for the fourteen individuals reviewed. It was documented that two individuals were referred to ACT Teams; both declined. Overall, the number of hospitalizations experienced in this group of individuals would qualify them for enrollment with an ACT Team.
In order to more fully understand both the dynamics and the outcomes of discharges from psychiatric hospitals to shelters for homeless people, the work initiated for this Supplemental Report will be continued, with emphasis on discharges from Georgia Regional Hospital Atlanta. It is anticipated that the Department will provide new data at the end of the Fiscal Year.
It is recommended that the Department intensify its efforts to prevent discharges to shelters. Staff should be instructed to begin planning for discharge at the time of hospital admission. In addition, it is recommended that the Department review its processes for referral to Assertive Community Treatment so that more people with a history of repeated hospital admissions can be diverted from this cycle.
6 The PATH Team working with staff/clients at Georgia Regional Hospital Atlanta is highly regarded and has a reputation for positive outcomes on behalf of people who are characterized as chronically homeless. 7 The two Atlanta sites identified as “transitional housing” are still being reviewed by the Independent Reviewer and her housing consultant. Both sites are large congregate facilities.
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Forensic Individuals:
In preparation for the last Annual Report, the Independent Reviewer retained an experienced forensic psychologist to conduct fieldwork and a review of relevant documentation about the access to supported housing by individuals awaiting discharge from the forensic units/buildings of state hospitals.
The consultant’s report identified factors that inhibited the timely discharge of forensic individuals, especially those identified as Incompetent to Stand Trial (IST) or Not Guilty by Reason of Insanity (NGRI). The report also offered recommendations to expedite discharge planning and the transition to communitybased residential and other supports.
On February 29, 2016, this report was discussed at some length with leadership staff of the Department of Behavioral Health and Developmental Disabilities.
A copy of the consultant’s report is attached.
There continues to be collaboration between the Independent Reviewer and the Department in examining access to housing and supports for individuals with forensic histories who are included in the target population. Further findings will be included in the next Annual Report.
Community Supports for Individuals with a Developmental Disability
Under the terms of the Extension to the Settlement Agreement, there will continue to be emphasis on the development of a responsive system of community-based supports for individuals with a developmental disability included in the target population.
Therefore, the information summarized below is intended to assist the Parties in working together to shape reforms, as needed, and to recognize areas of sustained progress. There will be a more detailed description of the planning list, the transition process, the “high risk” list, the placement of individuals with a forensic history, and the implementation of community-based clinical supports in the forthcoming Annual Report.
The information for this Section was obtained primarily through meetings held by the Independent Reviewer with Department staff and through the site visits conducted by her consultants in nursing and behavior analysis.
There were three groups of individuals selected for review:
• The first group included four individuals placed under the auspices of the Pioneer Project. Three of the individuals, all women, live together in the first
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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 12 of 39
residence established under the Pioneer Project in Region 2. The fourth individual, a man, lives in a house managed by a second provider agency in another city. 8
• The second group consisted of twenty-three individuals previously placed in the earlier years of the Settlement Agreement. These individuals were selected for review by purposeful sampling. That is, individuals were identified from the notes transcribed by the Department’s Regional Quality Review Teams and by Support Coordinators assigned to the individuals. The notes described areas of concern and, in some cases, the actions taken to resolve them.
• The third group of six individuals also was selected by purposeful sampling, as described above. Each individual was known to have behavioral concerns, although the current extent of those concerns was not fully known prior to the site visit and document review. Four of the individuals live in a community-based residential setting; two individuals still were hospitalized at East Central Regional Hospital after earlier community placements were unsuccessful.
Narrative reports were prepared for the two hospitalized individuals; the monitoring questionnaire was completed in all other instances. All reports have been shared with the Parties.
Discussion of Transitions from State Hospitals:
As of June 17, 2016, there have been 524 placements from state hospitals under the Settlement Agreement.
The Department maintains a planning list for community placements. The Director of Transitions is responsible for maintaining the list. Decisions about community placement are made in consultation with families, state hospital staff and, as possible, the individuals themselves. In addition, clinical consultants with the Pioneer Project are actively engaged. Final approval for the placement rests with the Transition Fidelity Committee, comprised of leadership staff at the Department.9
8 The Pioneer Project refers to a set of policies, protocols and practices established by the Department as part of its reform efforts. Placements have been primarily in Region 2, although placements in Region 4 have occurred in Fiscal Year 2016. 9 In April 2016, the Independent Reviewer’s nurse consultant was asked to advise on three planned placements in order to ensure a comprehensive review of necessary health-related supports. These three individuals are scheduled for placement from Gracewood at a future, yet undetermined, time. (They are not included in this Report.) The Department’s request for this consultation is greatly
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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 13 of 39

The Department also maintains a list of individuals who are considered to be at higher risk because of their medical or behavioral complexity. The responsibility for this list is assigned to the Health and Wellness Unit. A sample of individuals on this list will be reviewed for the next Annual Report.10
As referenced above, four placements completed under the Pioneer Project in Region 2 were reviewed.

SELECTED RESPONSES FOR FOUR PIONEER PROJECT PLACEMENTS
 MAY 2016


Demographic Information


Sex Male Female

n

%

1

25.00%

3

75.00%

Age range 41 to 50 61 to 70

n

%

1

25.0%

3

75.0%

Level of mobility

n

Ambulatory without support

1

Ambulatory with support

3

% 25.0% 75.0%

The nurse consultant conducting the reviews found that:

Individual Interview Items

No.

Item

n

25 Is your home located near community

4

resources (i.e. shopping, recreational sites,

churches, etc.?)

29 Have you met your neighbors?

4

26 Do you have your own bedroom?

4

27 Do you have privacy in your home if you want 4

it?

31 Within the last quarter, have you participated 4

in community outings on a consistent weekly

basis?

Y

N

CND

100.0% 0.0% 0.0%

50.0% 50.0% 100.0% 0.0% 100.0% 0.0%

0.0% 0.0% 0.0%

75.0% 25.0% 0.0%

appreciated; it is a good example of the openness that characterizes the transition 
 work.
 10 In the Extension to the Settlement Agreement, this list is called the “High Risk
 Surveillance List.”

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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 14 of 39

32 Do you go out primarily with your housemates as a group?
35 Do you have the opportunity to attend a church / synagogue / mosque or other religious activity of your choice?
36 Do you belong to any community clubs or organizations?

3 100.0% 0.0% 0.0% 4 25.0% 75.0% 0.0%
4 25.0% 75.0% 0.0%

Environmental Items

No.

Item

48 Is the individual’s residence clean?

49 Are food and supplies adequate?

50 Does the individual appear well kempt?

51 Is the residence free of any safety issues?

n

Y

4 100.0%

4 100.0%

4 100.0%

4 100.0%

N 0.0% 0.0% 0.0% 0.0%

CND 0.0% 0.0% 0.0% 0.0%

Healthcare Items

No.

Item

n

60 Did the individual have a physical

4

examination within the last 12 months or is

there a variance approved by the physician?

63 Were the Primary Care Physician’s (PCP’s)

4

recommendations addressed/implemented

within the time frame recommended by the

PCP?

64 Were the medical specialist’s

4

recommendations addressed/implemented

within the time frame recommended by the

medical specialist?

65 Is lab work completed as ordered by the

4

physician?

67 Are physician ordered diagnostic consults

4

completed as ordered within the time frame

recommended by the physician?

83 If applicable, is the dining plan followed?

1

84 If applicable, is the positioning plan followed? 3

85 In your professional judgment as a Registered 4

Nurse: Are the individual’s serious physical

health care needs met?

86 Are the health care interventions consistent

4

with professional standards of care?

87 Does nursing care meet professional

4

standards?

93 Does this individual receive psychotropic

4

medication?

Y

N

CND

100.0% 0.0% 0.0%

100.0% 0.0% 0.0%

100.0% 0.0% 0.0%

100.0% 0.0% 100.0% 0.0%

0.0% 0.0%

100.0% 0.0% 100.0% 0.0% 75.0% 25.0%

0.0% 0.0% 0.0%

75.0% 25.0% 0.0% 25.0% 75.0% 0.0% 25.0% 75.0% 0.0%

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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 15 of 39

Healthcare Items

No.

Item

n

96 Is there documentation that the individual

1

and/or a legal guardian/surrogate decision-

maker has given informed consent for the use

of psychotropic medication(s)?

104 Is there any evidence of administering

4

excessive or unnecessary medication(s)?

Y

N

CND

0.0% 100.0% 0.0%

0.0% 100.0% 0.0%

The findings from the review of four individuals in two residential settings must be interpreted carefully because of the small size of the sample. Nonetheless, there are positive indicators about the residential setting (privacy, location in a typical neighborhood, access to resources, condition of the residence) and the opportunities for integration with non-disabled individuals, including participation in a local Senior Citizen Center. Discussion with residential staff indicated that additional resources for social integration were being explored, based on the individuals’ interests and choice.

• In particular, one of the three women placed has shown a remarkable response to her new setting. The Independent Reviewer had observed her on three separate occasions at the state hospital. Each time, she was seen with a blanket over her head, huddled in a chair, refusing to interact with the staff who approached her. In her new home, she is responsive to staff; allows them to touch her hand or shoulder; is showing signs of active listening (she was thought to be hearing impaired at the state hospital); and is becoming comfortable with her daily route, including enjoying taking a bath. (She refused showers in the state hospital and had to be escorted by two staff.)

Essential health care supports were in place with physician recommendations implemented in a timely manner, laboratory work completed as ordered, and individualized protocols for positioning and mealtime performed as required.

Psychotropic medication was used for only one individual. There was no evidence of unnecessary or excessive medications.

Issues identified for further attention by the provider and Department staff included the hiring of a Registered Nurse to supervise health care in one residence; obtaining a medical consultation regarding treatment or precautionary measures for the hernia experienced by one individual; ensuring informed consent for the use of psychotropic medication by one individual; and monitoring the completion of data collection and documentation in one residence.

Each of these issues has been brought to the Department’s attention for remedial action, as required.

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The second group of individuals reviewed included those placed in the earlier years of the Settlement Agreement. These placements did not have the benefit of the protocols, policies and practices designed under the Pioneer Project cited above. For example, support coordination was not involved prior to discharge from the state hospitals. Residential agency staff reported that they were not consistently provided with sufficient information about the individual and his/her needs.
The twenty-three individuals in this group were reviewed by nurse consultants with extensive knowledge of and experience in the field of intellectual/developmental disabilities.
Site visits were conducted in the individual’s residence. In some cases, the day program was briefly visited in order to meet the individual being reviewed. All individuals in the sample were observed at some point during the site visit. The responses from the Monitoring Questionnaires were analyzed by the senior researcher/statistician retained by the Independent Reviewer.
The findings include:

SELECTED RESPONSES FOR PREVIOUS PLACEMENTS
 MAY 2016


Demographic Information


Sex Male Female

n

%

14

60.9%

9

39.1%

Age range 21 to 30 31 to 40 41 to 50 51 to 60 61 to 70 71 to 80 81 to 90

n

%

2

8.7%

5

21.7%

2

8.7%

7

30.4%

4

17.4%

2

8.7%

1

4.3%

Level of mobility

n

Ambulatory without support

6

Uses wheelchair

7

Ambulatory with support

9

Confined to bed

1

% 26.1% 30.4% 39.1% 4.3%

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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 17 of 39

Individual Interview Items

No.

Item

n

25 Is your home located near community

23

resources (i.e. shopping, recreational sites,

churches, etc.?)

29 Have you met your neighbors?

23

26 Do you have your own bedroom?

23

27 Do you have privacy in your home if you

23

want it?

31 Within the last quarter, have you participated 23

in community outings on a consistent weekly

basis?

32 Do you go out primarily with your

21

housemates as a group?

35 Do you have the opportunity to attend a

23

church / synagogue / mosque or other

religious activity of your choice?

36 Do you belong to any community clubs or

23

organizations?

Y

N

CND

100.0% 0.0% 0.0%

82.6% 17.4% 100.0% 0.0% 100.0% 0.0%

0.0% 0.0% 0.0%

78.3% 17.4% 4.3%

81.0% 19.0% 0.0% 69.6% 30.4% 0.0%

26.1% 73.9% 0.0%

Environmental Items

No.

Item

48 Is the individual’s residence clean?

49 Are food and supplies adequate?

50 Does the individual appear well kempt?

51 Is the residence free of any safety issues?

n

Y

23 73.9%

23 95.7%

23 95.7%

23 100.0%

N 26.1% 4.3% 4.3% 0.0%

CND 0.0% 0.0% 0.0% 0.0%

Healthcare Items

No.

Item

n

60 Did the individual have a physical

23

examination within the last 12 months or is

there a variance approved by the physician?

63 Were the Primary Care Physician’s (PCP’s)

23

recommendations addressed/implemented

within the time frame recommended by the

PCP?

64 Were the medical specialist’s

23

recommendations addressed/implemented

within the time frame recommended by the

medical specialist?

65 Is lab work completed as ordered by the

23

physician?

67 Are physician ordered diagnostic consults

22

completed as ordered within the time frame

recommended by the physician?

Y

N

CND

100.0% 0.0% 0.0%

95.7% 4.3% 0.0%

69.6% 21.7% 8.7%

91.3% 4.3% 86.4% 9.1%

4.3% 4.5%

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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 18 of 39

Healthcare Items

No.

Item

n

83 If applicable, is the dining plan followed?

19

84 If applicable, is the positioning plan followed? 15

85 In your professional judgment as a Registered 23

Nurse: Are the individual’s serious physical

health care needs met?

86 Are the health care interventions consistent

23

with professional standards of care?

87 Does nursing care meet professional

23

standards?

93 Does this individual receive psychotropic

23

medication?

Y 94.7% 86.7% 65.2%

N 5.3% 0.0% 34.8%

CND 0.0% 13.3% 0.0%

56.5% 43.5% 0.0% 47.8% 52.2% 0.0% 78.3% 21.7% 0.0%

96 Is there documentation that the individual

18 88.9% 11.1% 0.0%

and/or a legal guardian/surrogate decision-

maker has given informed consent for the use

of psychotropic medication(s)?

104 Is there any evidence of administering

23 0.0% 95.7% 4.3%

excessive or unnecessary medication(s)?

The findings from these twenty-three reviews again demonstrated that residences were located in typical neighborhoods with access to local community resources. The individuals in the sample were afforded privacy; all had their own bedrooms. Many of the individuals had met their neighbors.

Negative findings about the residential settings were reported to the Department for further attention. These findings included lack of cleanliness, furniture that was damaged and should be replaced or the absence of any personalization in the individual’s bedroom or the house as a whole.

Opportunities for community activities were offered consistently to 78% of the individuals reviewed. Attendance at a church, synagogue or mosque was documented for 81% of the men and women in the sample. Most individuals went on community excursions with their housemates so it was difficult to gauge the extent of interaction with non-disabled people.

All individuals had annual physical examinations and the majority of the Primary Care Physicians’ recommendations were implemented in a timely manner.

However, as illustrated by the data documented above, there were significant gaps in the provision of health care. The failure to meet professional standards in both nursing care and the implementation of health care interventions led to the finding that 35% of the individuals in the sample did not have their serious physical health care needs met as expected.

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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 19 of 39
• For example, the Department was notified that there were serious questions regarding the oversight of the nutritional needs of one gentleman who was experiencing significant weight loss.
It has been agreed that the Independent Reviewer will meet with Department staff to discuss the findings from these reviews and to ascertain what remedial actions have been or will be taken to address inadequate or inappropriate supports for each individual.
The third group of individuals to be reviewed was identified as having behavioral concerns that affected their health, safety or ability to participate in age appropriate activities.
As referenced above, four of the individuals in this group live in community-based residential settings. They were placed in the earlier years of the Settlement Agreement. Each was known to have challenging behavior(s). As a result, a doctoral level Board Certified Behavior Analyst completed their reviews. The purpose of his review was to determine whether appropriate behavioral supports were in place and whether there were positive outcomes for the individual and the residential provider.
Two hospitalized individuals were also reviewed for this Supplemental Report. They are included on the list of dually diagnosed individuals currently hospitalized at East Central Regional Hospital. The Independent Reviewer’s consultant had previously reviewed each of these men; an update on placement plans was again the focus of the reviews. At this time, neither individual has a definite plan for release from the hospital although, reportedly, placement planning is in progress. Narrative reports on the circumstances experienced by both men have been provided to the Parties.
The list of individuals with a dual diagnosis (MH/DD) who are hospitalized at East Central Regional Hospital remains a focus of the Independent Reviewer’s work. Updated information has been requested in order to provide a more detailed description of these individuals in the next Annual Report. 11
The findings related to Behavioral Support Plans included:
• There was not a current Behavior Support Plan in place was for three of the five individuals (60%) who required one to be developed.
11 The list most recently obtained from the Department is dated October 13, 2015. There are twenty-one individuals included on that list, including the two men reviewed for this Report. However, two individuals since have been discharged to community placements and plans are underway for nine individuals, including the two men referenced above. The length of stay in some instances continues to be of concern.
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Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 20 of 39
• The behavioral planning consistently lacked updated Functional Behavioral Assessments and other key sources of information that are important to the development of effective interventions.
The Independent Reviewer will request that the Transition Fidelity Committee meet with her consultant in order to discuss his findings and his recommendations. His recommendations include:
• A Board Certified Behavior Analyst (BCBA) should conduct the development, training and supervision of behavioral programming for the individuals who require it. Responsibilities of the BCBA at the program agency level should include annual completion or update, at a minimum, of a Functional Behavioral Assessment and, subsequently, a Positive Behavior Support Plan.
• Residential staff would benefit from ongoing training by a Board Certified Behavior Analyst.
• Individuals and/or guardians should be included in the development of the Behavior Support Plan. Informed consent requires that they fully understand the intent, substance and consequences of any behavioral intervention.
In summary, as in past Reports, the individual reviews demonstrate that the foundational requirements for community integration are present. Group homes are located in typical neighborhoods; transportation is available; shopping and other resources are convenient; religious activities are accessible to many of the reviewed individuals. The extent to which the individual exercises choice or interacts with non-disabled peers is less certain.
The Pioneer Project’s strengthened approach to planning the transition from state hospital to the community remains notable. Ongoing attention to post-transition implementation of the Individual Support Plan remains essential to ensure that the recommended supports are indeed present. For example, adequate supervision by a Registered Nurse was not evident, at the times of the site visits, in the first residence established under the auspices of the Pioneer Project.
Finally, as documented in particular by the twenty-three previously placed individuals and the individuals requiring behavioral supports, there continues to be evidence of insufficient clinical supports and less than adequate implementation of individualized programmatic interventions. These systemic weaknesses have been the subject of repeated discussions. As a result, specific provisions in the Extension to the Settlement Agreement, such as those focused on the implementation of community-based clinical interventions and oversight, enhanced support coordination, the monitoring of transitions and provider recruitment, will be critical
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to strengthening the current system of community supports for individuals with a developmental disability. It is recommended that the Independent Reviewer and Department staff review each of the individual reports prepared by her consultants in order to identify systemic strengths and weaknesses. The findings from this collaborative discussion should be presented at the next Parties’ meeting as part of a baseline assessment for the implementation of the terms of the Extension to the Settlement Agreement. It is also recommended that the Independent Reviewer and the Department conduct joint monitoring visits to a representative random sample of the thirty-three individuals reviewed for this report to determine their current status. The Parties should discuss the results of these site visits.
CONCLUDING COMMENTS The recent approval of the Extension to the Settlement Agreement provides a valuable opportunity to implement renewed and revised approaches for the continuing development and implementation of community-based systems of support for people with serious mental illness or a developmental disability. Hopefully, the information gathered for this Supplemental Report will be useful as this next stage of the Settlement Agreement begins to move forward with enhanced collaboration and energy.
_______________/s/_________________________
Elizabeth Jones, Independent Reviewer June 20, 2016
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ATTACHMENT ONE
 Review of Community Access for Forensic Individuals

Patrick J. Canavan, Psy.D
 September 17, 2015

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NOTE On February 29, 2016, a meeting was held with the leadership staff of the Department of Behavioral Health and Developmental Disabilities (DBHDD) to discuss the findings of this Report. The Department expressed two concerns with the Report’s findings. First, the Department was concerned that there was inadequate recognition of the changes being made in its policies regarding the discharge planning and transition processes for forensic individuals. In order to address this concern, the Department was invited to submit additional descriptive information or clarification. In addition, the Department disagreed with the characterization of its Community Integration Homes as “institutional.” Following the meeting, a site visit was made to one of these residences in the company of Department staff. The description of the residence was not revised because, in the opinion of the Independent Reviewer, there were institution-like qualities about the physical environment. For example, there was a locked medication cabinet in the hallway and a fire extinguisher hanging on the wall by the front door. In addition, although the adult men living in the house shared bedrooms, and thereby lacked privacy, because of limited space, there were staff offices on the more spacious lower floor. Despite the above-referenced characterization, Dr. Canavan and the Independent Reviewer agree that a Community Integration Home can provide essential supports as men and women with a forensic history, who may require this structure, transition into more independent residential settings.
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REPORT OF THE REVIEW OF COMMUNITY ACCESS FOR GEORGIA DBHDD FORENSIC INDIVIDUALS
PURPOSE:
This independent review was conducted on behalf of the Independent Reviewer in US v. Georgia. The evaluation reviews the adequacy of community supports available for individuals who are currently hospitalized as Incompetent to Stand Trial and Civilly Committed (IST/CC) or Not Guilty By Reason of Insanity (NGRI). Statistics provided by the Department of Behavioral Health and Developmental Disabilities (DBHDD) indicate the scope of this issue. There were about 630 forensic status individuals in state regional hospital beds; 203 of these forensic status individuals were committed by the Court as IST/CC. The question can be stated this way: "Is there reasonable access to community supports for forensic status individuals who are ready to be transitioned into the community?"
Implicit in the question of reasonable access to community supports is the quality and timeliness of important clinical work that underpins the discharge process. As such, a high quality Transition Planning framework organizes the clinical activity of the Recovery Planning Team (RPT). The framework is built on an Individual Recovery Plan (IRP), a Risk Assessment, a thorough understanding of applicable legal standards, knowledge of and availability of community supports, such as housing options, treatment services and other supports. This evaluation reviewed each of these aspects of a quality Transition Planning framework in the State of Georgia's public behavioral health system. Finally, this review includes recommendations for DBHDD to consider regarding the issues raised.
METHOD:
The present review was conducted through interviews of individuals in care, clinicians and an administrator at regional psychiatric hospitals, program managers at DBHDD, record review, policy review, tours of the hospitals and two residential placement options. In each instance, DBHDD senior leadership, including the Settlement Agreement Director and the Forensic Program Clinical Director, accompanied this writer. In addition, this writer met with advocates, public defenders, and outpatient providers.
This writer toured four DBHDD State Psychiatric Hospitals over three visits. The hospitals visited include Georgia Regional Hospital in Atlanta, East Central Regional Hospital in Augusta, the Cook Building at Central State Hospital and Georgia Regional Hospital in Savannah. During each hospital visit, facility leadership, typically senior administrators and senior clinicians, were met, and clinical managers were interviewed. In addition, a typical tour included meeting an individual in care who was subject to IST/CC, review of their record, and discussion with members of their RPT.
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This writer separately toured three residential settings of various types, including a large single-room occupancy facility for individuals who have contact with the Court or were recently released from jail. During these visits, the writer met with the individual, their house staff and, in one case, their advocates. This writer also reviewed treatment summaries and advocates’ statements regarding the individual's status and treatment course.
Georgia law and DBHDD policies pertaining to the IST/CC legal status, transition planning, IRP process, risk assessment, and the ADA Planning List process were reviewed. Several flow charts regarding transition planning were considered. This writer spoke with the Independent Reviewer’s consultant for housing on matters related to appropriate housing for forensic status individuals.
FINDINGS:
1. The transition planning process for forensic individuals is fragmented, difficult to navigate for the individual, the RPT, supportive family members and friends, and the Court.
There are several important parts to Transition Planning that guide the process of recovery inside and beyond the hospital setting.
Ideally, transition planning starts immediately upon admission. The major considerations for the Recovery Planning Team (RPT) should be "what are the symptom reduction, skill building and supports necessary for this individual to be successful in the community.” The specific concerns of the individual guide the RPT as they create a recovery plan to address these issues. This document, called the Individual Recovery Plan (IRP) in the Georgia system, includes several parts that answer these major considerations. The overall case formulation includes: pertinent history, predisposing factors, precipitating factors, perpetuating factors, previous treatments and response and, finally, present status. There is also a section of the IRP called “Discharge Process,” where the team considers the reason for admission, discharge criteria for the anticipated placement, a discharge plan and discharge barriers, and a projected target date for achieving goals and objectives.
What is first notable about the Transition Planning process is its complexity. The State has at least three policies that define the discharge planning process for IST/CC and NGRI individuals. There is another policy that is used when an individual, who was forensic status, is no longer forensic because their charges were dropped or when they are being recommended for discharge and the RPT encounters significant barriers to the discharge. Within the various policies given, there are multiple steps, each with their own process, which illustrates the complexity of the process. For instance, in the policy relating to individuals who are no longer forensic status because their charges were
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dropped, when defining roles, there are eight major individuals or groups, and in one group, there are at least five members. There are five key elements of a support system and nine guidelines for understanding transition planning principles. The consideration of the central question of discharge: “What are the symptom reduction, skill building and supports necessary for success in the community?” can easily be lost.
To their credit, DBHDD leaders acknowledge that the transition process is complex and does not work as well for forensic individuals, especially given the role of the Court in actually deciding to discharge. The Department plans to clarify staff responsibilities for discharge planning and they have funded Forensic Community Coordinator positions to address geographic issues that may hamper timely discharge. Most significantly, they have agreed to develop a specific policy regarding forensic discharge planning and process.
The challenge of forensic discharge is that the ultimate decision to proceed with discharge lies with the Court. As such, the Court sets the dates for hearings, which triggers clinical assessments and planning by the RPT. This interface between the Court and the hospital staff must be carefully choreographed. There is currently fragmentation in the process and DBHDD clinicians may not have readily available, timely and useful data, including important administrative issues (schedules of next court date, schedule of important meeting and report production ahead of the court date, focused attention to ongoing progress of the individual). DBHDD states that they have a system in place to record and provide notification of dates for RPT meetings, annual reviews and required court reports. However, in one interview, a manager indicated that such information database was recently created, but was unable to produce the database when requested.
2. The Individual Recovery Plan (IRP) does not focus the various members on the progress that the individual has made to address problems or to ameliorate risk, nor does it properly focus the team on what interventions and supports should be added, so that Transition Planning moves forward, or is possible at all.
Review of the IRPs for several individuals shows IRPs that are long, repetitive, lack focus, and do not prioritize current status of the individual or progress since the previous IRP. Several IRPs appeared to significantly duplicate large portions of prior IRPs, without analysis of progress or new issues to be addressed. The IRPs do not consistently show creative interventions that could help the individual address concerns, so that the individual can then progress in measurable and meaningful ways.
-One individual interviewed has an IRP, in which four of five “discharge criteria” to an “unidentified group home” relate to dangerousness, violence, coping skills when under stress. However, this individual has made only occasional verbal
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threats and the last one was six months prior. Yet not one intervention in the IRP is focused on mitigating these risks.
-An individual who is IST/CC status, and has a significant trauma history, is not being treated for trauma. There is no mention of trauma in her IRP goals, objectives and interventions. For instance, while she has a goal that addresses personal hygiene, and the team described to this writer that showering is a particularly difficult because of past trauma, addressing this issue is not contemplated in the IRP.
-An advocate mentioned that the creativity of the RPTs could be harnessed in a different way. Beyond consideration of barriers to discharge, it would be an interesting exercise for RPTs to consider which treatment goals actually would be better addressed in the community rather than the hospital. This movement towards community-focus in the imagination of the treating professionals would align more closely with the views of the individuals in their care: living life in the community.
The format of the IRP document itself is extremely complex, with many redundant parts, often repeating information from history, without clearly tying this information to current concerns or progress. As such, clinicians report being obliged to create rather formulaic statements that may or may not have bearing on the most current functioning of the individual. This focus on the document, rather than on the person, whom the document serves, does not aid the clinical process and, in fact, may stifle creative activity between the individual and the team. The IRP Manual also complicates accurate planning, as it does not list all “Barriers to discharge” definitions, but clinicians are limited to only those in the manual, which may not fully explain the barriers.
The IRP document is partially codified in the electronic medical record. Staff reported that this complicates efforts to revise the IRP into a more clinically useful and person-centered document. And since the entire record is not electronic, staff must go from paper charts to the electronic record for even simple data entry, let alone complicated fact-based treatment planning.
In response to these findings, DBHDD leadership stated that the current structure of the IRP is cumbersome and often thwarts recovery teams in their focus on an individual’s primary recovery goals and tracking their progress. They should be commended for piloting a revised IRP at the Savannah Hospital. Once evaluated, it would be important for the Department to train RPT members, individuals in care, their advocates and family members on the process. Training on the recoveryoriented approach is planned currently and with hope this will improve the quality of the IRPs.
3. The Risk Assessment process and documents are of variable quality and often do not differentiate with specificity under what circumstances an
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individual is at higher risk of offending. The needed skill building activities, best designed and taught by the clinical team, are minimized. These skills are necessary to mitigate risk, but when not clearly stated in the Risk Assessment, an opportunity is missed for the individual and team to partner on activities that can make transition possible while reducing risk for the community.
Risk Assessment is an important aspect of evaluating readiness for discharge. A specialty of Psychologists in DBHDD, it is required whenever a person is being considered for higher levels of privilege or release. DBHDD has three critical policies that relate to risk assessment, which positively demonstrates their attention to this issue for both the IST/CC and NGRI status individuals. This writer was unable, however, to find reference to a risk assessment in some RPT recommendations for continuation of civil commitment. The risk assessment should include a thorough history of the person, chronology of charges involving violence, the incident that brought them into the system, an evaluation of their current status, various clinical assessments, strengths, relative weakness, response to treatment and their resources to address stressors. These various data points lead to a Risk Formulation, which can guide treatment interventions and recommendations about civil commitment and discharge.
One aspect of a risk assessment is its careful description of situations under which the person is likely to engage in inappropriate behavior AND ways in which these risks can be mitigated. Careful analysis of factors in particular settings that are of greater risk, while also clearly understanding the personal strengths of the individual and skills that can be taught to help in those situations, is the real treatment opportunity. Risk assessments are most useful when they delineate under which circumstances the risk level increases, and what supports, environmental structure or skill building can mitigate these risks.
The skill building aspect of risk assessment cannot be underestimated. The skills necessary to recognize situations in which risk is more likely and what to do to avoid these situations entirely, or manage them appropriately, are key to treatment of forensic status individuals. When stated as a focus of intervention in the IRP document, this situation identification and coping strategy development becomes a central work of the RPT. Several risk assessments were reviewed; while some were notable for their excellent recitation of the important facts of the case, statement of relative risk in various situations, and factors that could ameliorate risk, others lacked specificity. In some cases, risk assessments used non-specific categories of "low, medium, or high" risk, which do not convey useful information that can be used to manage risk.
The customers of the risk assessment are the individual themselves, the RPT who could use it to focus their interventions and skill building, and decision-makers who decide what level of risk is acceptable in a community, namely government officials and the Court. As such, all three consumers are failed by non-specific risk
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assessment. In some cases, the Risk Assessment is not meaningfully integrated into the IRP or the deliberation of the RPT. It is noted that DBHDD has held numerous Risk Assessment workshops over the last five years, led by qualified professionals. This training is important and must be supported by the Department, giving proper level of resources to ensure that this work is informed by the most current standards of professional advice.
4. RPTs use varying standards when deciding to recommend individuals for either release or ongoing civil commitment. Circular thinking leads to ongoing confinement without real consideration of the person's ability to manage in the community with supports, or with little regard for the Georgia civil commitment statute.
The civil commitment of an individual is ultimately the decision of the Court. DBHDD is the government agency responsible to make recommendations to the Court. Georgia law regarding civil commitment (GA. CODE ANN. SS 37-3-1(9.1) states: “Inpatient” means a person who is mentally ill and:
(A)
(i) Who presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which presents a probability of physical injury to that person or other persons; or
(ii) Who is so unable to care for that person’s own physical health and safety as to create an imminently life-endangering crisis; and
(B) Who is in need of involuntary inpatient treatment. [Emphasis added.]”
As italicized above, the civil commitment statute requires that there be a risk of imminent harm through recent acts or recent threats or imminent life-endangering crisis because of inability to care for oneself. In several IRP documents reviewed, statements were made indicating a recent history of violence that actually occurred months prior. There was no consideration of the option of outpatient civil commitment in the review of various individual’s medical records.
RPT members’ clinical documentation sometimes refer to a "level system" of privileges when deciding on civil commitment matters, often to indicate that since the individual has not achieved a certain level, they cannot be considered for discharge. This is a misuse of the "STEP" system, which, according to DBHDD forensic leaders, was intended to guide decisions on security while inside the hospital. The STEP system describes parameters of movement within a facility, with requisite staff supervision and location established. However, this level system has been used by some RPTs as a rationale to deny privileges or prohibiting activities necessary for discharge, as if it were a behavioral system. For instance:
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-An individual who has a Court Order or approval for an overnight visit at a residential facility as a prerequisite for discharge can be prevented from doing so because he is on a STEP that requires "On campus" only.
-Another individual who was previously approved for privileges started to be “non-adheren(t) with treatment and ongoing psychotic symptoms continue to be barriers to progressing through the forensic step level system, due to her resistance to treatment.” Subsequently this restriction is inappropriately used as evidence that a person is not ready for discharge.
Another misunderstanding of the RPT regarding readiness for discharge is the criteria for dangerousness. One team used as evidence that a person was ineligible for release from civil commitment, the fact that they only made progress within the confines of the inpatient unit. The team did not state what the danger was, instead relying solely on their judgment that the person could only safely function in the highly structured inpatient setting. The “imminently life endangering” aspect of the law is ignored under this logic.
DBHDD states that it does consider outpatient commitment in preparing its recommendations to the Court and ensures that the RPTs review this option via a comprehensive review form. Greater training of the RPTs would be beneficial.
5. Staffing: While staffing in the regional hospitals, per se, is not within the scope of the present review, there must be enough qualified clinicians to accomplish timely, effective and high-quality treatment and transition planning. Staff who know the individual and know the community resources that are available are central to the creation and implementation of quality Transition Planning. Clinicians who know the individual, know the transition plan, and can explain it to the Court are not consistently available.
RPT members must have the time to learn about the individual, understand their clinical strengths and when they may be at risk. However, given serious vacancy issues within the hospitals, it would be difficult for DBHDD staff to know all of the individuals in their care and about whom they are planning. And, because of the vacancies, staff report that they cover other units or do the work of the vacant position, in addition to their own regular caseload.
RPTs across the visited four hospitals reported staffing issues that prevented staff who know the individual under consideration from participating in treatment planning. Current staff often participates in IRPs for individuals about whom the clinician has limited knowledge. The result is that important data, learned over the course of hospitalization, may not be integrated into the IRP or the discharge process.
RPT members, on the one hand, have very specific areas of responsibility. For instance, the RPT Facilitator manages the data flow and scheduling of the IRP. The
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psychiatrist acts as the overall clinical leader of the team and is responsible for medication management. By policy, the psychiatrist is the RPT Leader. The psychologist is often the one who leads an integrated psychosocial assessment, cognitive assessments, or other focused assessments, and integrates this data into positive behavioral support plans that link strengths to new learning and plans for interventions that can move the individual toward realizing their treatment goals.

The registered nurse on the team manages all aspects of the day-to-day clinical interventions of the milieu, from medication administration to activities of daily living. The role of the social worker is to contemplate what resources and supports are necessary to successfully discharge the individual. In addition, moving the TAP from a written plan to a fully implemented set of activities is a major responsibility of the social worker. The social worker also bears the arduous task of compiling documents necessary for benefits upon discharge, including birth certificates, GA photo identification, and social security cards. The lack of any one of these documents can prolong hospitalization.

These are very important jobs; they require training, skill and knowledge of the person and their options. And these jobs require a reasonable amount of time to learn about an individual and plan their care. As the table below indicates, there are serious staffing issues within the DBHDD hospitals: 38% of all Registered Nursing positions are vacant, while 37% of psychiatrist positions and 26% of psychology positions are vacant across the five hospitals. While DBHDD has made arrangement for contract psychiatrists and other clinicians, these temporary employees may or may not understand the DBHDD system, the law, and the practice in their hospital. They are not a satisfactory replacement for full-time, ongoing staff members.

Table: Staffing by Discipline at DBHDD Hospitals

All Hospitals Total Positions Total filled Total Vacant Percent Vacant Locums

Psychiatry 29.5 18.5 11 37% 9

Psychology 34.5 25.5 9 26% 4

Social Work
51.5 44.5
7 14%
2

R. Nurse 266 163 103 38% 40

Allied Therapy
31 22
9 29%
3

The regional hospitals each have a position for Director of Social Work. DHBDD staff indicated that two of the five positions are filled, while one has a part-time former staff member acting in the position and two are vacant. This lack of leadership in such an important role is troubling. It is beyond the scope of the current review to determine the sufficiency of the staffing allocated for inpatient care. However, DBHDD itself decided to fund the listed positions, presumably because it considers these necessary to care and treat individuals with serious and persistent mental illness and/or substance use disorders. The vacancy rates reported make it very
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difficult for current staff to do high quality Transition Planning. The Department stated that turnover in forensic psychologists has hindered significant progress in addressing risk assessments, an absolutely vital function of the forensic service.
6. Housing: The number and variety of housing options within DBHDD appears adequate to provide access to housing for those forensic individuals who are ready for discharge from inpatient facilities. However, DBHDD is reluctant to utilize non-forensic specific housing options for those in forensic legal status. There should be an effort to place the person in the most integrated setting possible first, and then in forensic-specific housing thereafter.
While Olmstead requires that disabled persons live in the most integrated community setting and contemporary behavioral health standards prefers scattered site housing, some staff within DBHDD continue to be reluctant to move toward providing housing in the most integrated setting. DBHDD has approximately 641 forensic inpatient beds and usually has a census of 630 persons in these beds, with a waiting list of seventy to seventy-five individuals waiting for beds of a specific type. Thus, the forensic status inpatient population represents a not-insignificant portion of the overall DBHDD inpatient cohort and is obviously an important one to plan for housing upon discharge.
Under the terms of the Settlement Agreement, DBHDD has increased the number of housing slots available to those with serious and persistent mental illness, substance use disorders and/or developmental disabilities. These individuals may be unfamiliar with how to be a tenant so their supports include teaching them routine home skills. Another group may have decision-making deficits that require ongoing support. And a third group may be able to quickly return to their previously high level of independence, after a period of instability due to their behavioral health issue. Finally, there is a small group of people who are long-term stable. They need Rapid Rehousing and could benefit from a one to two year subsidy, but their deficits are transitional and their need for supported housing will likely end. This same range of options should be enthusiastically considered for forensic status individuals.
Using an already funded rental subsidy, paid to the landlord, the Department has procured individual leases, which gives the individual a choice of places to live while giving the landlord financial protections. The Department created “bridge funding,” which provides up to $3000 per individual to transition into supported housing. The “bridge funding” pays the housing deposit and first month’s rent and can be used to purchase furniture. Already five years into the program, 1623 individuals are already under lease, with about 80-85% remaining in housing for more than one year. Capacity also exists in this program, as there are over 2400 units with subsidies in the Department’s portfolio. In addition, the DBHDD has access to HCVs through a DCA HCV Preference Agreement and will soon have access to 811 PRA subsidies.
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Included in those who have DBHDD subsidized housing are some individuals leaving the Corrections system, including local and county jails, and state detention facilities. These individuals have behavioral health and/or developmental disabilities and legal system involvement. In most ways, they are remarkably similar to those forensic individuals who have been found IST/CC or NGRI. It is important that those in inpatient forensic status be offered these same housing supports.
Because of the Department’s specific safety concerns or court orders that require more intensive supervision, there is a perception that there are limited housing options for forensic status individuals. There is a usual step-down style schema for the IST/CC and NGRI status individuals. Often the first housing option considered is the Community Integration Home (CIH). CIH was created for those individuals who no longer require inpatient care, but whose serious crime or long hospital course indicate risk to the community if not in a 24 hour per day, 7 day per week supervised environment. There are fifty-nine CIH beds and a waiting list from ten to thirty individuals at any given time. Advocates indicate that it can take up to two years, once a person was deemed eligible for this type of housing, for a bed to become available. Advocates criticize these facilities for being too institutional, too correctional, without providing enough freedom for the individual to reintegrate into life outside the Hospital.
DBHDD provided summary data indicating that 74% of individuals in forensic legal status are discharged to non-CIH settings. The 26% that go to the CIH frequently do so because the Court often requires a 24-hour supervised setting. In addition, only 2% of hospital readmissions are for individuals discharged to CIH, compared with 10% of those discharged elsewhere, which indicates a stabilizing transition is provided. The Department also acknowledges that the waiting list for a CIH bed is unreasonably long, and the production of the forty-eight new supported beds in apartments (see below) will improve access.
During an interview of an IST/CC individual with a Savannah treatment team, the individual was praised by the team for his ongoing work with his Positive Behavioral Health Specialist, who was able to help him achieve a treatment goal in the past period. The individual expressed a desire to live in his home county, although he was uncertain of what supports he would need. The team was very reluctant to consider this request, with one clinician stating that the Department “doesn’t have any other place he can go,” except to a CIH. When the reviewer asked what other housing had been considered, another clinician stated that the individual “can’t succeed in a CIH,” because he required the structure of the Hospital and 24/7 supervision.
DBHDD has also contracted for supported apartments for forensic status individuals that are run by an outside contractor. These account for an additional fifteen housing slots. In a welcomed move to increase the variety of housing options for
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IST/CC and NGRI individuals, just this summer, DBHDD appropriated an additional $2.3M for four contract providers to each provide twelve beds in one or two bedroom apartments. These apartments are intended to serve as “step down” from the larger CIH, or for those deemed appropriate for such housing immediately upon discharge from the Hospital. According to DBHDD staff, the ideal client for these sites are IST/CC or NGRI status individuals who are ready to leave the CIH but are not yet ready to live independently. In these “semi-independent” living arrangements, supports and 24-hour awake on-site staff help the person transition to a new level of independence.
7. There appears to be adequate community supports for individuals with a forensic legal status to support successful discharge but accessing these supports is difficult and not routine.
DBHDD policy states that there are several key elements needed for individuals to achieve a meaningful life in the community; simply stated, these are care, a home, meaningful activities, economic support and meaningful relationships. Care and Services include outpatient treatment, medical care, psychiatric care, medication and case management that create a cohesive system of support.
DBHDD offers two Tiers of community supports: Tier 1 providers include the twenty-three Community Service Boards (CSBs), so called “safety-net” providers who offer traditional outpatient mental health services including psychiatrists, RNs, crisis stabilization programs, children’s services and other specialty services. Several CSBs have closed over the past several years and, reportedly, many struggle financially. Tier 2 providers are those providers that offer one or more specialty services, including Assertive Community Treatment (ACT), residential treatment, and Intensive Family Interventions (IFI). ACT is an evidence-based practice that includes multiple fidelity measures, including a maximum of three days from call to enrollment, up to three times per week interaction, and crisis care. ACT requires a specific team of clinicians, including those in the CSB services, plus peer support, employment specialists and case managers. The ACT team follows the individual no matter what setting they are in, no matter what happens to them. The team also helps with benefits eligibility, case management, medical care, crisis housing and/or temporary housing.
Intensive Case Management (ICM) was created under the Settlement Agreement; it was described to this writer as “Case Management PLUS.” Functioning as its own team, ICM includes the usual case management functions, but with small caseloads. Rather than an ACT team, which is difficult to offer with fidelity in rural areas, ICM can be used in rural areas. An area of opportunity that DBHDD should consider is whether the ICM teams are running at full caseloads and whether this resource could be applied to forensically involved individuals to assist in their transition from inpatient to outpatient care.
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In interviews at residential facilities visited, staff was concerned with the quality and ongoing stability of Community Service Boards; in one instance, a local CSB went out of business a few years back and the individuals were transferred to other CSBs, which the staff considered to be of lower quality. Provider staff was generally happy with the DBHDD transition coordinators who were helpful in bringing clients to the facility, but they wanted ongoing contact with the coordinators, who withdraw from the process after a short transition period. Residential providers also emphasized that when more complex treatment issues are present, they could use technical assistance on how to address these issues in a way that is acceptable to DBHDD.
8. Risk and liberty interests of individuals under Civil Commitment and NGRI are not properly defined or supported by DBHDD; the Court, who must balance risk and liberty, is not properly informed by the assessment process. The Court is sometimes unaware of the services that DBHDD has available and, therefore, is left in the position of making life-changing decisions without a full picture of what are the risks, the mitigating factors, and the supports that are necessary for successful life in the community for forensic status individuals.
DBHDD includes “legal assistance” as a broad element of support needed for successful transition to the community. A well-functioning public behavioral health system takes seriously the obligation to protect individuals who pose imminent harm to themselves or to others, consistent with the law and their authorities. This obligation must be balanced by the liberty interests of individuals to live in the most integrated settings, with the minimal supervision, some say interference, of others. Properly balancing these sometimes-competing mandates is both the art and the science of forensic mental health professions, and in Georgia, is the source of much debate. Truly addressing risk, and risk-management rather than risk-aversion, is a key to access to community supports for forensic-status individuals in DBHDD.
On the one hand, DBHDD has the structure of a well-defined forensic evaluation and treatment system. Individuals with legal charges and behavioral health and/or developmental disabilities are evaluated, stabilized, treated and moved progressively to lower levels of supervision and greater freedom. Supports necessary for these individuals to transition from intensive levels of care, gradually and thoughtfully, to less intensive levels are generally available. What does not work so well is fidelity to the established structure or, in some cases, rigid application of a misperception of the structure, resulting in the individual remaining for too long in the state hospital. The Department is sensitive to its other client, the Court, and attempts to engage the Court and counsel by providing some training and education on mental health issues and resource availability. At this time, these efforts are not sufficient.
DBHDD clinicians expressed two main ideas when considering the other roles in the forensic arena, the Court and the legal advocates. Several DBHDD clinicians
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expressed the belief that the Courts are risk-averse and will not allow discharge planning to proceed, particularly in the case of violent felons, until the original potential sentence has been tolled. The second belief is that the Court prefers 24 hour per day/7 day per week on site supervision of IST/CC and NGRI individuals, in most cases. Interviews with individuals who represent the Court and the advocate community offer a more nuanced view.
The “check” that keeps the compulsory treatment system in “balance” is an active and vigorous defense bar that asserts the liberty interests of individuals in the system. Georgia recently was the center of the national movement to enforce the Olmstead Act, so certainly there are advocates who can move forcefully to get attention on liberty matters. The advocates who were interviewed for this review consistently listed three issues that they believe require a change on the part of DBHDD:
DBHDD does not put forward reasonable discharge plans that balance risk with proper supports;
DBHDD discharge plans are not individualized, in that persons are fit into a trajectory from State Hospital to CIH to supported housing, without real consideration of what is the most integrated setting for the particular individual; and
DBHDD does not provide information on treatment and housing resources that are available, which could allow for greater advocacy by counsel.
In the position of having to “decide,” the Court is the ultimate balancer of risk and liberty interests. Judges interviewed by the Independent Reviewer expressed similar ideas on what is needed from DBHDD so that discharge is possible:
Well-crafted discharge plans that are specific enough to allow the Court to know important information such as the staff supervision levels, what occurs when respite care is needed, who acts as the backup for the individual, if a problem arises;
A qualified clinician who knows the individual, who can explain the plan in specific detail, and who endorse the plan; and
Training on what DBHDD services are available and the appropriate expectations of a service is needed. For example, helping judges become familiar with basic information about ACT teams, the frequency of their interaction with the individual (daily if necessary), and the standards that various interventions require would be helpful for the Court.
9. Organizational support structure within DBHDD for Transitions: The DBHDD senior staff and managers with whom this writer met were wellqualified and capable leaders. They clearly understand their work and are committed to achieving the best possible outcomes for those in their care, even given the criticisms previously noted. The current system of transition
35

Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 37 of 39
planning does not sufficiently authorize and resource these leaders to implement and effect appropriate transition planning for inpatient individuals in a forensic legal status.
While the focus of this report was not on the organizational design of DBHDD, the organizational structure within the Department is a limiting factor for timely and efficient transitions from one level of care to another and from one region of the State to another. DBHDD has a regional structure that focuses on outpatient services and housing based on regions of the state, while Hospitals have become more specialized by population, with long term IST/CC individuals often moved to Savannah. An organizational structural disconnect (regional approach for community, treatment similarity for inpatient) may result in suboptimal transitions. Often, transitions occur when individuals with serious and persistent mental illness, substance abuse issues, and/or developmental disabilities need care provision that is even more supportive than at other points in their recovery.
For example, an individual from northern Georgia may be transferred to Savannah for inpatient treatment when they are expected to remain IST/CC for a longer period. While the RPT in Savannah knows the individual well and becomes expert in their strengths, risks, treatment needs and goals, the Region is responsible for the actual placement of the individual in their home region upon discharge. A case manager from northern Georgia is assigned to develop the outpatient plan, including housing, employment and treatment services. This person has the benefit of the IRP document, but as discussed above, the IRP currently lacks strong Transition Planning aspects.
It would be useful for the Department to consider a review of the various transitions made by an individual in forensic legal status. There is important work to be done before each transition to determine: Is the individual’s choice of housing, supports and location considered? Are the major clinical issues identified by those who have worked with the person during their hospitalization supported by services in the new setting? Are risks and risk mitigation strategies clearly known and addressed in the new setting? Who is the responsible and empowered staff at each step in the transition process?
36

Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 38 of 39
Recommendations: 1. Training of all clinical staff, both in the Hospital and the Regional staff
responsible for transition planning, on the DBHDD policies related to transition planning so they know and understand their role and the role of others as recommended.
2. DBHDD should consider ways to streamline this process so that once a forensic status individual is recommended for discharge, movement toward transition begins quickly. A new comprehensive policy may be the most efficient way to implement this.
3. There does not appear to be a similar formal mechanism for leadership review of individuals who are not recommended for ending civil commitment. There should be at least an annual review of all IST/CC individuals regardless of the team’s opinion about their ongoing civil commitment status and readiness for discharge. In addition, outpatient civil commitment is an option that does not appear to be routinely considered as an option, at least as recorded in the medical record. This may be an option that, if applied sparingly and only when appropriate, could result in an end of unnecessary inpatient civil commitment.
4. DBHDD should ensure that the existing database that tracks all court, treatment meetings and assessments is known to and used by clinical managers. This data system is needed so that important forensic deadlines are stated, evaluations are completed timely and clinical decisions can be thoughtfully prepared.
5. The IRP document and process, either in written form or electronic record, must be simplified so that clinical teams are relieved of voluminous, repetitive documentation requirements, and so the process focuses on current functioning, progress, and interventions needed to reduce symptoms, improve skills and offer supports that lead to transition. The pilot that is underway should be evaluated, and if deemed responsive to the criteria set out in this review, implemented quickly throughout DBHDD. The electronic record should likewise be simultaneously improved for ease of use.
6. Risk Assessments must be reviewed for clinical sufficiency. Specificity about the current risk factors, and what supports, environment, and skills can be used to mitigate their likelihood, should be standard across all risk assessments. The ongoing training activities are applauded; they should become routine and frequent.
37

Case 1:10-cv-00249-CAP Document 261-1 Filed 06/21/16 Page 39 of 39
7. RPTs should be trained on the standards for civil commitment and, specifically, on the meaning of “imminent harm.” Also, retraining on the “STEP” systems’ proper use as a guide for in hospital movement, rather than as a behavioral plan, is important.
8. DBHDD must address the serious vacancy issue among most of the clinical disciplines necessary to appropriately plan and effectively discharge IST/CC and NGRI individuals. While forensic status individuals require the expertise of each discipline, the existing clinical staff is called upon to opine on individuals who they may not know well, and sometimes testify on important legal/psychiatric issues without the benefit of time necessary to know the individual.
9. DBHDD should immediately state that all individuals who are ready for discharge should be in the most integrated setting. The Department must, through policy and practice, demonstrate that housing choices are individualized, taking into consideration all the important domains that reduce risk and increase the likelihood of success.
10. DBHDD should determine the amount and type of housing options needed for those in forensic status.
11. DBHDD should determine whether Intensive Case Management or other community supports could be used so that forensic status individuals can be housed in the most integrated setting.
12. DBHDD should regularly offer to train the Court, the defense bar, prosecutors and providers regarding behavioral health issues and forensic status. Familiarity and ongoing conversation is needed among all parties. DBHDD is commended for the seminars they have offered to the ten District Courts on the invitation of the Court, but this ongoing activity must be properly resourced. For instance, details about what levels of supervision, frequency of face-to-face contact, and types of services available are important for the Court to know, in order to be reassured that services outlined in the Transition Plan are appropriate and sufficient to address concerns about, and properly manage, risk.
Patrick J. Canavan, Psy.D. September 17, 2015
38

 
 Case 1:10-cv-00249-CAP Document 259 Filed 05/27/16 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

V.

)

)

THE STATE OF GEORGIA, et at.,

)

)

Defendants.

)

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

CIVIL ACTION NO. 1:1 0-CV-249-CAP

CONSENT ORDER ENTERING EXTENSION OF SETTLEMENT AGREEMENT

For good cause shown, and with the consent of Plaintiff, Defendants, and the

Amici, the Court hereby GRANTS the Joint Motion to Enter Extension of

Settlement Agreement; retains jurisdiction to enforce the Extension of Settlement

Agreement; denies as moot Plaintiffs' Motion for Order to Show Cause Why the

State Should Not Be Held in Civil Contempt ofCourt [Doc. 234]; and vacates the

hearing set for May 23,2016.

SO ORDERED, this27tlday of May, 2016.
Is/CHARLES A. PANNELL, JR.
CHARLES A. PANNELL, JR. United States District Judge

 
 Case 1:10-cv-00249-CAP Document 258 Filed 05/18/16 Page 1 of 3

Case 1:10-cv-00249-CAP Document 258 Filed 05/18/16 Page 2 of 3

Case 1:10-cv-00249-CAP Document 258 Filed 05/18/16 Page 3 of 3

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 1 of 19
Exhibit A

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 2 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
THE STATE OF GEORGIA, et ai.,
Defendants.

)

)

)

)

CIVIL ACTION NO.

)

1: 1O-CV-249-C AP

)

)

)

)

EXTENSION OF SETTLEMENT AGREEMENT
1. The State of Georgia, the Governor of the State of Georgia, the Commissioner of the Depmiment of Behavioral Health and Development Disabilities C'DBHDD"), and the Commissioner of the Georgia Department of Community Health (collectively, the "State") and the United States (together referenced herein as the "Parties") entered into a settlement agreement that the United States District Court for the NOlihern District of Georgia entered as an order of the COUli on October 29,2010, in Civil Action No.1: 1O-CV-249-CAP ("Settlement Agreement").
2. Pursuant to Section VII.A.1 of the Settlement Agreement, the anticipated date by w"hich the State \vould substantially comply with all provisions of the Settlement Agreement was July L 2015. Although the State has asserted compliance with a majority of the provisions of the Settlement Agreement by that date, the United States has asserted noncompliance with the following provisions of the Settlement Agreement: Section lILA.2.b.i.(D)-(F): Section III.A.2.b.iii; Section III.A.2.c.ii.(B)(3); Section III.A.4.d; Section III.B.2.c.ii.(A): Section III.C.3.a.v; and Section III.D. The patiies have agreed to meet and confer as to the provisions with w"hich the State asserts compliance, and the Pmiies agrec to address the United States' assertions of noncompliance as set forth below.
3. Section VILE of the Settlement Agreement provides that any modification shall be executed in writing, shall be filed with the COUli, and shall not be effective until the COUli enters the modified agreement and retains jurisdiction to enforce it.
4. The Parties therefore enter into this Extension of the Settlement Agreemcnt ("'Extension AgreemenC).
5. The State's obligations under all provisions of the Settlement Agreement remain in force until they have been terminated pursuant to Section VlI.B of the Settlement Agreement.

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 3 of 19
PROVISIONS RELATED TO PERSONS WITH DEVELOPMENTAL DISABILITIES ("DD")
Transitions from State Hospitals to the Community
6. Between July 1,2015, and June 30. 2016. the State shall transition at least 25 individuals with DD from the State Hospitals to the community. The State shall provide COMP waivers to accomplish these transitions.
7. Between July 1,2016, and June 30. 2018, the State shall create and regularly update a planning list for prioritizing transitions of the remaining persons with DD in the care of State Hospitals for whom a community placement is the most integrated setting appropriate to his or her needs. The State shall transition individuals on the list to the community at a reasonable pace. The State shall provide COMP waivers to accomplish these transitions.
8. Any individuals with DO remaining in the State Hospitals on June 30, 2018, shall be served in the most integrated setting appropriate to their needs.
9. In determining whether to include an individual on the transition planning list, the State shall consider the recommendations of the individual's hospital treatment team and representatives from the Office of Transition Services who have experience with and knowledge of service delivery in the community, as well as the preferences of the individual, family member(s). and, as the individual indicates, other persons who are impOliant to the individual and/or \\iho may suppOli the individual in the community.
10. The State shall notify the Independent Reviewer within 7 days of when the State determines that any individual's most integrated setting is a State Hospital or any public or private skilled nursing facility, intermediate care facility for developmental disabilities. or psychiatric facility. In that instance. the State shall provide the Independent Reviewer with all information relied upon to make that determination so that the Independent Revie\ver may conduct an independent assessment and report the assessment to the Pmiies. If the State makes no such determination, the expectation is that the individual \vill be placed on the transition planning list (referenced in Paragraph 7) for transition to a community home.
11. The State shall form a transition planning team for every individual upon placement of that individual on the transition planning list. The transition planning team shall consist of the individuaL hospital treatment team. case expeditor. support coordinator. Integrated Clinical SUPPOli Team. community service providers (once selected). the individual's family member(s). and. as the individual indicates. other persons \vho are important to the individual andlor who may suppOli the individual in the community. The transition planning team must identify (using protocols or criteria established by DBHDD that employ person-centered planning) the types of supports.
1

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 4 of 19
services. adaptive equipment, supervision, and opp0l1unities for community integration that will promote a successful transition for the individual. Prior to the individual's discharge, all contracted residential, day, clinical, medical, and other providers (once selected) shall p31iicipate in the transition process and receive training in any procedures or protocols needed to serve the individual. All non-contracted providers who will be providing services to the individual may participate in the transition process and receive training in any procedures or protocols needed to serve the individual. The transition planning team shall verify that the supports, services, adaptive equipment, and supervision identitied in the transition plan are 3lTanged and in place at discharge.
12. The State shall monitor individuals during and after transition from the State Hospitals (a) to identify and address identified gaps or issues with services, supp0l1s, adaptive equipment, and clinical, medical, day, residential, or other providers to reduce the risk of admission to other institutional settings, deaths, or injuries, and (b) to track community integration and positive outcomes. The State shall conduct post­ transition monitoring with, at a minimum, in-person visits by the individual's support coordinator within 24 hours of transition, at least once a week during the first month the individual is in the community, and at least monthly for the next three months.
Supports and Services Provided to Individuals with DD in the Community
13. The State shall operate a system that provides the needed services and supports to individuals with DD in the community through a network of contracted community providers overseen and monitored by the State or its agents. To identify, assess, monitor, and stabilize individuals with DD in the community who face a heightened level of risk due to the complexity of their medical or behavioral needs and/or their community providers' inability to meet those needs, the State shall maintain a High Risk Surveillance List as set forth in Paragraph 14, provide statewide clinical oversight as set fOlih in Paragraph 15, and administer support coordination as set f0l1h in Paragraph 16.
14. High Risk Surveillance List
a. The State shall maintain a "High Risk Surveillance Lise (the "List") that includes all individuals with DD who have transitioned from the State Hospitals to the community during the term of the Settlement Agreement and this Extension Agreement. The List shall include each individual's name, date of birth, provider(s), CUlTent address, region, HRST score, and a summary of critical incident repOlis and clinical findings that indicate medical or behavioral needs that may create a heightened risk for the individual. The State shall monitor the following information for all individuals on the List: critical incident reports, support coordination notes, and clinical assessments. The State shall update the List at least once per month.

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 5 of 19

b. Based on a records-based clinical review. uniform screening criteria. and other indications of heightened risk factors or conce111. the State designated. and will continue to designate, certain individuals on the List as "High Risk:' The State may escalate other individuals on the List to "High Risk" status in the following circumstances (or "escalation criteria"):
(i) Health-Related: an increase in HRST score; known emergency room visit or hospitalization; recurring serious illness without resolution; diagnosis with an episode of aspiration, seizures, bowel obstruction, dehydration, gastro-esophageal reflux disease (or GERD); or unmet need for medical equipment or healthcare consultation;
(ii) Behavioral: material changes in behavior, a behavioral incident with intervention by law enforcement, or functional or cognitive decline;
(iii) Environmental: threat of or actual discharge from a residential provider, change in residence, staff training or suitability concern, or accessibility issues that relate to the health or safety of the individual (including loss of involved family member or natural supports or discharge from a day provider).
(iv) Other: confirmed identification of any factor above by a provider, support coordinator, family member, or advocate.

c. For each individual on the List designated as "High Risk," the State shall conduct the oversight and intervention outlined in the following subpmis, until the State determines that the individual is stable and no longer designated as "High Risk."

(i) Upon designation of an individual as "High Risk," the State (through the Office of Health and Wellness) shall oversee that the initial responses to the identified risk(s) are completed and documented on the schedule set fOlih below, until the risk is resolved:

(1) For an emergency. the provider shall initiate appropriate emergency steps immediately. including calling 911 or crisis services, and shall notify the individuai"s suppOli coordinator, the Field Office, and the Oftice of Health and Wellness.

(2) For deteriorating health that is not imminently lifethreatening. the provider shall respond and inform the individual"s support coordinator within the first 24 hours. If the risk is not resoh'ed within 72 hours. the support coordinator (or provider) shall notify the Field Oftice and the Oftice of Health and Wellness.

(3) For a health. behavioral. or environmental risk not

resulting ~

in

destabilization

of

health

or

safe. ty of the in. dividuaL the

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 6 of 19
provider shall respond, inform the individual"s suppOli coordinator. and verify completion of responsive steps with the suppOli coordinator no later than the suppOli coordinator's next visit, or 30 days, \vhichever is sooner.
(ii) If the risk is not resolved through the initial responses outlined in Paragraph 14.c.(i), the State shall conduct an in-person assessment of that individual in the time period indicated by the imminence and severity of the risk, but no later than 7 days after completion of the initial response.
(1) The assessment shall be conducted by a Registered Nurse or other trained medical professional with an advanced medical degree and expeliise in the area(s) of risk identified for the individual. The assessment shall include direct observation of staff who work with the individual to verify the staffs knowledge and competencies to implement all prescribed risk reduction interventions (e.g., meal time protocols or behavior support plans). The assessment shall, at a minimum, identify any concerns or issues regarding the individual's health or behavioral needs and identify necessary follow-up activities (with a schedule for completion) to address those concerns or issues.
(2) The findings of the assessment, plus any follow-up activities and schedules, must be noted on the List and recorded in the individual"s electronic record for access by the individual's suppOli coordinator. community providers, the Integrated Clinical SuppOli Team, Field Office staff, and the Office of Health and Wellness.
(3) If the assessment finds service delivery deficiencies that jeopardize the physical or behavioral health of an individual, the State shall require all provider staff (including direct support staff, house managers, Registered Nurses, Licensed Practical Nurses, and Celiitied Nursing Assistants) who are responsible for delivering services to that individual to receive competency-based training in that service delivery area (i.e .. training through which the staff demonstrates successful service delivery in a scenario closely resembling one in \vhich the services will be delivered).
(4) The State (through the Otlice of Health and Wellness) shall oversee that the follow-up activities identified in the assessment are completed and documented (and repeated or revised, as needed), until the risk is resolved.
5

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 7 of 19
15. Statewide Clinical Oversight
a. The State shall implement statewide clinical oversight that is available in all regions to minimize risks to individuals with DD in the community who face a heightened level of risk due to the complexity of their medical or behavioral needs, as indicated by one or more of the circumstances listed in Paragraph 14.b.(i)-(iv) above. This includes multidisciplinary assessment, monitoring, training, technical assistance, and mobile response to contracted providers and support coordinators who provide care and treatment to individuals with DD in the community.
b. Statewide clinical oversight is provided through a team of registered nurses with experience caring for individuals with DD, behavioral expelis (with a master's level degree in behavior analysis, psychology, social work, or counseling), occupational therapists, physical therapists, and speech and language therapists. This team includes personnel in the Office of Health and Wellness and each regional Field Office.
c. No later than March 31, 2017, the State shall develop a protocol that includes the following components:
(i) The protocol shall state the responsibilities and timeframes for contracted providers and support coordinators to engage the statewide clinical oversight team to assist in addressing issues that place individuals at heightened risk. The protocol must include the following schedule for completion and documentation of the responses to the identified risk(s), until the risk is resolved:
(1) For an emergency, the provider shall initiate appropriate emergency steps immediately, including calling 911 or crisis services, and shall notify the individual's support coordinator, the Field Office, and the Office of Health and Wellness.
(2) For deteriorating health that is not imminently lifethreatening, the provider shall respond and inform the individual's suppOli coordinator within the first 24 hours. If the risk is not resolved w'ithin 72 hours. the suppOli coordinator (or provider) shall notify the Field Office and the Office of Health and Wellness.
(3) For a health. behavioral. or environmental risk not resultin.g... in destabilization of health or safet- y of the indiv' idual the provider shall respond. inform the individual's SUppOlt coordinator, and verify completion of responsive steps with the SUppOlt
6

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 8 of 19
coordinator no later than the supp011 coordinator's next visit. or 30 days. whichever is sooner.
(ii) The protocol shall determine the circumstances when. and set f011h mechanisms through which, the statewide clinical oversight team receives electronic notification wh<en individuals with DD in the community face a heightened level of risk, which may include the circumstances listed in Paragraph 14.b.(i)-(iv). The protocol shall set forth the timeframes for the State's review and response and shall require that the State's response be based on the imminence and severity of the risk.
d. No later than June 30,2017, the State shall train its contracted providers and SUpp011 coordinators on the protocol developed under Paragraph 15.c.(i), how to recognize issues that place an individual at heightened risk (including through critical incident reports and the State's support coordination tool), and how to request consultation and/or technical assistance from the Field Offices and the Office of Health and Wellness. The protocol shall become effective no later than July 1,2017.
e. The State shall provide or facilitate consultation (by phone, email, or in person), technical assistance, and training to contracted providers and support coordinators who serve individuals with DD in the community who face a heightened level of risk due to the complexity of their medical or behavioral needs. No later than June 30, 2017, the State shall provide a centralized and continuously monitored hotline and email address to receive requests for consultation and/or technical assistance. The State shall assess, assign for response, and respond to such requests as indicated by the nature, imminence, and severity of the need identified in the request.
f. No later than June 30, 2017, the State shall have medical and clinical staff available to consult with community health practitioners, including primary care physicians, dentists, hospitals, emergency rooms. or other clinical specialists. who are treating individuals with DO in the community who face a heightened level of risk due to the complexity of their medical or behavioral needs and/or to provide assistance to community providers and SUpp011 coordinators who rep011 difficulty accessing or receiving services from community healthcare practitioners.
7

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 9 of 19
16. Support Coordination
a. No later than July 1, 2016, the State shall revise and implement the roles and responsibilities of suppOli coordinators, and the State shall oversee and monitor that suppOli coordinators develop individual support plans, monitor the implementation of the plans. recognize the individual's needs and risks (if any), promote community integration, and respond by refen'ing, directly linking, or advocating for resources to assist the individual in gaining access to needed services and supports.
b. No later than July 1, 2016, the State shall require all suppOli coordinators statewide to use a uniform tool that covers, at a minimum, the following areas: environment (i.e., accessibility, privacy, adequate food and clothing, cleanliness, safety), appearance/health (i.e., changes in health status, recent hospital visits or emergency room visits), suppOlis and services (i.e., provision of services with respect, delivery with fidelity to ISP), behavioral and emotional status (i.e., implementation ofBSP, recent crisis calls), community living (i. e., existence of natural suppOlis, services in most integrated setting, participation in community activities, employment opportunities, access to transportation), control of personal finances, and the individual's satisfaction with CUITent suppOlis and services. The support coordination tool and the guidelines for implementation shall include criteria, responsibilities, and timeframes for refelTals and actions to address risks to the individual and obtain needed services or supports for the individual.
c. At least annually, the State shall consider the data collected by suppOli coordinators in the tool and assess the perfOimance of the suppOli coordination agencies in each of the areas set forth in Paragraph 16.a.
d. No later than June 30, 2017, the State shall provide support coordinators with access to incident reports, investigation reports, and conective action plans regarding any individual to whom they are assigned. SUPPOli coordinators shall be responsible for reviewing this documentation and addressing any findings of gaps in services or supports to minimize the health and safety risks to the individual. (SuppOli coordinators are not responsible for regulatory oversight of providers or enforcing providers· compliance with cOiTective action plans.)
e. The caseload for support coordinators shall be a maximum of 40 individuals. The caseload for intensive support coordinators shall be a maximum of 20 individuals.
f. Support coordinators shall have an in-person visit \vith the individual at least once per month (or per quarter for individuals \vho receive only suppOlied employment or day services). Intensi ve support coordinators shall have an in-
8

W'.
Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 10 of 19

person visit with the individual as determined by the individual's needs, but at least once per month. Some individuals may need \veekly in-person visits, which can be reduced to monthly once the intensive supp0l1 coordinator has determined that the individual is stable. In-person visits may rotate between the individual's home and other places where the individual may be during the day. Some visits shall be unannounced.

g. For individuals with DD transitioning from State Hospitals, a supp0l1 coordinator shall be assigned and engaged in transition planning at least 60 days prior to discharge.

17. Crisis Respite Homes

a. Crisis respite homes provide short-tenTI crisis services in a residential setting of no more than four people.

b.

Individuals living in crisis respite homes shall receive additional

clinical oversight and intervention, as set forth in Paragraph 15.

c. The State shall track the length of stay in crisis respite homes, and, on a monthly basis, shall create a list of individuals who are in a crisis respite home for 30 days or longer, the reasons why each individual entered the crisis respite home, the date of entry to the home, and the barriers to discharge. The State shall provide these monthly lists to the United States and the Independent Reviewer.

d. The State shall assess its crisis response system for individuals with DD in the community, including the use of crisis respite homes and altemative models for addressing short-term crises. FollO\ving that assessment, and no later than June 30, 2017, the State shall meet with the Independent Revie\ver, the United States, and the Amici to discuss the State's plans for restructuring the crisis system, including methods of minimizing the OCCUlTence of individuals leaving their homes during crisis and limiting individuals' out-of-home lengths of stay at crisis respite homes.

18. Provider Recruitment

Within six months of the Effective Date of this Extension Agreement, the State shall develop and implement a strategic plan for provider recruitment and development that is based on the needs of individuals with DD in the State Hospitals and in the community. The plan shall identify the service capacity needed to support individuals \vith 00 and complex needs in community settings. The plan shall take into account services and supports that promote successful transitions and community integration. The State shall use the plan to identify and recruit providers who can supp0l1 individuals \vith DO and complex needs in community settings.

9

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 11 of 19
19. Additional HCBS Waivers
The State shall create a minimum of 100 NOW waivers and 100 CaMP waivers between July 1. 2015 and June 30. 2016; 100 NOW waivers and 125 CaMP waivers between July 1. 2016 and June 30. 2017; and 100 NOW wai vers and 150 CaMP waivers between July 1, 2017 and June 30, 2018, for individuals with DD who are on the wait list to prevent admission to a public or private skilled nursing facility, intermediate care facility for developmental disabilities, or psychiatric facility.
Investigations, Mortality Reviews, Risk Management, and Quality Reviews
20. The State shall implement an effective process for reporting, investigating, and addressing deaths and critical incidents involving alleged criminal acts, abuse or neglect, negligent or deficient conduct by a community provider, or serious injuries to an individual.
21. The State shall conduct a mortality review of deaths of individuals with DD who are receiving HCBS waiver services from community providers according to the following:
a. An investigation of the death shall be completed by an investigator who has completed nationally ce11ified training in conducting mortality investigations, and an investigation report must submitted to the Office of Incident Management and Investigations ("OIMI") within 30 days after the death is reported, unless an extension is granted by the State for good cause. The investigator must review or document the unavailability of: medical records, including physician case notes and nurses' notes (if available); incident reports for the three months preceding the indi vidual's death; the death certificate and autopsy rep0l1 (i f available); and the most recent indi vidual supp0l1 plan. The investigator may also interview direct care staff who served the individual in the community. The investigation report must address any known health conditions at the time of death. regardless of whether they are identified as the cause of death. The State shall conduct a statistically significant sample of '"look-behind" investigations to assess the accuracy and completeness of provider-conducted investigations of deaths, and the State shall require providers to take conective action to address any deticiency findings.
b. The Community Mortality Review Committee C'CMRC") shall conduct a mOliality review of all unexpected deaths. any expected death that is identified by the State' s Medical Director or OIMI Director. and any expected death \vhere a condition cited as a cause of death \\as identitied fe\yer than 30 days before the death. The m0l1ality review shall be completed \\ithin 30 days of completion of the investigation and receipt of relevant documentation. The
]0

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 12 of 19
minutes of the CMRC' s meetings will document its deficiency findings and its recommendations. if any.
22. The State shall require providers to take corrective actions in response to the CMRCs deficiency findings, and the State shall implement a system that records the deticiencies identified in investigative repOlis and mOliality reviews and that tracks the corrective action plans, including the community providers' timely completion of required actions. The State shall separately track the CMRC's recommendations.
23. The State shall generate a monthly report that includes each death since July 1,2015; any cOlTective action plan(s) resulting from the death; the community provider(s) involved; the conective action taken by the community provider, as veritied by the State; and any disciplinary action taken against the provider(s) for failure to implement cOlTective action (if applicable). The State shall provide the repOli to the United States and the Independent Reviewer.
24. The State shall collect and review its data regarding deaths of individuals with DD in the community to identify systemic, regional, and provider-level trends, if any. The State shall consider its mortality data, publicly available national mortality data, and recommendations from the CMRC. The State shall develop and implement quality improvement initiatives, including those to reduce mortality rates for individuals with DD in the community, as determined by the State from its assessment of mortality data and trends.
25. At least annually, the State shall publish a report on aggregate mOliality data including the number of deaths, causes of death, classification of death, and trends.
26. DBHDD shall identify and attempt to address balTiers to obtaining hospital records for the purpose of revie\vs of deaths of individuals with DD in the community.
27. The State shall develop a protocol for determining which deaths of individuals \vith DD in the community should result in an autopsy. The protocol (as may be amended) shall be applied to all deaths that occur after the protocol is effective. The State shall provide a copy of the protocol to the Independent Reviewer, the United States, and the Amici for comment before it is tinalized.
28. By June 30, 2017. the State shall require all of its support coordination agencies and contracted providers serving individuals \vith DD in the community to develop internal risk management and quality improvement programs in the following areas: incidents and accidents: healthcare standards and \\'e1fare: complaints and grievances: individual rights violations: practices that limit freedom of choice or movement: medication manJgcment: infection control: positive behavior support pLm tracking and monitoring: breaches of contidentiality; protection of health and human rights: implementation ofISPs: and community integration.
11

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 13 of 19
29. The State shall provide to the Department of Justice copies of the waiver assurances that the State submits to the Center for Medicare Services ('"CMS"). Quality review·s. which are used to report \vaiver assurances as required by CMS. shall include, at a minimum, (a) data derived from face-to-face interviews of the individual, and. as indicated and available, relevant professional staff and other people involved in the individual's life, (b) assessments, and (c) clinical records. Quality reviews shall be conducted on a sample of individuals and providers in each region. The sampling shall be informed by data from DBHDD's incident management system, mortality reviews, and other indicators overseen by the Office of Health and Wellness. At least annually, the State shall consider these quality reviews, and shall either develop and implement quality improvement initiatives or continue implementation of existing quality improvement initiatives, as determined by the State from its assessment of the quality reVIews.
PROVISIONS RELATED TO PERSONS WITH SERIOUS AND PERSISTENT MENTAL ILLNESS ("SPMI")
30. For purposes of Paragraphs 31 to 40, the "Target Population" includes the approximately 9,000 individuals with SPMI who are currently being served in State Hospitals, who are frequently readmitted to the State Hospitals, who are frequently seen in emergency rooms, who are chronically homeless, and/or who are being released from jails or prisons. The Target Population also includes individuals with SPMI and forensic status in the care of DBHDD in the State Hospitals, if the relevant cOUIi finds that community services are appropriate, and individuals with SPMI and a co-occurring condition, such as substance abuse disorders or traumatic brain injuries.
Bridge Funding and Georgia Housing Voucher Program
31. Bridge Funding and the Georgia Housing Voucher Program C'GHVP") are specific types of housing assistance that may include the provision of security deposits, household necessities, living expenses, and other suppOlis during the time needed for a person to become eligible and receive federal disability or other supplemental income.
32. By June 30, 2016, the State shall provide Bridge Funding for at least an additional 300 individuals in the Target Population.
33. By June 30, 2017. the State shall provide Bridge Funding for at least an additional 300 individuals in the Target Population.
3-L By June 30. 2016. the State sh311 provide GHVP vouchers for an additional 358 individuals in the Target Population.
35. By June 30, 2017, the State shall provide GHVP vouchers for at least an additional 275 individuals in the Target Population.
12

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 14 of 19
Supported Housing
36. Supported Housing is assistance, including psychosocial supp0l1s, provided to persons with SPMI to assist them in attaining and maintaining safe and affordable housing and supp0l1 their integration into the community. Supported Housing includes integrated permanent housing with tenancy rights, linked with t1exible community-based services that are available to consumers when they need them, but are not mandated as a condition of tenancy. Supp0l1ed Housing is available to anyone in the Target Population, even if he or she is not receiving services through DBHDD.
37. Supported Housing includes scattered-site housing as well as apartments clustered in a single building. Under this Extension Agreement, the State shall continue to provide at least 50% of Supp0l1ed Housing units in scattered-site housing, which requires that no more than 20% of the units in one building, or no more than two units in one building (whichever is greater), may be used to provide Supported Housing.
38. Under this Extension Agreement, by June 30, 2018, the State will have capacity to provide Supported Housing to any of the individuals in the Target Population who have an assessed need for such support.
39. Between the Effective Date ofthis Extension Agreement and June 30, 2018, the State shall continue to build capacity to provide Supp0l1ed Housing by implementing a Memorandum of Agreement between DBHDD and the Georgia Department of Community Affairs, which includes the following components:
a. a unified refen'al strategy (including education and outreach to providers, stakeholders, and individuals in the Target Population) regarding housing options at the point of referral;
b. a statewide detennination of need for Supported Housing, including developing a tool to assess need, forming an advisory committee to oversee the needs assessment, developing a curriculum to train assessors, training and ce11ifying assessors, and analyzing and rep0l1ing statewide data:
c. maximization of the Georgia Housing Voucher Program: d. housing choice voucher tenant selection preferences (granted by the U.S. Department of Housing and Urban Development); e. effective utilization of available housing resources (such as Section 811 and public housing authorities); and 1'. coordination of available state resources and state agencies.
40. The State shall implement procedures that enable individuals with SPMI in the Target Population to be referred to Supported Housing if the need is identified at the time of discharge from a State Hospital. jail. prison. emergency room. or homeless shelter.
13

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OVERSIGHT AND MONITORING
41. The Parties have agreed that the Independent Reviewer for the Settlement Agreement, Elizabeth Jones, will be the Independent Reviewer for this Extension Agreement. Section VLA of the Settlement Agreement shall apply in the event that a new reviewer must be selected.
42. The Independent Reviewer shall issue compliance reports semi-annually. These reports shall include a detailed reporting on each discrete task and timeframe in this Extension Agreement. Either Party or the Independent Reviewer may request a cOUli status conference.
43. The Parties, the Independent Reviewer, and the Amici shall convene quarterly meetings (in person or via telephone) to discuss implementation of this Extension Agreement and address any batTiers to achieving compliance. The Parties, Independent Reviewer, and the Amici may agree to modify the frequency of their meetings, without a formal amendment to this Extension Agreement.
CONSTRUCTION AND TERMINATION
44. The '"Effective Date" of this Extension Agreement shall be the date on \vhich this Extension Agreement is approved and entered by the COUli.
45. The Parties agree that this is a court-enforceable modification of the Settlement Agreement, as provided for under Section VILE of the Settlement Agreement.
46. Unless otherwise noted, all definitions, obligations, and terms and conditions in the Settlement Agreement remain in effect for the term of this Extension Agreement. This Extension Agreement supplements and does not supplant the Settlement Agreement.
47. The State may provide funding for the obligations set forth in this Extension Agreement through any legal means. If an unforeseen circumstance causes a failure to meet any requirements of this Agreement, the State shall notify the United States in writing within 30 calendar days after the State becomes aware of the unforeseen circumstance and its impact on the State's ability to perform under the Extension Agreement. The notice shall describe the cause of the failure to perfOlm and the measures that the State has taken to prevent or minimize the failure. The State shall take all reasonable measures to avoid or minimize any such failure.
48. The Parties anticipate that the State will have substantially complied with all provisions of the Extension Agreement by June 30, 2018. Substantial compliance is achieved if any violations of the Extension Agreement are minor or occasional and are not systemic.
l~

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 16 of 19
49. If the State believes it has achieved substantial compliance with a provision of this Extension Agreement it shall notify the United States and Independent Revie\\er in writing. Within 45 days of receipt of the State"s notification, the United States and Independent Reviewer shall either deny or accept each assertion of substantial compliance in writing. If the Parties disagree about the asserted substantial compliance and are unable to resolve the dispute within 60 days following the response letter, the State may request that the Court hold a hearing to determine whether the State has achieved substantial compliance with the provision. The State shall be relieved of that provision of the Extension Agreement, if the United States and the Independent Reviewer agree with the State's assertion of substantial compliance, if the United States does not respond to the State's notification, or if the Court finds substantial compliance.
50. Section VILA.3 of the Settlement Agreement is stricken and replaced with the following: The Parties may agree to jointly ask the COUlt to terminate the Settlement Agreement and the Extension Agreement before July 1, 2018, provided the State has substantially complied with all provisions of the Settlement Agreement and Extension Agreement. If the case has not yet been dismissed, the Parties agree to ask the Court for a non-evidentiary hearing on the status of compliance on or near July 1, 2018. If the Parties agree that there is non-compliance, or if there is a dispute about compliance, the Parties will inform the COUlt, and the Court may set additional hearing dates as appropriate. The Patties may agree jointly at any time to allow for additional time to resolve compliance issues.
Executed on thiS ~ day Of ~, 2016,
FOR THE UNITED STATES:
JO United States ~ tomey N011hem District of Georgia
AILEEN BELL HUGHES Assistant United States Attorney Northern District of Georgia
15

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 17 of 19

K Executed on this

day of M04j ,2016.

FOR THE UNITED STATES:

VANITA GUPTA Principal Deputy Assistant Attorney General
u.s. Department of Justice
Civil Rights Division
EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
ASHLEY McDONALD KATHERINE HOUSTON REGAN BAILEY Attorneys Special Litigation Section

16

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 18 of 19

/;1 ' ~/~L
Executed on this I day of

~7 2016.

FOR THE STATE:

NATHAN DEAL Governor, State of Georgia

FRANK W. BERRY Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities

CLYDE L. REESE, III Commissioner, Georgia Deprutment of Community Health

17

Case 1:10-cv-00249-CAP Document 258-1 Filed 05/18/16 Page 19 of 19
Executed on this _ _ day of _ _ _, 2016.
FOR THE STATE:
NATHAN DEAL Governor, State of Georgia FRANK W. BERRY Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities
CLYDE L. REESE, III
Commissioner, Georgia Department of Community Health
17

 
 Case 1:10-cv-00249-CAP Document 234 Filed 01/19/16 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF GEORGIA, et al.,

)

)

Defendants.

)

____________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

UNITED STATES’ MOTION FOR ORDER TO SHOW CAUSE WHY THE STATE SHOULD NOT BE HELD IN CIVIL CONTEMPT OF COURT

Plaintiff United States respectfully moves this Court for an order directing

the State to show cause why it should not be held in civil contempt of the October

29, 2010 Order adopting the parties’ Settlement Agreement. Both the Independent

Reviewer and the United States have identified multiple areas of non-compliance.

Five years of reports from Independent Reviewer, the United States’ reviews, and

the State’s own investigations continually highlight the same systemic concerns.

For the reasons detailed in the accompanying Memorandum, the State should be

held in contempt and ordered to remedy its non-compliance.

Respectfully submitted, this 19th day of January, 2016

Case 1:10-cv-00249-CAP Document 234 Filed 01/19/16 Page 2 of 4

FOR THE UNITED STATES: JOHN A. HORN United States Attorney Northern District of Georgia
/s/ (Express Permission) AILEEN BELL HUGHES [GA 375505] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

VANITA GUPTA Principal Deputy Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
/s/ Katherine Houston KATHERINE HOUSTON [CA 224692] REGAN BAILEY [WA 39142] Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 307-0652 Fax: (202) 514-0212 Email: Katherine.Houston@usdoj.gov

2

Case 1:10-cv-00249-CAP Document 234 Filed 01/19/16 Page 3 of 4
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was
prepared in Times New Roman 14-point font in compliance with Local Rule 5.1B.
/s/ Katherine Houston KATHERINE HOUSTON Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section

Case 1:10-cv-00249-CAP Document 234 Filed 01/19/16 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on this 19th day of January, 2016, I electronically filed the MOTION TO SHOW CAUSE with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to all of the attorneys of record.
/s/ Katherine Houston KATHERINE HOUSTON

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

___________________________________

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

) CIVIL ACTION NO.

) 1:10-CV-249-CAP

STATE OF GEORGIA, et al.

)

)

Defendants.

)

___________________________________ )

UNITED STATES’ MEMORANDUM IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE

Five years ago, the State of Georgia entered into a Settlement Agreement

with the United States and committed to serve persons with developmental

disabilities and mental illness in the community. The Independent Reviewer’s

reports and the State’s own documents demonstrate that the State is not in

compliance with significant provisions of the Settlement Agreement that require

support coordination, quality assurance, transition and discharge planning, and

supported housing to support persons with disabilities in the community.

In the face of this evidence, the State now contends that, “[t]he Settlement

Agreement did not mandate provision of care in the community for persons with

IDD....” State’s Status Report, Jan. 5, 2016, ECF No. 226 at 2. Instead, the State

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 2 of 26
argues that the Agreement requires simply moving persons from one location to another, with no regard to the adequacy of their care at the new location.
The State has failed to comply with multiple provisions of the Settlement Agreement. Among other violations, the State has failed to ensure that individuals with developmental disabilities receive the services and supports they need to be safe, avoid harm, and be integrated in their communities. People with complex needs can be served in the community with adequate supports and services. See Declaration of Nancy K. Ray, Ed.D. (“Ray Declaration”) Ex. 1 ¶13. Georgia is failing to meet the needs of many of the members of the target population that it serves.
Judicial intervention is necessary to bring the State into compliance with the Agreement. The recommendations of the Independent Reviewer, over the course of years, have not persuaded the State to take all necessary steps to bring itself into compliance. A court-ordered corrective action plan is necessary to ensure that the State will comply with the Settlement Agreement.
I. BACKGROUND The Independent Reviewer’s Year 5 Report found that the State is not in
compliance with multiple provisions of the Settlement Agreement. She found:
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Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 3 of 26
“Although the State has proposed, and begun to implement, some reasonable plans
to rectify these recurrent gaps in the community system, there has been inadequate
progress statewide and a failure to establish and meet meaningful timelines.”
Report of the Independent Reviewer, Sept. 18, 2015, ECF No. 208-1 (“Year 5
Report”) at 3. According to the Independent Reviewer, the State remains non-
compliant in the following seven areas:
1. providing individualized support coordination services that ensure persons are safe and receive adequate supports and services (§ III.A.2.b.iii);
2. providing discharge and transition planning services to ensure that persons transition safely to the community (§ III.D);
3. transitioning persons with developmental disabilities from the state hospitals into the community according to the transition schedule (§§ III.A.2b.i(D),(E), and (F));
4. developing crisis respite capacity for persons with developmental disabilities according to the agreement (§ III.A.2.c.ii(B)(3));
5. annually assessing the quality of developmental disability services and taking appropriate action based upon the reviews (§§ III.A.4.d and IV.A);
6. providing training to community providers (§ III.C.3.a.v); and 7. establishing the capacity to provide supported housing to 9,000 people in
the target population (§ III.B.2.c.ii(A)).
The Independent Reviewer also found noncompliance with many of these
provisions in earlier reports. The State never challenged her findings or her
methodology. On September 23, 2015, the United States provided the State with a
Notice of Non-Compliance with the Settlement Agreement, pursuant to §VII.C of
3

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 4 of 26
the Agreement. Notice of Non-Compliance with the Settlement Agreement, Sept. 23, 2015, ECF No. 226-1. The parties have negotiated in good faith to craft an extension of the terms of the Agreement that will cure the non-compliance found by the Independent Reviewer, but they have not been able to agree.
II. APPLICABLE LAW A court may enforce the terms of a settlement agreement “if the district court
either incorporates the terms of a settlement into its final order of dismissal or expressly retains jurisdiction to enforce a settlement.” American Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315, 1317 (11th Cir. 2002). In the Eleventh Circuit, a court enforces a consent decree through the court’s civil contempt power. Reynolds v. Roberts, 207 F.3d. 1288, 1298 (11th Cir. 2000). The civil contempt procedure is laid out in Wyatt v. Fetner, 92 F.3d 1074 (11th Cir. 1996):
In his motion, the plaintiff cites the provision(s) of the injunction he wishes to be enforced, alleges that the defendant has not complied with such provision(s), and asks the court, on the basis of his representation, to order the defendant to show cause why he should not be adjudged in contempt and sanctioned. If the court is satisfied that the plaintiff has made out a case for an order to show cause, it issues the order to show cause. The defendant, following receipt of the order, usually files a response, either confessing his noncompliance or presenting an excuse, or “cause,” therefor. The dispute is thereafter resolved at a show cause hearing, with the issues to be decided at the hearing framed by the show cause order and the defendant’s response.
4

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 5 of 26
Wyatt, 92 F.3d at 1078.1
Courts have broad remedial powers to enforce their orders. Milliken v.
Bradley, 433 U.S. 267 (1977); Citronelle-Mobile Gathering, Inc. v. Watkins, 943
F.2d 1297, 1304 (11th Cir. 1991) (“The measure of the court’s power in civil
contempt proceedings is determined by the requirements of full remedial relief.”).
III. ARGUMENT
The Settlement Agreement is the functional equivalent of a consent decree,
see American Disability Ass’n, 289 F.3d at 1317, and this Court has the authority
to enforce its Order, see Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 440 (2004).
The Court should enforce compliance because the State has failed to comply with
multiple provisions of the Agreement.2
1 At the show cause hearing, the party seeking civil contempt “bears the initial burden of proving by clear and convincing evidence that the alleged contemnor has violated an outstanding court order.” Commodity Futures Trading Comm'n v. Wellington Precious Metals, Inc., 950 F.2d 1525, 1529 (11th Cir. 1992); Citronelle-Mobile, 943 F.2d at 1301. Once this prima facie showing of a violation is made, the burden then shifts to the alleged contemnor “to produce evidence explaining his noncompliance” at the hearing. United States v. Rylander, 460 U.S. 752, 757 (1983); Citronelle-Mobile, 943 F.2d at 1301. The contemnor “must go beyond a mere assertion of inability” to satisfy his burden by introducing detailed evidence that he was unable to comply. United States v. Hayes, 722 F.2d 723, 725 (11th Cir. 1984). 2 The State has recently asserted that its obligation under the Agreement is merely to place a person on a waiver and into a community residence without care for the adequacy of the services provided under the waiver. Hearing Transcript, Jan 6, 2016 at 9. The State maintains that adequacy of services is not part of the Agreement. State Defendants’ Status Report, Jan. 5, 2016, ECF No. 266 at 2, 10. The State’s position is untenable. It is also belied by the State’s own admissions. In the motion seeking modification, and in its own decision to impose a moratorium on community placements until it could address quality concerns, the State has conceded that the quality of the placements matters. Joint Motion to Modify Agreement, July 22, 2013, ECF No. 170 at 4 (“Consequently, the Parties wish to defer Ms. Jones’s rating of the quality of DD placements for six months to provide that time, after which she would issue a report assessing the deferred provisions.”) (emphasis added). See also Doe v. Bush, 261
5

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 6 of 26
A. The State is in Non-Compliance with the Agreement 1. The State violated the Agreement’s requirement to provide individualized support coordination services.
The Agreement requires that “support coordination shall be provided to all participants” and requires the State to assemble “professionals and nonprofessionals who provide individualized supports” and who, “through their combined expertise and involvement,” develop Individual Service Plans. Settlement Agreement § III.A.2.b.iii (p. 8). The Support Coordinator is required to assist the individual to gain access “to needed medical, social, education, transportation, housing, nutritional, and other services.” Id. The State has failed to assemble professionals with expertise who can assess an individual’s needs and connect the individual to services in a timely manner, and the failure to do so has placed persons at risk of serious and preventable harm.
For each of the five years of the Agreement, the Independent Reviewer has found the State out of compliance with § III.A.2.b.iii. In the Year 5 Report, the Independent Reviewer documented the State’s fifth straight year of noncompliance
F.3d 1037, 1047-8 (11th Cir. 2001) (holding that where a judgment required the state to maintain a waiting list for placements for people with developmental disabilities, the state could not contend that the judgment did not require them to actually and timely admit those on the wait list to services).
6

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 7 of 26
with this provision, finding that, “Support Coordination is the linchpin to the implementation of the Individual Service Plan. It is also an essential safeguard for minimizing adverse risk.” Year 5 Report at 6. The Independent Reviewer further found that, when the State has made a remedial plan to address deficiencies, those plans have been inadequate: “Intensive Support Coordination resources still are available to a limited number of individuals in Region 43 only” and “there has not yet been an extension of these plans to other areas of the State or to other individuals who are currently institutionalized. The roles and expectations for Support Coordination have not yet been standardized statewide.” Id.
In addition, numerous reports, assessments, and reviews developed by the State’s consultants have repeatedly identified systemic failures to provide support coordination that the State has yet to correct. See, e.g., Gap Analysis, Feb. 2015, Ex. 2 (filed under seal) at 10 (finding that “a major reason agencies have not participated in serving the ADA population is that the agencies recognize that they do not currently have the experience and expertise to successfully serve this high risk population.”); Recommendations for Improving Support Coordination, Dec.
3 The Georgia Department of Behavioral Health and Developmental Disabilities system of services is administered through field offices in six regions of the State. Region 1 is in the north; Region 2 is in the east; Region 3 is the Atlanta metropolitan area; Region 4 is in the southwest; Region 5 is in the southeast; and Region 6 is in the west.
7

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 8 of 26
2013, Ex. 3 at 3, 8 (recommending that the State, among other things, establish intensive support coordination that includes early engagement and more frequent monitoring and address concerns about “follow-through on corrective action plans, notification on critical incidents”). The State has long been on notice of these deficiencies and recommendations of how to fix them. It has not.
a. Individual Service Plans fail to identify and address needs. Individuals in Georgia, including those with complex needs, can be transitioned safely into the community. Declaration of Kathy E. Sawyer (“Sawyer Declaration”), Ex. 4 ¶¶ 20, 22; Ray Declaration ¶ 13. The State has failed to provide the needed supports and services. Specifically, the State has failed to adequately assess the persons it serves and develop and implement Individual Service Plans (ISPs) to address their needs. Seventy-nine of the approximately 503 persons who have been discharged from State hospitals under the Agreement have died. See Ex. 5 (filed under seal). The available records indicate many unaddressed medical needs. Ray Declaration ¶¶ 37, 41. This mortality data, viewed in light of ongoing noncompliance with transition planning and support coordination requirements, is deeply concerning.
8

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 9 of 26
While the majority of these persons had complex medical needs that are associated with higher mortality, many of the death reports document poor assessments, care, and oversight across the state. Ray Declaration ¶¶ 37, 40, and 41; see, e.g., Mortality Review and Investigation, NS, Dec. 18, 2015, Ex. 6 (filed under seal) (“[NS] was in good health until she choked on a sausage biscuit given to her for breakfast on April 8, 2015. . . . [NS’s] death appeared to have been preventable.”) The State has also reported to the United States a number of deaths of persons with developmental disabilities living in the community on diversion waivers, and many of those reports evidence these same departures from accepted standards of care. See, e.g., Investigative Report for AT, Feb. 18, 2015, Ex. 7 (filed under seal) (noting that AT’s caregivers did not have any information about AT’s treatment needs, did not know his medical history, and that an officer found pills, marijuana, and a large amount of cash wrapped around “pills from an unknown source” in the home).
In 2014, in response to the recommendation of the Independent Reviewer, the State arranged for an independent organization, Columbus, to conduct mortality reviews of unexpected deaths. Columbus repeatedly found that Individual Service Plans in place do not adequately identify and address the care
9

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 10 of 26
and treatment needs of persons in the target population. In addition, the State had not ensured that critical assessments were conducted and had not ensured that necessary follow-up tests or services were provided. See Mortality Review and Investigations, SG, RS, ME, GL, RH, BC, and BB. Exs. 8-14 (filed under seal). In addition, the State contracted with Columbus to make site visits in February 2014. Many of the Individual Service Plans reviewed by Columbus failed to include nursing care plans and did not include assessments for needed therapeutic supports and services such as evaluations for wheelchair alignment and fit or positioning options. March 2014 Supplemental Report, Columbus Community Services Consultant Report, March 24, 2013, ECF No. 184-4 at 5. The report stressed that frequent assessment is vital to meeting contemporary standards of care for persons with developmental disabilities who also have medically complex conditions. Id. at 4.
Even when assessments and recommendations are made, the State has failed to ensure effective corrective actions are implemented in response to identified quality concerns. Year 5 Report at 24; Ray Declaration ¶ 41. The failure to close this feedback loop can have disastrous consequences. For example, a July 2013 corrective action plan noted that the home provider for GL promised additional
10

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 11 of 26
training for the home’s staff on issues including tracking and managing edema, fluid intake, and weight gain and promised improved medication reconciliation and reporting. Corrective Action Plan, July 25, 2013, Ex. 15 (filed under seal). GL died on April 1, 2014, less than nine months from the date of the corrective action plan. The mortality review by Columbus raised a concern that the acute medical event that led to his death “may have been preventable.” Mortality Review and Investigation, GL, December 22, 2014, Ex. 11 (filed under seal) at 10.
b. Clinical supports are insufficient. The State has not ensured that persons discharged from the State Hospitals get the services they need. The State’s own reports show that such persons are not having their nutritional needs met, experience recurrent aspiration events, and are repeatedly hospitalized. Basic identified needs are not addressed. For example, DM was at high risk for aspiration, yet had a broken hospital bed – critical equipment needed to ensure proper positioning and minimize the risk of aspiration – for over three months. In October of 2014, the Independent Reviewer’s nurse made a site visit to DM’s home and found potential harm, including neglect. The nurse recommended a physical therapy consultation because of her history and risk
11

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 12 of 26
of aspiration “so that DM is not lying flat at the bottom of the bed….” Monitoring Questionnaire, Shirley P. Roth, MSN, RN, Oct. 16, 2014, Ex. 17 (filed under seal). This lack of sufficient clinical expertise is a long-standing problem. In December 2013, Georgia State University issued a report that showed that 66.7% of the population surveyed needed occupational therapy services but did not receive them, and nutritional services were missing for 33% of the population surveyed. Georgia DD Community Transition Quality Review Analysis, Dec. 2013(“Georgia State Review”), Ex. 18 at 5.
After numerous persons discharged from Southwestern State Hospital had difficult transitions, the State began some heightened monitoring in Region 4. Many of the 43 persons tracked by the State continued to experience negative outcomes for months. See, e.g., Monthly Oversight Report, June 2015, Ex. 19 (filed under seal). In the spring of 2015, the State launched a plan for clinical review in a single region, the Region 2 Pioneer Project. As part of the Pioneer Project, the State contracted with a team of experienced providers to assess persons who had transferred from a State Hospital. The team reviewed ISPs to assess whether the plan addressed an individual’s needs. Any ISP that did not address the individual’s needs was referred to a newly-formed Integrated Clinical Support
12

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 13 of 26
Team. Tellingly, 90 of 103 ISPs reviewed were referred to the Integrated Clinical Support Team, showing the State’s near-universal failure to develop appropriate ISPs and ensure the needed supports and services called for in the plans are actually provided. See Year 5 Report at 4; 2015 Interim Quality Management Report, Ex. 20 at 39.
The single Integrated Clinical Support Team in Region 2 is not sufficient to meet the needs of the entire state. The Independent Reviewer concluded that, “Given the size of the State and the highly varied availability of clinical professionals, especially in rural areas, more than one ICST [Integrated Clinical Support Team] is required for successful oversight and the delivery of individualized clinical supports.” Year 5 Report at 4. She also reported that a “greater sense of urgency is needed…” Id. at 8.
In addition, the State’s current remedial plans focus only on persons recently discharged from the State Hospitals. The target population also includes “those who are at risk of hospitalization in the State Hospitals.” Settlement Agreement III.A.2.a (p.5). The State’s failure to expand this service to the entire target population across the State leaves hundreds of persons who were at risk of
13

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 14 of 26
institutionalization and received a diversion waiver without access to needed
clinical assessments and services.
2. The State violated the Agreement’s requirement to provide adequate discharge and transition planning services.
Sections III.D.1 and 3 of the Agreement require the State to provide discharge and transition planning.4 Settlement Agreement §§ III.D.1 and 3 (p. 24).
Reports from the Independent Reviewer highlight the failure of the State to
satisfy the discharge and transition requirements. For example:
[S]upport coordinators did not participate in the discharge planning process from the State Hospital and only assumed responsibility after the community placement had occurred. This is not consistent with expected practice in the field. The early linkage of support coordination is crucial because the support coordinator is responsible for ensuring that the Individual Service Plan is individualized appropriately, is fully implemented, and is modified, after discharge from the State Hospital, to reflect any significant changes in health or wellbeing.
Supplemental Report of the Independent Reviewer, Mar. 24, 2014, ECF No. 184-1
at 8. The Independent Reviewer’s sample of case reviews for the Year 5 Report
also includes numerous examples of the State’s failure to adhere to the discharge
provisions for people with developmental disabilities: “One of the individuals
4 In addition to § III.D. on Transition Planning, the parties agreed that §§ III.F.1,3, 4 and 5d of the 2009 Settlement Agreement between the United States and Georgia regarding discharge and transition planning are subsumed by and would be enforced under § III.D of the 2010 Settlement Agreement. See 09-CV-0119, United States v. Georgia, Notice of Termination of Settlement Agreement and Joint Request to Close, Feb. 5, 2014, ECF No. 187.
14

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 15 of 26
placed in 2011(MS) experienced very short community tenure. His provider at the time stated that his discharge was not adequately planned. The Independent Reviewer has followed his treatment trajectory for five years now. He remains confined to the State Hospital.” Year 5 Report at 33.
In addition to the findings of the Independent Reviewer, site reviews of community homes by both the State and the United States found that critical documents – including discharge summaries, nursing care plans, and protocols to address heightened risks specific to an individual – were often missing. Columbus Consultant Report at 4-5. In other cases, the documents were available but had never been updated to reflect the person’s routines in a community home, instead of an institution. Id.
In the face of numerous examples of poor and dangerous transitions, the State has repeatedly told the United States that it was substantially changing its transition process. See Ex. 21; Report of the Independent Reviewer, Sept. 19, 2013, ECF No. 175 at 21; Report of the Independent Reviewer, Sept. 18, 2014, ECF No. 192-1 at 2; Supplemental Report of the Independent Reviewer, Mar. 20, 2015, ECF No. 200 at 11; Year 5 Report at 5. In November 2015, the State adopted a new Community Transitions from State Hospitals Manual. The manual
15

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 16 of 26
is too recently-adopted and there have been too few discharges to evaluate how effectively it will be implemented.
At a minimum, adequate transition and discharge planning for individuals with developmental disabilities requires:
comprehensive assessments of the person’s needs; identification and employment of qualified providers who are trained and competent to service those needs; acquisition of all needed services and supports, prior to movement, including needed adaptive equipment; and assignment of support coordinators (or case managers) familiar with the person, the person’s needs, and their individualized service plans. Sawyer Declaration, Ex. 4 ¶ 17A. The State is not providing adequate transition and discharge planning services.
3. The State violated the Agreement’s transition schedule for placing persons with developmental disabilities from the state hospitals. The Agreement requires the State to create waivers to move a minimum of 600 people with developmental disabilities from the State Hospitals to the community over a five-year period. Settlement Agreement §§ III.A.2.b.i(D), (E), and (F) (pp. 6-7). The Agreement also requires the State to serve any persons remaining in the State Hospitals on July 2, 2015, in the most integrated setting appropriate to their needs. Settlement Agreement § III.A.2.b.i(F) (p. 7). The State
16

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has moved 503 persons out of the hospitals over the five year period, and approximately 266 persons remain institutionalized. Year 5 Report at 5. The State admits that “it did not meet its numeric targets for the number of people” with developmental disabilities transitioned from the State Hospitals. Response to Notice of Non-Compliance, Nov. 9, 2015, ECF No. 226-2 at 9.
The State imposed two temporary moratoriums on placements during the Agreement. The temporary moratoriums on transitions were appropriate in light of significant evidence of poor placements. However, the moratoriums do not excuse the State from its obligations under the Agreement. Since the most recent moratorium was lifted in December 2014, only four persons have been discharged through the State’s pilot program, the Pioneer Project. Year 5 Report at 5. An additional 12 persons with forensic histories have been discharged through the courts. Id. The Independent Reviewer reports that “266 individuals are still confined to state hospitals and the completion of a comprehensive transition plan/process has been pushed forward to July 1, 2016.” Id.
All of these individuals could be transitioned to the community. Amici Curiae’s Statement Regarding January 6, 2016 Non-Evidentiary Hearing, Jan. 5, 2016, ECF No. 228 at 5. In fact, 14 other states have closed all of their state-run
17

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institutions for people with developmental disabilities. Id. Persons with complex needs can be served in the community with adequate supports and services. Ray Declaration ¶ 13.
In this fifth year of the Agreement, major barriers to discharge remain unaddressed, and the State has managed to complete only a handful of successful discharges in the past year. This non-compliance goes to the heart of the Olmstead claims brought by the United States – that persons with disabilities languish needlessly in the highly restrictive and segregated settings of the State Hospitals.
4. The State violated the Agreement’s requirement to develop crisis respite homes for persons with developmental disabilities. The Agreement requires the State to establish 12 crisis respite homes. Settlement Agreement III.A.2.c.ii.(B)(3) (p. 9). Although the State has established 11 homes, they do not function as crisis homes. Independent Reviewer Year 5 Report at 28. Crisis respite homes are intended to provide “short-term crisis services” in a residential setting for persons “experiencing an emotional/behavioral change and/or distress.”5 Instead, the State is using them as long-term, non-
5 Community-Based Services for Individuals Living with Developmental Disabilities, Department of Behavioral health and Developmental Disabilities, https://dbhdd.georgia.gov/dd-community-based-services, last visited Jan. 15, 2016.
18

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integrated placements for persons whose community placements were insufficient to support their needs. The Year 5 Report found that “crisis respite homes have been used for long-term residential placements instead of their intended purpose of seven to ten days of respite care.” Year 5 Report at 28. The individuals reviewed by the Independent Reviewer remained in crisis placements for six months to more than three years, and there were no plans to move them into appropriate community settings. Id. Several individuals had no Behavioral Support Plans, staff was not trained on positive behavioral supports, and there was no involvement by behavioral specialists. Id.
The State has failed to ensure that individuals with developmental disabilities in need of crisis services receive services that are person-centered and based upon individual assessments. The misuse of these crisis facilities demonstrates noncompliance with both the crisis services provisions of the Agreement and the Support Coordination provisions discussed above.
5. The State violated the Agreement’s requirement to take appropriate actions to address the quality of developmental disability services.
19

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The Agreement requires the State to assess annually the quality of developmental disabilities services and take appropriate action based on each assessment. Settlement Agreement, § III.A.4.d (p. 11); § IV.A (p. 25). The State has completed annual assessments, but it has failed to take appropriate remedial actions to address identified problems. As the Independent Reviewer notes, “there was no evidence that the negative findings from the annual quality service reviews were addressed in a timely and complete manner.” Year 5 Report at 24.
The State’s own Quality Management Reports have consistently noted ongoing issues related to compliance with the support coordination provisions of the Agreement. For example, the most recent annual review found serious deficiencies for persons recently discharged: Only 18.6% had a “person centered focus supported in documentation;” only 62.8% had their “human and civil rights maintained;” and only 42.1% had “means to identify health status and safety needs.” Annual Quality Management Report, January 2014-December 2014 (“Annual Quality Management Report, 2014”), Ex. 22 at 45. The State’s interim report from 2015 further notes that only 7% of plans support real community integration. 2015 Interim Quality Management Report, Ex. 15 at 54. Moreover, the State fails to address the deficiencies identified by the Independent Reviewer.
20

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 21 of 26
The survey tool used by the Independent Reviewer’s nurses shows that of the 225 reviewed, 40% of the cases showed evidence of harm and neglect; 47% had serious health needs not being met; and in 61% nursing does not meet professional standards of care. See Ex. 23.
The State’s efforts to develop an effective quality review system have yet to bear fruit. In 2014, the State retained consultants from Ernst and Young to help address deficiencies identified by the Independent Reviewer. They developed a series of subject-matter corrective action plans that echo prior recommendations to improve support coordination. DBHDD Moving Forward, Jan. 22, 2014, Ex. 24 at 5. The State has failed to demonstrate that they have taken appropriate remedial actions to address these identified problems.
6. The State violated the Agreement’s requirement to train community providers. The Agreement requires the State to train community providers so that services can be maintained in a manner consistent with the Agreement. Settlement Agreement § III.C.3.a.v (p. 24). The Independent Reviewer found that “compliance with training requirements was not maintained by a significant number of provider agencies.” Year 5 Report at 23. She noted that the State had
21

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provided a two-day “training for provider agencies on critical aspects for the prevention of aspiration, bowel obstruction, GERD, seizures and dehydration.” Id. at 7. Her report found, “Clearly, this instruction is of very high importance and it is critical that there be much more training of this nature statewide.” She also found, “During the reviews conducted this summer, at least two provider agencies asked the Independent Reviewer’s nurse consultants for additional guidance on preventing aspiration pneumonia. Descriptive material on the importance of oral hygiene was forwarded to them after the visits.” Id. Similarly, the State’s own Quality Management Report found that 41% of the provider professional staff were not properly trained, licensed, credentialed, experienced, and competent; job descriptions were not in place for 64% of the personnel; and 52% of all staff having direct contact with consumers did not have all required annual training within the first sixty days and annually thereafter. 2015 Interim Quality Management Report, Ex. 15 at 50. The State must ensure that service providers are adequately trained so that they can safely support people in the community. The State is out of compliance with this provision.
22

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7. The State violated the Agreement’s requirement to provide supported housing to all individuals with serious mental illness who need it. The Agreement requires the State to have the capacity, by July 1, 2015, to provide Supported Housing to any of the 9,000 persons with serious and persistent mental illness in the target population who need such support. Agreement § III.B.2.c(A) (p. 19). The State has failed to comply with this provision. In her September 2015 report, the Independent Reviewer found that, although the State was in compliance with many of its obligations to persons with mental illness, “compliance had not been achieved” with this requirement because “the State does not yet have” the Supported Housing capacity to meet the needs of the target population. Year 5 Report at 19. The Independent Reviewer reported that the State agreed that they are not yet in compliance with the Supported Housing requirement and that more time would be needed. Id. at 10. Over the last five years, the State has taken significant steps, as required by the Agreement, to build a system to provide Supported Housing to individuals with mental illness. Still, persons with mental illness continue to face significant barriers to accessing Supported Housing. The Independent Reviewer’s housing consultant, Martha Knisley, found that individuals with mental illness “haven’t had
23

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 24 of 26
opportunities to move into their own home.” Georgia Supported Housing and Bridge Funding, Sept. 14, 2015, ECF 208-1 at 5. The State must take its Supported Housing program to scale, as required by the Agreement, to provide Supported Housing for everyone in the target population who needs it.
IV. CONCLUSION For the foregoing reasons, the United States respectfully requests that the
Court: 1. Issue an order directing the State to show cause why it should not be
held in civil contempt of the October 29, 2010 Order adopting the parties’ Agreement;
2. Hold an evidentiary hearing, as scheduled to begin on March 28, 2016;
3. Find the State in contempt of the October 29, 2010 Order; 4. Order a corrective action plan that includes deadlines for compliance; 5. Hold quarterly status conferences with the parties and Amici at which the State must report to the Court on its progress on implementation; and 6. Order other relief as appropriate.
24

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 25 of 26

Respectfully submitted this 19th day of January, 2016.

FOR THE UNITED STATES: JOHN A. HORN United States Attorney Northern District of Georgia
/s/ (Express Permission)___ AILEEN BELL HUGHES [GA 375505] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

VANITA GUPTA Principal Deputy Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
/s/ Katherine Houston________ KATHERINE HOUSTON [CA 224692] REGAN BAILEY [WA 39142] Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 307-0652 Fax: (202) 514-0212 Email: Katherine.Houston@usdoj.gov
25

Case 1:10-cv-00249-CAP Document 234-1 Filed 01/19/16 Page 26 of 26
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman 14-point font in compliance with Local Rule 5.1B.
/s/ Katherine Houston___ KATHERINE HOUSTON Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 1 of 16
Exhibit 1

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 2 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.

)

)

)

Defendants.

)

___________________________________ )

CIVIL ACTION NO. 1:10-CV-249-CAP

DECLARATION OF NANCY K. RAY, ED.D.

1. I am an independent consultant specializing in the transitions of individuals from institutional to community-based services.
2. I have worked in the field of mental health and developmental disabilities services for over 35 years.
3. From 1978 to 1995, I worked at the New York State Commission on Quality of Care, where I directed the various program evaluations of disability services statewide. In 1993, I became First Deputy at the Commission, a position that required my supervision of most of the agency’s overall operations.
4. In 1995, I established a private consultation business, NKR & Associates. Over the past 20 years, I have worked in 20 states in a variety of roles,

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 3 of 16
including as a federal court monitor, as a consultant to state and municipal departments of mental health and developmental disabilities, as an expert consultant for the Department of Justice and Health and Human Services’ Office of the Inspector General, and as a special consultant to various federal and state court monitors and monitoring panels. My work has also included consultation regarding local correctional facilities and statewide youth secure detention services.
5. From 2000 – 2013, I served as the Court Monitor to the district court judge in United States v. Tennessee (W.D. Tenn.), a case involving the closure of the Arlington Developmental Center and the building of a comprehensive system of community-based services to meet the needs of the over 700 class members with developmental disabilities. This work involved monitoring of both institutional and community services, as well as working with all stakeholders to ensure that newly developing community services were of high quality and individualized to meet class members’ needs.
6. In my role as a Court Monitor, I had final approval on each individual’s transition from the institution to the community. This involved ensuring that the individual had been matched with a provider who could meet his or her needs, all necessary services were in place prior to the transition, necessary equipment was in place in each home, that a primary physician had been located,

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 4 of 16
and that staff had been trained on any protocols necessary to keep the person safe and healthy (such as mealtime and positioning protocols), among other things. Once individuals had transitioned to the community, my work involved using data analysis (such as incident reports and feedback from monitoring notes from support coordinators) to track high risk individuals, follow up on deficient providers, and track incident and death reviews. I also directed and supervised quality reviews of community providers supporting the class members who had transitioned to the community from the institution.
7. I have served as a consultant in the development of quality assurance systems with special attention to protection from harm issues in community and institutional services for persons with disabilities in Louisiana, Connecticut, Hawaii, New Mexico, Arizona, Georgia, Tennessee, Ohio, and Wisconsin. In this capacity, I have helped states develop appropriate quality enhancement programs for community services and effective and efficient incident management and abuse and neglect investigation systems.
8. I have also assisted states in downsizing their state hospitals and developmental centers and safely transitioning former residents to more integrated community living arrangements.
9. I also have a strong background in program and systems evaluation. I have completed evaluations of many aspects of New York’s service system for

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 5 of 16
people with mental disabilities, of community mental health services in Denver and Washington DC, and of community services for persons who have developmental disabilities in West Tennessee.
10. In 2011, I became an expert consultant to the United States Department of Justice on the United States v Georgia case (09-CV-119), which focused on improving conditions and reducing harm within Georgia’s State Hospitals.
11. In 2013, I became an expert consultant to the United States Department of Justice on the United States v Georgia case (10-CV-249). During the course of my work, I have reviewed the following documents: 1) reports and investigations of deaths of individuals receiving community services; 2) reports of the Independent Reviewer assessing compliance with the Settlement Agreement; 3) deficiency reports issued by support coordinators assigned to individuals in community services who had transitioned from State hospitals; and 4) the State’s statewide quality management reports pertaining to community services.
12. In addition, I reviewed various documents prepared by State officials responding to specific concerns in its community services system. These have included, but are not limited to:
(i) New protocols for transition planning for individuals who have developmental disabilities (DD) leaving State hospitals for community homes;

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 6 of 16
(ii) The State’s Priority Plan (for community services for individuals with DD);
(iii) Various State documents pertinent to the improvement of the provision of clinical and health care services to individuals with DD in the community;
(iv) Various State documents pertinent to the improvement of support coordination services for individuals enrolled in its Home and Community-Based Waivers;
(v) Independent mortality reviews provided to the United States of individuals with DD who died during the course of the Agreement;
(vi) Provider Manual for residential and other agencies providing Waiver services under contract with Georgia; and
(vii) Various documents related to the rate reimbursement structure and service delivery in Georgia’s Home and Community-Based Waivers.
13. Based on my extensive review of the documents described above, it is
my professional opinion that there are fundamental flaws with Georgia’s
community service system for individuals with DD that place these individuals at
significant risk of harm. These flaws include an ineffective support coordination
system, lack of accountability in the quality management system, and insufficient
capacity to provide critical medical, clinical, and behavioral services. As a result
of these problems, many of the individuals with DD who have transitioned from
Georgia’s State Hospitals or who have been diverted from admission under the
Settlement Agreement are not getting the supports and services they need to be
safe, healthy and integrated in their communities. In my experience, people with

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 7 of 16
complex needs can be served in the community with adequate supports and services.
The State’s Support Coordination Has Significant Structural Flaws
14. Based on my experience with Medicaid funded Home and Community-Based Waiver programs across the country, states assign a case manager, usually called a support coordinator, to help the individual and his/her family identify and request Waiver services that meet the individual’s needs, choose a provider, oversee and monitor the individual’s health, safety and welfare, and ensure that the individual is receiving the services identified in their individual plan of care.
15. The Independent Reviewer, in her compliance reports to the Court, has expressed repeated concerns about the State’s system for providing support coordination. In my extensive review of the State’s documents, its proposed plans to remedy these fundamental problems lack specificity in describing the action steps and do not contain timelines for needed reforms.
16. My review of the State’s support coordinator monitoring reports, among other documents, shows that the State does not have an effective support coordinator program.
17. Although the State has recognized that individuals with complex needs may need what is referred to as intensive support coordination, it has only

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 8 of 16
offered it to a handful of individuals in only one region of the State. This type of intensive support coordination is critical for people who have complex medical or behavioral issues. Intensive support coordinators have a lower caseload (typically no more than 10-15) and have particular expertise around people with complex needs.
18. The State also has provided inadequate oversight of its support coordination contractors, which has resulted in poor quality services and left many individuals at risk of harm. Frequency of visits by support coordinators to Waiver participants, the nature and thoroughness of these visits, and most important, the implementation of corrective actions to resolve identified problems appear to be poorly monitored by State. Although some support coordinator reports do eventually come to the attention of State employees in either the Department of Behavioral Health and Developmental Disabilities’ (DBHDD) Central or Regional offices, I have seen no documentation of consistent and accountable response to these reports. Because it appears that support coordinators in Georgia have no authority over contracted Waiver provider agencies, State action in responses to these reports is essential to addressing identified problems.

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 9 of 16
The State’s Support Coordinator Deficiency Reports Show that that Identified Problems Do Not Get Addressed
19. I recently reviewed approximately 230 deficiency reports issued by
support coordinators covering the time period of September 2014 to August 2015. Most of these reports cited serious problems related to individuals’ health and safety – yet documentation frequently failed to confirm follow-up corrective actions by State officials. Indeed, my review indicated that more than 80 of the 230 reports cited at least one serious deficiency that the support coordinators had cited previously – but there was no evidence that they had been corrected. Sixteen individuals had four or more deficiency reports. Twenty-eight individuals had three or more reports.
20. The most common health-related concerns cited were related to medication problems, including individuals not receiving prescribed medications. Another common problem was staff’s failure to adequately track and monitor important measures of health status, including the individual’s weight, food and fluid intake, bowel movements, or blood pressure. Tracking and monitoring these measures is critically important to identifying problems for people with complex medical needs.
21. One individual (CB), who was the subject of four support coordinator deficiency reports over the course of three months, was noted to have repeated

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 10 of 16
problems with her care. Her records were missing 16 days of documentation in the seizure log and 14 doses of anti-seizure medication in the medication administration record. Separate reports by a regional quality review team, which I describe below, also cited problems with seizure documentation, as well as bowel monitoring and repositioning logs. One report also cited a lack of staff to monitor her during mealtimes, as required by her treatment plan to ensure that she did not choke or aspirate food into her lungs. There was no documentation in the records I reviewed that these problems were addressed.
22. Another individual (JM), who receives all of his nutrition through an enteral tube, had two deficiency reports issued in March and again in April 2015, each citing essentially the same serious healthcare concerns: the nurse required to oversee his tube feedings each day had not been present for several days, his bowel management protocol was not followed, and the home did not have sufficient staff to ensure that he had two staff members to assist him in repositioning, which was required every two hours. There was no documentation in the records I reviewed that these problems were addressed.
23. These are just two examples of dozens of similar circumstances I found in my reviews of the support coordinator deficiency reports, where serious health problems were repeatedly identified, but not corrected.

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 11 of 16
The State’s Regional Quality Review Reports Further Evidence the Ineffectiveness of the State’s System to Identify and Address Problems
24. I was also asked to review Regional Quality Review reports (RQR reports) generated by the DBHDD’s six Regional Offices as a part of their quality review process. These reports memorialize site visits that regional office staff (including some contractors) make to homes with individuals who had transitioned from Georgia’s State Hospitals under the Settlement Agreement.
25. The RQR reports primarily covered the period September to November 2015, although a small subgroup of the reports pre-dated this period and a few reports were dated in the first few days of December 2015.
26. I found that the number of individuals who were reviewed by their region’s quality team varied widely. For example, the Region 1 reviews were conducted on only 18% of the 73 individuals who transitioned, and in Region 2, on only 13% of the 111 transitioned individuals. By contrast, in Region 6, 57% of the 44 transitioned individuals were reviewed; in Region 3, 64% of the 90 transitioned individuals were reviewed; and in Region 5, almost all (96%) of the 49 transitioned individuals were reviewed. There was no discernable or uniform criteria used by the regions to determine which individuals to review.
27. I also found that the regions differed greatly in the frequency of their RQR reviews. For example, in Regions 3 and 6, most individuals were reviewed several times a month or even weekly, but in Regions 1 and 2, most individuals

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 12 of 16
were reviewed only one time over the entire 90-day period. In Region 5, individuals were usually reviewed monthly.
28. It appears that the varying frequencies were region-specific and did not correlate with the seriousness of the identified problems from prior reviews. In many cases, especially in Regions 3 and 6, the RQR reports indicated that visits were weekly or even more frequent, even for individuals for whom no serious concerns had been previously identified. In other cases, especially in Regions 1 and 2, very serious reports had no follow up.
29. What the regional office reviewers actually reviewed or assessed during their visits likewise varied significantly. An assortment of different review tools were used by the different regions, and they varied dramatically in both depth and scope of the issues assessed. Some regions did not use formal review tools, but instead had reviewers summarize most or all of their findings in brief narrative notes (Regions 4, 5 and 6).
30. In my professional experience working on quality management systems in over a dozen states, consistency is critical. Overall, the methodologies of the regional offices’ quality review activities reflected in the RQR reports were so dissimilar that they would make it difficult for the DBHDD Central Office to properly assess the relative importance of their findings or to be assured that

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 13 of 16
problems identified by one region’s quality reviewers would have been detected (if present) by another region’s quality reviewers.
31. The findings of support coordinators – whose job is to identify problems with an individual’s care -- are a critical piece of information for any quality management system and certainly should be part of the RQR reports. Yet in all but one region, regional reviewers did not appear to rely on support coordinators’ review findings in their monitoring. I found virtually no reference to support coordinators’ findings in the RQR reports filed by Regions 1, 2, 4, 5, and 6. In addition, the regional reviewers did not appear to follow up with support coordinators who had apparently missed serious concerns during their own monitoring.
32. Perhaps most important of all, however, was that RQR reports across the regions, regardless of their differences, consistently failed to document followup of cited deficiencies through to remedy.
33. This was most notable in Regions 1 and 2 when most individuals were reviewed only one time, regardless of the severity of the deficiencies – but it was also notable in Regions 5 and 6 where narrative RQR notes usually did not clarify what, if anything, was fixed from visit to visit. Only in Region 4 did most of the narrative RQR review notes close with a sub-section clarifying issues from previous reviews that had or had not been resolved.

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 14 of 16
34. It was likewise not evident from any of the RQR reports that the Central Office of DBHDD was overseeing its regional offices’ quality assurance review activities. Nothing in the reports suggests that they are shared with Central Office personnel or supervisors. Tracking identified deficiencies and the implementation of corrective actions is an essential part of a quality assurance system. I have seen no evidence that the State effectively tracks recommendations for corrective actions to address deficiencies identified in these RQR reports, or in other reviews.
35. The State’s failure to ensure identified findings were addressed exposes individuals to unnecessary risk of harm. Despite the variability in the regions’ methodologies and the likelihood that some regions’ approaches were not sufficiently rigorous, individuals with serious risks were identified in the RQR reports from each of the six regions of the State.
The State’s Death Investigations Also Show Inadequate Systems to Prevent, Identify, and Address Problems with Care
36. I reviewed available reports on the deaths of 79 of the 503 individuals who had transitioned from Georgia’s State Hospitals to community homes.
37. The State conducted investigations in only 38, or approximately half, of these deaths. It was notable that in 17 of the 38 investigations, there was at least one concern or deficient practice associated with the death. Most commonly, the investigations cited delays in the individual receiving needed medical

Case 1:10-cv-00249-CAP Document 234-2 Filed 01/19/16 Page 15 of 16
interventions. There were also several investigations that associated failure to ensure implementation of needed health care protocols (for choking, falls, aspiration, and bowel management) with the individuals’ deaths. The cause of death is listed as unknown for 29 of the 79 reported deaths.
38. In addition to the 38 State death investigations, residential provider agencies conducted 19 self-investigations of people who died in their care. These investigations were not thorough, and included little more than a time line of the events in a day or two prior to the individual’s death. Significantly, no deficiencies or concerns were cited in 17 of these 19 provider self-investigations.
39. No death investigations were done for 22 of the 79 total deaths. 40. In addition, I also reviewed 39 independent mortality reviews conducted by two health care consulting firms under contract with the State. Many of these reviews cited concerns related to: timely medical care, nursing care, clinical therapy evaluations and consultations, and preventive measures for falls, choking, weight loss, aspiration, and bowel management. 41. While the majority of the persons who died had complex medical needs that are associated with higher mortality, many of the death reports document poor assessments, care, and oversight of service provisions across the state.
[End of Declaration]

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Case 1:10-cv-00249-CAP Document 234-5 Filed 01/19/16 Page 1 of 14
Exhibit 4

Case 1:10-cv-00249-CAP Document 234-5 Filed 01/19/16 Page 2 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

______________________________

)

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

) CIVIL ACTION NO.

) 1:10-CV-249-CAP

STATE OF GEORGIA, et al.,

)

)

Defendants.

)

______________________________ )

DECLARATION OF KATHY E. SAWYER

1. I am an independent consultant on health, mental health, and human

services issues based in Montgomery, Alabama.

2. I currently serve as the court-appointed Independent Compliance

Administrator in Evans v. Bowser, overseeing the District’s Department of

Disability Services in its efforts to comply with court orders to provide

community-based services to class members with developmental disabilities who

had formerly been institutionalized in the District of Columbia.

3. In 2010, I served as an expert consultant to the United States

Department of Justice in United States v. Georgia.

Case 1:10-cv-00249-CAP Document 234-5 Filed 01/19/16 Page 3 of 14
4. In 2008 to 2010, I served as a consultant to the Governor of Alabama on the State’s plan to replace Bryce Hospital, the state’s largest psychiatric hospital, with a smaller, state of the art hospital.
5. From 2005 to 2008, I served in various positions in the District of Columbia, including Evans Compliance Consultant in the Executive Office of the Mayor. In 2006, I was appointed by Mayor Anthony Williams as Interim Director of the District’s Mental Retardation and Developmental Disabilities (MRDD) Administration and was re-appointed in 2007 by Mayor Adrian Fenty. During this time, the MRDD Administration was established as a full cabinet level agency. As Interim Director, I oversaw all departmental and contracted community based services for persons with developmental disabilities, which included Medicaid funded disability services in community settings.
6. From 1999 to 2005, I served as the Commissioner of the Alabama Department of Mental Health and Mental Retardation (Alabama Department), having first been appointed by Governor Don Siegelman and re-appointed in 2002 by Governor Bob Riley. As Commissioner, I oversaw the administration of all state operated facilities and contracted community based services for persons with psychiatric or developmental disabilities and a budget of over $600 million. The disability services I oversaw included Medicaid-funded services in both institutional and community settings.
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7. Prior to my appointment as Commissioner, I served for fourteen years as the Alabama Department’s Director of Advocacy Services and, for eight years prior to that, as Regional Coordinator of mental retardation services for the Alabama Department’s thirteen (13) northern counties. A copy of my curriculum vitae is attached as Attachment A.
8. During my term as Alabama’s Commissioner, Alabama settled a longstanding lawsuit titled Wyatt v. Stickney, which had been filed by a class of residents of Alabama’s state-operated institutions in the United States District Court for the Middle District of Alabama. I was responsible for negotiating this settlement, which called for a significant expansion of community services for institutional residents in Alabama.
9. When I began as Commissioner, Alabama operated four state facilities for persons with developmental disabilities: the Albert P. Brewer Center in Daphne, Ala.; the J.S. Tarwater Developmental Center in Wetumpka, Ala.; the Lurleen B. Wallace Developmental Center in Decatur, Ala.; and the William D. Partlow Developmental Center in Tuscaloosa, Ala. These facilities, which were licensed as Intermediate Care Facilities for the Mentally Retarded1 (“ICF”), housed approximately 600 individuals with developmental disabilities, and included
1 These facilities are now called Intermediate Care Facilities for individuals with intellectual and developmental disabilities (“ICF-IDD”), pursuant to changes in accepted terminology in the field and in applicable regulations.
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individuals with significant behavioral issues and individuals who were medically fragile.
10. Following the settlement in Wyatt, Alabama elected to consolidate its institutional services through the structured and monitored closure of three of the above-referenced ICFs. Residents and their families were provided with a choice of whether they wanted to live in the community or at Partlow Developmental Center, which at the time would become Alabama’s only state-operated ICF. Most residents, including many at Partlow, opted to move into the community.
11. Many of the former staff in the state-operated facilities that closed found jobs with community services providers, supporting individuals who left the state institutions. Transition for these staff was more financially feasible because many of the private community providers were participants in the State’s retirement system. With the leadership of the Governor, other staff were given priority for vacant positions in other parts of state government.
12. In re-designing Alabama’s system of care for persons with developmental disabilities, the Alabama Department relied upon the opinion of professionals with experience in the field, advice of persons with developmental disabilities and their families, and advice of members of the advocacy community. For example, in partnership with the Alabama Developmental Disabilities Council, the Alabama Department instituted a self-advocacy initiative that allowed persons
4

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with developmental disabilities to provide feedback and commentary on the Alabama Department’s services. Advocates with developmental disabilities were also hired to organize self-advocacy groups in state institutions and regions throughout the state. Further, during my tenure, individuals with developmental disabilities, including institutional residents, met with Governor Riley and other state officials on numerous occasions to advise on developmental disabilities issues and their experiences.
13. The decision to transition individuals to community settings also required the Alabama Department to expand its provider capacity and to develop additional community supports and services, largely for rural areas that cover most of Alabama. As a result of our work with community providers, both inside and outside Alabama, we were able to convince many providers to expand their services to support individuals leaving state institutions. The services we developed included small residential waiver homes, individualized supportive housing into which the former institutional resident and his or her support persons could move, and in-home supports and services that enabled individuals to reside at home with their families.
14. To develop additional housing needed for individuals leaving institutions, we partnered with the Alabama Housing Finance Authority, which develops housing for low-income persons using state and federal funds. The
5

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Housing Finance Authority agreed to set aside 25% of the housing it developed for individuals moving out of state operated facilities. This set-aside was approved by the United States Department of Housing and Urban Development.
15. To ensure that individuals with developmental disabilities in rural or underserved areas had access to needed medical care, dental care, behavioral staff, and crisis intervention services, Alabama created regional community clinical services teams. These teams typically consisted of multiple disciplines, including a physician, a psychologist, nurses, and behavioral specialists. Clinical services were made available to individuals residing primarily in rural areas, where availability and access to these services were initially limited and provider capacity had to be further developed to adequately serve individuals with these special needs. Medical and dental services were made available onsite at the Regional Centers, and special teams of nurses, social workers, and behavioral specialists could be deployed to the individual’s community residential or day program site for intervention in crisis situations.
16. Ultimately, the number of individuals successfully moved into the community far exceeded Alabama’s obligations under the Wyatt settlement agreement. The State’s success in transitioning hundreds of former institutional residents and closing three of its four ICFs enabled Alabama to successfully close the Partlow Developmental Center, its last state-operated ICF, in 2011.
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17. Based on my experiences both in Alabama and the District of Columbia, in order to achieve the successful and positive outcomes for persons with developmental disabilities as described in the foregoing pages, the following systems and plans are required, at a minimum:
A. Service Planning and Coordination System: An effective service planning and coordination system is necessary to ensure adequate institutional transition and discharge planning, as well as the ongoing provision of critical supports and services. The purpose of the transition and discharge planning process, in general, is to identify a person’s needs, identify what services are necessary to meet those needs in the most integrated setting appropriate, identify barriers to discharge, and to develop and implement strategies to address them. Successful transition and discharge planning for individuals with developmental disabilities requires, at a minimum: comprehensive assessments of the person’s needs; identification and employment of qualified providers who are trained and competent to service those needs; acquisition of all needed services and supports, prior to movement, including needed adaptive equipment; and assignment of support coordinators (or case managers) familiar with the person, the person’s needs, and 7

Case 1:10-cv-00249-CAP Document 234-5 Filed 01/19/16 Page 9 of 14
their individualized service plans. The support coordinator is critical to ensure that all these necessary supports and services are in place prior to the person’s move and throughout the duration of the person’s community placement. B. Comprehensive Quality Assurance and Improvement Plan: A comprehensive quality assurance and improvement plan is necessary to protect individuals from harm while protecting individual rights and promoting consumer choice and satisfaction. An effective quality assurance and improvement plan must identify performance indicators for all providers of services, including government agency staff and contract providers; monitor service delivery; regularly collect, analyze, and report performance data; and improve deficient performance through a system of progressive training, technical assistance, sanctioning, and other enforcement activities. C. Effective Incident Management and Prevention System: An Effective Incident Management and Prevention System that protects people from harm while enhancing the quality of services is of critical importance in providing services for individuals with developmental disabilities. The system should include guidelines
8

Case 1:10-cv-00249-CAP Document 234-5 Filed 01/19/16 Page 10 of 14
and requirements for identifying, timely reporting, reviewing and, where indicated, conducting thorough investigations of allegations and other incidents of neglect, abuse, serious physical injury, or other mistreatment of individuals being served. The system should also mandate that corrective and other enforcement actions be taken and verify corrective actions for providers who violate protection from harm procedures. D. Enhanced High Risk Monitoring Plan: An Enhanced Monitoring Plan should be in place to identify and closely monitor individuals with the highest risk of harm, due to their medical or behavioral conditions, to ensure their special needs are carefully monitored and timely addressed. Special protocols developed for common needs such as feeding, positioning, or ambulating, for example, must be adhered to at all times to prevent harm. Individualized protocols also ensure that all staff assigned to work with individuals are knowledgeable of their conditions. Staff must be trained on the interventions in these protocols. E. Home and Community Based Waiver: Home and Community Based (HCBS) Waivers, through the Centers for Medicaid and Medicare (CMS), enable states to receive federal matching funding
9

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for an array of residential and day programs, services and other supports that facilitate the community integration of persons with developmental disabilities. Alabama relied heavily on its HCBS waivers to fund community placements and services for individuals discharged from its developmental centers as part of the Wyatt Settlement Agreement. This has also been my experience in the District of Columbia, where during my tenure as Interim Director of the Department of Disability Services, the District’s HCBS waiver was drastically expanded to provide increased services to individuals by maximizing the use of federal dollars. The expansion and increase of the waiver has continued over recent years. In my opinion, maximizing funding of the waiver program is essential for a state to have a cost-effective way to provide services to this population. 18. As a former Commissioner and a resident of a neighboring state, I am generally familiar with the geography and demographic composition of Georgia. In addition, while serving as a consultant to the Department of Justice in this matter in 2010, I visited and toured Northwest Georgia Regional Hospital in Rome, Georgia, one of the five state-operated ICFs in Georgia at the time.
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Case 1:10-cv-00249-CAP Document 234-5 Filed 01/19/16 Page 12 of 14
19. I reviewed the records of a number of individuals served in Georgia’s facilities in 2010. More recently, I have reviewed reports of the court-appointed Independent Reviewer in this case that describe the individuals currently being served, their demographics, and their support and service needs.
20. The level of need and severity of the disabilities of the individuals I observed at the ICF in Rome and described in the Independent Reviewer’s recent reports are similar to those of institutional residents in Alabama during my tenure as Commissioner and individuals currently being served in communities throughout the District of Columbia. Indeed, many of the individuals who were moved into the community in Alabama had more severe disabilities than I observed in the residents at Rome. Accordingly, I believe the needs of individuals being served in Georgia are not greater than the needs of the individuals we served successfully in the community in Alabama.
21. Finally, like Georgia, Alabama has many institutional residents who come from rural areas. Indeed, Alabama is a predominantly rural state.
22. Based on the foregoing experiences and review, it is my opinion that Georgia can transition individuals with developmental disabilities who are unnecessarily institutionalized into safe and appropriate community residences, using strategies like those used successfully in other states to build community services and supports.
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23. In addition to the significant steps Alabama took to downsize and close its ICFs and expand community services for people with developmental disabilities under Wyatt and other initiatives, Alabama also significantly decreased its reliance on institutions to serve people with significant mental illness and expanded community services for people with significant mental illnesses.
24. The types of community services that Alabama created for individuals with serious mental illness are similar to those that Georgia is required to create under the Settlement agreement, including Assertive Community Treatment teams, a range of crisis services, and supported housing.
25. The creation of supported housing was been key to Alabama’s efforts to keep people with serious mental illness in the community and out of our psychiatric hospitals. Supported housing is not only assistance in obtaining affordable, permanent housing; it also includes accesses to services that assist the individual in stably living in the community. In my experience, without access to supported housing, people otherwise will be unnecessarily placed in inpatient care, homeless shelters, or more segregated congregate housing.
[END OF DECLARATION]
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 Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 1 of 38

ATTACHMENT A


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 2 of 38
REPORT OF THE INDEPENDENT REVIEWER
 In The Matter Of

United States of America v. The State of Georgia
 Civil Action No. 1:10-CV-249-CAP

Submitted By: Elizabeth Jones, Independent Reviewer
 September 15, 2014


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 3 of 38
INTRODUCTORY COMMENTS
This is the fourth Report issued on the status of compliance with the provisions of the Settlement Agreement in United States v. Georgia. The Report documents and discusses the State’s efforts to meet obligations to be completed by July 1, 2014.
The Independent Reviewer and her expert consultants in supported housing, supported employment, Assertive Community Treatment (ACT), behavioral interventions and health care drew from multiple sources of information to form their professional judgments regarding compliance with the Settlement Agreement obligations for Georgia’s individuals with mental illness and/or an intellectual disability. These sources included observations from multiple site visits in every Region of the State. (The Independent Reviewer spent forty-four days on site in Georgia.) In addition, the information and data contained in numerous documents were reviewed. There were discussions with the leadership and staff of the Department of Behavioral Health and Developmental Disabilities (DBHDD), and conversations with key stakeholders, including members of the target population, their families and their advocates. Parties’ meetings and meetings with the Amici were held throughout the fourth year in order to collaborate on issues of mutual concern.
While there continue to be critical systemic matters to be addressed and resolved, including the under-representation of individuals with forensic histories, the uneven demonstration of the recovery model, and the gaps in continuity of care, it is evident that the State of Georgia has worked diligently and effectively throughout the fourth year to strengthen and expand the supports required by adults with a serious and persistent mental illness.
Despite competing demands for limited resources, the Governor and the State Legislature have continued to approve the funding requested for the implementation of the Settlement Agreement in the fourth year. The State has demonstrated a good faith effort to ensure that the terms of the Settlement Agreement are met.
At this time, with very limited exceptions, the transition of individuals with an intellectual disability from State hospitals to community-based settings is still suspended. The State remains out of compliance with key provisions of the Settlement Agreement regarding community placements, the implementation of individualized support plans and support coordination. However, there are promising plans to reform the system of supports throughout the State and credible efforts are now beginning to be initiated. The State has retained highly qualified expert consultants to assist with its transformation actions; their experiences in other States will be invaluable assets in the introduction of the necessary reforms. Although the delays in the design and development of community placements are of significant concern, the Commissioner’s decision to twice stop community placements until health, safety and
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habilitation could be assured was a wise one. There has been considerable support for his decision throughout the stakeholder community and there is confidence and hope in his leadership and that of the Deputy Commissioner.
As noted in the attached expert consultant reports, the public statements by Commissioner Berry and his leadership team have strongly underscored the importance of the recovery model and the principles of the Olmstead decision. Their commitment and conscientious, seemingly tireless, efforts are extremely important to the reform of the State’s system. In the coming year, the fifth year of the Settlement Agreement, it will be critical to ensure that their understanding of and advocacy for the recovery model and for the meaningful integration of Georgia’s residents with a mental or developmental disability are reflected throughout the network of clinicians and professional/paraprofessional staff who provide services and supports. The attached reports describing supported housing, supported employment and Assertive Community Treatment (ACT) document that this is not presently the case. Additional emphasis on these expectations, as well as training and oversight, is required.
The work of the Independent Reviewer and her consultants has been greatly aided and encouraged by the generous assistance of and access to Commissioner Berry, Deputy Commissioner Judith Fitzgerald, Settlement Agreement Director Pamela Schuble, and many Department (DBHDD) staff and consultants. Commissioner Berry and Deputy Commissioner Fitzgerald have invited the Independent Reviewer’s perspective, and those of her expert consultants, on individual, programmatic and systemic issues. Ms. Schuble has joined the Independent Reviewer on many site visits and has taken the responsibility to follow-up on issues of concern.
It has also been invaluable to work with the State’s counsel and the attorneys from the Department of Justice. This past year has required a high degree of collaboration and commitment to problem resolution. The willingness to convene periodic Parties’ meetings and hold frank discussions about the implementation of the Settlement Agreement provisions has resulted in the identification and implementation of productive approaches to fact-finding and remedial actions. The Court’s instruction to periodically include representatives of the Amici in discussions about the implementation of the Settlement Agreement provisions has been respected by the Parties and the Independent Reviewer. The advice and observations of the Amici have received serious consideration.
Each year, the State of Georgia’s articulate and engaged community of peers and advocates has been acknowledged and applauded in these Reports to the Court. This year, the Independent Reviewer and her consultants had the privilege of visiting three Peer Wellness Centers in order to meet directly with men and women who are receiving supports related to their mental illness. (Two additional Centers have now been funded.) Although the Settlement Agreement
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does not require these Centers, they are funded by State dollars and provide exemplary opportunities for companionship, respite, skill acquisition and encouragement. They are an indication of the State’s commitment to client-directed supports in typical community settings. These Centers stood in contrast to three other sites, for ACT clients, visited very recently by the Independent Reviewer and her consultants in preparation for this Report. The disparities between these settings point to three substantial challenges that the State must continue to address in its mental health system in the fifth year of the Settlement Agreement:
• Implementation of a recovery-based model must be present throughout the system. All agencies should demonstrate knowledge of and commitment to these principles in order to receive State funding;
• There must be evidence of continuity of care. The mental health system must work as a whole rather than as a series of parts;
• Access to recovery-based supports must be available for each member of the target population, including those with a forensic history.
These challenges exist in parallel with the outstanding concerns still evident in the State’s system of supports for individuals with a developmental disability. These identified concerns are known to the Parties and are the subject of intensive remedial efforts by the Department of Behavioral Health and Developmental Disabilities. They are clearly outlined in the Priority Plan adopted by the Department (DBHDD) and published on its website.
In summary, therefore, the State has continued to demonstrate continuing progress in the expansion and strengthening of its mental health system. Attention must now be directed towards under-represented members of the target population; ensuring continuity of care across the discrete parts of the system; and uniform application of recovery-based principles and practices. The system of supports for individuals with an intellectual/developmental disability is still seriously compromised. Substantive changes must be implemented as described in the Priority Plan submitted by the State. Timelines must be met.
Given the leadership strengths within the Department (DBHDD) and the advocacy community, the resources appropriated by the Governor and the Legislature, and the contemporary knowledge in the field of evidence-based practices available to the State, it is the Independent Reviewer’s opinion and hope that this forthcoming year of the Settlement Agreement will build on the accomplishments of Year Four, continue to resolve identified weaknesses and demonstrate increased growth in Georgia’s systems of care for individuals with a mental disability.
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CURRENT STATUS OF MODIFICATIONS TO THE SETTLEMENT AGREEMENT LANGUAGE
The Settlement Agreement permits the Parties to seek approval from the Court for mutually agreed upon modifications:
Any modification of this Settlement Agreement shall be executed in writing by the Parties, shall be filed with the Court, and shall not be effective until the Court enters the modified agreement and retains jurisdiction to enforce it. (VII, E)
On two occasions, August 29, 2012 and July 26, 2013, upon receipt of joint motions by the Parties, the Court approved modifications to the language of the Settlement Agreement. The requirements linked to the first modification were met by the State and were discussed in last year’s Report. They involved the development of the Quality Management system and the review of the Assertive Community Treatment teams implemented under the Settlement Agreement. The issues linked to the second modification focused on the transitions from State hospitals to community-based settings for individuals with an intellectual/developmental disability. These latter issues are not resolved and have received continuing attention from the Parties and the Independent Reviewer. A Supplemental Report by the Independent Reviewer was filed with the Court on March 24, 2014. Subsequently, on the same date, the Parties filed a joint response to the Independent Reviewer’s report.
The Parties’ response requires the State to respond to the recommendations made by the Independent Reviewer in her Supplemental Report. These recommendations are:
1. Realign the responsibilities and competencies of support coordinators to include developing and implementing an individualized plan of supports, revising the plan to address changing needs, and oversight to ensure needed services are delivered and outcomes are achieved.
2. Strengthen the transition process from the State hospitals to community-based settings, including providing individualized and relevant competency based training for community providers.
3. Ensure competent and sufficient health practitioner oversight of medically fragile individuals including providing competency-based training on writing and implementing nursing plans of care, proper positioning techniques, and proper monitoring of food and fluid intakes.
4. Design and implement Intensive Support Coordination for high-risk individuals, including pursuing an amendment to the Home and Community-Based Services Waiver.
5. Restructure the roles and responsibilities of regional offices, including examining how the regional offices inter-relate with the DD Division and with community providers, including Support Coordination agencies.
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6. Develop and implement sustainable strategies for the ongoing monitoring and evaluation of community placements to remedy issues such as lack of communication, information sharing, and feedback.
7. Recruit and retain provider agencies with requisite experience with individuals with medical and behavioral complexities.
8. Conduct independent mortality reviews of all deaths of individuals receiving Home and Community Based Services Waivers who meet the criteria for the target population of individuals with intellectual disabilities in the Settlement Agreement, § III.A.2.a.
9. Create exit criteria to enable the State to reach identifiable goals necessary to achieve compliance with the Settlement Agreement.
The joint response also requires the Independent Reviewer to comment on the Plan developed by the Department of Behavioral Health and Developmental Disabilities as it works to address acknowledged deficiencies in its system of supports for individuals with a developmental/intellectual disability.
On June 30, 2014, as agreed, the Department (DBHDD) submitted a draft Priority Plan to the Department of Justice and to the Independent Reviewer. This document was shared with the Amici on July 7, 2014. The Independent Reviewer, the Department of Justice and the Amici provided their comments to the Department (DBHDD) in a timely manner. On July 21, 2014, the Department (DBHDD) published its Plan on its website.
The Plan submitted by the Department (DBHDD) is comprehensive. It provides detailed attention to the essential ingredients of a well-functioning system of community-based supports, including the implementation of support coordination; the transition process from institutions; the development of residential and clinical resources as determined by Individual Support Plans; and the creation of oversight and Quality Management mechanisms.
The Plan is responsive to all but one of the Independent Reviewer’s recommendations referenced above (9). As of this date, the exit criteria for the Plan have not been finalized, although they are reportedly in the process of being developed.
As noted by the Department of Justice and the Amici, the Plan will require additional resources and staffing in order to be implemented as written. The implementation timelines referenced in the Plan were of concern to the Department of Justice, the Amici and the Independent Reviewer; they appeared to be too concise to achieve the stated expectations for the requisite and wide-ranging programmatic and systemic reforms.
Since the issuance of the planning documents, the Department (DBHDD) and its expert consultants have continued to work with great seriousness to implement the initial stages of the Plan. On July 14, 2014, the Independent Reviewer met with the Department’s (DBHDD)
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leadership team, including its clinical consultants, to review its initiatives for transition planning and program development in Region 2. These initiatives have merit and will provide a template for similar initiatives in other Regions. Region 2 was an ideal choice to begin the new design of program supports since it is also the location of the Craig Center and Gracewood, two institutions that are the sites for future transitions.
The transitions from Craig Center are of immediate concern. The individuals who live here now are medically or psychiatrically compromised and will require residential settings with adequately trained staff and clinical supports. Unless there is Guardian opposition, the Department (DBHDD) has determined that individuals with an intellectual/developmental disability will be placed in appropriate community settings funded under the Home and Community-Based Services Waiver. However, there has not been sufficient planning to ensure appropriate community options for those individuals with both psychiatric and medical needs for support. The discussions with the Department of Community Health, a signatory to the Settlement Agreement, have not been fruitful regarding this important matter, despite assurances to the Independent Reviewer that were documented in last year’s Report. It is the Independent Reviewer’s opinion that the future placements for individuals who reside at the Craig Center must be addressed as part of the new Region 2 initiative. At the present time, individuals have been or are projected to be transferred to Georgia Regional Hospital in Atlanta and to Gracewood. Visits to both institutions by the Independent Reviewer, in July 2014, surfaced concerns about the lack of active treatment. In addition, there is virtually no privacy or individualization in either setting. During the site visits, nursing care at the Atlanta facility was noted to be caring and competent. (This State hospital is also the current placement for individuals transferred from Southwestern State hospital prior to its closure in December 2013. Two individuals were transferred to Gracewood. All of these men and women remain hospitalized although one is scheduled to move to a community placement.)
It is clear that the Department’s (DBHDD) leadership and its expert consultants are very mindful of the responsibilities that must be implemented successfully in order to permit the transitions from State hospitals required under the provisions of the Settlement Agreement.
It is the Independent Reviewer’s strong recommendation that another Supplemental Report on the status of the provisions related to transitions, support coordination and the implementation of Individual Support Plans be prepared and submitted to the Parties and then filed with the Court under the same timeframes and expectations as the first Supplemental Report filed in March 2014.
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Summary: of Com~liance: Year Four

Settlement Agreement Reference

Provision

Rating

Comments

III [[[.A.1.a 1II.A.1.b [[1.A.2.b.IIA)
[[1.A.2.b.IIB)

Substantive Provisions
By July 1, 2011, the State shall cease all admissions to the State Hospitals of all individuals for whom th e reason for admission is due to a primary diagnosis of a developmental disability.

Compliance

The State has complied with this provision . Th e re is no evid ence to indicate that individuals with a developmental disability have bee n transferred betwee n State Hospitals in contradiction of the commitm ent to ceas e admissions . It is recomm e nd ed that the Department's Quality Management system restructure its reporting of performance indicators related to th e cessation of admissions .

Th e State will make any necessary changes

In Hous e Bill 324, th e State Legislature am ended

to administrative regulations and take best

Chapter 4 of Title 37 of th e Official Code of Georgia

efforts to amend any statutes that may

Compliance Annotated.

require such admissions .

By July 1, 2011, the State shall move 150

By July 1, 2011, th e Departm ent placed more than 150

individuals with developmental disabilities

individuals with a developmental disability into

from th e Stat e Hospitals to the community and the State shall creat e 150 waivers to

community residential settings supported by th e Home and Community-Bas ed Waiver . A sampl e of48

accomplish this transition . In addition, the

individuals was revi ew ed . Id entified concerns w ere

State shall move from the State Hospitals

ref erred to the Departm ent and corrective actions w ere

to the community all individuals with an existing and active waiver as of the Effective Date of this Agree ment, provided

Compliance

initiated . Nin e of th e 11 individuals hospitali zed with an existing Waiver w ere discharged to community settings . Two individuals remained hospitali zed. Delays in

such placement is consistent with th e individual's inform ed choice. The State

placement w ere attributed to family objections or to provider-related issues. Th e Department continued to

shall provide family supports to a minimum of 400 families of peopl e with

pursu e appropriate community placements for these two individuals. More than 400 individuals were

developm ental disabiliti es.

provided with family supports . Because th ere was

substantial compliance with this provision, a positive

rating was given.

Betw ee n July 1, 2011, and July 1, 2012, the Stat e shall move 150 individuals with developm ental disabiliti es from the Stat e Hospitals to the community . Th e State shall creat e 150 waivers to accomplish this transition . Th e Stat e shall also create 100 additional waivers to pr event the institutionali zation of individuals with developmental disabilities who are currently in th e community . The State shall provid e family supports to an additional 450 famili es of people with developm ental disabilities.

Compliance

The Departm ent placed 164 individuals with a developmental disability into community resid e ntial settings supported by th e Hom e and Community- Based Waiver. A statistically relevant sampl e of 48 individuals was review ed. Identifi ed concerns have bee n re ferred to th e Departm ent and corrective actions are be ing initiated. Although in compliance, it is recomme nd ed that the Departm ent review its policies and guidance regarding expectations for community placeme nt and to provid e greater oversight of servic e coordin ation at the Regional level. The two hospitali zed individuals referenced in the provision above have eith er b ee n placed or have a placement in process . Two other individuals with existing and active Waivers at th e time of the Settl ement Agree ment w ere rehospitalized. Thos e individuals w ere review ed by a psychologist consulting with the Ind epend ent Revi ew er . Com munity placements are being actively pursu ed; an expe ri enced provid er has bee n recruited . The Departm ent issu ed 117 Waivers to avoid institutionali zation of individuals with a developm ental disability residing in th e community . Family supports w ere provid ed for 2248 individuals through 38 provid er agenci es.

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Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 10 of 38

Settlement Agreement Reference

Provision

Rating

Comments

[[1.A.2.b.i(C) [[1.A.2.b.i(D)

Between July 1, 2012, and July 1, 2013, the State shall create at least 250 waivers to serve individuals with developm ental disabilities in community settings . Th e State shall move up to 150 individuals with developmental disabilities from th e State Hospitals to th e community using those waivers . Th e remaining waivers shall be used to prevent the institutionali zation of individuals with developmental disabilities who are currently in th e community . The State shall provide family supports to an additional 500 families of people with developm ental disabilities.

Compliance

The Court's Order, dat ed July 26,2013, modifi ed th e language of this provision . The Department has issued 597 waivers to serve individuals with developm ental disabilities in community settings . Th ese waivers have bee n used to prevent institutionalization and to sustain individuals with a developmenta l disability with their families. Th e number of individuals with a disability who have moved from state hospitals using th ese waivers will be review ed in th e Independent Review er's report to be issued in late Winter 2014 . As of this date, seventynine individuals with a developm ental disability have been transition ed from state hospitals to community residential settings .

Between July 1, 2013, and July 1, 2014, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 500 families of people with developmental disabilities.

Noncompliance

With few exceptions (three), placements from State Hospitals have been suspended. The Department is planning and developing remedial actions to permit the resumption of individualized community placements. A " pioneer " project is being initiated in Region 2 to demonstrate improved transition, support coordination and habilitation practices. In total, 46 individuals were transitioned from State Hospitals during this Fiscal Year. The State issued 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. In FY14, the State provided family supports to a total of 1155 families of people with developmental disabilities.

[[1.A.2.b.ii(B) [[1.A.2.b.iii(A)

Individuals in the target population shall not be served in a host hom e or a congregate community living setting unless such placement is consistent with th e individual's informed choice. For individuals in th e target population not served in th eir own hom e or their family's hom e, th e number of individuals served in a host home as defin ed by Georgia law shall not exceed two, and the number of individuals served in any congregate community living setting shall not exceed four .

The Department remains in substantial compliance with this provision. All host homes reviewed to date have no more than two individuals. With one recently identified exception, the number of individuals served in any congregate community living setting has not exceeded four.
Compliance

Assembling professionals and non professionals who provide individualized supports, as w ell as the individual being served and oth er persons important to th e individual being served, who, through th eir combin ed expertise and involvement, develop Individual Service Plans, as required by th e State's HCBS Waiver Program, that are individualized and person centered .

Noncompliance

The rating of this provision was deferred initially by Court Order until January 2014. As of June 30, 2014, the Department has not achieved compliance with this provision.

9


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 11 of 38

Settlement Agreement Reference

Provision

Rating

Comments

Assisting the individual to gain acc ess to needed medical, social, education, III.A.2.b.iii(B) transportation, housing, nutritional, and oth er services id entified in the Individual Service Plan. Monitoring th e Individual Servic e Plan to make additional ref errals, servic e changes, III.A.2.b.iii(C) and am endm ents to th e plans as id entified as needed. Th e Independ ent Review er will not assess the provisions of this section, III.A.2.b.iii.{A)-{C), in her report for the period ending July 1, 2013. Instead, th e III.A.2.b.iii(D) review period for this section will be extended six months until January 1, 2014, after which the Independent Review er will report on this section pursuant to the draft, review, and comm ent deadlin es enum erat ed in VI.A. By July 1, 2012, the State will have six III.A.2.c.i(A) mobile crisis t eams for persons with developm ental disabilities. By July 1, 2012, the State will have five III.A.2.c.ii(B)(1) Crisis Respite Hom es for individuals with developm ental disabilities.

By July 1, 2013, the State will establish an additional four Crisis Respite Homes for III.A.2.c.ii(B)(2) individuals with developmental disabilities.

By July 1, 2014, the State will establish an

additional three Crisis Respite Homes for III.A.2.c.ii(B)(3)
individuals with developmental

disabilities.

By July 1, 2013, the State shall create a

program to educate judges and law

[[[.A.3.a

enforcement officials about community supports and services for individuals with

developm ental disabilities and forensic

status.

Individuals with developmental disabilities

and forensic status shall be includ ed in the

target population and the w aivers

III.A.3.b

described in this Section, if the relevan t court finds that community placement is

appropriate. This paragraph shall not be

interpreted as expanding the State's

obligations under paragraph III.A.2.b.

Noncompliance
Noncompliance
Completed
Compliance Compliance Compliance
Noncompliance Compliance
Compliance

The rating of this provision was deferred initially by Court Order until January 2014. As of June 30, 2014, the Department has not achieved compliance with this provision.
The rating of this provision was deferred initially by Court Order until January 2014. As of June 30, 2014, the Department has not achieved compliance with this provision. The Independent Reviewer has complied with this requirement. Her supplemental report was filed with the Court on March 24, 2014.
There are 12 mobile crisis teams for individuals with developmental disabilities.
There are 11 Crisis Respite Hom es, including on e for children. One individual in th e sample of 48 was revi ew ed in his crisis home; supports w ere adequate and individualiz ed. There are 11 Crisis Respite Hom es across the State. There are 2 homes in ea ch Region, except for Region 3 which has on e Hom e. There w er e 270 individuals served in FY13. There are 11 Crisis Respite Homes. The contract for the twelfth home was cancelled and has not yet been reissued.
The Department has initiated a program to provide education to judges and law enforcement individuals. In FY14, training was provided to 1433 individuals, including 130 Judges, 1279 law enforcement officials and 24 attorneys.
There is evidence that individuals with a developmental disability and forensic status are included in the target population. However, with few exceptions, community placements are currently suspended.

10


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 12 of 38

Settlement Agreement Reference

Provision

Rating

Comments

[[[.A.4.a III.A.4.b III.A.4.d

By July 1, 2013, the State will conduct an audit of community providers of waiver se rvic es.

Compliance

The Georgia Quality Management System (GQMS) contract with the Delmarva Foundation mandates that each provider rendering services through the M edicaid waivers to individuals with deve lopmental disabilities has on e annual review over the course of five years. Th erefore,40 providers are review ed each year (39 service providers and on e support coordinator agency). The providers are selected randomly. Findings from these reviews are summarized in th e Quality Management reports issu ed by th e Departm ent.

By the Effective Date of this Agree ment, th e State shall use a CMS approved Quality Improvement Organization ("QIO") or QIOlike organization to assess th e quality of services by community provid ers.

Compliance

In FY14, the Department again utilized the services of the Delmarva Foundation to design and implement a quality assurance review process. Delmarva also assessed the quality of services by community providers. The Department participated in the National Core Indicator surveys.

The State shall ass ess compliance on an annual basis and shall take appropriate action based on each assessm ent.

Compliance

The Delmarva Foundation issues annual reports assessing the quality of services by community providers for individuals with a developmental disability. The most recent report was issued to the Independent Reviewer and the Department of Justice on August 1, 2014. Annual reports are posted on the Delmarva website. The State will need to continue its review of the quality of services to ensure that any remedial actions have occured in a timely manner. The Regions receive the information from Delmarva and are expected to take timely remedial action.

[[[.B.1.c

Pursuant to the Volunta ry Compliance Agree ment with Health and Human Services, the State establish ed a M ental Health Olmstead List. The State shall ensure that all individuals on the M ental Health Olmstead List as of the Effective Date of this Agree ment will, if eligible for services, receive servic es in the community in accordance with this Settlement Agree ment by July 1, 2011. The Parti es acknowledge that some individuals on th e M ental Health Olmstead List are required to register as sex offenders pursuant to O.e.G.A. § 42-1-12 et seq. The Parties furth er acknowledge that such registration makes placement in th e community more difficult. Th e Parti es may by written consent extend the application of th e date set forth in this paragraph as it applies to such individuals. The written consent described in this paragraph will not require Court approval.

Compliance

At th e time the Settl ement Agreement was sign ed, there w ere 27 individuals on th e Olmstead List. All of these individuals w ere discharged from th e State Hospitals and w ere provid ed community services.

11


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 13 of 38

Settlement Agreement Reference

Provision

Rating

Comments

All ACT t eams will operate with fid elity to the Dartmouth Assertive Community Treatm ent mod el.
[[1.B.2.a.i(G)

[[1.B.2.a.i(H)(1)

By July 1, 2011, the State shall have 18 Assertive Community Treatment t eams . By July 1, 2012, the State shall have 20 Assertive Community Treatment t eams .

[[1.B.2 .a.i(H)(2)

By July 1, 2013, the State shall have 22 Assertive Community Treatment t eams . [[1.B.2.a.i(H)(3)
By July 1, 2012, the State will have two Community Support Teams . [[1.B.2.a.ii(C)(1)
By July 1, 2013, the State will have four Community Support Teams .
[[1.B.2.a.ii(C)(2)

Compliance

In FY12, The Parties, with concurrence by the Independent Reviewer, requested that the Court defer evaluation of this provision. The Court approved this request on August 29, 2012 with explicit instructions regarding reporting, root cause analysis and corrective action plans. These instructions were complied with by the Department with close involvement of the Independent Reviewer and her expert consultants. In FY14, this provision continues to be in compliance. All teams funded under this Agreement are expected to operate with fidelity to the Dartmouth model. Certain lower performing teams have been identified for additional oversight and review. The Department (DBHDD) has been asked to report progress to the Independent Reviewer for inclusion in her second Supplemental Report.

Compliance Compliance Compliance

The Departm ent has funded 18 Assertive Community Treatm ent t eams . The State has fund ed 20 Assertive Community Treatm ent t eams . However, change in th e composition of th e t eams is und erway . Th e Department is proceeding with remedial action as required by th e Court's Ord er and with consultation by th e Independent Revi ew er, th e Departm ent of Justice and other interested stakehold ers . The Department has funded 22 Assertive Community Treatment teams. They are distributed through all six Regions of the state. As of June 30, 2014, there were 1,409 individuals participating in services with the ACT teams. For a discussion of the ACT teams, see attached report by Angela Rollins.

Compliance Compliance

The State has established two Community Support Teams . Although one t eam was transferred to anoth er provid er beginning in FY13, both t eams function ed and provided services from the time of their contract . Th e two t eams supported a total of 71 individuals in FY12 . The Department has establish ed four Community Support Teams (CSTs) . Th ey are located in four rural areas of the State. A total of 145 individuals received services from the CSTs in FY13 . Und er th e t erms of the Agree ment, the Ind ependent Re vi ew er must ass ess wh ether the Community Support Team mod el provid es services that are sufficient to m eet the needs of th e members of th e target population who receive th ese services. Th e Ind ependent Revie w er's assessm ent and recommendations are du e by October 30, 2013 .

12


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 14 of 38

Settlement Agreement Reference

Provision

Rating

Comments

By Ju ly 1, 2014, the State will have eight 1I[.B.2.•. ii(C)(3) Community Support Teams.
1I[.B.2.•. iii(0)(1) By Jul y 1, 2011 , the State w ill have one Intensive Case M anagement t eam. By Jul y 1, 2012 , the State w ill have t w o
1I[.B.2.•. iii(0)(2) Intensi ve Case Management t eams.
By Jul y 1, 2013 , the State w ill have three Intensive Case Management t eams. 1I[.B.2.•. iii(0)(3)
By July 1, 2014, the State will have eight 1I[.B.2.•. iii(0)(4) Intensive Case Management teams.
By Jul y 1, 2012 , the State w ill have fi ve 1I[.B.2.•. iv(C)(1) Case M anagement service providers.
By Jul y 1, 2013 , the State w ill have 15 Case M anagement service provid ers. 1I[.B.2.•. iv(C)(2)

C o m p l i a n ce C o m p l i a n ce C o m p l i a n ce Compliance
Compliance Compliance Compliance

There are 8 Community Support Teams operating within 5 of the 6 Regions. On June 30, 2014, the number of people participating in CST services was 265. The Departm ent has establish ed t w o Intensi ve Cas e M anagement t eams. The Departm ent has establish ed t w o Intensi ve Cas e M anagement t eams. Th e t w o t eams supported a total of 387 indi viduals in FY12. The Departm ent has establish ed three Intensive Case Management t eams in Regions 1, 3 and 5. Th ese three t eams served a total of 235 individuals in FY13. The Ind ependent Review er has requested additional information about the cas eload in Region 3. There are 8 Intensive Case Management teams throughout the 6 Regions. On June 30, 2014, the number of people participating in ICM services was 885. The Departm ent has establish ed fi ve Cas e Management serv ice providers. Cas e Manage ment serv ices w ere provided to 257 indi viduals in FY12. The 15 cas e managem ent positions funded by the Departm ent supported 1,893 indi viduals throughout the six Regions. The Ind epend ent Revi ew er has requ ested additional information regarding caseload expectations.

By July 1, 2014, the State will have 25 1I[.B.2.•. iv(C)(3) Case Management service providers.
By Jul y 1, 2013 , the State w ill establish one Crisis Serv ice Center. 1I[.B.2 .b.i(B)(1)
By July 1, 2014, the State will establish an 1I[.B.2 .b.i(B)(2) additional two Crisis Service Centers.
1I[.B.2.b.ii(B)(1) Th e State w ill establish one Crisis Stabilization Program by Jul y 1, 2012.
1I[.B.2 .b.ii(B)(2) Th e State w ill establish an additional Crisis Stabilization Program by Jul y 1, 2013. The State will establish an additional
1I[.B.2 .b.ii(B)(3) Crisis Stabilization Program by July 1, 2014. Beginning on July 1, 2011, th e State shall retain funding for 35 beds in non -State
1I[.B.2.b.iii(A) community hospitals w ithout regard as to w heth er such hospitals are freestanding psychiatric hospitals or general, acute care hospitals.

Compliance
Compliance
Compliance Compliance Compliance Compliance
Compliance

There are 25 Case Management service providers through the six Regions. On June 30, 2014, the number of people partipating in CM services was 761. The Departm ent opened a 24- hour, w alk- in Crisis Serv ic e Center on March 1, 2013. From March 1, 2013 through Jun e 30, 2013, 177 indi viduals received serv ic es in this Center. This is not an unduplicated count and some individuals ma y ha ve rece ived more than on e episode of care during this time period. There are four 24-hour Crisis Service Centers. Three are in Region 4 ; and one is in Region 6. During FY14, 3,309 people re ceived CSC services. The Departm ent has establish ed t w o Crisis Stabilization Programs. The Departm ent 's t w o Crisis Stabilization Programs ha ve remained operational. Th e y each have 16 beds. A third 16-bed Crisis Stabilization Program was opened in Savannah on June 30, 2014.
The Department has funded hospital bed days in five community hospitals. These beds remained available in FY14.

13


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 15 of 38

Settlement Agreement Reference

Provision

Rating

Comments

[[1.B.2 .b.IvIA) [[1.B.2 .b.ivIB) [[1.B.2.b.vIA)
[[1.B.2 .b.vIB)(1)

Th e State shall operate a toll -free statewide telephon e system for persons to access information about resources in th e community to assist with a crisis ("Crisis Call Center"). Such assistanc e includes providing advice and facilitating the delivery of mental health services. Th e Crisis Call Center shall be staffed by skill ed professionals 24 hours per day, 7 days per w eek, to ass ess, make referrals, and dispatch available mobile services. The Crisis Call Center shall promptly answ er and respond to all crisis calls. Mobile crisis services shall respond to crises anywh ere in the community (e.g., hom es or hospital emergency rooms) 24 hours per day, 7 days per w ee k. Th e services shall be provid ed by clinical staff members train ed to provid e emergency services and shall include clinical staff members with substanc e abus e expertise and, when available, a peer specialist. By July 1, 2013, the State shall have mobil e crisis services within 91 of 159 counties, with an average annual respons e tim e of 1 hour and 10 minutes or less.

C o m p l i a n ce C o m p l i a n ce Compliance
Compliance

The Georgia Crisis and Access Line operated by Behavioral Health Link contin ued to provide these services in FY14.
The Georgia Crisis and Access Li ne compli ed with th ese req u i re m e nts.
The mobile crisis services provi ded by the Department comply with these req uirements. The Department continued to respond to requests that training for cert ified peer specialists be held outside of Atlanta in order to benefit more rural areas of the state.
Mobile crisis services have bee n established in 100 counties, exceeding the require ments of this provision. Statewide, th ere w ere 840 individuals served by th ese t eams. Th e average response tim e ranged from 49 to 56 minutes, again exceeding the requirements of this provision. Th e disposition for the majority of individuals (230) served was involuntary inpati ent hospitalization. The Ind epend ent Revi ew er will work with the Departm ent's staff to better understand the range of options investigated by th e teams and wheth er th e least restrictive measure was consistently employed by the t eams.

By July 1, 2014, the State shall have mobile crisis services within 126 of 159 [[1.B.2.b.vIB)(2) counties, with an average annual response time of 1 hour and 5 minutes or less. Crisis apartm ents, located in community settings off the grounds of the State Hospitals and staffed by paraprofessionals [[1.B.2.b.vlIA) and, when availabl e, pee r specialists, shall serve as an alternative to crisis stabilization programs and to psychiatric hospitalization. Each crisis apartment will have capacity to [[1.B.2 .b.vlIB) serve two individuals with SPMI.

Compliance

There are two mobile crisis providers covering all 159 counties in the State. The average response time was 49 m i nutes in FY14. As of June 30, 2014, 14,981 people had received mobile crisis services.

The Departm ent has compli ed with th e staffing and location requirements of this provision.

Compliance

The Department has now complied with this provision. Compliance Crisis apartments have the capacity to serve two
individuals with SPMI.

14


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 16 of 38

Settlement Agreement Reference

Provision

Rating

Comments

By July 1, 2013, the State will provide six crisis apartm ents. 1I[.B.2.b.vi(C)(1)
By July I , 2014, the State will provide 12 1I[.B.2.b.vi(C)(2) crisis apartments.
By July 1, 2011, the State will provide a 1I[.B.2.c.ii(B)(1) total of 100 supported housing beds .
By July 1, 2012, the State will provide a total of 500 supported housing beds . 1I[.B.2.c.ii(B)( 2 )
By July 1, 2013, the State will provide a total of 800 supported housing beds .
1I[.B.2.c.ii(B)(3)
By July I , 2014, the State will provide a 1I[.B.2.c.ii(B)(4) total of 1,400 supported housing beds.
By July 1, 2011, the State will provide Bridge Funding for 90 individuals with [[[.B.2.c.ii(C)(1) SPMI. Th e Stat e will also commence taking reasonable efforts to assist persons with SPMI to qualify in a tim ely manner for eligible suppl emental incom e. By July 1, 2012, the State will provide 1I[.B.2.c.ii(C)(2) Bridge Funding for 360 individuals with SPMI. By July 1, 2013, the State will provide 1I[.B.2.c.ii(C)(3) Bridge Funding for 270 individuals with SPMI.

Noncompliance Compliance Compliance Compliance
Compliance
Compliance Compliance Compliance Compliance

The Department has not complied with this provision . There w ere three apartments operational, for a total of six beds, at the end of FY13 . A contract was executed on Jun e 27, 2013 for an additional 4 apartm ents but th ey were not yet operational. There are 13 crisis apartments with a total of 25 beds throughout four Regions. 159 individuals were served in FY14. Although th e Departm ent provided th e requisit e housing vouch ers, concern was noted about the revi ew of eligibility and access for hospitaliz ed individuals . The State has exceeded this obligation . (See Consultant's report .) The Department award ed 648 housing vouch ers and reass essed its prioritization for these awards . Furth er collaboration is plann ed betwee n th e Ind ependent Review er and th e Departm ent to furth er analyze referrals for the housing vouch ers . The State has exceeded this obligation . In FY13, it award ed a total of 1,002 housing vouchers . The Departm ent mad e adjustm ents to its review policies and worked clos ely with its regional offices, service provid ers, DCA and other organizations to increase program effectiveness and expand housing resourc es. (See attach ed report of Martha Knisley.) By July I , 2014, there were 1, 649 individuals served in supported housing beds. (See attached report of Martha Knisley.) The Department provided Bridge Funding as required.
The State has exceeded this obligation . (See Consultant's report .) The Department provided Bridge Funding for 568 individuals. The State has exceeded this obligation . In FY13, th e Departm ent provid ed Bridge Fu nding for 383 individuals with SPMI. (See attach ed report of Martha Knisl ey.)

By July I , 2014, the State will provide 1I[.B.2.c.ii(C)(4) Bridge Funding for 540 individuals with
SPM[. By July 1, 2011, the State shall provid e Supported Employm ent services to 70 1I[.B.2.d.iii(A) individuals with SPMI.

Bridge Funding was provided for 709 participants in Compliance FY14. (See attached report of Martha Knisley.)

Compliance

The Department provided Supported Employment services to more than 70 individuals with SPMI. Since individuals w ere assigned to th e Supported Employm ent providers in May, only eight w ere employed by July, 2011 . A high e r rate of employm ent will be expected next year.

15


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 17 of 38

Settlement Agreement Reference

Provision

Rating

Comments

[[[.B.2.d.iii(B)
[[[.B.2.d.iii(e) [[[.B.2.d.iii(D) [[[.B.2.e.H(A) [[[.B.2.e.H(B) [[[.B.2.e.H(e)
1II.C.1

By July 1, 2012, the State shall provid e Supported Employment services to 170 individuals with SPMI.
By July 1, 2013, the State shall provid e Supported Employm ent services to 440 individuals with SPMI.
By July 1, 2014, the State shall provide Supported Employment services to 500 individuals with SPMI. By July 1, 2012, the State shall provid e Pee r Support services to up to 235 individuals with SPMI. By July 1, 2013, the State shall provid e Pee r Support services to up to 535 individuals with SPMI.
By July 1, 2014, the State shall provide Peer Support services to up to 835 individuals with SPMI.
Individuals und er th e age of 18 shall not be admitted to, or otherwise served, in the State Hospitals or on State Hospital grounds, unl ess the individual meets the criteria for emancipated minor, as set forth in Articl e 6 of Title 15, Chapter 11 of the Georgia Cod e, O.e.G.A. §§ 15-11-200 et seq.

Compliance
Compliance Compliance Compliance

The Department has met this obligation. Supported Employm ent services w ere provid ed to 181 individuals as of June 30 , 2012. (See Consultant's report.) A M emorandum of Understanding has bee n signed betwee n DBHDD and the Departm ent of Vocational Services. The Department is in the process of preparing a written plan, with stakeholder involvem ent, regarding the provision of Supported Employment. In FY12, 51 individuals gain ed competitive e mployment. The State has exceeded this obligation. According to a report issu ed by th e Departm ent and revi ew ed by th e Independent Review er's expert consultant, Supported Employm ent servic es, with strong adherence to th e Dartmouth fid elity scal e, w ere provid ed to 682 individuals during FY13. The monthly rate of employm ent was 42.1%. (See at tach ed report of David Lynd e. ) The State has exceeded this obligation. Supported Employment services were provided to 988 individuals during FY14. The monthly rate of employment was 47.3 %. (See attached report of David Lynde.) There are 3000 consumers enrolled; there are 72 Pee r Support sites in Georgia.

Compliance Compliance

The Departm ent has mad e a substantial commitm ent to th e meaningful involvement of pee r support services. The Departm ent's commitment was confirm ed by the leadership of the Georgia M ental Health Consumer Network during a July 2013 site visit by the Ind epend ent Review er. Reportedly, and verifi ed by the submission of nam es, 571 individuals received pee r support services provided by the Georgia M ental Health Consum er Network's three Pee r Well ness and Respite Centers and through its Peer M entoring program. Since January 1, 2011, a total of 1,583 individuals have received Peer Support services provided by Georgia Mental Heatth Consumer Network's three Peer Well ness and Respite Centers and through its Peer Mentoring program. In FY14, there was documentation of 767 discrete units of support. The Department has complied with this obligation.

Compliance

16


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 18 of 38

Settlement Agreement Reference

Provision

Rating

Comments

1I1.C.2
1II.C.3.a.i 1I1.C.3.a.ii 1II.C.3.a.iii

Individuals in the target popu lat ion with developmental disabilities and/or serious and pe rsistent mental illness shall not be transferred f rom one institutional sett ing to anoth er or f rom a State Hospital to a skilled nursing f acility, intermed iate care fa cility, or assisted living fa cility unless consistent with the individu al's informed cho ice or is w arranted by the individual's medical condition. Provid ed, howeve r, if the State is in the process o f closing all units of a certain clinical service category at a State Hospital, the State may transfer an individual f rom one institution al sett ing to anoth er if approp ri ate to that individu al's needs. Further provided that the State may transfer individuals in State Hospitals with developmental disabilities who are o n forensic status to another State Hospital if approp ri ate to that individual's needs. The State may not transfer an individual fro m one institution al sett ing to another more than o nc e.

Compliance

In FY14, the primary focus of institutional closures has been at Southwestern State Hospital and the Craig Center at Central State Hospital. Southwestern State Hospital closed on December 30, 2013. Currently, placements from the Craig Center are pending further review and approval. Individuals have been transferred to Gracewood and Georgia Regional Hospital in Atlanta. The Independent Reviewer has been closely tracking these transfers and has been conducting site visits to both of these institutions.

By January 1, 2012, the State sh all estab lish the responsibiliti es o f commu nity servic e boa rds and/or community providers through contract, lette r of agreement, o r other agreeme nt, including but not limited to the community service boards' and/or commu nity providers' responsi biliti es in developing and impleme nting transition plans.

Compliance

Co ntract language delineates responsi bility for developing and im pleme nting transition planning.

By January 1, 2012, the State sh all id entif y qualif ied provid ers through a certified vendor or request f or proposal process or other manner consistent with DBHDD policy o r State law, including providers in geographically diverse area s o f the State co nsistent with the needs o f the individu als covered by this Agreement. By January 1, 2012, the State sh all perform a cost rate study o f prov id er reim bu rseme nt rates.

Compliance Compliance

This provision has been impl emented.
The cost rate study has been completed and is still under advisement by the Commissioner.

17


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 19 of 38

Settlement Agreement Reference

Provision

Rating

Comments

[[1.C.3.a.iv [[[.C.3.a.v [[I,C.3.a.vi 1II.C.3.b
111.0.1
[[[.D.3.a

By January 1, 2012, th e State shall require community service boards and/or community provid ers to develop written descriptions of services it can provide, in consultation with community stakeholders. Th e community stakehold ers will be selected by th e community services boards and/or community provid ers.

Compliance

Two w ebsites have bee n developed to provide comprehensive information and description of statewid e services. Individual community servic e boards have information on th eir w ebsites regarding services. Stakeholders are includ ed on the community services boards.

By January 1, 2012, th e State shall require and/or provide training to community service boards and/or community provid ers so that services can be maintain ed in a manner consistent with this Agree ment. By January 1, 2012, th e State shall utilize contract management and corrective action plans to achi eve th e goals of this Agree ment and of State agencies.

Compliance

There are bi -monthly provider m eetings for each region. Additionally, th e Departm ent hosts two meetings per year; th e Regional Offices provide t echnical assistance; Delmarva meets with provid ers and provides t echnical assistanc e.

Compliance

The Independent Reviewer has been informed of actions taken to achieve the goals of this Agreement and of State agencies. Such actions include the termination of provider contracts. In FY14, nine provider contracts were terminated. Seven were providers of developmental disabilities services and two were providers for behavioral health services.

Beginning on January 1, 2012 and on at least an annual basis, th e State shall perform a network analysis to ass ess th e availability of supports and services in th e community. By July 1, 2011, the State shall have at least one case manager and by July 1, 2012, at least one transition specialist per State Hospital to revi ew transition planning for individuals who have chall enging behaviors or medical conditions that impede th eir transition to the community, including individuals whose transition planning team cannot agree on a transition plan or does not recomm end that th e individual be discharged. Th e transition specialists will also review all transition plans for individuals who have bee n in a State Hospital for more than 45 days.

This obligation continues to be met. The Independent Reviewer was provided a copy of the Regional Compliance Network Analysis completed this year.
Case Managers and Transition Specialists were assigned at each State Hospital. However, at this time, with limited exceptions, community placements have been suspended. The three most recent placements were for individuals with challenging behaviors. Transition planning remains under review at this time.
Noncompliance

For persons id entified in the developm ental disability and mental illn ess target populations of this Settl ement Agree ment, planning for transition to the community shall be th e responsibility of th e appropriate regional office and shall be carri ed out through collaborative engagement with the discharge planning process of the State Hospitals and provider{s) chosen by the individual or the individual's guardian wh ere required.

At this time, the entire transition process is suspended pending careful review by the leadership of the Department.
Noncompliance

18


Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 20 of 38

Settlement Agreement Reference

Provision

Rating

Comments

III.D.3.b [[[.D.3.c III.D.3.d
IV IV.A
IV.A.l

Th e regional office shall maintain and provid e to th e State Hospital a detail ed list of all community provid ers, including all services offered by each provider, to be utilized to id entify providers capable of meeting th e needs of th e individual in th e community, and to provid e each individual with a choice of provide rs wh en possibl e.

Compliance

The Regional Offices provided a list to th e State Hospitals of all community providers . The Indep end ent Review er has copies of this information .

Th e regional office shall assure that, once

In th e sampl e review ed in FY12, th ere was evide nc e of

id entified and selected by the individual,

participation by community providers . Although it is

community service boards and/oth er

evid ent that community provid ers continu e to

community providers shall actively

Compliance participate actively in th e transition proc ess, this matter

participate in th e transition plan (to

continues to be und er revi ew by the Departm ent and

include the implementation of th e plan for

th e Ind ependent Revi ew er.

transition to the community).

Th e community service boards and/or

Once problems were identified, community service

community providers shall be held

boards and/or community providers were held

accountable for the implementation of

accountable. There is continuing evidence of this

that portion of th e transition plan for

Compliance accountability measure in FY14.

which they are responsible to support

transition of the individual to the

community.

Quality Management

By January 1, 2012, the State shall institute

The Quality Management system plan and the report

a quality management system regarding

issued most recently on August I, 2014 document the

community services for the target

focus on the community services implemented for the

populations specified in this Agree ment.

target population specified in this Agreement. The

Th e quality management system shall

reports substantiate that annual quality service

perform annual quality service reviews of

reviews are conducted by the Delmarva Foundation

samples of community providers, including Compliance and APS, the External Review Organizations. In

face- to-face meetings with individuals,

addition, the Georgia Mental Health Consumer

resid ents, and staff and revi ews of

Network interviewed recipients of mental health

treatment records, incident/injury data,

services. Incident/injury data was maintained and

and key- indicator performance data .

reviewed for the community system and key-indicator

performance data was referenced in the Quality

Management system reports.

Th e system's review sha ll includ e the implementation of th e plan regarding cessation of admissions for persons with developm ental disabiliti es toth e Stat e Hospitals.

Compliance

The Department tracks data related to the provision of alternatives to state hospital admissions for individuals with a developmental disability. These data focus on various forms of crisis services, including mobile crisis teams and crisis respite care. Since the Department routinely tracks these sets of information and reviews them on a regular basis in preparation of the Quality Management reports, this provision is rated in substantial compliance.

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Settlement Agreement Reference

Provision

Rating

Comments

IV.A.2 IV.A.3 IV.A.4 IV.B
IV.C

The system's review sha ll includ e the servic e req uireme nts of this Agreement.
The system's review shall includ e the contractual comp li anc e of commu nity servic e boa rds and/o r community p r ovid e rs.
The system's review sha ll includ e the netw o rk analysis.
The State's quality management system rega rding commu nity se rvices shall analyz e key indicato r data relevant to the target population and se rvices specif ied in this Agreement to measure com pli ance with the State's policies and procedures. Beginning on Feb ruary 1, 2013 and ending on Feb ruary 1, 2015, the State's quality management syst em shall create a report at least once every six months summari zing quality assurance activities, findings, and recomme nd at ions. The State sh all also provid e an updated quality management plan by July 1, 2012, and a provisio nal quality management system repo rt by October 1, 20 12. The provisional quality management system report sh all not be subj ect to review by the Independent Reviewer und er Section VI. B of the Settlement Agreement. The State shall make all quality management reports publicly availa ble on the DBHDD w ebsite.

Compliance Compliance Compliance Compliance
Compliance

The Quality Management repo rts issued by the Depa rtment document the revi ew of the services provided under the terms of this Agreeme nt. In add ition, data rega rding services/su ppo rts are maintained by the respective Divisi ons o f the Depa rtment. The Independent Reviewer w as provid ed with the data f rom these sou rces for the preparation o f this report. The Quality Management revised plan and su bseque nt repo rts describe the oversight structure for key perfo rmance indicators and outcomes as w ell as the req uireme nts for servic e provid ers. External Review Organiz at ions (A PS and De lmarva) conduct on -site revi ews o f provider age nci es on an established pe riodic basis. The Depa rtment of Community Hea lth aud its comm unity service boards every three yea rs. A comprehensive network analysis was submitted to the Independent Reviewer on July 1, 2014. In this report, detailed information was provided about available services/supports in each of the six regions as well as the currently existing gaps in services. Detailed information was also provided about the demographics of each region and the target populations to be served. The Quality Management repo rts submitted to date co ntain analyses of key performance indicato rs related to speci fic services requ ired under this Sett leme nt Agreement. Fo r example, there are key performance indicators related to ACT, suppo rted employme nt, cas e management, housing and commu nity suppo rt teams. The Department continues to be in compliance with this provision. Reports have been submitted in a timely manner to the Independent Reviewer and the Department of Justice.

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Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 23 of 38
DISCUSSION OF COMPLIANCE FINDINGS
 Methodology

For each compliance requirement, the Department of Behavioral Health and Developmental Disabilities was asked to provide data and documentation of its work. The Department’s (DBHDD) progress in meeting the provisions of the Settlement Agreement was reviewed in work sessions and Parties’ meetings throughout the year; through discussions with providers and community stakeholders; and through site visits to community residences, day programs, Supported Employment programs, supported apartments, Assertive Community Treatment team sites, county jails and shelters for homeless individuals. (The expert consultants on Supported Employment, Support Housing and Assertive Community Treatment spent a combined total of twenty-three days on site in Georgia.)
The Department leadership and the Independent Reviewer have agreed to work together to institute a reliable strategy for monitoring community placements of individuals with a developmental/intellectual disability. The Department (DBHDD) selected Regions 2 and 3 as the initial sites for this collaborative effort. Therefore, in the last three months, the Independent Reviewer, with the assistance of the Settlement Agreement Director, has trained reviewers in Region 3 and began to train reviewers in Region 2 in the latter part of August 2014. The reviewers are Regional staff with backgrounds in health care and psychology. They have been paired with two experienced health care specialists and one doctoral level Board certified behavioral analyst in the field of intellectual/developmental disabilities retained by the Independent Reviewer. A joint monitoring tool has been developed and tested for inter-rater reliability.
In preparation for her Supplemental Report, filed in March 2014, the Independent Reviewer and her consultants invested a substantial amount of time to review the placements of adults with a developmental disability transferred from State hospitals to community placements. Therefore, the reviews during the period for this Report are more limited in scope and are focused on a subset of individuals with challenging behaviors. The individuals randomly selected for review reside in Region 1.
At this point in time, thirteen Region 1 clients have been randomly selected and reviewed. Each of these individuals requires, to varying degrees, behavioral supports by trained residential and day staff. Eleven individuals, including one on the at-risk list, reside in group homes; one individual lives in a host home; and one gentleman lives with his family. In addition, in Region 2, the behavioral analyst retained by the Independent Reviewer conducted site visits to the three individuals most recently transferred, in June 2014, from institutional settings to community residences.
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The reports issued from the reviews of the individuals in the sample have been distributed to the Parties. The Department of Behavioral Health and Developmental Disabilities is in the process of analyzing these reports and will instruct its Regional staff to take corrective actions, as appropriate.
The Independent Reviewer is mindful that the focus on individuals transitioned from State hospitals has precluded the review of individuals who have not been institutionalized. Actions are now underway to include such individuals in each sample selected for further review. The sample randomly selected for the upcoming reviews in Region 2 will be drawn entirely from the at-risk list of individuals who receive support under the terms of the Settlement Agreement.
As in past years, three expert consultants were retained to assist the Independent Reviewer in evaluating the Department’s compliance with the Settlement Agreement provisions regarding Supported Employment, Supported Housing and Bridge Funding and Assertive Community Treatment (ACT). The State Health Authority Yardstick (SHAY), a tool developed at Dartmouth University, was used for the evaluation of Supported Employment and Assertive Community Treatment services provided under the Settlement Agreement. The reports from each of these evaluations have been provided to the Parties. As desired by the Parties and the Amici, the Independent Reviewer will convene meetings to discuss the findings from these reports.
Finally, the Independent Reviewer had expected to report substantially on the individualized outcomes accomplished through the provisions of the Settlement Agreement. Unfortunately, despite earnest discussions with the Department’s staff, the data system employed by the Department (DBHDD) has not permitted access to the individualized data required for such reviews. As stated in the Department’s recently released “Regional Network Analysis 2014,” such data retrieval is not currently possible:
There is currently no single data system to track individuals who enter the DBHDD system. It is common to have to cross reference as many as five data sources to track simple information. Tracking more complex data such as the number of ADA consumers and what services they receive across agency lines takes reviewing many data sources, making calls, and calculating by hand. This is costly as it takes many man hours to collect the data…Part of the need for technology includes a more sophisticated utilization management system. The State is moving towards an Administrative Services Organization and that will assist in more coordinated care once it is implemented in FY 2015.
To be clear, the Department (DBHDD) has provided data regarding the utilization of services and compliance with certain target measures, such as the number of individuals receiving Assertive Community Treatment who are housed rather than homeless. What has been difficult
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Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 25 of 38
to retrieve, for example, are data about individuals prior to receiving the designated treatment. This information is important in analyzing the success of program intervention.
The Independent Reviewer and her expert consultants are attempting to work with the Department (DBHDD) staff to determine reasonable methods to collect, analyze and report individualized outcome data. A discussion in this matter is scheduled for October 7, 2014. In the meantime, the Independent Reviewer must rely on the aggregate data reported by the Department.
Review of Obligations for Year Four
A. Serving People with Developmental Disabilities in the Community
The State documented that forty-six individuals with a developmental/intellectual disability were transferred from State hospitals during the past Fiscal Year. Forty-three of these placements occurred prior to the Commissioner’s second decision to suspend community placements. In June 2014, three men were transferred into community residences; the Independent Reviewer’s consultants examined the quality of their supports. Reports of the findings have been shared with the Parties. Her consultants have commended the work of the single agency supporting these three men.
Documentation was provided to confirm that additional Home and Community-Based Waiver Services were provided to 100 individuals with a developmental/intellectual disability and that 1155 individuals with a developmental/intellectual disability were provided family supports in order to avoid institutionalization.
The data and documentation provided confirm that the Department (DBHDD) has met or exceeded the numerical targets for the provision of Waivers to at-risk individuals and for family supports.
However, as expected, the Department (DBHDD) did not comply with the provision requiring the transfer of institutionalized adults to integrated community placements. Furthermore, for the reasons explained at length in the Supplemental Report filed with the Court in March 2014, the Department continued to be in non-compliance with the provisions requiring the implementation of Individualized Support Plans and Support Coordination. Hopefully, the timely implementation of the Priority Plan will begin to remedy these findings of noncompliance.
The Independent Reviewer has recommended that a second Supplemental Report be filed with the Court, in March 2015, in order to document the status of these Provisions.
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The Department (DBHDD) provided data regarding the implementation of crisis services, as required by the Settlement Agreement. The data confirms that the Provision of the Settlement Agreement regarding the establishment of mobile crisis teams has been met. There are twelve mobile crisis teams. The data documents the use of in-home support and Crisis Respite Homes. However, the Provision requiring the establishment of Crisis Respite Homes is in noncompliance. There are eleven Homes, not the required twelve. The contract for the twelfth Home was cancelled and the plans for its replacement are not finalized. In addition, three individuals have been residing in a Crisis Home for more than one year because appropriate community placements are not yet available for them. The Independent Reviewer has been informed of the reasons for each of these circumstances and will track the status of each case.
The Independent Reviewer is concerned that there does not appear to be a concentrated focus on the crisis services provided to individuals with a developmental disability. The Priority Plan addresses crisis management only briefly (see Page 30). Therefore, the Independent Reviewer is in the process of retaining an expert consultant to assist her in the review of crisis services.
B. Serving Persons with Mental Illness in the Community
Since the first Annual Report, the Independent Reviewer has retained three consultants with nationally recognized expertise in supported housing, supported employment and Assertive Community Treatment (ACT). Their findings and recommendations for the current Report have been submitted to the Parties and are attached.
1. Housing Supports
In her report, Ms. Knisley has continued to caution that there must be attention to infrastructure, capacity building, and collaborative action with housing agency partners and community agencies, if future housing targets are to be achieved and sustained. This is especially important as the State enters the fifth year of the Settlement Agreement. During this year, by July 1, 2015, the Department must comply with the requirement “ to have capacity to provide Supported Housing to any of the 9,000 individuals in the target population who need such support.” In order to conceptualize strategies to satisfy that obligation, the Department (DBHDD) sought guidance from the Technical Assistance Collaborative (TAC). The report from this consultation is attached.
As of July 1, 2014, the State was to provide a total of 1400 supported housing beds for individuals with serious and persistent mental illness who are in the target population. Bridge Funding was to be provided to 540 individuals. As confirmed by the findings of the expert consultant to the Independent Reviewer, the State has more than exceeded these obligations.
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Ms. Knisley’s report outlines the reasons why the State’s housing voucher program has been successful. These reasons include positive inter-agency relationships with the Department of Community Affairs (DCA), strong leadership and flexible approaches to the provision of housing supports. The report also cautions the Department (DBHDD) that it must take concerted action to enforce its “housing first” policy and to ensure the inclusion of under-represented members of the target population, including those who have forensic histories or who are dually diagnosed.
Her report includes a number of recommendations to promote access to housing and to ensure that the quality of housing options is consistent with desired practices. She was particularly concerned that some Assertive Community Treatment (ACT) Team staff remain committed to a “readiness” model. This approach is not consistent with either the stated values of the current Administration or the principles of this evidence-based practice. (It should be noted that Ms. Knisley’s concerns about staff were immediately addressed by the Department. The staff were replaced.)
2. Supported Employment
As required in this phase of the Settlement Agreement, there were to be 500 individuals provided with supported employment opportunities in Year Four. The State provided such services to 998 individuals.
Over the last four years, the measures of the State Health Authority Yardstick (SHAY) have been applied to the supported employment services provided under the Settlement Agreement. Scores have progressively increased. This year, the Department achieved a summary rating of 4.4 out of 5.0.
The report by Mr. Lynde is attached. In addition to his analysis of the strengths of the supported employment program, including leadership, training, policy development and planning, he cautions that successful outcomes are at risk of compromise by programs that fail to work to achieve continuity of care for their clients. He is particularly concerned that the employment specialists on some Assertive Community Treatment (ACT) Teams do not follow the standards and practices of evidence-based supported employment. He also has articulated the concerns voiced by some providers that resources will not be sustained after the conclusion of the Settlement Agreement. His concerns merit further discussion by the Parties.
3. Assertive Community Treatment (ACT):
The Settlement Agreement requires that all Assertive Community Treatment (ACT) teams will operate with fidelity to the Dartmouth Assertive Community Treatment model. In addition, by July 1, 2014, there were to be twenty-two ACT teams operating throughout Georgia.
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The State now has established twenty-two ACT teams and has mandated that they operate with fidelity to the model required by the Settlement Agreement.
The ACT teams are measured for compliance with the Dartmouth Assertive Community Treatment Scale (DACTS).
At the request of the Independent Reviewer, her expert consultant, Dr. Angela Rollins, again reviewed the ACT teams’ compliance with these Provisions of the Settlement Agreement.
The DACTS is a 28-item scale that assesses the degree of fidelity to the ACT model. Each item is rated on a 5-point behaviorally anchored scale, ranging from 1 = Not Implemented to 5 = Fully Implemented. The full implementation anchors are item-specific and were determined through a variety of expert sources, including published reports from the ACT model developers and from an expert panel.
Although cut-off scores for defining a minimum adherence to ACT are desirable, very little evidence exists for a particular cut-off score. McHugo and colleagues (2007) refer to 4.0 and above as “High Fidelity,” 3.0-3.9 as “Moderate Fidelity,” and below 3.0 as “Low Fidelity” in the National Evidence-Based Practices Project studying several practices, including ACT. Some helpful work to address this gap for ACT in particular did identify several empirical approaches to defining ACT using DACTS scores or subsets of scores (Salyers et al., 2003). Trials of itemlevel pass-fail criteria were found to be unattainable by the ACT programs in the study and, therefore, not helpful in distinguishing ACT from other services.
In FY 2014, the twenty-two ACT teams established under the Settlement Agreement scored an average of 4.1 on all 28 DACTS items (with no modified scoring; i.e., using the usual, stringent criteria in the DACTS protocol and scale). Seven of the twenty-two teams scored below 4.0, but still scored a 3.8 or 3.9, the upper range of what Salyers and colleagues (2003) refer to as a “C,” in their model using 26 of 28 DACT items, indicating a need for improvement but certainly not out of the realm of ACT team scores in most implementation efforts.
Another approach to examining Georgia ACT teams’ performance is to look at individual team scores over time. Dr. Rollins noted that only one team scored below 4.0 in both FY 2013 and FY 2014. That team scored 3.9 in one year and 3.8 in the next, both relatively close to the 4.0 mark. This team primarily struggled with staff turnover, which is scored relative to the last two years, so the turnover experienced in FY 2013 would still “count” and, thus, influence FY 2014 scores. (Some states have excluded the H5 Staff turnover item in state certification efforts in order to avoid “punishing” teams for staff turnover that sometimes is out of the agency’s control.)
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Dr. Rollins concluded that the ACT teams in Georgia are scoring comparably, if not better, than other ACT teams in the published literature, including some data derived from randomized controlled trials which are often difficult to replicate in real-world implementation efforts (Drake et al., 2001). In her opinion, using criteria that are either too stringent at the total DACTS score level or requiring item-level pass-fail criteria that are difficult to meet will likely result in a chaotic service environment where the State will be forced to pull contracts and rapidly reassign Georgia ACT consumers to new ACT providers in order to remain in compliance. However, Dr. Rollins supported the Department (DBHDD)’s continued use of scores lower than 4.0 on the total DACTS score and individual item scores of 1 or 2 as indicators of the need for corrective action plans; teams scoring a “C” are expected to improve. She has urged the Department (DBHDD) to do better follow-up on progress on those corrective action plans so that improvements actually materialize in well-documented ways. She also urged the Department DBHDD to increase attention to other elements of ACT program quality that are not captured by the DACTS (e.g., recovery-orientation, employment services). Although it has not been an issue to date, she also recommended that the Department (DBHDD) prepare for any incidence where an ACT team scores a 3.4 or below on the DACTS. In light of the findings by Dr. Rollins, the Department (DBHDD) has been advised of ACT teams with deficits in certain areas of performance. The Independent Reviewer has recommended that these teams receive increased oversight and technical assistance. The Department (DBHDD) has been asked to provide additional data regarding the ongoing performance of these teams. The progress of these teams will be discussed in the Independent Reviewer’s proposed second Supplemental Report to be filed with the Court in March 2015.
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CONCLUSIONS

The Settlement Agreement has required the structural reform of the State’s systems of support for individuals with a developmental/intellectual disability and/or a mental illness. As recognized in this Report, there have been important achievements in the mental health system over the past four years. These achievements have been recognized and applauded by the stakeholders invested in evidence-based practices and the full implementation of the recovery model. While it has not been possible to quantify individual outcomes, there is documentation of increased access to affordable housing, competitive employment, clinical and peer supports and crisis services.
Although the expert reports describe the strengths and challenges of the mental health system in greater detail, it is important to note here the recurrent concern about three major findings:
• Individuals with forensic histories are not obtaining adequate access to communitybased supports. As a result, they remain confined in institutions or are at risk of recidivism upon their release from custodial care. A significant part of this problem rests with discharge practices in jails and other forensic settings. Forensic facility clinicians have either limited available resources or have limited knowledge/experience with community-based alternatives as part of discharge planning. The latter requires a somewhat sophisticated understanding of community mental health services as well as knowledge of the actual services/supports available throughout the various Regions of the State. Regular in-reach by community providers and a vastly expanded community transition process would improve this situation but a coordinated approach must be created and implemented by the Department (DBHDD) and its sister agencies. The unfortunate consequence of this lack of coordination and strategic planning is that individuals are confined for longer periods of time, regardless of the nature of their crime.
• As described above, the State is extremely fortunate to have a well-respected and welldeveloped array of peer supports. These practices reflect a recovery-orientation and the use of integrated community resources. The failure of certain Assertive Community Treatment Teams to embrace a similar orientation is of considerable concern. Increased effort to ensure a recovery-model rather than a “readiness” model is critically important at this stage of the Settlement Agreement.
• Although substantial progress has been made in implementing the foundation of the mental health system, there is evidence of inconsistency in continuity of care. That is, the discrete parts of the mental health system do not always interact consistently and harmoniously. Further concerted action is required by the Department (DBHDD) to promote the integration of services/supports so that the consumers’ experience is not
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Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 31 of 38 fragmented. Examples of strategies successfully used by the Department include training opportunities that blend staff from different types of programs, such as Assertive Community Treatment (ACT) and Supported Employment. These strategies should be expanded. The employment specialist on the ACT Team should implement his/her responsibilities in the same way as his/her colleague in Supported Employment. The system of community-based supports for individuals with an intellectual/developmental disability has fallen seriously short of expected practice despite earnest attempts to improve the quality of residential programs and other critical services. The State’s Plan for remedial actions is very promising but remain unfulfilled at this time. As universally recognized, the next few months will be extremely important in determining whether sufficient reform can be realized and whether resources and skills are adequate for the serious tasks ahead.
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SUMMARY OF YEAR FOUR RECOMMENDATIONS
The subject matter experts working with the Independent Reviewer have included recommendations in their attached reports on Supported Housing, Supported Employment and Assertive Community Treatment. Those recommendations will not be repeated here. However, the recommendations described below draw from the findings of the expert consultants as well as from the Independent Reviewer’s own observations and experiences.
Recommendation One:
It is strongly recommended that the Independent Reviewer prepare a second Supplemental Report under the same timeframes and expectations as the first Supplemental Report filed in March 2014. The second Supplemental Report should be filed with the Court.
The second Supplemental Report should address the status of the provisions related to transitions, support coordination and the implementation of Individual Support Plans for individuals with a developmental disability, including those placed from State hospitals and those receiving Home and Community-Based Waiver Services under the terms of the Settlement Agreement.
In addition, the next Supplemental Report should address the actions taken by the Department (DBHDD) to improve the performance and outcomes of the lower-performing Assertive Community Treatment (ACT) teams identified by the Independent Reviewer and her expert consultants. For each of the limited number of teams, the Department should report on the progress that has been made to improve DACTS scores, especially those related to intensity of service, frequency of contact, and informal supports.
The Independent Reviewer will consult with the Parties to this Agreement to determine whether other provisions should be reviewed and included in the second Supplemental Report.
Recommendation Two:
Although there has been some progress documented in the referral of individuals with forensic histories to Assertive Community Treatment (ACT) teams and to supported independent housing, this group of adults remain seriously under-represented in the implementation of the provisions of the Settlement Agreement. Therefore, substantial effort and evidence of inclusion must be confirmed in Year Five.
The Independent Reviewer is in the process of retaining an expert consultant to assist her in the review of community-based housing and other programmatic supports for individuals with forensic histories. She requests that the Department (DBHDD) identify the appropriate staff to work with her as she plans and implements her work related to forensic clients.
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Recommendation Three:
The review of crisis services requires ongoing attention by both the Department (DBHDD) and by the Independent Reviewer. The need for this review was referenced in FY 2013.
In particular, the Independent Reviewer is concerned that there does not appear to be a concentrated focus on the crisis services provided to individuals with a developmental disability. The Priority Plan addresses crisis management only briefly (see page 30).
It is recommended that the Independent Reviewer continue to work with the Department (DBHDD) as it implements its “Community Behavioral Health Crisis Continuum Strategic Plan.” Reports from the quarterly meetings of the Behavioral Health Crisis Continuum workgroup should be provided to the Independent Reviewer.
The Independent Reviewer is in the process of retaining an expert consultant to assist her in the review of crisis services for individuals included in the target population for the Settlement Agreement. She requests that the Department (DBHDD) identify the appropriate staff to work with her as she plans and implements her work related to crisis services.
Recommendation Four:
The Settlement Agreement requires that “By July 1, 2015, the State will have capacity to provide Supported Housing to any of the 9,000 persons in the target population who need such support.” (See Provision III. B. 2. c. ii. (A).)
As evidenced by the attached report prepared for the Department (DBHDD) by the Technical Assistance Collaborative, efforts have been initiated to identify the sources of available housing that will be essential to compliance with this Provision.
It is recommended that the Parties prioritize their attention to the requirements of this Provision and to the resources and timelines that will be needed for compliance.
An initial discussion is scheduled with the Parties for October 7, 2014. The Independent Reviewer’s expert consultant on Supported Housing will be present.
Recommendation Five:
As referenced in the review of recommendations for 2013, the Department has taken steps to educate providers of Assertive Community Treatment (ACT), Intensive Case Management, Supported Employment and Community Support Teams about the resources available to them from other components of the behavioral health system. These efforts are important to increasing collaboration across all parts of the mental health system. It is recommended that they be intensified in Year Five. In particular, added emphasis on the principles and practices of
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Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 34 of 38 a recovery-orientation would be important to ensuring consistency of performance across all provider agencies. In this previous year, in an effort to evaluate the mental health system as a whole, the Independent Reviewer has asked her expert consultants to conduct site visits together and to discuss their respective observations. This collaboration has been very useful and will be continued into the next year.
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STATUS OF YEAR THREE RECOMMENDATIONS

The following recommendations were included in the Independent Reviewer’s FY 2013 Report. A brief update of the status of each recommendation is noted below:
1. In the professional judgment of the Independent Reviewer, it is critical that there be a more concentrated focus on the analysis and reporting of the effects from the abovereferenced cessation of admissions to the state hospitals of people with developmental disabilities. For example, the Department could track the admission of individuals with both an intellectual disability and a mental illness to its psychiatric hospitals in order to evaluate the effectiveness of its crisis system.
Although the Department reported that it tracks this information, the data are not currently used to assess its system or its crisis services. The forthcoming implementation of the Administrative Services Organization (ASO) may affect the utilization of these data.
2. In concert with the Independent Reviewer, it is recommended that the Department review the components of the crisis services system to determine if they are organized and coordinated as effectively as possible.
The Independent Reviewer and the Department discussed this recommendation. The Department had recognized that “crisis services are often the first point of encounter with the behavioral health delivery system for an individual or family, and can, therefore, set the future course of the individual’s or family’s attitude toward, and relationship with, the system.” Stakeholder meetings held in October and December 2012 were followed by the formation of a Steering Committee that met from February to June 2013. Over the period of August 2013 through April 2014, a “Community Behavioral Health Crisis Continuum Strategic Plan” was developed by a Departmental workgroup that included staff from adult mental health, child and adolescent mental health, addictive diseases, suicide prevention and the Office of Recovery. The Strategic Plan was based on the findings and recommendations of the Steering Committee. The Departmental workgroup has continued to meet quarterly to move forward the work required for the implementation of the Strategic Plan. The Independent Reviewer was provided a copy of the Strategic Plan. It outlines goals and timelines that extend until June 30, 2016. The Independent Reviewer and Departmental staff intend to meet periodically to ascertain progress towards these goals.
The above initiative did not include the crisis services provided to individuals with a developmental disability. The Independent Reviewer has recommended that a concerted effort be made to pinpoint the responsibility for implementing a similar analysis and developing a strategic plan with measurable goals and objectives.
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The Independent Reviewer is in the process of retaining a subject matter expert to assist in her continuing review of crisis services.
3. Attention must be given to infrastructure capacity and collaboration with housing agency partners and community agencies, if future housing targets are to be achieved. While the state met the targets again this year, it was agreed that meeting future targets would be more difficult because the expectations are greater. Similarly, maintaining the program at the level required by this Settlement Agreement requires "sustained" capacity at the provider, Regional and state level. It will be important to give further attention to “turnover” and sustaining provider capacity.
The attached report by the Independent Reviewer’s expert consultant, Martha Knisley, discusses the Department’s efforts to determine and sustain adequate capacity through collaboration with other State and Federal agencies. This issue is the subject of ongoing discussion between the Department and the Independent Reviewer and her expert consultant. The next discussion with the Parties about the status of housing for the Settlement Agreement’s target population is scheduled for October 7, 2014.
4. Collaboration must be strengthened with the DCA HCV program staff, Continuums of Care, local jails and prisons, the Veterans Administration and local Public Housing Authorities. It is strongly recommended that action steps and outcomes for these collaborations include, for example, formal referral agreements, interagency training, the DCA-DBHDD-provider "boot camps" and activities, and relationship building events. The development of a work plan would help "size" the planning process and make clear expectations for these activities.
As documented in the attached report by Ms. Knisley, the Department has initiated and implemented numerous positive actions to increase collaboration with its partners in the provision of housing. This issue also continues to be the subject of ongoing discussion between the Department and the Independent Reviewer and her expert consultant.
5. For Assertive Community Treatment programs and Supported Housing programs, the Department should assess the potential for increasing referrals from hospitals and intensive residential programs.
6. For Assertive Community Treatment and Supported Housing programs, the Department should take concrete steps to increase referrals from jails and prisons. These steps include building relationships and working agreements between Regional staff, local providers/community service boards and local Sheriffs and other officials for access, screening and referral arrangements.
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Although more work will be required to address both of these recommendations, progress has been documented in the efforts to increase referrals from hospitals, intensive residential programs, jails and prisons. However, as discussed in both the Independent Reviewer’s narrative summary and the attached reports by her experts, Ms. Knisley and Dr. Rollins, substantial work remains to be planned and implemented in the Fifth Year, if these provisions of the Settlement Agreement are to be fully satisfied.
7. The Department should intensify its efforts to make provisions for supported housing for individuals with developmental disabilities and those with co-occurring mental illness and developmental disabilities.
There has been virtually no progress made towards addressing this recommendation. The Independent Reviewer will continue to discuss this recommendation with the Department as it implements its reform efforts, especially those now beginning in Region 2.
8. The Department should consider ways in which to further refine, expand and improve Supported Housing, Assertive Community Treatment, Intensive Case Management and Supported Employment as interconnected initiatives. A simple crosswalk of the initiatives would reveal many opportunities for connecting the programs. As noted, providing opportunities for peers to be a part of these processes will add incredible value.
There is documentation that confirms the Department’s efforts to increase collaboration between the programmatic components of its behavioral health system. For example, the agendas for monthly meetings/teleconferences with providers responsible for Supported Employment, Assertive Community Treatment, and Community Support consistently reflect discussion about understanding and using resources, including housing vouchers, available throughout the State’s system. On January 15, 2014, providers responsible for these services as well as those responsible for crisis services and Intensive Case Management held a combined meeting/retreat to strengthen their collaboration. On February 20, 2014, providers of Assertive Community Treatment and Community Support met for joint training. On February 25, 2014, a training session on “Recovery-Oriented Engagement and Service Delivery” was held in Macon, Georgia. Further, the Quality Councils for Behavioral Health review the data, discuss the findings and issue recommendations. These efforts are positive and are commended. Nonetheless, continuing and expanded efforts are strongly recommended, especially in the area of recovery-oriented training. As discussed in the attached reports by Ms. Knisley, Mr. Lynde and Dr. Rollins, the understanding of recovery-oriented principles and practices appears to be uneven and some providers are in need of more intense support and supervision.
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Case 1:10-cv-00249-CAP Document 192-1 Filed 09/18/14 Page 38 of 38 This recommendation by the Independent Reviewer and her expert consultants is repeated and will be reviewed in future reports.
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ATTACHMENT B


Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 2 of 131
State Health Authority Yardstick
 (SHAY)

Report for Georgia Assertive Community Treatment (ACT) Services
 Angela L. Rollins, PhD
 September 11, 2014

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Introduction
The State Health Authority Yardstick (SHAY) was designed by a group of mental health researchers and implementers who were interested in assessing the facilitating conditions for the adoption of Evidence-Based Practices (EBPs) created by the state’s (mental) health authority. The focus of this report is the state’s implementation of assertive community treatment (ACT) services.
The SHAY is a tool for assessing the state health authority responsible for mental health policy in a given state. For the purposes of this assessment, Georgia DBHDD has been identified as the “State Health Authority.”
The author of this report spent four days in July 2014 completing a series of interviews with a variety of stakeholders in the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) system, including:
• Commissioner and Deputy Commissioner for Programs, DBHDD • Assistant Commissioner of Behavioral Health, DBHDD • Director, Adult Mental Health, DBHDD • DOJ ADA Settlement Coordinator • ACT fidelity assessment team, DBHDD • Supported Housing Director, DBHDD • APS (external Medicaid monitoring agency) care managers for ACT

services, their team leader, and DBHDD liaison
 • External trainers who provided ACT-specific trainings during the course of
the last year • DBHDD social worker from Georgia Regional Atlanta • Community stakeholders including representatives from a number of
mental health advocacy organizations and criminal justice system representatives (e.g., public defender’s office)
The author also reviewed relevant documentation provided, including: • State Plan for ACT (from last year) • ACT service definition • ACT fidelity reports and fidelity score tracking tables, ACT team plans of correction for low fidelity, ACT consumer census tables • Log of all ACT-related trainings (with sign-in sheets) and some ACT
 training materials
 • ACT client outcomes reporting templates and reports • APS audit tool items and sample reports; reports on ACT authorization approval rates • Minutes for each ACT Coalition meeting held during the last fiscal year • Memos documenting ACT policy changes during the last fiscal year • Georgia Housing Voucher slides and some statistics on referral sources and outcomes
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During the July 2014 visit, the author visited team leaders and managers for four ACT teams in Region 3 and reviewed charts at one agency. The author also visited three teams in southern Georgia in May 2014 and visited CST and Peer Support and Wellness Centers in October 2013.
Region 3 teams received increased attention during this trip because of community stakeholder concerns about a particular team in that region. As you will see noted later in this report, many concerns identified with regards to this team and their operations have not been observed universally throughout the State. It is important for stakeholders to keep in mind that we ideally weight concerns and prioritize recommendations based on patterns of negative performance (i.e., observed across multiple teams or across time without correction in fewer teams). To provide perspective, this particular team serves only 14% of Region 3 ACT consumers and only 4% of ACT consumers in the state.
Although the author had hoped to report more specifically on the impact of ACT on key consumer outcomes relevant to the Settlement Agreement, we are still somewhat limited in our ability to draw strong conclusions about the impact of ACT. DBHDD does collect a range of outcomes from ACT teams in the aggregate each month (“X% of the caseload of Team A was hospitalized this month”) for quality improvement purposes. Further, some consumers are part of a cohort that is followed monthly over time, starting with ACT enrollment, with respect to these outcomes (“X% were employed in Month 6 of ACT and Y% were employed in Month 12 of ACT”). As far as I can tell, the data collection lacks a reliable system for tracking client-specific outcomes both pre and post ACT service or an ability to mark the beginning of an ACT episode of care for a particular consumer so that those comparison data could be mined from any existing data sets (e.g., Medicaid claims data). For instance, to know whether a 7% hospitalization rate is an improvement, we would need to know what rate of hospitalization was experienced prior to ACT. My understanding is that we can certainly get a rough idea of how teams are doing from one month to the next, but we cannot really say with certainty whether these are reductions in negative outcomes from pre-ACT functioning for these consumers.
The interviews throughout the year and during this July 2014 visit were rich and open about progress and struggles in ACT implementation. Because basic policy and infrastructure supports for ACT have been in place starting around 2012 and many positive refinements were made in 2013, the focus in this year’s assessment was on improving recovery orientation of ACT, making sure ACT serves key settlement populations adequately (i.e., keeping consumers out of hospital and other institutions), and improving sustainability for ACT.
The State of Georgia is in compliance with the Settlement Agreement requirement to establish twenty-two ACT teams by July 1, 2013. As of the end of June 2014, the twenty-two teams collectively were serving 1,409
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consumers, a net increase of 146 consumers since June 2013. The State is also in compliance with regards to additional requirements related to the composition of ACT teams with multidisciplinary staff, including a dedicated team leader, and the range of services to be provided by the team, including the availability of 24/7 crisis services. However, this year’s fidelity records indicate six of twenty-two teams have struggled with covering the required nursing time required for ACT. Frequency of contact across the teams was also low with only one team attaining a fidelity score of 5, and eight teams scoring a 1 or 2. Across all twenty-two teams, the mean score for this item was 2.8 (out of possible 5). As noted below, I also have become concerned that current Corrective Action Plans and processes do not require teams to demonstrate progress in fidelity ratings.
For some context on Georgia DBHDD ACT team fidelity performance, I did some additional analyses of their scores. The Dartmouth Assertive Community Treatment Scale (DACTS; Teague, Bond, & Drake, 1998) is a 28-item scale that assesses the degree of fidelity to the ACT model.1 Each item is rated on a 5point behaviorally anchored scale, ranging from 1 = not implemented to 5 = fully implemented. The full implementation anchors are item-specific and were determined through a variety of expert sources, including published reports from the ACT model developers and from an expert panel (McGrew & Bond, 1995). The DACTS has been shown to discriminate between four types of services (Teague et al., 1998), is sensitive to change over time in implementation efforts (McHugo et al., 2007), and a precursor to the DACTS predicted consumer outcomes (i.e., r=.60 for total score related to reductions in hospitalizations) (McGrew, Bond, Dietzen, & Salyers, 1994).
Although cut-off scores for defining a minimum adherence to ACT is desirable, very little evidence exists for a particular cut-off score. McHugo and colleagues (2007) refer to 4.0 and above as “high fidelity”, 3.0-3.9 as “moderate fidelity”, and below 3.0 as “low fidelity” in the National Evidence-Based Practices Project studying several practices, including ACT. Georgia ACT teams also scored similarly in both FY13 and FY14 (DACTS mean across 22 teams and all 28 items of 4.1) to longer-term data from Indiana in FY01-09 (also 4.1 taking a statewide average across teams for all years, where some teams were quite experienced by 2009). Some additional helpful work to address this gap regarding cut-points for ACT in particular did identify several empirical approaches to defining ACT
1 The Tool for Measuring Fidelity to Assertive Community Treatment (TMACT; MonroeDevita, Teague, and Moser, 2011) is a new measure of ACT fidelity that includes 47 items and 6 subscales. Similar to DACTS, items are rated on a 5-point behaviorally anchored scale, 1 to 5. In addition to core ACT components and structures also measured in the DACTS, the TMACT also measures implementation of other evidencebased practices within ACT, scores the function of specialist positions (as opposed to just scoring a qualifying person occupying a position on ACT), and has items covering recovery-oriented practice and person-centered planning. Unfortunately, because the TMACT is a newer instrument, methods for using its scores to discriminate ACT from other services are not yet established.
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using DACTS scores or subsets of scores (Salyers et al., 2003). Trials of itemlevel pass-fail criteria were found to be unattainable by the ACT programs in the study and, therefore, not helpful in distinguishing ACT from other services. The most promising approach offered to discriminate ACT from intensive case management (ICM) and brokered case management was using the mean for a subset of 21 items (excluding H5, H6, H10, H11, S8, S9, S10) and using recalibrated scoring methods for 9 items (meaning they inflated the DACTS scoring methods for these items because a 5 was so difficult to attain, even for ACT teams). Using this approach, about 20% of the ACT programs still scored a 3.9 or below on the total for these 21 items (using the inflation method -- Georgia DBHDD data use the usual stringent DACTS scoring criteria). Conversely, 84% of ICM teams scored 3.4 or below and 91% of brokered case management programs scored 2.9 or below.
In FY14, the 22 ACT teams scored an average of 4.1 on all 28 DACTS items (with no modified scoring; i.e., using the usual, stringent criteria in the DACTS protocol and scale). Seven of the 22 teams scored below 4.0 but still scored a 3.8 or 3.9, the upper range of what Salyers and colleagues (2003) refer to as a “C” in their model using 26 of 28 DACT items, indicating a need for improvement but certainly not out of the realm of ACT team scores in most implementation efforts. To most accurately compare the performance of the 22 Georgia ACT teams to the performance of ACT, ICM, and brokered case management teams in the Salyers paper (2003), we recalculated Georgia teams’ scores using the same 26-item and 21-item means used in the paper. As you will see in Figure 1 (26-items) and Figure 2 (21-items) below, the distribution of the Georgia ACT teams’ shows more teams performing at higher DACTS “grades” (A and B) than the other ACT benchmark teams in the published paper. Similarly, a lower percentage of Georgia ACT teams scored in the C range, compared to the benchmark ACT samples Salyers et al. (2003), and no Georgia ACT teams scored a D or F, which is where the majority of ICM and brokered case management teams tend to score.
Another angle to examine Georgia ACT teams’ performance is to look at individual team scores over time. I noted that only one team scored below 4.0 in both FY13 and FY14. That team scored 3.9 in one year and 3.8 in the next, both relatively close to the 4.0 mark. This team primarily struggled with staff turnover, which is scored relative to the last 2 years, so the turnover experienced in FY13 would still “count” and, thus, influence FY14 scores. Some states have excluded the H5 Staff turnover item in state certification efforts in order to avoid “punishing” teams for staff turnover that sometimes is out of the agency’s control.
From these analyses, the ACT teams in Georgia are scoring comparably, if not better, than other ACT teams in the published literature, including some data derived from randomized controlled trials which are often difficult to replicate in real-world implementation efforts (Drake et al., 2001). Using criteria that are either too stringent at the total DACTS score level or requiring item-level pass-fail
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criteria that are difficult to meet will likely result in a chaotic service environment where the state will be forced to pull contracts and rapidly reassign Georgia ACT consumers to new ACT providers in order to remain in compliance. However, I support Georgia DBHDD’s continued use of scores lower than 4.0 on the total DACTS score and individual item scores of 1 or 2 as indicators of the need for corrective action plans so that teams scoring a below a 4 are expected to improve. In an earlier year of monitoring ACT implementation and discussing where to set the contracting benchmark (ie., the benchmark referred to in the state’s QM report), I urged DBHDD staff to set the bar high at 4.0, so that there would be leverage to work with teams on improvement before scores became truly problematic. I urge DBHDD to do better follow-up on progress on those corrective action plans so that improvements actually materialize in welldocumented ways. I also urge Georgia DBHDD’s to increase attention on other elements of ACT program quality that are not captured by the DACTS (e.g., recovery-orientation, employment services). Although it has not been an issue to date, I do recommend that Georgia DBHDD prepare for any incidence where an ACT team scores a 3.4 or below on the DACTS, as this would be a DACTS score more indicative of ICM or brokered case management.
Figure 1. Distribution of ACT teams achieving each “grade” on DACTS, using 26-items (excludes H11 and S10)
Georgia AC


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Figure 2. Distribution of ACT teams achieving each “grade” on DACTS, using 21-items (excludes H5, H6, H10, H11, S8, S9, and S10)
100.0%	  

90.0%	  

80.0%	   70.0%	  

Georgia	  AC

60.0%	  

50.0%	  

40.0%	  

30.0%	  

20.0%	  

10.0%	  

0.0%	  

Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 9 of 131

receiving Medicaid, though other factors should also be explored. Increasing Medicaid billing is a key strategy for financially sustaining ACT services. A multi-pronged approach that addresses both improving Medicaid application success rates and timelines and making sure teams provide intensive care and bill appropriately for that care are both needed.
• In 2013, one of my recommendations was that some ACT teams need more encouragement from DBHDD in the form of policies, fidelity review feedback, or other methods to consider independent living options for their consumers. This remains an issue, though it is not systematically needed across all teams. In addition to ACT team preferences for more structured housing settings, some staff in institutions may be hesitant to release consumers who will reside in independent living settings with housing vouchers because they fear ACT teams will not provide the high frequency of contact for those consumers to maintain an independent apartment. Low scores on the ACT fidelity item for frequency of contact substantiate this fear. Each case may be different, but it is clear that Georgia teams are at a critical stage for developing and maintaining trust between providers and community stakeholders and institutions. Certainly ACT teams should be capable of making daily contact with consumers who are released from hospitals or jails and placed in independent housing. This is why ACT fidelity standards dictate low intake rates – to allow ample staff time for contact with newly enrolled ACT consumers.
• Improve recovery potential for ACT consumers by providing technical assistance (some onsite) to help teams use specialist positions to maximum advantage, such as helping supported employment specialists, substance abuse specialists, peer specialists, and nurses focus on their unique roles on the ACT team.
• Strengthen the consequences within corrective action plans, asking for agencies to demonstrate progress on the DACTS item that is deficient.

Findings

Based on the information gathered, the author assessed each category of the SHAY as follows.

1. EBP Plan

The SMHA has an EBP plan to address the following:

(Use boxes to identify which components are included in the plan)

Note: The plan does not have to be a written document, or if written, does not

have to be distinct document, but could be part of the state’s overall strategic plan.

However if not written the plan must be common knowledge among state

employees, e.g. if several different staff are asked, they are able to communicate

the plan clearly and consistently.

X

1) A defined scope for initial and future

implementation efforts,

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X

2) Strategy for outreach, education, and consensus

building among providers and other stakeholders,

X

3) Identification of partners and community

champions,

X

4) Sources of funding,

X

5) Training resources,

X

6) Identification of policy and regulatory levers to

support EBP,

X

7) Role of other state agencies in supporting and/or

implementing the EBP,

X

8) Defines how EBP interfaces with other SMHA

priorities and supports SMHA mission

X

9) Evaluation for implementation and outcomes of the

EBP

X

10) The plan is a written document, endorsed by the

SMHA

Score

1. No planning activities

2. 1 – 3 components of planning

3. 4 – 6 components of planning

4. 7 – 9 components

X

5. 10 components

Comments:
The State Plan for ACT (written in 2013) is thorough and includes substantive policies supportive of ACT.
2. Financing: Adequacy Is the funding model for the EBP adequate to cover costs, including direct service, supervision, and reasonable overhead? Are all EBP sites funded at the same level? Do sites have adequate funding so that practice pays for itself? Note: Consider all sources of funding for the EBP that apply (Medicaid fee-forservice, Medicaid waiver, insurance, special grant funds, vocational rehabilitation funds, department of education funds, etc.) Adequate funding (score of 4 or 5) would mean that the practice pays for itself; all components of the practice financed adequately, or funding of covered components is sufficient to compensate for non-covered components (e.g. Medicaid reimbursement for covered supported employment services compensates for non-covered on inadequately covered services, e.g. job development in absence of consumer). Sources: state operations and budget, site program managers. If financing is variable among sites, estimate average.

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X 2013

Score:
1. No components of services are reimbursable
2. Some costs are covered 3. Most costs are covered 4. Services pays for itself (e.g. all costs covered adequately, or
finding of covered components compensates for non-covered components)
5. Service pays for itself and reimbursement rates are attractive relative to competing non-EBP services.

Comments:

As I had mentioned in last year’s report, the removal of Tier 3 DBHDD ACT contract funding so that all teams go from a maximum $870,000 in Year 1 to $780,000 each year thereafter was a positive policy change to account for lower than expected rates of Medicaid coverage for ACT consumers being noted throughout the state. On top of the state contract money, teams also bill Medicaid ACT rates ($32.46 per 15 minute unit). Other significant improvements in years past included increasing ACT authorization length from 90 days to 6 months and then a further lengthening of the initial ACT authorization to a full year, bringing ACT authorization length much closer to the ACT principle of providing services with no arbitrary time limits. Other improvements included allowing collateral contact billing under the ACT Medicaid rate and the allowance of dual authorizations for ACT consumers who are transitioning from ACT to less intensive services (so both ACT and other service programs can bill during the planned transition period). Providers and other stakeholders across the State openly expressed gratitude for these important policy changes, particularly the lengthening of ACT authorization periods. It was also noted that APS and DBHDD worked to address barriers related to communication and transmission of ACT authorization documentation between APS and providers. Most providers report a much smoother process for ACT authorizations with APS. One provider did state that APS’s ACT authorization categories of “denials” vs “closed” cases is one of semantics since closed cases are often those where a provider simply “gives up” pursuing the ACT authorization. I recommend DBHDD follow up on ACT consumers who leave ACT care because the authorization cannot be obtained. If these consumers return to institutions, homelessness, or experience other poor outcomes, this is an indication to me that ACT authorization policy changes could be considered, such as modifying continuing stay criteria, lengthening authorization periods, or lengthening transition authorization periods so that ACT teams can watch for regression in the consumer when services are decreased before officially discharging the consumer.

Unfortunately, agency leaders from two Region 3 agencies operating five ACT teams all reported financial losses on their ACT teams in FY13. According to

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both agencies, one key factor in this deficit appears to be low rates of ACT consumers receiving Medicaid, though other factors should also be explored (including team staffing composition and related costs and frequency of contacts, which appear to be lower than expected across the state). For FY14, one agency reported losing over $200,000 on one team (where 31% of consumers on current caseload are currently receiving Medicaid) and over $100,000 (where 38% of consumers on current caseload are currently receiving Medicaid) on another. These figures did not include additional staff positions created to work with DeKalb county public defenders and jail to coordinate placement upon release, so they are likely to be conservative estimates of actual losses. The other agency reported that it takes about $1.3 Million to run each of their ACT teams annually, and these expenses are not fully covered by available funding. In southern Georgia, one CFO interviewed reported anecdotally that they can break even with ACT funding but would never be able to support ACT on Medicaid rates alone. In order to serve consumers well, this team stated that their team has to have more staffing than that required by the Statement of Need. This particular team was one that reported being able to send some staff to all offered trainings (and changed practice because of this), work extensively with hospitals and jails to engage consumers prior to discharge (at least weekly with some visits from ACT psychiatrist as well), and work creatively with pharmacies and patient assistance programs to cover medication costs when consumers are without insurance.
I consider the existing state contract maximums and Medicaid rates to be attractive rates in and of themselves. For example, I had not heard that ACT teams specifically state they were taking losses in previous years. Some teams in previous years certainly expressed apprehension that they would be able to break even on ACT once fully staffed and they reached lower tiers of state contract funding. But this was the first year that teams flatly told me they lost money on ACT. I recommend that DBHDD find out if other agencies operating in Year 2 and beyond are reporting losses as well to identify the extent of the issue. The logical first step in addressing this issue is increasing Medicaid billing and perhaps starting with the issue of securing Medicaid benefits for ACT consumers, many of whom enroll in ACT without Medicaid. Larger state contracts, for instance, may be very difficult to sustain beyond the settlement period. Obtaining Medicaid and social security benefits is particularly challenging for consumers being released from incarceration because they are often without identification and other basic required documentation that delays the application process. Conversely, one agency reported much higher rates of obtaining Medicaid when application was made within Georgia Regional prior to discharge. A multipronged approach that addresses both improving Medicaid application success rates and timelines and making sure teams provide intensive care and bill appropriately for that care are both needed. Both agencies visited in July and a few other agencies visited in the past indicated that, although they actively pursue Medicaid applications for ACT consumers without coverage, the process (usually multiple denials and appeals) is so long that many of these consumers
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are getting Medicaid right about the time that they no longer qualify for ACT services according to APS. Medicaid’s allowance for 180 days of back billing is certainly helpful, but the “uncovered” time on ACT often exceeds this amount. With DBHDD, I discussed the notion of some kind of presumptive Medicaid eligibility for ACT consumers. DBHDD indicated that this may be possible and will look into the issue further. Increasing Medicaid coverage also has the added benefit of reinforcing teams’ provision of frequent, intensive services to support consumers to remain out of hospitals, jails, and supervised living settings.
Last year, DBHDD hired a Medicaid Eligibility Specialist in each region to help with increasing the portion of consumers with Medicaid. A staff person from DBHDD also performs SOAR training for staff around the state to increase rapid application for social security benefits for eligible persons. These were all positive developments. One community stakeholder asked if there was room to hire more of these types of individuals since they are very helpful in addressing this Medicaid issue.

3. Financing: Start-Up & Conversion Costs
Are costs of start up and or conversion covered, including: 1) Lost productivity for staff training, 2) hiring staff before clients enrolled (e.g. ACT), 3) any costs associated with agency planning and meetings, 4) changing medical records if necessary, 5) computer hardware and/or software if necessary, etc. Note: If overall fiscal model is adequate to cover start-up costs then can rate 5. If financing is variable among sites, estimate average. Important to verify with community EBP program leaders/ site program managers.

Score:

1. No costs of start-up are covered

2. Few costs are covered

3. Some costs are covered

4. Majority of costs are covered

X

5. Programs are fully compensated for costs of conversion

Comments:
As mentioned in previous reports, ACT start-up costs appear to be covered with larger state contracts in Year 1 supplemented by ACT Medicaid reimbursement. The teams reporting losses were in second year and beyond.

4. Training: Ongoing consultation and technical support

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Is there ongoing training, supervision and consultation for the program leader

and clinical staff to support implementation of the EBP and clinical skills:

(Use boxes to indicate criteria met.)

Note: If there is variability among sites, then calculate/estimate the average

visits per site.

X

1) Initial didactic training in the EBP provided to clinicians

(e.g. 1-5 days intensive training)

X

2) Initial agency consultation re. implementation strategies,

policies and procedures, etc. (e.g. 1 - 3 meetings with

leadership prior to implementation or during initial training)

Needs

3) Ongoing training for practitioners to reinforce application

emerging

of EBP and address emergent practice difficulties until

here in 2014

they are competent in the practice (minimum of 3 months,

e.g. monthly x 12 months)

Some added 4) On site supervision for practitioners, including observation

this year

of trainees clinical work and routines in their work setting,

and feedback on practice. Videoconferencing that

includes clients can substitute for onsite work (minimum of

3 supervision meetings or sessions for each trainee, e.g.

monthly x 12 months)

X (ACT

5) Ongoing administrative consultation for program

Coalition)

administrators until the practice is incorporated into

routine work flow, policies and procedures at the agency

(minimum of 3 months, e.g. monthly X 12 months)

Score

1. 0-1 components

2. 2 components

3. 3 components

X

4. 4 components

5. 5 components

Comments:

Strengths of training structures have been covered in previous reports. DBHDD added and documented more extensive onsite consultation by fidelity assessors on the wrap-up day for each fidelity assessment which is a positive improvement, but could be focused on emerging areas of weakness for teams.

I recommend a continued emphasis on strengthening recovery orientation of ACT and helping teams understand how to engage consumers well before and during their initial weeks with ACT. To improve recovery orientation of ACT teams, I encourage training and shadowing experiences that bolster the critical roles of supported employment specialists and peer specialists, as well as emphasize the role of ACT in supporting consumers in independent housing arrangements.

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For employment, I hope training emphasizes that ACT supported employment specialists work in all phases of supported employment work, from engagement and assessment of skills to job development to follow-along supports. I was troubled to hear one consumer this year state that her ACT supported employment worker would help her get a job but that an outside vocational provider would do her job coaching after placement. (This was a consumer with employment history and who presented herself very well). When I inquired with the team, the leader stated that the employment specialist on their team would not be able to job coach her for eight hours each day. This showed a clear lack of understanding of supported employment and finding jobs that fit a consumer’s strengths. I also fear some teams are working on employment only for consumers who they see as “stable” and “ready” for employment while missing opportunities to engage consumers early in their ACT services around expressed employment goals. For instance, I visited another consumer recently released from jail who was so motivated to work that she was going to go out on her own to a downtown office to apply. This particular consumer was not aware that the ACT team could help her with her employment goals. I recommend working with the supported employment technical assistance providers to improve ACT teams’ adherence to supported employment principles. Team leaders should also be exposed to these principles in order to manage team functions to support quality SE work.
For housing, I would recommend even basic ACT trainings continue to emphasize that ACT teams are specifically equipped to provide frequent and intensive services that help consumers live independently. I continue to see what I view as an overreliance on personal care homes and other supervised housing options on teams (e.g., many teams are being scored as brokering housing support on their DACTS assessments though this is a relatively small penalty to the item score). Sometimes this is legitimately because housing choices are limited or, as one team reported in southern Georgia: “our judges often want them to live in residential settings upon release.” However, in other instances, the ACT team wants to see that consumers prove they are “ready” for independent housing with a trial in supervised housing. More recovery-oriented teams lean away from putting this burden of “readiness” on consumers and instead use their intensive and flexible services to support consumer goals. For a consumer who clearly wants independent housing and is told the team disagrees, this could increase resistance from the consumer and drive them to avoid the team because they are not hearing the consumer’s goals.
Peer specialists on the teams are a great resource for engaging consumers who may otherwise be skeptical or resistant to mental health services. I recommend working with Mark Baker and his office at DBHDD or other consumer advocacy groups in Georgia to strategize how to effectively make good use of peer specialists. Another idea would be to incorporate consumer speakers from the
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Respect Institute in existing trainings to infuse a more person-centered consumer perspective on ACT teams.
I noticed some teams this year where there is a real deficit in recoveryorientation. Some teams allowed their staff to talk pejoratively about consumers, repeatedly stating that consumers were unmotivated or untrustworthy or unable to make decisions about their own care. There are some consumers on ACT teams who are clearly difficult to engage and serve, but when I hear staff say this about the majority of their caseload, then I suspect that this is a team bias and probably does not reflect the capacity of their consumers. I struggle with how to advise DBHDD to address some of these issues because training events are certainly limited in their ability to bring about changes in staff attitudes and beliefs, which is the central goal in improving recovery orientation. One provider (a nurse) told me that Motivational interviewing, Integrated Dual Disorders Training, and lllness Management and Recovery trainings offered by DBHDD for ACT staff were very helpful: “That really helped us rethink how to handle tough customers who are difficult to engage. They don’t want to hear about meds.” Recovery-oriented engagement training was another good example. Personcentered planning is another training where teams would learn how to engage consumers around their own personal goals and tailor services to support those goals. So my only advice with respect to trainings is to keep offering them, know which teams need them the most, and target them so that those teams can send key staff.
What may work better for improving recovery-orientation is continued emphasis on detecting these attitudes and corresponding behaviors while on fidelity reviews, pointing them out to staff and leadership while onsite and having honest, frank, respectful discussions about how recovery-oriented ACT contrasts their current practice. Using real examples from an ACT team has the advantage of bringing recovery-oriented care discussions beyond theory and into practice -helping teams make better choices with specific consumers. When teams have a long way to go towards recovery-oriented care, I personally avoid talking about these issues as “black and white” and instead try to reinforce modest changes in how the team chooses to function to move them along the continuum of recovery.
Offering some low recovery-oriented teams or staff the opportunity to shadow teams that do well with employment housing, person-centered planning, or motivational approaches is another way to improve recovery-oriented care. Sometimes a message is more powerful when it comes from a colleague doing this same kind of work and not from a centralized DBHDD staff member or trainer. The new ACT fidelity assessor who was hired and recently worked as an ACT team leader may also be a helpful asset at DBHDD for this reason – he has done this work very recently.
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Recovery-oriented ACT should be a priority topic at this year’s ACT team leader retreat as well, since leadership on these issues is critical in changing team culture. Team leaders can recognize language and attitudes and set the standard for team performance in these areas. For some teams where the ACT team leader does not embrace recovery-oriented care, measures may need to be more drastic to get the right personnel in a leadership position with the team.

5. Training: Quality

Is high quality training delivered to each site? High quality training should

include the following:

(Use boxes to indicate which components are in place.

Note: If there is variation among sites calculate/estimate the average number of

components of training across sites.)

X

1) credible and expert trainer

X

2) active learning strategies (e.g. role play, group work,

feedback

X

3) good quality manual, e.g. SAMHSA Toolkit

X

4) comprehensively addresses all elements of the EBP

On demand only X

5) modeling of practice for trainees, or opportunities to shadow/observe high fidelity clinical work delivered
6) high quality teaching aides/materials including workbooks/work sheets, slides, videos, handouts, etc., e.g. SAMHSA Toolkit/ West Institute

Score

1. 0 components

2. 1 – 2 components

3. 3 – 4 components

X

4. 5 components

5. All 6 components of high quality training

Comments:
Providers continue to report that training is high quality and covers relevant, important content for good ACT functioning. I hear this both anecdotally during team visits and see these reports in DBHDD surveys of providers. Although shadowing is still technically on-demand, DBHDD did make progress in this area by offering some reimbursement to agencies whose teams have a strength area for shadowing which should increase the shadowing opportunity capacity. DBHDD is determining strengths and weaknesses of various teams and suggesting teams with weak areas of ACT functioning shadow a team that does well in that area. This is a worthwhile approach since some teams will different strengths than others.
6. Training: Infrastructure / Sustainability

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Has the state established a mechanism to allow for continuation and expansion of

training activities related to this EBP, for example relationship with a university training

and research center, establishing a center for excellence, establishing a learning

network or learning collaborative. This mechanism should include the following

components:

(Use boxes to indicate which components are in place)

X

1) offers skills training in the EBP

X

2) offers ongoing supervision and consultation to clinicians to

support implementation in new sites

X

3) offer ongoing consultation and training for program EBP

leaders to support their role as clinical supervisors and

leaders of the EBP

Variable

4) build site capacity to train and supervise their own staff in

the EBP

Offered but

5) offers technical assistance and booster trainings in existing

needs more

EBP sites as needed

attention

Medicaid only

6) expansion plan beyond currently identified EBP sites

sites

X (new)

7) one or more identified model programs with documented

high fidelity that offer shadowing opportunities for new

programs

Some

8) SMHA commitment to sustain mechanism (e.g. center of

excellence, university contracts) for foreseeable future, and

a method for funding has been identified

Score

1. No mechanism

2. 1 – 2 components

3. 3 – 4 components of planning

X

4. 5 – 6 components

5. 7 – 8 components

Comments:

As was the case last year, current training infrastructure is an area of strength and improvements were made this year in DBHDD’s capacity to offer shadowing for teams (i.e., reimbursement for teams as shadow sites and a shadowing experience template to set goals and expectations). DBHDD also offered a team leader retreat this year that should be offered at least annually since many issues related to recovery-oriented ACT are often best resolved with good ACT team leadership. The fidelity assessment team has been offering some technical assistance in their wrap-up day of the fidelity visit, but I am seeing emerging needs regarding a lack of understanding of specialist roles (particularly the SE specialist often being used as a gatekeeper to the agency’s VR program), an overreliance on structured housing and a lack of consumer choice in housing and

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other services, and general problems with recovery-orientation of teams. Even if a team scores well on a fidelity item, there is a lot of feedback and technical assistance that could be infused in these visits that improve quality above and beyond the basic DACTS requirements.
I do continue to be concerned about the ability of DBHDD to sustain the current technical assistance and training infrastructure in future years.
Although the Settlement Agreement only requires 22 ACT teams, the State does offer Medicaid funding to other programs that might be considered the expansion element in this item.
7. Training: Penetration What percent of sites have been provided high quality training (score of 3 or better on question #5, see note below), and ongoing training (score of 3 or better on question #4, see note below). Note: If both criteria are not met, does not count for penetration. Refers to designated EBP sites only. High quality training should include 3 or more of the following components:
1) credible and expert trainer, 2) active learning strategies (e.g. role play, group work, feedback), 3) good quality manual (e.g. SAMHSA toolkit), 4) comprehensively addresses all elements of the EBP, 5) modeling of practice for trainees, or opportunities to shadow/observe high
fidelity clinical work delivered, 6) high quality teaching aids/ materials including workbooks/ work sheets,
slides, videos, handouts, etc. e.g. SAMHSA toolkit/ West Institute. Ongoing training should include 3 or more of the following components:
1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training),
2) Initial agency consultation re. implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training),
3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months),
4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months),
5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months).
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Score:

1. 0-20%

2. 20-40%

3. 40-60%

4. 60-80%

X

5. 80-100%

Comments:

DBHDD requires new staff to attend ACT trainings, but the penetration of ACT staff receiving other trainings is much lower. This is understandable to a certain degree, but lower functioning teams or teams who struggle with certain recovery concepts (e.g., motivational interviewing) should be specifically targeted to send key staff to relevant trainings.

8. SMHA Leadership: Commissioner Level

Commissioner is perceived as an effective leader (influence, authority,

persistence, knows how to get things done) concerning EBP implementation

and who has established EBPs among the top priorities of the SMHA as

manifested by:

(Use boxes to indicate components in place.)

Note: Rate existing Commissioner, even if new to post.

Yes

1) EBP initiative is incorporated in the state plan, and or other

state documents that establish SMHA priorities,

Yes

2) Allocating one or more staff to EBP, including identifying

and delegating necessary authority to an EBP leader for the

SMHA,

Yes

3) Allocation of non-personnel resources to EBP (e.g. money,

IT resources, etc.),

Yes

4) Uses internal and external meetings, including meetings

with stakeholders, to express support for, focus attention

on, and move EBP agenda,

Notably

5) Can cite successful examples of removing policy barriers or

strong

establishing new policy supports for EBP.

throughout

the year

Score

1. 0-1 component

2. 2 components

3. 3 components

4. 4 components

X

5. All 5 components

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Comments:
As in past evaluations, I was able to speak with the Commissioner and Deputy Commissioner of DBHDD and heard from a variety of community stakeholders who feel they are committed to supporting quality ACT services. Both leaders continue to understand the importance of and challenges to implementing ACT in Georgia. When I mentioned my concerns regarding the need to improve recovery-orientation for some ACT teams, the Medicaid eligibility challenges for some ACT consumers, and statewide concerns about the sustainability for ACT beyond the Settlement Agreement period, they immediately understood the critical issues. We talked at length about sustainability and the need to maximize federal revenue for both ACT and SE, reinvest hospital funding for communitybased mental health programs, and to demonstrate critical outcomes in commonsense ways that give state legislators trust and confidence in investing in intensive community-based mental health programs.

9. SMHA Leadership: Central Office (GA DMH) EBP Leader

There is an identified EBP leader (or coordinating team) that is characterized by

the following:

(Use boxes to indicate which components in place.)

Note: Rate current EBP leader, even if new to post.

X

1) EBP leader has adequate dedicated time for EBP

implementation (min 10%), and time is protected from

distractions, conflicting priorities, and crises,

X

2) There is evidence that the EBP leader has necessary

authority to run the implementation,

X

3) There is evidence that the EBP leader has good

relationships with community programs,

Strong

4) Is viewed as an effective leader (influence, authority,

persistence, knows how to get things done) for the

EBP, and can site examples of overcoming

implementation barriers or establishing new EBP

supports.

Score

1. No EBP leader

2. 1 components

3. 2 components

4. 3 components

X

5. All 4 components

Comments:

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As indicated in years past, the DBHDD Director of Adult Mental Health is a strong leader for ACT, devotes more than 10% effort to ACT, has and exercises her authority to make policy changes related to ACT, and is observed to be very responsive to consumer, provider, and other community stakeholders with regard to ACT. My only concern at this point is that, as the basics of ACT have become more manageable, it would be beneficial to see more DBHDD central office personnel going out and making contact with teams on site in the field. Perhaps if reports from others come in about high or low functioning teams, then a site visit might be warranted to reinforce good practice or to provide recommendations on poor practices. To strike a balance with the myriad of other site visits and audits with which ACT teams must comply with, I would recommend removing the APS program audit for ACT because that audit appears to duplicate fidelity audits and is a source of frustration rather than true quality assurance.
10. Policy and Regulations: Non SMHA State Agencies The SMHA has developed effective interagency relations (other state agencies, counties, governor’s office, state legislature) to support and promote the EBP as necessary/appropriate, identifying and removing or mitigating any barriers to EBP implementation, and has introduced new key facilitating regulations as necessary to support the EBP. Ask SMHA staff and site leadership: What regulations or policies support the EBP implementation? What regulations or policies get in the way? Note: give most weight to policies that impact funding. Examples of supporting policies:
• Medicaid agency provides reimbursement for the EBP (If Medicaid not under the SMHA)
• The state’s vocational rehabilitation agency pays for supported employment programs
• The state’s substance abuse agency pays for integrated treatment for dual disorders
• Department of Professional Licensing requires EBP training for MH professionals
Examples of policies that create barriers: • Medicaid agency excludes EBP, or critical component, e.g. disallows any services delivered in the community (If Medicaid agency not under the SMHA) • State substance abuse agency prohibits integrated treatment, or will not reimburse for integrated treatment • State substance abuse agency and state mental health authority are divided, and create obstacles for programs attempting to develop integrated service programs • State vocational rehabilitation agency does not allow all clients looking for work access to services, or prohibits delivery of other aspects of the supported employment model • Department of Corrections policies that create barriers to implementation
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of EBPs

Score

1. Virtually all policies and regulations impacting the EBP act as

barriers.

2. On balance, policies that create barriers outweigh policies that

support/promote EBP.

3. Policies that support/promote are approximately equally

balanced by policies that create barriers.

X

4. On balance, policies that support/promote the EBP outweigh

policies that create barriers.

5. Virtually all policies and regulations impacting the EBP

support/promote the EBP.

Comments:
Many of the barriers related to use of the housing vouchers are less of an issue than in the past two years. As discussed in an earlier section, other housing barriers (having nothing to do with vouchers) still exist such as team or community stakeholders who resist the idea of consumers living independently when coming out of institutions. As one Georgia Regional social worker clarified to me, some of her own colleagues hesitate to endorse independent living in the discharge plan because they doubt the ACT teams will see consumers frequently enough to support the consumer in independent living. Other barriers exist just related to the availability of rental stock or barriers for certain consumers related to criminal histories.
The Medicaid office has worked well with DBHDD in the past. As noted above, I did hear teams report struggles with getting ACT consumers on Medicaid, particularly consumers with substance use disorders or legal histories. I recommend doing more fact finding into this issue to see the depth and breadth of the issue across the state. For instance, the rates of ACT consumers with Medicaid seemed to vary widely in the teams I visited this year (31% to 90% with most in the 50-70% range). Some of the barriers might be traced to specific social security offices (county level) that hesitate to grant disability to consumers with mental illness or substance use disorders. Conversely, one team reported that when the Medicaid application is started at Georgia Regional, those consumers definitely get disability status and have no problems getting Medicaid. During one of my interviews with DBHDD staff, I mentioned the notion of presumptive Medicaid eligibility for ACT consumers and DBHDD agreed to look into this option. Presumptive eligibility would certainly relieve some of the financial pressure I am now hearing about and help provide tools to sustain ACT in Georgia. Other ideas suggested by stakeholders included hiring more SOARtrained DBHDD staff or finding out how state hospital doctors write successful disability applications. Increasing emphasis on revenue from Medicaid also would

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reinforce frequent, intensive service provision for ACT consumers that could help to engage consumers early in treatment and support consumers in independent living.

11. Policies and Regulations: SMHA

The SMHA has reviewed its own regulations, policies and procedures to identify and remove or mitigate any barriers to EBP implementation, and has introduced new key regulations as necessary to support and promote the EBP. Ask SMHA staff and site leadership: What regulations or policies support the EBP implementation? What regulations or policies get in the way? Examples of supporting policies:
• SMHA ties EBP delivery to contracts • SMHA ties EBP to licensing/ certification/ regulation • SMHA develops EBP standards consistent with the EBP model • SMHA develops clinical guidelines or fiscal model designed to support
model EBP implementation Examples of policies that create barriers:
• SMHA develops a fiscal model or clinical guidelines that directly conflict with EBP model, e.g. ACT staffing model with 1:20 ratio
• SMHA licensing/ certification/ regulations directly interfere with programs ability to implement EBP

Score:

1. Virtually all policies and regulations impacting the EBP act as

barriers.

2. On balance, policies that create barriers outweigh policies that

support/promote the EBP.

3. Policies that are support/promote the EBP are approximately

equally balanced by policies that create barriers.

4. On balance, policies that support/promote the EBP outweigh

policies that create barriers.

X

5. Virtually all policies and regulations impacting the EBP

support/promote the EBP.

Comments:

Although most of these policy updates occurred in 2012 and 2013, I will reiterate these positive policies below to emphasize DBHDD progress in ACT implementation:
• Establishing systematic fidelity monitoring system and tying contracts to ACT standards.
• Changing the ACT authorization periods to six months and later extending the initial authorization to one year to more closely fit with the longer-term nature of ACT services.

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• Streamlining regulatory documents to avoid confusion (e.g., making operations manual align with service definitions and designating the operations manual as a guide rather than a regulatory document).
• Modifying ACT admission criteria. • Modifying APS authorization and audit processes and tools to eliminate
conflicts with the model (there are still a few audit tool items best. assessed at the program level rather than the record level).
• Allowing dual authorizations for ACT and other services to allow for a coordinated graduation from ACT to less intensive services.
• Allowing collateral contact billing. • Eliminating an overly strict policy that demanded ACT psychiatrists deliver
services in the field (i.e., allowing the metrics of the fidelity item for this standard to determine if services are too office-based).
• Removal of the Tier 3 (lowest) funding so that teams now can bill state contract amounts up to $780,000 per year starting in their second year and continuing on while under contract.

12. Policies and Regulations: SMHA EBP Program Standards

The SMHA has developed and implemented EBP standards consistent with the EBP model with the following components: (Use boxes to identify which criteria have been met)

X

1) Explicit EBP program standards and expectations,

consonant with all EBP principles and fidelity components,

for delivery of EBP services. (Note: fidelity scale may be

considered EBP program standards, e.g. contract requires

fidelity assessment with performance expectation)

X

2) SMHA has incorporated EBP standards into contracts,

criteria for grant awards, licensing, certification,

accreditation processes and/or other mechanisms

X

3) Monitors whether EBP standards have been met,

Needs more work

4) Defines explicit consequences if EBP standards not met (e.g. contracts require delivery of model ACT services, and contract penalties or non-renewal if standards not met; or licensing/accreditation standards if not met result in consequences for program license.)

Score

1. No components (e.g., no standards and not using available mechanisms at this time).

2. 1 components

3. 2 components

X

4. 3 components

5. 4 components

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Comments:
With two years of consistent fidelity monitoring in place, I do have a concern that some teams appear to be scoring low on some items in consecutive years and consequences are not sufficient to change behavior. For instance, if a required staff position is vacant two years in a row, did the corrective action plan serve its purpose of providing a real consequence for low performance on that standard? Simply encouraging a team to consult resources to help hire the missing staff is not a sufficient tool if there is no reassessment of whether the hire has been made. I recommend that corrective action plans require a concrete outcome related to improving that DACTS item score. So for staff positions, you would have to see that an appropriate person was hired or assigned to the team, even if part-time, to improve the score and coverage for ACT consumers. For low frequency of contact, a fidelity assessor may need to perform another chart review or the team might be required to report on weekly face to face contacts made per consumer using data from the entire team’s caseload (if a report can be generated). The only exception to that could be the informal support item, although I think the DACTS standard is unrealistically high. Even on that item though, I would expect teams who score a 1 or 2 to make strides to increase their informal support contacts, even if it means simply that they went from a score of 1 to 2, or 2 to 3.

13. Quality Improvement: Fidelity Assessment

There is a system in place for conducting ongoing fidelity reviews by trained

reviewers characterized by the following components:

(Use boxes to indicate criteria met.)

Note: If fidelity is measured in some but not all sites, answer for the typical site.

X

1) EBP fidelity (or functional equivalent designed to

assess adherence to all critical components of the

EBP model) is measured at defined intervals,

2) GOI fidelity (or functional equivalent designed to

assess adherence to all critical components required

to implement and sustain delivery of EBP) is measured

at defined intervals,

X

3) Fidelity assessment is measured independently – i.e.

not assessed by program itself, but by SMHA or

contracted agency,

X

4) Fidelity is measured a minimum of annually,

X

5) Fidelity performance data is given to programs and

used for purposes of quality improvement,

X

6) Fidelity performance data is reviewed by the SMHA +/-

local MHA,

X

7) The SMHA routinely uses fidelity performance data for

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X (new)

purposes of quality improvement, to identify and respond to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.), 8) The fidelity performance data is made public (e.g. website, published in newspaper, etc.).

Score

1. 0-1 components

2. 2-3 components

3. 4-5 components

X

4. 6-7 components

5. All 8 components

Comments:

Although the score on this item did not change this year, DBHDD is posting ACT fidelity reviews on their public website. As noted in previous reports, the fidelity review process itself is thorough and only missing the General Organizational Index. (I would prefer to see more attention paid to recovery-orientation of ACT teams, even if they “technically” meet DACTS fidelity, rather than focusing any energy on the GOI). I do want to include a few small notes for the fidelity assessors. I recommend generous calculation of direct contact for the Practicing team leader item. Many of your explanations refer only to billable productivity reports. I would add to that total any phone contacts with consumers (many nonbillable in Georgia Medicaid for ACT) or any shadowing contacts or field mentoring. I also inquire about the last ten hospitalizations verbally with teams or team leaders to determine the team’s involvement in admissions and discharges. I saw many reports referred to far less than ten hospitalizations. When the number examined is fewer than ten, the sample is so small that one omission and the percentage varies widely. Also, as we discussed while I was onsite with the APS staff, I typically do not exclude charts for review just because someone is in jail or the hospital. (In fact, this is one way to reinforce continued engagement with those consumers.) Certainly if a team says they are about to discharge the person but have not formally closed the chart, I would omit the chart at that point. I do realize that consumers hospitalized far away from the team are another special case as well since face to face visits will be less frequent. I am happy to leave those sorts of decisions up to the assessors to judge individually. There are no formal protocol “rules” on this, but I tend to think of the median chart on all these figures as accounting for some outliers.

14. Quality Improvement: Client Outcomes A mechanism is in place for collecting and using client outcome data characterized by the following:

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(Use boxes to indicate criteria met.)

Note: Client outcomes must be appropriate for the EBP, e.g. Supported

employment outcome is persons in competitive employment, and excludes

prevoc work, transitional employment, and shelter workshops. If outcome

measurement is variable among sites, consider typical site.

X

1) Outcome measures, or indicators are standardized

statewide, AND the outcome measures have

documented reliability/validity, or indicators are

nationally developed/recognized,

X

2) Client outcomes are measured every 6 months at a

minimum,

X

3) Client outcome data are used routinely to develop

reports on agency performance,

4) Client specific outcome data are given to programs and

practitioners to support clinical decision making and

treatment planning,

X

5) Agency performance data are given to programs and

used for purposes of quality improvement,

X

6) Agency performance data are reviewed by the SMHA

+/- local MHA,

X

7) The SMHA routinely uses agency performance data for

purposes of quality improvement; performance data

trigger state action. Client outcome data are used as a

mechanism for identification and response to high and

low performers (e.g. recognition of high performers, or

for low performers develop corrective action plan,

training & consultation, or financial consequences, etc.),

8) The agency performance data are made public (e.g.

website, published in newspaper, etc.).

Score

1. 0-1 components

2. 2-3 components

3. 4-5 components

X

4. 6-7 components

5. All 8 components

Comments:
DBHDD collects, aggregates, and reports back key ACT outcomes to providers aggregated each month and collated into quarterly reports. DBHDD also tracks some ACT consumers prospectively over time so that they can report on ACT consumer progress in relation to tenure on ACT. What is missing from that report is the ability to tell legislators and other stakeholders that ACT is reducing negative outcomes (e.g., hospitalization or incarcerations) or increasing positive
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outcomes (e.g., employment or independent living) and in what quantities, if improvements are being observed. Several stakeholders asked me if Georgia’s ACT programs were achieving these outcomes. Unfortunately, my answer was that I am not sure. I certainly could say that I saw the employment rate rise very slowly in the consumer cohort that is being followed over time, but I saw the rate drop at the 12-month mark. I assume this drop probably means a large number of employed consumers were discharged at the 12-month mark, but without better tracking, I cannot state this with absolute certainty. For outcomes like hospitalizations, it would be helpful to have information about a consumer’s number of hospitalizations and hospital days prior to ACT enrollment to track statistical improvements over time. It might also help the State to assess how other important factors such as what is the critical length of time on ACT that it takes to see improvements in key outcomes. The State consistently talks about the outcomes at ACT coalition meetings and has started using the reports to think about program development.
Consumer-level outcomes tracking is not currently available. Some key performance indicators for ACT (e.g., hospitalizations) are publicly available on the DBHDD webpage. The Director of Adult Mental Health shares the outcome reports at a number of stakeholder meetings, including Georgia Mental Health Consumer Network, the Behavioral Health Services Coalition, and the provider network.
DBHDD currently plans to use their new ASO to do more outcomes monitoring, including some of the ideas noted above. Having a field in the state data system noting when an episode of ACT services starts and stops will be a key element of any new tracking system.
Answering “simple” questions about the impact of ACT is a key strategy for justifying sustainment of ACT.
15. Stakeholders The degree to which consumers, families, and providers are opposed or supportive of EBP implementation. Note: Ask - Did stakeholders initially have concerns about or oppose EBPs? Why? What steps were taken to reassure/engage/partner with stakeholders? Were these efforts successful? To what extent are stakeholders currently supportive this EBP? Opposed? In what ways are stakeholders currently supporting/ advocating against this EBP? Rate only current opposition/support.
Scores: 1. Active, ongoing opposition to the EBP, 2. Opposition outweighs support, or opinion is evenly split, but no active campaigning against EBP, 3. Stakeholder is generally indifferent,
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4. Generally supportive, but no partnerships, or active proponents,
5. Stakeholder advocacy organization leadership/opinion leaders currently offer active, ongoing support for the EBP. Evidence of partnering on initiative.
4.3 15. Summary Stakeholder Score: (Average of 3 scores below) 4 15.a Consumers Stakeholders Score 4 15.b Family Stakeholders Score 5 15.c Providers Stakeholders Score
Comments:
As was the case in FY13, most providers express a sense of strong partnership with DBHDD staff in providing high quality ACT services following the Dartmouth Assertive Community Treatment Scale. Consumer and family advocacy groups express support for ACT, although there was more of a sense of impatience this year in wanting DBHDD and ACT teams to do better or adhere more closely with ACT. I agree with some stakeholders in their hopes that ACT teams would focus on recovery goals for ACT consumers (e.g., employment and independent living) and making better use of peer specialists. In some cases though, I wonder if some stakeholder groups want more consumers to receive ACT than the system is currently capable of enrolling. For instance, Fulton and DeKalb county jail discharge referrals alone could probably fill up the majority of Region 3’s available ACT intake slots each month, leaving little room for referrals from other jails, prisons, state hospitals, private hospitals, internal agency referrals, or other important referral sources. The discrepancy between ACT capacity and perceived need produces frustrations on multiple levels for both providers and some of these community stakeholders. Certainly, some ACT teams might be able to do better in taking on referrals. Certainly, some stakeholders need to have more realistic expectations about referral and engagement and client choice in signing onto community mental health programming. I hope the ongoing discourse can be improved in terms of professionalism and more of a sense of partnership between these ACT teams and stakeholders. To help address this lack of partnership, I suggested that some advocates attend similar discharge planning meetings in Fulton county and in Gwinnett to see what was reported by ACT teams as a more collegial working relationship between ACT providers and advocates. It is also important to note that these struggles are not universally experienced across the state. As one example, a team in southern Georgia specifically mentioned having good relationships with jail and probation staff to move consumers out of jail more quickly. This particular team said they make ample use of Community Transition Plan funding to engage with consumers at least weekly in preparation for release, including some visits by the ACT psychiatrist.
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Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 31 of 131 Generally, it sounds like most advocates feel they have a strong partnership with DBHDD around ACT but perhaps not as strong a partnership with some ACT providers. A few stakeholders did express some impatience with DBHDD in not collecting outcomes that depict ACT’s impact and not addressing what they see as weak ACT providers. However, none of their frustration extends from opposition to ACT. In fact, they want ACT teams to adhere more closely to ACT ideals.
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Summary of SHAY Scores Over Time

1. EBP Plan 2. Financing: Adequacy 3. Financing: Start-up and Conversion
Costs 4. Training: Ongoing Consultation &
Technical Support 5. Training: Quality 6. Training: Infrastructure /
Sustainability 7. Training: Penetration 8. SMHA Leadership: Commissioner
Level 9. SMHA Leadership: EBP Leader 10. Policy and Regulations: Non-SMHA 11. Policy and Regulations: SMHA 12. Policy and Regulations: SMHA EBP
Program Standards 13. Quality Improvement: Fidelity
Assessment 14. Quality Improvement: Client Outcome 15. Stakeholders: Aver. Score
(Consumer, Family, Provider)
SHAY average = average over all 15 items

2012 3 5 3
2
3 1
4 5
3 3 2 3
1
1 4
3.58

2013 5 5 5
4
4 4
5 5
5 4 5 5
4
4 4
4.53

2014 5 3 5
4
4 4
5 5
5 4 5 4
4
4 4
4.33

*For information on the specific numeric scoring methods for each item, please see the SHAY Rating Scale

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Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 33 of 131
References
Drake, R. E., Goldman, H. H., Leff, H. S., Lehman, A. F., Dixon, L., Mueser, K. T., & Torrey, W. C. (2001). Implementing evidence-based practices in routine mental health service settings. Psychiatric Services, 52(2), 179-182.
McGrew, J. H., & Bond, G. R. (1995). Critical ingredients of assertive community treatment: Judgments of the experts. Journal of Mental Health Administration, 22, 113-125.
McGrew, J. H., Bond, G. R., Dietzen, L., & Salyers, M. (1994). Measuring the fidelity of implementation of a mental health program model. J Consult Clin Psychol, 62(4), 670-678.
McHugo, G. J., Drake, R. E., Whitley, R., Bond, G. R., Campbell, K., Rapp, C. A., . . . Finnerty, M. T. (2007). Fidelity outcomes in the national implementing evidencebased practices project. Psychiatric Services, 58(10), 1279-1284.
Salyers, M. P., Bond, G. R., Teague, G. B., Cox, J. F., Smith, M. E., Hicks, M. L., & Koop, J. I. (2003). Is it ACT yet? Real-world examples of evaluating the degree of implementation for assertive community treatment. Journal of Behavioral Health Services and Research, 30(3), 304-320.
Teague, G. B., Bond, G. R., & Drake, R. E. (1998). Program fidelity in assertive community treatment: development and use of a measure. American Journal of Orthopsychiatry, 68(2), 216-232.
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2014 Review Georgia Supported Housing and Bridge Funding United States of America v the State of Georgia
(Civil Action No. 1:10--­‐-­‐CV--­‐-­‐249--­‐-­‐CAP)
Martha Knisley Technical Assistance Collaborative, Inc.
August 15, 2014
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Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 35 of 131
Introduction
This report to the Independent Reviewer summarizes the progress of the Supported Housing and Bridge Funding programs required by the Settlement Agreement in United States of America v the State of Georgia (Civil Action No. 1:10--­‐-­‐CV--­‐-­‐249--­‐-­‐CAP), referred to hereafter as the Settlement Agreement, for the period of July 1, 2013 through June 30, 2014.
Information analyzed for this report was obtained from written documents provided by the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) and the Georgia Department of Community Affairs (DCA); key informant interviews with the amici; DBHDD staff, including interviews with Commissioner Berry, Chief of Staff Judy Fitzgerald and Assistant Commissioner Chris Gault; Department of Community Affairs (DCA) Commissioner Gretchen Corbin and Deputy Commissioner Carmen Chubb and her staff; a meeting with Monica Parker, Director of the DBHDD Division of Community Mental Health, Doug Scott, Director of Housing and five Regional Transitional (housing) Coordinators (Sam Page, Troy McQueen, Sharon Pratt, Jose Lopez and June Stewart) on July 22, 2014 in Macon; and five home visits (randomly selected) with ACT team staff of the Georgia Rehabilitation Outreach (GRO), Grady and Viewpoint in Fulton County on August 6 and 7, 2014.
This report focuses on the State's progress in three areas: 1.) meeting the Georgia Housing Voucher Program (GHVP, sometimes referred to as GHVs or GHV) and Bridge Funding targets by type of housing, number of subsidies funded, target population requirements and bridge funding requirements for the year ending June 30, 2014; 2.) supported housing program implementation for priority target populations, including the state's ability to implement the proposed program for the target population as contemplated in the Settlement Agreement; and 3.) program expansion including the state's progress to meet the July 1, 2015 requirement to "have capacity to provide Supported Housing to any of the 9,000 individuals in the target population who need such support."
Observations and Findings:
1. Housing (GHVP) and Bridge
Funding Georgia Housing Voucher
Program The DBHDD continues to exceed GHVP numerical targets. DBHDD was required to serve 1,400
1
individuals by July 1, 2014 and served 1,649 or 123% of the goal. As of July 1, 2014, 1,094 participants had signed leases and another 241 were in housing search. This is the fourth year the DBHDD has surpassed 110% of the goal.
1
Georgia Department of Behavioral Health and Developmental Disabilities, Georgia Housing Voucher and Bridge Funding Programs SFY 2014 Year in Review (July, 2014). Georgia DBHDD revised their final number of persons served by July 1, 2014 to 1,649 or 123% of goal on September 9, 2014.
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Over 661 properties were under contract and sixty--­‐-­‐four providers were actively serving participants. Participants are living in GHVP arrangements in seventy--­‐-­‐four different counties. The number of properties under contract nearly doubled in the past year increasing from 350 to 661 and the number of providers actively serving participants grew substantially increasing from forty--­‐-­‐five to sixty--­‐-­‐four (30%).
The DBHDD keeps records on referrals from point of "notice to proceed," which is basically the DBHDD Supported Housing Director verifying an individual is eligible for the program and the individual can proceed with housing search. In FY 14, 69% of individuals with a "notice to
2
proceed" had signed leases before the end of the fiscal year . Data is not reported on time from referral to "notice to proceed" but the pace of "notice to proceed" to leases being signed seems within normal range. There were approximately 8% of the leases cancelled, which is slightly lower than the 12% cancelled in the previous year. Not all referrals resulted in individuals getting housing and some individuals were terminated or chose to leave the
3
program during the year. This is typical but it is also important to assess the "churn" rate to fully assess the number of individuals seeking or leaving housing at any given time, the costs associated with the churn rate over time and the program's capacity to manage and reduce the churn rate.
DBHDD met its goal of providing 1,400 supported housing beds. DBHDD exceeded their goal with 1,574 beds available but only 1,141 were reported as occupied on July 23, 2014 which means that, on July 23rd (date of last report), 28% of the beds were reported as not being occupied--­‐-­‐--­‐-­‐either because they were new or were in turnover. Evaluating a churn rate is somewhat complicated when a program is required to establish new leases at the level required in this program. However it is a significant issue and will be discussed further in the recommendations section of this Report.
4
In FY 14, 45% of participants had zero income at entry and the monthly average rental payment was $447.87 down slightly from the previous year; this is a positive step because lower rental payments over time enables the program to increase the number of units that can be leased. Bridge funding was provided to 709 participants in the third year of this Settlement
5
Agreement, which is 169 above the goal of 540 for the year . The average "bridge" cost per participant was preliminarily calculated at $2,347, the same as the year before. Furnishings and first and second month rent account for 50% of this cost and provider fees account for 20%. The remaining funds (30%) are allocated for household items, food, transportation, medications, moving expenses, utility and security deposits and other expenses.
This program’s success in meeting targets appears to be the result of a combination of at least five factors, including the continued allocation of funds for this program necessary to meet
2
The primary reason that only 71% had signed leases is that "notices to proceed" can be issued until the end of the fiscal year and the individual was then signing a lease the following month or in the new fiscal year
3
number of units being leased (new and turnover) and vacated during the year
4
Georgia Housing Voucher and Bridge Funding Program Summary (7/23/14).
5
Georgia DBHDD revised their final number of bridge funding participants to 709 which is 169 above the goal of 540 for the year on September 9, 2014.
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targets, leadership at DBHDD allocating resources for its management at the state and regional level and forging and improving cross systems partnerships including strong relationships with potential referral sources, service providers adopting the supported housing model and improving their skills and the Supported Housing Director and Regional Transitional Coordinators' diligence and understanding of rental housing operations and supported housing requirements. Meeting this target is also related to the well--­‐-­‐documented need for affordable rental housing for individuals who have severe and persistent mental illness and are the target population for this Settlement Agreement.
DBHDD with assistance from DCA methodically tracks their required targets and collect additional data in a timely manner, which enables DBHDD to self--­‐-­‐monitor their performance and better grasp their challenges. From talking with participants at their homes as well as local, regional and state staff on site over the last three years, the DBHDD and their local service agency partners are increasingly informed about the local affordable rental markets, fair housing requirements, consumer choice and accessibility features, which is typically related to success in meeting leasing targets.
In looking forward, the Settlement Agreement requires the program to be expanded by 600 slots by July 1, 2015, which is the same level of expansion that was required in FY 14. This means that next year the program is required to grow by approximately 25% of its present capacity. This also means the program will have doubled in size in two years, if the state meets its 2015 target.
Bridge Funding Making Bridge Funding available to participants is crucial to the success of this program as without this resource many individuals could not get into housing. In FY 14, over $1.9 million was spent on furnishings, first and second month's rent, deposits and household items. Furnishings and rent accounted for 51% of these costs. In addition, over $407,000 was spent on provider fees for managing these funds at the participant level. Seven hundred and nine (709) individuals or 124% of the goal received bridge funding assistance in FY 14. This is $3,140 on average for the number of people who signed leases in FY 14. Bridge funding availability is essential to this program; without it progress would be much slower--­‐-­‐--­‐-­‐--­‐-­‐over 40% of applicants had no income at time of referral.
2. Program Implementation
Program implementation refers to the State's ability to assist individuals in the target population to get referred for housing, get the services and resources they need to access available housing, live in their own homes and become fully integrated into the community. As referenced in last year's report, this task is very challenging. Historically, individuals in the target population haven't gotten opportunities to move into their own home which means staff may not be fully knowledgeable or familiar with supported housing. Likewise, individuals with a severe and persistent mental illness are often labeled “not ready,” “needing structure” or incapable of living on their own. This is true generally not just in Georgia. Or, if given the opportunity, they may get housing but may not be successful in retaining their housing and/or
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remain very isolated in their community. Some referral sources such as PATH teams and some discharge planners have this type of planning built into their job requirements, are more adept and/or cognizant of assisting with transitions; for others, such as correctional personnel, this may be more difficult. Likewise, there are significant barriers to accessing affordable housing at this scale for this target population.
For this review, program implementation was measured quantitatively with program documents (DBHDD and DCA), referral information and housing stability outcomes, other information prepared by the DBHDD and DCA staff and qualitatively through key informant interviews and home visits.
Referrals Referral patterns for the GHVP have remained consistent with patterns from the three earlier years even as the overall number of referrals has increased substantially: from 589 in FY 13 to 921 in FY 14. Individuals who were homeless at the time of referral comprise 47% of all referrals. Referrals from hospitals increased numerically (from 196 in FY 13 to 304 in FY 14) and remained essentially the same as a percentage of the total (from 17% in FY 13 to 16% in FY 14); referrals from intensive residential settings were down significantly as a percentage (16% to 8% from FY 13 to FY 14) but numerically remained essentially the same, 156 referrals from FY 13 to 155 in FY 14. Referrals from families also increased from 8% in FY 13 to 13% in FY 14. As expected, Region 3 had the highest number of referrals (581 or 30%). Referrals of individuals who are homeless from Region 3 accounted for 70% of Region 3's referrals and this number represents 40% of referrals of individuals who are homeless across all regions. Regions 1,2, 4 and 5 have a much higher percentage of referrals from family and friends, 87% of all referrals in this category, and 91% of all referrals in the rent burdened category. Referrals from CSUs (and CAs) and PCHs and GHs remain low, 1% and 6% respectively.
Referrals from jails and prisons increased from "5" over a three year period to twenty--­‐-­‐six in FY 14. But this number is only part of the story. It is difficult for individuals who are incarcerated to get referred, get an ID upon release, make a housing choice, go through an eligibility process(es) and move before release from a correctional facility or jail. For jail releases, the issue is often related to how quickly release decisions are made by the court and often with little or no notice. For prisons, the difficulty is more often related to the reality that individuals are not routinely sent to prisons near their home so it is more difficult to make discharge arrangements if a person is moving across the state when released. Regional Transition Coordinators estimate an additional ninety--­‐-­‐eight individuals (above the number listed above) were released from jails and prisons in FY 14 and were referred to the GHVP within thirty days.
This increase appears to be directly related to the emphasis the DBHDD has placed on these referrals, including DBHDD's work with Behavioral Health Coordinating Council (BHCC) and work at the regional and local level with Sheriffs and Judges, jail and correction personnel and diversion staff in selected jails to develop better transition protocols and referrals. Specifically, Regional Transition Coordinators are forming stronger relationships with Department of Corrections personnel at Valdosta and Zebulon and in the Fulton and DeKalb jails along with Atlanta Legal Aid. Regional Transition Coordinators and providers have become very
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resourceful first in getting referrals so individuals can move directly into housing when released. The Coordinators tell individuals who qualify for the program or corrections personnel know to call them as soon as a person is released (in situations where they know they may not be able to make a direct referral) so they can at least complete the referral process at that point. Sometimes providers also help individuals find a place to stay while supported housing arrangements can be made.
DBHDD is employing a "housing first" approach for many individuals being referred, meaning referrals come directly from homeless outreach, from hospitals, CSUs or intensive residential programs without first being "transitioned" through group living arrangements. As referenced last year, DBHDD has not made a policy decision that people need to live in "structured" settings first before moving into supported housing arrangements. However, a "brief" transition may have long term benefits especially for jail and prison referrals. In addition, DBHDD should continuously re--­‐-­‐evaluate if any sub--­‐-­‐population or "status" group is being under referred consistently such as individuals with a forensic status at admission to a state psychiatric hospital. This item will be discussed later in the Recommendations section.
The second group of referrals are individuals residing in group or personal care homes. Combined, these groups only represent 7% of the referrals to the program. While it is true these settings are more community like than larger institutions, they have often been referred to as “transitional” when in reality people stay there because they or their providers do not believe they are capable of living in their own home.
The DBHDD has entered into a working relationship with the VA Homeless Veterans programs to assist individuals in the Settlement target population who qualify for VASH vouchers to get a VASH voucher rather than having to use limited GHVP resources. However, most homeless veterans could also qualify for Support Services for Low--­‐-­‐income Families (SSVF) thus gaining access to resources including security deposits and back rent. In FY 13, five organizations in Georgia were awarded over $5.5 million combined in SSVF funds and these resources are expanding each year. In FY 14, fifty--­‐-­‐three individuals got $24,672 in Bridge funding. In FY 15, DBHDD should explore the potential to reduce this funding to only individuals who do not qualify for SSVF funds. The DBHDD has consistently maintained good working relationships with CoCs. CoCs and local homeless programs have benefitted from the GHVP because otherwise they would have had to tap their scarce resources for rental assistance (when available) for individuals who were homeless. In FY 14, 880 individuals who were homeless were referred for a GHV.
Section III.B.2.c.ii(B5) of the Settlement Agreement requires the state to "provide housing supports for approximately 2,000 individuals in the target population with Severe and Persistent Mental Illness (SPMI) (by July 2015) that are deemed ineligible for any other benefits..." This section has been repeatedly referenced in earlier reports, as many individuals in the program are eligible for other benefits. Individuals not having benefits when referred is not the same as their being ineligible for benefits. It is also the case that getting into the GHVP helps a person be in a better position to get benefits, in part, because if a person isn't stably housed, their getting through the eligibility and award process is often more difficult.
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It is to DBHDD's benefit to build strong reciprocal working relationships across systems, even those with housing resources. However, the state may want to consider a policy that the GHVP is always the last not first option, thus assuring GVHP resources are available to those who are going to be deemed ineligible for other benefits.

Housing Access and Stability Housing stability is measured by DBHDD at the six month mark, which is the same measure HUD uses to measure housing stability (# < 6 mos leaving/ # > 6 mos in housing). HUD's standard is 77% at that mark and the state was at 92% or 15% above that mark for new tenants in each of the first four years of implementation. DBHDD also set their own standard for reengagement of "negative leavers" at 10% and has exceeded that standard by 7% with 17% of negative leavers being reengaged in FY 14. HUD uses this standard to measure Public Housing Authority performance but not necessarily to measure stability of renters. In addition to measuring tenure, it is also essential to monitor negative leavers for trends.

As previously referenced for purposes of this Settlement Agreement, it would be helpful to

measure stability for the short term but to assess tenure over the long term and measure the

performance of the program. In FY 14, DBHDD reported on longer term housing stability as

follows:

FY 2011 Program Participants: 89 out of 117 76%

FY 2012 Program Participants: 384 out of 505 76%

FY 2013 Program Participants: 318 out of 375 85%

FY 2014 Program Participants: 548 out of 577 95%

Total Placed:

1,339 out of 1,574 85%

Even though it is difficult to make comparisons across states, these longer term percentages are within the acceptable range for a state funded housing first supported housing program. With transitions to the DCA HCV program, the GHVP percentage dips to 85% when it is actually closer to 90% over four years. Maintaining 85% is a desirable long term goal.

Taking supported housing programs to scale across an entire state is a very daunting task. It becomes an even greater challenge if the program experiences a great deal of turnover or if referrals are slow, which can happen if referring organizations are either not well organized or not convinced the program can work for the target population. Or this may happen because of the paucity of quality affordable housing in many communities, many individuals not meeting background requirements for leasing their own apartments or some owners not being willing to include utilities in rent which would enable more individuals with "zero income" to get into units under the Fair Market Rent (FMR) rent threshold.

DBHDD reports that nearly 45% of participants have zero income at time of entry into the program. Some owners will rent to GHVP participants but only if they can get rent above FMR and in some communities there is a limited stock of acceptable multi--­‐-­‐family rental units. As stated above, DBHDD is firmly committed to "housing first" and is making a good faith effort to make this work but housing supply and zero income obstacles have to be overcome to make
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this happen even when DBHDD and providers are willing to transform their approach to make "housing first" more real.
Providers are challenged with shifting their staff's skills to supporting individuals in their own home. This is a result of their not having done much of that type of work before or because they are much more accustomed to operating group residences, which requires different skills sets, approaches and knowledge. Often this is described as providers having a different philosophy, believing in a continuum approach, where people move from institutions or homelessness to group residences where they are "supervised" or need "structure" before moving on their own. Regardless of the reasons, skills and knowledge or philosophy, the need for a consistent presence (DBHDD Regional and state staff), training and coaching can close the gap between the desired outcomes of this program and current provider knowledge, skill and philosophical differences with this approach.
One reliable qualitative measure for assessing program implementation comes from interviews and site visits. In 2013, this reviewer made three home visits with three relatively new GHVP residents in the Savannah area served by a Gateway ICM team. This year, five home visits were conducted in Fulton County; participants selected are served by three different agencies providing ACT services in Fulton County: Grady, Viewpoint and GRO. In 2013, the DBHDD arranged the home visits. This year participants were randomly selected. The selection was stratified to assure visits would be conducted with at least one person who had been referred from a jail or prison, one who was homeless and one referred from a hospital. Selection was also stratified by agency and by gender. Chris Gault, Assistant Commissioner at DBHDD accompanied the reviewer on each visit and at least one staff person from Viewpoint, GRO or Grady met the reviewer at the person's home. The 2013 visits revealed important essentials about the program described through the narratives of the participants; the same occurred with this sample.
The participant's life situations were highly individualized but participants expressed common goals and challenges and their histories had common themes. There were also similarities to the 2013 sample:
x All five participants had multiple periods or an extended period of homelessness, hospitalizations and/or residential treatment. Three out of five were either jail referrals or had been incarcerated in the recent past.
x Several self reported histories of drug and alcohol abuse and recovery were an essential element of their recovery. In both years, one of the participants was relying on AA and/or NA for their major support system.
x Most had few possessions and had lost their possessions. They were all improvising and problem solving to survive and get on with their lives despite a lack of resources; several having to struggle to get an i.d., appealing to get SSI or, in one situation, having to report to a jail release program daily after being convicted of two felonies and
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several misdemeanors. MARTA was their major transportation source and all reported getting "rides" from an ACT team member or, in one case, family.
x All mentioned they were cooking for themselves although their diets seemed limited; two individuals were living at Welcome House where there was a shared kitchen and one found a way to get some meals while attending several programs.
x Getting a job was a high priority for three of the individuals as it had been for two participants in the group seen last year. Losing SSI benefits did not appear to be a deterrent. Several reported either getting help from the ACT Team's job specialist or knowing help was available and one participant was hoping to get certified as a Peer Specialist.
x Most described acquaintances but nearly all appeared isolated either by choice or necessity. While there wasn't time in the interview nor would it have been appropriate to explore in depth, several participants in both this and last year's group had likely experienced highly abusive situations and/or had suffered trauma.
x Two individuals were living at Welcome House, a 209 single and double "room" unit building with shared kitchens and bathrooms located in downtown Atlanta for very low income single adults. Welcome House does not meet all of the desired characteristics of supported housing as referenced in the Settlement Agreement or any standard definition of supported housing although it does fill a niche for "short term transitions" for individuals who have been homeless, in jail or shelters for a short period of time.
Welcome House is staffed 24 hours a day with some limited programs. The facility is well maintained and operated by Project Interconnections. The two gentlemen we visited were there primarily because they could not yet qualify for GHVP. One was having difficulty getting documentation but a Judge denied his request to change residence. Welcome House is a safe decent place where people can live temporarily until they can get access to Supported Housing, it fills a niche for short term rental housing and seems appropriate that individuals can live there for a limited period of time particularly if they are transitioning quickly into the GHVP. However, a "single room" is not an apartment. It is recommended that an exception policy be developed for use of GHVP funds for rent at any facility similar to Welcome House that doesn't fully meet the Settlement Agreement definition of Supported Housing. It is further recommended that criteria for what type of housing qualifies for this purpose be developed.
The individuals we visited have experienced failure and either periods of homelessness, hospitalization, residential treatment and/or incarceration. They clearly fall into the target population and without help and support--­‐-­‐--­‐-­‐both formal and informal--­‐-­‐--­‐-­‐ they will experience many more difficulties and life challenges. For different reasons, they are all good candidates for supported housing; they would not likely succeed or stay long in more traditional group
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residential living. Perhaps the most isolated and least verbal participant was clear about not liking attending a day program previously. However, all five will need expert medical and psychiatric treatment, recovery and personal support. At least one individual could benefit from psychotherapy. Most are good candidates for peer support and one could be a good candidate to provide support in a "wellness" setting.
As reported in 2013, peer support would need to be tailored because while one person we visited needs support to maintain sobriety, one participant needs support from someone who can help him overcome traumatic life events and another wants to be active with the Wellness Center in Decatur. In each of their situations, housing is a stabilizer but won't be enough for them to succeed. Only one of the five appears to have a major chronic medical condition.
One other issue surfaced during the site visits. Staff, including a program supervisor, of one of the Fulton County ACT providers were significantly challenged with understanding and being able or perhaps interested in incorporating basic recovery, person centered planning core principles and best practice supported housing interventions into practice. Staff repeatedly referenced a person we were visiting as needing "structure" before he would be "ready" to move into housing. During a discussion before we met the person served by this provider, staff referenced the person as not making any progress with hygiene and "ADLs", not being safe to "live on his on" nor ready because he apparently gave food away when living on his own earlier. The staff's approach to the person revealed that staff had done little to build a trusting relationship or to understand what assistance he needs to transition from being incarcerated for ten years. The consumer's hygiene appeared satisfactory and, when given the opportunity, he was able to verbalize some simple goals. If explored, these goals could form the basis of his recovery plan. It has been reported that this provider is meeting basic ACT requirements (DACTs). However, DBHDD should determine if this provider's performance meets basic provider expectations going forward and determine if consumers being served by this provider are being provided an acceptable level of service.
This incident, coupled with this reviewer's overall impression, points to DBHDD needing to take additional steps to monitor supported housing provider performance beginning with doing supported housing fidelity and quality reviews that include routine site visits. This type of review should not be done separately from an ACT, ICM or Supported Employment review as these services are inter--­‐-­‐ connected. For example, person centered planning, motivational learning, community skills development don't have service boundaries--­‐-­‐--­‐-­‐interventions are approached the same across three different services, only the specific tasks or points of reference change. This is also covered under the Recommendations section of this report.
Provider Capacity As referenced above, the behavioral health care system must have the capacity to provide recovery--­‐-­‐oriented services and in--­‐-­‐vivo supports that are focused, highly individualized and well organized. If the system has this capacity, supported housing is a means for consumers to meet their life goals. ACT provider capacity is complicated because by definition, individuals qualifying for ACT services have likely not been as willing to be engaged in treatment, have had
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more prolonged and severe psychiatric symptoms, experienced more catastrophic life events and whose recovery is more challenging because they lost so much in their lives, in some cases their cognitive skills or often their health, and often are alienated from their families. Recovery is a long and sometimes uneven process which is why ACT services are designed and reimbursed to serve people with higher levels of need. This does not mean ACT clients should not be referred for Supported Housing--­‐-­‐--­‐-­‐--­‐-­‐just the opposite is true.
ACT staff must apply their engagement, motivational and cognitive re--­‐-­‐structuring skills among other skills to assisting a person to get and keep their housing. Individuals served by ACT are less likely to have funds, will need assistance to get disentangled from the criminal justice system, need assistance to restore their identify and re--­‐-­‐gain their motivation if they have been homeless, incarcerated or institutionalized.
As referenced in 2013, DBHDD recognizes the need for providers to receive ongoing training and support to be successful. Supported housing practice and skills training needs to be embedded into training planned for ACT, ICM and CM--­‐-­‐--­‐-­‐not compartmentalized and separated. If supported housing is considered "outside" or an "add on" rather than an integral part of their work, it will be less effectively implemented. ACT, ICM and CM providers will need to consider what "practice changes" they need to make to successfully assist people to move into housing, get jobs and keep them. It is even more apparent now that DBHDD's supported housing program can not be so separated organizationally or in its operations, provider expectations, including performance, and quality review approaches.
3. Program Expansion
Perhaps the greatest challenge in meeting and sustaining Settlement Agreement supported housing targets is taking supported housing to scale so individuals with SPMI who need supported housing will have access to it. Georgia's obligation in the Settlement Agreement is that "By July 1, 2015, the State will have the capacity to provide Supported Housing to any of the 9,000 individuals in the target population who need such support. The Supported Housing required by this provision may be in the form of assistance from the Georgia Department of Community Affairs, the federal Department of Housing and Urban Development, and from any other governmental or private source."
This section includes a summary of program expansion in FY 14 and a summary of Georgia's progress and plans to meet the above referenced obligation. It includes references to a "Supported Housing Capacity Report to the Georgia Department of Behavioral Health and Developmental Disabilities " conducted by the Technical Assistance Collaborative at the request
6
of DBHDD to assist the DBHDD to assess the "State's capacity to provide supported housing to the target population in the settlement Agreement", "how to define who" is in need of
6
This reviewer is employed by the Technical Assistance Collaborative but did not participate or contribute to this report, reading it only after it was submitted to the DBHDD. The reviewer did participate with the Independent Reviewer in recommending the scope of the review.
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supported housing and "define areas for training for DBHDD Regional staff and providers on
7
issues related to permanency and preservation for the Settlement population" . The Report does not estimate need but rather what needs to be considered and defined to assess and determine need. References to information and recommendations of the report will be noted as such. A copy of this report is attached.
Additionally it is important to recognize that Georgia, like most states, is experiencing challenges in the availability of decent, affordable, accessible multi--­‐-­‐family rental housing. PHA budgets remain tight and, as reported last year, rental housing prices are continuing to rise. The monthly cost for a one bedroom market rate rental unit in Georgia is equal to 93% of an individual's SSI monthly check and in the Atlanta and Savannah Metropolitan Statistical Areas
8
exceeds 100% of an individual's SSI check. In many rural Georgia communities, Regional Transitional Coordinators report there is simply not available affordable, decent multi--­‐-­‐family rental stock. These issues have to be carefully considered when measuring the state's ability to secure affordable housing for the target population.
Housing Resources The DCA Housing Choice Voucher Program (DCA HCVP or HCV) expansion began two years ago and provides needed housing resources in areas of the state where these resources are the primary HCVs available. In 2012, the Georgia Department of Community Affairs (DCA) received approval from the US Department of Housing and Urban Development (HUD) to provide preferences in the HCVP for individuals with "specific disabilities” identified in this Agreement. This approval is in force until July 1, 2015 and DCA has agreed to allow this preference for up to 50% of their turnover units (DCA's total HCV capacity is 16,936) during this period of time. This is a significant opportunity but comes with several challenges. One, the DCA HCV program operates mostly in rural areas. Rural counties have both fewer staff resources to undertake such a program and during the past two years had lower turnover than anticipated. By the end of FY 2014, only 113 individuals had been transitioned to this new program and, at this rate, less than 250 people would be able to take advantage of this program by July 2015. The program is more complex to operate and access than the GHVP. As a federally funded rental program, it has more requirements than the GHVP and is more cumbersome to navigate, regardless of current attempts to simplify for this Settlement Agreement. But both DCA and the DBHDD had hoped for a much higher number of referrals.
Initially, the number of GHVP rental units were not meeting required Housing Quality Inspections (HQS) at the time the units were to be transitioned from the GHVP to the DCA GHVP as required by HUD for HCVs. There was a problem with the number of units that were being rented in the GHVP above maximum (110% of Fair Market Rent) rent payment standards. Both of these problems have been reduced; however, the HCV transitions have been slower than expected. Historically, providers have conducted the GHVP housing inspections rather
7
"Supported Housing Capacity Report to the Georgia Department of Behavioral Health and Developmental Disabilities": The Technical Assistance Collaborative, July 2014. 8 Priced Out , The Technical Assistance Collaborative, 2012
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than trained, certified HQS inspectors. DCA reports that the inspection process has improved but with the increase of providers and property managers/landlords, it is recommended the housing inspections for the GHVP and the DCA HCV be managed by the DCA. Paying higher rents helped the DBHDD lease up the GHVP faster but it came with a downside when attempting the transition. Other steps have been taken to intensify the referral process and to ensure that Regional Transition Coordinators and service provider staff are fully cognizant of the HCV requirements and able to make timely successful referrals.
The June 2014 GHVP--­‐-­‐HCVP summary revealed that, in some months as few as one to two applications were submitted but there were 26 applications submitted in June 2014. The number converted was six or less each month for the past eight months. More referrals have been submitted from Region 1, 2, 5 and 6 where the DCA HCVs are more available. The summary reveals that HCV applications are submitted very slowly and that there is a fifty day gap between when a HCV application is signed by an applicant and when DCA receives the application from a provider. It takes on average another twenty--­‐-­‐seven days for a voucher to be issued by DCA. At the time of the June report, 198 applications had been received by DCA with thirty--­‐-­‐one being processed and fifty--­‐-­‐one either having been withdrawn or terminated. DBHDD and DCA held a "boot camp" in FY 14 for Region 4 providers, regional staff and DCA staff to map out responsibilities and action steps and set targets for leasing within a specific time frame--­‐-­‐--­‐-­‐ their referrals increased dramatically thereafter. DBHDD is planning a second "boot camp" in FY 15.
Working agreements with CoCs, PHAs, the DCA and the VA Four groups, Continuums of Care (CoCs), which are homeless services planning consortiums, Public Housing Authorities (PHAs), the Veterans Administration (VA) and the DCA, have access to plan, plan for and/or fund affordable housing. DBHDD and DCA are working jointly on CoC partnerships and DBHDD has taken significant steps to increase referrals to the VA's VASH program. As referenced above, the DBHDD made an agreement with the VA to use Bridge funding for some VASH referrals. Both the DCA and DBHDD work with local CoCs to create more housing opportunities. The DBHDD and DCA have also agreed to step up their efforts to engage local PHAs to also enter into "preference" agreements with HUD to access HCVs. This would likely need to happen on turnover in the same manner the DCA HCV program is operating. DCA has considerable leverage with PHAs and should take the lead in this endeavor. HUD is more likely to agree to this type of arrangement while Georgia is still under a remedial agreement with the Department of Justice so the initiative should be a priority for FY 15.
In FY 2013, Georgia was one of the first thirteen states to be awarded an 811 PRA Demo award. This program will be managed by the DCA but DBHDD is a full partner in this new modernized 811 program. The program is slated to get started this fall. DCA will receive funds for 150 permanent project based rental subsidies. Therefore, individuals in the target population will have access to project based rental assistance in selected tax credit properties through a partnership agreement with DCA. While the 811 PRA program is a great opportunity, it is also somewhat complicated to implement, especially to ensure that referrals of individuals covered by the Settlement Agreement are made in a timely manner. DCA projects this target
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population will get 50% of the PRA 811 assistance. After a review of the application protocols, this percentage appears highly doable, but not without a great deal of work by DBHDD at all levels. It is also important that the criteria for the referral process requirements be communicated to owners and property management in sufficient detail to ensure that consumers have a choice of provider, that services are not mandatory and that they are delivered consistent with Settlement Agreement requirements.
Infrastructure and Program Capacity DBHDD has built a solid infrastructure for the GHVP and Bridge Funding program. Sixty four contract providers are delivering services to people moving into newly developed (or turnover) housing arrangements in 661 different properties. The state is required to expand the program by another 600 units in FY 15. Taking these programs to scale, sustaining them is requiring expanded infrastructure, increased provider capacity and performance, the ability to secure additional safe, decent affordable rental units. The infrastructure issues and overall scalability of the program is heightened exponentially when the state begins adding additional housing resources including, but not limited to, the DCA HCV, additional PHA HCVs and 811 PRA.
DBHDD staff recognize that their current Supported Housing program needs to evolve and expand to meet the demands of the program and the Settlement Agreement. DBHDD housing staff, as reported previously, carry out duties ranging from filing, assuring monthly rent obligations are paid, working with staff in each region--­‐-­‐--­‐-­‐both Regional staff and providers on routine matters --­‐-­‐--­‐-­‐ plus trying to make and manage new housing connections to enable the program to grow. The GHVP doubled in size in the last fiscal year and is required to do the same again this year. In addition, DBHDD and providers are required to do housing eligibility re--­‐-­‐determinations annually, which adds to the ever expanding workload. A staff person has been added to the DBHDD program to assist with this effort.
Perhaps the most encouraging sign of the DBHDD capacity to achieve its targets and sustain the program is the increasing capacity and performance of the Regional Transition Coordinators. They were key to DBHDD successfully managing the GHVP growth over the past year, increasing jail and prison referrals and building stronger ties with landlords and property managers. They are cognizant of housing specific matters such as the variance in quality and availability of multi--­‐-­‐family housing in their region, the steps that need to be taken to transition a person from a GHV to a DCA Housing Choice Voucher. They are adept at handling eligibility requirements, working with providers to improve their performance and working with referral sources to solicit their support in transition plans. Although there isn't quantitative data to back up this assertion, they appear to be one, if not the primary, reason for the program exceeding at this higher level of performance, especially in Regions with fewer resources and the greater need for more "creativity" to make the program successful.
Achieving a higher level of supported housing capacity requires constant relationship building, and a well organized and executed cross service initiatives, cross systems plan. Each group/ organization has different requirements (statutory, regulatory and local), management staff at the state and local levels, mandates and housing contract arrangements. As referenced in last
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year's report, tracking and ensuring people get routed to programs that they qualify for and that match their needs will likely require even more sophisticated technology and staff support at the state and regional level than is currently in place even with the current program operating at a very high level. The Regional Transitional Coordinators already play a huge role in this endeavor. Supported Housing cannot be an insular operation. Based on this review, service providers need to perform their tasks at the highest level possible with less separation across ACT, ICM, Supported Employment, Peer Support and Supported Housing and DBHDD leadership will need to continue to embrace cross system partnerships and operations. There are limits to the success of in--­‐-­‐house operations.
Recommendations
The findings section of this report refers to a number of issues that merit recommendations. There are a number of recommendations embedded in the findings section. Below is a summary of seven broad recommendations:
1. Further develop and sustain Supported Housing capacity through the DCA--­‐-­‐DBHDD Partnership: The state has made good progress to develop capacity but creating capacity for up to 9,000 individuals in the target population who are in need of supported housing is a daunting task that requires multiple strategies. It begins with sustaining the program at the level required by this Settlement Agreement in 2015.
There are many small or incremental steps DBHDD and DCA can take to achieve capacity. This reviewer discussed those with DBHDD and DCA during two site visits in July and August 2014. Below are recommendations for the two agencies to increase housing resources for the target population and to sustain capacity to the highest attainable level possible:
A. DBHDD and DCA should establish a broad written memorandum of agreement to include a set of "actionable" goals to take effect prior to June 30, 2015 to meet current commitments and expand Supported Housing resources in at least six areas as follows:
1.) DCA should request an extension of the HUD approved Remedial Tenant Selection Preference Agreement to enable the state to meet their future Olmstead obligations including meeting capacity of up to 9,000 individuals with SPMI as defined in the current Settlement Agreement. The DCA and DBHDD should set targets for this extension.
2.) DCA should request Public Housing Authorities to consider a modest set aside of turnover HCVs over a three year period per the TAC report (in addition to the preference arrangement referenced in the 2014 DCA QAP) to further the state's ability to meet its Olmstead obligation and goals.
3.) DBHDD should examine their current working agreements (across each initiative) and refine them to assure adequate resources are in place to maximize the HUD approved Selection Preference Agreement, to meet the 2013 811 PRA and the 2014 811 PRA (if
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awarded) requirements and to meet any additional arrangements to implement the 2014 LIHTC program Integrated Supported Housing and Target Population Preference.
4.) DCA should assure that each project awarded Low Income Housing Tax Credits implements an Affirmatively Furthering Fair Housing Marketing Plan that meets the intent of the DCA policy for owners/property managers to affirmatively market units to the SPMI population as "tenants with special needs." This includes each selected LIHTC Applicant providing reasonable accommodations for tenants with special needs who are also in the Settlement target population.
5.) DCA and DBHDD should continuously evaluate the need for expanding housing resources. For example, the number of projected units that can be set aside or targeted for the target population following the awarding of 2014 LIHTCs and HUD's awarding 2014 811 PRA will be known later this fall. This will give the DCA and DBHDD a more precise idea of their potential expanded capacity for at least the next 24--­‐-­‐36 months depending on award and production schedules. At that time, DCA and DBHDD should examine what additional options they could pursue with the LIHTC or other programs.
6.) The DCA should assume responsibility for GHVP inspections, which consolidates this function in one place. There may be other functions that need to be consolidated across agencies to maximize sustainability as the program continues to grow. For example, 811 PRA referral processes should be the same or as similar as possible with HCV referrals; DCA and DBHDD should work out how housing search will work simultaneously across these two programs.
2. DBHDD should request an expansion of the GHVP and Bridge funding for FY 2016 to narrow the gap between projected need and the capacity to sustain the Settlement Agreement gains.
3. DBHDD should assess the potential for increasing referrals from hospitals, intensive residential settings, group homes and personal care homes. The number of referrals from hospitals and intensive residential settings has increased but the DBHDD depends on referrals from discharge planners and may be unaware of the potential for more referrals. DBHDD should be constantly targeting these settings for referrals. The same is true for personal care and group homes where low numbers of individuals being referred may or may not reflect the true need or that consumers are given a choice to move. It may be more a reflection of perceived "readiness" or concern on the part of providers that they may lose revenue. Arguably, individuals living in stable living situations would be lower priority in most systems; however, to not provide the opportunity is denying a person a choice of living situations. Therefore, reviewing the potential for more referrals based on true need and choice as well as the long term potential for conversion of resources is recommended.
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4. DBHDD should assess need. Assessing need for supported housing is a complex process and many factors need to be taken into consideration. These include: a.) the extent to which individuals are already living in supported housing or stable housing integrated into the community; b.) the number of individuals who qualify for supported housing actually choosing housing options such as living at home with family or finding a place of their own to live; c.) the extent to which individuals are routinely given the opportunity to choose supported housing rather than a more segregated option including remaining where they are living; and d.) the extent to which providers are skilled and knowledgeable about assisting individuals to learn how to access housing and live successfully in their own home "after" not "before" they move in. Sometimes opportunity is related to a person's "perceived" need by a referral sources or their provider and sometimes it is related to a person refusing services and not being aware of this opportunity.
TAC explored these issues with DBHDD. TAC's assessment of these issues was thorough and provocative in a positive sense. DBHDD must now decide how they will proceed with determining need. DBHDD will have to put a system in place to assess housing need routinely, keeping four issues in mind. One is that individuals be given "informed choice" in selecting among options of where to live on an ongoing basis beginning when individuals are identified for services whether they be hospitalized, in an CSU, are homeless, incarcerated or living in a group or personal care home. This will require DBHDD to establish a process whereby individuals living in group settings are given the option for supported housing.
The second is to establish objective criteria for determining the need to reduce potential bias toward individuals being placed or having to stay in more segregated settings longer than necessary. TAC provided a method and a criteria based approach. Experience would indicated that individuals across four LOCUS levels of care (1--­‐-­‐4) could be successful in their own home given the right level and type of support. It is also assumed a number of individuals at Level 1 would not need supported housing but could live successfully on their own.
Third, supported housing should be voluntary and made available to individuals regardless of their willingness to participate in any services program and housing opportunities should not be tied to any one provider. From experience it is assumed that well over half of the 9,000 individuals will qualify for supported housing but likely fewer in the 40--­‐-­‐50% range will choose options other than supported housing.
Fourth, a review and ongoing process will need to be established to determine a more precise estimate over time. Until actual supported housing choices are available and housing offers made, the actual need will not be fully known. Even then, there may be mis--­‐-­‐ matches between available housing (especially with such geographic differences in available, quality rental stock) and consumer choice. Needed capacity may always be somewhat of a theoretical construct even when resources are increased to match the perceived need.
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According to DBHDD 4,500 individuals have accessed Settlement services to date. Estimates vary slightly between DCA and TAC on what supported housing resources are currently available but the number is approximately 4,700 when counting the GHVP, the DCA HCV, S+C and HOME programs, not including individuals with local PHA HCVs or individuals with VASH vouchers or HOWPA assistance. Assessing the projected program growth conservatively, it appears that with 811 PRA, GHVP FY 15 and DCA HCV additions capacity will definitely increase by 825 in FY 15 (assuming 811 PRA is implemented within that time period) bringing the total capacity to 5,525. If DCA and DBHDD are successful in securing additional remedial DCA and local PHA preferences, 811 PRA, VASH expands in FY 16 and FY 17, capacity could increase to approximately 6,000. With a 5% turnover annually, another 100 to 200 individuals could access housing although this does not increase net capacity.
5. Quality and Performance Improvements. This report provides relevant touch points for success of this initiative. These can be addressed individually but it is recommended the DBHDD put a quality management plan structure in place that includes performance goals and targets. The DBHDD Supported Housing program already complies data and tracks leasing performance, sustainability and referrals but this plan should not be isolated to the DBHDD Supported Housing unit or to DBHDD functions. It should include either service provider fidelity or quality reviews that include random routine site visits. Some items such as shortening the length of time from referral to "move in" should be done jointly with DCA, targeting an increase in the number and type of referrals or successful implementation of the PRA 811 initiative are examples of other options. Developing this type of approach is also a good vehicle for an annual review of the program's progress and for assessing and demonstrating substantial compliance with the Settlement Agreement.
6. DBHDD should establish a process for supported housing referrals for individuals with developmental disabilities and those with co--­‐-­‐occurring mental illness and developmental disabilities. Many individuals with a developmental or intellectual disability are good candidates for supported housing and it is recommended a plan be made for these referrals in FY 15.
7. Make certain GHVP is a resource of last resort. The state has made reasonable efforts to assist individuals to qualify timely for benefits including SSI. However, as referenced above, there have not been any specific steps taken to assure that individuals being provided housing support have been "deemed ineligible for any other benefits." Individuals may not have been enrolled or made eligible at the time of referral, which is a different but important distinction, and steps the state has taken to ensure individuals get enrolled should not be overlooked as an important step to making Supported Housing possible for more individuals with SPMI. However, it is also important that individuals not going to be made eligible under any circumstance be given the first opportunity for supported housing assistance. Housing resources are limited and it is possible, not always easily, for individuals who are eligible for SPC, VASH or HCVs to get access to those other resources. The GHVP should always be "last dollar" unless getting into a stable housing setting is necessary to get
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a HCV. DBHDD should create and promulgate a policy to adhere to this requirement. 8. Develop stronger ties across DBHDD programs. In last year's report, a recommendation was
made to link the ACT, Supported Employment and Supported Housing strategies, operations, requirements, care management, fidelity or other reviews, expectations and/or training to build stronger ties among these initiatives to improve overall performance and outcomes. This year's site visits amplify the urgent need for stronger ties across these initiatives. The Assistant Commissioner's office at DBHDD should be the focal point for this work. In addition to combining the above referenced initiatives, it also is important to include Peer Support and Wellness opportunities in this mix. Individuals moving into their home are continuously making decisions about how they will organize their day, find ways to integrate back into their community, establish relationships and a support network. Some may be leaving very structured settings where decisions and daily routines were established for them or exiting homelessness where few if any opportunities existed. Most individuals express wanting more flexibility and opportunities in their lives but are challenged to make this happen--­‐-­‐--­‐-­‐peer support is often the most effective, least obtrusive means for helping people sustain their housing and lead even more successful lives in the community. Lastly, perhaps the most revealing information from this review was the uniform response from staff and participants of the value of Georgia's Supported Housing Program. This resource is viewed by consumers as not just a rental program but a raison d'être for optimism for their future, often even after many failed attempts to live on their own in the community. Staff share this optimism. In July 2013, this reviewer visited three men in the Savannah area, all with significant disabilities; all three are still living in their home, doing well and at least one has a job. Their hope for their future becoming real. Georgia is setting high goals for this program, they are methodically achieving their goals all the while recognizing that instilling hope is the highest goal of them all.
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Supported Housing Capacity Report to the Georgia Department of Behavioral Health
and Developmental Disabilities
Final Report July 2014 Completed by:
Marie Herb, Patti Holland, and Kevin Martone
Technical Assistance Collaborative Completed for:
Georgia Department of Behavioral Health and Developmental Disabilities

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Table of Contents
Executive Summary ................................................................................................................... 2 Section One: Background and Approach ................................................................................... 6 Section Two: Housing Capacity Assessment ............................................................................. 7 Section Three: Housing Opportunities and Capacity .................................................................22 Section Three: Determining “In Need of Supported Housing”....................................................27 Section Four: Training areas to strengthen DBHDD’s ability to work with providers to maximize access to supported housing opportunities and promote housing permanency and preservation. .................................................................................................................................................32 Appendix A: PHA Programs in Georgia.....................................................................................35 Appendix B: Income of renters in HOME-funded rental housing................................................40 Appendix C: Section 811 Supportive Housing Grants for People with Disabilities .....................41 Appendix D: Section 202 Supportive Housing for the Elderly Program......................................43 Appendix E: Other Federal Resources ......................................................................................45

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Executive Summary
Background
In October 2010, the State of Georgia and the U.S. Department of Justice entered into a Settlement Agreement. Conditions of the Settlement Agreement require the State of Georgia to assist 9,000 people with mental illness who have co-existing medical, behavioral health, and/or co-occurring substance use disorders who are currently served in the State’s hospitals, frequently admitted to state hospitals, frequently seen in hospital emergency rooms, chronically homeless, and/or being released from jails and prisons and people with developmental disabilities transitioning from institutions or who are at risk of institutionalization.
To assist the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) in its on-going efforts to help the State meet the terms of the Settlement Agreement, DBHDD contracted with the Technical Assistance Collaborative (TAC) to undertake an assessment of the State’s capacity to provide supported housing to adults with serious and persistent mental illness (SPMI) who are part of the target population in the settlement agreement. As part of the engagement, TAC proposed to provide consultation to DBHDD regarding how to define who among those accessing settlement services is in need of supported housing and identify areas of training for DBHDD Regional Staff and providers on issues pertaining to housing permanency and preservation for the settlement population. TAC’s scope of work for DBHDD under this contract was limited to assisting DBHDD in defining “in need of supported housing”. It was not intended to estimate numbers of consumers covered through the settlement who are in need of supported housing.
Review of federal and state housing resources in Georgia
Through strategic planning and interagency collaboration, the State of Georgia has been successful in securing supported housing capacity available to meet the needs of individuals served by the settlement agreement, and it appears that many settlement class individuals are already accessing supported housing. The report identifies a potential pool of approximately 6,910 affordable housing units that could provide housing for eligible settlement class individuals “in need of” supported housing.
In the next three years it is estimated that over 4,000 persons will have access to affordable housing made available through rental assistance provided through the Georgia Housing Voucher Program (GHVP), a Department of Community Affairs (DCA) Housing Choice Voucher, DCA HOME Tenant Base Rental Assistance (TBRA), or U.S. Department of Housing and Urban Development (HUD) Section 811 Project Rental Assistance (PRA) in a DCA-financed Low Income Housing Tax Credit project. In addition, eligibility requirements for existing programs indicate a high likelihood that these resources are already housing a certain number of persons covered by the Settlement Agreement. With turnover and continued collaboration, it is likely that these resources will continue to be available for individuals in the settlement class.
Given the overlap in eligibility criteria for existing programs and units, TAC estimates that over the next three years approximately 1,300 persons covered by the Settlement Agreement will be
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housed by the HUD Continuum of Care (CoC) Program for homeless persons with disabilities, existing HUD Section 811 housing for persons with disabilities or HUD Section 202 housing units for elderly and disabled individuals. Finally, with strategic and targeted outreach and engagement, the State could secure additional set asides or preferences with other Public Housing Authorities (PHAs) or Participating Jurisdictions (PJs). For example, the report suggests that by working with only three PHAs and two PJs, it is estimated that an additional 1,470 units could be secured.

The following chart summarizes the Supported Housing potential capacity in Georgia over the next three years. A more detailed analysis and description of each available affordable housing program is discussed in Sections One and Two.

TOTAL SUPPORTED HOUSING CAPACITY

Existing resources dedicated to settlement population
Estimated capacity of supported housing currently housing individuals covered by settlement
Potential additional capacity through additional preferences
Total Capacity

Current 1660
1660

Year 1 1,115

Year 2 656

Year 3 633

1,250

63

63

510* 2,875

480 1,199

480 1,176

Total 4,064
1,376
1,470 6,910

* INCLUDES 30 UNITS THROUGH HOME FUNDS, TABLE 15, PG. 26
Despite the fact that there is supported housing capacity, however, much of the supply is occupied and timing access to existing or new housing for individuals who are in need of supported housing can take time. The report goes on to recommend ways that Georgia can increase its capacity of supported housing through HCVs, Section 811 funding or reallocation of existing state funds. For example, DBHDD could increase its supported housing capacity further by converting state-only resources in residential services into Medicaid funded services. DBHDD currently spends approximately $24 million in non-matched resources in residential programs. DBHDD has the Medicaid state plan in place to do this, and is beginning to address this. State funds saved as a result of additional federal financial participation could be reallocated to support housing capacity, support non-Medicaid eligible individuals, or fund noneligible housing support services.
Defining In Need of PSH
The Settlement Agreement requires DBHDD to determine who among the 9,000 individuals identified as part of the settlement class is in need of supported housing. Supported housing is defined in the settlement agreement as deeply subsidized, affordable housing that provides

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tenancy rights, and an array of flexible community based services that are available (but not mandatory) to assist the individuals with accessing and maintaining housing.
TAC recommends DBHDD utilize the following criteria to determine who in the settlement class is “In Need of Supported Housing:”
1. Eligibility for Settlement Services:
a. Core customer eligibility criteria; b. LOCUS scores of 1, 2, 3 and many with a score of 4 (with adequate support
services) could live in supported housing. LOCUS scores of 5, 6 and some with a 4 would need other settings; c. Presence of functional limitations; d. Specific indicators of continuous high-service needs (ACT)
2. Preference: Consumer has indicated a preference to live in supported housing.
3. Prioritization
a. Homeless or At-risk of homelessness (i.e. discharge from an institution such as hospital, nursing facility, ICF/DD, or jail with no placement option), those living in uninhabitable or substandard housing)
b. Those living in short term or transitional housing with no tenancy rights or other discharge options
4. Exclusionary Criteria
a. Choosing and able to live with family and/or friends; b. LOCUS score of 5 and 6 unless the supports needed as developed in a person-
centered planning process can be provided.
DBHDD applies eligibility criteria for determining level of service needs for each of the settlement services. These include meeting Core customer eligibility criteria, use of the Level of Care Utilization System for Psychiatric and Addiction Services (LOCUS), presence of functional limitations, and specific indicators of continuous high-service needs in the case of Assertive Community Treatment (ACT). Additionally, DBHDD specifies a LOCUS score range (2-6) and documented financial need as eligibility criteria for Housing Supplement assistance.
Combined, meeting specific level of service needs (as determined through the LOCUS and resulting composite score) and meeting the criteria for Housing Supplement assistance constitute basic eligibility for supported housing using a DBHDD funded rental subsidy (GVHP). Individuals may access other supported housing opportunities which are not funded by DBHDD and are described in Sections One and Two. Each of these state or federal housing programs provide leased based housing with tenant rights and most of these opportunities meet the supportive housing setting requirements as described in the Settlement Agreement.
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Approximately 4,500 individuals have accessed settlement services to date. DBHDD reports that 84% are housed. It is not expected that all of the individuals will need supported housing. Most will choose to live with family or have other desired and acceptable housing arrangements. Depending on the availability of affordable housing resources in a given region, DBHDD may need to further prioritize to ensure those most in need gain access to supported housing.
Among all of those who are eligible, those most in need of supported housing are individuals who are homeless or at imminent risk of homelessness. At risk of homelessness includes individuals soon to be discharged from an institution (including hospital, nursing facility, ICF/DD facility or jail) with no home or other discharge placement, and those living in uninhabitable or substandard housing. These individuals should be prioritized for available supported housing opportunities. Other individuals in need of supported housing are those living in short term or transitional housing with no tenancy rights and no other options upon discharge.
Through the data reported on the Monthly Programmatic Reports, DBHDD can identify the current housing arrangements of those actively receiving settlement services and note trends to project possible estimates of those in need of supported housing, and those who will not need it. Data on living arrangements for individuals receiving services for 30 days or more are captured through Sections C or D (Living Arrangements) of the Monthly Programmatic Report. As such, data will only capture those individuals who are still receiving one of the settlement services, and not include those who have accessed one of the settlement services in the past and are no longer engaged with the service.
Training to maximize housing permanency and preservation
Through the facilitated focus group and discussion with DBHDD leadership, an important area for training emerged. The current system relies on functional assessment at the time of intake in directing placement whereas the role of choice should have increased importance in determining housing needs and options.
Common practice when deciding what housing option to pursue seems to be based on assessed or perceived competence in general skill areas associated with independent living (most mentioned basic ADLs, safety related issues, and taking medications). From this assessment, a determination is made as to what type of housing is most appropriate and whether a referral is made to supervised residential services or the GHVP. A person’s choice or preference was not referenced as a primary factor in making housing referrals.
The assessment process described by most participants in the focus group emphasized staff determining an individual’s “housing readiness” to live independently in the community. This type of approach potentially screens out individuals who, with support, could live in supported housing. Individuals assessed as not having the skills necessary to live independently at the time of intake are determined to need more supervised residential services. Yet, the support needed to live successfully in community based supported housing is available through the array of settlement services. This includes the level of assistance needed by individuals with challenging and complex clinical profiles and functional limitations. Competencies necessary to live independently can be accommodated or taught through various psychosocial and evidence
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based interventions. The addition of crisis services further enhances the system’s capacity to adequately support many individuals in supported housing who may be assessed as lacking in housing readiness.
Section One: Background and Approach In October 2010, the State of Georgia and the U.S. Department of Justice entered into a Settlement Agreement. Conditions of the Settlement Agreement require the State of Georgia to assist 9,000 people with mental illness who have co-existing medical, behavioral health, and/or co-occurring substance use disorders who are currently served in the State’s hospitals, frequently admitted to state hospitals, frequently seen in hospital emergency rooms, chronically homeless, and/or being released from jails and prisons and people with developmental disabilities transitioning from institutions or who are at risk of institutionalization.
To assist the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) in its on-going efforts to help the State meet the terms of the Settlement Agreement, DBHDD contracted with the Technical Assistance Collaborative (TAC) to undertake an assessment of the State’s capacity to provide supported housing to adults with serious and persistent mental illness (SPMI) who are part of the target population in the settlement agreement. As part of the engagement, TAC proposed to provide consultation to DBHDD regarding how to define who among those accessing settlement services is in need of supported housing and identify areas of training for DBHDD Regional Staff and providers on issues pertaining to housing permanency and preservation for the settlement population. TAC’s scope of work for DBHDD under this contract was limited to assisting DBHDD in defining “in need of supported housing”. It was not intended to estimate numbers of consumers covered through the settlement who are in need of supported housing.
TAC conducted a review of the federal and state housing resources available in Georgia as well as telephone interviews with key stakeholders regarding access to these resources, availability of additional resources, and common access points to affordable housing resources. This review included participation in a focus group with DBHDD Regional Staff and DBHDD funded ACT teams. To assist DBHDD to identify who in the settlement class may be in need of supported housing and to identify areas for training, TAC reviewed settlement documents and existing service description and programmatic reporting forms, met with DBHDD leadership, and facilitated a focus group with DBHDD Regional Staff and ACT provider staff to learn about processes and practices related to referral for services, housing needs assessment, housing referral and assisting consumers to access and maintain housing. TAC also discussed with DBHDD opportunities that may be present within the existing residential services system to create movement through these programs and maximize existing DBHDD funds within that system to best meet the permanent housing and community based services needs of individuals.
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Section Two: Housing Capacity Assessment
Essential Elements of Housing
Many people with significant and complex disabilities, including those covered by the Settlement Agreement, can live in integrated, community settings. To ensure community living is successful the housing needs to be: (1) affordable; (2) meet acceptable standards of quality; and (3) be located in communities that provide needed systems of care and community supports.

Affordability
Nationally, people with disabilities have disproportionately extremely low incomes. In Georgia, this gap between income of people with disabilities and likely rent for a housing unit reflects the national situation. In 2014, an individual with a disability in Georgia receiving Social Security Income (SSI) benefits is equal to $721 per month. The generally accepted standard for housing affordability is to pay 30% of income toward housing costs. On a statewide average in Georgia, people with a disability receiving SSI benefits would have to pay 85% of their monthly income to rent an efficiency unit and 93% of their monthly income to rent a one-bedroom at the Fair Market Rent (FMR), published by the U.S. Department of Housing and Urban Development (HUD).1

As documented in Table 1, within Georgia's federally defined housing market areas the cost of a one-bedroom rental unit ranged from a low of 65% of SSI payments in the Haralson County housing market area to a high of 104% in the Atlanta/Sandy Springs/Marietta housing market area.

TABLE 1: HOUSING NEEDS DATA FOR THE STATE OF GEORGIA

State and Metropolitan Statistical Area

SSI Monthly Payment

SSI as % Median Income

% SSI for Efficiency
Apt.

% SSI for 1-Bdrm

Albany

$721.00

26%

71%

Athens/Clarke County

$721.00

22%

74%

Atlanta/Sandy

$721.00

19%

96%

Augusta/Richmond

$721.00

22%

75%

Brunswick

$721.00

23%

68%

Butts County

$721.00

19%

78%

Chattanooga*

$721.00

22%

63%

Columbus*

$721.00

24%

70%

Dalton

$721.00

26%

73%

Gainesville

$721.00

22%

89%

Haralson County

$721.00

27%

65%

Hinesville/Fort Stewart

$721.00

25%

80%

81% 82% 104% 85% 69% 79% 76% 83% 79% 89% 65% 83%

1 HUD updates Fair Market Rents each October 1st.

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State and Metropolitan Statistical Area

SSI Monthly Payment

SSI as % Median Income

% SSI for Efficiency
Apt.

% SSI for 1-Bdrm

Lamar County

$721.00

26%

68%

Long County

$721.00

25%

68%

Macon

$721.00

24%

71%

Meriwether County

$721.00

26%

68%

Monroe County

$721.00

20%

63%

Murray County

$721.00

27%

68%

Rome

$721.00

24%

69%

Savannah

$721.00

21%

82%

Valdosta

$721.00

27%

80%

Warner Robins

$721.00

19%

83%

Non-Metropolitan Areas

$721.00

27%

70%

Statewide

$721.00

22%

85%

* Indicates a housing market area that crosses state boundaries

74% 71% 85% 74% 76% 69% 69% 101% 80% 85% 72%
93%

In lieu of SSI benefits, a person with a disability could have income from employment sources. In 2014, a person would have to have earned on average $12.88 per hour to be able to afford a one-bedroom rental unit based on HUD's Fair Market Rent (referred to by the National Low Income Housing Coalition as the Housing Wage). Table 2 lists the NLIHC Housing Wage by area in Georgia.

TABLE 2: 2014 SSI PAYMENTS AS AN HOURLY WAGE

Housing Market Area NLIHC Housing Wage

Housing Market Area NLIHC Housing Wage

Albany Athens/Clarke Atlanta/Sandy Augusta/Richmond Brunswick Butts County Chattanooga* Columbus* Dalton Gainesville Haralson County Hinesville/Fort

$11.17 $11.35 $14.54 $11.77 $9.52 $10.92 $10.50 $11.44 $11.00 $12.38 $9.04 $11.50

Lamar County Long County Macon Meriwether County Monroe County Murray County Rome Savannah Valdosta Warner Robins Non-Metropolitan Statewide

$10.31 $9.79 $11.85 $10.31 $10.56 $9.52 $9.58 $13.94 $11.13 $11.85 $10.02 $12.88

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Given the gap between average rents and possible SSI or earned income, most people covered by the Settlement Agreement will need assistance covering housing costs by either living with family or friends or obtaining a subsidized housing unit or a rental subsidy.
Housing Standards Most federal and state housing programs require that the housing units funded with their resources meet certain minimum housing standards. The primary standard for HUD-funded housing is Housing Quality Standards (HQS). The Housing Choice Voucher Program, HOME tenant-based rental assistance, and CoC Interim Rule leasing and rental assistance funded units must all meet HQS. HUD also has other housing programs (Neighborhood Stabilization Program, former Supportive Housing Program) that require units to meet Habitability Standards. HQS establishes the minimum criteria for the health and safety of program participants residing in these HUD-funded housing units.
Access to Quality Services Access to quality services is essential to ensuring integration into the community for persons with disabilities. These services could include basic amenities such as shopping, social opportunities, recreational activities as well as quality supportive services. Having needed services in close proximity to affordable housing is the cornerstone for building and maintaining community-based integrated housing for persons with disabilities covered by the Settlement Agreement. Task 2 of TAC’s work with DBHDD will focus on helping DBHDD define in need of supportive housing.
Available Housing Resources
The federal government is the prime funder of affordable housing resources. In addition, the State of Georgia has additional state-specific resources available to support the creation of affordable housing units. This next section highlights some of the significant resources available to create affordable housing.
U.S. Department of Housing and Urban Development (HUD) HUD provides a variety of resources to states, local governments, and non-profit housing agencies to provide access to or to develop affordable housing. These resources include:
x Housing Choice Vouchers, including special purpose vouchers x Federal Public Housing Units x HOME Investments Partnership Program x Continuum of Care Homeless Programs x Section 811 Supportive Housing for Persons with Disabilities Program x Community Development Block Grant (CDBG) x Emergency Solutions Grant (ESG) x Housing Opportunities for Persons with AIDS x Section 202 Supportive Housing for the Elderly Program
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a. Housing Choice Vouchers The first two programs on the list above are administered by Public Housing Agencies (PHAs).
The Housing Choice Voucher (HCV) program is the major federal program for assisting lowincome families, the elderly, and people with disabilities to obtain decent, safe, and affordable housing in the community. HCVs are commonly referred to as tenant-based rent subsidies because they are provided to eligible applicants to use in private market rental housing of their choice that meets the HCV program requirements. The HCV household pays a portion of monthly housing costs that is based on the income of the household. The household’s portion is usually – but not always – equal to 30-40% of its monthly-adjusted income. This subsidy is based on the cost of moderately priced rental housing in the community and is provided by a PHA under a contract with HUD.
Federal public housing was established to provide decent and safe rental housing for eligible low-income families, the elderly, and persons with disabilities. Public housing comes in all sizes and types, from scattered single family houses to high rise apartments for elderly families. Public housing is site specific meaning eligible applicants only benefit from the resource if they live in the specific public housing unit.
At the present time, there are 188 PHAs operating in Georgia. Of these, three PHAs administer only a HCV program, 166 PHAs administer only public housing units, and 19 PHAs administer both a HCV and public housing program. In total, these PHAs administer a total of 63,118 vouchers and own and manage a total of 47,929 units of federally funded public housing. A list of these PHAs and the number of vouchers and public housing units they administer is included in Appendix A.
In addition to regular Housing Choice Vouchers, there are special purpose vouchers that have been appropriated by Congress exclusively for people with disabilities. Because of various requirements imposed on these vouchers by law and by Congressional appropriations language, these vouchers are an invaluable resource for meeting the housing needs of people with disabilities since they must continue to be set aside for people with disabilities even when they turnover and are re-issued. As documented below some vouchers administered by PHAs in Georgia are targeted exclusively to people with disabilities including:
x Five-Year Mainstream Housing Opportunities for Persons with Disabilities x Rental Assistance for Non-Elderly Persons with Disabilities (“NED” Vouchers)
NED Category 1: vouchers for non-elderly disabled households on PHA waiting lists; and
NED Category 2: vouchers to enable non-elderly households with disabilities to transition from nursing homes and other health care institutions into the community. PHAs must partner with a state-level Medicaid or health and human services agency responsible for the state's institutional transfer program.
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As seen in Table 3, five PHAs in Georgia currently administer a total of 488 vouchers for people with disabilities- 278 Five-Year Mainstream Vouchers and 210 NED vouchers. These vouchers represent less than 1% of the total number of HCVs administered by PHAs in Georgia.

TABLE 3: PHAS IN GEORGIA WITH SPECIAL PURPOSE VOUCHERS

PHA
Atlanta HA Decatur HA GA Dept. of Community Affairs NW Georgia HA Rockmart HA Total

Mainstream 5-Year Vouchers 50 75 75 20 58 278

NED Category 1
175 0 0 0 0
175

NED Category 2
0 35 0 0 0 35

On June 14, 2011, HUD published PIH Notice 2011-32, a critical document for ensuring the effective utilization of all the vouchers described above targeted to non-elderly people with disabilities (now collectively referred to as NED vouchers). All PHAs will now be clear that, upon turnover, those vouchers must continue to be provided ONLY to non-elderly disabled households.

In addition to the special purpose vouchers described above, between 2000 and 2002 HUD awarded conventional vouchers (i.e., not targeted to any particular group) to PHAs that applied through a national competition. As part of the competition, HUD awarded extra points to PHAs that agreed to use at least 15% of the vouchers for people with disabilities and/or at least 3% of the vouchers for people with disabilities with Medicaid Home and Community Based Waivers. Table 6 documents the PHAs in Georgia that received extra points for these assurances.

TABLE 4: PHAS IN GEORGIA WITH FAIR SHARE SET-ASIDES

PHA
HA of the City of Augusta HA of the City of Columbus HA of the City of Atlanta HA of the City of Macon HA of the City of Decatur HA of the City of Albany HA of Fulton County City of Marietta GA Dept. of Community Affairs
TOTAL

Fair Share HCVs for People with Disabilities
96 42 48 100 11 2 20 4 66 389

Fair Share HCVs for People with Medicaid HCB Waivers
20 0 10 20 0 0 0 0 0 50

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Housing utilization rates, as reported by PHAs, provide the percentage of all Housing Choice Vouchers that are being used by certain categories of tenants. As illustrated in Table 5, the rate of voucher assistance for non-elderly disabled households was lower than the national average of 20% in all but two of the PHA programs. Others were lower than the statewide average of 13% (Carollton HA and Newnan HA). The two PHAs with a utilization rate that was higher than the national average were Decatur HA and NW George HA at 24%.

TABLE 5: HOUSING CHOICE VOUCHER UTILIZATION RATES BY NON-ELDERLY DISABLED AND DISABLED HOUSEHOLDS

PHA
Albany HA Americus HA Augusta HA Brunswick HA Carrollton HA College Park HA Columbus HA Decatur HA Dekalb County HA East Point HA Fulton County HA GA Dept. of Community Affairs Jonesboro HA Lithonia HA Macon HA City of Marietta Newnan HA NW Georgia HA Savannah HA Statewide National

Non-elderly people with disabilities 15% 9% 11% 8% 7% 12% 13% 24% 16% 15% 8% 12% 11% 11% 18% 14% 7% 24% 8% 13% 20%

Elderly people with disabilities 7% 3% 6% 8% 4% 5% 8% 10% 9% 6% 5% 9% 8% 15% 11% 10% 5% 18% 7% 9% 14%

While there are a significant number of PHAs in Georgia and a large portfolio of HCVs and public housing units, the total amount of these resources being available is increasingly limited. While these HCV resources have always been in great demand, the impact of the March 2013 sequestration of the federal budget has meant a significant decline in the number of vouchers PHAs are able to issue to new individuals and families. Nationally, HUD estimated that as a result of sequestration, 125,000 individuals and families, more than half of whom are elderly or disabled will lose assistance provided to them through the HCV program. Others will not have

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the opportunity to access the program since local PHAs, including Georgia’s Department of Community Affairs, must suspend reissuing vouchers to new participants.

TAC conducted a review of the PHAs with over 400 HCVs in Georgia to see if they were accepting new applications for HCVs and the status of their waiting lists.

Table 6 shows that of the 15 PHAs surveyed, two did not respond and only one was accepting new applications. (The Georgia Department of Community Affairs has the second most vouchers in the State, however, since DCA has developed a Strategic Housing Plan to address the Olmstead Settlement Agreement they are not included in the following chart but are discussed separately.)

TABLE 6: PUBLIC HOUSING AGENCY HCV WAITLIST STATUS

Public Housing Agency Americus HA Atlanta HA Augusta HA Brunswick HA City Of Marietta HA Columbus HA Decatur HA Dekalb County Ha East Point HA Fulton County HA Jonesboro HA Macon HA Marietta HA NW Georgia HA Savannah HA * no response

# HCV 716 19804 4114 750 657 2333 868 4383 455 847 1840 2954 1992 620 2992

Accepting Applications no no yes no * no no no no no * no no no no

PHAs are given the flexibility by HUD to establish policies for their Housing Choice Voucher Program that reflects the specific housing needs of their communities. This flexibility can range from how and when it accepts new applications for assistance, to setting local payment standards, to establishing waiting list preferences.
Under the Section 8 rules, the PHA establishes payment standards for its HCV program. These payment standards are used to calculate the maximum amount of the Section 8 rent subsidy the PHA will pay for the units rented through the program. PHAs have flexibility to establish their payment standards. Payment standards are based on the HUD determined Fair Market Rents (FMRs) that are set each October and reflect the cost to rent a modestly priced housing unit in a certain housing market. PHAs have the discretion to set their HCV payment standard at an amount between 90 and 110 percent of the FMR. In addition, a PHA can use an “exception” or higher payment standard on a case-by-case basis as a reasonable accommodation for a person
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with a disability. This opportunity to request higher payment standards as a reasonable accommodation can be an important tool in serving persons with disabilities.

In addition, HUD allows each PHA to implement preferences for their Section 8 waiting list. These preferences can allow households with certain characteristics or circumstances, such as local residents, people with disabilities, people who are homeless, to receive HCV assistance before others. PHAs are not required to use preferences, but they may choose to do so with HUD approval.

b. Resources Administered by State and Local Community Development Officials
Each year, Congress appropriates billions of dollars (slightly over $6 billion for federal Fiscal Year 2013) that go directly to all states, most urban counties, and communities “entitled” to receive federal funds directly from HUD. Before states and communities can receive these funds they must have a HUD-approved Consolidated Plan (Con Plan). In Georgia, there are 25 localities and the State that develop Consolidated (Con) Plans and receive related federal resources. The allocations are itemized below in Table 8 by program including:

x Community Development Block Grant (CDBG): x HOME Investments Partnerships Program (HOME) x Emergency Solutions Grant (ESG); and x Housing Opportunities for Persons with AIDS (HOPWA)

TABLE 7

FY2014 CONPLAN RESOURCES FOR GEORGIA

AREA ALBANY ATHENS-CLARKE ATLANTA AUGUSTA BRUNSWICK COLUMBUS-MUSCOGEE DALTON GAINESVILLE HINESVILLE JOHNS CREEK CITY MACON MARIETTA ROME ROSWELL SANDY SPRINGS CITY SAVANNAH SMYRNA CITY

CDBG $882,403 $1,269,701 $6,861,534 $1,703,221 $345,773 $1,341,715 $379,015 $417,758 $225,004 $270,117 $1,533,672 $542,384 $406,047 $431,921 $545,644 $2,114,251 $293,025

HOME $408,309 $244,250 $1,648,209 $733,800
$0 $691,389
$0 $0 $0 $0 $629,797 $0 $0 $0 $0 $640,899 $0

ESG $0 $0
$579,189 $142,880
$0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $174,789 $0

HOPWA $0 $0
$14,242,883 $937,957 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0

TOTAL $1,290,712 $1,513,951 $23,331,815 $3,517,858
$345,773 $2,033,104
$379,015 $417,758 $225,004 $270,117 $2,163,469 $542,384 $406,047 $431,921 $545,644 $2,929,939 $293,025

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AREA VALDOSTA WARNER ROBINS CHEROKEE COUNTY CLAYTON COUNTY COBB COUNTY DE KALB COUNTY FULTON COUNTY GWINNETT COUNTY HENRY COUNTY GEORGIA STATE PROGRAM TOTAL

CDBG $550,525 $472,827 $983,383 $2,078,435 $3,060,484 $4,625,313 $1,676,919 $5,098,532 $1,002,637

HOME $0 $0 $0
$693,760 $1,592,730 $1,748,808
$623,396 $1,505,743
$0

ESG $0 $0 $0
$164,201 $249,798 $382,895 $136,276 $397,141
$0

HOPWA $0 $0 $0 $0 $0 $0 $0 $0 $0

TOTAL $550,525 $472,827 $983,383 $2,936,396 $4,903,012 $6,757,016 $2,436,591 $7,001,416 $1,002,637

$36,929,936 $15,146,654 $3,950,646 $2,204,852 $58,232,088 $76,042,176 $26,307,744 $6,177,815 $17,385,692 $125,913,427

The HOME program, as described below, provides the most direct opportunities for housing for persons with disabilities covered by the Settlement Agreement. Information on the other federal programs is included in Appendix B.
Of all of these resources, the HOME Investment Partnerships Program (HOME) funds offer the greatest opportunity to access affordable housing for persons covered by the Settlement Agreement. The HOME program is a formula grant of federal housing funds given to states and localities (referred to as “participating jurisdictions” or PJs).
HOME funds can be used to:
x Build, buy, and renovate rental housing; x Finance homeownership opportunities; x Repair homes, including making buildings physically accessible; or x Provide rental subsidies to eligible households. (TBRA)
Of these eligible activities, HOME TBRA provides the greatest opportunity to create integrated housing. HOME TBRA is similar to HCV by providing rental assistance to eligible participants to rent units from private landlords in the community. The HOME TBRA must be allocated by the participating jurisdiction in two-year funding increments from a specific one-year HOME allocation.
About half of the HOME participating jurisdictions have tried TBRA although the number of households assisted is relatively small.

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AREA ALBANY ATHENS-CLARKE ATLANTA AUGUSTA COLUMBUS-MUSCOGEE MACON SAVANNAH CLAYTON COUNTY COBB COUNTY DE KALB COUNTY FULTON COUNTY GWINNETT COUNTY
GEORGIA STATE PROGRAM TOTAL

TABLE 8: HOME FUNDS AND TBRA

HOME $408,309 $244,250 $1,648,209 $733,800 $691,389 $629,797 $640,899 $693,760 $1,592,730 $1,748,808 $623,396 $1,505,743

TBRA Program
x
x
x x x x

$15,146,654

x*

$26,307,744

Notes 43 households since 1992
358 households since 1992
11 households since 2000 202 households since 1992
41 households since 1992 3,346 households since 2000
65 households since 1992 *See DCA current initiative
outlined below

As part of its Strategic Plan, DCA set aside $1 million to create a HOME Tenant-based Rental Assistance Program for individuals enrolled in the Georgia Money Follows the Person program (MFP) and provides 24 months of rental assistance to eligible applicants. As allowed by HOME regulations, the program gives the TBRA participant the ability to move to an apartment or home in a neighborhood and community of their choosing. The MFP resources provide communitybased services. The TBRA funds provide rental assistance to help pay a portion of the cost of the participants monthly rent and utility costs as well as pay security and utility deposits for the assisted rental unit.
Section 811 Supportive Housing for Persons with Disabilities Program (Section 811)
The Section 811 program traditionally had funded the development of supportive housing for people with disabilities between the ages of 16 and 62. Historically, the program had been referred to as the “one-stop shopping” program because it provided both capital funding and a project-based rental assistance contract for non-profit organizations to develop new permanent supportive housing for persons with disabilities. Appendix B includes a table listing the Section 811 awards in Georgia since 2003. In January, 2011, President Obama signed into law the Frank Melville Supportive Housing Investment Act of 2010, legislation to revitalize and reform the Section 811 program. The “one-stop” option remains authorized within the reformed Section 811 program. However, the program includes two new approaches to creating integrated permanent supportive housing: the Modernized Capital Advance/Project Rental Assistance Contract (PRAC) multi-family option, and the Project Rental Assistance (PRA) option. Both
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options require that properties receiving Section 811 assistance limit the total number of units with permanent supportive housing use restrictions to 25% or less. Although all three of these options are authorized in the legislation, the FY 2012, 2013 and 2014 appropriations, direct that all funding for new Section 811 units be provided solely through the PRA option. Currently, there are no regulations for this program, but program guidelines are anticipated.
In FY 12, Georgia was successful in being one of 13 states that received an allocation of Section 811 PRA resources and with this award will obtain 350 new Section 811 housing units. Depending on the availability of new annual federal appropriations, the Section 811 program is one mechanism to grow capacity for the target population.
Section 202 Program The Section 202 Supportive Housing for the Elderly Program is the only federally funded housing program designed specifically for older persons. Since its inception in 1959, the program has supported the creation of approximately 6,200 housing facilities for older persons, accounting for approximately 250,000 residential units. In general, eligibility is restricted to persons who are at least 62 years of age and have incomes below 50 percent of their area’s median income.
Continuum of Care (CoC) In 1987, Congress passed the first federal law specifically addressing homelessness. The Stewart B. McKinney Homeless Assistance Act of 1987, later renamed the McKinney-Vento Homeless Assistance Act, provides federal financial support for a variety of programs to meet the many needs of individuals and families who are homeless. The program was amended and reauthorized as the Homeless Emergency Assistance and Rapid Transition to Housing Act (HEARTH) in May 2009. The housing programs it authorizes are administered by HUD’s Office of Special Needs Assistance Programs.
The Continuum of Care planning process was designed to promote the development of comprehensive systems to address homelessness by providing communities with a framework for organizing and delivering housing and services.
There are 9 Continuum of Care planning groups in Georgia - 8 local CoCs and a Balance of State CoC that captures those communities not contained within the jurisdictions of the local CoCs. Table 9 lists the CoCs in Georgia.
TABLE 9: GEORGIA CONTINUUM OF CARE COMMUNITIES CoC Atlanta CoC Athens/Clarke County CoC Augusta CoC Columbus-Muscogee/Russell CoC Fulton County CoC
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CoC Marietta/Cobb County CoC Savannah/Chatham CoC Dekalb County CoC Georgia Balance of State CoC

Within these nine CoCs are an inventory of emergency shelter beds, transitional housing beds, and permanent housing beds created and maintained for homeless individuals and families. Table 10 includes information about the number of emergency shelter (ES), transitional housing (TH) and permanent supportive housing (PSH) beds across the state. This housing inventory is self-reported by the Continuum of Care each year. As Table 10 documents, the number of PSH units for homeless persons in Georgia has greatly increased in recent years.

TABLE 10: BEDS FOR HOMELESS PERSONS

EXCERPT FROM CONTINUUM OF CARE HOUSING INVENTORY CHARTS – 2008 THROUGH 2010

Type
ES TH PSH

2011 Families Individs.
1,566 3,571 3,261 2,769 2,767 2,745

2012 Families Individs.
1,677 2,962 2,668 2,152 1,994 2,828

2013 Families Individs.
1,666 2,652 2,531 2,504 2,832 4,221

Change 2011-2013

Families Individs.

6%

-26%

-22%

-10%

2%

54%

As a whole, the CoCs in Georgia have been working to initiate systems change to create additional permanent supportive housing beds and reduce the number of emergency shelter and transitional housing beds. The PSH beds can only be used to house persons who meet the definition of homelessness as found in the HEARTH Defining Homeless Final Rule published December 5, 2011, the CoC Interim Rule, published July 31, 2012 and applicable Notice of Funding Availability (NOFA).
Low Income Housing Tax Credits
The federal government created the Low Income Housing Tax Credit (LIHTC) program to encourage the development of new mixed-income rental housing that would benefit low-income households. At the federal level, the program is not administered by HUD, but rather by the Internal Revenue Service (IRS) within the Department of Treasury. Each year, the LIHTC program produces approximately $6 billion of private investment in affordable housing. In Georgia, the Georgia Housing Finance Authority (GHFA) is the State of Georgia’s housing agency. The Georgia Department of Community Affairs (DCA) administers the program for GHFA, including the LIHTC program.
Many types of rental housing can be developed using the LIHTC program including:
x Multifamily rental housing
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x Mixed-use projects that include both rental housing and commercial space x Single Room Occupancy (SRO) housing x Scattered-sites that can be "bundled together" as one project
The Low Income Housing Tax Credit program requires states to develop a Qualified Allocation Plan (QAP) – describing how the LIHTC program will be utilized to meet the housing needs and housing priorities of the state. The QAP must be submitted to the Department of Treasury/IRS each year in order for the state to receive its LIHTC allocation.
The QAP is prepared by the state through a process that includes a public hearing to solicit the public's comments on high priority housing needs and on the strategies proposed by the state to address these needs. The QAP must also provide information on the competitive process that the state will administer to award tax credits as well as any priorities for funding, set-asides, or threshold requirements adopted by the state. These may include bonus points for projects that serve targeted subpopulations.
x The GA Low Income Housing Tax Credit program has funded over 900 properties and close to 200,000 units of housing that meets LIHTC eligibility criteria. There are certain threshold criteria in the LIHTC competition including the requirement that successful properties be marketed to people with disabilities, that outreach is conducted to people with disabilities and that through this marketing there is contact with local service providers. Each project selected for an award of credits must prepare and submit a Marketing Plan outlining how the project will market units to tenants with special needs. At a minimum, Marketing Plans must: o Incorporate outreach efforts to each service provider, homeless shelter or local disability advocacy organization in the county in which the project is located. o Affirmatively market persons with disabilities and the homeless. o Establish and maintain relationships between the management agent and community service providers.
In recent QAPs, DCA has given points to proposed projects that would set aside 15% of units for persons with disabilities. In addition, specific to the Settlement Agreement, the most recent QAP provided scoring Incentives that award extra points to projects which have an Owner and Developer that agree to accept a rental assistance from a state, federal or other approved organization for up to fifteen percent of the units in their Georgia owned tax credit developments for the purpose of housing tenants covered by the settlement agreement. This last provision aligns with Georgia’s interest in obtaining additional Section 811 PRA resources. Another incentive in the QAP are extra points to an application with a commitment of project-based rental assistance from a PHA which has elected to offer a preference in their HCV programs for persons with specific disabilities identified in the settlement agreement.
DCA assumes a 7% vacancy rate or turnover of occupied units to vacant units in its underwriting.
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Veteran Housing Options
According to HUD’s 2009 Annual Homeless Assessment Report – Veterans Supplement, there were an estimated 2,760 homeless veterans in Georgia on any given night in time. These veterans represented 14% of all homeless people in the state.1

VASH is a joint project between the Dept of Veteran Affairs (VA) and the Department of Housing and Urban Development (HUD). The goal of the program is to transition veterans from homelessness to having permanent, secure, safe housing so that they may rebuild their lives. The clientele in VASH vary from families to single vets and from Vietnam era to returning OIF/OEF1 vets. This program is administered in terms of a housing voucher from HUD for veterans to rent a home or an apartment, and intensive case management services provided by the VA for five years. After the five years, the veteran may turn his or her VASH voucher into a housing choice voucher to maintain their apartment, freeing up the VASH voucher and case management for another veteran. The Case Management services are administered for five years and are highly individualized to support the vet and /or family to reach self sufficiency and success.

As of February 2014, there were a total of 1,820 VASH vouchers in Georgia administered by 8 different PHAs.

TABLE 11: VASH VOUCHERS
PHA
Housing Authority of the City of Augusta Housing Authority of Savannah Housing Authority of the City of Marietta Housing Authority Of the City Of College Park Housing Authority of Dekalb County GA Department of Community Affairs Housing Authority of the City of Decatur Housing Authority of the City of Atlanta

City
Augusta Savannah Marietta College Park Decatur Atlanta Decatur Atlanta
TOTAL

VASH Vouchers
135 80 90 100 615 415 250 135 1820

c. Georgia Specific Initiatives
Georgia Housing Voucher Program (GHVP)
DBHDD administers the Georgia Housing Voucher Program which can provide up to 2,000 individuals covered by the Settlement Agreement who are “deemed ineligible for any other benefits” with a rental subsidy. In addition, the resources available to DBHDD can also pay for modifications to units to accommodate the physical needs of tenants and initial bridge funding that can include rent depositions, modifications to apartments for minor accessibility repairs, household furnishings, moving expenses, minor tenant caused repairs, and a $500 onetime fee
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for the provider to help transition the tenant into the housing placement. In the most recent report dated September 2013, Martha Knisley of TAC reported to the Independent Reviewer that the GHVP had exceeded its numerical targets by having served 1,002 at the time of the review. By May 2014 almost 1,500 had received the vouchers.
Department of Community Affairs (DCA) The Georgia Department of Community Affairs operates the second largest HCV program in the State. In February 2012, DCA developed Strategic Recommendations to develop strategies to help the State meet the terms and conditions of the Settlement Agreement. Despite a reduction in the number of overall vouchers DCA could issue and a long waiting list, DCA committed to allocating 100 vouchers in FY 2012 and 500 vouchers in FY 13, 500 in FY14 and 500 in FY 15 for persons covered by the Settlement Agreement. DCA obtained approval from HUD on May 3, 2012 to set these specific preferences.
In addition to creating this preference for those covered by the Settlement Agreement, DCA further encouraged that these HCVs be linked to those persons receiving GHVP rental assistance. This linkage would facilitate the transition of GHVP participants onto a more long term rental subsidy and also free up additional GHVP resources to assist additional individuals. This linkage accepted that certain persons covered by GHVP would not be eligible for DCA HCV assistance due to federal eligibility restrictions (e.g. immigration status, certain criminal offenses, etc.). To date, 107 of the 1,500 GHVP vouchers have been transitioned to the DCA HCVs.
From discussions with DBHDD and DCA staff, the transition to DCA was initially slow due to certain obstacles including:
1. GHVP rent payments exceeded the DCA payment standards; 2. GHVP units did not pass HQS; and 3. Landlords/property owners were reluctant to shift to the HCV program.
These limitations are important to understand in maximizing the HCVs that were set aside for the Settlement Agreement as well as in approaching other PHAs to establish a similar preference.
Housing Quality Standards, as mentioned previously, certify that the unit meets basic health and safety conditions. At initial occupancy units must be inspected to determine if they meet HQS. If a unit does not meet HQS, a landlord is given a period of time to remedy the infraction. After the initial certification, units must be re-inspected annually. At times, a unit that first met HQS will no longer meet it upon recertification due to wear and tear or more extensive abuse by the tenant. PHAs do not have flexibility regarding these HQS requirements. However, community organizations or local government agencies can work with the PHAs to ensure a timely inspection and can work with the landlords to find resources to correction violations.
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DBHDD at times approved rents that exceeded DCA’s payment standard. Therefore, landlords were reluctant to switch from the GHVP to DCA’s HCV because it would require them to lower the unit’s rent.
Section Three: Housing Opportunities and Capacity The housing market throughout Georgia is such that those covered by the Settlement Agreement who need supportive housing will require a rental subsidy to ensure this housing placement. According to the March/April 2014 Journal of Housing and Community Development, Georgia has three of the top ten worst counties (Cobb, Gwinnett and DeKalb Counties) in the country for affordability and availability. But as the data at the beginning of this report indicated, in no community could someone with a very low income afford the Fair Market Rent in any county.
As noted in Section 1, DBHDD has made great progress in housing close to 1,500 individuals with the GHVP subsidies. Of these GHVP holders, over 100 have moved onto DCA HCVs. The success of GHVP presents an argument to find more long term subsidies to which the GHVP can be linked. This bridge to HCVs would continue to allow DBHDD to use its resources to quickly house additional people.
One limitation of the link to DCA’s HCVs is that voucher holders must live in DCA’s region. If a GHVP recipient is living in a community not covered by DCA but by another PHA, the DCA vouchers cannot be used in that community.
For these reasons the following are recommendations to increase capacity related to HCVs:
1. Continue to work to link GHVP to DCA HCV. As already mentioned, this will free up GHVP resources that can be used to either expedite new individuals into housing or to cover some of the initial move in costs or repair costs that could delay identifying accessible units or perhaps units that do not meet HQS.
2. Work with other PHAs to create a preference for individuals covered by the Settlement Agreement. Since DCA’s HCV can only be used in areas not covered by other PHAs, expanding the supply of HCVs by other PHAs could expand options and opportunities for individuals in need of PSH.
3. Encourage DCA and the other PHAs to consider increasing the payment standard on a case by case basis as a reasonable accommodation. This could increase the rate at which the GHVP vouchers transition to the more permanent HCVs.
4. Investigate whether GHVP resources could be used to make repairs on units that do not meet HQS in addition to its ability to make repairs to create accessibility. This may increase the pool of available units and also increase the transition from GHVP to HCVs.
5. Encourage DBHDD vendors to outreach to the LIHTC developments and to track their receptiveness to GHVP or HCV holders. As discussed earlier, these developers are required to outreach and market to people with disabilities.
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6. In addition to increasing access to HCVs statewide, encouraging the participating jurisdictions in Georgia to create a HOME TBRA set-aside similar to DCA’s would provide an additional rental subsidy. While these TBRAs must be appropriated on a two year basis, the PJ could renew the subsidy. This option could prove useful in communities where the PHA will not or cannot create a preference in its HCV program.
7. The CoCs have demonstrated a willingness to create additional PSH even in the absence of new resources from HUD. While eligibility requirements are strict for access to CoC-funded PSH it would be a wise strategy to target those PJs and those PHAs who have either previously created program for persons with disabilities or who have created HOME TBRA programs.
8. Table 12 highlights those PJs and PHAs that could be a starting point for DBHDD outreach. These communities either receive HOME funds and have created a HOME TBRA program or have a PHA that has received at least one of HUD’s special vouchers or are in a community covered by a local CoC.

AREA
ALBANY ATHENS-CLARKE ATLANTA AUGUSTA COLUMBUSMUSCOGEE MACON SAVANNAH CLAYTON COUNTY COBB COUNTY DE KALB COUNTY FULTON COUNTY GWINNETT COUNTY DECATUR PHA ROCKMART HA MARIETTA HA NW GEORGIA

TABLE 12: POSSIBLE COMMUNITIES TO TARGET

HOME

HOME TBRA Program

PHA Open HCV Wait List

Special vouchers of some type

CoC Community

$408,309

x

2

$244,250

x

$1,648,209

x

283

x

$733,800

Yes

116

x

$691,389

42

x

$629,797

$640,899

$693,760

x

$1,592,730

x

$1,748,808

x

$623,396

x

$1,505,743

0

Na

0

Na

0

Na

0

Na

120

VASH

x

x

20

x

121

58

4

x

20

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Estimated Available Permanent Supportive Housing
DBHDD is interested in the overall availability or capacity of Permanent Supportive Housing for persons covered by the Settlement Agreement. TAC summarizes this capacity in the following ways:
1) Dedicated resources for those covered by the Settlement Agreement 2) Estimate of Settlement Agreement clients already housed by these programs. 3) Potential resources for those covered by the Settlement Agreement.
TABLE 13: DEDICATED RESOURCES

Housing Program
GHVP DCA HCV DCA HOME 811 PRA Subtotal Annual Turnover (5%) to subsequent year

Current

Cumulative

Vouchers/Subsidies

New Projected vouchers/subsidies in

Total

Available

Year 1

Year 2 Year 3

1,500

500

0

0

2,000

100

500

500

500

1,600

60

40

0

0

100

75

100

100

275

3,975

56

33

89

1,660

1,115

656

633

4,064

Table 13 lists those resources already dedicated to house those covered by the Settlement Agreement over the next three years. In addition, it assumes a modest five percent turnover in these units and subsidies that would then be available to other persons covered by the Settlement Agreement. As indicated, resources are available that could house over 4,000 persons covered by the Settlement Agreement.
Estimated Settlement Agreement Clients Already in Permanent Supportive Housing
The eligibility requirements for existing permanent supported housing programs in Georgia are aligned with those covered by the Settlement Agreement. For example, HUD’s Shelter Plus Care program (now refunded under the CoC Program Interim Rule), restrict eligibility to persons who are homeless and disabled. The existing 811 program eligibility was restricted to low income persons with disabilities up to age 62. The 202 programs serve low income persons age 62 or older with incomes below 50% of area median income. Table 14 identifies these programs.

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TABLE 14: RESOURCES CURRENTLY HOUSING SETTLEMENT AGREEMENT TARGET POPULATION

Housing Program
SPC/CoC Rental Assistance Existing 811 Existing 202 Subtotal

Current PSH Units for Individuals
4,221

Estimated Percentage Settlement Agreement
(25% SPC/811) (10% 202)
Year 1 (25%) 1,055

Turnover of Units to Settlement Agreement
Clients (5%)

Year 2 Year 3

53

53

Cumulative Total
1,161

392

98

5

5

108

977

97

5

5

107

1,250

63

63

1,376

Not all occupants of these resources would meet Settlement Agreement criteria. For purposes of this report, TAC estimates that at least one quarter of the Shelter Plus Care/CoC Program participants meet Settlement Agreement criteria. In years two and three it is estimated that there will be a five percent turnover each year. Similarly, the Existing 811 programs which house low income persons with disabilities under age 62 would also include some persons covered by the Settlement Agreement. TAC estimates that a quarter of this population could be covered by the Settlement Agreement and a similar 5% turnover annually. Finally, for the 202 program it is estimated that only 10 percent of the current units are housing Settlement Agreement population with a similar five percent turnover each year. Based on these projections, close to 1,400 units are available over this three year period to house those covered by the Settlement Agreement.
The State of Georgia, through DCA’s HOME TBRA and HCVs has made a significant commitment to housing those covered by the Settlement Agreement. Additional resources may be leveraged by partnering with other PJs and PHAs. However, the current fiscal climate would indicate that this approach may not yield as many units since HOME and HCVs programs are experiencing cuts in funding. TAC identified those PJs and PHAs who might be willing, either through previous special needs vouchers or other HOME TBRA to consider a modest preference, set aside or new program to be developed. Table 15 (Page 26) highlights some of these potential resources. Exploring such arrangements with any of the PJs and PHAs could yield additional capacity than what is estimated here.

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TABLE 15: POTENTIAL PSH RESOURCES FOR SETTLEMENT AGREEMENT CLIENTS

Housing Program
Other PHA HCV

Current Vouchers/Subsidies
Available Target three PHAs

Targeted Request for Set-aside/Preference
Year 1 480

Year 2 480

Year 3 480

Cumulative Total
1,440

Local PJ HOME TBRA Subtotal

Augusta PHA Atlanta Decatur
See chart 15A below

(10) (450) (20) 30

510

(10) (450) (20) 0
480

(10) (450) (20) 0
480

30 1,470

TABLE 15A: THE HOME TBRA PROJECTIONS ARE BASED ON THE FOLLOWING

COBB COUNTY DE KALB COUNTY Atlanta Subtotal

$1,592,730 $1,748,808 $1,648,209

Annual cost of 1 Subsidy (737 FMR – 215 tenant
contribution) x 12 = 6,264 $6,264 $6,264
30 TBRA

Annual cost of 10 Subsidies x 2 years
=125,280 $125,280 $125,280 $375,840

Table 16 summarizes the actual and projected number of permanent supportive housing units/resources that either are or could be available to individuals covered by the Settlement Agreement.

TABLE 16A: TOTAL PSH CAPACITY

Existing resources dedicated to settlement population
Estimated capacity of supported housing currently housing individuals covered by settlement
Potential additional capacity through additional preferences
Total Capacity

Year 1 1,115
1,250
510 2,845

Year 2 656

Year 3 633

63

63

480 1,199

480 1,176

Total 4,064
1,376
1,470 6,910

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Other PHA HCV
Augusta PHA Atlanta Decatur Total

TABLE 16B: POTENTIAL HCV SET ASIDES

Total vouchers x (5% estimated turnover) x .5 (half to new preference) = annual available for Settlement Agreement
11 450 0

Estimated New vouchers/subsidies per year
1 2 3 Cumulative 10 10 10 30 450 450 450 1350 20 20 20 60 480 480 480 1,440

DBHDD could increase its supported housing capacity further by converting state-only resources in residential services into Medicaid funded services. DBHDD currently spends approximately $24 million in non-matched resources in residential programs. DBHDD has the Medicaid state plan in place to do this, and is beginning to address this. State funds saved as a result of additional federal financial participation could be re-allocated to supported housing capacity in the GHVP, support non-Medicaid eligible individuals, or fund non-eligible housing support services.

Section Three: Determining “In Need of Supported Housing”
As part of its settlement agreement with the Department of Justice (DOJ), Georgia DBHDD is required to provide an array of community based services to support 9,000 individuals to live in the community. DBHDD estimates that the target of 9,000 individuals relates to individuals who meet the criteria for populations and access specific services as described in the settlement agreement. The services to be made available include Assertive Community Treatment (ACT), Community Support Teams (CST), Intensive Case Management (ICM) and Case Services (CM).
Additionally, a mix of crisis support services are to be developed, including Crisis Service Centers, Crisis Stabilization Centers, Mobile Crisis Services and a Crisis Line. DBHDD has been very focused and aggressive in creating these services and most required services are in place and being accessed, or nearly in place. Approximately 4,500 individuals have accessed settlement services to date.
The Settlement agreement also requires DBHDD to determine who among the 9,000 individuals identified as part of the settlement class is in need of Permanent Supported Housing (PSH). TAC’s scope of work for DBHDD under this contract was limited to assisting DBHDD in defining “in need of supported housing” and to provide training consultation for DBHDD Regional staff, providers, and other key participants as identified by DBHDD on issues pertaining to maximizing housing permanency and preservation for the settlement population. It was not the purpose to estimate numbers of consumers covered through the settlement who are in need of supported housing.
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Supported housing is defined in the settlement agreement as deeply subsidized, affordable housing that provides tenancy rights, and an array of flexible community based services that are available (but not mandatory) to assist the individuals with accessing and maintaining housing. Of the approximate 4,500 individuals who have accessed settlement services to date, DBHDD reports that 84% are housed.
It is expected that not all of the individuals will need supported housing. It is likely that the majority of individuals will live with family or in existing homes of their own. Others may require a supervised level of support and assistance, such as a group home, and some may choose other housing options available in their community, including personal care homes. While DBHDD intends to reduce use of congregate, boarding or personal care homes by increasing access to supported housing opportunities, a portion of these settings may meet criteria for supported housing placement if they are substantially consistent with the definition of supported housing in the settlement agreement.
During this process, TAC worked with DBHDD to clearly articulate criteria for those in the settlement class are “in need of supported housing.” The criteria are as follows:
1. Eligibility for Settlement Services:
a. Core customer eligibility criteria; b. LOCUS scores of 1, 2, 3 and many with a score of 4 (with adequate support services)
could live in supported housing. LOCUS scores of 5, 6 and some with a 4 would need other settings; c. Presence of functional limitations; d. Specific indicators of continuous high-service needs (ACT)
2. Preference: Consumer has indicated a preference to live in supported housing.
3. Prioritization
a. Homeless or At-risk of homelessness (i.e. discharge from an institution such as hospital, nursing facility, ICF/DD, or jail with no placement option), those living in uninhabitable or substandard housing)
b. Those living in short term or transitional housing with no tenancy rights or other discharge options
4. Exclusionary Criteria
a. Choosing and able to live with family and/or friends; b. LOCUS score of 5 and 6 unless the supports needed as developed in a person-
centered planning process can be provided.
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Defining Criteria for Supported Housing
DBHDD applies eligibility criteria for determining level of service needs for each of the settlement services. These include meeting Core customer eligibility criteria, use of the Level of Care Utilization System for Psychiatric and Addiction Services (LOCUS), presence of functional limitations, and specific indicators of continuous high-service needs in the case of Assertive Community Treatment (ACT). Additionally, DBHDD specifies a LOCUS score range (2-6) and documented financial need as eligibility criteria for Housing Supplement assistance.
Combined, meeting specific level of service needs (as determined through the LOCUS and resulting composite score) and meeting the criteria for Housing Supplement assistance constitute basic eligibility for supported housing using a DBHDD funded rental subsidy (GVHP). Individuals may access other supported housing opportunities which are not funded by DBHDD and are described in Sections One and Two. Each of these state or federal housing programs provide leased based housing with tenant rights and most of these opportunities meet the supported housing setting requirements as described in the Settlement Agreement.
Depending on the availability of affordable housing resources in a given region, DBHDD may need to further prioritize to ensure those most in need gain access to supported housing. Among all of those who are eligible, those most in need of supported housing are individuals who are homeless or at imminent risk of homelessness. At risk of homelessness includes individuals soon to be discharged from an institution (including hospital, nursing facility, ICF/DD facility or jail) with no home or other discharge placement, and those living in uninhabitable or substandard housing. These individuals should be prioritized for available supported housing opportunities. Other individuals in need of supported housing are those living in short term or transitional housing with no tenancy rights and no other options upon discharge.
Through the data reported on the Monthly Programmatic Reports, DBHDD can identify the current housing arrangements of those actively receiving settlement services and note trends to project possible estimates of those in need of supported housing, and those who will not need it. Data on living arrangements for individuals receiving services for 30 days or more are captured through Sections C or D (Living Arrangements) of the Monthly Programmatic Report. As such, data will only capture those individuals who are still receiving one of the settlement services, and not include those who have accessed one of these services in the past and are no longer engaged with the service.
The reports for ICM and CST have similar options under Section C. For the ACT Monthly Programmatic Report, Section D: Living Arrangements has slightly different options.
Not in need of PSH:
It is common for individuals to choose to live with family and/or friends, and these arrangements often do not have full tenancy rights in terms of lease in place. Individuals who choose and are able to live with family or friends are not considered in need of supported housing even though they may be accessing settlement class services. Sections C/D of the Monthly Programmatic Reports include these options:
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x ACT: Living with Friends or Family with no tenancy rights. x ICM or CST: Temporary housing: living with friends or family with no tenancy rights.
Because this data represents approximately one-half of the target population, the percentage of individuals who have accessed settlement services to date who are living with family or friends may also serve as an estimated percentage of the total 9,000 individuals accessing settlement services who will live with family or friends, and as such, not need supported housing.
Currently living in Supported Housing or other living arrangement that meet the terms as described in the Settlement Agreement: The settlement states that by July 1, 2015, 50% of Supported Housing units shall be provided in scattered-site housing as well as apartments clustered in a single building. Scattered site housing is further described as having no more than 20% of the units in one building, or no more than two units in one building (whichever is greater).
The following options from the Monthly Programmatic Reports appear to meet this definition for scattered or clustered supported housing. For apartments in multi-unit buildings, DBHDD staff will need to confirm that they meet the concentration requirements.
x ICM or CST: Permanent Housing: Apartment, Home with full tenancy rights x ACT: Living in apartment or home with full tenancy rights x ACT: Living in supported housing with full tenancy rights
In addition to a permanent housing apartment with tenancy rights (which may or may not be subsidized through the Georgia Housing Voucher Program ), certain residential services settings may meet the terms of the settlement covered by the implied allowance of 50% of supported housing units not provided in scattered site or clustered supported housing. The settlement agreement explicitly states that personal care homes shall not qualify as scattered site housing.
Some of these settings may meet the definition of supported housing (integrated permanent housing with tenancy rights linked with a flexible array of community based services). The following living arrangement options as noted on the Monthly Programmatic Reports may meet the definition of supported housing and as such, be eligible for consideration within the 50% of supported housing that is not scattered site or clustered. In addition to the settings listed below, those apartments in multi-unit buildings that exceed the 20% concentration threshold may meet the definition for supported housing for this category of acceptable housing opportunities.
x ICM or CST: Permanent Housing: SRO, Boarding Home, PCH, Group Home with full tenancy rights
x ACT: Living in congregate housing, boarding home, personal care home – only if it can be determined that the person has full tenancy rights
However, while the settings listed above may meet the definition for supported housing, DBHDD has articulated values that will guide decision-making for preferred housing options in the future.
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These are: the belief that housing is essential to recovery and independence; informed choice must anchor the selection of any housing option; access to a full continuum of housing options is fundamental to informed choice; and successful living arrangements are integrated in local communities. DBHDD will focus on the experience of consumers as tenants and intends to strengthen and increase permanent supported housing opportunities.
Therefore, DBHDD chooses to apply more stringent criteria to existing congregate housing settings to ensure these reflect standards aligned with criteria for integrated permanent supported housing. Criteria include tenancy rights, defined occupancy limits, concentration of units within larger buildings does not exceed 20%, and a documented statement of the individual choice/preference for housing. Prior to this specific project, TAC previously provided a draft checklist to assess housing settings and DBHDD has reviewed and expanded upon this tool. DBHDD has not yet implemented this tool. It will do so as it is finalized and DBHDD conducts a thorough analysis of its’ residential services system as it prepares to implement Medicaid reimbursement within these programs to maximize resources and access federal funds.
In Need of PSH:
Of the individuals who are currently receiving, on a wait list for, or have been referred to one of the settlement services, those who are pending discharge from an institution (hospital, nursing home or jail) with no home or discharge placement, those who are homeless, or living in temporary housing with no tenancy rights are most in need of PSH. These individuals should be prioritized for referral to supportive housing opportunities.
Among those currently receiving settlement services DBHDD can identify these individuals through the data captured on the Monthly Programmatic Reports. Living Arrangement indicating homelessness or at risk of homelessness are captured on the Monthly Programmatic Reports under:
x ICM or CST: Emergency Housing x ICM or CST: Living on the street, homeless shelter, or motel x ICM or CST: Temporary housing with no tenancy rights (boarding home, group home,
temporary housing) x ACT: Living on the Street, homeless shelter, motel
Some individuals may be assessed to need supervision, increased support and on site staffing provided by supervised residential services settings. Such models of housing do not have tenancy rights and are transitional in nature. While these individuals do not need supportive housing at the time of admission, they will most likely need this housing option upon discharge.
Including this group in the number for in need of supported housing also encourages needed flow through the residential services system. Individuals currently living in one of the settings below could be transitioned into supported housing, creating openings in a supervised setting for those individuals who are homeless or pending discharged and assessed as in need of this level of residential treatment.
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These living arrangements are indicated on the Monthly Programmatic Reports as follows:
x ACT: Living in Congregate Housing, Boarding Home, Personal Care Home, or Group Home (unless these settings are considered permanent housing with tenancy rights as is indicated as an option on the ICM/CST report).
x ICM or CST: Temporary Housing: Boarding Home, Group Home, Temp. Housing with no tenancy rights
Section Four: Training areas to strengthen DBHDD’s ability to work with providers to maximize access to supported housing opportunities and promote housing permanency and preservation. Summary of provider focus groups on assessing and accessing supported housing.
DBHDD arranged for participation in a focus group attended by primarily ACT providers and DBHDD Regional Staff for each region. Only ACT providers were present for the focus group so this summary does not include input from Community Support Team, Intensive Case Management or Case Management service providers. Most participated via conference call, one region attended in person. Questions posed focused on referrals for service, assessment of housing needs, and access to housing options.
Referral for ACT services All participants agreed that referrals for ACT services come from a variety of referral sources including: outpatient treatment providers, state and private hospitals, jails, probation and parole, PATH teams, family and Residential Services programs. Referrals come directly to the provider. All participants described that they determine eligibility for ACT services using standard criteria as outlined by DBHDD. Providers make the decision to enroll or not. If a person is assessed as not eligible for ACT services, a referral to other service providers is made by the ACT providers. Only one region described having a standard referral form use by all providers (Region 1). Providers in the other regions each have unique forms and processes. All participants described a referral and intake process that includes assessment based on information provided on the referral form combined with a face to face meeting with the individual.
Assessing housing needs and accessing housing opportunities All ACT staff described exploring a person’s need for housing as part of the initial intake and assessment process. Most participants described using a housing readiness determination approach based on functioning level in areas such as cooking, ADLs, safety with medication, criminal background, drug or alcohol use, past living experience, and existing of supports. Only one participant offered inquiring into the person’s housing preference as a key consideration for housing options.
Referrals to housing opportunities also depend greatly on available resources within a region and community. Many commented on the need for greater supervised or group home options.
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Regions with greater resources and a continuum of housing options seem to rely more on supervised living arrangements that include on-site staffing. These include semi-intensive and intensive levels of residential services and personal care homes. Regions without these resources tend to access the GHVP or other scattered sites models of housing. It is probable that more individuals could be referred to supported housing opportunities if 1) opportunities are available and 2) provider staff are encouraged to make greater use of these opportunities.
The focus group did not discuss service activities provided to support individuals in accessing and maintaining housing in the community. It is not clear if the ACT providers participating in the focus group see assisting with housing applications and rehabilitation activities such as developing the array of skills necessary to get and keep housing as part of their role, or if they perceive training in these areas to be provided by Residential Services programs or personal care homes.
ACT teams by their very design emphasize the provision of home based treatment. To encourage increased referrals to supported housing, staff training in conducting housing assessments that emphasizes tenant screening and housing retention barriers (instead of conducting functional assessments that often screen people out of supported housing) may be beneficial. Additionally, training in housing and tenancy support interventions and services would be helpful.
General themes from Focus Group:
1. Role of choice in determining housing needs and options.
Providers have primary responsibility for receiving referrals, assessing eligibility for services, and assessing and determining need and access to supported housing opportunities as part of the initial intake process. Based on assessed or perceived competence in general skill areas associated with independent living (most mentioned basic ADLs and taking medications) a determination is made as to what type of housing is most appropriate and whether a referral is made to supervised residential services or the GHVP. There appears to be little consideration for individual choice or preference as a primary factor in making housing referrals.
2. Emphasis on determining readiness for independent living based on functional assessment at time of intake instead of conducting housing based assessment based on preferred housing option.
The assessment process described by most participants in the focus group emphasized staff determining an individual’s “housing readiness” to live independently in the community. This type of approach potentially screens out individuals who, with support, could live in supported housing. Individuals assessed as not having the skills necessary to live independently at the time of intake are determined to need more supervised residential services. Yet, the support needed to live successfully in community based supported housing is available through the array of settlement services. This includes the level of assistance needed by individuals with challenging and complex clinical
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profiles and functional limitations. Competencies necessary to live independently can be accommodated or taught through various psychosocial and evidence based interventions. The addition of crisis services further enhances the system’s capacity to adequately support many individuals in supported housing who may be assessed as lacking housing readiness.
Delivering effective housing support services begins with understanding the individual's preferences and choice in housing and conducting an assessment of strengths and needs as these relate to the desired setting. This approach is consistent with personal care planning as is required by the new Home and Community Based Services Final Rule (January 2014) and best practice. Assessment domains include tenant screening and housing retention barriers as opposed to a generic psychosocial assessment. Functional deficits related to a behavioral health disorder are considered in light of how these may, or may not impact accessing and maintaining housing. Service type, intensity and frequency are adjusted to meet the changing needs of the individual. Reasonable accommodations are negotiated with landlords and property managers as needed. Housing retention is seen as the ultimate goal.
To promote personal choice and preference as a primary factor for considering housing options and referral, create a standardized Housing Choice/Preference form as part of all settlement services intake applications. This form should document: 1) the individual’s housing choice, 2) options available and presented to the individuals, and 3) the individual’s selection among the available options. If the person’s preference in not available, a plan to assist the person to access desired housing when available should become part of the service plan. Provider training on exploring a person’s housing history, exploring choice, decision making among housing options and negotiating housing selection.
DBHDD should provide training on a psychiatric rehabilitation approach to establishing housing goals, conducting housing based preferences and needs assessment, developing housing plans and providing tenancy support services. This approach has been referred to as the “Choose, Get and Keep” model and is a recognized by SAMHSA as an evidence-based practice. Most tenancy based service activities are compatible with all available settlement services. A crosswalk of tenancy support services with allowable activities for each of the settlement services can be developed.
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Appendix A: PHA Programs in Georgia

TABLE A1: PHA PROGRAMS IN GEORGIA

PHA Abbeville HA Acworth HA Adel HA Alamo HA Albany HA Alma HA Americus HA Arlington HA Ashburn HA Athens HA Atkinson County HA Atlanta HA Augusta HA Bainbridge HA Barnesville HA Baxley HA Blackshear HA Blakely HA Blue Ridge HA Boston HA Bowdon HA Bremen HA Brunswick HA Buchanan HA
Buena Vista HA Buford HA Byron HA Cairo HA Calhoun HA Camilla HA Canton HA Carrollton HA Cave Spring HA Cedartown HA
Chatsworth HA
City Of Atlanta DHCD
City Of Marietta HA

City Abbeville Acworth Nashville Alamo Albany Alma Americus Cuthbert Ashburn Athens Nashville Atlanta Augusta Bainbridge Barnesville Baxley Waycross Blakely Blue Ridge Thomasville Bowdon Bremen Brunswick Buchanan
Columbus Buford Byron Cairo Calhoun Camilla Canton Carrollton Cave Spring Cedartown
Chatsworth
Atlanta
Marietta

PH/HCV/Both PH PH PH PH Both PH Both PH PH PH PH Both Both PH PH PH PH PH PH PH PH PH Both PH
PH PH PH PH PH PH PH Both PH PH
PH
HCV
HCV

PH Units 14 0 60 38 1,209 325 480 24 168 1,259 23 8,485 2,376 284 132 159 56 159 48 39 55 80 589 46
79 189 32 185 249 442 145 238 20 304
68
0
0

Vouchers 0 0 0 0 61 0 716 0 0 0 0 19,804 4,114 0 0 0 0 0 0 0 0 0 750 0
0 0 0 0 0 0 0 163 0 0
0
44
657

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PHA Claxton HA Clayton HA Cochran HA College Park HA Colquitt HA Columbus HA Comer HA Commerce HA Conyers HA Cordele HA Covington HA
Crawfordville HA Cumming HA Cuthbert HA Dahlonega HA Dallas HA
Danielsville HA Dawson HA Decatur HA
Dekalb County Ha Doerun HA Douglas City HA Douglas County HA Dublin HA East Point HA Eastman HA Eatonton HA Edison HA Elberton HA Ellaville HA Ellijay HA
Etowah Area Consol HA Fairburn HA Fitzgerald HA Flint Area Consol HA
Fort Gaines HA Fort Valley HA Franklin HA
Ft Oglethorpe HA

City Claxton Clayton Cochran College Park Colquitt Columbus Comer Commerce Conyers Cordele Covington
Warrenton Cumming Cuthbert Dahlonega Dallas
Danielsville Dawson Decatur
Decatur Moultrie Douglas Douglasville Dublin East Point Eastman Eatonton Cuthbert Elberton Columbus Ellijay
Cartersville Fairburn Fitzgerald Montezuma
Cuthbert Fort Valley Franklin
Fort Oglethorpe

PH/HCV/Both PH PH PH Both PH Both PH PH PH PH PH
PH PH PH PH PH
PH PH Both
Both PH PH PH PH Both PH PH PH PH PH PH
PH PH PH PH
PH PH PH
PH

PH Units 204 99 115 264 89 2,299 30 50 290 439 280
14 50 122 30 157
30 116 346
468 44 381 110 545 383 219 114 64 185 40 110
357 24 221 381
24 100 78
74

Vouchers 0 0 0 408 0 2,333 0 0 0 0 0
0 0 0 0 0
0 0 868
4,383 0 0 0 0 455 0 0 0 0 0 0
0 0 0 0
0 0 0
0

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PHA
Fulton County HA Gainesville HA Georgia DCA Gibson HA Glennville HA Glenwood HA Grantville HA Greensboro HA Greenville HA Griffin HA Hahira HA Hampton HA Harlem HA
Harris County HA Hartwell HA Hawkinsville HA Hazlehurst HA Hinesville HA
Hogansville HA Homerville HA Houston County HA Jackson HA Jasper HA Jefferson HA Jesup HA Jonesboro HA Lafayette HA Lagrange HA Lakeland HA Lavonia HA
Lawrenceville HA Lee County HA Lincolnton HA Lithonia HA Loganville HA Louisville HA Lumber City HA Lyons HA Macon HA Madison HA

City
Atlanta Gainesville Atlanta Gibson Glennville Glenwood Hogansville Greensboro Greenville Griffin Nashville Hampton Harlem
Columbus Hartwell Hawkinsville Hazlehurst Hinesville
Hogansville Homerville Warner Robins Jackson Jasper Jefferson Jesup Jonesboro Lafayette Lagrange Nashville Lavonia
Lawrenceville Albany, Lincolnton Lithonia Loganville Louisville Lumber City Lyons Macon Madison

PH/HCV/Both
Both PH HCV PH PH PH PH PH PH PH PH PH PH
PH PH PH PH PH
PH PH PH PH PH PH PH Both PH PH PH PH
PH PH PH Both PH PH PH PH Both PH

PH Units
677 495 0 24 120 48 20 111 80 250 16 25 44
43 180 86 134 77
114 80 40 89 152 90 214 32 300 420 20 180
212 98 60 75 20 78 23 130 2,272 66

Vouchers
847 0 16,936 0 0 0 0 0 0 0 0 0 0
0 0 0 0 0
0 0 0 0 0 0 0 1,840 0 0 0 0
0 0 0 96 0 0 0 0 2,954 0

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PHA
Manchester HA Marietta HA
McCaysville HA
McDonough HA McRae HA Menlo HA Metter HA Milledgeville HA Millen HA Monroe HA Monticello HA Moultrie HA Mt Vernon HA Nahunta HA Nashville HA NE Georgia HA Newnan HA Newton HA Nicholls HA Norcross HA
NW Georgia HA Ocilla HA Palmetto HA Pearson HA Pelham HA Perry HA Quitman HA Reidsville HA Ringgold HA Roberta HA Rochelle HA Roswell HA Royston HA Sandersville HA Savannah HA
Screven County HA
SE Georgia Cons HA Senoia HA Shellman HA

City
Manchester Marietta
Mc Caysville
McDonough McRae Menlo Metter Milledgeville Millen Monroe Monticello Moultrie Mount Vernon Nahunta Nashville Toccoa Newnan Camilla Alma Norcross
Rome Ocilla Fairburn Nashville Pelham Perry Quitman Reidsville Ringgold Roberta Rochelle Roswell Royston Sandersville Savannah
Sylvania
St. Marys Senoia Cuthbert

PH/HCV/Both
PH Both
PH
PH PH PH PH PH PH PH PH PH PH PH PH PH Both PH PH PH
Both PH PH PH PH PH PH PH PH PH PH PH PH PH Both
PH
PH PH PH

PH Units
50 164
88
118 66 20 122 321 86 383 58 328 35 41 159 705 532 42 20 45
943 165 20 21 210 50 202 174 30 70 14 103 185 142 1,938
14
164 31 20

Vouchers
0 1,992
0
0 0 0 0 0 0 0 0 0 0 0 0 0 85 0 0 0
620 0 0 0 0 0 0 0 0 0 0 0 0 0 2,992
0
0 0 0

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PHA Social Circle HA Soperton HA Sparta HA
Statesboro HA
Stewart County HA Summerville HA Swainsboro HA Sylvania HA Sylvester HA Tallapoosa HA Tennille HA Thomaston HA
Thomasville HA Thomson HA Tifton HA Tri-City Housing Authority Unadilla HA Union City HA
Union Point HA Valdosta HA Vidalia HA Vienna HA Villa Rica HA
Warner Robins HA Warrenton HA Washington HA Waycross HA Waynesboro HA West Point HA Winder HA Woodbury HA Wrightsville HA

City Social Circle Soperton Sparta
Statesboro
Lumpkin Summerville Swainsboro Sylvania Sylvester Tallapoosa Tennille Thomaston
Thomasville Thomson Tifton Woodland Unadilla Newnan
Union Point Valdosta Vidalia Vienna Villa Rica
Warner Robins Warrenton Washington Waycross Waynesboro West Point Winder Woodbury Wrightsville TOTAL

PH/HCV/Both PH PH PH
PH
PH PH PH PH PH PH PH PH
PH PH PH PH PH PH
PH PH PH PH PH
PH PH PH PH PH PH PH PH PH

PH Units 70 120 24
148
70 224 244 78 261 211 72 288
254 200 383 67 154 16
61 532 110 80 141
427 100 119 359 387 223 325 12 90
47,929

Vouchers 0 0 0
0
0 0 0 0 0 0 0 0
0 0 0 0 0 0
0 0 0 0 0
0 0 0 0 0 0 0 0 0
63,118

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Appendix B: Income of renters in HOME-funded rental housing

TABLE B1: INCOMES OF RENTERS IN HOME-FUNDED RENTAL HOUSING IN GEORGIA AS OF 09/30/2013

Participating Jurisdiction
Albany Athens-Clarke Atlanta Augusta Clayton County Cobb County Consortium Columbus-Muscogee DeKalb County Fulton County Consortium Gwinnett County Macon Savannah State of GA
National Average

% of tenants of HOME-funded rental housing whose income is 0-30% of AMI (as compared to other renters)
44 40 22 23 Not available 59 48 21 61 5 88 31 31 46

% of tenants of HOME-funded rental housing whose income is 0-50% of AMI (as compared to other renters)
85 88 72 58 Not available 85 68 72 94 45 88 81 79 83

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Appendix C: Section 811 Supportive Housing Grants for People with Disabilities
TABLE C1: SECTION 811 SUPPORTIVE HOUSING GRANTS FOR THE PEOPLE WITH DISABILITIES PROGRAM

Award

Sponsor or Project Name

City

Year

2012 2010 and 2011
2009
2008
2007
2006 2005 2004

Georgia Housing and Finance Authority Georgia Rehabilitation Institute, Inc. Right In The Community, Inc. Right In The Community, Inc. Georgia Behavioral Health Services, Inc. Camellia Manor, Inc The Water Oaks, Inc Right in the Community, Inc. Advocacy Resource Center-Macon, Inc. GA Behavioral Services, Inc. Advocacy Resource Center-Macon, Inc. Right in the Community, Inc. Albany Advocacy Resource Center Inc. GA Rehabilitation Institute, Inc. GA Rehabilitation Institute, Inc. Right in the Community, Inc. ARC Cobb, Inc. Goodwill Industries – Big Bend, Inc. ARC Cobb, Inc. VOA Southeast Inc. Cobb Arc, Inc. Cobb Arc, Inc. Cobb ARC, Inc. Volunteers of America Southeast Inc. Cobb ARC, Inc. Albany Advocacy Resource Center, Inc. Easter Seals of Middle Georgia, Inc. Cobb ARC, Inc.

Atlanta Augusta Austell Austell
Milledgeville Oglethorpe Reynolds Austell
Macon Macon
Macon Marietta
Albany Augusta Augusta Marietta Austell Cairo Mableton Trenton Mableton Marietta Austell Lafayette Mableton
Albany Dublin Kennesaw

Rental Subsidy
$4,160,771 $111,300 $40,500 $40,500
$121,500 $50,700 $50,700 $39,300
$39,300 $98,100
$39,300 $39,300
$67,200 $124,800 $57,600 $38,400 $37,200 $129,600 $37,200 $111,000 $36,000 $36,000 $57,500 $129,000 $57,500
$111,500 $70,000 $56,000

Capital # Units Advance Awarded

-

150

$1,476,200

12

$422,600

4

$422,600

4

$1,224,100

12

$615,100

5

$615,100

5

$428,800

4

$428,800

4

$1,198,800

10

$428,800

4

$428,800

4

$837,300

7

$1,572,500

14

$595,100

6

$412,500

4

$366,800

4

$1,507,800

15

$366,800

4

$1,207,300

13

$341.000

4

$341,000

4

$325,100

4

$778,000

10

$325,100

4

$693,200

8

$431,100

6

$288,400

4

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Award Sponsor or Project Name
Year

2003

Cobb ARC, Inc. Cherokee Day Training Center Cobb ARC. Inc. VOA Southeast, Inc. VOA Southeast, Inc. Cobb ARC, Inc. Easter Seals of Southern Georgia, Inc. VOA Southeast, Inc.
TOTAL

City
Mableton Woodstock Cartersville Griffin Lafayette Marietta
Waycross Waycross

Rental Subsidy
$56,000 $56,000 $54,500 $163,500 $163,500 $54,500

Capital Advance
$288,400 $288,400 $275,100 $853,000 $853,000 $275,100

# Units Awarded
4 4 4 13 13 4

$82,000

$472,800

8

$163,500 $853,000

13

$6,781,271 $21,896,841 392

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Appendix D: Section 202 Supportive Housing for the Elderly Program
The Supportive Housing for the Elderly program (Section 202) helps expand the supply of affordable housing with supportive services for elderly people (age 62 and older). This program provides capital advances to finance the construction and rehabilitation of structures that will serve as supportive housing for very low-income elderly people and provides rent subsidies for the projects to help make them affordable. Section 202 capital advances finance property acquisition, site improvement, conversion, demolition, relocation, and other expenses associated with supportive housing for the elderly. The capital advance does not have to be repaid as long as the project serves very low-income elderly persons for 40 years. Section 202 project rental assistance covers the difference between the HUD-approved operating cost per unit and the tenant’s rent. Project rental assistance contract payments can be approved up to five years. However, contracts are renewable based on the availability of funds.

As with the 811 program, each year HUD publishes a NOFA for the Section 202 funding appropriated by Congress. The NOFA specifies the number of Section 202 units allocated to each HUD jurisdiction and only non-profit organizations are eligible to apply. As seen in Table D1, Georgia has been successful in obtaining over 900 new Section 202 housing units.

In January 2011, the Section 202 Supportive Housing for the Elderly Act of 2010 (referred to as S.118) was enacted. Like the Melville Act described above, this act amends and implements reforms to the Section 202 program. S.118 streamlines and simplifies the program to allow for increased participation by non-profit developers, private lenders, investors and state and local funding agencies.

Currently, no funds have been appropriated for FY 2012 or FY 2013 Section 202 Capital Advances.

TABLE D1: SECTION 202 SUPPORTIVE HOUSING FOR THE ELDERLY PROGRAM

Award Year 2003
2004

Sponsor or Project Name
Trinity Community Development Corporation Retirement Housing Foundation Valdosta Deliverance Evangelistic Center VOA Southeast, Inc. Retirement Housing Foundation SW Georgia Housing Development Corporation United Church Homes DASH for LaGrange, Inc. Housing development Corp. of

City
Albany Macon
Valdosta Waycross Columbus
Cuthbert Jackson LaGrange Oglethorpe

Rental Subsidy

Capital # Units Advance Awarded

$681,000 $3,294,300 50 $1,196,500 $6,056,200 88

$408,500 $1,968,400 30 $449,500 $2,230,900 34 $1,030,000 $5,654,800 75

$250,500 $1,293,400 18 $459,500 $2,480,900 33 $417,500 $2,227,500 31 $445,500 $2,386,100 33

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Award

Sponsor or Project Name

City

Year

Macon

2005 Mercy Housing Southeast, Inc.

Decatur

Broadway Towers Inc.

Lawrenceville

Housing Development Corp. of Macon & Taylor

Reynolds

2006 Salem Baptist Church of Atlanta Inc. Atlanta

Providence Missionary Baptist Church

Atlanta

Valdosta Deliverance Evangelistic Center

Valdosta

2007 Innovative Housing Initiatives

Albany

Family Worship Center Church of God

Cairo

2008 South Atlantic Conference

Atlanta

GA Rehabilitation Institute, Inc.

Harlem

Retirement Housing Foundation

Lithonia

2009 National Church Residences

Atlanta

Family Worship Center Church of God

Cairo

United Church Residence

Savannah

2010 and 2011

Mercy Housing Southeast

Atlanta

Georgia Rehabilitation Institute, Inc. Harlem

VOA Southeast, Inc.

Waycross

Total

Rental Subsidy
$931,500 $602,000
$387,000 $492,000
$402,600
$268,500 $221,700
$157,200 $469,800 $144,000 $508,200 $343,200
$137,400 $382,200 $434,700 $81,000 $131,400 11,432,900

Capital # Units Advance Awarded

$5,390,100 66 $3,418,900 42

$2,194,500 28 $4,780,100 56

$3,929,800 46

$2,438,200 30 $2,228,900 24

$1,578,800 17 $5,211,100 50 $1,607,300 16 $5,626,200 54 $3,906,300 36

$1,443,200 14

$4,337,800 40

$4,719,100 44

$816,000

8

$1,428,100 14

82,646,900 977

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Appendix E: Other Federal Resources
A. Housing Opportunities for Persons with AIDS Program (HOPWA)
HOPWA funding provides housing assistance and related supportive services by grantees who are encouraged to develop community-wide strategies and form partnerships with area nonprofit organizations. HOPWA funds may be used for a wide range of housing, social services, program planning, and development costs. These include, but are not limited to, the acquisition, rehabilitation, or new construction of housing units; costs for facility operations; rental assistance; and short-term payments to prevent homelessness. HOPWA funds also may be used for health care and mental health services, chemical dependency treatment, nutritional services, case management, assistance with daily living, and other supportive services.1

HOPWA funds are awarded through the Consolidated Plan as a block grant to states and larger metropolitan areas based on the incidences of AIDS in these areas and competitively through an annual Notice of Funding Availability (NOFA). In Georgia, the City of Atlanta, the City of Augusta, and the State of Georgia all receive formula allocation funds (see Table 8 Page 16). Table E1 below includes data regarding how these funds are used in Georgia.

TABLE E1: UTILIZATION OF HOPWA FORMULA FUNDING IN 2012-2013

City of Atlanta City of Augusta City of Savannah* State of Georgia
* Indicates a competitive grant

Supportive Services
41.0 32.0 48.0 44.0

% of Expenditures

Housing Assistance

Housing Information
Services

48.0

1.0

56.0

-

42.0

-

48.0

-

Admin
10.0 12.0 10.0 8.0

B. Emergency Solutions Grants (ESG)
On May 20, 2009 President Obama enacted the Homeless Emergency and Rapid Transition to Housing (HEARTH) Act of 2009. The HEARTH Act provides communities with new resources and better tools to prevent and end homelessness, including revamping the ESG program. The key changes that reflect this new emphasis are the expansion of the homelessness prevention component of the program and the addition of a new rapid re-housing assistance component.

The current ESG program provides federal grants to states and localities based on a formula. To receive ESG funds, each state/entitlement community must submit a Consolidated Plan to HUD describing how the ESG resources will be used to meet local needs.

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Under HEARTH, ESG eligible components include:

x Street Outreach x Emergency Shelter x Homelessness Prevention x Rapid Re-Housing x Homeless Management Information Systems (HMIS) x Administration (up to 7.5% of ESG allocation)

Some of these activities, specifically Rapid Re-Housing and HMIS, are new allowable activities under ESG.

In Fiscal Year 2013, Georgia received over $5.2 million in ESG resources.

Atlanta Augusta Clayton County Cobb County De Kalb County Fulton County Gwinnett County Savannah Georgia State Program

TABLE E2: ESG FUNDING IN 2013 Location
TOTAL

FY2013 Allocation
$567,371 $125,715 $134,113 $198,613 $349,366 $123,845 $315,068 $154,069 $3,308,761
$5,276,921.00

C. Grant and Per Diem Program (GPD)

Veteran Affair's Homeless Providers Grant and Per Diem Program is offered annually (as funding permits) by the Department of Veterans Affairs Health Care for Homeless Veterans (HCHV) Programs to fund community agencies providing services to homeless Veterans. The purpose of the program is to promote the development and provision of supportive housing and/or supportive services with the goal of helping homeless Veterans achieve residential stability, increase their skill levels and/or income, and obtain greater self-determination.1 The program provides transitional supportive housing for up to 24 months for veterans. Table E3 below includes a list of some GPD programs in Georgia.

Table E3: GPD Programs in Georgia

Atlanta Atlanta Atlanta

Transition House Inc. Gateway Salvation Army

72 beds 46 beds 64 beds

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Homeless liaisons at the VA medical Centers are the main point of contact for all other VA services and housing programs. Table E4 below provides the VA contact information for Georgia.

TABLE E4: VA HOMELESS COORDINATORS1

Atlanta Augusta Dublin

VA Point of Contact Sally Eddins, LCSW Beverly Knighten Michael Bland

Telephone Number 404-321-6111 ext: 4673 706-733-0188, extension 7426 478-272-1210 ext 2189

Email Address sally.eddins@va.gov Beverly.knighten@va.gov michael.bland@va.gov

D. Support Services for Low-Income Veterans Families (SSVF)
On July 26, U.S. Department of Veterans Affairs (VA) Secretary Eric Shinseki announced the award of 85 new grants under the VA’s new Supportive Services for Veteran Families (SSVF) Program. The SSVF Program is a new VA program that awards grants to private non-profit organizations and consumer cooperatives that will provide supportive services to very lowincome Veterans and their families residing in or transitioning to permanent housing. The grantees will provide a range of supportive services designed to promote housing stability.

As seen in Table E5, in Georgia, 2 grantees received over $1.3 million dollars in SSVF funding in 2012, and in 2013, five more grantees received an additional $5.6 million dollars.

Award Year 2012 2012 2013 2013 2013 2013 2013

TABLE E5: SSVF GRANT AWARDS

Sponsor or Project Name

City

Action Ministries, Inc.

Atlanta

Decatur Cooperative Ministry, Inc. Central Savannah River Area Economic Opportunity Authority, Inc.
Action Ministries

Decatur Augusta Atlanta

Decatur Cooperative Ministry, Inc.

Decatur

Travelers Aid of Metropolitan Atlanta, Inc.

Atlanta

United Way of Metropolitan Atlanta TOTAL

Atlanta

Grant Award 1,000,000 320,720 1,098,918 1,007,000 549,370 1,007,000 2,000,000 6,983,008

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State of Georgia Review of Supported Employment Services Under the United States v. Georgia Settlement Agreement
and the Findings from the State Health Authority Yardstick
Requested by Elizabeth Jones, Independent Reviewer
David Lynde, MSW September 15, 2014

Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 102 of 131 Table of Contents

Settlement Agreement Provisions Executive Summary for the SHAY Report Introduction SHAY Findings Summary Table of Georgia SHAY Scores 2014 Summary Table of Georgia SHAY Scores 2012 – 2014

Page 3 4 5 7 30 31

2

Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 103 of 131
Department of Justice Settlement Agreement
The reviewer was asked to advise again whether the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) has met the requirements of the Settlement Agreement regarding the provision of Supported Employment programs, and then to evaluate the quality of these services by completing a State Health Authority Yardstick (SHAY) review. The Settlement Agreement section on Supported Employment contains the following language:
“Supported Employment i. Supported Employment will be operated according to an evidence-based supported employment model, and it will be assessed by an established fidelity scale such as the scale included in the Substance Abuse and Mental Health Administration (“SAMHSA”) supported employment tool kit. ii. Enrollment in congregate programs shall not constitute Supported Employment. iii. Pursuant to the following schedule… (D) By July 1, 2014, the State shall provide Supported Employment services to 500 individuals with SPMI.”
While it is beyond the scope of the work of this reviewer to check the validity and the reliability of the specific data provided by DBHDD, the data presented from DBHDD and the information confirmed by a variety of stakeholders (including providers) who were interviewed do indicate that DBHDD is complying with the Supported Employment provisions of the Settlement Agreement. According to the “FY 14 Programmatic Report Data: Supported Employment Services,” as of the end of June 2014, there were 998 individuals receiving Supported Employment services under the Settlement Agreement. The monthly rate of employment was 47.3 percent across Supported Employment programs. It is worth noting that 47.3 percent employment is a reasonable and appropriate employment rate for people in Supported Employment services. The SHAY, which was focused on the supported employment “slots” under the Settlement Agreement, may be viewed as an instrument to measure the extent and quality of that compliance.
3

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This document provides a summary of the status of the work that has been done by the DBHDD regarding the implementation and dissemination of evidence based Supported Employment (SE) services for adults with severe mental illness (SMI) in the State of Georgia. This is the fourth SHAY report that has been completed at the request of Elizabeth Jones, Independent Reviewer. The last SHAY report was completed in September 2013.
4

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SHAY Introduction
The State Health Authority Yardstick (SHAY) was designed by a group of mental health researchers and implementers who were interested in assessing the facilitating conditions for the adoption of Evidence-Based Practices (EBPs) created by a state’s health or mental health authority.
The reviewer spent four days in July 2014, specifically; July 28, 29, 30 and 31, reviewing documentation including: agency fidelity reports, monthly programmatic data for SE programs, SE coalition meeting notes, training documents, fidelity outcomes summary, technical assistance and consultation reports, as well as report summaries from an independent SE consultant. During the four days in July 2014, the reviewer also attended meetings with and interviewed a variety of stakeholders in the State of Georgia. The July 2014 interviews and meetings in Georgia included: staff from GA DBHDD, providers of SE services for adults with mental illness, family members, consumers participating in Supported Employment services, staff and the Executive Director from the Georgia Vocational Rehabilitation Agency (GVRA), staff from the Institute on Human Development and Disability at the University of Georgia, and an interview with an independent Supported Employment (SE) trainer and consultant, as well as representatives from consumer and family advocacy organizations and other mental health advocates. Of particular note, the reviewer was also able to meet with Commissioner Frank Berry in person and Deputy Commissioner Judith Fitzgerald by telephone during the July 2014 visit. In addition to July 2014 visit, the reviewer made interim visits to Georgia in October 2013 and December of 2013 as well as in May 2014. During the May 2014 visit, the reviewer met with SE providers and clients and also observed an ACT team. Information from the May 2014 and other interim visits was used in the development of the findings for this report.
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The reviewer was asked to assess the extent that policies, procedures and practices are present in Georgia regarding SE services. Evidence-based Supported Employment is a Substance Abuse and Mental Health Services (SAMHSA) recognized practice that has been repeatedly demonstrated to be the most effective means to help adults with SMI to obtain and retain competitive employment as part of their recovery process.
The reviewer is grateful for the warm and friendly professional courtesies that were graciously extended by the leadership and staff at DBHDD for all of the visits and communications that have occurred over the past year. The reviewer also appreciates the open and frank discussions that occurred at several levels of the Georgia DBHDD system regarding evidence-based Supported Employment services over the same time frame.
The SHAY is a tool for assessing the state health or mental health authority responsible for mental health policy and Medicaid policies in a state. As with the previous report, the scope (or unit of analysis) for the SHAY is focused on the SE slots defined by the “Settlement Agreement.” The SHAY examines the policies, procedures and actions that are currently in place within a state system, or in this case, part of the state system. The SHAY does not incorporate planned activities; rather it focuses exclusively on what has been accomplished and what is currently occurring within a state. For the purposes of this, DBHDD has been identified as the “State Mental Health Authority (SMHA).” This report details the findings from information gathered in each of fifteen separate items contained in the SHAY. For each item, the report includes a brief description of the item and identifies the scoring criteria. Each item is scored on a numerical scale ranging from “five” being fully implemented to a “one” designating substantial deficits in implementation. Recommendations for improvement also are included with each item. A summary table for the scoring of the SHAY items is contained at the end of the report.
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SHAY Findings

1. EBP Plan

The SMHA has an Evidence Based Practices (EBP) plan to address the following:

Present
Present
Present Present Present Present
Present
Present
Present
Present

1. A defined scope for initial and future implementation efforts
2. Strategy for outreach, education, and consensus building among providers and other stakeholders
3. Identification of partners and community champions 4. Sources of funding 5. Training resources 6. Identification of policy and regulatory levers to support
EBP 7. Role of other state agencies in supporting and/or
implementing the EBP 8. Defines how EBP interfaces with other SMHA priorities
and supports SMHA mission 9. Evaluation for implementation and outcomes of the
EBP 10. The plan is a written document, endorsed by the
SMHA

Narrative
As indicated in the 2013 SHAY report, DBHDD has developed a well-written document, “2013 Georgia Department of Health and Developmental Disabilities Supported Employment Strategic Plan” that provides a well-described framework for the implementation of Supported Employment services in the State of Georgia. That plan has been circulated and discussed since its inception.

Given the approaching end of the “Settlement Agreement,” it is strongly recommended that GA DBHDD leadership develop a concise SE plan that focuses exclusively on sustaining the progress that the Department and its partners have made in the development of SE services and the infrastructure to support those services. This plan should describe all efforts and strategies underway to diversify and secure funding for SE providers after the completion of

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the “Settlement Agreement” as well as other activities at the state-level to secure and develop strategic partnerships with agencies like the Georgia Vocational Rehabilitation Agency.

2. Financing: Adequacy
Is the funding model for the EBP adequate to cover costs, including direct service, supervision, and reasonable overhead? Are all EBP sites funded at the same level? Do sites have adequate funding so that practice pays for itself?

Present

1. No components of services are reimbursable
2. Some costs are covered
3. Most costs are covered
4. Service pays for itself (e.g. all costs covered adequately, or finding of covered components compensates for noncovered components)
5. Service pays for itself and reimbursement rates attractive relative to competing non-EBP services.

Narrative
For the purposes of the Settlement Agreement, funding for the designated SE slots (sometimes referred to as “ADA (Americans with Disabilities Act) slots”) remains fixed at the same rate of $410.00 per slot for each provider. This rate has remained unchanged since the beginning of the Settlement Agreement.

Unlike most SE systems, this funding is “slot-specific” and not specific to
individual clients in SE services or tied to SE landmarks or outcomes. Enrollment
in the designated SE slots is defined in the Settlement Agreement:
The target population for the community services described in this Section (III.B) shall be approximately 9,000 individuals by July 1, 2015, with SPMI who are currently being served in the State Hospitals, who are frequently readmitted to the State Hospitals, who are frequently seen in Emergency Rooms, who are chronically homeless, and/or who are being released from jails or prisons.

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b. Individuals with serious and persistent mental illness and forensic status shall be included in the target population, if the relevant court finds that community service is appropriate. While this slot based funding structure is implemented as part of the Settlement Agreement, as was recommended last year, this rate structure still warrants a careful cost-based examination in collaboration with SE providers to evaluate if the rate is adequate for providers. It will be important to transparently share the findings of that cost rate study as well as the data and calculation processes that are used in completing the cost rate study with SE providers and other stakeholders in Georgia.
The most prominent concern among SE providers is that payments for SE services will be radically reduced at cessation of the Settlement Agreement. As one provider summed it up, “We are all deeply concerned that 2016 will be a replay of 2008 all over again.” In 2008, providers stated that rates and reimbursement for SE services were cut substantially resulting in reductions in numerous SE providers and drastic reductions in the availability of SE services across the state.
A second cost consideration raised by the SE providers relates to the nature of clients currently being enrolled in SE slots. Providers are now being asked to enroll clients in the SE slots who meet the “Locus 3” level of need. This has resulted in providers working with clients on SE who have more recent hospital stays and more frequent involvement with the legal system. This results in more SE work to achieve good job matches. As a result, providers feel like the time and work put into the SE slots is more than it was only a few years ago. As one provider stated, “The funding rate has not changed for several years now. It is too low for the increased expectations and the increased accountability we now have for SE services. The current rate just doesn’t pay the costs, we have regular financial struggles with our SE services.”
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Another complication created by the Locus 3 level of need for SE slots is that many people with mental illness who are receiving services are not being provided an opportunity to participate in Supported Employment services. Many providers stated they have had to refuse people with serious mental illnesses who wanted (and most probably would benefit from) SE services because they do not have any capacity to help those people to achieve their employment goals.
Additionally, it is recommended that DBHDD share the existing work they have done on cost modeling with providers as soon as possible so that providers are actively engaged in the new financial modeling process for SE services.

3. Financing: Start-Up & Conversion Costs
Are costs of start up and or conversion covered, including: 1) Lost productivity for staff training, 2) hiring staff before clients enrolled (e.g. ACT), 3) any costs associated with agency planning and meetings, 4) changing medical records if necessary, 5) computer hardware and/or software if necessary, etc.

1. No costs of start-up are covered

2. Few costs are covered

Present

3. Some costs are covered

4. Majority of costs are covered

5. Programs are fully compensated for costs of conversion

Narrative

DBHDD has added some new SE slots in the past year. To their credit, DBHDD leadership has worked with new SE providers by creating access to some training and consultation activities. DBHDD leadership has verbally expressed a commitment to review any written requests from new SE providers regarding potential financial resources for starting SE services.

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4. Training: Ongoing consultation and technical support Is there ongoing training, supervision and consultation for the program leader and clinical staff to support implementation of the EBP and clinical skills:

Present Present Present
Present

1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training)
2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training)
3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months)
4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months)
5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months)

No components covered

Narrative
DBHDD has continued their SE training and consultation agreement with the Institute on Human Development and Disability at the University of Georgia. The training has provided specific modules for SE staff who have experience with the practice and for staff who are new to SE services and have had little to no previous training. The training continues to rely heavily on the use of webinars as the primary source of training. While this is an important ingredient, it is not fully sufficient to help SE provider staff to learn all the skills necessary for high quality SE services.

Numerous providers gave significant and pronounced praise regarding the onsite training and consultation that they received from Ms. Meka McNeal, an independent SE trainer and consultant from Maryland who has been contracted
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by GA DBHDD to provide onsite consultation and training to SE sites that had some challenges with their fidelity scores. One provider described the consultation from Ms. McNeal in this way; “You could not have found a better person on this earth to send us.” Another provider stated, “It was totally different, I expected another person to show up in a suit. Instead she showed up ready to go out into our community and work with our employers beside us.”

It is strongly recommended that GA DBHDD invest the necessary resources to
make onsite, community-based skill demonstrations of SE, as were provided by
Ms. McNeal during her visit, regularly available to all SE programs. The current
training relies too heavily on web-based information and does not support
enough time and resources for SE providers with in the field demonstrations. As
Ms. McNeal wrote in her Technical Assistance, Consultation and Training Report:
“The level of training that program leaders shared with the consultant/trainer doesn’t seem to match with the level of training needed. Most programs reported an online training of IPS and maybe a visit from a trainer. It is suggested that Georgia leaders consider the idea of having two dedicated trainers who would be available to visit programs to provide on-site technical assistance and training.”

5. Training: Quality

Is high quality training delivered to each site? High quality training should include the following:

Present Present Present Present
Present

1) Credible and expert trainer
2) Active learning strategies (e.g. role play, group work, feedback
3) Good quality manual, e.g. SAMHSA Toolkit 4) Comprehensively addresses all elements of the EBP
5) Modeling of practice for trainees, or opportunities to shadow/observe high fidelity clinical work delivered
6) High quality teaching aides/materials including workbooks/work sheets, slides, videos, handouts, etc., e.g. SAMHSA Toolkit

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Narrative GA DBHDD has continued their ongoing training relationship with the Institute on Human Development and Disability at the University of Georgia. One additional improvement in the training process that was made by GA DBHDD is the inclusion of the opportunity for SE programs with good fidelity scores to act as shadow or demonstration sites for other SE programs. Many providers stated they have already taken advantage of this additional training resource and providers strongly indicated this process is very beneficial to all parties involved. As one provider described it, “We have done visits with other agencies. It is good to see what they are doing. We are not looking at it as good versus bad, instead we see it as a chance to get good quality improvement ideas instead of just being in our own little world.” Once again, it is strongly recommended that DBHDD find the resources to provide site based modeling of SE skills and site based observations of providers using SE skills in their communities with clients and potential employers. See the narrative under “4. Training: Ongoing consultation and technical support.”
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6. Training: Infrastructure / Sustainability

Has the state established a mechanism to allow for continuation and expansion of training activities related to this EBP, for example relationship with a university training and research center, establishing a center for excellence, establishing a learning network or learning collaborative. This mechanism should include the following components:

Present Present Present
Present Present Present
Present

1) Offers skills training in the EBP 2) Offers ongoing supervision and consultation to clinicians
to support implementation in new sites 3) Offer ongoing consultation and training for program EBP
leaders to support their role as clinical supervisors and leaders of the EBP 4) Build site capacity to train and supervise their own staff in the EBP 5) Offers technical assistance and booster trainings in existing EBP sites as needed 6) Expansion plan beyond currently identified EBP sites 7) One or more identified model programs with documented high fidelity that offer shadowing opportunities for new programs 8) SMHA commitment to sustain mechanism (e.g. center of excellence, university contracts) for foreseeable future, and a method for funding has been identified

No components covered

Narrative As previously recognized, DBHDD has made some enhancements regarding the provision of SE trainings and consultation services for SE providers in the state. The previously stated recommended addition of available resources to provide on-site modeling and demonstrations of SE skills in the community by a skilled SE trainer would be a substantial improvement in this area.

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7. Training: Penetration
What percent of sites have been provided high quality training
(Defined as having a score of “3 or higher” on item #4. Training: Ongoing consultation and technical support)
Ongoing training should include 3 or more of the following components: 1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training) 2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training) 3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months) 4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months). 5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months)

Present

1. 0 – 20 % 2. 20 – 40% 3. 40 – 60% 4. 60 – 80% 5. 80 – 100%

Narrative
DBHDD continues to provide some level of SE training and consultation services to numerous SE providers across the state.

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8. SMHA Leadership: Commissioner Level
Commissioner is perceived as a effective leader (influence, authority, persistence, knows how to get things done) concerning EBP implementation who has established EBPs among the top priorities of the SMHA as manifested by:

Present Present
Present Present
Present

1) EBP initiative is incorporated in the state plan, and or other state documents that establish SMHA priorities
2) Allocating one or more staff to EBP, including identifying and delegating necessary authority to an EBP leader for the SMHA
3) Allocation of non-personnel resources to EBP (e.g. money, IT resources, etc.)
4) Uses internal and external meetings, including meetings with stakeholders, to express support for, focus attention on, and move EBP agenda
5) Can cite successful examples of removing policy barriers or establishing new policy supports for EBP

Narrative The Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities is Frank Berry who was interviewed in person once again during this review. Deputy Commissioner Judith Fitzgerald made herself available by telephone during the same time. Providers as well as all other stakeholders in the Georgia system continue to praise the Commissioner for his leadership regarding SE services. As one provider, who seemed to speak for many stated, “Commissioner Berry speaks about SE publicly wherever he goes. He talks about a recovery vision that includes housing and employment. The Commissioner has been very supportive regarding Supported Employment.”

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9. SMHA Leadership: Central Office EBP Leader There is an identified EBP leader that is characterized by the following:

Present Present Present Present

1) EBP leader has adequate dedicated time for EBP implementation (min 10%), and time is protected from distractions, conflicting priorities, and crises
2) There is evidence that the EBP leader has necessary authority to run the implementation
3) There is evidence that EBP leader has good relationships with community programs
4) Is viewed as an effective leader (influence, authority, persistence, knows how to get things done) for the EBP, and can site examples of overcoming implementation barriers or establishing new EBP supports

Narrative
The SE staff members at GA DBHDD have established good working relationships with the SE providers in their community using an integrated team approach. When asked which person at GA DBHDD a provider would contact for assistance, providers replied that they have a range of options and resources available to them. Providers stated their communications with the SE team at DBHDD have been respected and DBHDD staff has been very responsive. Providers identified four key people that have been helpful and accessible; Dr. Timberlake, Vernell Jones, Tammatha Kinder and Erica Walker. GA DBHDD has made significant strides in forging and continuing to develop these positive provider relationships.	  
	  

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10. Policy and Regulations: Non SMHA State Agencies
The SMHA has developed effective interagency relations (other state agencies, counties, governors office, state legislature) to support and promote the EBP as necessary/appropriate, identifying and removing or mitigating any barriers to EBP implementation, and has introduced new key facilitating regulations as necessary to support the EBP.
Examples of supporting policies: • Medicaid agency provides reimbursement for the EBP (If Medicaid not under the SMHA) • The state’s vocational rehabilitation agency pays for supported employment programs
Examples of policies that create barriers: • Medicaid agency excludes EBP, or critical component, e.g. disallows any services delivered in the community (If Medicaid agency not under the SMHA) • State vocational rehabilitation agency does not allow all clients looking for work access to services, or prohibits delivery of other aspects of the supported employment model

Present

Virtually all policies and regulations impacting the EBP serve as barriers On balance, policies that create barriers outweigh policies that support/promote the EBP Policies that support/promote the EBP are approximately equally balanced by policies that create barriers On balance, policies that support/promote the EBP outweigh policies that create barriers Virtually all policies and regulations impacting the EBP support/promote the EBP

Narrative GA DBHDD has made some new and significant progress in this area by launching two new pilot sites to demonstrate and further understand how SE services can be provided in a collaborative partnership with the Georgia Vocational Rehabilitation Agency (GVRA). Several states have increased the success of both agencies by developing strong working affiliations between behavioral health and state vocational rehabilitation services. Both clients and staff from both GVRA and an SE provider were interviewed regarding their work together. The universal experience at the pilot site appears to be one of great

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receptivity from all parties. Clients described the pilot as being very receptive to their needs as well as their individual employment goals. Staff from GVRA provided insights about their learning, as one Vocational Rehabilitation counselor described it;
“By sitting in on the integrated team meetings (SE employment specialist and other members of the client’s mental health treatment team), I began to learn about all the supports that are in place and working with the client. Previously, I might have thought, do I want to put my reputation on the line for a person with a mental illness? But now I have begun to understand all the services that are wrapped around this person to help them with their challenges.”
Conversely, one employment specialist stated, “By having the VR Counselor sitting in on our team meetings, I began to understand the concerns that VR has and I have started thinking more about how can we help VR to address those concerns.”
The lessons learned in these pilot sites and the successful capturing and sharing of those lessons across the system provide critical ingredients to further develop the GVRA and GA DBHDD collaboration regarding SE services to better benefit clients. The Executive Director of GVRA is clearly supportive of this pilot work and building upon the lessons learned at these pilot sites.
There remains significant work to do across the state to improve relationships between SE providers and GVRA. While some providers describe good working relationships, other providers continue to state they have no working partnerships at all with GVRA staff. As one provider stated, “They (GA DBHDD) keep saying things will improve with Vocational Rehabilitation. It will really happen. Things will get better. But nothing is happening in our area. Nothing is better in our area of the state.” Another provider echoed this concern, “We are still not getting any access to state vocational rehabilitation services for the clients we are working with.” And a third provider stated their view of attempting to work with the state’s vocational rehabilitation services in this way, “Working with VR (vocational rehabilitation) the way they work now is against fidelity for Supported Employment services because the vocational rehabilitation counselors want lots
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of pre-employment assessments and lots of pre-vocational testing done before looking at competitive employment for our clients.”
Developing a collaborative partnership between GA DBHDD and GVRA will not only help citizens of Georgia with a mental illness to more effectively obtain competitive employment, but it will also serve to strengthen both agencies. Many states have worked with a funding structure that is currently being discussed in Georgia whereby some state dollars from DBHDD might be reallocated to GVRA who might use those funds to draw down more federal matching dollars for state vocational rehabilitation services. (Apparently Georgia has left millions of federal vocational rehabilitation matching dollars on the table over the past three years.) The increased matched federal funds are then used to provide state vocational rehabilitation services to people with serious mental illnesses, and in several places, those funds have also been used to hire or develop specialized vocational rehabilitation counselors who are trained to work effectively with SE programs and job candidates with mental illness.
A second key partner in this area is the State’s Medicaid division. GA DBHDD is working with the State’s Medicaid division to develop diversified funding for SE services. Continued work on this will benefit SE services over the long run— especially when considering factors that contribute to successful sustaining of SE services.
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11. Policies and Regulations: SMHA

The SMHA has reviewed its own regulations, policies and procedures to identify and remove or mitigate any barriers to EBP implementation, and has introduced new key regulations as necessary to support and promote the EBP.

Examples of supporting policies:
• SMHA ties EBP delivery to contracts • SMHA ties EBP to licensing/ certification/ regulation • SMHA develops EBP standards consistent with the EBP model • SMHA develops clinical guidelines or fiscal model designed to support
model EBP implementation Examples of policies that create barriers:
• SMHA licensing/ certification/ regulations directly interfere with programs ability to implement EBP

Present

Score: 1. Virtually all policies and regulations impacting the EBP act as barriers 2. On balance, policies that create barriers outweigh policies that support/promote the EBP 3. Policies that are support/promote the EBP are approximately equally balanced by policies that create barriers 4. On balance, policies that support/promote the EBP outweigh policies that create barriers 5. Virtually all policies and regulations impacting the EBP support/promote the EBP

Narrative
DBHDD has incorporated language into their contracting procedures that Supported Employment providers are required to provide SE services consistent with the description of evidence-based Supported Employment in the SAMHSA toolkits as well as most of the identified principles of evidence-based Supported Employment services.

A concern that was raised in the 2013 SHAY report that continues to exist is the relationship between SE providers and the “vocational specialists” that are on Assertive Community Treatment (ACT) teams. It appears that the vocational

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specialists on ACT teams are not helping clients to directly obtain employment in their communities. Instead, employment providers and others universally regard these vocational specialists as “doing nothing about employment.” Many providers stated they are contacted by ACT teams to provide SE services despite the presence of designated and funded “vocational specialists” on ACT teams. Several providers feel like the “vocational specialist” acts like a “gatekeeper” to decide who can and who cannot be referred out to SE services. While referring services outside of a team is contrary to established principles of ACT, the idea of a gatekeeper is likewise contrary to the very principles of SE services.

Staff at DBHDD stated they have raised this concern with ACT providers; however, raising the concern has not appeared to change any behaviors. Given the limited availability for employment services and the high interest in the State of Georgia, it seems crucial to actively address the lack of employment services being provided by “vocational specialists” on ACT teams. 11. Policies and Regulations: SMHA EBP Program Standards

The SMHA has developed and implemented EBP standards consistent with the EBP model with the following components:

Present
Present
Present Present

1) Explicit EBP program standards and expectations, consonant with all EBP principles and fidelity components, for delivery of EBP services
2) SMHA has incorporated EBP standards into contracts, criteria for grant awards, licensing, certification, accreditation processes and/or other mechanisms
3) Monitors whether EBP standards have been met
4) Defines explicit consequences if EBP standards not met (e.g. contracts require delivery of model supported employment services, and contract penalties or nonrenewal if standards not met; or licensing/accreditation standards if not met result in consequences for program license.)

Narrative

As stated previously, DBHDD has included language in provider contracts that specifies that SE services will be consistent with the principles of evidence-based

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Supported Employment services as described in the SAMHSA Supported Employment toolkit. The leadership at DBHDD appears to actively track and share information regarding how well providers are meeting these expectations.

12. Quality Improvement: Fidelity Assessment

There is a system in place for conducting ongoing fidelity reviews by trained reviewers characterized by the following components:

Present Present
Present Present Present Present Present
Present

1) EBP fidelity (or functional equivalent designed to assess adherence to all critical components of the EBP model) is measured at defined intervals
2) GOI fidelity (or functional equivalent designed to assess adherence to all critical components required to implement and sustain delivery of EBP) is measured at defined intervals.
3) Fidelity assessment is measured independent – i.e. not assessed by program itself, but by SMHA or contracted agency
4) Fidelity is measured a minimum of annually 5) Fidelity performance data is given to programs and
used for purposes of quality improvement 6) Fidelity performance data is reviewed by the SMHA +/-
local MHA 7) The SMHA routinely uses fidelity performance data for
purposes of quality improvement, to identify and response to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.) 8) The fidelity performance data is made public (e.g. website, published in newspaper, etc.)

No components covered

Narrative
The leadership at GA DBHDD has built a credible, experienced and trained staff to provide regular and consistent fidelity reviews for all designated SE providers in the State. To their credit, the leadership has also posted the information regarding provider fidelity reviews for each agency on their website. GA DBHDD

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has also taken specific actions with one SE provider who did not achieve a basic level of fidelity by not contracting with that provider for SE slots.
DBHDD also recently hosted a roundtable discussion regarding SE fidelity for providers to raise questions and concerns about the fidelity process. To their credit, DBHDD has providers now interested in and invested in their fidelity findings. As one provider stated, “Fidelity reviews give me the ideas and ways to improve our SE services.” Another commented, “Fidelity helps me to better understand what they (DBHDD) are looking for, like the vocational rehabilitation relationship and employer contacts.”
At the same time, providers voiced numerous concerns about how some specific items regarding fidelity are being monitored and scored. There were plentiful concerns about the fidelity items related to diversity of jobs and diversity of employers. Some providers reported being marked down for a diversity of employers because clients were working for the same chain of restaurants but in completely different towns. Other providers stated they feel they are in a double bind, on one hand they are asked to honor client preferences about where they want to work, while on the other hand they are marked down on their scoring for following those client preferences. As one frustrated provider stated, “What am I supposed to do when a client says that is where they want to work? Should I tell the client, I know you want to work there but I can’t let you because of fidelity?”
Providers also voiced abundant concerns and misgivings regarding the use and scoring of the fidelity scale for core providers versus specialty (employment only) providers. Specialty providers feel they are unable to force core providers to hold integrated team meetings for SE services, yet they are being marked down for not attending those meetings. As on specialty provider stated, “I attend every single meeting they invite me to every month. What else can I do, I can’t make them hold meetings? That is all I can do.”
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In order to maintain the successful progress that has been made to integrated fidelity measures into the GA DBHDD system, it is vital for DBHDD leadership to find ways to address and remediate these provider concerns and questions regarding SE fidelity.

14. Quality Improvement: Client Outcomes
A mechanism is in place for collecting and using client outcome data characterized by the following:

Present
Present Present Present
Present Present

1) Outcome measures, or indicators are standardized statewide, AND the outcome measures have documented reliability/validity, or indicators are nationally developed/recognized
2) Client outcomes are measured every 6 months at a minimum
3) Client outcome data is used routinely to develop reports on agency performance
4) Client specific outcome data are given to programs and practitioners to support clinical decision making and treatment planning
5) Agency performance data are given to programs and used for purposes of quality improvement
6) Agency performance data are reviewed by the SMHA +/- local MHA
7) The SMHA routinely uses agency performance data for purposes of quality improvement; performance data trigger state action. Client outcome data is used as a mechanism for identification and response to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.).
8) The agency performance data is made public (e.g. website, published in newspaper, etc.)

Narrative DBHDD has made some progress in this area. Outcome reports are now made available to providers on a regular basis. Providers were aware of the general outcomes for people in SE services across the state. However, the outcomes for SE programs do not appear to be available on the GA DBHDD website where SE fidelity reports are readily accessible.

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Tracking specific individual outcomes for SE is an important tool for sustainability and for ongoing quality improvement for SE services. One fidelity reviewer reported interviewing a client who was employed and in Supported Employment services for 18 years. When using a slot-based outcome tool, this person would continue to be on the report as competitively employed; however, when using individual client-level data, a strong case would be made for helping this person to transition their employment supports to other sources and then opening up a new SE position for another unemployed client who would benefit from SE services.
Tracking individual client-level SE outcomes also allows the leadership at DBHDD to build a case for sustaining SE with specific data. For example: Did the person use fewer services after starting employment? Did the person stay out of the hospital longer after starting employment? How long has the person remained in employment? As one stakeholder observed,
“We have not done enough to describe all the good things that have happened to people in Supported Employment services in the DOJ (Department of Justice) slots as reasons to show that SE works here in Georgia. That should be the case we are making to keep SE after the Settlement Agreement is over.”
The following text regarding tracking client level specific outcomes is repeated from the 2013 SHAY report as it continues to be relevant and not addressed:
“In the outcome system redesign, it is recommended that DBHDD incorporate measures to address the challenges inherent in the DOJ SE slots mechanism. Currently, providers report only the percentage of people in those slots who were working in competitive employment during the month. While this is an important data component, it is not sufficient for assuring that SE services are being effective. For example, a program may be helping clients to get jobs but not helping them to keep jobs, so
26

Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 127 of 131
clients may be quickly losing jobs and are not able to benefit from employment. This non-recovery-oriented approach to SE would not be detected with the current outcome process. As another example, a program may be helping the clients who are working to keep their jobs but not helping any of the unemployed clients to obtain jobs. Once again, this non-recovery-oriented approach to SE would not be detected in the current SE outcome process.”
A comprehensive outcome system that identifies individual client-level specifics about SE services is crucial to providing the most effective and the most accountable SE services within the state. Some specific information that should be captured in such a system includes:
• Length of time the person has been in SE services • Length of time between the person entering SE services and obtaining
employment • Length of time the person has been employed • Length of time the person has had “stable” employment • Number of SE clients successfully graduated from SE services while
employed. Client level data would allow people to build a data based story, combined with personal narratives regarding Supported Employment in Georgia. As one SE participant reflected:
“Being in Supported Employment is very encouraging in terms of work. You have a person checking things out with you and sometimes for you. Having an employment specialist in your corner is encouraging and hopeful. You keep looking for a job because of the supports.”
And another employed participant stated, “I have a job now because of my employment specialist. I was very picky in looking for a job and she listened to me. They found me a job with the City but that was indoors and I wanted to work outdoors. They kept asking me what I wanted to do. We are encouraged to follow what we want to do. My employment specialist wanted me to choose where I wanted to go to work. She has been very supportive.”
27

Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 128 of 131

15. Stakeholders

The degree to which consumers, families, and providers are opposed or supportive of EBP implementation.

Consumer Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

4. Generally supportive, but no partnerships, or active proponents.

Present

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

Family Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

Present

4. Generally supportive, but no partnerships, or active proponents.

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

Provider Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

4. Generally supportive, but no partnerships, or active proponents.

Present

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

5

15. Summary Stakeholder Score: (Average of 3 scores below)

5

15.a Consumers Stakeholders Score

4

15.b Family Stakeholders Score

5

15.c Providers Stakeholders Score

28

Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 129 of 131 Narrative The support and engagement among providers and consumers in Georgia for Supported Employment services appears to be quite strong. Given the concerns that have been raised and echoed regarding the potential for significant cuts and reductions in SE services, this seems like a critical time for the leadership at GA DBHDD to actively engage supportive stakeholders in a formal planning and communication process regarding specific strategies and ideas for sustaining the gains the State of Georgia had made under the current “Settlement Agreement” in order to avoid the worst fears of many. As one stakeholder put it, “We have a history here in this State of being in compliance with things until we are no longer forced to remain in compliance.”
29

Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 130 of 131

Summary Table of Georgia SHAY Scores 2014

1.EBP Plan

5

2.Financing: Adequacy

3

3.Financing: Start-up and Conversion Costs

3

4.Training: Ongoing Consultation & Technical Support

4

5.Training: Quality

4

6.Training: Infrastructure / Sustainability

5

7.Training: Penetration

5

8.SMHA Leadership: Commissioner Level

5

9.SMHA Leadership: EBP Leader

5

10. Policy and Regulations: Non-SMHA

4

11. Policy and Regulations: SMHA

4

12. Policy and Regulations: SMHA EBP Program Standards 5

13. Quality Improvement: Fidelity Assessment

5

14. Quality Improvement: Client Outcome

4

15. Stakeholders: Average Score

5

(Consumer, Family, Provider)

66

Total SHAY Score

4.4

Average SHAY Item Score

30

Case 1:10-cv-00249-CAP Document 192-2 Filed 09/18/14 Page 131 of 131

Summary Table of Georgia SHAY Scores 2012 – 2014

SHAY Item 1.EBP Plan

2012 2013 2014

score score score

4

5

5

2.Financing: Adequacy

3

3

3

3.Financing: Start-up and Conversion Costs

1

2

3

4.Training: Ongoing Consultation & Technical Support 2

4

4

5.Training: Quality

3

4

4

6.Training: Infrastructure / Sustainability

3

4

5

7.Training: Penetration

1

5

5

8.SMHA Leadership: Commissioner Level

4

5

5

9.SMHA Leadership: EBP Leader

3

5

5

10. Policy and Regulations: Non-SMHA

2

3

4

11. Policy and Regulations: SMHA

4

4

4

12. Policy and Regulations: SMHA EBP Program Standards
13. Quality Improvement: Fidelity Assessment

3

5

5

3

4

5

14. Quality Improvement: Client Outcome

3

3

4

15. Stakeholders: Average Score (Consumer, Family, Provider)
Total SHAY Score
Average SHAY Item Score

4

5

5

43

61 66

2.9 4.0 4.4

31

 
 ~., , I}~:

U.S. Department of Justice Civil Rights Division

JMS:MRB:RAK:KH:RB:JH:sh 168-19-74, -75; -19M-68, -69, -70; -20-45 , -46

Special Liligalion Section - PHB 950 Pennsylvania Ave, NW Washing/on DC 20530
September 20, 2013

BY ELECTRONIC MAIL
Frank W. Berry, Commissioner Georgia Department of Behavioral Health and Developmental Disabilities 2 Peachtree Street, NW Atlanta, GA 30303
Clyde 1. Reese III, Commissioner Georgia Department of Community Health 2 Peachtree Street, NW Atlanta, GA 30303
Re: United States v. Georgia, No.1 :10-CV-249-CAP, Year Three Compliance
Dear Commissioners Berry and Reese:
We write to offer the United States' assessment of the State's third year under the Settlement Agreement in this matter, Doc. Nos. 112, 115, 151 & 171. We applaud both the significant strides made by the State in the mental health arena and the efforts underway in the developmental disabilities arena. The State's actions have benefitted hundreds if not thousands of individuals with mental illness in Georgia, and we expect a similar benefit for vulnerable individuals with developmental disabilities.
Year Two
We are mindful of where this case stood one year ago. Two years into the Settlement Agreement, the State's Assertive Community Treatment teams faced significant challenges, and the State's nascent Quality Management System was behind schedule. These vital pieces of a properly functioning community mental health system stood on a razor's edge.
Assertive Community Treatment is a mental health treatment team that delivers comprehensive, individualized, and fl exible support to individuals with mental illness where they live and work. It is a vital support for serving some of the most vulnerable individuals with mental illness in integrated, community settings. Despite the State's good faith efforts at implementation, roughly half of the State's teams under the Agreement were failing at providing this service with fidelity. We agreed to defer the compliance rating in exchange for the State agreeing to work with the Independent Reviewer, both to perform a root cause analysis of the

-2 ­
teams' problems and to implement a corrective action plan to fix the underl ying problems and prevent additional problems going forward. Doc. No. 143 & 145.
Quality Management, on the other hand, utilizes data, analysis, and feedback loops to enable a state mental health system to self-identify and self-correct issues before and as they arise. It is the primary system component for ensuring that individual s receive safe, quality, and integrated services-outcomes foundational to a state's service system. Last year, the system was too nascent to meet the reporting schedule required by the Agreement. We agreed to push back by six months the begirll1ing and ending reporting dates under the Agreement, and the State agreed to enlist expert technical assistance and to provide us with a provi sional report upon which to comment. Doc. No. 143 & 145. The Court approved these approaches and modified the Agreement accordingly. Doc. No. lSI.
Year Three
The State' s turnaround in both Assertive Community Treatment and Quality Management was stunning. By the end of the year, the State was serving more than 1200 individuals through 22 full-fidelity Assertive Community Treatment teams. The State Plan on Assertive Community Treatment is now a model plan that clearly describes how the State intends to support the team service model. Throughout the year, funding mechani sms were changed to improve the sustainability of team services, training and technical assistance to teams was responsive to team needs, and monitoring of team fidelity was solid. In the area of Quality Management, the State's Plan now establishes a blueprint for the operation of an effective Quality Management program. The Plan includes a comprehensive description of the State's Quality Management leadership, organization, and structure, along with a work plan that sets forth measurable and realistic goals for the year and identifies specific tasks, responsible persons, and target completion dates in order to accomplish those goals. We commend the State's thoughtful incorporation of feedback from our Quality Management consultant, Linda Redman. In each provision under each area, the State received ratings of substantial compliance.
All told, the Independent Reviewer, Elizabeth Jones, rated the State substantiall y compliant with 68 of the 70 provi sions scored in Year Three of the Agreement. Doc. No. 175 at 13- 25. These bare numbers represent real services for real people in community settings. In addition to Assertive Community Treatment, the State provided: toll-free, statewide access to information about community resources and to crisis call response; a 24-hour crisis walk-in center; two crisis stabilization programs to divert individuals in crisis from hospitali zation ; mobile crisis services to respond to crises in 100 of the State' s 159 counties; four Community Support Teams, three Intensive Case Management teams, and 15 Case Management service providers supporting more than 2200 individual s with mental illness in community-based settings; supported housing vouchers to more than 1000 individuals; supported employment serv ices to almost 700 individuals; and peer support services to almost 600 individual s. We note, in particular, the State's continued excellence in supported housing. Stable housing can act as a key foundation in helping an individual recover from mental illness, and the State once again exceeded the Agreement's housing requirements by more than 20%.

-3­
We pause to note that the State's service system for individuals with developmental disabilities now stands on its own razor's edge. To be sure, the State once again exceeded the requirements for responding to individuals with developmental disabilities in crisis, both in the number of mobile crisis teams and the number of crisis respite homes, which together served almost 1000 individuals this past year. The State also far exceeded the required number of diversion waivers, which divert individuals from institutionalization by providing the home and community-based services that individuals with developmental disabilities need to live independently. The State created 597 total new waivers this review period, more than double the total requirement of 250, a significant financial commitment and achievement by the State for serving individuals with developmental disabilities in community settings.
However, the State has continued to struggle with implementing quality service plans for individuals with developmental disabilities. This area is central to the State providing safe, integrated community services to individuals with developmental disabilities. After consecutive findings of noncompliance in Years One and Two, the Parties and Ms. Jones began intensive collaborative efforts to address the quality issues. See Doc. No. 170 at 3-4. Recognizing that these efforts require time to take root and bear fruit, and seeing the success of the previous year's conditioned deferrals, we agreed to defer the compliance rating for six months, after which the Ms. Jones will issue a focused compliance report. In turn, the State agreed to increased oversight by Ms . Jones and to seek technical assistance on critical issues. The Court approved this approach and modified the Agreement accordingly. Doc. No. 171.
Year Four
Looking ahead, the State has many important milestones in the coming year. In the mental health arena, efforts already are underway to bring the State's crisis apartments, which generated the only two noncompliance ratings this review period, in line with the requirements of the Agreement. Efforts also are underway to analyze and meet the housing capacity required by the end of Year Five of the Agreement. Moreover, the State will need to connect together the Agreement's individual service provisions to transform the system from properly-laid building blocks into a functioning, connected mental health system. In the developmental disabilities arena, the continued focus on quality and integration for individuals with developmental disabilities is paramount. Key pieces include the thoughtful transition of individuals from the State Institutions, the support coordination received by individuals, the quality of integrated day activities provided to individuals, and the careful oversight of these efforts by the State.
Conclusion
We applaud the State's continued embrace of the Agreement. We carU10t overstate the importance of the collaborative, open, and candid leadership brought to bear this year by Commissioner Berry, Deputy Commissioner Judy Fitzgerald, and Settlement Agreement Coordinator Pamela Schuble as the Parties problem solved barriers to successful implementation of the Agreement. Also key was the State's continued close collaboration with Ms. Jones and her consultants, Angela Rollins, David Lynde, and Martha Knisley. We further commend the Department of Behavioral Health and Developmental Disability's substantial commitment of resources and burgeoning outreach to the stakeholder amici group; the Department of

-4­
Community Health' s accessibility and responsiveness to Ms. Jones; and the Georgia Legislature's continued approval of the funding required for the implementation of the Agreement. Finally, we thank Ms. Jones for her tireless diligence, insight, professionalism, and attention to detail. All of these pieces are critical for the State ultimately to reach the outcomes required by the Agreement and accomplish the purpose and goal of the Agreement-that Georgians with developmental disabilities and mental illness live integrated, meaningful, safe, and self-directed lives. In the words of one individual receiving supported employment services under the Agreement: "When I am at my job, I don't feel like I have a mental health issue. When I am at my job, people treat me like a person who does his job. I look forward to getting up and goi ng to work everyday." Doc. No. 175 at 97.
If you have any questions, please do not hesitate to contact me at (202) 514-6255, or the attorneys assigned to this matter: Robert Koch at (202) 305-2302, Katherine Houston at (202) 307-0652, or Regan Bailey at (202) 353-3113.

cc: Mark H. Cohen Special Assistant Attorney General State of Georgia
Josh Belinfante 
 Special Assistant Attorney General 
 State of Georgia 

Elizabeth Jones 
 Independent Reviewer 

Ai leen Bell-Hughes 
 Assistant United States Attorney 
 Northern District of Georgia 


Special Litigation Section

 
 Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 1 of 113

IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION


UNITED STATES OF AMERICA,

)


)


Plaintiff,

)


)


v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

______________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

NOTICE OF JOINT FILING OF THE REPORT OF THE INDEPENDENT REVIEWER

Plaintiff United States and Defendants State of Georgia, et al., hereby

jointly file the report of the Independent Reviewer pursuant to ¶ VI.B of the

Settlement Agreement [Docket Nos. 112, 115, 151 & 171]. The Independent

Reviewer’s report (with its referenced attachments) is included as

Attachment A hereto.

Respectfully submitted,

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 2 of 113

FOR THE UNITED STATES: SALLY QUILLIAN YATES United States Attorney Northern District of Georgia
/s/ (Express Permission)___ AILEEN BELL HUGHES
[GA 375505]
Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division
EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
/s/ Robert A. Koch_________________ ROBERT A. KOCH [OR 072004] KATHERINE HOUSTON [CA 224692] REGAN BAILEY [WA 39142] Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 305-2302 Fax: (202) 514-0212 Email: Robert.Koch@usdoj.gov

2


Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 3 of 113

FOR THE STATE OF GEORGIA:

SAMUEL S. OLENS Attorney General Georgia Bar No. 551540

DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
JENNIFER DALTON Senior Assistant Attorney General Georgia Bar No. 614120
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-0942 Facsimile: (404) 463-1062 Email: jdalton@law.ga.gov

/s/ (Express Permission)___ MARK H. COHEN Special Assistant Attorney General Georgia Bar No. 174567 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
/s/ (Express Permission)___ JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsFreed 999 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 601-6733 Email: josh.belinfante@robbinsfirm.com

3


Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 4 of 113
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Century Schoolbook, 13-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch________ ROBERT A. KOCH Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section
4


Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 5 of 113

IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION


UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al., )

)

Defendants.

)

_________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Notice of Joint Filing of the

Report of the Independent Reviewer was electronically filed with the

Clerk of Court using the CM/ECF system, which automatically serves

notification of such filing to all counsel of record.

This 19th day of September, 2013.

/s/ Robert A. Koch________ ROBERT A. KOCH Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section

5 


Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 6 of 113

ATTACHMENT A


Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 7 of 113
	   	   	   	   REPORT	  OF	  THE	  INDEPENDENT	  REVIEWER	   In	  The	  Matter	  Of	   United	  States	  of	  America	  v.	  The	  State	  of	  Georgia	   	   Civil	  Action	  No.	  1:10-­‐CV-­‐249-­‐CAP	   	   	   	   	   	   	   	   	   	   	   	   Submitted	  By:	  Elizabeth	  Jones,	  Independent	  Reviewer	   September	  19,	  2013	   	   	   	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 8 of 113
INTRODUCTORY	  COMMENTS	  
This	  is	  the	  third	  Report	  issued	  on	  the	  status	  of	  compliance	  with	  the	  provisions	  of	  the	  Settlement	   Agreement	  in	  United	  States	  v.	  Georgia.	  The	  Report	  documents	  and	  discusses	  the	  State’s	  efforts	  to	  meet	   obligations	  to	  be	  completed	  by	  July	  1,	  2013.	  
Based	  on	  the	  many	  sources	  of	  information	  available	  to	  the	  Independent	  Reviewer	  and	  her	  expert	   consultants	  in	  supported	  housing,	  supported	  employment	  and	  Assertive	  Community	  Treatment	  (ACT),	  it	   is	  clear	  that	  the	  majority	  of	  obligations	  in	  this	  third	  year	  related	  to	  the	  support	  of	  individuals	  with	  a	   mental	  illness	  have	  been	  met	  or	  exceeded.	  The	  flexibility	  granted	  by	  the	  Court,	  in	  its	  Order	  of	  August	  29,	   2012,	  for	  the	  restructuring	  of	  the	  eight	  ACT	  teams	  and	  the	  Quality	  Management	  system	  has	  led	  to	  very	   productive	  results.	  	  	  
Despite	  multiple	  demands	  and	  economic	  constraints,	  the	  Governor	  and	  the	  Georgia	  General	  Assembly	   approved	  the	  funding	  required	  for	  the	  full	  implementation	  of	  the	  Settlement	  Agreement	  in	  the	  third	   year.	  	  
Although	  there	  are	  serious	  systemic	  issues	  still	  to	  be	  resolved	  regarding	  the	  transition	  of	  individuals	  with	   a	  developmental	  disability	  from	  state	  hospitals	  to	  community	  settings,	  there	  has	  continued	  to	  be	  a	   strong	  focus	  on	  the	  necessary	  reforms.	  The	  Commissioner’s	  decision,	  in	  May	  2013,	  to	  suspend	  such	   community	  placements	  until	  health,	  safety	  and	  habilitation	  could	  be	  assured	  was	  a	  critical	  moment	  in	   the	  transformation	  of	  this	  component	  of	  the	  Department.	  It	  is	  important	  to	  emphasize	  that	  the	   Department	  of	  Community	  Health	  and	  the	  Attorney	  General’s	  Office	  provided	  important	  support	  to	  the	   Department’s	  efforts	  to	  remove	  vulnerable	  individuals	  from	  community	  provider	  agencies	  that	  failed	  to	   meet	  expected	  standards	  of	  care	  and	  habilitation.	  	  	  
The	  Commissioner	  of	  the	  Department	  of	  Behavioral	  Health	  and	  Developmental	  Disabilities	  (DBHDD),	   Frank	  Berry,	  has	  publicly	  affirmed	  his	  commitment	  to	  the	  principles	  of	  recovery	  and	  meaningful	   community	  integration	  that	  are	  the	  bedrock	  of	  this	  Agreement.	  He	  and	  his	  staff	  have	  worked	   conscientiously	  to	  implement	  the	  provisions	  scheduled	  for	  this	  year	  of	  the	  Agreement.	  The	   Department’s	  leadership	  and	  staff	  have	  been	  accessible,	  forthright	  and	  responsive	  to	  the	  Independent	   Reviewer’s	  many	  requests.	  The	  generous	  help	  of	  the	  Settlement	  Agreement	  Coordinator,	  Pamela	   Schuble,	  is	  greatly	  appreciated,	  especially	  since	  she	  undertook	  additional	  responsibilities	  related	  to	  the	   reform	  of	  the	  supports	  for	  individuals	  with	  a	  developmental	  disability	  transitioning	  from	  the	  state	   hospitals.	  
The	  Parties	  have	  maintained	  a	  collaborative	  working	  relationship	  that	  has	  been	  of	  considerable	  value	  in	   identifying	  and	  implementing	  strategies	  for	  problem	  resolution.	  As	  requested	  by	  the	  Court,	  periodic	   meetings	  have	  been	  scheduled	  with	  the	  amici	  in	  order	  to	  ensure	  that	  information	  is	  shared	  and	   discussed.	  The	  Department	  of	  Justice	  attorneys	  have	  assisted	  the	  Independent	  Reviewer	  throughout	  the	   year	  and	  have	  provided	  expert	  consultation	  on	  the	  requirements	  for	  the	  Quality	  Management	  system.	  	  

	  

2	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 9 of 113
The	  implementation	  of	  the	  Settlement	  Agreement	  has	  been	  expedited	  by	  the	  State’s	  good	  faith	  efforts	   and	  by	  the	  willingness	  of	  the	  Parties	  to	  reach	  reasonable	  solutions	  to	  the	  issues	  or	  concerns	  often	   inherent	  in	  the	  reform	  of	  complex	  systems.	  
The	  State	  of	  Georgia	  has	  the	  undisputed	  advantage	  of	  a	  strong,	  well-­‐established	  network	  of	  peer	   supports	  as	  well	  as	  an	  active	  and	  engaged	  advocacy	  community.	  The	  contributions	  of	  these	  stakeholders	   cannot	  be	  overstated.	  They	  are	  absolutely	  critical	  to	  the	  sustainability	  of	  the	  services	  and	  supports	   implemented	  under	  the	  terms	  of	  the	  Settlement	  Agreement.	  Fortunately,	  there	  is	  evidence	  of	   stakeholder	  inclusion	  in	  the	  reform	  of	  Georgia’s	  system	  of	  supports;	  the	  system	  is	  becoming	  stronger	   and	  more	  responsive	  because	  of	  this	  involvement.	  
In	  summary,	  the	  mental	  health	  programs	  and	  supports	  required	  by	  the	  Settlement	  Agreement	  are	   proceeding	  as	  anticipated.	  The	  building	  blocks	  of	  a	  system	  oriented	  towards	  recovery	  are	  now	  visible	   and	  largely	  operational.	  The	  fourth	  year	  of	  the	  Settlement	  Agreement	  will	  be	  a	  very	  critical	  year	  to	   evaluate	  the	  continuing	  strength	  of	  these	  programs	  and	  to	  determine	  whether	  all	  individuals	  included	  in	   the	  target	  population,	  especially	  those	  involved	  with	  the	  criminal	  justice	  system,	  are	  benefitting	  from	   these	  new	  or	  redesigned	  resources.	  It	  is	  also	  a	  year	  where	  the	  work	  of	  the	  mental	  health	  system	  as	  a	   whole,	  rather	  than	  as	  a	  series	  of	  its	  discrete	  parts,	  must	  be	  measured.	  	  	  
In	  its	  Order	  of	  July	  26,	  2013,	  the	  Court	  granted	  additional	  time	  for	  the	  review	  of	  the	  transition	  of	   individuals	  with	  a	  developmental	  disability	  from	  state	  hospitals	  to	  integrated	  community	  settings.	  There	   are	  critical	  issues	  to	  be	  resolved	  in	  order	  to	  reach	  compliance	  with	  the	  Settlement	  Agreement	   obligations	  related	  to	  these	  transitions,	  including	  the	  implementation	  of	  Individual	  Support	  Plans	  and	   the	  provision	  of	  support	  coordination.	  As	  noted	  above,	  the	  Parties	  are	  working	  with	  great	  diligence	  and	   cooperation	  to	  ensure	  that	  these	  terms	  of	  the	  Settlement	  Agreement	  are	  met	  and	  that	  the	  community	   placements	  are	  individualized,	  afford	  meaningful	  integration	  in	  community	  life,	  and	  are	  characterized	  by	   dignity,	  respect	  and	  protection	  from	  harm.	  	  
The	  Independent	  Reviewer’s	  report	  on	  the	  provisions	  referenced	  above	  (Section	  III.A.2.b.iii.	  (A)-­‐(C))	  will	   be	  submitted	  to	  the	  Parties	  and	  the	  Court	  in	  late	  Winter	  2014.	  	  
	  
	  
MODIFICATIONS	  TO	  THE	  SETTLEMENT	  AGREEMENT	  LANGUAGE	  
The	  Settlement	  Agreement	  permits	  the	  Parties	  to	  seek	  approval	  from	  the	  Court	  for	  mutually	  agreed	   upon	  modifications:	  
Any	  modification	  of	  this	  Settlement	  Agreement	  shall	  be	  executed	  in	  writing	  by	  the	  Parties,	  shall	   be	  filed	  with	  the	  Court,	  and	  shall	  not	  be	  effective	  until	  the	  Court	  enters	  the	  modified	  agreement	   and	  retains	  jurisdiction	  to	  enforce	  it.	  (VII,	  E)	  

	  

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 10 of 113

On	  two	  occasions,	  upon	  receipt	  of	  joint	  motions	  by	  the	  Parties,	  the	  Court	  has	  approved	  modifications	  to	   the	  language	  of	  the	  Settlement	  Agreement.	  These	  modifications	  have	  resulted	  in	  revised	  timeframes	  for	   certain	  aspects	  of	  the	  Independent	  Reviewer’s	  work,	  including	  the	  information	  to	  be	  considered	  in	   evaluating	  compliance	  with	  specific	  provisions	  of	  the	  Settlement	  Agreement.	  	  
The	  First	  Modification	  
On	  August	  29,	  2012,	  the	  Court	  approved	  the	  first	  modification	  requested	  by	  the	  Parties.	  This	   modification	  concerned	  the	  requirements	  for	  the	  review	  of	  the	  Assertive	  Community	  Treatment	  (ACT)	   teams	  to	  be	  established	  under	  the	  Settlement	  Agreement	  by	  July	  1,	  2012	  and	  the	  timeframe	  for	   submission	  of	  reports	  regarding	  the	  Department’s	  Quality	  Management	  system.	  	  
The	  Court’s	  Order	  gave	  the	  Department	  the	  flexibility	  it	  needed	  to	  correct	  any	  perceived	  deficiencies	  in	   the	  ACT	  teams	  required	  to	  be	  created	  under	  this	  Agreement.	  It	  also	  deferred,	  until	  July	  1,	  2013,	  a	   determination	  of	  whether	  the	  teams	  operated	  with	  fidelity	  to	  the	  Dartmouth	  model.	  In	  addition,	  the	   Department	  was	  to	  conduct	  a	  root	  cause	  analysis	  and	  then	  develop	  a	  corrective	  action	  plan	  regarding	   any	  perceived	  deficiencies	  in	  the	  ACT	  teams,	  with	  quarterly	  reporting	  on	  corrective	  actions	  until	  July	  1,	   2013.	  	  	  
The	  Department	  fulfilled	  its	  obligations	  with	  regard	  to	  the	  ACT	  teams.	  The	  progress	  in	  the	  restructuring	   of	  the	  ACT	  teams	  and	  the	  implementation	  of	  the	  remedial	  actions	  were	  discussed	  with	  the	  Department	   of	  Justice,	  the	  amici,	  and	  the	  Independent	  Reviewer.	  In	  addition,	  the	  Department	  increased	  the	  budget	   for	  the	  Independent	  Reviewer	  in	  order	  to	  permit	  ongoing	  consultation	  by	  her	  expert	  consultant,	  Angela	   Rollins.	  Dr.	  Rollins	  conducted	  five	  site	  visits,	  for	  a	  total	  of	  thirteen	  days,	  to	  review	  the	  operations	  of	  the	   ACT	  teams,	  evaluate	  consistency	  with	  the	  Dartmouth	  Fidelity	  Scale,	  and	  discuss	  policy	  and	  procedural	   tasks	  with	  key	  staff	  in	  the	  Department.	  	  
The	  report	  prepared	  by	  Dr.	  Rollins	  is	  attached.	  Based	  on	  her	  observations,	  interviews	  and	  document	   review,	  it	  is	  the	  professional	  opinion	  of	  Dr.	  Rollins	  and	  the	  Independent	  Reviewer	  that	  the	  State	  is	  in	   compliance	  with	  the	  Settlement	  Agreement’s	  requirements	  regarding	  the	  composition,	  function	  and	   model	  fidelity	  of	  the	  twenty-­‐two	  ACT	  teams	  now	  established	  in	  the	  State	  of	  Georgia.	  The	  Department’s	   efforts	  are	  to	  be	  commended.	  Although	  continuing	  effort	  will	  be	  essential	  to	  the	  sustainability	  of	  these	   teams,	  it	  is	  clear	  that	  the	  Department’s	  decision	  to	  rebid	  eight	  of	  the	  original	  teams	  was	  the	  correct	  one.	  	  	  	  
In	  addition	  to	  the	  work	  described	  above,	  the	  Department	  complied	  with	  the	  Court’s	  directives	  regarding	   the	  Quality	  Management	  system.	  A	  Quality	  Management	  system	  was	  instituted	  by	  July	  1,	  2012,	  although	   there	  was	  agreement	  that	  additional	  work	  was	  needed	  to	  ensure	  the	  comprehensiveness	  and	  rigor	   required	  for	  the	  effective	  quality	  assurance	  mandated	  by	  the	  Settlement	  Agreement.	  The	  Department	   issued	  an	  initial	  Quality	  Management	  Plan	  on	  July	  1,	  2012.	  A	  revised	  Plan	  was	  issued	  in	  April	  2013,	   following	  a	  series	  of	  discussions	  with	  stakeholders	  and	  the	  Department	  of	  Justice’s	  expert	  consultant,	   Linda	  Redman.	  Ms.	  Redman	  provided	  extensive	  comments	  to	  the	  Department	  on	  both	  the	  initial	  and	   revised	  Plans.	  She	  has	  continued	  to	  comment	  on	  the	  semi-­‐annual	  reports	  issued	  by	  the	  Department,	   according	  to	  the	  schedule	  ordered	  by	  the	  Court.	  As	  required,	  the	  Department	  issued	  a	  provisional	  

	  

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 11 of 113

Quality	  Management	  report	  on	  October	  1,	  2012;	  this	  report	  was	  not	  to	  be	  reviewed	  by	  the	  Independent	   Reviewer.	  Subsequent	  reports	  were	  issued	  on	  February	  1,	  2013	  and	  August	  1,	  2013.	  	  	  
The	  Settlement	  Agreement	  requires	  that	  the	  Quality	  Management	  system	  implemented	  by	  the	  State	   perform	  annual	  quality	  service	  reviews	  of	  samples	  of	  community	  providers,	  including	  face-­‐to-­‐face	   meetings	  with	  individuals,	  residents	  and	  staff	  and	  reviews	  of	  treatment	  records,	  injury/incident	  data	  and	   key	  performance	  data.	  It	  also	  requires	  that	  the	  system’s	  review	  include:	  1)	  the	  implementation	  of	  the	   plan	  regarding	  cessation	  of	  admissions	  for	  persons	  with	  developmental	  disabilities	  to	  the	  State	  hospitals;	   2)	  the	  service	  requirements	  of	  the	  Settlement	  Agreement;	  3)	  the	  contractual	  compliance	  of	  community	   service	  boards	  and/or	  community	  providers;	  and	  4)	  a	  network	  analysis.	  	  
As	  documented	  in	  its	  reports	  and	  the	  underlying	  data	  requested	  by	  the	  Independent	  Reviewer,	  the	   Department	  has	  substantially	  complied	  with	  these	  obligations.	  However,	  in	  the	  professional	  judgment	  of	   the	  Independent	  Reviewer,	  it	  is	  critical	  that	  there	  be	  a	  more	  concentrated	  focus	  on	  the	  analysis	  and	   reporting	  of	  the	  effects	  from	  the	  above-­‐referenced	  cessation	  of	  admissions	  to	  the	  state	  hospitals.	  For	   example,	  the	  Department	  could	  track	  the	  admission	  of	  individuals	  with	  both	  an	  intellectual	  disability	  and	   a	  mental	  illness	  to	  its	  psychiatric	  hospitals	  in	  order	  to	  evaluate	  the	  effectiveness	  of	  its	  crisis	  system.	  	  
Finally,	  as	  discussed	  below,	  the	  extensive	  work	  now	  underway	  to	  evaluate	  the	  quality	  of	  community	   services	  for	  people	  with	  a	  developmental	  disability	  who	  were	  placed	  from	  an	  institutional	  setting	  under	   the	  terms	  of	  the	  Settlement	  Agreement	  will	  most	  probably	  raise	  areas	  requiring	  further	  investigation,	   analysis,	  and	  remedial	  action.	  The	  Quality	  Management	  system	  will	  need	  to	  be	  revisited	  after	  these	   additional	  facts	  are	  known	  to	  the	  State,	  the	  Department	  of	  Justice	  and	  the	  Independent	  Reviewer	  in	   order	  to	  ensure	  that	  the	  necessary	  comprehensiveness	  and	  rigor	  is	  indeed	  present.	  
The	  Second	  Modification	  
Each	  year,	  the	  Settlement	  Agreement	  requires	  the	  transition	  of	  150	  individuals	  with	  a	  developmental	   disability	  from	  the	  state	  hospitals	  to	  more	  integrated	  and	  individualized	  community	  settings.	  In	  the	  first	   two	  years	  of	  the	  Agreement,	  the	  Department	  exceeded	  its	  numerical	  targets	  but	  was	  found	  to	  be	  in	   non-­‐compliance	  with	  more	  qualitative	  aspects	  of	  these	  placements,	  including	  the	  implementation	  of	  the	   Individual	  Support	  Plan	  and	  support	  coordination.	  These	  concerns	  have	  persisted	  about	  certain	   community	  placements,	  including	  those	  implemented	  during	  Fiscal	  Year	  2013.	  	  	  
The	  inadequate	  residential	  and	  day	  programs	  experienced	  by	  some	  individuals	  placed	  under	  the	   Settlement	  Agreement	  were	  documented	  by	  the	  Independent	  Reviewer	  and	  her	  consultants,	  the	   Settlement	  Agreement	  Coordinator,	  and	  leadership	  staff	  from	  the	  Department	  and	  certain	  regional	   offices.	  These	  unacceptable	  services	  were	  discussed	  at	  Parties’	  meetings	  and	  were	  the	  subject	  of	  very	   candid	  conversations	  with	  the	  Commissioner,	  the	  Deputy	  Commissioner	  and	  the	  Department	  of	  Justice.	  	  
In	  May	  2013,	  Commissioner	  Berry	  stopped	  all	  impending	  transitions	  of	  individuals	  with	  a	  developmental	   disability	  from	  the	  state	  hospitals	  as	  well	  as	  those	  individuals	  to	  be	  placed	  from	  the	  Craig	  Center,	  a	   skilled	  nursing	  facility,	  at	  Central	  State	  Hospital.	  The	  Commissioner	  directed	  his	  staff	  to	  conduct	  a	   thorough	  review	  of	  the	  seventy-­‐nine	  placements	  completed	  since	  the	  beginning	  of	  Fiscal	  Year	  2013	  (July	  

	  

5	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 12 of 113

1,	  2012)	  and	  to	  determine	  whether	  discharge	  planning	  was	  adequate	  to	  ensure	  health,	  safety	  and	   habilitation	  in	  all	  future	  transitions	  of	  individuals	  with	  a	  developmental	  disability	  from	  the	  state	   hospitals.	  

The	  Commissioner’s	  directives	  resulted	  in	  a	  number	  of	  important	  decisions	  and	  actions,	  including	  the	   removal	  of	  individuals	  placed	  under	  the	  Settlement	  Agreement	  from	  three	  unsatisfactory	  community	   provider	  agencies.	  The	  Department	  was	  assisted	  in	  its	  remedial	  actions	  by	  the	  Department	  of	   Community	  Health,	  who	  issues	  licenses	  and	  approves	  Medicaid	  reimbursement,	  and	  by	  the	  Attorney	   General’s	  office,	  whose	  attorneys	  successfully	  upheld	  the	  State’s	  right	  to	  intervene	  in	  situations	  of	   jeopardy	  for	  vulnerable	  individuals.	  

The	  Independent	  Reviewer	  and	  the	  Department	  have	  worked	  together	  to	  develop	  a	  joint	  monitoring	   questionnaire	  and	  to	  train	  reviewers	  to	  meet	  reliability	  standards.	  The	  Department	  has	  completed	   individual	  reviews	  of	  all	  seventy-­‐nine	  individuals	  placed	  during	  Fiscal	  Year	  2013.	  Currently,	  nurse	   consultants	  who	  work	  under	  the	  supervision	  of	  the	  Independent	  Reviewer	  are	  evaluating	  the	  supports	   provided	  to	  at	  least	  one	  individual	  in	  every	  house	  where	  a	  placement	  was	  made	  in	  Fiscal	  Year	  2013.	  

The	  evaluation	  of	  community	  placements	  is	  linked	  to	  the	  development	  and	  implementation	  of	  an	   individualized	  transition	  plan/process	  from	  the	  state	  hospitals.	  The	  Department	  is	  in	  the	  midst	  of	   reviewing	  its	  protocols	  and	  will	  not	  effectuate	  new	  community	  placements	  until	  there	  is	  assurance	  of	  a	   reliable	  and	  sustainable	  transition	  process.	  It	  is	  intended	  that	  there	  be	  a	  careful	  case	  by	  case	  review	  of	   each	  planned	  transition,	  beginning	  with	  individuals	  to	  be	  placed	  in	  Region	  4.	  	  

As	  a	  result	  of	  the	  substantial	  work	  still	  to	  be	  done	  in	  order	  to	  ensure	  compliance	  with	  the	  Settlement	   Agreement,	  the	  Parties	  filed	  a	  motion	  with	  the	  Court	  to	  extend	  the	  Independent	  Reviewer’s	  report	  on	   the	  placements	  required	  for	  FY13	  and,	  while	  placements	  from	  the	  state	  hospitals	  are	  under	  review,	  to	   permit	  the	  State	  to	  use	  the	  available	  approved	  Waiver-­‐funding	  to	  prevent	  the	  institutionalization	  of	   individuals	  who	  are	  currently	  in	  the	  community.	  

The	  Court	  approved	  this	  Joint	  Motion	  on	  July	  26,	  2013.	  	  

As	  ordered	  by	  the	  Court	  and	  with	  the	  continuing	  cooperation	  of	  the	  Parties,	  the	  Independent	  Reviewer	   intends	  to	  complete	  the	  reviews	  of	  placements	  required	  under	  the	  terms	  of	  the	  Settlement	  Agreement	   and	  to	  file	  a	  timely	  report	  of	  her	  findings.	  	  	  	  	  	  	  

	  

	  

	  

	  

	  

6	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 13 of 113

Summary'of'Compliance:'Year'Three

Settlement' Agreement' Reference'

Provision

Rating

Comments

III III.A.1.a III.A.1.b III.A.2.b.i(A)
III.A.2.b.i(B)

Substantive'Provisions

By#July#1,#2011,#the#State#shall#cease#all#

The#State#has#complied#with#this#provision.#There#is#no#

admissions#to#the#State#Hospitals#of#all#

evidence#to#indicate#that#individuals#with#a#

individuals#for#whom#the#reason#for#

developmental#disability#have#been#transferred#

admission#is#due#to#a#primary#diagnosis#of# a#developmental#disability.

Compliance

between#State#Hospitals#in#contradiction#of#the# commitment#to#cease#admissions.#It'is'recommended' that'the'Department's'Quality'Management'system' restructure'its'reporting'of'performance'indicators' related'to'the'cessation'of'admissions.

The#State#will#make#any#necessary#changes#

In#House#Bill#324,#the#State#Legislature#amended#

to#administrative#regulations#and#take#best# Compliance Chapter#4#of#Title#37#of#the#Official#Code#of#Georgia#

efforts#to#amend#any#statutes#that#may#

Annotated.

require#such#admissions.

By#July#1,#2011,#the#State#shall#move#150#

By#July#1,#2011,#the#Department#placed#more#than#150#

individuals#with#developmental#disabilities#

individuals#with#a#developmental#disability#into#

from#the#State#Hospitals#to#the#community#

community#residential#settings#supported#by#the#Home#

and#the#State#shall#create#150#waivers#to#

and#CommunityQBased#Waiver.#A#sample#of#48#

accomplish#this#transition.#In#addition,#the#

individuals#was#reviewed.#Identified#concerns#were#

State#shall#move#from#the#State#Hospitals#

referred#to#the#Department#and#corrective#actions#were#

to#the#community#all#individuals#with#an#

initiated.#Nine#of#the#11#individuals#hospitalized#with#an#

existing#and#active#waiver#as#of#the#

Compliance existing#Waiver#were#discharged#to#community#settings.#

Effective#Date#of#this#Agreement,#provided#

Two#individuals#remained#hospitalized.#Delays#in#

such#placement#is#consistent#with#the#

placement#were#attributed#to#family#objections#or#to#

individual’s#informed#choice.#The#State#

providerQrelated#issues.#The#Department#continued#to#

shall#provide#family#supports#to#a#

pursue#appropriate#community#placements#for#these#

minimum#of#400#families#of#people#with#

two#individuals.#More#than#400#individuals#were#

developmental#disabilities.

provided#with#family#supports.#Because#there#was#

substantial#compliance#with#this#provision,#a#positive#

rating#was#given.

Between#July#1,#2011,#and#July#1,#2012,#the#

The#Department#placed#164#individuals#with#a#

State#shall#move#150#individuals#with#

developmental#disability#into#community#residential#

developmental#disabilities#from#the#State#

settings#supported#by#the#Home#and#CommunityQBased#

Hospitals#to#the#community.#The#State#

Waiver.#A#statistically#relevant#sample#of#48#individuals#

shall#create#150#waivers#to#accomplish#this#

was#reviewed.#Identified#concerns#have#been#referred#

transition.#The#State#shall#also#create#100#

to#the#Department#and#corrective#actions#are#being#

additional#waivers#to#prevent#the#

initiated.#Although#in#compliance,#it#is#recommended#

institutionalization#of#individuals#with#

that#the#Department#review#its#policies#and#guidance#

developmental#disabilities#who#are#

regarding#expectations#for#community#placement#and#

currently#in#the#community.#The#State#shall#

to#provide#greater#oversight#of#service#coordination#at#

provide#family#supports#to#an#additional#

the#Regional#level.#The#two#hospitalized#individuals#

450#families#of#people#with#developmental# Compliance referenced#in#the#provision#above#have#either#been#

disabilities.#

placed#or#have#a#placement#in#process.#Two#other#

individuals#with#existing#and#active#Waivers#at#the#time#

of#the#Settlement#Agreement#were#rehospitalized.#

Those#individuals#were#reviewed#by#a#psychologist#

consulting#with#the#Independent#Reviewer.#Community#

placements#are#being#actively#pursued;#an#experienced#

provider#has#been#recruited.#The#Department#issued#

117#Waivers#to#avoid#institutionalization#of#individuals#

with#a#developmental#disability#residing#in#the#

community.#Family#supports#were#provided#for#2248#

individuals#through#38#provider#agencies.

	  

	  

7	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 14 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

III.A.2.b.i(C)
III.A.2.b.ii(B)
III.A.2.b.iii(A) III.A.2.b.iii(B) III.A.2.b.iii(C)
	  

Between'July'1,'2012,'and'July'1,'2013,'

the'State'shall'create'at'least'250'waivers'

to'serve'individuals'with'developmental'

disabilities'in'community'settings.'The'

State'shall'move'up'to'150'individuals'

with'developmental'disabilities'from'the'

State'Hospitals'to'the'community'using'

those'waivers.'The'remaining'waivers' Compliance

shall'be'used'to'prevent'the'

institutionalization'of'individuals'with''

developmental'disabilities'who'are'

currently'in'the'community.'The'State'

shall'provide'family'supports'to'an'

additional'500'families'of'people'with'

developmental'disabilities.'

Individuals'in'the'target'population'shall'

not'be'served'in'a'host'home'or'a'

congregate'community'living'setting'

unless'such'placement'is'consistent'with'

the'individual’s'informed'choice.'For'

individuals'in'the'target'population'not'

served'in'their'own'home'or'their'family’s' Compliance

home,'the'number'of'individuals'served'

in'a'host'home'as'defined'by'Georgia'law'

shall'not'exceed'two,'and'the'number'of'

individuals'served'in'any'congregate'

community'living'setting'shall'not'exceed'

four.'

Assembling'professionals'and'nonS'

professionals'who'provide'individualized'

supports,'as'well'as'the'individual'being'

served'and'other'persons'important'to'

the'individual'being'served,'who,'through' their'combined'expertise'and'

Deferred

involvement,'develop'Individual'Service'

Plans,'as'required'by'the'State’s'HCBS'

Waiver'Program,'that'are'individualized'

and'person'centered.

Assisting'the'individual'to'gain'access'to'

needed'medical,'social,'education,'

transportation,'housing,'nutritional,'and' Deferred

other'services'identified'in'the'Individual'

Service'Plan.

Monitoring'the'Individual'Service'Plan'to'

make'additional'referrals,'service' changes,'and'amendments'to'the'plans'as'

Deferred

identified'as'needed.'

	  

	  

The'Court's'Order,'dated'July'26,'2013,'modified'the' language'of'this'provision.'The'Department'has'issued' 597'waivers'to'serve'individuals'with'developmental' disabilities'in'community'settings.'These'waivers'have' been'used'to'prevent'institutionalization'and'to' sustain'individuals'with'a'developmental'disability' with'their'families.'The'number'of'individuals'with'a' disability'who'have'moved'from'state'hospitals'using' these'waivers'will'be'reviewed'in'the'Independent' Reviewer's'report'to'be'issued'in'late'Winter'2014.'As' of'this'date,'seventySnine'individuals'with'a' developmental'disability'have'been'transitioned'from' state'hospitals'to'community'residential'settings.
Although'the'timeframe'for'the'review'of'individuals' with'a'developmental'disability'transitioned'from' state'hospitals'to'the'community'has'been'extended' to'January'1,'2014,'there'is'no'evidence'at'this'time'to' refute'the'Department's'past'compliance'with'this' provision.'All'host'homes'reviewed'to'date'have'no' more'than'two'individuals'and'the'number'of' individuals'served'in'any'congregate'community'living' setting'has'not'exceeded'four.'
The'rating'of'this'provision'has'been'deferred'by'Court' Order'until'January'2014.'In'the'FY11'and'12'reports,' the'Department'was'found'to'be'in'compliance'with' this'provision.

The'rating'of'this'provision'has'been'deferred'by'Court' Order'until'January'2014.'In'the'FY11'and'12'reports,' the'Department'was'determined'to'be'in'nonS compliance'with'this'provision.

The'rating'of'this'provision'has'been'deferred'by'Court'

Order'until'January'2014.'In'the'FY'11'and'12'reports,'

the'Department'was'found'to'be'in'nonScompliance'

with'this'provision.

	  

	  

8	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 15 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

The'Independent'Reviewer'will'not'assess'

The'Independent'Reviewer'will'comply'with'this'

the'provisions'of'this'section,'

requirement.'

III.A.2.b.iii.(A)B(C),'in'her'report'for'the'

period'ending'July'1,'2013.''Instead,'the'

III.A.2.b.iii(D)

review'period'for'this'section'will'be' extended'six'months'until'January'1,'

Deferred

2014,'after'which'the'Independent'

Reviewer'will'report'on'this'section'

pursuant'to'the'draft,'review,'and'

III.A.2.c.i(A)

comment'deadlines'enumerated'in'VI.A. By#July#1,#2012,#the#State#will#have#six# mobile#crisis#teams#for#persons#with# developmental#disabilities.#

There'are'8'mobile'crisis'teams.'According'to'the' Department's'data,'there'were'648'individuals'served' Compliance by'the'mobile'crisis'teams'across'all'Regions.'The'

average'response'time'for'the'mobile'crisis'teams'is'82'

By#July#1,#2012,#the#State#will#have#five#

III.A.2.c.ii(B)(1)

Crisis#Respite#Homes#for#individuals#with# developmental#disabilities.#

Compliance

minutes;'the'goal'is'less'than'90'minutes. There#are#11#Crisis#Respite#Homes,#including#one#for# children.#One#individual#in#the#sample#of#48#was# reviewed#in#his#crisis#home;#supports#were#adequate# and#individualized.

By'July'1,'2013,'the'State'will'establish'an'

There'are'11'Crisis'Respite'Homes'across'the'State.'

III.A.2.c.ii(B)(2)

additional'four'Crisis'Respite'Homes'for' individuals'with'developmental'

Compliance

There'are'2'homes'in'each'Region,'except'for'Region'3' which'has'one'Home.'There'were'270'individuals'

disabilities.'

served'in'FY'13.'

By'July'1,'2013,'the'State'shall'create'a'

The'Department'has'initiated'a'program'to'provide'

program'to'educate'judges'and'law'

education'to'judges'and'law'enforcement'individuals.'

III.A.3.a

enforcement'officials'about'community' supports'and'services'for'individuals'with'

Compliance

In'FY13,'training'was'provided'to'1121'individuals,' including'45'Judges,'1030'law'enforcement'officials'

developmental'disabilities'and'forensic'

and'46'attorneys.'To'date,'officials'from'84'counties'

status.'

have'participated'in'this'program.'

Individuals'with'developmental'

There'is'evidence'that'individuals'with'a'

disabilities'and'forensic'status'shall'be'

developmental'disability'and'forensic'status'are'

included'in'the'target'population'and'the'

included'in'the'target'population.'However,'the'

waivers'described'in'this'Section,'if'the'

expansion'of'appropriately'individualized'resources'is'

III.A.3.b relevant'court'finds'that'community'

Compliance in'its'initial'stages.'For'example,'4'new'group'

placement'is'appropriate.'This'paragraph'

residences'are'being'developed'but'are'not'yet'

shall'not'be'interpreted'as'expanding'the'

opened.''This'group'of'individuals'needs'to'be'

State’s'obligations'under'paragraph'

prioritized'for'attention'in'FY14.'

III.A.2.b.'

By'July'1,'2013,'the'State'will'conduct'an'

The'Georgia'Quality'Management'System'(GQMS)'

audit'of'community'providers'of'waiver'

contract'with'the'Delmarva'Foundation'mandates'that'

services.'

each'provider'rendering'services'through'the'Medicaid'

waivers'to'individuals'with'developmental'disabilities'

has'one'annual'review'over'the'course'of'five'years.'

III.A.4.a

Compliance Therefore,'40'providers'are'reviewed'each'year'(39'

service'providers'and'one'support'coordinator'

agency).'The'providers'are'selected'randomly.'Findings'

from'these'reviews'are'summarized'in'the'Quality'

Management'reports'issued'by'the'Department.

	  

	  

9	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 16 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

III.A.4.b III.A.4.d III.B.1.c
III.B.2.a.i(G)
	  

By'the'Effective'Date'of'this'Agreement,'

In'FY13,'the'Department'again'utilized'the'services'of'

the'State'shall'use'a'CMS'approved'

the'Delmarva'Foundation'to'design'and'implement'a'

Quality'Improvement'Organization'

quality'assurance'review'process.'The'work'of'

(“QIO”)'or'QIOJlike'organization'to'assess'

Delmarva'was'expanded'to'conduct'person'centered'

the'quality'of'services'by'community'

reviews'(PCR)'of'individuals'leaving'State'Hospitals.'

providers.'

Compliance Delmarva'also'assesses'the'quality'of'services'by'

community'providers.'The'Department'participates'in'

the'National'Core'Indicator'surveys.'The'Independent'

Reviewer'has'reviewed'these'reports'and'has'worked'

closely'with'Department'staff'to'track'issues'related'to'

specific'individuals'and'providers.

The'State'shall'assess'compliance'on'an'

The'Delmarva'Foundation'issues'annual'reports'

annual'basis'and'shall'take'appropriate'

assessing'the'quality'of'services'by'community'

action'based'on'each'assessment.'

providers'for'individuals'with'a'developmental'

disability.'The'most'recent'report'for'Quarter'Three'

has'been'completed'and'was'issued'to'the' Compliance
Independent'Reviewer'and'the'Department'of'Justice'

on'August'1,'2013.'Annual'reports'are'posted'on'the'

Delmarva'website.'The'State'will'need'to'continue'its'

review'of'the'quality'of'services'to'ensure'that'any'

remedial'actions'have'occured'in'a'timely'manner.'

Pursuant(to(the(Voluntary(Compliance(

At(the(time(the(Settlement(Agreement(was(signed,(

Agreement(with(Health(and(Human(

there(were(27(individuals(on(the(Olmstead(List.(All(of(

Services,(the(State(established(a(Mental(

these(individuals(were(discharged(from(the(State(

Health(Olmstead(List.(The(State(shall(

Hospitals(and(were(provided(community(services.

ensure(that(all(individuals(on(the(Mental(

Health(Olmstead(List(as(of(the(Effective(

Date(of(this(Agreement(will,(if(eligible(for(

services,(receive(services(in(the(

community(in(accordance(with(this(

Settlement(Agreement(by(July(1,(2011.(The(

Parties(acknowledge(that(some(individuals( on(the(Mental(Health(Olmstead(List(are( Compliance

required(to(register(as(sex(offenders(

pursuant(to(O.C.G.A.(§(42O1O12(et(seq.(The(

Parties(further(acknowledge(that(such(

registration(makes(placement(in(the(

community(more(difficult.(The(Parties(may(

by(written(consent(extend(the(application(

of(the(date(set(forth(in(this(paragraph(as(it(

applies(to(such(individuals.(The(written(

consent(described(in(this(paragraph(will(

not(require(Court(approval.(

All'ACT'teams'will'operate'with'fidelity'to'

In'FY12,'The'Parties,'with'concurrence'by'the'

the'Dartmouth'Assertive'Community'

Independent'Reviewer,'requested'that'the'Court'defer'

Treatment'model.

evaluation'of'this'provision.'The'Court'approved'this'

request'on'August'29,'2012'with'explicit'instructions'

regarding'reporting,'root'cause'analysis'and'corrective'

action'plans.'These'instructions'were'complied'with'by'

the'Department'with'close'involvement'of'the' Compliance Independent'Reviewer'and'her'expert'consultants.'

Based'on'the'extensive'review'conducted'by'the'

Independent'Reviewer's'expert'consultant'throughout'

FY13,'this'provision'is'in'full'compliance.'All'teams'

funded'under'this'Agreement'operate'with'fidelity'to'

the'Dartmouth'model.'(See'attached'report'by'Angela'

Rollins.)

	  

10	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 17 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

III.B.2.a.i(H)(1) By#July#1,#2011,#the#State#shall#have#18# Assertive#Community#Treatment#teams.# By#July#1,#2012,#the#State#shall#have#20# Assertive#Community#Treatment#teams.#
III.B.2.a.i(H)(2)
By'July'1,'2013,'the'State'shall'have'22' Assertive'Community'Treatment'teams.'
III.B.2.a.i(H)(3)
By#July#1,#2012,#the#State#will#have#two# Community#Support#Teams.# III.B.2.a.ii(C)(1)
By'July'1,'2013,'the'State'will'have'four' Community'Support'Teams.'
III.B.2.a.ii(C)(2)
III.B.2.a.iii(D)(1) By#July#1,#2011,#the#State#will#have#one# Intensive#Case#Management#team.# By#July#1,#2012,#the#State#will#have#two#
III.B.2.a.iii(D)(2) Intensive#Case#Management#teams.# By'July'1,'2013,'the'State'will'have'three' Intensive'Case'Management'teams.'
III.B.2.a.iii(D)(3)
By#July#1,#2012,#the#State#will#have#five# III.B.2.a.iv(C)(1) Case#Management#service#providers.#

Compliance The#Department#has#funded#18#Assertive#Community# Treatment#teams.

The#State#has#funded#20#Assertive#Community#

Treatment#teams.#However,#change#in#the#composition#

of#the#teams#is#underway.#The#Department#is#

Compliance proceeding#with#remedial#action#as#required#by#the#

Court's#Order#and#with#consultation#by#the#Independent#

Reviewer,#the#Department#of#Justice#and#other#

interested#stakeholders.

The'Department'has'funded'22'Assertive'Community'

Treatment'teams.'They'are'distributed'through'all'six'

Regions'of'the'state.'As'of'June'30,'2013,'there'were'

1,264'individuals'participating'in'services'with'the'ACT'

Compliance teams.'Based'on'the'extensive'reviews'conducted'by'

the'Independent'Reviewer's'expert'consultant,'the'

requirements'for'this'provision'have'been'met'fully'

and'with'fidelity'to'the'Dartmouth'model.'(See'

attached'report'by'Angela'Rollins.)

The#State#has#established#two#Community#Support#

Teams.#Although#one#team#was#transferred#to#another#

Compliance provider#beginning#in#FY13,#both#teams#functioned#and#

provided#services#from#the#time#of#their#contract.#The#

two#teams#supported#a#total#of#71#individuals#in#FY12.

The'Department'has'established'four'Community'

Support'Teams'(CSTs).'They'are'located'in'four'rural'

areas'of'the'State.'A'total'of'145'individuals'received'

services'from'the'CSTs'in'FY13.'Under'the'terms'of'the'

Agreement,'the'Independent'Reviewer'must'assess'

Compliance whether'the'Community'Support'Team'model'

provides'services'that'are'sufficient'to'meet'the'needs'

of'the'members'of'the'target'population'who'receive'

these'services.'The'Independent'Reviewer's'

assessment'and'recommendations'are'due'by'October'

30,'2013.

Compliance The#Department#has#established#two#Intensive#Case# Management#teams.

The#Department#has#established#two#Intensive#Case#

Compliance Management#teams.#The#two#teams#supported#a#total#

of#387#individuals#in#FY12.

The'Department'has'established'three'Intensive'Case'

Management'teams'in'Regions'1,'3'and'5.'These'three'

Compliance teams'served'a'total'of'235'individuals'in'FY13.'The'

Independent'Reviewer'has'requested'additional'

information'about'the'caseload'in'Region'3.

The#Department#has#established#five#Case#Management#

Compliance service#providers.#Case#Management#services#were#

provided#to#257#individuals#in#FY12.

	  

	  

	  

	  

	  

11	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 18 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

By'July'1,'2013,'the'State'will'establish'

The'Department'opened'a'24Jhour,'walkJin'Crisis'

one'Crisis'Service'Center.'

Service'Center'on'March'1,'2013.'From'March'1,'2013'

III.B.2.b.i(B)(1)

Compliance through'June'30,'2013,'177'individuals'received' services'in'this'Center.'This'is'not'an'unduplicated'

count'and'some'individuals'may'have'received'more'

than'one'episode'of'care'during'this'time'period.

III.B.2.b.ii(B)(1) The$State$will$establish$one$Crisis$ Stabilization$Program$by$July$1,$2012.$

Compliance The$Department$has$established$two$Crisis$Stabilization$ Programs.

The'State'will'establish'an'additional''

The'Department's'two'Crisis'Stabilization'Programs'

III.B.2.b.ii(B)(2) Crisis'Stabilization'Programs'by'July'1,' Compliance have'remained'operational.'They'each'have'16'beds.'

2013.'

Beginning$on$July$1,$2011,$the$State$shall$

The'Department'has'funded'hospital'bed'days'in'five'

retain$funding$for$35$beds$in$nonDState$

community'hospitals.'These'beds'remained'available'

III.B.2.b.iii(A) community$hospitals$without$regard$as$to$ Compliance in'FY13. whether$such$hospitals$are$freestanding$

psychiatric$hospitals$or$general,$acute$care$

hospitals.$

The$State$shall$operate$a$tollDfree$

The'Georgia'Crisis'and'Access'Line'operated'by'

statewide$telephone$system$for$persons$to$

Behavioral'Health'Link'continued'to'provide'these'

access$information$about$resources$in$the$

services'in'FY13.

III.B.2.b.iv(A) community$to$assist$with$a$crisis$(“Crisis$ Compliance

Call$Center”).$Such$assistance$includes$

providing$advice$and$facilitating$the$

delivery$of$mental$health$services.$

The$Crisis$Call$Center$shall$be$staffed$by$

The'Georgia'Crisis'and'Access'Line'complied'with'these'

skilled$professionals$24$hours$per$day,$7$

requirements.

III.B.2.b.iv(B) days$per$week,$to$assess,$make$referrals,$ Compliance and$dispatch$available$mobile$services.$The$

Crisis$Call$Center$shall$promptly$answer$

and$respond$to$all$crisis$calls.

Mobile'crisis'services'shall'respond'to'

The'mobile'crisis'services'provided'by'the'Department'

crises'anywhere'in'the'community'(e.g.,'

comply'with'these'requirements.'The'Department'

homes'or'hospital'emergency'rooms)'24'

responded'to'requests'that'training'for'certified'peer'

hours'per'day,'7'days'per'week.'The'

specialists'be'held'outside'of'Atlanta'in'order'to'

III.B.2.b.v(A) services'shall'be'provided'by'clinical'staff' Compliance benefit'more'rural'areas'of'the'state.'

members'trained'to'provide'emergency'

services'and'shall'include'clinical'staff'

members'with'substance'abuse'expertise'

and,'when'available,'a'peer'specialist.

By'July'1,'2013,'the'State'shall'have'

Mobile'crisis'services'have'been'established'in'100'

mobile'crisis'services'within'91'of'159'

counties,'exceeding'the'requirements'of'this'provision.'

counties,'with'an'average'annual'

Statewide,'there'were'840'individuals'served'by'these'

response'time'of'1'hour'and'10'minutes'

teams.'The'average'response'time'ranged'from'49'to'

or'less.

56'minutes,'again'exceeding'the'requirements'of'this'

III.B.2.b.v(B)

Compliance provision.'The'disposition'for'the'majority'of' individuals'(230)'served'was'involuntary'inpatient'

hospitalization.'The'Independent'Reviewer'will'work'

with'the'Department's'staff'to'better'understand'the'

range'of'options'investigated'by'the'teams'and'

whether'the'least'restrictive'measure'was'consistently'

employed'by'the'teams.'

	  

	  

	  

	  

	  

12	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 19 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

III.B.2.b.vi(A)

Crisis'apartments,'located'in'community'

settings'off'the'grounds'of'the'State'

Hospitals'and'staffed'by'

paraprofessionals'and,'when'available,' peer'specialists,'shall'serve'as'an'

Compliance

alternative'to'crisis'stabilization'programs'

and'to'psychiatric'hospitalization.'

The'Department'has'complied'with'the'staffing'and' location'requirements'of'this'provision.

Each'crisis'apartment'will'have'capacity'

The'Department'has'not'complied'with'this'provision.'

to'serve'two'individuals'with'SPMI.'

One'set'of'crisis'apartments'established'in'FY13'was'

designed'for'up'to'four'individuals'and'was'located'in'

close'proximity'to'two'other'residential'programs'

III.B.2.b.vi(B)

NonK compliance

operated'by'the'same'provider'agency.'In'addition,' one'bedroom'and'bathroom'was'designated'for'staff;' two'individuals'in'crisis'would'be'expected'to'share'

one'bedroom.'The'Independent'Reviewer'and'the'

Settlement'Agreement'Coordinator'conducted'a'site'

visit'to'this'program'in'July'2013'to'confirm'these'

facts.

By'July'1,'2013,'the'State'will'provide'six'

The'Department'has'not'complied'with'this'provision.'

crisis'apartments.' III.B.2.b.vi(C)(1)

NonK compliance

There'were'three'apartments'operational,'for'a'total' of'six'beds,'at'the'end'of'FY13.'A'contract'was' executed'on'June'27,'2013'for'an'additional'4'

apartments'but'they'were'not'yet'operational.

By#July#1,#2011,#the#State#will#provide#a# III.B.2.c.ii(B)(1) total#of#100#supported#housing#beds.

Although#the#Department#provided#the#requisite# Compliance housing#vouchers,#concern#was#noted#about#the#review#

of#eligibility#and#access#for#hospitalized#individuals.

By#July#1,#2012,#the#State#will#provide#a#

The#State#has#exceeded#this#obligation.#(See#

total#of#500#supported#housing#beds.

Consultant's#report.)#The#Department#awarded#648#

III.B.2.c.ii(B)(2)

Compliance housing#vouchers#and#reassessed#its#prioritization#for# these#awards.#Further#collaboration#is#planned#between#

the#Independent#Reviewer#and#the#Department#to#

By'July'1,'2013,'the'State'will'provide'a'

further#analyze#referrals#for#the#housing#vouchers. The'State'has'exceeded'this'obligation.'In'FY13,'it'

total'of'800'supported'housing'beds.

awarded'a'total'of'1,002'housing'vouchers.'The'

Department'made'adjustments'to'its'review'policies'

III.B.2.c.ii(B)(3)

Compliance and'worked'closely'with'its'regional'offices,'service'

providers,'DCA'and'other'organizations'to'increase'

program'effectiveness'and'expand'housing'resources.'

(See'attached'report'of'Martha'Knisley.)

By#July#1,#2011,#the#State#will#provide#

The#Department#provided#Bridge#Funding#as#required.

Bridge#Funding#for#90#individuals#with#

III.B.2.c.ii(C)(1) SPMI.#The#State#will#also#commence#taking# Compliance reasonable#efforts#to#assist#persons#with#

SPMI#to#qualify#in#a#timely#manner#for#

eligible#supplemental#income.

By#July#1,#2012,#the#State#will#provide# III.B.2.c.ii(C)(2) Bridge#Funding#for#360#individuals#with#

The#State#has#exceeded#this#obligation.#(See# Compliance Consultant's#report.)#The#Department#provided#Bridge#

SPMI.#

Funding#for#568#individuals.#

	  

	  

	  

	  

	  

13	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 20 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

By'July'1,'2013,'the'State'will'provide'

The'State'has'exceeded'this'obligation.'In'FY13,'the'

III.B.2.c.ii(C)(3)

Bridge'Funding'for'270'individuals'with' SPMI.'

Compliance

Department'provided'Bridge'Funding'for'383' individuals'with'SPMI.'(See'attached'report'of'Martha'

Knisley.)

By#July#1,#2011,#the#State#shall#provide#

The#Department#provided#Supported#Employment#

Supported#Employment#services#to#70#

services#to#more#than#70#individuals#with#SPMI.#Since#

III.B.2.d.iii(A) individuals#with#SPMI.

Compliance

individuals#were#assigned#to#the#Supported# Employment#providers#in#May,#only#eight#were#

employed#by#July,#2011.#A#higher#rate#of#employment#

will#be#expected#next#year.

By#July#1,#2012,#the#State#shall#provide#

The#Department#has#met#this#obligation.#Supported#

Supported#Employment#services#to#170#

Employment#services#were#provided#to#181#individuals#

individuals#with#SPMI.#

as#of#June#30,#2012.#(See#Consultant's#report.)#A#

Memorandum#of#Understanding#has#been#signed#

III.B.2.d.iii(B)

Compliance between#DBHDD#and#the#Department#of#Vocational#

Services.#The#Department#is#in#the#process#of#preparing#

a#written#plan,#with#stakeholder#involvement,#regarding#

the#provision#of#Supported#Employment.#In#FY12,#51#

individuals#gained#competitive#employment.

By'July'1,'2013,'the'State'shall'provide'

The'State'has'exceeded'this'obligation.'According'to'a'

Supported'Employment'services'to'440'

report'issued'by'the'Department'and'reviewed'by'the'

individuals'with'SPMI.'

Independent'Reviewer's'expert'consultant,'Supported'

III.B.2.d.iii(C)

Compliance

Employment'services,'with'strong'adherence'to'the' Dartmouth'fidelity'scale,'were'provided'to'682'

individuals'during'FY13.'The'monthly'rate'of'

employment'was'42.1%.'(See'attached'report'of'David'

Lynde.)'

By#July#1,#2012,#the#State#shall#provide#

There#are#3000#consumers#enrolled;#there#are#72#Peer#

III.B.2.e.ii(A) Peer#Support#services#to#up#to#235#

Compliance Support#sites#in#Georgia.

individuals#with#SPMI.#

By'July'1,'2013,'the'State'shall'provide'

The'Department'has'made'a'substantial'commitment'

Peer'Support'services'to'up'to'535'

to'the'meaningful'involvement'of'peer'support'

individuals'with'SPMI.'

services.'The'Department's'commitment'was'

confirmed'by'the'leadership'of'the'Georgia'Mental'

Health'Consumer'Network'during'a'July'2013'site'visit'

III.B.2.e.ii(B)

Compliance by'the'Independent'Reviewer.'Reportedly,'and'verified'

by'the'submission'of'names,'571'individuals'received'

peer'support'services'provided'by'the'Georgia'Mental'

Health'Consumer'Network's'three'Peer'Wellness'and'

Respite'Centers'and'through'its'Peer'Mentoring'

program.

Individuals'under'the'age'of'18'shall'not'

The'Department'has'complied'with'this'obligation.'

be'admitted'to,'or'otherwise'served,'in'

Two'of'the'three'individuals'now'live'in'either'a'host'

the'State'Hospitals'or'on'State'Hospital'

home'or'a'group'home'supported'by'very'attentive'

grounds,'unless'the'individual'meets'the'

family'or'staff.'The'Independent'Reviewer'and'her'

criteria'for'emancipated'minor,'as'set'

expert'consultant,'Karen'Green'McGowan,'have'

forth'in'Article'6'of'Title'15,'Chapter'11'of'

confirmed'the'status'of'these'two'individuals'during'

III.C.1

the'Georgia'Code,'O.C.G.A.'§§'15^11^200' et'seq.

Compliance

site'visits.'Unfortunately,'the'third'individual'is'now' deceased'due'to'irreversible'medical'conditions'

experienced'at'a'very'young'age.'This'individual'

received'very'competent'and'compassionate'care'from'

her'physician'and'nursing'staff'at'Southwestern'

Regional'Hospital,'where'she'was'visited'by'the'

Independent'Reviewer'and'the'Settlement'Agreement'

Coordinator'on'several'occasions.'

	  

	  

14	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 21 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

III.C.2 III.C.3.a.i

Individuals'in'the'target'population'with'

In#FY12,#there#was#no#evidence#of#inappropriate#

developmental'disabilities'and/or'serious'

transfers#from#one#institution#to#another.#Pending#the#

and'persistent'mental'illness'shall'not'be'

anticipated#closure#of#Central#State#Hospital,#two#

transferred'from'one'institutional'setting'

individuals#were#transferred#to#another#institution;#they#

to'another'or'from'a'State'Hospital'to'a'

remain#institutionalized.#The#first#individual#was#

skilled'nursing'facility,'intermediate'care'

transferred#due#to#her#immigration#status.#The#second#

facility,'or'assisted'living'facility'unless'

individual#was#transferred#due#to#behavioral#concerns.#

consistent'with'the'individual’s'informed'

On#July#2,#2012,#he#was#reviewed#by#a#psychologist#

choice'or'is'warranted'by'the'individual’s'

consulting#to#the#Independent#Reviewer.#Community#

medical'condition.'Provided,'however,'if'

placement#plans#are#dependent#on#his#stabilization#and#

the'State'is'in'the'process'of'closing'all'

the#identification#of#an#appropriate#provider.#In'FY13,'

units'of'a'certain'clinical'service'category'

the'primary'focus'of'institutional'closure'has'been'at'

at'a'State'Hospital,'the'State'may'transfer' Compliance the'skilled'nursing'facility,'the'Craig'Center,'at'Central'

an'individual'from'one'institutional'

State'Hospital.'Documentation'was'provided'for'

setting'to'another'if'appropriate'to'that'

thirteen'individuals'transferred'from'the'Craig'Center'

individual’s'needs.'Further'provided'that'

to'nursing'homes.'Evidence'of'family'preferences'for'

the'State'may'transfer'individuals'in'State'

nursing'home'placement'was'documented'in'each'case'

Hospitals'with'developmental'disabilities'

but'in'only'six'cases'was'there'clear'documentation'of'

who'are'on'forensic'status'to'another'

the'discussion'of'alternatives'to'nursing'home'

State'Hospital'if'appropriate'to'that'

placement.'Currently,'placements'from'the'Craig'

individual’s'needs.'The'State'may'not'

Center'are'pending'further'review'and'approval.'

transfer'an'individual'from'one'

Therefore,'this'issue'warrants'further'attention'in'the'

institutional'setting'to'another'more'than'

Independent'Reviewer's'report'due'in'late'Winter'

once.

2014.

By#January#1,#2012,#the#State#shall#

Contract#language#delineates#responsibility#for#

establish#the#responsibilities#of#community#

developing#and#implementing#transition#planning.

service#boards#and/or#community#

providers#through#contract,#letter#of#

agreement,#or#other#agreement,#including# but#not#limited#to#the#community#service#

Compliance

boards’#and/or#community#providers’#

responsibilities#in#developing#and#

implementing#transition#plans.

III.C.3.a.ii III.C.3.a.iii III.C.3.a.iv

By#January#1,#2012,#the#State#shall#identify#

This#provision#has#been#implemented.

qualified#providers#through#a#certified#

vendor#or#request#for#proposal#process#or#

other#manner#consistent#with#DBHDD# policy#or#State#law,#including#providers#in#

Compliance

geographically#diverse#areas#of#the#State#

consistent#with#the#needs#of#the#

individuals#covered#by#this#Agreement.

By#January#1,#2012,#the#State#shall#perform#

The#cost#rate#study#has#been#completed#and#is#under#

a#cost#rate#study#of#provider#

Compliance advisement#by#the#Commissioner.

reimbursement#rates.

By#January#1,#2012,#the#State#shall#require#

Two#websites#have#been#developed#to#provide#

community#service#boards#and/or#

comprehensive#information#and#description#of#

community#providers#to#develop#written#

statewide#services.#Individual#community#service#boards#

descriptions#of#services#it#can#provide,#in#

have#information#on#their#websites#regarding#services.#

consultation#with#community#

Compliance Stakeholders#are#included#on#the#community#services#

stakeholders.#The#community#stakeholders#

boards.

will#be#selected#by#the#community#services#

boards#and/or#community#providers.

	  

	  

15	  

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 22 of 113

Settlement' Agreement' Reference'

Provision

Rating

Comments

III.C.3.a.v III.C.3.a.vi III.C.3.b
III.D.1
III.D.3.a III.D.3.b

By#January#1,#2012,#the#State#shall#require#

There#are#biBmonthly#provider#meetings#for#each#region.#

and/or#provide#training#to#community#

Additionally,#the#Department#hosts#two#meetings#per#

service#boards#and/or#community# providers#so#that#services#can#be#

Compliance year;#the#Regional#Offices#provide#technical#assistance;# Delmarva#meets#with#providers#and#provides#technical#

maintained#in#a#manner#consistent#with#

assistance.

this#Agreement.

By#January#1,#2012,#the#State#shall#utilize#

Evidence#of#compliance#is#documented#by#the#actions#

contract#management#and#corrective# action#plans#to#achieve#the#goals#of#this#

Compliance taken#to#review#ACT#services.

Agreement#and#of#State#agencies.

Beginning'on'January'1,'2012'and'on'at'

This'obligation'has'been'met.'(See'IV.A.4.'below.)

least'an'annual'basis,'the'State'shall'

perform'a'network'analysis'to'assess'the' Compliance

availability'of'supports'and'services'in'the'

community.'

By#July#1,#2011,#the#State#shall#have#at#

Case#Managers#and#Transition#Specialists#were#assigned#

least#one#case#manager#and#by#July#1,#

at#each#State#Hospital.#There#is#evidence#that#individuals#

2012,#at#least#one#transition#specialist#per#

with#challenging#behaviors#and#medical#conditions#are#

State#Hospital#to#review#transition#

being#referred#to#and#placed#in#community#settings.#The#

planning#for#individuals#who#have#

discharge#planning#for#individuals#in#forensic#units#

challenging#behaviors#or#medical#

requires#further#review.

conditions#that#impede#their#transition#to#

the#community,#including#individuals#

Compliance

whose#transition#planning#team#cannot#

agree#on#a#transition#plan#or#does#not#

recommend#that#the#individual#be#

discharged.#The#transition#specialists#will#

also#review#all#transition#plans#for#

individuals#who#have#been#in#a#State#

Hospital#for#more#than#45#days.

For'persons'identified'in'the'

There'was'evidence'of'coordination'between'the'

developmental'disability'and'mental'

Regional'Office'and'State'Hospital.'At'this'time,'the'

illness'target'populations'of'this'

entire'transition'process'is'under'careful'review'by'the'

Settlement'Agreement,'planning'for'

leadership'of'the'Department.'The'Independent'

transition'to'the'community'shall'be'the'

Reviewer'has'been'apprised'of'these'discussions.'

responsibility'of'the'appropriate'regional' office'and'shall'be'carried'out'through'

Compliance

Additional'discussion'of'this'topic'will'be'included'in' her'report'to'be'issued'in'late'Winter'2014.

collaborative'engagement'with'the'

discharge'planning'process'of'the'State'

Hospitals'and'provider(s)'chosen'by'the'

individual'or'the'individual’s'guardian'

where'required.

The'regional'office'shall'maintain'and'

The'Regional'Offices'provided'a'list'to'the'State'

provide'to'the'State'Hospital'a'detailed'

Hospitals'of'all'community'providers.'The'Independent'

list'of'all'community'providers,'including'

Reviewer'has'copies'of'this'information.

all'services'offered'by'each'provider,'to'

be'utilized'to'identify'providers'capable' Compliance

of'meeting'the'needs'of'the'individual'in'

the'community,'and'to'provide'each'

individual'with'a'choice'of'providers'

when'possible.

	  

	  

	  

	  

	  

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Comments

III.D.3.c III.D.3.d
IV IV.A
IV.A.1

The'regional'office'shall'assure'that,'once'

In'the'sample'reviewed'in'FY12,'there'was'evidence'of'

identified'and'selected'by'the'individual,'

participation'by'community'providers.'Although'it'is'

community'service'boards'and/other'

evident'that'community'providers'continue'to'

community'providers'shall'actively'

Compliance participate'actively'in'the'transition'process,'this'

participate'in'the'transition'plan'(to'

matter'continues'to'be'under'review'by'the'

include'the'implementation'of'the'plan'

Department'and'the'Independent'Reviewer.

for'transition'to'the'community).

The'community'service'boards'and/or'

Once'problems'were'identified,'community'service'

community'providers'shall'be'held'

boards'and/or'community'providers'were'held'

accountable'for'the'implementation'of'

accountable.'There'is'continuing'evidence'of'this'

that'portion'of'the'transition'plan'for'

Compliance accountability'measure'in'FY13.

which'they'are'responsible'to'support'

transition'of'the'individual'to'the'

community.

Quality'Management

By'January'1,'2012,'the'State'shall'

The'Quality'Management'system'has'been'initiated'by'

institute'a'quality'management'system'

the'Department.'The'Quality'Management'system'

regarding'community'services'for'the'

plan'and'the'reports'issued'on'February'1'and'August'

target'populations'specified'in'this'

1,'2013'document'the'focus'on'the'community'services'

Agreement.'The'quality'management'

implemented'for'the'target'population'specified'in'this'

system'shall'perform'annual'quality'

Agreement.'The'reports'substantiate'that'annual'

service'reviews'of'samples'of'community'

quality'service'reviews'are'conducted'by'the'Delmarva'

providers,'including'faceQtoQface'meetings'

Foundation'and'APS,'the'External'Review'

with'individuals,'residents,'and'staff'and'

Organizations.'In'addition,'the'Georgia'Mental'Health'

reviews'of'treatment'records,'

Compliance Consumer'Network'interviewed'recipients'of'mental'

incident/injury'data,'and'keyQindicator'

health'services.'Incident/injury'data'was'maintained'

performance'data.

and'reviewed'for'the'community'system'and'keyQ

indicator'performance'data'was'referenced'in'the'

Quality'Management'system'reports.'

Recommendations'made'by'the'Department'of'

Justice's'expert'consultant'have'been'considered'and'

implemented'by'the'Department'in'order'to'further'

strengthen'the'Quality'Management''system,'its'Plan,'

and'its'semiQannual'reports.

The'system’s'review'shall'include'the'

The'Department'tracks'data'related'to'the'provision'of'

implementation'of'the'plan'regarding'

alternatives'to'state'hospital'admissions'for'

cessation'of'admissions'for'persons'with'

individuals'with'a'developmental'disability.'These'data'

developmental'disabilities'to'the'State'

focus'on'various'forms'of'crisis'services,'including'

Hospitals.

mobile'crisis'teams'and'crisis'respite'care.'In'addition,'

the'Independent'Reviewer'has'been'given'the'

information'requested'regarding'the'names'of'

individuals'with'a'developmental'disability'admitted'

Compliance

to'state'psychiatric'units,'including'forensic'units.' Since'the'Department'routinely'tracks'these'sets'of'

information'and'reviews'them'on'a'regular'basis'in'

preparation'of'the'Quality'Management'reports,'this'

provision'is'rated'in'substantial'compliance.'However,'

it'is'recommended'that'the'Quality'Management'

system'initiate'more'concentrated'focus'on'the'

analysis'and'reporting'of'the'effects'from'the'cessation'

of'admissions'and'include'that'detailed'analysis'in'its'

reports'on'an'ongoing'basis.''

	  

	  

	  

	  

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IV.A.2 IV.A.3 IV.A.4 IV.B
IV.C

The'system’s'review'shall'include'the' service'requirements'of'this'Agreement.
The'system’s'review'shall'include'the' contractual'compliance'of'community' service'boards'and/or'community' providers.
The'system’s'review'shall'include'the' network'analysis.
The'State’s'quality'management'system' regarding'community'services'shall' analyze'key'indicator'data'relevant'to'the' target'population'and'services'specified' in'this'Agreement'to'measure'compliance' with'the'State’s'policies'and'procedures.'

Compliance Compliance Compliance Compliance

The'Quality'Management'reports'issued'by'the' Department'document'the'review'of'the'services' provided'under'the'terms'of'this'Agreement.'In' addition,'data'regarding'services/supports'are' maintained'by'the'respective'Divisions'of'the' Department.'The'Independent'Reviewer'was'provided' with'the'data'from'these'sources'for'the'preparation' of'this'report. The'Quality'Management'revised'plan'and'subsequent' reports'describe'the'oversight'structure'for'key' performance'indicators'and'outcomes'as'well'as'the' requirements'for'service'providers.'External'Review' Organizations'(APS'and'Delmarva)'conduct'onPsite' reviews'of'provider'agencies'on'an'established' periodic'basis.'The'Department'of'Community'Health' audits'community'service'boards'every'three'years.' A'comprehensive'network'analysis'was'submitted'to' the'Independent'Reviewer'and'the'Department'of' Justice'on'July'1,'2013.'In'this'report,'detailed' information'was'provided'about'available' services/supports'in'each'of'the'six'regions'as'well'as' the'currently'existing'gaps'in'services.'Detailed' information'was'also'provided'about'the' demographics'of'each'region'and'the'target' populations'to'be'served.' The'Quality'Management'reports'submitted'to'date' contain'analyses'of'key'performance'indicators'related' to'specific'services'required'under'this'Settlement' Agreement.'For'example,'there'are'key'performance' indicators'related'to'ACT,'supported'employment,'case' management,'housing'and'community'support'teams.

Beginning'on'February'1,'2013''and'

Under'the'Court's'August'29,'2012'Order,'the'language'

ending'on'February'1,'2015,'the'State’s'

for'this'provision'was'modified.'The'Department’s'

quality'management'system'shall'create'a'

provisional'Quality'Management'system'report'was'

report'at'least'once'every'six'months'

not'scheduled'to'be'submitted'until'October'1,'2012.'

summarizing'quality'assurance'activities,'

'The'Department'issued'this'report'in'a'timely'manner,'

findings,'and'recommendations.'The'

although'it'was'not'to'be'reviewed'by'the'

State'shall'also'provide'an'updated'

Independent'Reviewer.'Subsequent'reports'have'been'

quality'management'plan'by'July'1,'2012,'

filed'in'a'timely'manner'on'February'1'and'August'1,'

and'a'provisional'quality'management' Compliance 2013.'The'Quality'Management'plan'was'submitted'on'

system'report'by'October'1,'2012.'The'

July'1,'2012'and'revised'in'April'2013.

provisional'quality'management'system'

report'shall'not'be'subject'to'review'by'

the'Independent'Reviewer'under'Section'

VI.B'of'the'Settlement'Agreement.'The'

State'shall'make'all'quality'management'

reports'publicly'available'on'the'DBHDD'

website.'

	  

	  

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The'State'shall'notify'the'Independent'

The'Independent'Reviewer'and'the'United'States'are'

Reviewer(s)'promptly'upon'the'death'of'

notified'of'deaths'and'the'results'of'investigations.'

any'individual'actively'receiving'services'

Any'questions'about'deaths'are'discussed'with'the'

pursuant'to'this'Agreement.'The'State'

Department.'Under'the'direction'of'the'DBHDD'

shall,'via'email,'forward'to'the'United'

Medical'Director,'in'October'2012,'a'communityObased'

States'and'the'Independent'Reviewer(s)'

mortality'review'committee'was'created.'The'

IV.E

Compliance

electronic'copies'of'all'completed'

committee'meets'every'other'month'to'review'

incident'reports'and'final'reports'of'

unexpected'deaths.'There'is'representation'by'

investigations'related'to'such'incidents'as'

clinicians'who'are'not'employed'by'the'Department.'In'

well'as'any'autopsies'and'death'

addition,'in'FY13,'there'was'evidence'that'patterns'of'

summaries'in'the'State’s'possession.

deaths'were'reviewed'by'the'Department's'leadership.'

	  

	  

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 26 of 113

DISCUSSION	  OF	  COMPLIANCE	  FINDINGS	   Methodology	  
For	  each	  compliance	  requirement,	  the	  Department	  of	  Behavioral	  Health	  and	  Developmental	  Disabilities	   was	  asked	  to	  provide	  data	  and	  documentation	  of	  its	  work.	  The	  Department’s	  progress	  in	  meeting	  the	   provisions	  of	  the	  Settlement	  Agreement	  was	  reviewed	  in	  work	  sessions	  and	  Parties’	  meetings	   throughout	  the	  year;	  through	  discussions	  with	  providers	  and	  community	  stakeholders;	  and	  through	  site	   visits	  to	  community	  residences,	  day	  programs,	  Supported	  Employment	  programs,	  supported	  housing,	   Assertive	  Community	  Treatment	  team	  sites,	  crisis	  services,	  crisis	  apartments,	  a	  county	  jail,	  and	  a	  Peer	   Wellness	  and	  Respite	  Center.	  	  
Although	  the	  compliance	  ratings	  regarding	  the	  transition	  of	  individuals	  with	  a	  developmental	  disability	   to	  community-­‐based	  programs	  have	  been	  deferred,	  the	  Independent	  Reviewer	  retained	  two	  nurse	   consultants,	  Natalie	  Russo	  and	  Vicki	  Crowder,	  to	  assist	  with	  the	  review	  of	  at	  least	  one	  individual	  placed	   in	  each	  residence.	  	  These	  reviews	  are	  underway	  and	  will	  be	  completed	  no	  later	  than	  January	  1,	  2014.	   The	  findings	  from	  the	  reviews	  will	  be	  discussed	  in	  a	  report	  to	  be	  submitted	  by	  the	  Independent	   Reviewer	  in	  late	  Winter	  2014.	  
Any	  reports	  issued	  to	  date	  from	  the	  reviews	  of	  the	  transitioned	  individuals	  have	  been	  distributed	  to	  the	   Parties.	  The	  Department	  of	  Behavioral	  Health	  and	  Developmental	  Disabilities	  is	  in	  the	  process	  of	   analyzing	  these	  reports	  and	  has	  instructed	  its	  Regional	  staff	  to	  take	  corrective	  actions,	  as	  appropriate.	  
It	  is	  important	  to	  note	  that	  the	  monitoring	  tool	  used	  by	  the	  Independent	  Reviewer	  and	  by	  the	   Department,	  in	  its	  own	  reviews	  of	  transitioned	  individuals,	  is	  identical.	  The	  Independent	  Reviewer	  and	   her	  two	  nurse	  consultants	  provided	  training	  on	  the	  monitoring	  tool	  to	  Department	  staff.	  
In	  December	  2012,	  a	  nurse	  consultant	  to	  the	  Independent	  Reviewer,	  Karen	  Green	  McGowan,	  reviewed	   the	  community	  placements	  of	  two	  of	  the	  three	  institutionalized	  minors.	  (The	  third	  young	  woman	  was	   too	  medically	  unstable	  to	  be	  placed	  in	  another	  setting.	  She	  remained	  in	  the	  state	  hospital	  and	  received	   compassionate	  and	  appropriate	  care	  from	  her	  physician	  and	  nursing	  staff	  until	  her	  death.)	  	  
Two	  expert	  consultants,	  David	  Lynde	  and	  Martha	  Knisley,	  were	  retained	  to	  assist	  the	  Independent	   Reviewer	  in	  evaluating	  the	  Department’s	  compliance	  with	  the	  Settlement	  Agreement	  provisions	   regarding	  Supported	  Employment,	  Supported	  Housing	  and	  Bridge	  Funding.	  The	  State	  Health	  Authority	   Yardstick	  (SHAY),	  a	  tool	  developed	  at	  Dartmouth	  University,	  was	  used	  for	  the	  evaluation	  of	  Supported	   Employment	  services	  provided	  under	  the	  Settlement	  Agreement.	  The	  reports	  from	  each	  of	  these	   evaluations	  have	  been	  provided	  to	  the	  Parties	  and	  are	  attached	  to	  this	  Report.	  
A	  third	  expert	  consultant,	  Angela	  Rollins,	  was	  retained	  to	  document	  the	  Department’s	  progress	  in	   establishing	  Assertive	  Community	  Treatment	  (ACT)	  teams.	  Her	  report,	  including	  her	  findings	  from	  the	   State	  Health	  Authority	  Yardstick,	  has	  been	  shared	  with	  the	  Parties	  and	  is	  attached	  to	  this	  Report.	  As	   agreed	  to	  by	  the	  Parties,	  Dr.	  Rollins	  spent	  thirteen	  days	  on	  site	  in	  Georgia,	  working	  with	  Department	   staff	  and	  assessing	  their	  efforts	  to	  establish	  the	  requisite	  complement	  of	  ACT	  teams.	  The	  Department	   increased	  the	  Independent	  Reviewer’s	  budget	  to	  allow	  this	  additional	  evaluation.	  

	  

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Finally,	  as	  stipulated	  in	  the	  Settlement	  Agreement,	  this	  report	  has	  been	  provided	  in	  draft	  form	  to	  the	   Parties	  for	  review	  and	  comment	  prior	  to	  submission	  to	  the	  Court.	  A	  meeting	  to	  discuss	  the	  draft	  report	   was	  held	  on	  August	  28,	  2013.	  
Review	  of	  Obligations	  for	  Year	  Three	  
A.	  Serving	  People	  with	  Developmental	  Disabilities	  in	  the	  Community	  
As	  referenced	  earlier,	  the	  Court	  has	  ordered	  that	  the	  Independent	  Reviewer’s	  rating	  of	  the	  quality	  of	  the	   placements	  of	  individuals	  with	  a	  developmental	  disability	  transitioned	  from	  state	  hospitals	  to	  the	   community	  be	  deferred	  for	  six	  months.	  Consequently,	  although	  work	  is	  now	  underway,	  the	  findings	   from	  the	  evaluation	  process	  will	  not	  be	  discussed	  in	  this	  Report.	  
However,	  it	  is	  important	  to	  acknowledge	  the	  very	  deliberate	  and	  important	  efforts	  now	  being	   implemented	  by	  the	  Department	  to	  assess	  the	  quality	  of	  its	  own	  work.	  To	  date,	  the	  Department	  has	   conducted	  reviews	  of	  seventy-­‐nine	  individuals	  with	  a	  developmental	  disability	  placed	  from	  state	   hospitals	  during	  FY13.	  (Three	  reviews	  were	  determined	  to	  be	  inadequate	  and	  are	  being	  redone.)	  The	   Department	  has	  initiated	  a	  contract	  with	  Georgia	  State	  University	  to	  assist	  with	  the	  compilation	  and	   analysis	  of	  all	  of	  the	  data	  elements	  of	  the	  seventy-­‐nine	  completed	  monitoring	  tools.	  As	  a	  result	  of	  these	   reviews,	  the	  Department	  has	  instituted	  corrective	  action	  plans,	  as	  appropriate,	  and	  has	  removed	  a	   subset	  of	  individuals	  from	  the	  responsibility	  of	  poorly	  performing	  providers.	  The	  Department	  has	  kept	   the	  Department	  of	  Justice	  and	  the	  Independent	  Reviewer	  fully	  informed	  throughout	  this	  process.	  
The	  Department	  has	  used	  this	  challenging	  period	  to	  re-­‐engineer	  its	  transition	  process	  and	  to	  develop	  a	   statewide	  transition	  protocol.	  Projected	  placements	  are	  under	  review	  in	  order	  to	  ensure	  that	   appropriate	  community	  supports	  have	  been	  identified	  and	  will	  be	  available	  at	  the	  time	  of	  discharge	   from	  the	  state	  hospital.	  The	  Individual	  Support	  Plan	  process	  and	  the	  function	  and	  structure	  of	  support	   coordination	  are	  under	  review	  with	  technical	  assistance	  from	  expert	  consultants	  in	  this	  field.	  	  
The	  planned	  placements	  from	  the	  Craig	  Center	  at	  Central	  State	  Hospital,	  a	  skilled	  nursing	  facility	   scheduled	  to	  close,	  are	  included	  in	  the	  review	  of	  transitions	  from	  the	  state	  hospitals.	  Individuals	  in	  this	   facility	  may	  have	  a	  developmental	  disability	  or	  a	  history	  of	  mental	  illness.	  The	  Independent	  Reviewer	  has	   been	  given	  information	  regarding	  the	  transfers	  of	  thirteen	  individuals	  transferred	  from	  the	  Craig	  Center	   to	  nursing	  homes,	  prior	  to	  the	  Commissioner’s	  cessation	  of	  such	  transfers.	  In	  each	  of	  the	  thirteen	  cases,	   there	  was	  evidence	  of	  family	  preference	  for	  nursing	  home	  placement,	  either	  because	  of	  the	  person’s	   age,	  prior	  or	  current	  medical	  issues,	  proximity	  to	  the	  family,	  or	  past	  experiences	  in	  less	  restrictive	   settings.	  The	  Department’s	  forthright	  examination	  of	  the	  degree	  to	  which	  the	  family	  or	  individual	  had	   been	  educated	  about	  community-­‐based	  options	  documented	  that	  such	  information	  was	  clearly	   provided	  in	  six	  instances	  (46%).	  As	  part	  of	  its	  review	  of	  transitions,	  it	  is	  recommended	  that	  the	   Department	  continue	  to	  examine	  the	  depth	  and	  scope	  of	  its	  educational	  process	  about	  community	   alternatives	  to	  nursing	  home	  care	  in	  order	  to	  ensure	  that	  a	  truly	  informed	  choice	  is	  made	  by	  the	   individual	  and/or	  family	  member	  involved	  in	  that	  decision.	  Additionally,	  it	  is	  to	  be	  noted	  that	  the	   individuals	  with	  a	  developmental	  disability	  now	  residing	  in	  the	  Craig	  Center	  are	  to	  be	  provided	   community	  supports	  through	  Waiver	  funding.	  It	  is	  not	  clear,	  at	  this	  point,	  how	  many	  of	  the	  individuals	  

	  

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with	  a	  mental	  illness	  will	  qualify	  for	  similar	  types	  of	  funding.	  In	  a	  meeting	  with	  the	  Commissioners	  of	  the	   Department	  of	  Behavioral	  Health	  and	  Developmental	  Disabilities	  and	  the	  Department	  of	  Community	   Health,	  the	  Independent	  Reviewer	  was	  assured	  that	  the	  State	  would	  explore	  all	  options,	  including	  the	   use	  of	  available	  state	  funds,	  if	  necessary,	  to	  permit	  community,	  rather	  than	  nursing	  home,	  placements	   for	  this	  group	  of	  individuals.	  	  
This	  period	  of	  intensive	  review	  also	  permits	  the	  Department	  an	  opportunity	  to	  examine	  whether	  the	   information	  it	  has	  secured	  through	  its	  own	  Quality	  Management	  system	  is	  utilized	  effectively	  at	  the	   Regional	  level.	  The	  Independent	  Reviewer	  and	  the	  Settlement	  Agreement	  Coordinator	  plan	  to	  analyze	   further	  the	  evaluations	  conducted	  through	  the	  Delmarva	  Foundation	  process	  and	  the	  responses	  from	   the	  Regional	  offices.	  	  
Although	  this	  has	  been	  a	  very	  difficult	  set	  of	  issues	  to	  address	  in	  the	  third	  year	  of	  the	  Settlement	   Agreement,	  the	  Department	  has	  been	  very	  open	  with	  its	  findings	  and	  its	  plans	  to	  address	  them.	  In	  order	   to	  build	  a	  proper	  foundation	  for	  the	  system,	  it	  has	  welcomed	  guidance	  and	  the	  identification	  of	  relevant	   resources.	  Existing	  community	  provider	  agencies	  that	  have	  demonstrated	  expected	  practices	  are	   provided	  positive	  examples	  for	  replication.	  In	  the	  end,	  it	  is	  anticipated	  that	  a	  stronger,	  more	   individualized	  and	  integrated	  system	  of	  supports	  will	  be	  available	  for	  Georgians	  with	  a	  developmental	   disability,	  especially	  those	  who	  have	  been	  institutionalized	  in	  state	  hospitals.	  	  
The	  State	  has	  continued	  to	  support,	  and	  the	  General	  Assembly	  to	  fund,	  Home	  and	  Community-­‐Based	   Waiver	  Services	  and	  family	  supports.	  The	  State	  more	  than	  doubled	  the	  total	  waiver	  requirement	   specified	  in	  the	  Settlement	  Agreement,	  creating	  597	  new	  waivers	  in	  this	  review	  period.	  	  It	  was	  reported	   to	  the	  Independent	  Reviewer	  that	  the	  Department	  has	  been	  very	  encouraging	  about	  the	  use	  of	  family	   support	  resources	  and	  has	  been	  very	  responsive	  to	  requests	  for	  assistance.	  
By	  the	  end	  of	  October	  2013,	  the	  Independent	  Reviewer	  must	  assess	  whether	  the	  crisis	  and	  respite	   services,	  including	  mobile	  crisis	  teams,	  required	  under	  this	  Agreement	  for	  individuals	  with	  a	   developmental	  disability	  are	  adequate	  to	  address	  the	  needs	  of	  the	  target	  population.	  At	  this	  time,	   therefore,	  it	  was	  confirmed	  that	  the	  Department	  has	  implemented	  the	  number	  of	  mobile	  crisis	  teams	   and	  respite	  homes	  required	  by	  this	  review	  period	  but	  an	  evaluation	  of	  their	  function	  and	  performance	   will	  be	  deferred	  until	  the	  October	  report.	  	  
	  
B.	  Serving	  Persons	  with	  Mental	  Illness	  in	  the	  Community	  
At	  the	  completion	  of	  the	  third	  year	  of	  the	  Settlement	  Agreement,	  it	  is	  evident	  that	  the	  building	  blocks	   for	  a	  community-­‐based	  system	  of	  mental	  health	  care	  are	  largely	  in	  place.	  The	  Department	  has	  made	   impressive	  strides	  in	  implementing	  peer	  supports,	  supported	  housing,	  supported	  employment,	  crisis	   services	  and	  in	  building	  Assertive	  Community	  Treatment	  teams.	  Each	  of	  these	  services	  is	  essential	  to	   preventing	  unnecessary	  hospitalization	  and	  to	  promoting	  recovery	  from	  a	  mental	  illness.	  	  

	  

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The	  attached	  reports	  from	  the	  expert	  consultants	  retained	  by	  the	  Independent	  Reviewer	  document	  that	   the	  Department	  complied	  with	  the	  development	  of	  twenty-­‐two	  Assertive	  Community	  Treatment	  (ACT)	   teams	  and	  met	  the	  expectation	  of	  strong	  fidelity	  to	  the	  Dartmouth	  model.	  The	  Department	  exceeded	   the	  obligations	  related	  to	  the	  provision	  of	  supported	  housing	  and	  bridge	  funding.	  The	  Department	   exceeded	  the	  number	  of	  individuals	  expected	  to	  receive	  supported	  employment	  and,	  in	  doing	  so,	   demonstrated	  fidelity	  to	  the	  Dartmouth	  model.	  These	  accomplishments	  are	  to	  be	  commended.	  They	   afford	  a	  strong	  foundation	  for	  future	  growth.	  

The	  Department	  has	  implemented	  the	  majority	  of	  crisis	  services	  required	  for	  this	  period	  of	  the	   Settlement	  Agreement.	  It	  has	  developed	  one	  Crisis	  Service	  Center	  in	  Region	  4;	  four	  Community	  Support	   Teams	  in	  rural	  areas;	  two	  Crisis	  Stabilization	  Programs	  with	  sixteen	  beds	  each;	  and	  Mobile	  Crisis	  Teams	   that	  respond	  to	  calls	  from	  100	  counties.	  The	  Independent	  Reviewer	  conducted	  a	  site	  visit	  to	  the	  Crisis	   Service	  Center.	  Additional	  site	  visits	  will	  occur	  as	  the	  Independent	  Reviewer’s	  assessment	  of	  the	   Community	  Support	  Teams	  is	  completed	  in	  preparation	  for	  her	  report	  due	  on	  October	  30,	  2013.	  

After	  a	  site	  visit	  to	  the	  crisis	  apartments	  funded	  in	  Region	  6	  under	  the	  terms	  of	  the	  Agreement,	  a	  finding	   of	  non-­‐compliance	  has	  been	  made	  for	  that	  provision	  (See	  B.2.b.vi.).	  The	  apartments	  were	  designed	  for	   four	  individuals	  in	  crisis,	  not	  two,	  and	  one	  bedroom/bath	  was	  restricted	  for	  staff	  use.	  The	  apartments	   were	  in	  close	  proximity	  to	  two	  other	  residential	  programs	  operated	  by	  the	  same	  agency.	  Although	  the	   Department	  contracted,	  on	  June	  27,	  2013,	  for	  four	  apartments	  (eight	  beds	  total)	  to	  be	  established	  in	   Region	  3,	  those	  apartments	  were	  not	  operational	  at	  the	  close	  of	  this	  review	  period.	  Therefore,	  the	   Department	  did	  not	  comply	  with	  the	  requirement	  that	  six	  crisis	  apartments	  be	  established	  by	  July	  1,	   2013.	  Currently,	  there	  are	  three	  crisis	  apartments,	  located	  in	  Region	  1	  (one	  apartment)	  and	  Region	  2	   (two	  apartments).	  These	  three	  apartments	  provided	  support	  in	  ninety-­‐one	  admissions	  (not	  an	   unduplicated	  count	  of	  individuals).	  	  

The	  Department’s	  array	  of	  crisis	  services	  appears	  to	  be	  effective	  in	  that	  the	  state	  hospital	  census	  has	   declined.	  During	  the	  next	  review	  period,	  the	  Independent	  Reviewer	  intends	  to	  study	  more	  closely	  the	   linkages	  between	  these	  programs	  and	  how	  well	  they	  are	  integrated	  as	  a	  system	  of	  interventions.	  

Case	  management	  services	  have	  been	  implemented	  according	  to	  the	  obligations	  of	  this	  review	  period.	   There	  are	  three	  intensive	  case	  management	  teams	  and	  fifteen	  case	  management	  positions.	  Although	   the	  Independent	  Reviewer	  was	  provided	  information	  as	  to	  the	  number	  of	  individuals	  served	  by	  each	   case	  manager,	  she	  has	  requested	  additional	  information	  regarding	  the	  caseload	  size	  and	  the	  staff	  to	   individual	  ratio.	  	  

Intensive	  Services	  for	  Individuals	  with	  Severe	  and	  Persistent	  Mental	  Illness	  

	  

1.	  Assertive	  Community	  Treatment	  (ACT):	  	  	  

For	  this	  review	  period,	  the	  Settlement	  Agreement	  requires	  that	  there	  be	  twenty-­‐two	  ACT	  teams	  and	   that	  they	  operate	  with	  fidelity	  to	  the	  Dartmouth	  Assertive	  Community	  Treatment	  model.	  The	   Independent	  Reviewer’s	  expert	  consultant	  has	  verified	  that	  the	  Department	  is	  in	  compliance	  with	  this	   obligation.	  Compliance	  was	  determined	  through	  an	  intensive	  review	  of	  data,	  interviews	  with	  

	  

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Department	  staff,	  interviews	  with	  the	  clients	  and	  staff	  of	  the	  ACT	  teams,	  and	  observation	  of	  the	  teams	   in	  action.	  Thirteen	  days	  were	  spent	  on	  site	  in	  Georgia.	  

As	  described	  in	  the	  attached	  report	  by	  Dr.	  Rollins,	  the	  use	  of	  the	  State	  Health	  Authority	  Yardstick	  (SHAY)	   confirmed	  that	  the	  Department	  has	  strong	  leadership	  from	  the	  Commissioner’s	  office	  and	  those	  most	   directly	  overseeing	  ACT	  implementation.	  There	  is	  a	  state	  plan	  of	  very	  high	  quality.	  The	  system	  for	   monitoring	  fidelity	  to	  the	  Dartmouth	  model	  is	  solid.	  There	  have	  been	  multiple	  improvements	  in	  funding	   for	  ACT,	  including	  an	  extension	  of	  the	  initial	  authorization	  period	  and	  expedited	  authorization	  processes.	   ACT	  training	  was	  noted	  to	  be	  more	  responsive	  to	  the	  articulated	  needs	  of	  the	  ACT	  teams.	  	  

The	  opportunities	  or	  challenges	  that	  remain	  for	  the	  Department	  include	  the	  broad	  dissemination	  of	  the	   state	  plan;	  improving	  technical	  assistance	  to	  the	  teams;	  ensuring	  prompt	  follow-­‐up	  to	  any	  necessary	   corrective	  actions	  discovered	  during	  the	  fidelity	  reviews;	  and	  rethinking	  the	  qualifications	  of	  the	   substance	  abuse	  specialist	  on	  the	  team	  to	  permit	  easier	  hiring	  and	  retention.	  

Two	  other	  significant	  challenges	  cited	  in	  this	  report	  were	  also	  referenced	  in	  the	  expert	  consultants’	   reports	  on	  supported	  housing	  and	  supported	  employment:	  

• For	  sustainability,	  it	  is	  important	  that	  the	  Department	  analyze	  whether	  all	  members	  of	  the	   target	  population	  have	  appropriate	  access	  to	  these	  intensive	  community	  programs.	  In	  particular,	   there	  was	  concern	  that	  individuals	  being	  discharged	  from	  correctional	  settings	  or	  from	  state	   forensic	  units	  were	  not	  referred	  by	  their	  treatment	  teams	  at	  the	  desired	  rate.	  In	  addition,	  access	   to	  housing	  continued	  to	  be	  a	  struggle	  for	  some	  ACT	  teams,	  despite	  the	  Georgia	  Housing	  Voucher	   Program.	  Barriers	  seemed	  to	  be	  related	  to	  provider	  preferences	  for	  continuum	  of	  care	  options,	   client	  criminal	  history	  challenges,	  and	  lack	  of	  affordable	  housing	  options	  in	  general.	  
• The	  Department	  has	  made	  substantial	  progress	  in	  establishing	  the	  building	  blocks	  for	  its	  mental	   health	  system.	  Attention	  now	  needs	  to	  be	  directed	  towards	  assessing	  and	  strengthening	  the	   system	  as	  a	  whole.	  Attention	  is	  warranted	  now	  in	  order	  to	  ensure	  that	  the	  discrete	  components	   of	  the	  mental	  health	  system-­‐-­‐the	  building	  blocks	  represented	  by	  these	  programs-­‐-­‐work	   consistently	  and	  in	  unison	  towards	  the	  same	  goals	  and	  outcome	  measures.	  For	  example,	  it	  was	   noted	  that	  some	  ACT	  teams	  did	  not	  understand	  the	  principles	  of	  supported	  employment	  and	  did	   not	  refer	  their	  clients	  to	  these	  programs,	  even	  though	  there	  was	  an	  employment	  specialist	  on	   the	  team.	  	  

	  

2.	  Housing	  Supports	  

The	  attached	  report	  on	  the	  Georgia	  Housing	  Voucher	  Program,	  Bridge	  Funding	  and	  other	  related	   housing	  developments	  verified	  that	  the	  Department,	  with	  valuable	  assistance	  from	  its	  sister	  agencies,	   met	  the	  obligations	  for	  this	  review	  period.	  The	  Department	  exceeded	  both	  the	  requirements	  for	  the	   number	  of	  housing	  vouchers	  and	  for	  the	  amount	  of	  Bridge	  Funding	  made	  available	  to	  individuals	  with	  a	   mental	  illness.	  

The	  Department’s	  success	  in	  meeting	  these	  targets	  appeared	  to	  be	  the	  result	  of	  a	  combination	  of	   factors:	  the	  Department’s	  Supported	  Housing	  Director’s	  diligence	  and	  understanding	  of	  rental	  housing	  

	  

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operations	  and	  supported	  housing	  requirements;	  clear	  direction	  to	  and	  strong	  support	  from	  the	   Regional	  Directors	  and	  their	  staff;	  and	  the	  interest	  and	  support	  of	  referral	  sources,	  especially	  outreach	   staff	  from	  services	  for	  people	  who	  are	  homeless	  and	  have	  a	  mental	  illness.	  The	  Department	   methodically	  tracks	  their	  required	  targets	  and	  collects	  additional	  data	  in	  a	  timely	  manner,	  which	  enables	   them	  to	  self-­‐monitor	  their	  performance	  and	  better	  grasp	  their	  challenges.	  The	  Department	  and	  their	   local	  service	  agency	  partners	  are	  becoming	  informed	  about	  the	  local	  affordable	  rental	  markets,	  fair	   housing	  requirements,	  consumer	  choice	  and	  accessibility	  features,	  which	  is	  typically	  related	  to	  success	  in	   meeting	  leasing	  targets.	  
This	  foundation	  is	  critically	  important	  since	  the	  Settlement	  Agreement	  requires	  that	  the	  housing	   voucher	  program	  be	  expanded	  by	  1200	  supported	  housing	  beds	  by	  July	  1,	  2015.	  Therefore,	  over	  the	   next	  two	  years	  of	  the	  Settlement	  Agreement,	  the	  program	  must	  grow	  by	  160%	  of	  its	  current	  capacity.	  
It	  is	  clear	  that	  attention	  must	  be	  given	  to	  infrastructure	  capacity	  and	  continued	  collaboration	  with	   housing	  agency	  partners	  and	  community	  agencies,	  if	  future	  housing	  targets	  are	  to	  be	  achieved.	  The	   development	  of	  a	  work	  plan	  for	  the	  next	  two	  years	  would	  help	  “size”	  the	  planning	  process	  and	  set	  clear	   expectations	  for	  these	  activities.	  	  	  
It	  is	  recommended	  that	  the	  Department	  take	  additional	  concrete	  steps	  to	  expand	  referrals	  from	  jails	  and	   prisons	  as	  well	  as	  from	  hospitals	  and	  intensive	  residential	  programs.	  The	  number	  of	  individuals	  referred	   to	  date	  may	  reflect	  the	  true	  need	  but	  it	  may	  also	  be	  a	  reflection	  of	  problems	  with	  referral	  processes;	   lack	  of	  agreement	  on	  who	  should	  be	  referred;	  challenges	  to	  individuals	  becoming	  eligible	  for	  a	  housing	   program	  or	  being	  approved	  as	  a	  renter.	  
As	  noted	  in	  Ms.	  Knisley’s	  report,	  many	  individuals	  with	  a	  developmental	  disability,	  and	  those	  with	  co-­‐ occurring	  mental	  illness	  and	  developmental	  disability,	  are	  good	  candidates	  for	  supported	  housing.	   Despite	  the	  Department’s	  willingness	  to	  include	  them,	  they	  are	  under-­‐represented	  in	  the	  Department’s	   housing	  program;	  therefore,	  mapping	  out	  a	  plan	  to	  expand	  outreach	  and	  inclusion	  will	  be	  essential.	  	  
The	  Department,	  the	  Independent	  Reviewer	  and	  the	  Independent	  Reviewer’s	  consultant,	  Martha	   Knisley,	  have	  agreed	  to	  continue	  to	  evaluate	  these	  and	  other	  challenges	  to	  be	  resolved	  by	  the	  State	  in	   the	  next	  two	  years.	  Periodic	  reports	  will	  be	  provided	  at	  the	  Parties’	  meetings.	  
3.	  Supported	  Employment	  
The	  review	  of	  Supported	  Employment	  services,	  conducted	  by	  the	  Independent	  Reviewer’s	  consultant,	   David	  Lynde,	  confirmed	  that	  the	  Department	  not	  only	  exceeded	  the	  numerical	  target	  for	  FY13	  (440	   individuals	  with	  serious	  and	  persistent	  mental	  illness)	  but	  made	  significant	  strides	  in	  securing	  the	   foundation	  for	  future	  statewide	  growth	  in	  this	  program	  model.	  Mr.	  Lynde	  reached	  his	  conclusions	   through	  careful	  review	  of	  data,	  policies	  and	  procedures;	  interviews	  with	  Departmental	  leadership;	   interviews	  with	  staff	  from	  the	  Georgia	  Vocational	  Rehabilitation	  Agency	  and	  the	  Institute	  on	  Human	   Development	  and	  Disability	  at	  the	  University	  of	  Georgia;	  interviews	  with	  staff	  and	  clients	  of	  agencies	   providing	  supported	  employment	  services;	  discussions	  with	  mental	  health	  advocates,	  including	  peer	  and	  

	  

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family	  advocacy	  organizations;	  and	  observations	  from	  site	  visits	  to	  programs	  in	  January,	  April,	  May	  and	   July	  2013.	  
As	  part	  of	  his	  review,	  Mr.	  Lynde	  again	  administered	  the	  State	  Health	  Authority	  Yardstick	  (SHAY)	  to	   measure	  the	  extent	  and	  quality	  of	  Supported	  Employment	  services	  as	  an	  Evidence-­‐Based	  Practice.	  The	   Department’s	  overall	  score	  (4.0)	  in	  2013	  is	  considerably	  higher	  than	  its	  score	  (2.9)	  on	  the	  same	   measures	  in	  2012.	  For	  example,	  the	  Department’s	  Plan	  for	  Supported	  Employment	  received	  the	  highest	   score	  possible	  since	  it	  describes	  a	  solid	  framework	  for	  the	  implementation	  of	  supported	  employment	   services	  throughout	  the	  state.	  Training	  modules	  have	  been	  revised	  in	  response	  to	  ideas	  and	  requests	   made	  by	  the	  provider	  agencies.	  There	  is	  evidence	  of	  a	  commitment	  to	  sustain	  training	  resources	  for	  the	   foreseeable	  future,	  and	  a	  method	  for	  continued	  funding	  has	  been	  identified.	  	  
These	  initiatives,	  and	  the	  leadership	  that	  has	  supported	  them,	  are	  to	  be	  commended.	  They	  have	   strengthened	  the	  availability	  and	  fidelity	  of	  the	  Supported	  Employment	  services	  provided	  under	  the	   terms	  of	  the	  Settlement	  Agreement.	  The	  importance	  of	  employment	  to	  recovery	  from	  mental	  illness	  is	   well	  researched	  and	  well	  documented.	  At	  the	  time	  of	  this	  report,	  the	  monthly	  rate	  of	  employment	  for	   individuals	  receiving	  Supported	  Employment	  services	  was	  42.1%.	  	  
There	  are	  a	  number	  of	  areas	  for	  further	  action	  outlined	  in	  the	  attached	  report	  on	  Supported	   Employment	  services,	  including	  broad	  dissemination	  of	  the	  Department’s	  Plan;	  implementing	  the	   proposed	  pilot	  sites	  to	  gauge	  implementation	  of	  the	  Memorandum	  of	  Understanding;	  and	  responding	  to	   the	  requests	  for	  a	  rate	  study.	  Given	  the	  strong	  performance	  evidenced	  in	  this	  past	  Fiscal	  Year,	  these	   actions	  do	  not	  appear	  to	  be	  insurmountable	  or	  unrealistic	  to	  accomplish.	  As	  the	  report	  concludes:	  
While	  recognizing	  the	  substantial	  amount	  of	  work	  that	  DBHDD	  (the	  Department)	  has	  invested	  in	   these	  improvements,	  it	  is	  likewise	  important	  to	  note	  that	  sustaining	  the	  gains	  that	  have	  been	   made	  will	  be	  equally	  challenging	  and	  will	  require	  an	  ongoing	  focused	  investment	  of	  time,	  energy	   and	  resources	  on	  the	  part	  of	  DBHDD.	  In	  the	  next	  twelve	  months,	  it	  will	  be	  vitally	  important	  for	   DBHDD	  to	  make	  the	  most	  efficient	  and	  effective	  use	  of	  the	  tools	  they	  have	  now	  put	  in	  place	  to	   actively	  and	  comprehensively	  monitor	  the	  effectiveness,	  quality	  and	  accountability	  of	  Supported	   Employment	  Services	  within	  their	  state.	  It	  is	  critical	  that	  DBHDD	  ensures	  that	  Supported	   Employment	  is	  being	  provided	  in	  a	  way	  that	  is	  faithful	  to	  the	  evidence	  and,	  most	  importantly,	   ensures	  that	  Supported	  Employment	  is	  being	  provided	  in	  a	  recovery-­‐oriented	  fashion	  to	  help	  as	   many	  Georgians	  with	  mental	  illness	  as	  possible	  to	  be	  successful	  with	  employment	  in	  their	   recovery	  process.	  
Finally,	  although	  not	  required	  by	  the	  Settlement	  Agreement,	  it	  is	  important	  to	  reference	  one	  of	  the	   Department’s	  initiatives	  to	  “	  promote	  hope,	  autonomy,	  and	  engagement	  in	  constructive	  activity	  for	   individuals	  served	  by	  the	  agencies	  in	  the	  DBHDD	  network”	  and	  to	  strengthen	  the	  ability	  of	  clinicians,	   from	  both	  the	  Department	  and	  provider	  agencies,	  to	  implement	  recovery-­‐oriented	  treatment.	  The	  Beck	   Initiative,	  now	  in	  its	  second	  year	  of	  funding,	  is	  a	  collaborative	  partnership	  between	  the	  Department	  and	   the	  Aaron	  T.	  Beck	  Psychopathology	  Research	  Center	  of	  the	  University	  of	  Pennsylvania.	  Intensive	  training	   in	  recovery-­‐oriented	  cognitive	  therapy	  has	  been	  provided	  to	  110	  staff	  in	  Region	  4	  and	  is	  now	  being	  

	  

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offered	  to	  staff	  in	  Region	  6.	  Training	  will	  be	  implemented	  in	  Regions	  1	  and	  3,	  beginning	  in	  February	   2014.	  This	  model	  of	  therapy	  is	  a	  collaborative	  treatment	  approach	  that	  prioritizes	  attainment	  of	   individual-­‐directed	  goals,	  removal	  of	  obstacles	  to	  those	  goals,	  and	  engagement	  of	  withdrawn	  individuals	   in	  their	  own	  recovery.	  	  As	  such,	  this	  initiative	  is	  an	  excellent	  example	  of	  using	  other	  known	  evidence-­‐ based	  practices	  to	  complement	  the	  systemic	  reform	  supported	  by	  the	  Settlement	  Agreement.	  
	  
	  
CONCLUSIONS	  
The	  State,	  through	  its	  Department	  of	  Behavioral	  Health	  and	  Developmental	  Disabilities,	  has	  made	  very	   significant	  progress	  in	  implementing	  the	  building	  blocks	  of	  a	  responsive,	  recovery-­‐oriented	  mental	   health	  system.	  With	  a	  single	  exception,	  the	  requirements	  for	  new	  mental	  health	  services	  have	  been	  met	   or	  have	  been	  exceeded	  by	  the	  Department,	  often	  in	  concert	  with	  its	  sister	  agencies,	  and	  with	  full	   support	  by	  the	  Governor	  and	  the	  General	  Assembly.	  	  
The	  State’s	  good	  faith	  effort	  is	  again	  recognized	  with	  appreciation,	  as	  are	  the	  many	  contributions	  of	  its	   very	  strong	  advocacy	  community.	  
In	  the	  next	  two	  years,	  before	  the	  Settlement	  Agreement	  ends,	  it	  is	  critical	  that	  the	  State	  refine	  and	   strengthen	  the	  mental	  health	  system	  as	  a	  whole	  to	  ensure	  that	  the	  discrete	  programs,	  such	  as	  Assertive	   Community	  Treatment,	  Supported	  Employment	  and	  Supported	  Housing,	  work	  consistently	  and	   uniformly	  to	  implement	  individualized	  services	  and	  supports	  for	  the	  members	  of	  the	  target	  population,	   including	  those	  with	  a	  forensic	  history	  or	  criminal	  justice	  involvement.	  Although	  many	  of	  the	  key	   building	  blocks	  are	  in	  place,	  and	  those	  Settlement	  Agreement	  provisions	  are	  largely	  in	  compliance,	  at	   this	  stage	  of	  the	  Agreement,	  there	  is	  evidence	  that	  fragmentation,	  lack	  of	  professional	  knowledge	  and	   lack	  of	  action	  still	  remain	  as	  challenging	  obstacles,	  with	  the	  result	  that	  individuals	  are	  not	  always	  offered	   or	  provided	  the	  supports	  essential	  to	  their	  recovery.	  
As	  the	  system	  of	  crisis	  services	  matures,	  it	  is	  important	  that	  there	  be	  a	  very	  careful	  analysis	  of	  the	   impact	  of	  those	  services	  on	  the	  rate	  of	  hospitalization	  and	  involvement	  with	  the	  criminal	  justice	  system,	   both	  for	  individuals	  with	  a	  developmental	  disability	  and	  for	  those	  with	  a	  mental	  illness.	  The	  Independent	   Reviewer’s	  report	  due	  on	  October	  30,	  2013	  will	  evaluate	  whether	  certain	  crisis	  services	  are	  sufficient	  to	   address	  the	  overall	  need	  of	  people	  with	  developmental	  disabilities,	  especially	  in	  the	  rural	  communities.	  
Although	  it	  has	  been	  extremely	  difficult	  at	  times,	  it	  is	  fortunate	  that	  the	  Department	  is	  taking	  deliberate	   action	  to	  restructure	  its	  system	  of	  supports	  for	  individuals	  with	  a	  developmental	  disability.	  It	  is	   premature	  to	  evaluate	  the	  results	  of	  the	  Department’s	  efforts.	  However,	  there	  is	  no	  question	  that	  there	   are	  very	  serious	  efforts	  underway	  to	  examine	  and	  to	  ensure	  the	  expected	  quality	  of	  community	  services	   and	  supports,	  including	  protection	  from	  harm,	  habilitation	  and	  integration.	  The	  intent	  and	  the	  work	  of	   the	  Commissioner,	  the	  Deputy	  Commissioner,	  the	  Settlement	  Agreement	  Coordinator	  and	  the	  Division	  

	  

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leadership	  are	  recognized	  and	  commended.	  As	  required	  by	  the	  most	  recent	  Court	  Order,	  the	   Independent	  Reviewer’s	  report	  on	  these	  reform	  measures	  will	  be	  issued	  in	  late	  Winter	  2014.	  

	  In	  closing	  this	  Report,	  it	  again	  seems	  appropriate	  to	  repeat	  the	  conclusion	  from	  the	  Reports	  for	  Year	   One	  and	  Year	  Two:	  

In	  drafting	  the	  language	  of	  the	  Settlement	  Agreement,	  the	  Parties	  stated	  their	  intent	  that	  “the	   principle	  of	  self-­‐determination	  is	  honored	  and	  that	  the	  goals	  of	  community	  integration,	   appropriate	  planning	  and	  services	  to	  support	  individuals	  at	  risk	  of	  institutionalization	  are	   achieved.”	  This	  statement	  of	  intent	  is	  entirely	  consistent	  with	  the	  goal	  of	  the	  Commissioner	  of	   the	  Department	  of	  Behavioral	  Health	  and	  Developmental	  Disabilities	  that	  a	  continuum	  of	   services	  be	  reasonably	  accessible	  to	  every	  Georgian	  with	  a	  disability.	  	  

In	  this	  third	  year,	  the	  State	  again	  has	  demonstrated	  that	  it	  can	  and	  will	  honor	  its	  obligation	  to	  comply	   with	  the	  substantive	  provisions	  of	  the	  Settlement	  Agreement.	  The	  Year	  ahead	  must	  be	  characterized	  by	   further	  attention	  to	  qualitative	  measures	  and	  to	  the	  strategies	  and	  actions	  required	  to	  sustain	  these	   systemic	  changes.	  

	  

	  

Respectfully	  Submitted,	  

	  

_______________/s/_______________	  

Elizabeth	  Jones,	  Independent	  Reviewer	  

September	  19,	  2013	  

	  

	  

	  

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SUMMARY	  OF	  FY13	  RECOMMENDATIONS	  

Previous	  sections	  of	  this	  report,	  as	  well	  as	  the	  attached	  reports,	  refer	  to	  a	  number	  of	  issues	  with	  

recommendations	  for	  future	  action	  by	  the	  Department.	  	  A	  brief	  listing	  of	  those	  recommendations	  

includes:	  

	  

1.	  In	  the	  professional	  judgment	  of	  the	  Independent	  Reviewer,	  it	  is	  critical	  that	  there	  be	  a	  more	  

concentrated	  focus	  on	  the	  analysis	  and	  reporting	  of	  the	  effects	  from	  the	  above-­‐referenced	  cessation	  of	  

admissions	  to	  the	  state	  hospitals	  of	  people	  with	  developmental	  disabilities.	  For	  example,	  the	  

Department	  could	  track	  the	  admission	  of	  individuals	  with	  both	  an	  intellectual	  disability	  and	  a	  mental	  

illness	  to	  its	  psychiatric	  hospitals	  in	  order	  to	  evaluate	  the	  effectiveness	  of	  its	  crisis	  system.	  

	  

2.	  In	  concert	  with	  the	  Independent	  Reviewer,	  it	  is	  recommended	  that	  the	  Department	  review	  the	  

components	  of	  the	  crisis	  services	  system	  to	  determine	  if	  they	  are	  organized	  and	  coordinated	  as	  

effectively	  as	  possible.	  

	  

3.	  Attention	  must	  be	  given	  to	  infrastructure	  capacity	  and	  collaboration	  with	  housing	  agency	  partners	  

and	  community	  agencies,	  if	  future	  housing	  targets	  are	  to	  be	  achieved.	  	  While	  the	  state	  met	  the	  targets	  

again	  this	  year,	  it	  was	  agreed	  that	  meeting	  future	  targets	  would	  be	  more	  difficult	  because	  the	  

expectations	  are	  greater.	  	  Similarly,	  maintaining	  the	  program	  at	  the	  level	  required	  by	  this	  Settlement	  

Agreement	  requires	  "sustained"	  capacity	  at	  the	  provider,	  Regional	  and	  state	  level.	  It	  will	  be	  important	  to	  

give	  further	  attention	  to	  “turnover”	  and	  sustaining	  provider	  capacity.	  	  

	  

4.	  	  Collaboration	  must	  be	  strengthened	  with	  the	  DCA	  HCV	  program	  staff,	  Continuums	  of	  Care,	  local	  jails	  

and	  prisons,	  the	  Veterans	  Administration	  and	  local	  Public	  Housing	  Authorities.	  It	  is	  strongly	  

recommended	  that	  action	  steps	  and	  outcomes	  for	  these	  collaborations	  include,	  for	  example,	  formal	  

referral	  agreements,	  interagency	  training,	  the	  DCA-­‐DBHDD-­‐provider	  "boot	  camps"	  and	  activities,	  and	  

relationship	  building	  events.	  	  The	  development	  of	  a	  work	  plan	  would	  help	  "size"	  the	  planning	  process	  

and	  make	  clear	  expectations	  for	  these	  activities.	  	  	  

	  

5.	  	  For	  Assertive	  Community	  Treatment	  programs	  and	  Supported	  Housing	  programs,	  the	  Department	  

should	  assess	  the	  potential	  for	  increasing	  referrals	  from	  hospitals	  and	  intensive	  residential	  programs.	  	  

	  

6.	  	  For	  Assertive	  Community	  Treatment	  and	  Supported	  Housing	  programs,	  the	  Department	  should	  take	  

concrete	  steps	  to	  increase	  referrals	  from	  jails	  and	  prisons.	  	  	  These	  steps	  include	  building	  relationships	  

and	  working	  agreements	  between	  Regional	  staff,	  local	  providers/community	  service	  boards	  and	  local	  

Sheriffs	  and	  other	  officials	  for	  access,	  screening	  and	  referral	  arrangements.	  	  	  	  

	  

7.	  	  The	  Department	  should	  intensify	  its	  efforts	  to	  make	  provisions	  for	  supported	  housing	  for	  individuals	  

with	  developmental	  disabilities	  and	  those	  with	  co-­‐occurring	  mental	  illness	  and	  developmental	  

disabilities.	  	  

	  

8.	  	  The	  Department	  should	  consider	  ways	  in	  which	  to	  further	  refine,	  expand	  and	  improve	  Supported	  

Housing,	  Assertive	  Community	  Treatment,	  Intensive	  Case	  Management	  and	  Supported	  Employment	  as	  

interconnected	  initiatives.	  A	  simple	  crosswalk	  of	  the	  initiatives	  would	  reveal	  many	  opportunities	  for	  

connecting	  the	  programs.	  As	  noted,	  providing	  opportunities	  for	  peers	  to	  be	  a	  part	  of	  these	  processes	  

will	  add	  incredible	  value.	  	  	  	  	  

	  

	  

	  

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STATUS	  OF	  FY12	  RECOMMENDATIONS	  
The	  FY12	  Report	  offered	  the	  following	  recommendations	  for	  consideration	  by	  the	  State.	  The	   Department’s	  leadership	  and	  staff	  addressed	  the	  details	  of	  the	  recommendations	  both	  in	  Parties’	   meetings	  and	  in	  meetings	  with	  the	  Independent	  Reviewer.	  On	  June	  1,	  2013,	  a	  formal	  response	  to	  the	   recommendations	  was	  provided.	  This	  response	  summarized	  the	  State’s	  actions	  to	  date	  as	  well	  as	  its	   future	  plans.	  
1. Consider	  providing	  training	  to	  Department	  staff	  and	  providers	  on	  “social	  role	  valorization”	  and	   more	  clearly	  articulate	  expectations	  regarding	  the	  standards	  for	  community	  placement.	  This	   values-­‐based	  training	  focuses	  on	  developing	  and	  sustaining	  community	  membership	  for	   individuals	  who	  have	  been	  denied	  opportunities	  for	  meaningful	  participation	  in	  their	   communities.	  As	  the	  Department	  continues	  to	  establish	  new	  community-­‐based	  services	  and	   supports,	  such	  values-­‐based	  training	  could	  be	  helpful	  in	  designing	  and	  ensuring	  maximum	   opportunity	  for	  interaction	  with	  non-­‐disabled	  people.	  	  
The	  Department	  contracted	  with	  the	  highly	  regarded	  “Social	  Role	  Valorization	  Implementation	  Project”	   to	  provide	  a	  series	  of	  introductory	  sessions	  to	  the	  principles	  of	  social	  role	  valorization.	  These	  seven	   training	  sessions	  were	  held	  in	  various	  locations	  across	  the	  State;	  over	  two	  hundred	  and	  sixty	  individuals	   attended	  the	  training.	  Additional	  training	  is	  scheduled	  in	  November	  2013.	  The	  Department	  has	  planned	   to	  continue	  this	  training	  at	  least	  until	  June	  2015.	  
The	  provision	  of	  this	  training	  was	  responsive	  to	  this	  recommendation	  and	  also	  to	  the	  findings	  of	  the	   Delmarva	  report	  on	  the	  need	  to	  increase	  community	  integration	  and	  membership.	  	  
2. It	  is	  recommended	  that	  the	  Department	  examine	  the	  reasons	  why	  host	  homes	  are	  not	  used	   more	  frequently	  for	  community	  placements.	  As	  demonstrated	  by	  current	  and	  past	  site	  visits,	   host	  home	  placements	  generally	  afforded	  increased	  individualization	  and	  greater	  likelihood	  of	   social	  integration.	  	  	  
The	  enhanced	  value	  of	  host	  home	  placements	  was	  underscored	  in	  the	  most	  recent	  Delmarva	  report	   (Quarter	  3,	  2013)	  issued	  by	  the	  Department.	  During	  FY13,	  site	  visits	  by	  the	  Independent	  Reviewer	  and	   the	  Settlement	  Coordinator	  to	  three	  individuals	  placed	  in	  three	  host	  homes	  again	  demonstrated	  the	   increased	  social	  interaction	  and	  individualization	  inherent	  in	  this	  residential	  setting.	  The	  Department	   supports	  the	  use	  of	  host	  homes	  and	  has	  pointed	  out	  that	  13%	  of	  the	  individuals	  transitioned	  from	   hospitals	  in	  the	  last	  three	  years	  live	  in	  homes	  of	  their	  own/family	  homes	  or	  host	  homes.	  The	   Department’s	  focus	  on	  the	  design	  of	  individualized	  supports	  is	  appropriate.	  However,	  it	  continues	  to	  be	   recommended	  that	  the	  Department	  conduct	  a	  more	  systemic	  analysis	  to	  identify	  any	  barriers	  to	  the	   expansion	  of	  this	  residential	  model	  by	  community-­‐based	  providers.	  	  	  	  
3. Consider	  strategies	  to	  more	  clearly	  articulate	  and	  document	  the	  plan	  for	  sustaining	  the	   structural	  and	  programmatic	  accomplishments	  resulting	  from	  the	  Settlement	  Agreement.	  	  

	  

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In	  response	  to	  this	  recommendation,	  the	  Department	  stated	  that	  it	  would	  continue	  its	  documentation	   of	  Family	  Support	  and	  its	  capacity	  to	  assist	  families	  to	  meet	  support	  needs	  at	  less	  than	  Waiver	  costs.	   Such	  documentation	  would	  be	  provided	  to	  the	  legislature	  as	  it	  considers	  future	  funding.	  Additionally,	   the	  Department	  will	  continue	  to	  work	  with	  Family	  Support	  providers	  and	  the	  Family	  Support	  workgroup	   to	  strengthen	  and	  sustain	  its	  efforts.	  	  
It	  is	  recommended	  that	  the	  Department	  continue	  to	  explore	  and	  document	  additional	  strategies	  to	   sustain	  the	  structural	  and	  programmatic	  accomplishments	  resulting	  from	  the	  Settlement	  Agreement.	   For	  example,	  such	  strategies	  might	  build	  on	  the	  Department’s	  “White	  Paper:	  Housing	  for	  People	  with	   Developmental	  Disabilities	  and	  Behavioral	  Health	  Needs,”	  issued	  in	  July	  2013.	  This	  document	  clearly	   articulates	  the	  Department’s	  vision	  for	  the	  development	  of	  integrated	  housing	  opportunities	  and	  its	   commitment	  to	  the	  principles	  and	  mandates	  of	  the	  Olmstead	  decision	  and	  the	  Americans	  with	   Disabilities	  Act.	  The	  document	  also	  outlines	  the	  challenges	  and	  barriers	  (stigma,	  resources	  and	  paradigm	   shift)	  that	  must	  be	  addressed.	  	  	  	  	  	  
4. In	  order	  to	  ensure	  equality	  of	  access	  for	  all	  individuals	  in	  the	  target	  groups,	  work	  with	  the	   Independent	  Reviewer	  to	  analyze	  referral	  of	  supported	  housing	  vouchers	  and	  Bridge	  Funding.	  
As	  noted	  in	  this	  and	  previous	  reports,	  the	  Department	  has	  exceeded	  its	  obligations	  under	  the	   Settlement	  Agreement	  in	  terms	  of	  the	  number	  of	  housing	  vouchers	  awarded.	  
The	  Department	  has	  emphasized	  that	  it	  constantly	  monitors	  the	  referral	  source	  of	  each	  person	  entering	   the	  Georgia	  Housing	  Voucher	  Program	  (GHVP).	  Each	  year,	  priority	  is	  given	  to	  those	  individuals	  being	   discharged	  from	  state	  hospitals.	  The	  Department	  also	  conducted	  cross	  training	  for	  hospital	  personnel	  on	   community-­‐based	  resources,	  transition	  planning	  and	  the	  GVHP.	  The	  Department	  is	  partnering	  with	  the	   Georgia	  Tech	  College	  of	  Public	  Policy	  to	  review	  GHVP	  tenants’	  service	  history	  and	  sub	  populations	  to	   better	  understand	  the	  initial	  benefits	  of	  the	  program	  and	  referral	  access.	  
The	  Department	  and	  the	  Independent	  Reviewer’s	  expert	  consultant	  on	  housing	  continue	  to	  work	   together	  to	  analyze	  referrals	  to	  the	  supported	  housing	  vouchers	  and	  Bridge	  Funding.	  There	  is	  agreement	   between	  the	  Department	  and	  the	  Independent	  Reviewer	  that	  work	  on	  this	  issue	  will	  continue	  in	  the	   year	  ahead.	  	  
5. In	  conjunction	  with	  the	  Independent	  Reviewer,	  review	  the	  long-­‐term	  arrangements	  for	  ensuring	   the	  availability	  of	  housing	  resources	  in	  each	  of	  the	  next	  three	  years.	  
The	  Department	  and	  the	  Independent	  Reviewer’s	  housing	  expert	  continue	  to	  work	  together	  on	  the	   details	  related	  to	  this	  recommendation.	  Additional	  recommendations	  will	  be	  suggested	  and	  discussed	  in	   the	  coming	  year.	  
6. In	  collaboration	  with	  the	  Independent	  Reviewer,	  determine	  if	  further	  clarity	  is	  needed	  to	  ensure	   that	  the	  “ineligibility	  for	  any	  other	  benefits”	  is	  uniformly	  understood	  and	  applied	  to	  all	   applicable	  benefits.	  

	  

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The	  Department	  has	  revised	  its	  intake	  form	  to	  ensure	  that	  providers	  with	  other	  housing	  resources	  (e.g.	   Shelter	  Plus	  Care)	  are	  utilized	  before	  requesting	  resources	  from	  the	  Georgia	  Housing	  Voucher	  Program	   (GHVP).	  The	  Department	  has	  entered	  into	  a	  partnership	  with	  the	  Veterans	  Administration	  to	  assist	  their	   efforts	  at	  fully	  utilizing	  the	  Veterans	  Administration’s	  supported	  housing	  program	  so	  that	  GHVP	  rental	   assistance	  would	  not	  be	  required	  for	  a	  similar	  settlement	  population	  (chronic	  homelessness.)	  	  
7. In	  conjunction	  with	  the	  Independent	  Reviewer,	  review	  any	  potential	  barriers	  to	  community	   placement	  for	  individuals	  awaiting	  discharge	  from	  forensic	  units.	  
Since	  this	  recommendation	  was	  made,	  the	  Department	  has	  organized	  a	  workgroup	  consisting	  of	   leadership	  from	  forensic	  services,	  the	  regions,	  mental	  health,	  community	  transition	  planning	  and	  others	   to	  identify	  the	  barriers	  related	  to	  transition.	  As	  a	  result,	  on	  June	  14,	  2013,	  training	  was	  provided	  to	  all	   forensic	  hospital	  staff	  responsible	  for	  discharge	  planning	  on	  the	  purpose,	  availability	  and	  location	  of	   such	  community	  services	  as	  ACT,	  intensive	  case	  management	  housing,	  and	  Community	  Support	  Teams.	   Criteria	  for	  access/eligibility	  were	  discussed.	  Case	  studies	  were	  utilized	  to	  problem	  solve	  specific	   relevant	  examples.	  The	  workgroup	  intends	  to	  continue	  to	  meet	  to	  ensure	  ongoing	  coordination.	  In	   addition,	  the	  Behavioral	  Health	  Coordinating	  Council	  created	  a	  workgroup	  to	  address	  the	  joint	  concerns	   of	  partner	  agencies	  regarding	  individuals	  with	  behavioral	  issues	  transitioning	  from	  correctional	   institutions	  into	  the	  community.	  The	  Department	  chairs	  this	  workgroup.	  There	  is	  an	  interagency	   committee	  charged	  with	  identifying	  barriers	  and	  coming	  up	  with	  proposed	  solutions.	  This	  collaborative	   work	  is	  ongoing.	  
This	  recommendation	  continues	  to	  be	  a	  priority	  for	  the	  Independent	  Reviewer	  and	  further	  examination	   of	  the	  Department’s	  efforts	  and	  outcomes	  will	  continue	  in	  FY14.	  	  
8. Consider	  the	  use	  of	  housing	  vouchers	  for	  individuals	  with	  developmental	  disabilities	  placed	   under	  the	  Settlement	  Agreement.	  
The	  Department	  is	  in	  agreement	  with	  this	  recommendation.	  In	  conjunction	  with	  the	  Department’s	   Director	  of	  Housing,	  increased	  opportunities	  have	  been	  identified	  for	  the	  utilization	  of	  housing	  vouchers	   for	  individuals	  with	  a	  developmental	  disability	  placed	  under	  the	  Settlement	  Agreement.	  These	   opportunities	  now	  are	  available	  for	  individuals	  transitioning	  from	  the	  state	  hospitals,	  from	  congregate	   community	  settings	  (group	  homes),	  or	  from	  Waiver-­‐funded	  residential	  settings.	  Individuals	  with	  more	   challenging	  placement	  issues,	  such	  as	  individuals	  with	  a	  developmental	  disability	  who	  have	  a	  forensic	   history,	  may	  also	  benefit	  from	  the	  use	  of	  housing	  vouchers.	  Additional	  specialized	  voucher	  programs	   available	  through	  the	  Department	  of	  Community	  Affairs	  are	  currently	  planned	  for	  the	  transition	  of	   several	  individuals	  with	  a	  developmental	  disability	  from	  the	  state	  hospitals	  to	  a	  community	  setting.	  	  
This	  recommendation	  remains	  a	  priority	  for	  the	  Independent	  Reviewer	  and	  her	  expert	  consultant	  in	   housing	  and	  will	  be	  reviewed	  throughout	  FY14.	  	  
9. Develop,	  with	  stakeholder	  input,	  a	  written	  plan	  regarding	  the	  implementation	  of	  Supported	   Employment	  services.	  

	  

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This	  recommendation	  has	  been	  implemented.	  The	  Supported	  Employment	  State	  Plan	  has	  been	  finalized	   and	  was	  reviewed	  by	  the	  Independent	  Reviewer’s	  expert	  consultant.	  Continued	  dissemination	  and	   implementation	  of	  the	  Plan	  is	  anticipated.	  
10. Share	  the	  findings	  of	  the	  cost	  rate	  study,	  as	  well	  as	  the	  data	  and	  the	  calculation	  process	  used	  to	   complete	  this	  study,	  with	  providers	  and	  other	  stakeholders.	  
The	  Department	  and	  the	  Independent	  Reviewer	  will	  continue	  to	  discuss	  this	  recommendation.	  The	  cost	   rate	  study	  for	  Supported	  Employment	  Services	  has	  not	  been	  completed	  and	  continues	  to	  be	  a	   recommendation	  from	  the	  Independent	  Reviewer’s	  expert	  consultant	  in	  his	  FY13	  report.	  
11. Review	  training	  curriculum	  to	  ensure	  that	  all	  of	  the	  defined	  principles	  of	  evidence-­‐based	   Supported	  Employment	  are	  addressed.	  Provide	  access	  to	  trainers	  who	  can	  model	  skills	  for	   employment	  specialists.	  	  Specific	  and	  explicit	  fidelity	  expectations	  and	  expectations	  related	  to	   employment	  outcomes	  should	  be	  revisited	  with	  Supported	  Employment	  providers.	  
This	  recommendation	  has	  been	  implemented.	  The	  training	  is	  discussed	  and	  evaluated	  in	  the	  FY13	  report	   from	  the	  Independent	  Reviewer’s	  expert	  consultant	  on	  Supported	  Employment.	  
12. Consider	  convening	  Supported	  Employment	  coalition	  meetings	  in	  rotating	  Regions	  across	  the	   State	  so	  that	  providers	  have	  the	  opportunity	  to	  attend	  some	  meetings	  in	  person.	  	  
This	  recommendation	  has	  been	  implemented.	  The	  coalition	  meetings	  are	  now	  held	  in	  Macon,	  a	  location	   considered	  more	  central	  to	  the	  six	  regions.	  
13. Ensure	  that	  the	  outcomes	  from	  corrective	  action	  plans	  resulting	  from	  critical	  incidents	  are	   transmitted	  promptly	  to	  the	  Independent	  Reviewer	  and	  the	  Department	  of	  Justice.	  
The	  review	  of	  critical	  incidents	  continues	  to	  be	  a	  priority	  for	  the	  State,	  the	  Department	  of	  Justice	  and	  the	   Independent	  Reviewer.	  Information	  requested	  regarding	  specific	  incidents	  has	  been	  transmitted	  in	  a	   timely	  manner	  to	  the	  Independent	  Reviewer.	  The	  Settlement	  Agreement	  Coordinator	  and	  the	   Independent	  Reviewer	  are	  continuing	  to	  work	  together	  to	  analyze	  incidents	  and	  any	  remedial	  actions	   that	  are	  to	  be	  implemented.	  These	  efforts	  will	  continue	  in	  FY14.	  
14. Ensure	  that	  consents	  for	  psychotropic	  and	  other	  medications	  are	  documented	  prior	  to	  transition	   from	  State	  Hospitals.	  
The	  Department	  concurs	  with	  the	  importance	  of	  this	  issue.	  Although	  the	  Department	  has	  planned	   reasonable	  steps	  to	  address	  this	  concern,	  the	  actual	  degree	  to	  which	  this	  issue	  has	  been	  resolved	   requires	  the	  consideration	  of	  additional	  information.	  This	  information	  is	  being	  obtained	  from	  the	   monitoring	  of	  community	  placements	  currently	  underway	  by	  both	  the	  Department	  and	  the	  Independent	   Reviewer.	  Therefore,	  comment	  on	  this	  recommendation	  will	  be	  deferred.	  	  
	  
	  

	  

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State Health Authority Yardstick
 (SHAY)

Report for Georgia ACT Services
 Angela L. Rollins, PhD
 September 19, 2013

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Introduction
The State Health Authority Yardstick (SHAY) was designed by a group of mental health researchers and implementers who were interested in assessing the facilitating conditions for the adoption of Evidence-Based Practices (EBPs) created by the state’s (mental) health authority. The focus of this report is the state’s implementation of assertive community treatment (ACT) services.
The SHAY is a tool for assessing the state health authority responsible for mental health policy in a given state. For the purposes of this assessment, Georgia DBHDD has been identified as the “State Health Authority.”
The author of this report spent three days completing a series of interviews with a variety of stakeholders in the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) system, including:
• Commissioner and Deputy Commissioner for Programs, DBHDD • Assistant Commissioner of Behavioral Health, DBHDD • Executive Director, Division of Community Mental Health, DBHDD • Director, Adult Mental Health, DBHDD • DOJ ADA Settlement Coordinator • ACT fidelity assessment team, DBHDD • Supported Housing Director, DBHDD • APS (external Medicaid monitoring agency) care managers for ACT

services, and their team leader, and DBHDD liaison
 • Three external trainers who provided ACT-specific trainings during the
course of the last year • Community stakeholders including representatives from a number of
mental health advocacy organizations and criminal justice system representatives (e.g., public defender’s office)
The author also reviewed relevant documentation provided, including: • State Plan for ACT • ACT service definition and the operations manual which is now designated as a guideline rather than a regulatory document • ACT fidelity reports and fidelity score tracking tables, ACT team plans of correction for low fidelity, ACT consumer census tables • Log of all ACT-related trainings and some ACT training materials • ACT client outcomes reporting templates and reports • APS audit tool items and sample report • Minutes for each ACT Coalition meeting held during the last fiscal year • Memos documenting ACT policy changes during the last fiscal year • Georgia Housing Voucher data reports
The author also spent two days visiting two ACT programs in the field and meeting consumers served by one of those teams. The author also made four
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additional visits to Georgia from November 2012 to May 2013, a total of eight days, visiting several ACT teams in various regions of Georgia and meeting DBHDD regional staff, as well as meeting with DBHDD staff in Atlanta on each visit to stay on top of developments and discuss Georgia’s progress on ACT implementation.
The interviews throughout the year and during this July 2013 visit were rich and open about progress in ACT implementation. As noted in brief summaries from the earlier site visits, when barriers were noted in ACT implementation, DBHDD’s response was generally one of thoughtful reflection on the issues, followed promptly by clear and specific actions to reduce or eliminate the barrier. The author appreciates the candor and constructive comments and actions by all stakeholders during this visit and throughout the year.
The State of Georgia is in compliance with the Settlement Agreement requirement to establish twenty-two ACT teams by July 1, 2013. As of the end of June 2013, the twenty-two teams collectively were serving 1,263 consumers. The State is also in compliance with regards to additional requirements related to the composition of ACT teams with multidisciplinary staff, including a dedicated team leader, and the range of services to be provided by the team, including the availability of 24/7 crisis services. However, some teams continue to struggle with obtaining (or retaining) substance abuse specialists with the proper credentials to serve on their teams.
Summary
Strengths and improvements in ACT implementation: • Leadership from Commissioner’s office and those most directly
 overseeing ACT implementation, including a high quality state plan.
 • Clearer standards for ACT, with streamlined regulatory documents and clearer accountability standards for compliance with those standards. • Solid fidelity monitoring system. • Multiple improvements in funding for ACT: increased to state contract funding amounts beyond Year 2; increasing ACT initial authorization length to a year to better fit the model; improving APS processes for authorization to decrease unnecessary burden on ACT providers; allowing dual authorizations to encourage gradual, coordinated transitions from ACT to less intensive services; and allowing Medicaid billing for collateral contacts for ACT consumers. • Improvements in ACT trainings offered, including attention to provider feedback on what trainings they need for their ACT staff and a focus on follow-up webinars to improve the likelihood that concepts will be retained.
Challenges and recommendations for further improvements in ACT implementation:
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• Disseminate the state plan widely. • For sustainability, a thorough examination of whether ACT is reaching
populations of interest to the State is needed. For instance, ACT teams are serving consumers being discharged from state hospitals and correctional settings, but are they being served at the rate desired by the State? Do some ACT teams need more encouragement and/or direction to serve these populations? • Access to housing continues to be a struggle for some teams, even with the Georgia Housing Voucher program. Barriers seem to be related to provider preferences for continuum of care options, client criminal history challenges, and lack of affordable housing options in general. Some ACT teams may need more encouragement from DBHDD in the form of policies, fidelity review feedback, or other methods to consider independent living options for their consumers. • Improve recovery potential for ACT consumers by providing technical assistance (some onsite) to help teams use specialist positions to maximum advantage, such as helping supported employment specialists, substance abuse specialists, peer specialists, and nurses focus on their unique roles on an ACT team. • Ensure that follow-up and corrective action planning with teams scoring below 4.0 on DACTS happens promptly after the fidelity review. • Consider alternatives that would allow staff with one year or more of substance abuse treatment experience to serve in the role of substance abuse specialist on an ACT team. Substance abuse treatment experience that follows a stagewise approach, as opposed to an abstinence-only approach, could be beneficial to the ACT consumers with dual disorders and address a significant workforce challenge for providers in Georgia.
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Findings

Based on the information gathered, the author assessed each category of the SHAY as follows.

1. EBP Plan

The SMHA has an EBP plan to address the following:


(Use boxes to identify which components are included in the plan)


Note: The plan does not have to be a written document, or if written, does not

have to be distinct document, but could be part of the state’s overall strategic plan.

However if not written the plan must be common knowledge among state

employees, e.g. if several different staff are asked, they are able to communicate

the plan clearly and consistently.

X

1) A defined scope for initial and future

implementation efforts,

X

2) Strategy for outreach, education, and consensus

building among providers and other stakeholders,

X

3) Identification of partners and community

champions,

X

4) Sources of funding,

X

5) Training resources,

X

6) Identification of policy and regulatory levers to

support EBP,

X

7) Role of other state agencies in supporting and/or

implementing the EBP,

X

8) Defines how EBP interfaces with other SMHA

priorities and supports SMHA mission

X

9) Evaluation for implementation and outcomes of the

EBP

X

10) The plan is a written document, endorsed by the

SMHA

Score

1. No planning activities

2. 1 – 3 components of planning

3. 4 – 6 components of planning

4. 7 – 9 components

X

5. 10 components

Comments:

The State Plan for ACT was included in my packet of materials and covers all areas described above. The plan is a clear description of how the State plans to support ACT services and is a model for how to write an EBP plan. The only

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recommendation is to make sure it is now widely disseminated throughout DBHDD, providers, and other stakeholder groups.

2. Financing: Adequacy Is the funding model for the EBP adequate to cover costs, including direct service, supervision, and reasonable overhead? Are all EBP sites funded at the same level? Do sites have adequate funding so that practice pays for itself? Note: Consider all sources of funding for the EBP that apply (Medicaid fee-for­ service, Medicaid waiver, insurance, special grant funds, vocational rehabilitation funds, department of education funds, etc.) Adequate funding (score of 4 or 5) would mean that the practice pays for itself; all components of the practice financed adequately, or funding of covered components is sufficient to compensate for non-covered components (e.g. Medicaid reimbursement for covered supported employment services compensates for non-covered on inadequately covered services, e.g. job development in absence of consumer). Sources: state operations and budget, site program managers. If financing is variable among sites, estimate average.

Score:

1. No components of services are reimbursable

2. Some costs are covered 3. Most costs are covered 4. Services pays for itself (e.g. all costs covered adequately, or
finding of covered components compensates for non-covered components)

X

5. Service pays for itself and reimbursement rates are attractive

relative to competing non-EBP services.

Comments:

ACT funding primarily includes state contract and Medicaid rehabilitation option billing. Georgia DBHDD used a competitive RFP process to award contracts for high fidelity ACT teams with a maximum of $871,000 in Year 1 state funding, billing actual allowable expenses each month (no more than 1/12 of the total contract amount). Year 2 billing can reach up to $780,000. Teams are permitted a great deal of flexibility in how they use these state funds. On top of the state contract money, teams also bill Medicaid ACT rates ($32.46 per 15 minute unit). DBHDD officials made a significant change recently to allow teams to continue state contracts of up to $780,000 in future years, a significant increase of $130,000 per year that was made as a thoughtful response to providers who were reporting lower rates of Medicaid for ACT consumers, a critical element of budgeting for ACT sustainability.

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A significant improvement from 2011 was the increase in ACT authorization length from 90 days to 6 months and then a further lengthening of the initial ACT authorization to a full year, bringing ACT authorization length much closer to the ACT intent of providing services with no arbitrary time limits. Providers and other stakeholders across the State openly expressed gratitude for this important policy change. It was also noted that APS and DBHDD worked to address barriers related to communication and transmission of ACT authorization documentation between APS and providers. APS now is initiating secure email exchanges with providers, has conducted several trainings to assist providers with understanding the documentation requirements (often this resulted in more focused documentation of need for ACT rather than huge transmissions of paperwork), and attends each ACT coalition meeting to stay in contact with ACT providers.
The State modified policies to allow for ACT Medicaid billing for collateral contacts since this is encouraged by the model. A few providers have continued to express a desire to bill for phone contact with consumers, similar to what is allowable for other services in the state Medicaid plan. Some acknowledged that it would “settle” for billing after-hours crisis phone contacts only, since after hours crisis response is a model requirement. That last suggestion might be a reasonable compromise, although it could be difficult to monitor in a practical way.
The State has also made sure to allow for dual authorizations for ACT and other services during transitions to less intensive services to avoid abrupt graduations for ACT. The transitions are very short-term (45 days), so I would like to see the State check in with ACT providers and/or consumers at some point in the next fiscal year to make sure this process works smoothly for consumers transferring to less intensive services.
Georgia ACT programs also have had access to community transition planning authorizations to allow for billing the State while conducting discharge planning from hospitals or other institutions when MRO billing is not an option. The rate is roughly $10/unit less than ACT but still a decent rate. Two teams I spoke with were very familiar with this billing option, use it when appropriate, and find it a helpful option for enrolling consumers who need ACT. I have heard from other stakeholders that some providers are either not familiar with or comfortable billing this source. DBHDD and APS have covered this option in ACT coalition meetings, even recently, including formal presentation slides that were reviewed. As the State considers whether enough of their institutionalized consumers are being served by ACT, encouraging this could be an important point to re­ emphasize with providers who are not enrolling formerly institutionalized consumers at the rate one would expect for an ACT team.
Also, to address lower rates of Medicaid in ACT clients, DBHDD is hiring a Medicaid Eligibility Specialist in each region to help with increasing the portion of
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consumers with Medicaid. A staff person from DBHDD also performs SOAR training for staff around the state to increase rapid application for social security benefits for eligible persons.

3. Financing: Start-Up & Conversion Costs
Are costs of start up and or conversion covered, including: 1) Lost productivity for staff training, 2) hiring staff before clients enrolled (e.g. ACT), 3) any costs associated with agency planning and meetings, 4) changing medical records if necessary, 5) computer hardware and/or software if necessary, etc. Note: If overall fiscal model is adequate to cover start-up costs then can rate 5. If financing is variable among sites, estimate average. Important to verify with community EBP program leaders/ site program managers.

Score:

1. No costs of start-up are covered

2. Few costs are covered

3. Some costs are covered

4. Majority of costs are covered

X

5. Programs are fully compensated for costs of conversion

Comments:
No ACT providers I spoke with expressed concerns about compensation for conversion to ACT. In the early months of 2013, a few providers did express concerns about their ability to draw down enough Medicaid revenue in future years when their state contracts would drop to a maximum of $650,000; however, the State responded by changing policy to maintain state funding maximums at $780,000 at Year 2 and beyond.
The State contracts offer substantial flexibility in terms of the types of items the provider can bill for as well.
Of fundamental importance, the State is currently developing a budget spreadsheet tool to help providers monitor their own bottom line related to ACT services. Providers would be able to insert their own unique staffing and other expenses, productivity levels for staff, rates of consumer caseload with Medicaid, and other variables to help monitor how fiscally sound the team is for planning and sustainability. Given that mental health staff vary widely in their expertise with budget forecasting, this tool could be important in helping less financially sophisticated teams think about staffing patterns and productivity standards that make sense for their team’s long-term sustainability.

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4. Training: Ongoing consultation and technical support

Is there ongoing training, supervision and consultation for the program leader

and clinical staff to support implementation of the EBP and clinical skills:

(Use boxes to indicate criteria met.)

Note: If there is variability among sites, then calculate/estimate the average

visits per site.

X

1) Initial didactic training in the EBP provided to clinicians

(e.g. 1-5 days intensive training)

X

2) Initial agency consultation re. implementation strategies,

policies and procedures, etc. (e.g. 1 - 3 meetings with

leadership prior to implementation or during initial training)

X

3) Ongoing training for practitioners to reinforce application

of EBP and address emergent practice difficulties until

they are competent in the practice (minimum of 3 months,

e.g. monthly x 12 months)

4) On site supervision for practitioners, including observation

of trainees clinical work and routines in their work setting,

and feedback on practice. Videoconferencing that

includes clients can substitute for onsite work (minimum of

3 supervision meetings or sessions for each trainee, e.g.

monthly x 12 months)

X (ACT

5) Ongoing administrative consultation for program

Coalition)

administrators until the practice is incorporated into

routine work flow, policies and procedures at the agency

(minimum of 3 months, e.g. monthly X 12 months)

Score

1. 0-1 components

2. 2 components

3. 3 components

X

4. 4 components

5. 5 components

Comments:

ACT 101 training was offered during the Fall 2012 to all new teams. Fidelity assessors perform an initial meet and greet with each team to introduce themselves to the team and to provide basic program consultation around start­ up and operations. Teams also receive a lot of technical assistance during the course of fidelity reviews, which most providers reported as helpful and constructive. Teams receive a conference call with fidelity assessors prior to and after the visit. Several providers felt it was important to tell me how they appreciated the responsiveness of the fidelity team, the Director of Adult Mental Health, the Assistant Commissioner for Behavioral Health and other DBHDD staff when they had questions or concerns about ACT services. In many cases, these providers said that DBHDD would seek out answers even if they could not

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 49 of 113

immediately address the concern, giving the general impression that they were willing to really partner with providers in supporting good clinical practice.
For ACT, the one critical piece of technical assistance that is missing is more onsite technical assistance for staff who need help understanding their role on the team. Several sites expressed a need for help for specific positions, including team leaders, nurses, vocational specialists, and substance abuse specialists. As an example, a number of sites expressed the need for concrete help regarding good team leader functions (e.g., how to help staff organize assessments, treatment planning, and daily provision of services). A couple of teams reported needing help for nurses in how to organize and track medication management. In my own observation of teams, it seems that vocational specialists may need more help in focusing on competitive employment-related goals for consumers. As in the 2011 report, DBHDD has encouraged sites to shadow some of the stronger ACT teams, but this is not part of a systematic “package” of TA that all teams receive. Particularly for new teams, some systematic method for shadowing experienced providers is desirable. Shadowing is usually done after basic skills training is completed and staff have had a chance to work on the ACT team and have questions about how teams are supposed to function or how the daily team meeting is supposed to work. Shadowing can become burdensome to the team being shadowed, particularly if it is repeated often. Staff hosting shadowers usually spend a lot of time talking with their shadows and are not as productive as usual. Spreading out shadow experiences across multiple teams or even offering payment for shadowing are important possible enticements.
On their own, one region’s team leaders asked their transition coordinator to organize a quarterly retreat (rotating location around the region) so that team leaders could get together and share ideas about team functions. They also are pondering whether they should rotate a team role to bring along to some of these meetings – i.e., bring along a nurse for one meeting and a vocational specialist for the next. This is a good idea and might minimize the amount of onsite technical assistance that is needed. It also appears that DBHDD is having the ACT 101 trainer return to conduct a team leader retreat.

5. Training: Quality Is high quality training delivered to each site? High quality training should
 include the following:
 (Use boxes to indicate which components are in place.
 Note: If there is variation among sites calculate/estimate the average number of components of training across sites.)

X

1) credible and expert trainer

X

2) active learning strategies (e.g. role play, group work,

feedback

X

3) good quality manual, e.g. SAMHSA Toolkit

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X On demand only
X

4) comprehensively addresses all elements of the EBP
5) modeling of practice for trainees, or opportunities to shadow/observe high fidelity clinical work delivered
6) high quality teaching aides/materials including workbooks/work sheets, slides, videos, handouts, etc., e.g. SAMHSA Toolkit/ West Institute

Score

1. 0 components

2. 1 – 2 components

3. 3 – 4 components

X

4. 5 components

5. All 6 components of high quality training

Comments:
Trainings were endorsed by providers as much improved. One manager specifically mentioned how glad she was that DBHDD heard their requests about the type of training needed and gave them a good motivational interviewing training. Trainers and materials were of high quality and involved lots of active learning strategies. Follow-up webinars were eagerly anticipated by many providers.
As noted above, shadowing is not systematically offered. Some providers were ambivalent about shadowing, and others indicated they thought some staff could really benefit from a good shadowing experience.

6. Training: Infrastructure / Sustainability

Has the state established a mechanism to allow for continuation and expansion of

training activities related to this EBP, for example relationship with a university training

and research center, establishing a center for excellence, establishing a learning

network or learning collaborative. This mechanism should include the following

components:

(Use boxes to indicate which components are in place)

X

1) offers skills training in the EBP

X

2) offers ongoing supervision and consultation to clinicians to

support implementation in new sites

X

3) offer ongoing consultation and training for program EBP

leaders to support their role as clinical supervisors and

leaders of the EBP

Variable

4) build site capacity to train and supervise their own staff in

the EBP

X

5) offers technical assistance and booster trainings in existing

EBP sites as needed

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X Not systematic
Some

6) expansion plan beyond currently identified EBP sites 7) one or more identified model programs with documented
high fidelity that offer shadowing opportunities for new programs 8) SMHA commitment to sustain mechanism (e.g. center of excellence, university contracts) for foreseeable future, and a method for funding has been identified

Score

1. No mechanism

2. 1 – 2 components

3. 3 – 4 components of planning

X

4. 5 – 6 components

5. 7 – 8 components

Comments:

The State has invested in three fidelity assessors to provide some consultation onsite before, during, and after fidelity assessments, but without a lot of ability to come back and spend time onsite with staff. As mentioned earlier, the State is informally referring sites to some better teams. I would urge the State to systematically select teams based on fidelity scores and which roles are strong/high fidelity on a particular team. Also as mentioned earlier, making this a systematic piece of the overall technical assistance will be important.

Teams across the state are variable in their ability to train their own staff (item 4), although I am less concerned about addressing this item right away.

Some of the ACT trainings are supported by Settlement Agreement funds to pay for high quality external trainers. Funding for this type of infrastructure is always difficult, but certainly a plan for how to sustain quality training and technical assistance should be on the future agenda. If internal, affordable options within the state are not available, can these capacities be built now or can you use usual DBHDD workforce development funds to continue providing some of this technical assistance after the Settlement Agreement period is over?

7. Training: Penetration
What percent of sites have been provided high quality training (score of 3 or
 better on question #5, see note below), and ongoing training (score of 3 or
 better on question #4, see note below).
 Note: If both criteria are not met, does not count for penetration. Refers to 
 designated EBP sites only.
 High quality training should include 3 or more of the following components:

1) credible and expert trainer,
 2) active learning strategies (e.g. role play, group work, feedback), 


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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 52 of 113

3) good quality manual (e.g. SAMHSA toolkit),
 4) comprehensively addresses all elements of the EBP,
 5) modeling of practice for trainees, or opportunities to shadow/observe high 

fidelity clinical work delivered, 6) high quality teaching aids/ materials including workbooks/ work sheets,
slides, videos, handouts, etc. e.g. SAMHSA toolkit/ West Institute. Ongoing training should include 3 or more of the following components:
1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training),
2) Initial agency consultation re. implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training),
3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months),
4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months),
5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months).

Score:

1. 0-20%

2. 20-40% 3. 40-60%

4. 60-80%

X


5. 80-100%

Comments:

Training was high quality on 4 of 5 characteristics and all staff were required to attend. The State has made an effort to offer many trainings in more central locations or multiple locations around the state so that they are more accessible to providers.

8. SMHA Leadership: Commissioner Level
Commissioner is perceived as an effective leader (influence, authority,
 persistence, knows how to get things done) concerning EBP implementation 
 and who has established EBPs among the top priorities of the SMHA as
 manifested by:
 (Use boxes to indicate components in place.)


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Note: Rate existing Commissioner, even if new to post.

Yes Yes
Yes Yes
Notably strong throughout the year

1) EBP initiative is incorporated in the state plan, and or other state documents that establish SMHA priorities,
2) Allocating one or more staff to EBP, including identifying and delegating necessary authority to an EBP leader for the SMHA,
3) Allocation of non-personnel resources to EBP (e.g. money, IT resources, etc.),
4) Uses internal and external meetings, including meetings with stakeholders, to express support for, focus attention on, and move EBP agenda,
5) Can cite successful examples of removing policy barriers or establishing new policy supports for EBP.

Score

1. 0-1 component

2. 2 components

3. 3 components

4. 4 components

X

5. All 5 components

Comments:

I was able to meet with both the Deputy Commissioner for Programs and the Commissioner himself for this SHAY assessment. Both expressed strong support for ACT and for accountable care in general. On the DBHDD webpage, there are clear references to the need to implement ACT and other evidencebased practices and to constantly find ways to improve on those efforts. DBHDD has devoted substantial personnel and other resources to ACT. I am overwhelmed by evidence of a willingness to identify and address barriers to ACT implementation. This has been a recurring theme in my visit since November 2012. Commissioner-level support for ACT also was noted by providers and other stakeholders as well who are clearly aware of the state’s support of ACT. Occasionally, I have heard comments to the effect of – of course they are focused on ACT right now because of the DOJ Settlement Agreement. Time will tell if ACT and other services can be sustained in Georgia. It seems to me, though, that most staff at DBHDD involved with ACT are personally invested in continuing ACT services and would only be limited in the future if legislative or leadership changes force their efforts to move in a different direction. To that end, my main recommendation in this area is to clearly document the value of ACT services so that implementation efforts have a chance to withstand challenges in the future. In a few places, you will see me comment on assessing

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 54 of 113

whether ACT is serving enough of the desired populations it was intended to serve. Tracking the ability of ACT teams to address tough populations will be useful for more longer-term sustainability efforts.

9. SMHA Leadership: Central Office (GA DMH) EBP Leader

There is an identified EBP leader (or coordinating team) that is characterized by


the following:


(Use boxes to indicate which components in place.)


Note: Rate current EBP leader, even if new to post.

X

1) EBP leader has adequate dedicated time for EBP

implementation (min 10%), and time is protected from

distractions, conflicting priorities, and crises,

X

2) There is evidence that the EBP leader has necessary

authority to run the implementation,

X

3) There is evidence that the EBP leader has good

relationships with community programs,

Strong

4) Is viewed as an effective leader (influence, authority,

persistence, knows how to get things done) for the

EBP, and can site examples of overcoming

implementation barriers or establishing new EBP

supports.

Score

1. No EBP leader

2. 1 components

3. 2 components

4. 3 components

X

5. All 4 components

Comments:

DBHDD hired the current Director of Adult Mental Health in October 2011. She devotes more than 10% of her time to ACT and also has much support from her supervisor and the Assistant Commissioner. All are reported by providers and stakeholders alike as being accessible, responsive, and willing to listen to concerns and take action. Several providers noted that it feels like a collaborative partnership rather than “us vs. them.” DBHDD listens but also invites input and is constantly working on communication, though in some instances, I know providers have missed an important message at the ACT coalition meetings. Some teams also reported positively on the responsiveness of their regional staff, including some extensive work by transition coordinators during the transition of ACT consumers to newly contracted ACT teams. Again, on several occasions, I have noted barriers in my field visits to good ACT implementation, only to return in eight weeks to see that a policy change has

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 55 of 113

already been made to address the concern. DBHDD ACT leadership clearly has the authority to make changes for ACT.

10. Policy and Regulations: Non SMHA State Agencies The SMHA has developed effective interagency relations (other state agencies, counties, governor’s office, state legislature) to support and promote the EBP as necessary/appropriate, identifying and removing or mitigating any barriers to EBP implementation, and has introduced new key facilitating regulations as necessary to support the EBP. Ask SMHA staff and site leadership: What regulations or policies support the EBP implementation? What regulations or policies get in the way? Note: give most weight to policies that impact funding. Examples of supporting policies:
• Medicaid agency provides reimbursement for the EBP (If Medicaid not under the SMHA)
• The state’s vocational rehabilitation agency pays for supported 
 employment programs

• The state’s substance abuse agency pays for integrated treatment for dual disorders
• Department of Professional Licensing requires EBP training for MH professionals
Examples of policies that create barriers:
• Medicaid agency excludes EBP, or critical component, e.g. disallows any services delivered in the community (If Medicaid agency not under the SMHA)
• State substance abuse agency prohibits integrated treatment, or will not reimburse for integrated treatment
• State substance abuse agency and state mental health authority are divided, and create obstacles for programs attempting to develop integrated service programs
• State vocational rehabilitation agency does not allow all clients looking for work access to services, or prohibits delivery of other aspects of the supported employment model
• Department of Corrections policies that create barriers to implementation of EBPs

Score

1. Virtually all policies and regulations impacting the EBP act as

barriers.

2. On balance, policies that create barriers outweigh policies that

support/promote EBP.

3. Policies that support/promote are approximately equally

balanced by policies that create barriers.

X

4. On balance, policies that support/promote the EBP outweigh

policies that create barriers.

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 56 of 113
5. Virtually all policies and regulations impacting the EBP support/promote the EBP.
Comments:
DBHDD has good relationships with the Medicaid office and the housing authority. Medicaid policies are very supportive of ACT, particularly with the new ACT authorization periods and processes and some refinements in the APS audit tool. Although relationships with the housing authority are good and even with the considerable resources provided in the Georgia Housing Voucher program, I am still hearing ACT teams voice concerns related to obtaining proper housing for their consumers. In one provider’s words: “there is more homelessness than ever before…[housing] is a constant focus.” Some concerns are from providers (and echoed by some criminal justice representatives I spoke with) who seem to adhere to more of continuum of care housing options philosophy: hesitant to place consumers coming out of hospitals or correctional settings directly into independent living using the vouchers. These providers may feel like some consumers need more onsite staff support for some transition period – some providers endorse longer periods of transition than others. Other barriers cited are related to client characteristics like having felony convictions or even sex offense histories that are formidable barriers to any type of decent housing. For instance, even with vouchers, some landlords screen out these consumers. Other barriers are general problems with finding affordable housing for consumers with no or limited incomes. Related to criminal histories and lack of income, one provider said, even if they do find housing, they end up having to place consumers in “bad neighborhoods” that will take them. Another site discussed the impact of gentrification in one geographic area that was formerly rural and had rentable apartments, but now has very little housing for rent of any kind – affordable or otherwise. These are not necessarily barriers to ACT services, but constitute formidable challenges in achieving the goals of the settlement agreement. Certainly, the confusion regarding the housing vouchers that was voiced in 2011 has been addressed because I heard most providers state that they use the vouchers as much as possible and are very thankful for the resource. But the vouchers are not enough to address the overarching societal issues related to finding affordable housing for poor and disabled individuals.
There are still some lingering barriers in that teams struggle to find persons licensed/ certified for substance abuse counseling, per ACT service definition for the substance abuse specialist. In general, teams have been able to eventually find an appropriately credentialed SA specialist, but often are struggling to find a second one, which would be needed to keep them from scoring below a 5 on the SA specialist item. Many teams are taking a reduced DACTS rating of 4 on this item by going a little above 50 consumers with a single substance abuse specialist, but might be hesitant to take many more than about 70 consumers
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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 57 of 113

because this would reduce their DACTS score on this item to a 3. Another potential barrier is lack of vocational rehabilitation funding but the state contract funding and Medicaid rates negate any negative impact on ACT. Overall, the supportive policies outweigh any negatives.

11. Policies and Regulations: SMHA

The SMHA has reviewed its own regulations, policies and procedures to identify and remove or mitigate any barriers to EBP implementation, and has introduced new key regulations as necessary to support and promote the EBP. Ask SMHA staff and site leadership: What regulations or policies support the 
 EBP implementation? What regulations or policies get in the way?
 Examples of supporting policies:

• SMHA ties EBP delivery to contracts • SMHA ties EBP to licensing/ certification/ regulation • SMHA develops EBP standards consistent with the EBP model • SMHA develops clinical guidelines or fiscal model designed to support
model EBP implementation Examples of policies that create barriers:
• SMHA develops a fiscal model or clinical guidelines that directly conflict with EBP model, e.g. ACT staffing model with 1:20 ratio
• SMHA licensing/ certification/ regulations directly interfere with programs ability to implement EBP

Score:

1. Virtually all policies and regulations impacting the EBP act as

barriers.

2. On balance, policies that create barriers outweigh policies that

support/promote the EBP.

3. Policies that are support/promote the EBP are approximately

equally balanced by policies that create barriers.

4. On balance, policies that support/promote the EBP outweigh

policies that create barriers.

X

5. Virtually all policies and regulations impacting the EBP

support/promote the EBP.

Comments:

DBHDD has made drastic changes in ACT policies and regulations over the last two years, including:
• establishing systematic fidelity monitoring system and tying contracts to ACT standards.
• changing the ACT authorization periods to six months and later extending the initial authorization to one year to more closely fit with longer-term nature of ACT services.

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 58 of 113

• streamlining all regulatory documents to avoid confusion (e.g., making operations manual align with service definitions and designating the operations manual as a guide rather than a regulatory document).
• modifying ACT admission criteria. • modifying APS authorization and audit processes and tools to eliminate
conflicts with the model (there are still a few audit tool items best. assessed at the program level rather than the record level). • allowing dual authorizations for ACT and other services to allow for a coordinated graduation from ACT to less intensive services. • allowing collateral contact billing. • eliminating an overly strict policy that demanded ACT psychiatrists deliver services in the field (i.e., allowing the metrics of the fidelity item for this standard to determine if services are too office-based).
It is not hyperbole to call this a complete turnaround of SMHA policies in two years. As I mentioned earlier, there is a distinct willingness to examine policies to see how they support or hinder good services for consumers and take action when necessary.

12. Policies and Regulations: SMHA EBP Program Standards

The SMHA has developed and implemented EBP standards consistent with the 


EBP model with the following components:


(Use boxes to identify which criteria have been met)


X

1) Explicit EBP program standards and expectations,

consonant with all EBP principles and fidelity components,

for delivery of EBP services. (Note: fidelity scale may be

considered EBP program standards, e.g. contract requires

fidelity assessment with performance expectation)

X

2) SMHA has incorporated EBP standards into contracts,

criteria for grant awards, licensing, certification,

accreditation processes and/or other mechanisms

X

3) Monitors whether EBP standards have been met,

X

4) Defines explicit consequences if EBP standards not met

(e.g. contracts require delivery of model supported

employment services, and contract penalties or non-

renewal if standards not met; or licensing/accreditation

standards if not met result in consequences for program

license.)

Score 1. No components (e.g., no standards and not using available mechanisms at this time). 2. 1 components
3. 2 components

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 59 of 113

4. 3 components

X

5. 4 components

Comments:

DBHDD expects each team to score a 4 or higher on their annual DACTS visit. Additionally, APS audits for some ACT standards as well. Consequences for low DACTS fidelity are clear – teams must write a corrective action plan for challenging items where they score a 1 or a 2. Six teams (of 21 reviewed) scored below a 4.0 on the DACTS during this calendar year (3.61, 3.65, 3.71, 3.71, 3.93, 3.96). From review of the technical assistance follow-up call summaries for these teams, a number of the fidelity item issues experienced were being addressed. Those follow-up calls began June 13, 2013 for some teams whose fidelity review had taken place the previous summer of 2012. For teams that score below a 4.0, I recommend that these reviews take place closer to the original fidelity review and completion of the corrective action plan to increase the level of accountability and urgency for correcting items out of compliance with DACTS standards. For teams that show signs of struggle, a corrective action plan might include a re-assessment of the DACTS on specific items or on the scale in its entirety, even prior to the next annual review. Now that fidelity review team is in place, trained, and caught up on fidelity reviews (the 22nd team was just recently contracted), this should be feasible to accomplish.
The most notable evidence that the state’s standards for ACT contracting had consequences occurred in 2012. DBHDD found that ten teams failed to adhere to ACT deliverables, including poor APS audit scores in October 2011 and a repeated assessment in February/March 2012 and some with poor fidelity scores. DBHDD made the difficult decision to avoid renewing those contracts. After the transition to new ACT providers (including transitioning consumers from Three state hospital-operated teams), I was able to speak to transition coordinators, the new ACT providers, and several consumers who transitioned to new teams. The transition went well for most consumers – some had been happy with previous services providers and struggled with the abruptness of the transition (one provider ceased operating a month or so earlier than planned). Two others were not as happy with their former ACT providers and were glad to transition to other providers. Both mentioned feeling like the older teams did not follow through on promises for services and seemed to be more rushed during visits, as if staff had somewhere else to go and were looking at their watch. Service providers and transition coordinators noted problems with lack of basic documentation in the previous ACT providers, including missing MCIPs and ACT authorizations and one provider without a Medicaid number which would eventually yield their team unsustainable.

13. Quality Improvement: Fidelity Assessment

There is a system in place for conducting ongoing fidelity reviews by trained

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reviewers characterized by the following components:

(Use boxes to indicate criteria met.)

Note: If fidelity is measured in some but not all sites, answer for the typical site.

X

1) EBP fidelity (or functional equivalent designed to

assess adherence to all critical components of the

EBP model) is measured at defined intervals,

2) GOI fidelity (or functional equivalent designed to

assess adherence to all critical components required

to implement and sustain delivery of EBP) is measured

at defined intervals,

X

3) Fidelity assessment is measured independently – i.e.

not assessed by program itself, but by SMHA or

contracted agency,

X

4) Fidelity is measured a minimum of annually,

X

5) Fidelity performance data is given to programs and

used for purposes of quality improvement,

X

6) Fidelity performance data is reviewed by the SMHA +/­

local MHA,

X

7) The SMHA routinely uses fidelity performance data for

purposes of quality improvement, to identify and

respond to high and low performers (e.g. recognition of

high performers, or for low performers develop

corrective action plan, training & consultation, or

financial consequences, etc.),

8) The fidelity performance data is made public (e.g.

website, published in newspaper, etc.).

Score

1. 0-1 components

2. 2-3 components

3. 4-5 components

X

4. 6-7 components

5. All 8 components

Comments:

The State has implemented its original plan around measuring ACT fidelity at least annually using three trained raters (one supervisor and two other fidelity assessors). The fidelity team was trained by an experienced ACT fidelity assessor from Ohio and includes two assessors who have experience as ACT team leaders, which adds legitimacy to their new state roles. Fidelity reports are provided to the team and fidelity total and item level scores are tracked routinely on spreadsheets and used to identify technical assistance and other needs. Low performers who score below a 4.0 on the DACTS are required to write and execute a corrective action plan. DBHDD reports that fidelity data will soon be available on the DBHDD website, though not at the time of this assessment.

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14. Quality Improvement: Client Outcomes

A mechanism is in place for collecting and using client outcome data


characterized by the following:


(Use boxes to indicate criteria met.)


Note: Client outcomes must be appropriate for the EBP, e.g. Supported

employment outcome is persons in competitive employment, and excludes

prevoc work, transitional employment, and shelter workshops. If outcome

measurement is variable among sites, consider typical site.

X

1) Outcome measures, or indicators are standardized

statewide, AND the outcome measures have

documented reliability/validity, or indicators are

nationally developed/recognized,

X

2) Client outcomes are measured every 6 months at a

minimum,

X

3) Client outcome data are used routinely to develop

reports on agency performance,

4) Client specific outcome data are given to programs and

practitioners to support clinical decision making and

treatment planning,

X

5) Agency performance data are given to programs and

used for purposes of quality improvement,

X

6) Agency performance data are reviewed by the SMHA

+/- local MHA,

X

7) The SMHA routinely uses agency performance data for

purposes of quality improvement; performance data

trigger state action. Client outcome data are used as a

mechanism for identification and response to high and

low performers (e.g. recognition of high performers, or

for low performers develop corrective action plan,

training & consultation, or financial consequences, etc.),

8) The agency performance data are made public (e.g.

website, published in newspaper, etc.).

Score

1. 0-1 components

2. 2-3 components

3. 4-5 components

X

4. 6-7 components

5. All 8 components

Comments:

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 62 of 113
DBHDD collects, aggregates, and reports back key ACT outcomes to providers. Currently, teams report team-level rates of outcomes (e.g., % hospitalized, independently housed, employed) each month, resulting in a monthly crosssectional aggregation by actual calendar month. DBHDD has also begun tracking some ACT consumers prospectively over time so that they can report on ACT consumer progress in relation to tenure on ACT. The first method tabulates the rate of hospitalization in any given month by combining all current ACT consumers on that team, including consumers very new to ACT with consumers who have been on ACT longer. Tracking outcomes by length of time in ACT services tells a different story about how ACT impacts consumer outcomes over time and might be a bit more useful in the long-term. The State consistently talks about the outcomes at ACT coalition meetings and has started using the reports to think about program development.
DBHDD is currently working on a new method of outcomes data collection that would require teams to enter consumer-level outcomes, rather than team aggregates, on a website. They are planning to build in functions that could allow teams to examine their own data in graphs and tables. Currently, consumer-level information that might inform clinical decision-making on a specific case is not available. This is rarely ever observed at the state level but would be a real advancement if the state were able to create a clinically friendly system.
Some ACT Key Performance Indicators will soon be available on a public website, though not at the time of this assessment.
15. Stakeholders The degree to which consumers, families, and providers are opposed or supportive of EBP implementation. Note: Ask - Did stakeholders initially have concerns about or oppose EBPs? Why? What steps were taken to reassure/engage/partner with stakeholders? Were these efforts successful? To what extent are stakeholders currently supportive this EBP? Opposed? In what ways are stakeholders currently supporting/ advocating against this EBP? Rate only current opposition/support.
Scores: 1. Active, ongoing opposition to the EBP, 2. Opposition outweighs support, or opinion is evenly split, but no active campaigning against EBP, 3. Stakeholder is generally indifferent, 4. Generally supportive, but no partnerships, or active 
 proponents,
 5. Stakeholder advocacy organization leadership/opinion leaders currently offer active, ongoing support for the EBP. Evidence of partnering on initiative.
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4.3 15. Summary Stakeholder Score: (Average of 3 scores below) 4 15.a Consumers Stakeholders Score 4 15.b Family Stakeholders Score 5 15.c Providers Stakeholders Score Comments: Most providers clearly and explicitly expressed feeling like they have a strong partnership with DBHDD staff in providing high quality ACT services following the Dartmouth Assertive Community Treatment Scale. In some cases, managers wanted to start off meetings with me stating how positive and responsive state leaders and fidelity assessors in ACT have been. The exception to the typical provider response during the last year came when one provider expressed some trepidation about voicing complaints for fear of reprisal. Because that was mentioned earlier in the year and not during the July visit, I cannot tell whether this is an ongoing concern. As noted above, this view was not typical. Consumer and family advocate groups also continue to be supportive of ACT, though their role is less of an active partnership. These stakeholders do echo providers’ statements about the state’s responsiveness to concerns. For instance, stakeholders have made requests of state officials and obtained “four of the five” items that they requested. Even though scores are technically the same as 2011, I did note a qualitative difference in the relationships between stakeholders and DBHDD. One provider said that he/she appreciated state staff who are willing to say they do not have an answer to a request but will work on it or that they just did not think of something – the lack of defensiveness about barriers or potential weaknesses in the system was viewed as helpful and constructive.
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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 64 of 113

National Implementing Evidence Based Practices Project Perspective
The overall mean SHAY score for states participating in the National EBP Project was 3.14. In these states, the overall mean item fidelity score for all EBPs was 3.47. States that successfully implemented EBPs with mean item fidelity score of 4.0 or greater had a mean SHAY of 3.82. It is clear from the graph below that states with higher SHAY scores also had better EBP implementation. In other words, the actions of state leadership described in the contents of the SHAY make a difference.
The following chart plots the mean item fidelity scores and SHAY scores across all states in the National EBP Project.

5

R2 = 0.6151

4.5

4

3.5

3

2.5

2

1.5

1

0.5

0

0

1

2

3

4

5

SHAY Scores

Note: The scores on the left axis are EBP fidelity scores from the National EBP Project

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 65 of 113

Summary of SHAY Scores

1. EBP Plan 2. Financing: Adequacy 3. Financing: Start-up and Conversion
Costs 4. Training: Ongoing Consultation &
Technical Support 5. Training: Quality 6. Training: Infrastructure / Sustainability 7. Training: Penetration 8. SMHA Leadership: Commissioner
Level 9. SMHA Leadership: EBP Leader 10. Policy and Regulations: Non-SMHA 11. Policy and Regulations: SMHA 12. Policy and Regulations: SMHA EBP
Program Standards 13. Quality Improvement: Fidelity
Assessment 14. Quality Improvement: Client Outcome 15. Stakeholders: Aver. Score (Consumer,
Family, Provider)
SHAY average = average over all 15 items

2011 3 5 3
2
3 1 4 5
3 3 2 3
1
1 4
3.58

2013 5 5 5
4
4 4 5 5
5 4 5 5
4
4 4
4.53

*For information on the specific numeric scoring methods for each item, please see the SHAY Rating Scale

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 66 of 113
State of Georgia
 Review of Supported Employment Services
 Under the United States v. Georgia Settlement Agreement

and the
 Findings from the State Health Authority Yardstick

Requested by Elizabeth Jones, Independent Reviewer
David Lynde, MSW September 19, 2013

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 67 of 113 Table of Contents

Settlement Agreement Provisions Executive Summary for the SHAY Report Introduction SHAY Findings National EBP Project SHAY Data Summary Table of Georgia SHAY Scores 2013 Georgia SHAY Scores 2012 and 2013 Summary Table of Georgia SHAY Scores 2012 – 2013

Page 3 4 5 7 34 35 36 37

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 68 of 113
Department of Justice Settlement Agreement
The reviewer was asked to advise again whether the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) has met the requirements of the Settlement Agreement regarding the provision of Supported Employment programs, and then to evaluate the quality of these services by completing a State Health Authority Yardstick (SHAY) review. The Settlement Agreement section on Supported Employment contains the following language:
“Supported Employment i. Supported Employment will be operated according to an evidence-based supported employment model, and it will be assessed by an established fidelity scale such as the scale included in the Substance Abuse and Mental Health Administration (“SAMHSA”) supported employment tool kit. ii. Enrollment in congregate programs shall not constitute Supported Employment. iii. Pursuant to the following schedule… (C) By July 1, 2013, the State shall provide Supported Employment services to 440 individuals with SPMI.”
While it is beyond the scope of the work of this reviewer to check the validity and the reliability of the specific data provided by DBHDD, the data presented from DBHDD and the information confirmed by a variety of stakeholders (including providers) that were interviewed do indicate that DBHDD is complying with the Supported Employment provisions of the Settlement Agreement. According to the “FY 13 Programmatic Report Data: Supported Employment Services,” as of the end of May 2013, there were 682 individuals receiving Supported Employment services under the Settlement Agreement. The monthly rate of employment was 42.1 percent. The SHAY, which was focused on the supported employment “slots” under the Settlement Agreement, may be viewed as an instrument to measure the extent and quality of that compliance.
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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 69 of 113 SHAY Executive Summary
This document provides a summary of the status of the work that has been done by the DBHDD regarding the implementation and dissemination of evidence based Supported Employment (SE) services for adults with severe mental illness (SMI) in the State of Georgia. This is the third SHAY report that has been completed at the request of Elizabeth Jones, Independent Reviewer. The previous SHAY report was completed in September 2012.
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SHAY Introduction
The State Health Authority Yardstick (SHAY) was designed by a group of mental health researchers and implementers who were interested in assessing the facilitating conditions for the adoption of Evidence-Based Practices (EBPs) created by a state’s health or mental health authority.
The reviewer spent four days in July 2013, specifically; July 14, 15, 16 and 17, meeting with and interviewing a variety of stakeholders in the State of Georgia as well as reading and reviewing relevant documentation provided by DBHDD. In addition to that visit, the reviewer made several interim visits to Georgia in 2013, specifically one in January, two in April and one in May. The July interviews and meetings that were arranged by a number of stakeholders in Georgia included: staff from DBHDD, providers of SE services for adults with mental illness, family members, consumers participating in Supported Employment services, staff from the Georgia Vocational Rehabilitation Agency (GVRA), staff from the Institute on Human Development and Disability at the University of Georgia as well as representatives from consumer and family advocacy organizations and other mental health advocates. Of particular note, the reviewer was also able to meet with Commissioner Frank Berry and Deputy Commissioner Judith Fitzgerald in person during the July 2013 visit.
The reviewer was asked to assess the extent that policies, procedures and practices are present in Georgia regarding SE services. Evidence-based Supported Employment is a Substance Abuse and Mental Health Services (SAMHSA) recognized practice that has been repeatedly demonstrated to be the most effective means to help adults with SMI to obtain and retain competitive employment as part of their recovery process.
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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 71 of 113
The reviewer is grateful for the warm and friendly professional courtesies that have been graciously extended by the leadership and staff at DBHDD for all of the visits and communications that have occurred over the past year. The reviewer also appreciates the open and frank discussions that occurred at several levels of the Georgia DBHDD system regarding evidence-based Supported Employment services over the same time frame.
The SHAY is a tool for assessing the state health or mental health authority responsible for mental health policy and Medicaid policies in a state. As with the previous report, the scope (or unit of analysis) for the SHAY is focused on the SE slots defined by the “Settlement Agreement.” The SHAY examines the policies, procedures and actions that are currently in place within a state system, or in this case, part of the state system. The SHAY does not incorporate planned activities; rather it focuses exclusively on what has been accomplished and what is currently occurring within a state. For the purposes of this, DBHDD has been identified as the “State Mental Health Authority (SMHA).” This report details the findings from information gathered in each of fifteen separate items contained in the SHAY. For each item, the report includes a brief description of the item and identifies the scoring criteria. Each item is scored on a numerical scale ranging from “five” being fully implemented, to a “one” designating substantial deficits in implementation. Recommendations for improvement also are included with each item. A summary table for the scoring of the SHAY items is contained at the end of the report.
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SHAY Findings

1. EBP Plan

The SMHA has an Evidence Based Practices (EBP) plan to address the following:

Present
Present
Present Present Present Present
Present
Present
Present
Present

1. A defined scope for initial and future implementation efforts
2. Strategy for outreach, education, and consensus building among providers and other stakeholders
3. Identification of partners and community champions 4. Sources of funding 5. Training resources 6. Identification of policy and regulatory levers to support
EBP 7. Role of other state agencies in supporting and/or
implementing the EBP 8. Defines how EBP interfaces with other SMHA priorities
and supports SMHA mission 9. Evaluation for implementation and outcomes of the
EBP 10. The plan is a written document, endorsed by the
SMHA

Narrative
The leadership at DBHDD has developed a well-written document, “2013 Georgia Department of Health and Developmental Disabilities Supported Employment Strategic Plan” that provides a well-described framework for the implementation of Supported Employment services in the State of Georgia.

The plan provides a working definition of Supported Employment services and describes the ongoing development of two vital partnerships for SE services. First, the partnership between DBHDD and the Georgia Vocational Rehabilitation Agency, and second, the partnership between DBHDD and their SE training and consultation provider, the University of Georgia Institute on Human Development and Disability Center of Excellence Facilitation. More information regarding the
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status of these partnerships is discussed in later sections of this report. The plan also briefly describes ongoing SE Coalition Meetings that have been occurring for the past two years between DBHDD staff and community SE providers.

While DBHDD is to be commended for the development of a well-prepared SE Strategic Plan, the next important step will be to assure a broad understanding of this plan across the provider, consumer, family member, and other State agency stakeholder groups in the immediate future. Copies of the plan should be widely circulated combined with the use of existing forums to present and review the plan.

2. Financing: Adequacy
Is the funding model for the EBP adequate to cover costs, including direct service, supervision, and reasonable overhead? Are all EBP sites funded at the same level? Do sites have adequate funding so that practice pays for itself?

Present

1. No components of services are reimbursable
2. Some costs are covered
3. Most costs are covered
4. Service pays for itself (e.g. all costs covered adequately, or finding of covered components compensates for noncovered components)
5. Service pays for itself and reimbursement rates attractive relative to competing non-EBP services.

Narrative
For the purposes of the Settlement Agreement, funding for the designated SE slots (sometimes referred to as “ADA (Americans with Disabilities Act) slots”) remains fixed at $410.00 per slot for each provider. Unlike most SE systems, this funding is “slot-specific” and not specific to individual clients in SE services or

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tied to SE landmarks or outcomes. Enrollment in the designated SE slots is defined in the Settlement Agreement:
The target population for the community services described in this Section (III.B) shall be approximately 9,000 individuals by July 1, 2015, with SPMI who are currently being served in the State Hospitals, who are frequently readmitted to the State Hospitals, who are frequently seen in Emergency Rooms, who are chronically homeless, and/or who are being released from jails or prisons.
b. Individuals with serious and persistent mental illness and forensic status shall be included in the target population, if the relevant court finds that community service is appropriate.
While this slot based funding structure is required as part of the Settlement Agreement, as was recommended last year, this rate structure warrants a careful cost-based examination in collaboration with SE providers to evaluate if the rate is adequate for provider. It will be important to transparently share the findings of that cost rate study as well as the data and calculation process that are used in completing the cost rate study with SE providers and other stakeholders in Georgia.
Several providers continue to voice their perception that the current funding structure for SE services is not sufficient. For example, one provider stated, “We love working with the DOJ slots folks we are serving. We understand the reimbursement rates are not sufficient given all the time we need to spend in meetings and the reviews.” While the perception of providers may or may not be accurate, until the results of a thorough cost analysis are completed and published, the perception will continue to be very strong.
A second ongoing complication that warrants further exploration is the process of paying for SE services by funding SE slots rather than funding specific clients or specific outcomes. For example, an SE provider who is given a fixed number of SE slots may feel strong unintended pressures to make sure that clients (that meet the above criteria) in those slots are the best candidates for rapid employment to keep SE slot outcomes up. This may have the unintended
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consequence of providers re-assigning clients both into and out of their designated SE slots to improve outcomes and reduce the time and subsequent staffing and other costs that they invest in clients in SE slots. The leadership at DBHDD remains aware of this complication however, at this point, there has been no changes to the SE data that are collected in order to gather more information about the use of slots and its potential negative impact on consumers in SE services.

3. Financing: Start-Up & Conversion Costs
Are costs of start up and or conversion covered, including: 1) Lost productivity for staff training, 2) hiring staff before clients enrolled (e.g. ACT), 3) any costs associated with agency planning and meetings, 4) changing medical records if necessary, 5) computer hardware and/or software if necessary, etc.

Present

1. No costs of start-up are covered 2. Few costs are covered 3. Some costs are covered 4. Majority of costs are covered 5. Programs are fully compensated for costs of conversion

Narrative
DBHDD has added some new providers of SE slots in the past year. To its credit, DBHDD leadership has worked with new providers by creating access to some training and consultation activities. Typically, DBHDD does not currently reimburse start up costs for a new provider to deliver SE services. Some typical start up costs might include the purchase of laptop computers, cell phones and transportation resources for employment specialists to be providing the majority of SE services in the community. However, given that new providers have been

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able to start SE services, it does appear that these start up costs for SE services in Georgia are not prohibitive.

4. Training: Ongoing consultation and technical support

Is there ongoing training, supervision and consultation for the program leader and clinical staff to support implementation of the EBP and clinical skills:

Present Present Present
Present

1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training)
2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training)
3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months)
4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months)
5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months)

No components covered

Narrative
As described earlier, DBHDD has continued and enhanced their formal training agreement with the Institute on Human Development and Disability at the University of Georgia. The training has provided specific modules for SE staff who have experience with the practice and for staff who are new to SE services and have had little to no previous training. The training providers, working with DBHDD, have established feedback loops about the training effectiveness and have solicited specific ideas for ongoing training needs from SE providers.

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Previous concerns regarding specific training content that was not consistent with the evidence-based Supported Employment model were raised and presented to DBHDD. To its credit, DBHDD leadership worked immediately with the training providers to promptly correct this in a satisfactory way. Provider feedback on the training that is being provided is positive and grateful. For example, one provider stated, “Doug (Doug Crandell, UGA/IHDD SE consultant/trainer) has been very supportive to us. Some of our staff have gone the training and learned more about the SE principles, it has been very helpful.”
The amount of time that is available vis-à-vis the training contract for on-site agency consultations (technical assistance) regarding SE services has been increased in the current contract. “Provide on-site technical assistance to the 21 MH SE programs…. Each site can use up to two days (16 hours) of on-site technical assistance.” While DBHDD has developed a foundational training method for employment specialist and SE supervisor skills, it is still vitally important to provide agency-based technical assistance to help providers put those skills and the principles of Supported Employment into their daily workflow. The increased technical assistance time will play an important role in improving SE fidelity scores as well as the quality of SE services evidence by increased employment outcomes. It is strongly recommended that DBHDD leadership work closely with the training and consultation providers to assure that on-site technical assistance is used to address provider deficits identified by the SE fidelity reviews, the SE outcome reporting and feedback from consumers in SE services at each provider in a systematic way.
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5. Training: Quality

Is high quality training delivered to each site? High quality training should include the following:

Present Present Present Present
Present

1) Credible and expert trainer
2) Active learning strategies (e.g. role play, group work, feedback
3) Good quality manual, e.g. SAMHSA Toolkit 4) Comprehensively addresses all elements of the EBP
5) Modeling of practice for trainees, or opportunities to shadow/observe high fidelity clinical work delivered
6) High quality teaching aides/materials including workbooks/work sheets, slides, videos, handouts, etc., e.g. SAMHSA Toolkit

Narrative
As noted previously, DBHDD has worked to establish an ongoing training mechanism with the Institute on Human Development and Disability at the University of Georgia. They have worked to develop and enhance the credibility of the training and technical assistance being provided through this arrangement and have developed feedback loops about the training. The training is focused on Supported Employment skills and strategies and includes the use of different multi-media activities to support learning. One remaining gap in providing high quality training is the formal designation and use of high fidelity mentor sites to supplement the training that is currently being provided. It is recommended that DBHDD develop a specific method to designate high fidelity (very good SE practice sites) provider sites where staff and leadership from other providers can visit to observe and shadow good SE services being provided in their natural environment. This has been shown to be an important training tool both for new SE providers and for SE providers who need to learn more effective ways to provide employment services at their agencies.

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6. Training: Infrastructure / Sustainability

Has the state established a mechanism to allow for continuation and expansion of training activities related to this EBP, for example relationship with a university training and research center, establishing a center for excellence, establishing a learning network or learning collaborative. This mechanism should include the following components:

Present Present Present
Present Present
Present

1) Offers skills training in the EBP 2) Offers ongoing supervision and consultation to clinicians
to support implementation in new sites 3) Offer ongoing consultation and training for program EBP
leaders to support their role as clinical supervisors and leaders of the EBP 4) Build site capacity to train and supervise their own staff in the EBP 5) Offers technical assistance and booster trainings in existing EBP sites as needed 6) Expansion plan beyond currently identified EBP sites 7) One or more identified model programs with documented high fidelity that offer shadowing opportunities for new programs 8) SMHA commitment to sustain mechanism (e.g. center of excellence, university contracts) for foreseeable future, and a method for funding has been identified

No components covered

Narrative As previously recognized, DBHDD has made some important improvements and modifications in the provision of SE trainings and consultation services for SE providers in the state. They have set up a model that incorporates feedback from providers both about their training experiences as well as their self-identified training needs for the future. There continues to be a lack of DBHDD designated SE demonstration sites where staff from other programs can make formal visits to observe the modeling of good SE services. These sites should have good SE fidelity scores and should work with the staff from the Institute on Human Development and Disability at the University of Georgia to set up shadowing and observation experiences in a structured and purposeful way. At this point, it is understandable that DBHDD has not developed any formal plans yet to help SE
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providers to develop their own internal capacity to train new SE staff; however, this will be an important consideration in the near future.

7. Training: Penetration
What percent of sites have been provided high quality training
(Defined as having a score of “3 or higher” on item #4. Training: Ongoing consultation and technical support)
Ongoing training should include 3 or more of the following components: 1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training) 2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training) 3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months) 4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months). 5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months)

Present

1. 0 – 20 % 2. 20 – 40% 3. 40 – 60% 4. 60 – 80% 5. 80 – 100%

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Narrative
Over the past year, DBHDD has worked to ensure that all SE providers have access to the SE training and technical assistance services provided in cooperation with the Institute on Human Development and Disability at the University of Georgia. Schedules for training opportunities are well publicized, documented and reviewed at SE coalition meetings. SE providers have found the trainings to be helpful, relevant and engaging. New SE providers have also been provided with access to the training and technical assistance opportunities.

8. SMHA Leadership: Commissioner Level
Commissioner is perceived as a effective leader (influence, authority, persistence, knows how to get things done) concerning EBP implementation who has established EBPs among the top priorities of the SMHA as manifested by:

Present Present
Present Present
Present

1) EBP initiative is incorporated in the state plan, and or other state documents that establish SMHA priorities
2) Allocating one or more staff to EBP, including identifying and delegating necessary authority to an EBP leader for the SMHA
3) Allocation of non-personnel resources to EBP (e.g. money, IT resources, etc.)
4) Uses internal and external meetings, including meetings with stakeholders, to express support for, focus attention on, and move EBP agenda
5) Can cite successful examples of removing policy barriers or establishing new policy supports for EBP

Narrative The Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities is Frank Berry. It is noteworthy that Commissioner Berry and Deputy Commissioner Judith Fitzgerald both made themselves available to meet with the reviewer during the July 2013 visit. The feedback provided regarding the Commissioner as an effective leader in relation to Supported Employment services in the state was overwhelmingly positive and

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hopeful across all stakeholder groups. Some samples of quotes about the Commissioner and his leadership regarding Supported Employment services include:
“The Commissioner is phenomenal, he is into mainstream services such as supported employment. He is good at the daily reality of things.”
“The Commissioner has done a lot to improve the state office and provider partnerships, he sees the value of all of that in the state. He definitely understands recovery.”
“I have been a mental health advocate for 24 years in this state, this is the best Commissioner-led opportunity that we have had with this Commissioner right now. It is important that he knows how important that his role is. We know it. It is important that he takes the same message to our state legislature too.”
Nearly everyone interviewed stated that they have seen or heard statements from the Commissioner, in public and private meetings, about the value of employment and Supported Employment services to the residents of the State of Georgia. The profound change of tone and demeanor from the Commissioner’s office, as well as the elevation of Supported Employment services, along with the value of employment in relationship to recovery, appears to be resonating well across many different levels of the Georgia DBHDD system.

9. SMHA Leadership: Central Office EBP Leader There is an identified EBP leader that is characterized by the following:

Present Present Present Present

1) EBP leader has adequate dedicated time for EBP implementation (min 10%), and time is protected from distractions, conflicting priorities, and crises
2) There is evidence that the EBP leader has necessary authority to run the implementation
3) There is evidence that EBP leader has good relationships with community programs
4) Is viewed as an effective leader (influence, authority, persistence, knows how to get things done) for the EBP, and can site examples of overcoming implementation barriers or establishing new EBP supports

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Narrative
Georgia DBHDD has produced some significant changes and improvements in their relationships with other stakeholders, especially SE providers. Numerous people commented on the difference in communication, responsiveness and openness within the DBHDD leadership regarding SE services. While there remains some confusion among stakeholders as to who the specific SE point person is at DBHDD, this concern pales in comparison to the value of comments that providers and other stakeholders made about the SE team within DBHDD. For example, many people chimed in with agreement when one person stated, “They (DBHDD SE Leadership) get the big picture and they work with us to get solutions to things immediately. They are becoming a good partner.” Many people stated that they have asked questions about SE services or asked for assistance from DBHDD; all indicated that they found the SE team at DBHDD to be responsive in a timely and collaborative way.
10. Policy and Regulations: Non SMHA State Agencies The SMHA has developed effective interagency relations (other state agencies, counties, governors office, state legislature) to support and promote the EBP as necessary/appropriate, identifying and removing or mitigating any barriers to EBP implementation, and has introduced new key facilitating regulations as necessary to support the EBP.
Examples of supporting policies: • Medicaid agency provides reimbursement for the EBP (If Medicaid not under the SMHA) • The state’s vocational rehabilitation agency pays for supported employment programs
Examples of policies that create barriers: • Medicaid agency excludes EBP, or critical component, e.g. disallows any services delivered in the community (If Medicaid agency not under the SMHA) • State vocational rehabilitation agency does not allow all clients looking for work access to services, or prohibits delivery of other aspects of the supported employment model
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Present

Virtually all policies and regulations impacting the EBP serve as barriers On balance, policies that create barriers outweigh policies that support/promote the EBP Policies that support/promote the EBP are approximately equally balanced by policies that create barriers On balance, policies that support/promote the EBP outweigh policies that create barriers Virtually all policies and regulations impacting the EBP support/promote the EBP

Narrative The successful implementation and sustaining of effective supported employment services on a statewide basis often relies upon effective policy and funding collaborations with other important agencies in a state, specifically the state’s Vocational Rehabilitation agency and the state’s Medicaid Authority or Agency. The DBHDD leadership has been able to develop and has signed a “Memorandum of Understanding Between Georgia Vocational Rehabilitation Agency and Georgia Department of Behavioral Health and Developmental Disabilities Regarding Supported Employment” in February 2013.

While the official signing of this MOU is an important step in aligning the resources and policies of the Georgia Vocational Rehabilitation Agency (GVRA) and DBHDD, it clearly does not address all of the ongoing concerns in the relationship between GVRA services and DBHDD Supported Employment services on the ground level. It is important for DBHDD and GVRA to move ahead in a very public and timely way with their plans to designate specific regions for pilot sites to implement the concepts in the MOU in the daily interactions between the two agencies. Lessons learned from these pilot sites should be used to inform the larger system about improvements in the working relationship between GVRA services and DBHDD SE services.

One person summed it up this way, “We have been told the MOU is a beginning, like we will play nice together, but it has no specifics, it is just the 2 Peachtree

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folks and the VR leadership developing an agreement. We need meetings to hash out the details of this on the ground.”
As another person stated, “It is good that the MOU is signed, now we need to blend the two agencies’ policies and procedures, we need to figure out how to mesh the SE and VR models and identify opportunities for a more seamless process. We need to be looking at what GVRA can do with SE to help people.” This important vision is in stark contrast to the ongoing weighty challenges that continue to exist with the DBHDD and GVRA relationship across the state.
Some of those multiple concerns include: how providers will be able to potentially use Medicaid funds for SE services and still access GVRA funds; how services will be seamless to customers of both systems, even when funding changes; how GVRA will resume providing services to SE clients; and how GVRA and SE can work together to better serve young adults with mental illness who desire employment.
Some specific comments about the relationship between GVRA and DBHDD SE services included:
“It seems like there is lots of good stuff going on here in the relationship, but VR is still into just providing training for our (SE) clients. VR seems to want to stay away from our clients (with mental illness) because they can not work in their eyes.”
“The funding at VR is too limited to be helpful with SE clients. They (GVRA) take the client’s application for services but they do not open the client into the job search process, they either open our clients (with mental illness) into assessment but not into job placement services.”
“We have been told that there will be no new VR cases opened up for our clients (with mental illness) until sometime between October and January.”
“Several GVRA counselors are not allowing Supported Employment clients to apply for or to attempt to enroll in Vocational Rehabilitation services.”
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And one provider shared a very profound and personal perspective, “Without the Vocational Rehabilitation services that I received in the past, there is no way that I would be where I am right now. VR helped me several years ago to get a job. I would not have my job right now if it were not for them. I am sad that this type of VR service is not available to many people like me in Georgia right now.”
A second equally important state agency relationship is between Georgia DBHDD SE services and Medicaid. The leadership at DBHDD has been working for over a year on establishing a mechanism to use Medicaid funding to pay for some Supported Employment services. This process has been used successfully in many different states. The use of Medicaid funds represents a potentially very strong sustainable funding mechanism for SE services in the state and the leadership should be commended for working on addressing this issue. DBHDD has received approval from the Centers for Medicare & Medicaid Services (CMS) for Medicaid State Plan Language regarding Task Oriented Rehabilitation Services (TORS) to promote recovery and wellness.
There is a significant amount of fear, apprehension and perhaps strong misunderstanding in the SE provider community about how the use of Medicaid funds to reimburse for SE services will affect SE providers. There were numerous concerns raised about this both as it relates to fears of “doubledipping” related to other SE funding mechanisms and as it relates to a perceived fundamental change in the conceptualization and provision of SE services.
Several providers stated their perception that the use of Medicaid funds will force SE service into focusing more on the client’s mental illness diagnosis and will require SE providers to be working with deficits and symptoms rather than strengths and skills. Nearly all providers present voiced concerns with the implications and fears they have about using Medicaid to support SE services. It is strongly recommended that GA DBHDD continue to use existing communication methods to gather more information about these perceptions and to provide good accurate billing and funding information to providers to address their concerns.
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11. Policies and Regulations: SMHA

The SMHA has reviewed its own regulations, policies and procedures to identify and remove or mitigate any barriers to EBP implementation, and has introduced new key regulations as necessary to support and promote the EBP.

Examples of supporting policies: • SMHA ties EBP delivery to contracts • SMHA ties EBP to licensing/ certification/ regulation • SMHA develops EBP standards consistent with the EBP model • SMHA develops clinical guidelines or fiscal model designed to support model EBP implementation
Examples of policies that create barriers: • SMHA licensing/ certification/ regulations directly interfere with programs ability to implement EBP

Present

Score: 1. Virtually all policies and regulations impacting the EBP act as barriers 2. On balance, policies that create barriers outweigh policies that support/promote the EBP 3. Policies that are support/promote the EBP are approximately equally balanced by policies that create barriers 4. On balance, policies that support/promote the EBP outweigh policies that create barriers 5. Virtually all policies and regulations impacting the EBP support/promote the EBP

Narrative

DBHDD has incorporated language into their contracting procedures with the SE providers linked to the Settlement Agreement. This language specifies that Supported Employment providers provide SE services that are consistent with the description of evidence-based Supported Employment in the SAMHSA toolkits as well as most of the identified principles of evidence-based Supported Employment services.

An important area for DBHDD to address is a relatively new concern that seems to be emerging and has been reportedly experienced by a number of SE providers who have approached Assertive Community Treatment (ACT) Teams

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for potential referrals of ACT clients to SE services. Several providers indicated that the ACT teams’ vocational counselors told them that they did not have anyone (ACT clients) on their team that would be a good referral for SE services. As one provider stated, and many agreed strongly, “The vocational counselors on ACT teams are telling us they are assessing who is ready to work and then they say that there is no one who is a client of their ACT services who has reached readiness for employment.” This type of employment readiness approach is in direct contrast to the zero exclusion principle of SE services and should be addressed aggressively within the ACT teams across the state.

12. Policies and Regulations: SMHA EBP Program Standards
The SMHA has developed and implemented EBP standards consistent with the EBP model with the following components:

Present
Present
Present Present

1) Explicit EBP program standards and expectations, consonant with all EBP principles and fidelity components, for delivery of EBP services
2) SMHA has incorporated EBP standards into contracts, criteria for grant awards, licensing, certification, accreditation processes and/or other mechanisms
3) Monitors whether EBP standards have been met
4) Defines explicit consequences if EBP standards not met (e.g. contracts require delivery of model supported employment services, and contract penalties or nonrenewal if standards not met; or licensing/accreditation standards if not met result in consequences for program license.)

Narrative

As stated previously, DBHDD has included language in provider contracts that specifies that SE services will be consistent with the principles of evidence-based Supported Employment services as described in the SAMHSA toolkit and as described by the work of the Dartmouth Psychiatric Research Center regarding updated principles and SE fidelity.

The 2013 DBHDD Supported Employment Strategic Plan includes the following:

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“Fidelity reviews are conducted on-site and in a collaborative manner, with focus on quality improvement. SE providers are expected to maintain a minimum fidelity score of 74 (out of a possible 125).”
Additionally, the document, “FY2014-AMH SE Provider Annex-A: Expectations, Outcomes and Payment Method Mental Health and Addictive Disease Adult Specialty Services, “ under section “D. Consumer Outcomes” contains the following, “5. Increase in Competitive Employment: At least 35% of adults actively enrolled in Supported Employment services will be competitively employed in integrated settings that pay minimum wage or better.”
While both of these represent the establishment of desired benchmarks for SE services from a quality perspective, there does not appear to be any common knowledge about the written description or formal process regarding the explicit consequences for providers who do not achieve these benchmarks. This has not been lost on the providers. During one interim visit to a provider, when asked what DBHDD leadership could do to improve SE services, a CEO stated, “We need to be held more accountable for our employment outcomes.”
However, the following language is included in #11 of Annex A in all SE contracts; “Contractor performance for individuals served and outcome measures will be evaluated on an ongoing basis. If Contractor fails to deliver the Consumer Outcomes in Section D. or meet the Contractor Expectations, listed above, Contractor will be notified and may be required or permitted to develop a plan of correction. Continued underperformance may result in contract modification or other contract action, including termination of the contract.”
During the July visit, a different provider summed it up this way, “It would be good for DBHDD leadership to incentivize employment outcomes with more money. Right now, we get money just on enrollment of clients to the SE slots so we can
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get lots of money without worrying about outcomes. We still get paid the same even if no one gets a job.”

It is strongly recommended that the DBHDD leadership develop and implement a formal and documented method to actively hold SE providers accountable for employment outcomes through policy and funding mechanisms on a systemic basis. This accountability might incorporate additional funding or recognition for high performing providers and sanctions or other required quality improvement actions for low performing providers.

13. Quality Improvement: Fidelity Assessment
There is a system in place for conducting ongoing fidelity reviews by trained reviewers characterized by the following components:

Present Present
Present Present Present Present

1) EBP fidelity (or functional equivalent designed to assess adherence to all critical components of the EBP model) is measured at defined intervals
2) GOI fidelity (or functional equivalent designed to assess adherence to all critical components required to implement and sustain delivery of EBP) is measured at defined intervals.
3) Fidelity assessment is measured independent – i.e. not assessed by program itself, but by SMHA or contracted agency
4) Fidelity is measured a minimum of annually 5) Fidelity performance data is given to programs and
used for purposes of quality improvement 6) Fidelity performance data is reviewed by the SMHA +/­
local MHA 7) The SMHA routinely uses fidelity performance data for
purposes of quality improvement, to identify and response to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.) 8) The fidelity performance data is made public (e.g. website, published in newspaper, etc.)

No components covered

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Narrative
The DBHDD leadership invested a significant amount of work and resources into the Supported Employment fidelity review process that enabled them to recently complete a full round of SE fidelity reviews at all SE providers in the State of Georgia. In addition to investing in the personnel and travel expenses, the DBHDD leadership also invested in skills training, shadowing and observing fidelity reviews and other learning opportunities for the personnel that conducted the full round of reviews. This investment appears to have paid dividends not only in the completion of a full round of reviews and subsequent fidelity reports but also in a notably improved fidelity monitoring relationship that is growing with providers that was described during interim visits as well as the July visit. This significant improvement is well described by several SE providers when asked about their fidelity reviews, including:
“The fidelity reviewers were over-the-top with pleasantries and helpfulness. They worked carefully and professionally with us.”
“The reviewers sat in on meetings and making observations for hours, they went out into the community with us doing job development. They were sensitive to our culture and our employer relationships.”
“The reviewers were more supportive than auditing, it was not a threatening process. They went out to the community with us, they lived with us for two days.”
“We were very disappointed in our fidelity score. Our fidelity review showed us we were doing things the old way and some things that we were doing the old way were punitive to our score. People in our agency have been very responsive to the changes we need to make.”
Many providers said the most important use of their fidelity review, the findings, and the subsequent report was within their own organizations. Several SE supervisors stated that they took their SE fidelity report to their own administration to highlight what the SE model looks like and what the agency needed to do to improve SE services.
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It appears that DBHDD has invested significant and meaningful work into the fidelity review process in order to complete a full round of reviews with numerous providers across the state in a collaborative, quality-improvement focused manner. The next step for the DBHDD leadership is to use the substantial amount of information that is now available from the fidelity review process and feed it all into a carefully constructed comprehensive quality improvement process. DBHDD has shared some information about the fidelity findings with other SE providers but that should be just the beginning of the process.
The leadership at DBHDD has shared some information regarding the fidelity reviews with the SE provider group. Providers have been informed that the information will also be available on the DBHDD website in the near future which will allow public access to this information at that point.
It is strongly recommended that DBHDD in collaboration with providers, consumers and other stakeholders, review the fidelity data for important quality improvement themes including, but not limited to: providers who are outliers for high fidelity scores—and how to publically recognize and support their effectiveness; providers who are outliers for low fidelity scores—and how to best assist them to improve; areas where there are significant strengths in the system (e.g. caseload size) and how to keep those in place; areas where there are significant challenges in the system (e.g. work incentive counseling services) and how to improve that systemically.
While reviewing the SE fidelity data, it is also important to review the lessons learned from the data gathered at all the reviews that may not show up in the fidelity reports. For example, fidelity reviewers gather a list of jobs that have been obtained by clients in the program, combining these lists together would present a systemic picture of what types of jobs SE programs are helping people to obtain. This list should be reviewed to assure that people are obtaining a diverse set up of competitive jobs (not just entry level food service and retail
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positions) that match with people’s own individual employment goals. It is possible that programs are focusing too much on easier to get positions and not on making good matches with people’s hopes and specific recovery goals. As one client stated,
“I wish that our mental health Supported Employment staff would set higher expectations for us. They seem to put us (clients) into categories or placements where they feel that we (clients) will not have too much stress. We need job opportunities that are much more broad and diverse, not just food services and retail.”
Two other recovery-oriented Supported Employment concerns to address with information from fidelity reviews include access to work incentive counseling and helping clients with coping skills to be successful in the work place through integrated services. All clients that were interviewed during interim visits and during the July visit stated that their work incentive counseling consisted primarily of being told that they just can not earn income above the substantial and gainful activity (Social Security SGA). This means that clients are being told they can not earn an annual income over $12,000.00 which virtually eliminates client goals and dreams of home ownership, developing careers, becoming full time employees, and becoming economically self-sufficient. As one client astutely observed, “They tell me that I can not make more than a thousand dollars a month. That means I can only work part-time and I can never work my way up to a career or advancement.”
The second important area to examine and address is what types of integrated services are clients in SE getting to help them with developing coping skills and other strategies to manage symptoms and illness-related challenges to help them develop work skills and attributes. When asked what things they were learning to help in this area, every client in the July meeting (including clients from different agencies) stated they have been told, “If you want to work you need to take your medications.” This is clearly not a recovery-oriented, strength-based, individualized method of helping clients to learn important skills for employment and their own recovery process.
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14. Quality Improvement: Client Outcomes
A mechanism is in place for collecting and using client outcome data characterized by the following:

Present Present Present
Present

1) Outcome measures, or indicators are standardized statewide, AND the outcome measures have documented reliability/validity, or indicators are nationally developed/recognized
2) Client outcomes are measured every 6 months at a minimum
3) Client outcome data is used routinely to develop reports on agency performance
4) Client specific outcome data are given to programs and practitioners to support clinical decision making and treatment planning
5) Agency performance data are given to programs and used for purposes of quality improvement
6) Agency performance data are reviewed by the SMHA +/- local MHA
7) The SMHA routinely uses agency performance data for purposes of quality improvement; performance data trigger state action. Client outcome data is used as a mechanism for identification and response to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.).
8) The agency performance data is made public (e.g. website, published in newspaper, etc.)

Narrative DBHDD has established a client outcome reporting mechanism that has been in place for over a year with SE providers. Providers are required to submit monthly reports about SE outcomes including reports on the percentage of clients who are in the SE DOJ slots and their employment rate. Concerns from the SE providers about the time consuming and cumbersome nature of the SE outcome system that is still in place were previously documented. Many providers continue to have the same concerns, as the system has not yet been changed. However, DBHDD reports that they are working on developing and installing a user-friendlier outcome reporting system.

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The leadership at DBHDD has shared some information regarding the SE outcomes with the members of the SE provider group. Supported Employment providers have been informed that the information will also be noted on the DBHDD website in the near future which will allow public access to this information at that point.
In the outcome system redesign, it is recommended that DBHDD incorporate measures to address the challenges inherent in the DOJ SE slots mechanism. Currently, providers report only the percentage of people in those slots who were working in competitive employment during the month. While this is an important data component it is not sufficient for assuring that SE services are being effective. For example, a program may be helping clients to get jobs but not helping them to keep jobs, so clients may be quickly losing jobs and are not able to benefit from employment. This non-recovery-oriented approach to SE would not be detected with the current outcome process. As another example, a program may be helping the clients who are working to keep their jobs but not helping any of the unemployed clients to obtain jobs. Once again, this nonrecovery-oriented approach to SE would not be detected in the current SE outcome process.
It is recommended that DBHDD move quickly to add data elements to the SE outcome reporting that helps develop a more accurate picture of how well SE services in Georgia are truly helping clients to advance their own recovery process through sustained and successful employment.
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15. Stakeholders

The degree to which consumers, families, and providers are opposed or supportive of EBP implementation.

Consumer Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

4. Generally supportive, but no partnerships, or active proponents.

Present

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

Family Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

Present

4. Generally supportive, but no partnerships, or active proponents.

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

Provider Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

4. Generally supportive, but no partnerships, or active proponents.

Present

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

5

15. Summary Stakeholder Score: (Average of 3 scores below)

5

15.a Consumers Stakeholders Score

4

15.b Family Stakeholders Score

5

15.c Providers Stakeholders Score

Narrative The support for SE services in Georgia has grown even stronger among some of the stakeholder groups. Georgia has a very active chapter of APSE (Association

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for People in Supported Employment). The Georgia Consumer Advocacy Network has a large annual conference. Numerous people cited that that group has chosen employment and supported employment as their top priority for numerous years. It will be important for the leadership at DBHDD to work on developing formal positions or affiliations with the Georgia Consumer Advocacy Network and family advocacy organizations in the near future, thereby officially sanctioning their place at the table in assuring the overall quality of SE services in the state. The network of providers who have the Settlement Agreement slots remain enthusiastic and committed to the delivery of SE services, especially with the emergence of several new promising actions and activities that have been propagated by DBHDD. Family members and mental health advocates are clear about their support for supported employment and the importance of employment in helping their loved ones to make progress with their recovery process. One consumer summed it all up this way:
“When I am at my job, I don’t feel like I have a mental health issue. When I am at my job, people treat me like a person who does his job. I look forward to getting up and going to work everyday.”
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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 98 of 113 National Implementing Evidence Based Practices Project SHAY Data The overall average SHAY item score for states participating in the Substance Abuse and Mental Health Services (SAMHSA) National Implementing Evidence Based Practices Project was 3.14. In those states, the overall average item fidelity score across all five identified EBPs was 3.47. In those states where provider agencies were able to successfully implement EBPs (average EBP fidelity item score of 4.0 or higher), the State Mental Health Authority had an average SHAY item score of 3.82. States with higher SHAY scores also had better EBP implementation. In other words, the actions of the State Mental Health Authority described in the contents of the SHAY are associated with the fidelity and quality of services provided at the local level.
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Summary Table of Georgia SHAY Scores 2013

1.EBP Plan

5

2.Financing: Adequacy

3

3.Financing: Start-up and Conversion Costs

2

4.Training: Ongoing Consultation & Technical Support

4

5.Training: Quality

4

6.Training: Infrastructure / Sustainability

4

7.Training: Penetration

5

8.SMHA Leadership: Commissioner Level

5

9.SMHA Leadership: EBP Leader

5

10. Policy and Regulations: Non-SMHA

3

11. Policy and Regulations: SMHA

4

12. Policy and Regulations: SMHA EBP Program Standards 5

13. Quality Improvement: Fidelity Assessment

4

14. Quality Improvement: Client Outcome

3

15. Stakeholders: Average Score

5

(Consumer, Family, Provider)

61

Total SHAY Score

4.0

Average SHAY Item Score

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Georgia SHAY Scores 2012 and 2013
The SHAY score earned by the Georgia Department of Behavioral Health and Developmental Disabilities in 2013 is considerably higher than the score earned in 2012. In comparing the SHAY item scores between 2012 and 2013, DBHDD managed to increase the score they earned on thirteen of the items and maintained their progress on the two remaining items. The DBHDD SHAY score did not decrease on any item. The increase in SHAY item scores and in the SHAY total score measures a change in actions, behaviors, policies and procedures on the part of DBHDD regarding evidence-based Supported Employment services for Georgia adults with mental illness.
While recognizing the substantial amount of work that DBHDD has invested in these improvements, it is likewise important to note that sustaining the gains that have been made will be equally challenging and will require an ongoing focused investment of time, energy and resources on the part of DBHDD. In the next twelve months, it will be vitally important for DBHDD to make the most efficient and effective use of the tools they have now put in place to actively and comprehensively monitor the effectiveness, quality and accountability of Supported Employment services within their state. It is critical that DBHDD ensures that SE is being provided in way that is faithful to the evidence and, most importantly, ensures that SE is being provided in a recovery-oriented fashion to help as many Georgians with mental illness as possible to be successful with employment in their recovery process.
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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 101 of 113

Summary Table of Georgia SHAY Scores 2012 – 2013

SHAY Item 1.EBP Plan

2012 2013

score score

4

5

2.Financing: Adequacy

3

3

3.Financing: Start-up and Conversion Costs

1

2

4.Training: Ongoing Consultation & Technical Support

2

4

5.Training: Quality

3

4

6.Training: Infrastructure / Sustainability

3

4

7.Training: Penetration

1

5

8.SMHA Leadership: Commissioner Level

4

5

9.SMHA Leadership: EBP Leader

3

5

10. Policy and Regulations: Non-SMHA

2

3

11. Policy and Regulations: SMHA

4

4

12. Policy and Regulations: SMHA EBP Program Standards 3

5

13. Quality Improvement: Fidelity Assessment

3

4

14. Quality Improvement: Client Outcome

3

3

15. Stakeholders: Average Score (Consumer, Family, Provider)
Total SHAY Score
Average SHAY Item Score

4

5

43

61

2.9 4.0

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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 102 of 113
2013 Review Georgia Supported Housing and Bridge Funding United States of America v the State of Georgia
(Civil Action No. 1:10-CV-249-CAP)
Martha Knisley
 Technical Assistance Collaborative, Inc.

September 19, 2013

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Introduction
This report to the Independent Reviewer summarizes the progress of the Supported Housing and Bridge Funding programs required by the Settlement Agreement in United States of America v the State of Georgia (Civil Action No. 1:10-CV-249-CAP) for the period of July 1, 2012 through June 30, 2013.
Information analyzed for this report was obtained from written documents provided by the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD); information obtained in a Parties/Experts/DBHDD meeting in June 2013; key informant interviews with DBHDD staff, including interviews with Doug Scott, the Director of Housing, and Assistant Commissioner Chris Gault; Region 5 staff, including a meeting with Charles Ringling, Regional Coordinator; an interview with Julia Collins, an ICM Supervisor with Gateway Behavioral Health Services (Gateway is one of Georgia's contract agencies participating in the Georgia Housing Voucher Program (GHVP)); and three site visits with Ms. Collins to visit GHVP participants in their homes in the Savannah area.
This report focuses on the State's progress in three areas: 1.) meeting the Georgia Housing Voucher Program and Bridge Funding targets by type of housing, number of subsidies funded, target population requirements and bridge funding requirements for the year ending June 30, 2013; 2.) supported housing program implementation for priority target populations, including the DBHDD's ability to implement the proposed program for the target population as contemplated in the Settlement Agreement; and 3.) expansion of supported housing resources.
Observations and Findings
1. Housing (GHVP) and Bridge Funding
Georgia Housing Voucher Program The DBHDD continues to exceed GHVP numerical targets. DBHDD was required to serve 800 individuals by July 1, 2013 and served 1,002 or 127% of the goal. As of July 1, 2013, 762 participants were housed and another seventy-nine were in housing search. This is the third year the DBHDD has reached at least 120% of goal. Over 350 properties were under contract and forty-five service providers were actively serving participants. Participants are living in GHVP arrangements in seventy-four different counties.
The DBHDD keeps records on referrals from point of "notice to proceed," which is basically the DBHDD Supported Housing Director verifying an individual is eligible for the program and the individual can proceed with housing search. In FY 2013, 71% of individuals with a "notice to proceed" had signed leases before the end of the fiscal year1. Data is not reported on time from referral to "notice to proceed" but the pace of "notice to proceed" to leases being signed
1 The primary reason that only 71% had signed leases is that "notices to proceed" can be issued until the end of the fiscal year and the individual was then signing a lease the following month or in the new fiscal year
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seems within normal range. There were approximately 12% of the leases cancelled, which merits further review to determine if there are any negative trends that can be reversed. Likewise, not all referrals resulted in individuals getting housing. Assessing the referrals that don't result in leases and reporting on these reasons is warranted for quality review purposes.
In FY 13, 47% of participants had zero income and the monthly average rental payment was $509.54. Bridge funding was provided to 383 participants in the third year of this Settlement Agreement, which is 147% of the goal (113 above the goal of 270). The average cost per participant is $2,3472. Furnishings and first and second month rent account for 50% of this cost and provider fees account for 20%. The remaining funds (30%) are allocated for household items, food, transportation, medications, moving expenses, utility and security deposits and other expenses.
This program’s success in meeting targets appears to be the result of a combination of factors, including the DBHDD Supported Housing Director's diligence and understanding of rental housing operations and supported housing requirements; clear direction to and strong staff support from the DBHDD Regional Directors and their staff; and the interest and support of referral sources, especially homeless services system outreach staff. Meeting this target is also related to the well-documented need for affordable rental housing for individuals who have severe and persistent mental illness and are the target population for this Settlement Agreement.
DBHDD methodically tracks their required targets and collects additional data in a timely manner, which enables them to self-monitor their performance and better grasp their challenges. From talking with participants at their homes as well as local and state staff on site visits this year and last year, the DBHDD and their local service agency partners are becoming informed about the local affordable rental markets, fair housing requirements, consumer choice and accessibility features, which is typically related to success in meeting leasing targets.
In looking forward, the Settlement Agreement requires that the program be expanded by 1,200 slots by July 1, 2015. This means that, over the next two years, the program is required to grow by 160% of current capacity.
Bridge Funding Making Bridge Funding available to participants is crucial to the success of this program. Over $1.2 million was spent on furnishings, first and second month's rent, deposits and household items. Furnishings and rent accounted for 49% of these costs. In addition, over $275,000 was spent on provider fees for managing these funds at the participant level. Three hundred and eighty seven (387) individuals or 147% of the goal received bridge funding assistance. This is $3,140 on average for the number of people who signed leases in FY 13. One challenge reported by DBHDD staff is the ability to maintain this level of support as housing resources are developed beyond what is available for individuals in the GHVP.
2 This number may go higher when all the requests are reported
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2. Program Implementation
Program implementation refers to the State's ability to assist people in the priority target populations to get services they need to live in their own homes and become fully integrated into the community. This task is very challenging. Historically, individuals in this target population haven't often gotten opportunities to move into their own home which means staff may not be fully knowledgeable or familiar with supported housing tasks. Likewise, individuals with a severe mental illness are often labeled "not ready" or incapable of living on their own. Or, if given the opportunity, may get housing but may not be successful in retaining their housing and/or remain very isolated in their community. DBHDD staff appear fully cognizant of these obstacles. They have taken some steps and have more plans for overcoming these obstacles, which are described in more detail in this section of this report. How well they do this is diametrically linked to the State's ability to meet its targets.
For this review, program implementation was measured quantitatively by referral information and housing stability outcomes and other information prepared by the DBHDD staff and qualitatively through key informant interviews and home visits review.
Referrals Referral patterns for the GHVP have remained consistent with patterns from the two earlier years. Individuals who were homeless at the time of referral comprise 50% of all referrals. Numbers of referrals of individuals increased from 357 to 589 between FY 12 and FY 13. Referrals from hospitals were increased numerically (from 70 in FY 2012 to 196 in FY 13) and as a percentage of the total (from 9% in FY 12 to 17% in 2013); referrals from more intensive settings were down slightly as a percentage (21% to 16% from FY 12 to FY 13) and decreased from 187 to 156 referrals from FY 2012 to FY 2013. Nearly 45% of referrals from more intensive settings in FY 2013 were from group homes or individual care homes. Referrals from families also increased slightly but referrals from jails/prisons remain flat (2 in FY 2013). Most referrals are from Region 3 (205 or 18%) and most homeless referrals are from Region 3 (67%). Region 3 had the highest number of referrals from group homes and individual care homes (29 or 37% of all GH and PH referrals) and hospitals (29 or 37%). Regions 1,2 and 4 have a much higher percentage of referrals from family and friends, 78% of all referrals in this category, and 66% of all referrals in the rent burdened category.
DBHDD is employing a "housing first" approach for many individuals being referred, meaning that referrals come directly from homeless outreach, from hospitals, CSUs or intensive residential programs without first being "transitioned" through group living arrangements. Referrals also come from group homes. DBHDD has not made a policy decision that people need to live there first before moving into supported housing arrangements rather that many group homes were in operation at the time this Agreement was made.
Two referral groups merit attention because of their low numbers; one is the number of referrals from jails and prisons, which is expectantly low at this juncture. Getting referrals from
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jails requires a very local hands-on approach, probably most successfully led by Regional Coordinators, although senior DBHDD leadership will also need to be involved. This is already happening from the Commissioner's level on down. Mr. Ringling, the Region 5 Coordinator who has a strong pulse on his community's resources, spoke quite cogently about his commitments and steps he is taking with local officials to increase these referrals in southeastern Georgia. Likewise, a related but separate effort will need to be mounted to increase referrals from state correctional institutions, parole and probation. The Behavioral Health Coordinating Council is in the process of forming a Criminal Justice Transitions into the Community working committee to tackle the problem with this lack of referrals.
The second group of referrals are individuals residing in group or personal care homes, CSUs/CAs, hospitals and intensive residential settings. Combined, these groups only represent 16% of the referrals to the program. Unless these referrals increase substantially and/or there are substantial increases of referrals from jails and prisons, the program will need to increase homeless referrals to meet targets in FY 14 and FY 15. DBHDD is aware of this issue and has made a strong commitment, with additional training and work with regional offices, to expand referrals directly from more restrictive settings this past year.
The current patterns may also be indicative of priorities set at the DBHDD regional levels, where staff are directly responsible for managing this program, and their view of their needs, the strength of referral relationships or a combination of the above. It is likely the homeless issues in Fulton County and all of Region 3 are fairly pronounced and it is also clear from discussions with staff in Region 3 that they have strong connections to all of their referral sources. Most importantly, even with these differences, individuals in the target population are being discharged from more restrictive settings or getting opportunities to move on from congregate or unstable situations which is an underlying goal of this Settlement Agreement.
In Section III.B.2.c.ii(B5) of the Settlement Agreement requires the state to "provide housing supports for approximately 2,000 individuals in the target population with SPMI (by July 2015) that are deemed ineligible for any other benefits..." This section has been referenced in earlier reports, as it is highly likely some individuals in the program are eligible for other benefits. However, as a practical matter, being deemed eligible and having access to other benefits may not be the same. It behooves the DBHDD to work closely with Continuums of Care (CoCs), PHAs and DCA to assure individuals in the target population, who are eligible, have as great an access to those resources they are eligible to receive. DBHDD is moving toward a more seamless referral process with the CoCs and has already entered into formal partnerships with the Fulton Co CoC (United Way) and with DCA. This has the effect of maximizing housing resources for the target population, especially those who are deemed ineligible for other benefits.
Housing Access and Stability The third method for measuring program implementation comes from interviews and site visits. Housing stability is measured by DBHDD at the six month mark, which is the same measure HUD uses to measure housing stability (# < 6 mos leaving/ # > 6 mos in housing). HUD's
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standard is 77% at that mark and DBH was at 92% or 15% above that mark for new tenants in each of the first three years of implementation. DBHDD also set their own standard for reengagement of "negative leavers" at 10% and has exceeded that standard with 21% of negative leavers being reengaged. HUD uses these standards to measure Public Housing Authority performance and not necessarily to measure stability of renters. For purposes of this Settlement Agreement, it is helpful to measure stability for the short term but to fully assess tenure and measure the performance of the program, it is advisable to measure tenure at the one and two year mark as well. In addition to measuring tenure, it is also essential to maintain a list of reasons people leave, negatively or positively, to measure the success of individuals being re-engaged and to determine if some reasons individuals are leaving can be reversed.
Taking supported housing programs to scale across a state is a very daunting task. It becomes an even greater challenge if the program experiences a great deal of turnover or if referrals are slow which can happen if referring organizations are either not well organized or not convinced the program can work for the target population. Or this may happen because of the paucity of quality affordable housing in many communities and/or many individuals not meeting background requirements for leasing their own apartments.
Providers are often challenged with shifting their staff's skills to supporting people in their own home. This is a result of their not having done much of that type of work before or because they are much more accustomed to operating group residences, which requires different skills sets, approaches and knowledge. Often this is described as providers having a different philosophy, believing in a continuum approach, where people move from institutions or homelessness to group residences where they are "supervised" before moving on their own. Regardless of the reasons, skills and knowledge or philosophy, the need for a consistent presence (DBHDD Regional and state staff), training and coaching can close the gap between the desired outcomes of this program and current provider knowledge, skill and philosophical differences with this approach. The three site visits revealed several important facts about this program which can best be described through their narratives:
The first individual we visited was a fifty two year old, African American male. This gentleman has had eight incarcerations and has serious medical conditions including diagnoses of COPD, Emphysema and Glaucoma. He started active substance use (alcohol) at age 13 and cocaine at age 18. He has been homeless off and on since 2010. He was in active use without any period of voluntary abstinence until May of 2012 when he entered a substance abuse treatment program (ASAM level II.5). He was abstinent for three months when referred for psychiatric care because of irritability, mood swings, suicidal thoughts and sleeplessness, which was the first time he was given mental health diagnoses as prior symptoms were attributed to substance use. In May of 2012, he tried to get into a men's residential substance abuse program but was denied because of medical conditions. He lived briefly with a sister until able to get into a shelter until the end of May of 2012. He stayed in a shelter until April 2013 when he was referred to ICM and GHVP in March 2013. He was scheduled for eye surgery at the time we met him and was staying very busy with friends and family. His sister called while we were visiting him. His history indicates he will have difficulty maintaining sobriety and his health
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conditions will need to be monitored closely. The second individual we met at his home is a 41 year old Caucasian male who was diagnosed with diabetes in his twenties. He became homeless and was living in shelters in Georgia and Florida after experiencing frequent hospitalizations and bizarre behavior on work sites when his blood sugar was too low. He was also admitted to acute care psychiatric facilities in his twenties due to depression and anger problems. Two years ago, he was admitted to a crisis unit for four weeks and transferred to a state hospital where he remained for eleven months. He was referred for GHVP and has been in housing receiving ICM services for seven months. He uses public transportation to get around and sporadically attends a day program where he helps fix the program's computers. However, he reports spending most of his time at the local library branch. He has been admitted to a local community college where he will be studying computer technology but is very fearful he will not be successful because of his diabetes. According to both him and staff, his diabetes is still not under control and he does not have access to the level of care he needs to measure and control his diabetes. He appears very driven but will need a great deal of support, reassurance and adequate health care to meet his goals. Our last visit was with a young man, twenty one years old, who left home at age sixteen because of parental abuse. During his childhood, he moved twenty times because of his father fleeing law enforcement when his mother attempted to see their children. After leaving home, he stayed where he could but had problems with depression and mood swings. He was diagnosed with major depression and anxiety after being admitted to acute care for a suicide attempt at age seventeen. He was hospitalized for one week and was hospitalized a second time for one month at age eighteen after a second suicide attempt. He stayed with a friend of the family and was able to finish high school. Then, at age nineteen, he moved to Georgia to find his mother. His mother kicked him out and he began living in a car. After three months of living in his car, in 2012, he was admitted to an acute care psychiatric unit after making suicidal threats. He was referred to ICM/GHVP and has been in housing since November 2012. He is also attending a day program where he is cooking on a regular basis and hoping to get into culinary school.
All three of the gentlemen have long histories of treatment and challenging life experiences. All have experienced failure and periods of homelessness and institutional care. They clearly fall into the target population and without help and support--both formal and informal-- will experience many more difficulties and life challenges. For different reasons, they are all good candidates for supported housing; they would not likely succeed in more traditional group residential living. However, all three will need expert medical, psychiatric help and personal support. They are all good candidates for peer support. But the peer support would need to be tailored because the first gentleman needs support to maintain sobriety, the second a friend and health care advocate, and the third and younger gentleman support from someone his age who understands and can help him overcome traumatic life events. In each of their situations, housing is a stabilizer but won't be enough for them to succeed.
Julia Collins, from Gateway was quite familiar with all three of these gentlemen. She understood the value of life supports, the need for individuals to become connected to their
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communities and how crucial stable housing is and will be in their lives. We did not meet other members of Gateway's staff so cannot gauge their interactions and overall strengths.
As referenced above, the behavioral health care system must have the capacity to provide recovery-oriented services and in-vivo supports that are focused, highly individualized and well organized. If the system has this capacity, moving into supported housing will become a gateway to a more integrated life to help participants meet their life goals. Supported housing provider staff must have skills in a number of interventions, have strong relationships with other community professionals and resources, including health care providers, and be able to help individuals access education, jobs and benefits and other resources. Often supported housing is considered "independent housing" where people graduate to from other programs and staff receive very little training to do this type of work. The three gentlemen we met in Savannah are evidence that the opposite is true.
DBHDD recognizes the need for supportive housing providers to receive ongoing training and support to be successful. During the past year, DBHDD has brought providers together and discussion is underway for expansion of training in FY 2014. This expansion is being discussed as embedded into training planned for ACT and ICM. This is an excellent idea. If supported housing is considered "outside" or an "add on" rather than an integral part of their work, it will be less effectively implemented. There are likely a number of scenarios where DBHDD can connect these initiatives. For example, ACT and ICM provider contracts and service requirements will continue to be informed by supported housing requirements. Likewise, ACT and ICM will need to consider what "practice changes" they need to make to successfully assist people to move into housing, get jobs and keep them.
Also, since helping individuals meet their recovery goals is a core principle of supported housing, additional peer support to help someone achieve their goals would also be helpful. Peers are indispensible to successful supported housing programs. Likewise, ensuring everyone living in supportive housing has access to crisis services or respite opportunities in lieu of eviction or another type of "negative" loss of their home is critical.
One area where attention is also warranted is in ensuring that the Regional staff and service providers are open to taking more referrals from intensive residential, hospitals, jails and prisons. This would require individuals being served to have access to respite and crisis services that are often needed even after they have moved into their own home. Provider staff will likely need more clinical and care management support to be successful serving individuals with more complex needs.
3. Program Expansion Perhaps the greatest challenges for DBHDD in meeting its housing targets lies ahead as it expands housing and services opportunities. As shown in the first two sections of this report, the DBHDD has built a solid infrastructure for the GHVP and Bridge Funding program. Forty-five contract providers are delivering services to people moving into newly developed housing arrangements. However, taking these programs to scale and sustaining them requires
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expanded infrastructure, increased provider capacity and performance, the ability to expand referrals from several key referral sources and ability to expand housing availability. The infrastructure issues and overall scalability of the program is heightened exponentially when the state begins adding additional housing resources such as the DCA HCV and 811 PRA.
DBHDD staff recognize that their current Supported Housing program needs to evolve and expand to meet the demands of the program and the Settlement Agreement. Doug Scott is carrying out duties ranging from filing, assuring monthly rent obligations are paid, working with staff in each region--both Regional staff and providers on routine matters -- plus trying to make and manage new housing connections to enable the program to grow. In short, he has been a one-man office. For example, the DCA Housing Choice Voucher Program expansion begun last year and discussed in more detail below is more complex, the GHVP is required to more than double in size over the next two fiscal years, cultivating target population referrals requires added attention and other resources must be tapped. In addition, DBHDD and providers are required to do housing eligibility re-determinations annually which adds to the ever expanding workload. To DBHDD's credit, these issues are acknowledged and Doug Scott will be getting assistance.
Last year, the Independent Reviewer raised a question regarding the potential for expanding the rental program to individuals with developmental disabilities. While this issue was not a focus of this review, it is a question that should be considered. DBHDD is building one infrastructure and is making strides in expanding resources that could be beneficial for individuals with developmental disabilities, assuming service resources could be made available. Below is a brief discussion of three examples of program expansion that are underway or on the planning stages for expansion in the next two fiscal years.
Housing Choice Voucher Program In 2012, the Georgia Department of Community Affairs (DCA) received approval from the US Department of Housing and Urban Development (HUD) to provide preferences in its Housing Choice Voucher Program (DCA HCV) for individuals with "specific disabilities” identified in this Agreement. This approval is in force until July 1, 2015 and DCA has agreed to allow this preference for up to 50% of their turnover units during this period of time. This is a significant opportunity but comes with several challenges. One, the DCA HCV program operates in mostly rural counties. Rural counties have both fewer staff resources to undertake such a program and will have fewer referrals. Two, at the end of FY 2013, only 55 individuals had been transitioned to this new program and, at this rate, less than 250 people would be able to take advantage of this program. The number will likely rise as the DBHDD, DCA and providers move from this start-up period into full implementation. However, there will be potentially up to an additional 1945 vouchers available through this approach before July 1, 2015. Three, the program is more complex to operate. As a federally funded rental program, it has more requirements than the GHVP and is more cumbersome to navigate, regardless of current attempts to simplify for this settlement agreement. For these reasons, the DBHDD will have to carefully plan and give additional attention to implementation to take full advantage of units that may become available.
9

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 111 of 113
DBHDD is fully committed to this program as is DCA and steps are being taken both to intensify the referral process and to ensure that Regional DBHDD and service provider staff are fully cognizant of the HCV requirements and able to make timely successful referrals. DBHDD has indicated it will be meeting quarterly with DCA to review and report on effectiveness of reaching goals set forth in this Settlement Agreement and adjust resources accordingly. A second step being planned are "boot camps" which are intensive one to two day work sessions with providers, regional staff and DCA staff to map out responsibilities and action steps and set targets for leasing within a specific time frame. This activity will be monitored closely to ensure results are achieved. Following this intensive period, goals for each region, which are reported as part of the monthly GHVP and Bridge Funding Program Summary, can be set and carefully monitored over the full life of this Agreement.
Additionally it is important to recognize that Georgia, like most states, is experiencing challenges in the availability of decent, affordable, accessible multi-family rental housing. While home ownership is increasing again after the recession, the market is lagging on rental housing development and continuous Federal actions to reduce PHAs budgets put further strain on the budget. Rental housing prices are again rising. The monthly cost for a one bedroom market rate rental unit in Georgia is equal to 94% of an individual's SSI monthly check. (Priced Out , The Technical Assistance Collaborative, 2012).
Working agreements with CoCs, PHAs, the DCA and the VA Four groups, Continuums of Care (CoCs), which are homeless services planning consortiums, Public Housing Authorities (PHAs), the Veterans Administration (VA) and the DCA, have access to plan, plan for and/or fund affordable housing. DBHDD has begun building these partnerships. To date the expanded partnership with the VA has resulted in nineteen individuals in the GHVP being moved to a Veterans Administration Supportive Housing Voucher (VASH) and through an alliance with the City of Atlanta’s “Unsheltered No More” program moved forty-seven high risk chronic homeless individuals into a GHVP supportive housing voucher.
These are small steps but can be expanded with DBHDD, including its Regional Offices, committing staff to building relationships with each of these groups to ensure the priority target populations named in this Settlement Agreement have access to affordable housing resources being planned for and made available by these groups/ organizations. Likewise, DBHDD contract service providers can help identify which individuals are eligible for these resources and can assist to provide services where service gaps exist. For example, the VA funds services, which help defray services costs, but PHAs do not. PHAs can enter into preference agreements, but DBHDD service providers must provide services to make this type of arrangement feasible. There are twelve CSBs and Shelter Plus Care provider organizations, operating across multiple counties, actively working to utilize Shelter Plus and Georgia Housing Voucher programs.
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Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 112 of 113
In FY 2013, Georgia was one of the first thirteen states to be awarded an 811 PRA Demo award. This program will be managed by the DCA but DBHDD is a full partner in this new modernized 811 program. DCA will receive funds for 150 permanent project based rental subsidies. Therefore, individuals in the target population will have access to project based rental assistance in selected tax credit properties through a partnership agreement with DCA. The program has not yet started. There may be more opportunities to expand tax credit unit set asides if other project-based subsidies could become available. This is a DCA decision, assuming support from DBHDD.
Organizing and cultivating these relationships appears to be underway but, to achieve consistent success, a well organized, targeted plan will be needed. Each group/ organization has different requirements (statutory, regulatory and local), management staff at the state and local levels, mandates and housing contract arrangements. Tracking and ensuring people get routed to programs that they qualify for and that match their needs will likely require more sophisticated technology and staff support at the state and regional level than is currently in place. DBHDD may want to consider requesting the other systems to take on some of the administrative requirements where possible rather than trying to expand in-house operations.
Jails and Prisons The two examples for program expansion listed above are related to housing resource expansion. This expansion is related to expanding the program for individuals exiting jails and correctional institutions, as referrals from these facilities are very low. This is an opportune time given the state's focus on reducing overcrowding in prisons. Many states across the country have successfully utilized the Intercept Model (Gains Center) to map and improve the diversion and discharge processes from jails and correctional institutions. Regardless of what approach is used, getting referrals directly from jails and prisons requires several administrative steps, firm agreements and programmatic adjustments at the provider level. Likewise, the referees would likely need GHVP resources rather than the more difficult to qualify for HCV or PRA resource.
Recommendations
The findings section of this report refers to a number of issues that merit recommendations. However, below is a summary of those recommendations:
1. At the conclusion of last year's report, a caution was raised that there must be attention given to infrastructure capacity and collaboration with housing agency partners and community agencies, if future housing targets are to be achieved. This report references a number of specifics for infrastructure capacity and collaboration. While the state met the targets again this year, this reviewer and staff agree that meeting future targets will be more difficult because the expectations are greater. Similarly, maintaining the program at the level required by this Settlement Agreement requires "sustained" capacity at the provider, Regional and state level. As referenced in the first section of this report, giving attention to turnover (beyond the six month performance target) is also important to sustain the program. Attention was not
11

Case 1:10-cv-00249-CAP Document 175 Filed 09/19/13 Page 113 of 113
given in last year's report to provider services capacity. However, as referenced in this report, building and sustaining provider capacity is added to this list of recommendations.
2. In this year's report, focus was also given to the need to broaden collaboration with the DCA HCV program staff, CoCs, local jails and prisons, the VA and local PHAs. It is strongly recommended that action steps and outcomes for these collaborations, including making formal referral agreements, cross cutting training, the DCA-DBHDD-provider "boot camps" and activities and relationship building events, be incorporated in a supported housing work plan for this year. It should be noted that some of these activities and events are underway. However a work plan would help "size" the planning process and make clear expectations for these activities.
3. Specifically, the DBHDD should take concrete steps to increase referrals from jails and prisons. These steps include building relationships and working agreements between Regional staff, local providers/CSBs and local Sheriffs and other officials for access, screening and referral arrangements as well as work with service providers.
4. The fourth recommendation is to assess the potential for increasing referrals from hospitals and intensive residential programs. The numbers of individuals being referred may reflect the true need. It may also be a reflection of problems with the referral processes, lack of agreement on who should be referred, challenges to individuals becoming eligible for a housing program, or being approved as a renter. Therefore, reviewing these referral processes may yield some areas for improvement.
5. The fifth recommendation is to make provisions for supported housing for individuals with developmental disabilities and those with co-occurring mental illness and developmental disabilities. Arrangements in this context means making referrals and assuring best practice services are available to match the needs of individuals with developmental disabilities living in supported housing environments. Many individuals with a developmental or intellectual disability are good candidates for supported housing and, like so many other recommendations in this report, mapping out a plan for this initiative will be key.
6. Lastly, there will be many opportunities for the DBHDD to further refine, expand and improve Supported Housing, ACT, ICM and Supported Employment as interconnected initiatives. A simple crosswalk of the initiatives would reveal many opportunities for connecting the programs. As stated above, providing opportunities for peers to be a part of these processes adds incredible value. Reflecting back to the three case studies in this report, an argument can be made that individuals with their own recovery plan can find a way to go to work, school and restore relationships and build new ones.
12

 
 Case 1:10-cv-00249-CAP Document 171 Filed 07/26/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION 


UNITED STATES OF AMERICA,

)


)


Plaintiff,

)


)


v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

_______________________________________)

CIVIL ACTION NO. 1:10-CV-249-CAP

[XPXRXOXPXOXXSXEXD] ORDER

For good cause shown in the Parties’ Joint Motion to Modify Agreement

[Doc. No. 170], the court hereby MODIFIES the Settlement Agreement [Doc.

Nos. 112, 115 & 151] as follows:

Add § III.A.2.b.iii.(D):

The Independent Reviewer will not assess the provisions of this section, III.A.2.b.iii.(A)–(C), in her report for the period ending July 1, 2013. Instead, the review period for this section will be extended six months until January 1, 2014, after which the Independent Reviewer will report on this section pursuant to the draft, review, and comment deadlines enumerated in VI.A.
Modify § III.A.2.b.i.(C):

Between July 1, 2012, and July 1, 2013, the State shall create at least 250 waivers to serve individuals with developmental disabilities in community settings. The State shall move up to 150 individuals with developmental disabilities from the State Hospitals to the community using those waivers. The remaining waivers shall be used to prevent the institutionalization of

Case 1:10-cv-00249-CAP Document 171 Filed 07/26/13 Page 2 of 2
individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 500 families of people with developmental disabilities. SO ORDERED, this 2_6___th day of J_u_l_y_____, 2013.
/s/ Charles A. Pannell, Jr. ____________________________ CHARLES A. PANNELL, JR. United States District Judge

 
 Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 1 of 89 


IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION


UNITED STATES OF AMERICA,
Plaintiff, v. STATE OF GEORGIA, et al.,
Defendants.

)

)

)

)

CIVIL ACTION NO.

)

1:10-CV-249-CAP

)

)

)

NOTICE OF JOINT FILING OF THE
 REPORT OF THE INDEPENDENT REVIEWER
 Plaintiff United States of America and Defendants State of Georgia, et al., hereby jointly file the report of the Independent Reviewer pursuant to ¶ VI.B of the Settlement Agreement [Docket Nos. 112 & 115]. The Independent Reviewer’s report (with its referenced attachments) is included as Attachment A hereto. Respectfully submitted, this 20th day of September.

[signatures on next pages]

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 2 of 89 


FOR THE UNITED STATES:
SALLY Q. YATES United States Attorney Northern District of Georgia
/s/ Aileen Bell-Hughes
(with express permission by Mark H. Cohen)
[GA Bar 375505] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

THOMAS E. PEREZ Assistant Attorney General
EVE HILL Senior Counselor Civil Rights Division
JONATHAN M. SMTIH Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
/s/ Robert A. Koch
(with express permission by Mark H. Cohen)
ROBERT A. KOCH [OR Bar 072004] KATHERINE HOUSTON [CA Bar 224692] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 305-2302 Fax: (202) 514-0212 Email: Robert.Koch@usdoj.gov

-2­

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 3 of 89 


FOR THE STATE OF GEORGIA:

SAMUEL S. OLENS Attorney General Georgia Bar No. 551540
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575

/s/ Mark H. Cohen MARK H. COHEN Special Assistant Attorney General Georgia Bar No. 174567 Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Tel: (404) 885-3597 Fax: (404) 962-6753 Email: mark.cohen@troutmansanders.com

JENNIFER DALTON Senior Assistant Attorney General Georgia Bar No. 614120
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Tel: (404) 656-0942 Fax: (404) 463-1062 Email: jdalton@law.ga.gov

/s/ Josh Belinfante
(with express permission by Mark H. Cohen)
JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399 RobbinsLaw LLC 999 Peachtree Street, N.E. Atlanta, GA 30309 Tel: (678) 701-9381 Fax: (404) 601-6733 Email: jbelinfante@robbinsfreed.com

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 4 of 89 

CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Notice of Joint Filing of the Report of the Independent Reviewer was electronically filed with the Clerk of Court using the CM/ECF system, which automatically serves notification of such filing to all counsel of record. This 20th day of September, 2012.
/s/ Mark H. Cohen MARK H. COHEN Special Assistant Attorney General Georgia Bar. No. 174567
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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 5 of 89

ATTACHMENT A


Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 6 of 89


 
 
 
 REPORT OF THE INDEPENDENT REVIEWER 
 In The Matter Of 
 United States of America v. The State of Georgia 
 Civil Action No. 1:10-CV-249-CAP 
 
 
 
 
 
 
 
 
 
 
 
 Submitted By: Elizabeth Jones, Independent Reviewer 
 September 20, 2012 
 
 


Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 7 of 89

INTRODUCTORY COMMENTS 

This is the second Report issued on the status of compliance with the provisions of the Settlement Agreement in United States v. Georgia. The Report documents and discusses the State's efforts to meet obligations scheduled for completion by July 1, 2012.
In many respects, this second year has been one of foundation building, as the State continues its shift from a system based largely on institutional structures and resources to one that is consistent with the principles and operations of an integrated community-based system of supports. In the year ahead, it will be critical to continue a strong emphasis on the quality of the implementation decisions and the strategies required for sustainability.
As recognized in last year's Report, the tasks undertaken by the Department of Behavioral Health and Developmental Disabilities require a substantial commitment of leadership, energy and resources.
The Department has demonstrated very good faith in meetings its obligations. The leadership of the former Commissioner, Dr. Frank Shelp, and that of the newly appointed Commissioner, Mr. Frank Berry, is clearly evident and greatly appreciated.
The State Legislature continued to approve the funding required for the full implementation of the Settlement Agreement in the second year.
The Commissioner of the Department of Community Health and his staff have engaged in discussions with the Independent Reviewer regarding Medicaid funding and the licensing of certain residential services. Their accessibility and responsiveness has contributed towards a positive working relationship.
The staff of the Department of Behavioral Health and Developmental Disabilities have worked diligently and carefully to assist the Independent Reviewer with her requests for information and her questions about compliance efforts. The Settlement Coordinator, Pamela Schuble, has been forthright and generous in her responses and support of the Independent Reviewer's role. The initiation of periodic Parties' meetings has been extremely helpful to clarifying information and strengthening the collaboration towards the common interests embodied in the Settlement Agreement.
Once again, it is important to reiterate that Georgia continues to be fortunate to have an articulate and well-informed group of stakeholders who are deeply committed to the principles and goals of the Settlement Agreement and who are energized and eager to participate in its actual implementation. This stakeholder involvement continues to be critical to the reform envisioned by the Parties to the Settlement Agreement. As the next stages of compliance are reached, it is more important than ever that the community stakeholders have presence and voice in decision-making about their emerging community system.
Continuing attention to the partnership between the State's officers and its community citizens will greatly assist in sustaining and building upon the obligations contained in the Settlement Agreement. Commissioner Berry has expressed, to the Independent Reviewer and others, his commitment to that partnership.
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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 8 of 89


Summar� of Compliance: Year Two

Settlement Agreement Reference
LLL
LLL.A.L.a

Provision
Substantive Provisions By July 1, 2011, the State shall cease all admissions to the State Hospitals of all individuals for whom the reason for admission is due to a primary diagnosis of a developmental disability.

Rating

Comments

Compliance

The Commissioner of the Department of Behavioral Health and Developmental Disabilities has complied with this provision and has expressed his intent to develop community based alternatives to institutional care. There was no evidence to indicate that individuals with a developmental disability have been transferred between State Hospitals in contradiction of the commitment to cease admissions.

LLL.A.L.b LLL.A.2.b.i(A)

The State will make any necessary changes to administrative regulations and take best efforts to amend any statutes that may require such admissions.

Compliance

In House Bill 324, the State Legislature amended Chapter 4 of Title 37 of the Official Code of Georgia Annotated.

By July 1, 2011, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community and the State shall create 150 waivers to accomplish this transition. In addition, the State shall move from the State Hospitals to the community all individuals with an existing and active waiver as of the Effective Date of this Agreement, provided such placement is consistent with the individual's informed choice. The State shall provide family supports to a minimum of 400 families of people with developmental disabilities.

Compliance

By July 1, 2011, the Department placed more than 150 individuals with a developmental disability into community residential settings supported by the Home and Community-Based Waiver. A sample of 48 individuals was reviewed. Identified concerns were referred to the Department and corrective actions were initiated. Nine of the 11 individuals hospitalized with an existing Waiver were discharged to community settings. Two individuals remained hospitalized. Delays in placement were attributed to family objections or to provider-related issues. The Department continued to pursue appropriate community placements for these two individuals. More than 400 individuals were provided with family supports. Because there was substantial compliance with this provision, a positive rating was given.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 9 of 89


Settlement Agreement Reference
LLL.A.2.b.i(B)

Provision

Rating

Comments

Between July 1, 2011, and July 1, 2012, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 450 families of people with developmental disabilities.

Compliance

The Department placed 164 individuals with a developmental disability into community residential settings supported by the Home and CommunityBased Waiver. A statistically relevant sample of 48 individuals was reviewed. Ldentified concerns have been referred to the Department and corrective actions are being initiated. Although in compliance, it is recommended that the Department review its policies and guidance regarding expectations for community placement and to provide greater oversight of service coordination at the Regional level. The two hospitalized individuals referenced in the provision above have either been placed or have a placement in process. Two other individuals with existing and active Waivers at the time of the Settlement Agreement were rehospitalized. Those individuals were reviewed by a psychologist consulting with the Lndependent Reviewer. Community placements are being actively pursued; an experienced provider has been recruited. The Department issued 117 Waivers to avoid institutionalization of individuals with a developmental disability residing in the community. Family supports were provided for 2248 individuals through 38 provider agencies.

LLL.A.2.b.ii(B)

Lndividuals in the target population shall not be served in a host home or a congregate community living setting unless such placement is consistent with the individual's informed choice. For individuals in the target population not served in their own home or their family's home, the number of individuals served in a host home as defined by Georgia law shall not exceed two, and the number of individuals served in any congregate community living setting shall not exceed four.

Compliance

Of the 48 individuals reviewed in the sample, none were placed in host homes with more than two individuals or in congregate community living settings with more than four individuals. However, in 2 of the 48 cases reviewed, the individuals lived in residences adjacent to other individuals who had transitioned from a State Hospital.Lt is recommended that the Department review its expectations regarding siting in order to promote integration. The clustering of residences by providers does not foster opportunities for social interaction with non-disabled people.

LLL.A.2.b.iii(A)

Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Lndividual Service Plans, as required by the State's HCBS Waiver Program, that are individualized and person centered.

Compliance

Lndividual Service Plans were reviewed for the 48 individuals in the sample. The format used by the Department focused on the needs and preferences of each individual. Training in person-centered planning is required by the Department.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 10 of 89


Settlement Agreement Reference
LLL.A.2.b.iii(B)

Provision
Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, and other services identified in the Lndividual Service Plan.

Rating

Comments

Noncompliance

The review of 48 individuals found that critical supports were missing. Lndividual reviews were referred to the Department due to rights violations, unsanitary environments, inadequate staffing, unsatisfactory day programs, psychotropic drug use and other concerns. The Department has been responsive and is issuing corrective action plans.

LLL.A.2.b.iii(C)

Monitoring the Lndividual Service Plan to make additional referrals, service changes, and amendments to the plans as identified as needed.

Noncompliance

Although there were Support Coordinators assigned to each individual in the sample, as noted above, needed supports were found to be lacking. Department staff have been working with the Lndependent Reviewer to address these concerns and appropriate corrective actions are being taken as a result.

By July 1, 2012, the State will have six LLL.A.2.c.i(A) mobile crisis teams for persons with
developmental disabilities.

There are 12 mobile crisis teams. According to the Compliance Department's data, there were 806 mobile crisis team
calls responded to across all Regions.

By July 1, 2012, the State will have five Crisis Respite Homes for individuals with LLL.A.2.c.ii(B)(1) developmental disabilities.

Compliance

There are 11 Crisis Respite Homes, including one for children. One individual in the sample of 48 was reviewed in his crisis home; supports were adequate and individualized.

LLL.A.4.b

By the Effective Date of this Agreement, the State shall use a CMS approved Quality Lmprovement Organization ("QLO") or QLO-like organization to assess the quality of services by community providers.

Compliance

The Department utilized the services of the Delmarva Foundation to design and implement a quality assurance review process. The work of Delmarva was expanded to conduct person centered reviews (PCR) of individuals leaving State Hospitals. Delmarva also assesses the quality of services by community providers. The Department participates in the National Core Lndicator surveys. The Lndependent Reviewer has reviewed these reports.

LLL.A.4.d

The State shall assess compliance on an annual basis and shall take appropriate action based on each assessment.

Compliance

The Delmarva Foundation issues annual reports assessing the quality of services by community providers for individuals with a developmental disability. The most recent report has been completed and is in the process of being posted on the Department's website.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 11 of 89


Settlement Agreement Reference
III.B.1.c

Provision

Rating

Comments

Pursuant to the Volntary Compliance

At the time the Settlement Agreement was signed,

Agreement with Health and Human

there were 27 individuals on the Olmstead ListA All of

Services, the State established a Mental

these individuals were discharged from the State

Health Olmstead ListA The State shall

Hospitals and were provided community servicesA

ensure that all individuals on the Mental

Health Olmstead List as of the Effective

Date of this Agreement will, if eligible for

services, receive services in the community

in accordance with this Settlement

Agreement by July 1, 2011A The Parties

acknowledge that some individuals on the Mental Health Olmstead List are required Compliance

to register as sex offenders pursuant to

OACAGAAA § 42-1-12 et seqA The Parties

further acknowledge that such registration

makes placement in the community more

difficultA The Parties may by written

consent extend the application of the date

set forth in this paragraph as it applies to

such individualsA The written consent

described in this paragraph will not require

Court approvalA

III.B.2.a.i(G)

All ACT teams will operate with fidelity to the Dartmouth Assertive Community Treatment model.

Not scored

The Parties, with concurrence by the Independent Reviewer, requested that the Court defer evaluation of this provision. The Court approved this request on August 29, 2012 with explicit instructions regarding reporting, root cause analysis and corrective action plans. These instructions are being complied with by the Department with close involvement of the Independent Reviewer and her expert consultants.

By July 1, 2011, the State shall have 18 III.B.2.a.i(H)(1) Assertive Community Treatment teamsA

The Department has funded 18 Assertive Community Compliance Treatment teamsA

By July 1, 2012, the State shall have 20 Assertive Community Treatment teams.
III.B.2.a.i(H)(2)

Not scored

The State has funded 20 Assertive Community Treatment teams. However, change in the composition of the teams is underway. The Department is proceeding with remedial action as required by the Court's Order and with consultation by the Independent Reviewer, the Department of Justice and other interested stakeholders.

By July 1, 2012, the State will have two Community Support Teams. III.B.2.a.ii(C)(1)
By July 1, 2011, the State will have one III.B.2.a.iii(D)(1) Intensive Case Management teamA
By July 1, 2012, the State will have two III.B.2.a.iii(D)(2) Intensive Case Management teams.

Compliance

The State has established two Community Support Teams. Although one team was transferred to another provider beginning in FY13, both teams functioned and provided services from the time of their contract. The two teams supported a total of 71 individuals in FY12.

The Department has established two Intensive Case Compliance Management teamsA

The Department has established two Intensive Case Compliance Management teams. The two teams supported a total
of 387 individuals in FY12.

By July 1, 2012, the State will have five III.B.2.a.iv(C)(1) Case Management service providers.

The Department has established five Case Compliance Management service providers. Case Management
services were provided to 257 individuals in FY12.

The State will establish one Crisis III.B.2.b.ii(B)(1) Stabilization Program by July 1, 2012.

The Department has established two Crisis Compliance Stabilization Programs.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 12 of 89


Settlement Agreement Reference
III.B.2.b.iii(A)

Provision
Beginning on July 1, 2011, the State shall retain funding for 35 beds in non-State community hospitals without regard as to whether such hospitals are freestanding psychiatric hospitals or general, acute care hospitals.

Rating Compliance

Comments
The Department has funded hospital bed days in five community hospitals.

III.B.2.b.iv(A)

The State shall operate a toll-free statewide telephone system for persons to access information about resources in the community to assist with a crisis (�Crisis Call Center"). Such assistance includes providing advice and facilitating the delivery of mental health services.

Compliance

The Georgia Crisis and Access Line operated by Behavioral Health Link provided these services.

III.B.2.b.iv(B)

The Crisis Call Center shall be staffed by skilled professionals 24 hours per day, 7 days per week, to assess, make referrals, and dispatch available mobile services. The Compliance Crisis Call Center shall promptly answer and respond to all crisis calls.

The Georgia Crisis and Access Line complied with these requirements.

By July 1, 2011, the State will provide a III.B.2.c.ii(B)(1) total of 100 supported housing beds.

Although the Department provided the requisite
Compliance housing vouchers, concern was noted about the review of eligibility and access for hospitalized individuals.

By July 1, 2012, the State will provide a total of 500 supported housing beds.
III.B.2.c.ii(B)(2)

The State has exceeded this obligation. (See Consultant's report.) The Department awarded 648 housing vouchers and reassessed its prioritization for Compliance these awards. Further collaboration is planned between the Independent Reviewer and the Department to further analyze referrals for the housing vouchers.

By July 1, 2011, the State will provide Bridge Funding for 90 individuals with SPMI. The State will also commence taking III.B.2.c.ii(C)(1) reasonable efforts to assist persons with SPMI to qualify in a timely manner for eligible supplemental income.

Compliance

The Department provided Bridge Funding as required.

By July 1, 2012, the State will provide III.B.2.c.ii(C)(2) Bridge Funding for 360 individuals with
SPMI.

The State has exceeded this obligation. (See Compliance Consultant's report.) The Department provided Bridge
Funding for 568 individuals.

III.B.2.d.iii(A)

By July 1, 2011, the State shall provide Supported Employment services to 70 individuals with SPMI.

Compliance

The Department provided Supported Employment services to more than 70 individuals with SPMI. Since individuals were assigned to the Supported Employment providers in May, only eight were employed by July, 2011. A higher rate of employment will be expected next year.

By July 1, 2012, the State shall provide Supported Employment services to 170 individuals with SPMI.
III.B.2.d.iii(B)

The Department has met this obligation. Supported Employment services were provided to 181 individuals as of June 30, 2012. (See Consultant's report.) A Memorandum of Understanding has been signed Compliance between DBHDD and the Department of Vocational Services. The Department is in the process of preparing a written plan, with stakeholder involvement, regarding the provision of Supported Employment.In FY12, 51 individuals gained competitive employment.

By July 1, 2012, the State shall provide
III.B.2.e.ii(A) Peer Support services to up to 235 individuals with SPMI.

There are 3000 consumers enrolled; there are 72 Peer Compliance Support sites in Georgia.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 13 of 89


Settlement Agreement Reference
III.C.1
III.C.2
III.C.3.a.i III.C.3.a.ii

Provision

Rating

Comments

Individuals under the age of 18 shall not be admitted to, or otherwise served, in the State Hospitals or on State Hospital grounds, unless the individual meets the criteria for emancipated minor, as set forth in Article 6 of Title 15, Chapter 11 of the Georgia Code, O.C.G.A. §§ 15-11-200 et seq.

Noncompliance

Compliance is expected in Fall, 2012. One child has been placed in a host family and is doing well; the second placement has been delayed due to the health status of the individual. However, placement plans are proceeding pending her recovery. The third individual is medically unstable and cannot be moved.

Individuals in the target population with developmental disabilities and/or serious and persistent mental illness shall not be transferred from one institutional setting to another or from a State Hospital to a skilled nursing facility, intermediate care facility, or assisted living facility unless consistent with the individual's informed choice or is warranted by the individual's medical condition. Provided, however, if the State is in the process of closing all units of a certain clinical service category at a State Hospital, the State may transfer an individual from one institutional setting to another if appropriate to that individual's needs. Further provided that the State may transfer individuals in State Hospitals with developmental disabilities who are on forensic status to another State Hospital if appropriate to that individual's needs. The State may not transfer an individual from one institutional setting to another more than once.

Compliance

There was no evidence of inappropriate transfers from one institution to another. Pending the anticipated closure of Central State Hospital, two individuals were transferred to another institution; they remain institutionalized. The first individual was transferred due to her immigration status. The second individual was transferred due to behavioral concerns. On July 2, 2012, he was reviewed by a psychologist consulting to the Independent Reviewer. Community placement plans are dependent on his stabilization and the identification of an appropriate provider.

By January 1, 2012, the State shall establish the responsibilities of community service boards and/or community providers through contract, letter of agreement, or other agreement, including but not limited to the community service boards' and/or community providers' responsibilities in developing and implementing transition plans.

Contract language delineates responsibility for developing and implementing transition planning.
Compliance

By January 1, 2012, the State shall identify qualified providers through a certified vendor or request for proposal process or other manner consistent with DBHDD policy or State law, including providers in geographically diverse areas of the State consistent with the needs of the individuals covered by this Agreement.

This provision has been implemented. Compliance

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 14 of 89


Settlement Agreement Reference IIILCL3LaLiii
IIILCL3LaLiv
IIILCL3LaLv IIILCL3LaLvi IIILCL3Lb
IIILDL1

Provision

Rating

Comments

By January 1, 2012, the State shall perform a cost rate study of provider reimbursement ratesL

The cost rate study has been completed and is under Compliance advisement by the CommissionerL

By January 1, 2012, the State shall require community service boards and/or community providers to develop written descriptions of services it can provide, in consultation with community stakeholdersL The community stakeholders will be selected by the community services boards and/or community providersL

Compliance

Two websites have been developed to provide comprehensive information and description of statewide servicesL Individual community service boards have information on their websites regarding servicesL Stakeholders are included on the community services boardsL

By January 1, 2012, the State shall require and/or provide training to community service boards and/or community providers so that services can be maintained in a manner consistent with this AgreementL

Compliance

There are bi-monthly provider meetings for each regionL Additionally, the Department hosts two meetings per year; the Regional Offices provide technical assistance; Delmarva meets with providers and provides technical assistanceL

By January 1, 2012, the State shall utilize contract management and corrective action plans to achieve the goals of this Agreement and of State agenciesL

Evidence of compliance is documented by the actions taken to review ACT servicesL Compliance

Beginning on January 1, 2012 and on at least an annual basis, the State shall perform a network analysis to assess the availability of supports and services in the communityL

Not scored

Pending review of the Quality Management systemL Under the Court's August 29, 2012 Order, the Department's provisional Quality Management system report is not scheduled to be submitted until October 1, 2012L The State's semi-annual Quality Management reports begin on February 1, 2013, and the Quality Management system will be reviewed in more detail in next year's monitoring reportL

By July 1, 2011, the State shall have at least one case manager and by July 1, 2012, at least one transition specialist per State Hospital to review transition planning for individuals who have challenging behaviors or medical conditions that impede their transition to the community, including individuals whose transition planning team cannot agree on a transition plan or does not recommend that the individual be dischargedL The transition specialists will also review all transition plans for individuals who have been in a State Hospital for more than 4S daysL

Compliance

Case Managers and Transition Specialists were assigned at each State HospitalL There is evidence that individuals with challenging behaviors and medical conditions are being referred to and placed in community settingsL The discharge planning for individuals in forensic units requires further reviewL

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 15 of 89


Settlement Agreement Reference
III.D.3.a
III.D.3.b
III.D.3.c
III.D.3.d IV IV.A

Provision

Rating

Comments

For persons identified in the developmental disability and mental illness target populations of this Settlement Agreement, planning for transition to the community shall be the responsibility of the appropriate regional office and shall be carried out through collaborative engagement with the discharge planning process of the State Hospitals and provider(s) chosen by the individual or the individual's guardian where required.

There was evidence of coordination between the Regional Office and State Hospital. Reorganization of this responsibility is under consideration by the new Commissioner of DBHDD. The Independent Reviewer has been apprised of these discussions.
Compliance

The regional office shall maintain and provide to the State Hospital a detailed list of all community providers, including all services offered by each provider, to be utilized to identify providers capable of meeting the needs of the individual in the community, and to provide each individual with a choice of providers when possible.

Compliance

The Regional Offices provided a list to the State Hospitals of all community providers.

The regional office shall assure that, once identified and selected by the individual, community service boards and/other community providers shall actively participate in the transition plan (to include the implementation of the plan for transition to the community).

Compliance

In the sample reviewed, there was evidence of participation by community providers.

The community service boards and/or community providers shall be held accountable for the implementation of that portion of the transition plan for which they are responsible to support transition of the individual to the community.

Compliance

Once problems were identified, community service boards and/or community providers were held accountable. The failure to identify problems has been evaluated under Service Coordination.

Quality Management By January 1, 2012, the State shall institute a quality management system regarding community services for the target populations specified in this Agreement. The quality management system shall perform annual quality service reviews of samples of community providers, including face-to-face meetings with individuals, residents, and staff and reviews of treatment records, incident/injury data, and key-indicator performance data.

Partial Compliance

The Quality Management system has been initiated by DBHDD. Delmarva performs annual quality service reviews as required for individuals with developmental disabilities. As evidenced by its updated plan of July 1, 2012, the Department is proceeding to refine its Quality Management system for Behavioral Health. Pursuant to the Court's Order of August 29, 2012, reporting on the Quality Management system has been extended until February 1, 2013.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 16 of 89


Settlement Agreement Reference
IV.A.1 IV.A.2
IV.A.3
IV.A.4
IV.B
IV.C
IV.E

Provision

Rating

Comments

The system's review shall include the implementation of the plan regarding cessation of admissions for persons with developmental disabilities to the State Hospitals. The system's review shall include he service requirements of this Agreement.
The system's review shall include the contractual compliance of community service boards and/or community providers.

Not scored Not scored Not scored

Under the Court's August 29, 2012 Order, the Department's provisional Quality Management system report is not scheduled to be submitted until October 1, 2012. The State's semi-annual Quality Management reports begin on February 1, 2013, and the Quality
Under the Court's August 29, 2012 Order, the Department's provisional Quality Management system report is not scheduled to be submitted until October 1, 2012. The State's semi-annual Quality Management reports begin on February 1, 2013, and the Quality Management system will be reviewed in more detail in next year's monitoring report.
Under the Court's August 29, 2012 Order, the Department's provisional Quality Management system report is not scheduled to be submitted until October 1, 2012. The State's semi-annual Quality Management reports begin on February 1, 2013, and the Quality Management system will be reviewed in more detail in next year's monitoring report.

The system's review shall include the network analysis.

Not scored

Under the Court's August 29, 2012 Order, the Department's provisional Quality Management system report is not scheduled to be submitted until October 1, 2012. The State's semi-annual Quality Management reports begin on February 1, 2013, and the Quality Management system will be reviewed in more detail in next year's monitoring report.

The State's quality management system regarding community services shall analyze key indicator data relevant to the target population and services specified in this Agreement to measure compliance with the State's policies and procedures.

Not scored

Under the Court's August 29, 2012 Order, the Department's provisional Quality Management system report is not scheduled to be submitted until October 1, 2012. The State's semi-annual Quality Management reports begin on February 1, 2013, and the Quality Management system will be reviewed in more detail in next year's monitoring report.

Beginning on July 1, 2012 and ending on July 1, 2014, the State's quality management system shall create a report at least once every six months summarizing quality assurance activities, findings, and recommendations. The State shall make them publicly available on the DBHDD website.
The State shall notify the Independent Reviewer(s) promptly upon the death of any individual actively receiving services pursuant to this Agreement. The State shall, via email, forward to the United States and the Independent Reviewer(s) electronic copies of all completed incident reports and final reports of investigations related to such incidents as well as any autopsies and death summaries in the State's possession.

Not scored Compliance

Under the Court's August 29, 2012 Order, the Department's provisional Quality Management system report is not scheduled to be submitted until October 1, 2012. The State's semi-annual Quality Management reports begin on February 1, 2013, and the Quality Management system will be reviewed in more detail in next year's monitoring report.
The Independent Reviewer and the United States were notified of deaths. Questions about deaths are being discussed with the Department. Under the direction of the DBHDD Medical Director, a community-based mortality review committee is being created and implemented. The protocol has been developed but not yet authorized.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 17 of 89

SUMMARY OF RECOMMENDATIONS

Based on the findings documented in the Summary of Compliance, the following recommendations are offered to the State for consideration as it continues its work into the next year:
1. Consider providing training to Department staff and providers on "social role valorization" and more clearly articulate expectations regarding the standards for community placement. This values-based training focuses on developing and sustaining community membership for individuals who have been denied opportunities for meaningful participation in their communities. As the Department continues to establish new community-based services and supports, such values-based training could be helpful in designing and ensuring maximum opportunity for interaction with non-disabled people.
2. It is recommended that the Department examine the reasons why host homes are not used more frequently for community placements. As demonstrated by current and past site visits, host home placements generally afforded increased individualization and greater likelihood of social integration.
3. Consider strategies to more clearly articulate and document the plan for sustaining the structural and programmatic accomplishments resulting from the Settlement Agreement.
4. In order to ensure equality of access for all individuals in the target groups, work with the Independent Reviewer to analyze referral of supported housing vouchers and Bridge Funding.
5. In conjunction with the Independent Reviewer, review the long-term arrangements for ensuring the availability of housing resources in each of the next three years.
6. In collaboration with the Independent Reviewer, determine if further clarity is needed to ensure that the "ineligibility for any other benefits" is uniformly understood and applied to all applicable benefits.
7. In conjunction with the Independent Reviewer, review any potential barriers to community placement for individuals awaiting discharge from forensic units.
8. Consider the use of housing vouchers for individuals with developmental disabilities placed under the Settlement Agreement.
9. Develop, with stakeholder input, a written plan regarding the implementation of Supported Employment services.
10. Share the findings of the cost rate study, as well as the data and the calculation process used to complete this study, with providers and other stakeholders.
11. Review training curriculum to ensure that all of the defined principles of evidence-based Supported Employment are addressed. Provide access to trainers who can model skills for employment specialists. Specific and explicit fidelity expectations and expectations related to employment outcomes should be revisited with Supported Employment providers.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 18 of 89


12. Consider convening Supported Employment coalition meetings in rotating Regions across the State so that providers have the opportunity to attend some meetings in person.
13. Ensure that the outcomes from corrective action plans resulting from critical incidents are transmitted promptly to the Independent Reviewer and the Department of Justice.
14. Ensure that consents for psychotropic and other medications are documented prior to transition from State Hospitals.

DISCUSSION OF COMPLIANCE FINDINGS
Methodology
For each compliance requirement, the Department of Behavioral Health and Developmental Disabilities was asked to provide data and documentation of its work. The Department's progress in meeting the provisions of the Settlement Agreement was reviewed in work sessions and Parties' meetings throughout the year; through discussions with providers and community stakeholders; and through site visits to community residences, day programs, Supported Employment programs, supported apartments, Assertive Community Treatment team sites, county jails and shelters for homeless individuals.
Expert consultants were retained to assist with the review of a random sample of forty-eight individuals with a developmental disability who were placed from State Hospitals into the community. In April, in preparation for these reviews, the Department and the Independent Reviewer revised and agreed upon the monitoring tool previously utilized in the Report for Year One. A section on behavioral supports was developed and added to the monitoring tool.
The random sample of forty-eight individuals had a confidence level of 90%. A proportional random sampling method was used to ensure representation across all Regions.
The reports issued from the reviews of the individuals in the sample have been distributed to the Parties. The Department of Behavioral Health and Developmental Disabilities is in the process of analyzing these reports and has instructed its Regional staff to take corrective actions, as appropriate.
A nurse consultant to the Independent Reviewer reviewed the plans for the placement of two of the three institutionalized minors. (The third young woman is medically unstable and cannot be moved at this time.) She worked closely with Department staff to assess the requirements for a successful transition and visited the youngest individual after she moved in with her host family. The second placement was anticipated in September but has been delayed due to the individual's recent illness. However, the plans for this placement continue to move forward in anticipation of her recovery.
Two expert consultants were retained to assist the Independent Reviewer in evaluating the Department's compliance with the Settlement Agreement provisions regarding Supported Employment,

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 19 of 89


Supported Housing and Bridge Funding. The State Health Authority Yardstick (SHAY), a tool developed at Dartmouth University, was used for the evaluation of Supported Employment services provided under the Settlement Agreement. The reports from each of these evaluations have been provided to the Parties.
A third expert consultant was retained to document the Department's progress in establishing Assertive Community Treatment (ACT) teams. Her report has been shared with the Parties. Although the Department's efforts are proceeding with due diligence, it became evident that additional time and guidance was needed to ensure adherence to the expected standards by all teams. Consequently, the Parties, with concurrence of the Independent Reviewer, requested that the Court approve an extension of the timelines for the evaluation of this provision. For similar reasons, an extension was requested for the review to be conducted by the Independent Reviewer regarding the implementation of the Quality Management system. A status conference regarding these motions was held before the Honorable Charles A. Pannell, Jr., on August 28, 2012.
The Court's Order was issued on August 29, 2012. In part, it affirms that all ACT teams will operate with fidelity to the Dartmouth Assertive Community Treatment model. In order to provide the State with the flexibility to correct any perceived deficiencies in the ACT teams required to be created under the Settlement Agreement, it mandates that the Independent Reviewer shall examine and review the performance of the ACT teams by July 1, 2012, but that any determination regarding compliance with the fidelity standards be deferred until July 1, 2013. In addition, the State is required to conduct a root cause analysis of any perceived deficiencies in the ACT teams and to develop a corrective action plan, including timelines. Quarterly reporting on the corrective action plan is required until July 1, 2013. In addition to the above directives, the Court ordered that the State provide an updated Quality Management Plan by July 1, 2012 (this was completed as required); issue a provisional quality management system report by October 1, 2012, that is not subject to review by the Independent Reviewer; and, beginning February 1, 2013, and at least once every six months thereafter until February 1, 2015, create a report summarizing quality assurance activities, findings and recommendations. All Quality Management reports are to be made publicly available on the Department's website.
Finally, as stipulated in the Settlement Agreement, this report was provided in draft form to the Parties for review and comment prior to submission to the Court. A meeting to discuss the draft report was held on August 27, 2012. The thoughtful comments provided by the Parties have been seriously considered in the finalization of this report and modifications to the draft report have been made as thought appropriate.
Review of Obligations for Year Two
A. Serving People with Developmental Disabilities in the Community
1. Enhancement of Community Services
The State documented that 164 individuals with a developmental disability were transferred from State Hospitals, primarily Central State Hospital, during the past year. (The ICFjMR unit at Central State was

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 20 of 89


closed in June 2012.) In addition, documentation was provided to confirm that additional Home and Community-Based Waiver Services were provided to 117 individuals with a developmental disability and that 2248 individuals with a developmental disability were provided family supports in order to avoid institutionalization.
The data and documentation provided confirm that the Department has exceeded the numerical targets of the Settlement Agreement. The Department's leadership and staff are to be commended for their efforts and for their diligence in ensuring that the compliance requirements were a continuing focus of their responsibilities.
However, the Settlement Agreement also requires that the community placements be appropriately supported by services that are individualized according to the person's strengths and needs. In order to evaluate the individualization, community integration and appropriate supports of the community placements accomplished under the terms of the Settlement Agreement, a sample of forty-eight individuals was selected from the Department's list; a proportional random sampling method was used to ensure representation across the six Regions of the Department of Behavioral Health and Developmental Disabilities.
The individuals in the random sample were predominately male (63%); between the ages of 51-60 (31%); and ambulatory without support (42%). Wheelchairs were required by 31% of the individuals in the sample. Very few individuals (4%) could speak without assistance. The plurality of individuals reviewed expressed themselves through vocalizations (29%).
Forty of the individuals in the sample were placed into group home settings. Host homes were identified for only three of the individuals and supported apartments were used for three individuals. One individual was placed in a crisis respite home; one individual was hospitalized and his residence was under review.
It is recommended that the Department examine the reasons why host homes are not used more frequently for community placements. As demonstrated by current and past site visits, host home placements generally afforded increased individualization and greater likelihood of social integration.
The majority of residential settings were located near community resources, in typical neighborhoods (94%). There were no more than four individuals in any of the residences reviewed for this report. (All placements reviewed met this requirement of the Settlement Agreement.) There were few problems noted with access to transportation. The majority of the individuals reviewed (63%) had the opportunity to attend religious activities. Despite these advantages, however, the findings regarding social integration had not improved significantly from last year's reviews. Although most individuals (85%) experienced weekly community outings, most (70%) went out with their housemates as a group. Virtually none (10%) belonged to community organizations or clubs. Nearly half (48%) had not met their neighbors.
The Department is strongly encouraged to intensify its training of community providers to ensure that maximum opportunities to interact with non-disabled people are available to individuals under their

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 21 of 89

responsibility. Training in social role valorization would be a valuable addition to the Department's training curriculum.
In addition to the above referenced issues about integration into the local community, continuing concerns were noted regarding the lack of consent for psychotropic medications. Twenty-four individuals were prescribed these powerful drugs; documentation of informed consent was lacking for 63% of the individuals.
The Department of Behavioral Health and Developmental Disabilities was informed promptly of the most critical issues documented during the individual reviews. The Department responded promptly and initiated its own reviews and the development of corrective action plans, as appropriate. Furthermore, as a result of last year's findings, the Department commendably expanded its contract with the DelMarva Foundation to conduct Person-Centered reviews of all individuals placed under the Settlement Agreement. The Independent Reviewer was provided copies of these reviews; the findings generally concur with her own assessments.
The Department's continued cooperation and oversight of community placement decisions and implementation at the Regional level is critical to removing the documented barriers to integration and habilitation.
B. Serving Persons with Mental Illness in the Community
In reviewing the actions taken to comply with this Section of the Settlement Agreement, two expert consultants were retained by the Independent Reviewer to assess and evaluate the implementation of supported employment and supported housing. The State's progress in implementing the requirements of Assertive Community Treatment (ACT) was documented by a third expert consultant. However, the provisions regarding ACT fidelity were not evaluated, pending the Court's approval of an extension of this timeline. The reports from the three experts have been provided to the Parties and are attached to this report. Discussions about supported housing, supported employment and Assertive Community Treatment have continued with the Department of Behavioral Health and Developmental Disabilities. Plans have been initiated for the ongoing review, by the expert consultants, of supported employment and Assertive Community treatment. It has been recommended that the Department work with the Independent Reviewer, over the next six months, to conduct a thorough analysis of the referral mechanisms to the supported housing vouchers. The availability of relevant data needs to be determined before such an analysis can be initiated. This recommendation will complete and strengthen work commenced during this past reporting period.
Intensive Services for Individuals with Severe and Persistent Mental Illness
1. Assertive Community Treatment (ACT):
The Settlement Agreement requires that all ACT teams will operate with fidelity to the Dartmouth Assertive Community Treatment model.

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During this past fiscal year, repeated discussions were held with Department staff regarding the implementation of ACT services in compliance with the terms of the Settlement Agreement. Due to interventions and corrective action plans implemented by the Department, in order to ensure fidelity to the requisite standards, the Parties requested and the Court approved, with conditions, an extension of the timeline for evaluation of compliance with ACT services. Although evaluation of compliance was not scored, the report of the expert consultant was completed after extensive review of data and discussion with key Departmental staff, providers from four ACT teams, and interested stakeholders. Since the submission of this expert consultant report, the Department has provided comments and has outlined its plans for ensuring adherence to the fidelity standards. The Department and the Independent Reviewer have agreed upon a schedule for ongoing discussion with the expert consultant. In addition, the Department has moved forward with responding to the Court's recent Order. A root cause analysis of any perceived deficiencies in the performance of the ACT teams has been drafted and is being finalized. The Independent Reviewer and her expert consultant have been consulted about the root cause analysis and have been requested to review the corrective action plan. A meeting to discuss both the root cause analysis and the corrective action plan has been scheduled for October 1, 2012. The amici have been invited to participate in this discussion.
2. Housing Supports
As of July 1, 2012, the State was to provide a total of 500 supported housing beds for individuals with serious and persistent mental illness who are in the target population. Bridge Funding was to be provided to 360 individuals. As confirmed by the findings of the expert consultant to the Independent Reviewer, the State has more than exceeded these obligations. There were 648 housing vouchers awarded and Bridge Funding was provided to 568 individuals. Site visits in the Atlanta area and in Macon demonstrated that the apartments were in typical apartment complexes and that appropriate case management and ACT services were being provided to the individuals with housing vouchers. There was evidence of flexibility in order to meet individualized needs; one woman was given funding for a twobedroom apartment so that her child could be reunited with her. The innovative design of the housing voucher program and its oversightjmanagement is to be commended.
The expert consultant continued to caution that there must be attention to infrastructure, capacity building, and collaborative action with housing agency partners and community agencies, if future housing targets are to be achieved.
The attached expert consultant's report was discussed with the Parties on August 27, 2012. In response, in part, the Department stated that it had conducted a thorough review of the supported housing program after the first few months of its operation. One significant change was the establishment of a priority that states: " DBHDD will provide a priority for those that meet the standards under Tenant Eligibility and those that are transitioning from a state supported hospital or Crisis Stabilization Unit, transitioning from a DBHDD supported intensive residential treatment facility (only when that slot will be occupied by an individual transitioning from a state supported hospital or Crisis Stabilization Unit) and meet the clinical criteria for Assertive Community Treatment services." This prioritization is an important issue and requires further analysis. Discussions have begun with the Department staff as to

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how data about referrals to supported housing could be collected and analyzed. It is intended that a collaborative effort between the Department and the Independent Reviewer be initiated within the forthcoming year.
3. Supported Employment
As required in this phase of the Settlement Agreement, there were to be 170 individuals provided with supported employment opportunities in Year Two. The State provided such services to 181 individuals.
As documented by the expert consultant to the Independent Reviewer, the Department, and its new staff leadership in adult mental health services, has made substantial strides in implementing this service component in compliance with fidelity standards. The findings of the expert consultant are detailed in his attached report.
The consultant again utilized the State Health Authority Yardstick (SHAY) to measure the State's commitment to supported employment, its training and technical assistance efforts, and its quality assurance efforts. This year's score shows a significant improvement. With sustained efforts as those demonstrated this past year, it is expected that the Department can meet, and even surpass, the national average score for states participating in the Substance Abuse and Mental Health Services National Implementing Evidence-based Practices Project.
The report offers several recommendations for consideration, including the development of a plan for this Evidence-Based Practice; input from stakeholders in the planning process was encouraged. Other recommendations include investing in workforce training and consultation and addressing the lack of outcomes related to supported employment on a system-wide basis.

CONC�USION
The State, through its Department of Behavioral Health and Developmental Disabilities, has demonstrated good faith and commitment in its implementation of the Year Two obligations under the Settlement Agreement. The State Legislature continued to approve the funding essential to the development of the requisite programs. The Department of Community Health was accessible to and responsive in its engagement with the Independent Reviewer.
As recognized in this Report, a number of very notable achievements have occurred during this second year of the Settlement Agreement. The former and current leadership of the Department of Behavioral Health and Developmental Disabilities wasjis cognizant of the successes and mindful of the challenges to be faced in Year Three.
Many of the challenges facing the Department are consistent with those articulated in last year's Report. Individuals with developmental disabilities are entitled to be transferred from state hospitals into integrated community settings where those opportunities are maximized in a meaningful and individualized manner. The implementation of appropriate host home settings will benefit their

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 24 of 89

integration and acceptance into their neighborhoods and their communities. The failures to provide meaningful and adequate day programming, to fully monitor health care, and to obtain informed consent for psychotropic medications and behavioral support plans again were noted for some of the individuals placed from the State Hospitals into community settings under the terms of this Settlement Agreement. These concerns have been brought to the attention of the Department of Behavioral Health and Developmental Disabilities; corrective actions have been identified and are in the process of being implemented.
Challenges still remain in the development of supported housing and supported employment; these challenges can affect compliance with the Settlement Agreement in the future. It is hoped that the Department will work closely with the Independent Reviewer to analyze whether the referral process to supported housing is working in an equitable manner; whether obstacles to discharge are being removed for individuals who are stable but placed in forensic units at the state hospital; and to determine whether individuals with a developmental disability can access housing vouchers.
In closing this Report, it seems critical to repeat the conclusion from the Report for Year One:
In drafting the language of the Settlement Agreement, the Parties stated their intent that "the principle of self-determination is honored and that the goals of community integration, appropriate planning and services to support individuals at risk of institutionalization are achieved." This statement of intent is entirely consistent with the goal of the Commissioner of the Department of Behavioral Health and Developmental Disabilities that a continuum of services be reasonably accessible to every Georgian with a disability.
In this second year, the State again has demonstrated that it can and will honor its obligation to comply with the substantive provisions of the Settlement Agreement. The Year ahead must be characterized by further attention to qualitative measures and to the strategies and actions required to sustain these systemic changes.
Respectfully Submitted,
jsj
Elizabeth Jones, Independent Reviewer
September 20, 2012

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Review of Assertive Community Treatment (ACT) Services
 United States v. Georgia Settlement Agreement 
 Report Date: September 15, 2012 
 Angela L. Rollins, Ph.D. 

Purpose
This site visit and report was requested by Elizabeth Jones, Independent Reviewer, to help document Georgia’s implementation of Assertive Community Treatment (ACT) in the second year of the Settlement Agreement period. The visit took place July 16-19, 2012. Because the State has made several major changes to ACT contracts recently, the purpose of my assessment was limited to documenting how the remaining teams are functioning with respect to the Dartmouth Assertive Community Treatment Scale (DACTS), rather than completion of the State Health Authority Yardstick (SHAY). The DACTS is the current standard for measuring fidelity to the ACT model and is used widely by mental health authorities, both domestically and internationally. In a few instances, meetings with State mental health authority officials or providers highlighted some State progress in ACT implementation that I make note of briefly in an effort to reinforce positive progress. I also include some observations from a visit to the Fulton County Jail in Atlanta regarding mental health services.
Methods
Brief DACTS Assessments
I visited two ACT teams inside the metro-Atlanta area and conducted telephone interviews with program leaders from two other ACT programs outside metro-Atlanta. Each assessment was intended to roughly follow the DACTS team leader interview items to collect information related to ACT implementation. During each of the two team site visits, I was also able to review five charts each and any readily available team recordkeeping or reports. I also viewed the team’s general work areas. At one agency, the interview took place in the team conference room with the team’s whiteboard of caseload information available for viewing (e.g., consumers hospitalized or in jail, consumers scheduled to see the psychiatrist, consumers exhibiting risk behavior and requiring close monitoring). Because I was not able to conduct a thorough DACTS assessment following established protocols, I intentionally avoid scoring DACTS items
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and instead detail information on model elements qualitatively. Staff from all four teams were very generous with their time and very open in describing their team’s successes and struggles. An individual item-level report for each participating team is included at the end of this report.
Interviews, Meetings, and Observations
The site visit also included: a meeting with the new Director of Adult Services for DBHDD who took over the position in Fall 2011; a visit to the Fulton County Jail in Atlanta and discussion with the Medical Services Director and Mental Health Director; a meeting of mental health stakeholders; and an exit meeting with DBHDD staff regarding our preliminary thoughts and observations during the site visit.
Themes from brief DACTS Assessments
Teams seem to have clear understanding of ACT standards and are working toward improvements in areas of weakness. The downtown Atlanta team reported being inundated with referrals -- sometimes 20-25 per month. When asked if these referrals are all appropriate, the team leader reported that his impression is that, with occasional exceptions, most are consumers who could benefit from ACT. The perplexing issue with this team is that they are still only at 65 total consumers, even though they are staffed for 100 and have this extremely high rate of referrals. The team is enrolling six consumers each month (the maximum recommended by the DACTS standards), but they are also losing many consumers each month, so they are gaining no traction in building their caseload. Program managers have a few ideas about the core problems involved and are thinking about the issues. The program manager suggested that being allowed more intakes each month might help. (In my opinion, this may simply cause more problems with higher dropout rates, as the team will not be capable of engaging more than six consumers each month.) As another example, the team stated that they are making greater efforts to document informal support network contacts at intake so, when consumers “disappear,” the team has a social network to contact to try to locate the person. Despite these ideas and strategies, the team may also need some extra help in strategizing how to better engage the consumers already on their caseload. Taking more than six clients each month would probably not help. The urban teams with consumers
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exhibiting high rates of hospitalization, homelessness, and incarceration may need some extra help in coordinating care. They even stated that they feel like a “Jail ACT” team, even though they are not this type of team in any official capacity. It might be wise to help them to think more like a Jail ACT team – they already have three substance abuse specialists, which is a smart and needed use of clinical staff positions. Recommendation: Some technical assistance at the team level to perform root cause analysis of drop-outs might be helpful. If the issue reveals, for instance, that consumers are eloping out of Atlanta in search of housing, then finding better ways to address housing needs at intake would become a very important strategy. The team also noted that they have closed some consumers after thirty days or six weeks of being out of contact or poorly engaged, only to have them present again a few weeks later after the chart for the person had been closed. Having to re-enroll them seems inefficient since it requires so much documentation. I would recommend a much longer timeframe for attempting contact before closing the chart. Some states require three or even six months of attempts prior to closing. Six months might be a little long and open agencies up to liabilities, but three months seems like a reasonable standard as a strategy for this particular team. An analysis of whether Atlanta needs more ACT “slots” should also be examined, but focusing on existing teams seems a prudent first step.
Teams are all doing well on crisis coverage and most are attempting to be involved in hospital admissions and discharges, from Team Leader self-report. Teams did report very different results with different hospitals. Some hospitals are difficult to contact to coordinate care. One team outside Atlanta had a couple of significant cases where a private hospital refused to coordinate with them, first citing HIPAA and then responding that the client was not there. In one case, the consumer was discharged to the street, re-offended in Atlanta, and transferred back to his home county jail for probation violation, where the team then learned of all this a year later. If the hospital had coordinated care, all these consequences might have been avoidable, in the team leader’s opinion. This team also cited another case where the team repeatedly tried to get in touch with the hospital social worker who stated the consumer would be released that day, but the team knew that the consumer’s personal care home family (he had lived there for years) was going on an outing, so they asked for the release the next morning. The hospital social worker’s response was to release the person to a completely new personal care home in Atlanta (not his home county). The team “begged” the hospital social worker not to do this – that “this was his home.” That situation resolved, but only because of
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persistence on the part of the team. Several other teams noted difficulties in communicating with hospitals. One team clearly noted differences between public and private hospitals, with private hospitals being much less cooperative. Recommendation: I recommend getting more information at a monthly ACT coalition meeting regarding these problems and working with hospitals and providers around possible barriers and solutions. Some helpful information regarding exceptions to HIPAA with regard to treatment can be viewed here: http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/usesanddisclosuresfortpo. html
High staff turnover seems to be a consistent theme for many of the teams, which can definitely impact program fidelity and team morale. Specialist positions seem to be the most common source of turnover and vacancy issues. Some teams are using contract workers to address staffing gaps and others are simply struggling with vacancies. Recommendation: This issue might require some thinking amongst the ACT coalition and stakeholders who know the issues at play in the Georgia service system workforce. With one team, we talked about possibilities such as hiring someone before all requirements are met and making the continuation of employment contingent on completing those requirements in a timely manner. What is unclear is whether this would be allowed within the current State standards.
General State-level Themes from Visit
Many teams cited the monthly coalition meetings as helpful.
All teams gave positive feedback regarding lengthening the ACT authorization periods from three-month to six-month authorizations. A couple of teams reported that changes to the continuing stay criteria were also helpful for keeping clients who needed ACT on ACT teams. A couple of teams mentioned that the documentation is still onerous for ACT authorizations. After talking with four teams in three regions, I did hear some reports of inconsistencies in interpretations of authorizations between “main office” APS staff who review and approve authorization requests and some APS staff doing audits in the field. One example given was that a consumer was authorized for ACT, but when the team was audited later by APS, the field auditor questioned the authorization. The team did not understand how they could be held responsible when it was a service already approved by APS. In this case, the auditor
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questioned whether the consumer needed ACT, based on the fact that the person had received private psychiatric services and had not received other less intensive core services before ACT. The team did not understand that any less intensive service attempts were required. I am not sure how this particular case should be resolved, but it might highlight the need for consistency and communication. A couple of the teams indicated they still struggled with documenting that a consumer met continuing stay criteria, while other teams reported having none of these issues. When I related that one team found that their APS staff were authorizing continuation of ACT services based on crisis episodes, another team felt that their auditors were not using the same criteria.
I was able to observe two DBHDD fidelity assessors performing a DACTS team leader interview during my visit. One assessor in particular seemed to be doing a thorough job and was careful to ask deliberate and helpful questions during the interview for clarifying and scoring the DACTS.
The new Director of Adult Mental Health Services advocated for and received some data analyst time to increase DBHDD’s attention to important ACT outcomes and other data. This is an important advance in the use of data for the teams. Data reporting required of each team has been expanded and the State provides team and state-level data on outcomes by both calendar time period and the consumer’s length of time in ACT.
During the stakeholders meeting, I mentioned the bi-monthly planning and advisory council meeting that the Director of Adult Mental Heath services described. Most in the group were unfamiliar with this council and continued to express a desire to be more involved in this sort of activity. Recommendation: Please attempt to engage this group of stakeholders by letting them know about meetings outside of the ACT Coalition meetings. There still seems to be a gap in communication. When I was referring to the bi-monthly meetings, it is possible I was using the wrong terminology. But even if that is the case, I continue to hear that stakeholders would like to be included in more dialogue with the State.
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Fulton County Jail visit 

Issues noted during the jail visit are common to the intersection of mental health and criminal justice, such as insufficient funding for re-entry planning and coordination (need outpaces staffing), resulting most critically in difficulty completing requirements to have Medicaid benefits turned back as soon as possible after release. The Fulton County jail has two FTE re-entry staff but large caseloads. Jail re-entry staff will start the process but the provider has to finish the Medicaid application process. The Mental Health Director at the jail also cited issues of multiple providers seeking authorization for services, resulting in confusion for everyone, including consumers and their families. Another barrier to re-entry coordination is the undetermined length of stay in jails so that releases cannot be carefully planned and some consumers are released in the middle of the night without notice. Even Mental Heath staff and re-entry staff in the jail have no way of predicting release in some cases. Another issue is that the jail does not have an automated way of crossing jail census and mental health service data. It may be useful to consider the work of Mark Heyrman at the University of Chicago Law School for state-level communications between corrections and the mental health authority. Cook County in Illinois has a similar system so that community mental health providers and jail censuses can be crossed for care coordination. Atlanta seems to be in need of something similar. The benefit would be that you could quickly see who has some mental health history in the jail and possibly look them up to begin re-entry planning right away, contacting the most recent community mental health provider to let them know where the consumer is located and what the situation looks like. During my brief DACTS assessments, I heard several instances where teams struggled to locate consumers, only to later find out they had been jailed. Some system to get all providers on the same page could improve re-entry planning and post-release care and improve recidivism rates. Recommendation: Please consider contacting Mark Heyrman to discuss their approach in Illinois and its potential usefulness in Georgia. (I did provide an email introduction to Heyrman for Judge Susan Tate, who expressed interest in the Illinois initiative). Another idea would be to determine if Atlanta has any kind of health information exchange and whether criminal justice systems have ever been linked to such resources. I have consulted my colleagues at the Regenstrief Institute in Indianapolis who are unaware of criminal justice healthcare providers being included in health information exchanges, but they are intrigued by the idea.
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Grady Team 1 Assessment Date: 7/16/12 Location: Region 3, Atlanta Sources Used: Five Charts reviewed, Team Leader interview

DACTS Item Areas
Comments/Observations

H1 Small Caseload

Very small caseloads

H2 Team Approach

Team strategically rotates staff seeing consumers. Three of five charts were for consumers hospitalized or in jail during all or part of the sample period,

resulting in minimal face to face contacts.

H3 Program Meeting

Team has daily team meeting, each consumer covered each time

H4 Practicing Team Leader

Current team leader (new hire) is spending most time in direct service, getting to know clients and observing staff. Well over 50% of her time is in direct

service, per the productivity report. Also noted multiple direct contacts in chart

review. New TL wrote good descriptive notes and seems to be very familiar

with application of MI and CBT to this population. Program manager served

as interim team leader and delayed hiring to find the “right” person. Seems

like a wise decision.

H5 Continuity of Staffing

Team has had five staff turnovers (out of fourteen positions, if you do NOT count psychiatry residents; fifteen if we do count them as a single “position”)

in last two years.

H6 Staff Capacity #vacancy months was unclear (I missed this part of the TL interview)

H7 Psychiatrist on Team has a 20 hour/week psychiatrist and uses four psychiatry residents from

Staff

Emory and Morehouse who rotate in and out (20 hours/week total for the

residents). The DACTS is silent about the use of student trainees, so we

have struggled with how to count staffing using students and residents in our

own work. In general, we tend to count them if the team leader considers

them a team member and they devote some block of time to direct service

provision (I think five hours a week is not ideal but maybe it could count). In

many ways, I appreciate the ability of academic-training institutions to expose

early-career physicians to community-based psychiatry programs like ACT.

This could be a critical recruiting mechanism for keeping psychiatrists in

community settings. But I also warn providers who use students that, when

we count them as staff, we also then should logically count them as staff

turnovers when they leave. If they are truly serving consumers, then the

consumer would experience some level of loss at the transition to a new

psychiatric provider.

H8 Nurse on Staff Team has one nurse (one vacant nurse position) so a little low on nursing

time currently – a CNS is helping as backup while trying to fill the vacant

nursing position.

H9 Substance Abuse Specialist on Staff

This team has three addiction specialists, which seems called for. They are serving a mostly dually disordered population (56/65) with multiple, complex needs related to mental health, substance abuse, and comorbid medical conditions.

H10 Vocational

Team has a vocational specialist

Specialist on

Staff

H11 Program Size Team has more than ten FTE and is ample to provide a range of

comprehensive services and coverage for the current caseload and for the

caseload to increase to 100.

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O1 Explicit Admission Criteria
O2 Intake Rate

Team does not deviate from the state’s criteria for ACT authorization. Referrals typically come from Grady Hospital inpatient (frequent readmissions), other hospitals, jails, public defenders, DeKalb crisis services, Georgia Regional State Hospital, and self-referrals. It is interesting to note that the program manager reports getting 20-25 referrals a month, many of whom meet ACT criteria, but the program is adhering to the 6 intakes/month DACTS element so they are often turning potential ACT consumers away. When the fidelity assessor asked about the barriers to reaching 100 client caseload, program manager cited the 6 intakes/month rule and also the high number of consumer discharges from the team during the past 12 months: ten returned to jail and were terminated from services, one died, five transferred to other ACT teams, 21 graduated (I did not verify proper coding), and 13 others dropped out (again, I did not verify coding). He also described some of the challenges in serving transient homeless populations and consumers in and out of the criminal justice system (clearly, this team is serving the “right” ACT clients who have intensive service needs). For instance, some consumers were enrolled in the program and would disappear before the team could really engage them. The dilemma with this situation is that if the team is already struggling to engage consumers with an intake rate of 6/month, increasing this intake rate would only make the engagement issue even worse. Team is currently focusing on getting more collateral contact information (e.g., family, friends, landlords, other services providers) up-front with new consumers. This is a great idea. It might be a good idea to focus some TA work with this team around strategically looking at these issues and possible solutions. 6/month mostly; one month, they took eight. See notes above.

O3 Full

No brokered services.

Responsibility

for Treatment

Services

O4 Responsibility Team carries 24/7 crisis responsibilities.

for Crisis

Services

O5 Responsibility I could not quantify this one but there seemed to be a significant group of for Hospital consumers who showed up at hospitals on their own, without involvement of Admissions the team

O6 Responsibility Team meets weekly with inpatient staff so coordination for discharge planning for Hospital is good in most cases.
Discharge

Planning

O7 Time-Unlimited Team experiences significant turnover of clients served, even graduations.
Services

S1 In-Vivo Services
S2 No Drop-Out Policy
S3 Assertive Engagement Mechanisms

Team is actively providing services in the community, almost exclusively in the community Team has many drop-outs -- this was a weak area acknowledged by the program manager and the team is actively looking for solutions. Team uses rep payee services but is usually not the payee themselves, has “lots” of contact with jail and probation/parole staff for clients involved in the criminal justice system including contact for three clients in jail on this assessment day. Program manager also routinely mentioned contacting consumers at shelters, in homes, and I saw a number of notes where the team was actively in the community trying to locate consumers. The program manager also reported increasing their contacts with family members and other supporters as a way to keep in touch with their client population that seems transient and easily slips in and out of service systems. Team also

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does some processing with consumers who are refusing or resistant to

services to see if switching clinicians or even switching ACT teams would help

to engage the person. When describing the length of follow-up with a

consumer who is refusing/resistant, the length of time was reported as roughly

a month or six-weeks, probably a little too short to engage this tough

population with propensity to be transient.

S4 Intensity of

In three charts, service intensity was fairly low. Weekly averages were 0, 12.5 mins,

Service

32.5 mins for three clients who were missing, hospitalized, and jailed during the

course of the two-week period. For the other two charts, the weekly average was 38.5

and 95.5 mins. The client with 38.5 mins had multiple medical problems but was also

refusing SA counseling services despite ample encouragement. The team seemed to

be struggling to engage four of the five people whose charts I reviewed – engagement

again showing up in this element of the model.

S5 Frequency of Contact

Findings for frequency were similar. Weekly contacts were 0, .5, 1, 1.5, 2. Three charts documented attempts to see the client yielding nothing, so attempts are being

made even though these numbers are low.

S6 Work with Support System

No quantitative data collected, but saw a number of instances in charts where the team, as well as the program manager, worked with family and landlords, specifically referencing working with families and other collateral contacts to

address client disappearances.

S7 Individualized With three SA counselors, the team provides much 1:1 substance abuse

Substance

work, though the content and frequency were unclear without interviewing

Abuse Treatment

these staff.

S8 Dual Disorder Dual group is offered weekly and attended by 3-6 clients out of approximately

Treatment

56 with co-occurring disorders. Engagement in this group is a work in

Groups

progress and complicated by the fact that many clients struggle with making it

in to clinic appointments so the staff drive around and pick them up. Program

manager described many of their dual consumers as in “pre-contemplation”

and an active treatment group remains unappealing to them.

S9 Dual Disorders Program manager seems well-versed in IDDT model, stages of change,

(DD) Model

stagewise treatment approaches, and using a reduction in use approach

rather than abstinence only. Team doc also uses Antabuse for one client to

help actively resist use.

S10 Role of
Consumers on Team has two certified peer specialists who are full time. One is currently on

Treatment Team

FMLA. Both have full responsibilities as any other staff member.

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Viewpoint Assessment Date: 7/17/12 Location: Region 3, Lawrenceville (metro Atlanta) Sources Used: Reviewed five charts and team records, team whiteboard for pertinent information, Team Leader interview, QA staff person sat in for some portions of the interview

DACTS Item Areas
Comments/Observations

H1 Small Caseload

Very small caseload ratios. Team does seem to be using a lot of contractors (one year contracts at a minimum) to fill RN and SW positions and expressed

frustration with finding the right permanent staff to fill positions. In some

cases, they have tried to recruit the contracted staff who seem to fit, but that

does not always work out.

H2 Team Approach

Charts indicated use of shared caseload concept with consumers seen by multiple staff in a two-week period. Only one consumer exception – a

consumer who had only one staff contact and was a no-show when other staff

members attempted to serve the person.

H3 Program Meeting

Team has daily team meeting, each consumer covered each time

H4 Practicing Team Leader

Program manager is covering the team leader position that turned over 2-3 months prior. She spends 90% of her full-time position devoted to the ACT

team while serving as interim team leader and reports spending 25-30% of

her time in direct services.

H5 Continuity of Staffing

Team has had seven staff turnovers (out of 13 positions) in last two years. As noted above, team has struggled to hire some positions and has resorted to

contract workers, though they commit to staying a full year and some are very

good.

H6 Staff Capacity Even though turnover was high, vacancy months were fairly low because the

team quickly covers vacated positions. Only five vacant months for a SW

position in the last year and two months for an RN position.

H7 Psychiatrist on Team has a 20 hour/week psychiatrist (Mon, Tues, Thurs) and 52 clients

Staff

which is just below the full DACTS standard (.5 MD per each 50 consumers).

They would need more MD time to increase their caseload.

H8 Nurse on Staff Team has two nurses on staff (one is contracted) for 52 clients. Plenty of RN

time for this caseload.

H9 Substance Abuse Specialist on

This team has a full-time SA specialist for 52 clients which meets the DACTS standards.

Staff

H10 Vocational

This team has a full-time Vocational specialist for 52 clients which meets the

Specialist on DACTS standards.

Staff

H11 Program Size Team has more than 10 FTE and is ample enough in size to provide a range

of comprehensive services and coverage for the current caseload and for the

caseload to increase to 100, pending increases in specific specialty positions

(i.e., psychiatrist).

O1 Explicit Admission Criteria

Team does not deviate from the state’s criteria for ACT authorization. When I asked if they feel they have the final “say” in who is admitted to their ACT team, they quickly pointed out that APS really has final say. Recent referrals

to the team have come from Georgia Regional Hospital (two), jail (one), and

eight others from internal, less intensive, core services, self-referrals or other

community partners. The team does a utilization review for ACT team

consumers to problem-solve consumers who use less services and are

capable of graduating. The team clearly noted on their tracking sheets many

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consumers who are not getting many services because they are refusing, but

probably still need ACT.

O2 Intake Rate

The team averages about four intakes/month and tries to stick with no more

than five or six per month to be able to engage new consumers and have time

to perform comprehensive assessments.

O3 Full

Program manager reported about 10% of caseload live in group homes with

Responsibility 24/7 staff who support meals, social activities, do some skill building, but do

for Treatment Services

not administer medications (ACT team does this). An additional 25-30% live

in personal care homes which seem to be common in Georgia and provide

wide-ranging levels of housing support (from very little to substantial). The

team also serves about 5-6 consumers who also receive services through the

agency’s PSR program.

O4 Responsibility Team carries 24/7 crisis responsibilities, using rotating cell phone. On-call shift

for Crisis

rotates across team and runs Sun-Sun.

Services

O5 Responsibility Team was involved in the majority of hospital admissions that the program for Hospital manager could recall off the top of her head. The only exception was a Admissions consumer with borderline personality disorder who tends to act out about

once monthly. We talked a bit about it being appropriate to acquire DBT

counseling for this consumer without considering it brokering (as long as it is

10% of caseload or less). I did see one chart where a consumer was

hospitalized in a recent month with no documented team involvement at

admission or prior to hospital discharge. (There was a note by the RN after

discharge). I discussed this with program manager before I left so that she

could bring this up with the team.

O6 Responsibility See notes above. Also, program leader discussed having in-person and

for Hospital Discharge Planning

conference call discharge planning with some hospital staff regarding their ACT consumers.

O7 Time-Unlimited I was not able to carefully examine consumers discharged in the last year

Services

because that usually requires some preparation time for the respondent to

collect the information. Anecdotally, the program manager reported eight

consumers left the team in June 2012 (which is a high number). Several did

not meet continuing stay criteria according to APS, so they would technically

count them as graduates. The program manager was clearly uncomfortable

with this process and felt that at least some of those consumers still needed

ACT services, even if they had not been hospitalized recently.

S1 In-Vivo Services

Services are provided almost exclusively in the community with the exception of a couple of psychiatrist visits.

S2 No Drop-Out Policy

See notes in O7 above.

S3 Assertive Engagement Mechanisms

Team uses rep payee services for three consumers and is constantly evaluating the need for money management education. Program gets lots of referrals from the jail system and holds monthly meetings with jail staff

regarding both referrals and follow-ups on ACT consumers who are

incarcerated. The team leader also spoke of maintaining good relationships in

addition to required reporting to probation officers. The team does not use

outpatient commitments but did seem to do a lot of 1013’s for hospitalization.

The team attempts to engage new consumers who are resistant for at least 30

days and works on using motivational strategies and focusing on small steps

and rolling with resistance. For consumers already on the team who are

disappearing, the team leader reported they would follow them “endlessly”

using similar strategies, aggressively looking for them in the community and

even mentioned using advance directives to maintain engagement in

treatment. Psychiatric Advance Directives (PAD) seem to be underutilized in

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some locations, so this was really nice to hear. A PAD is a good tool that is

both recovery-oriented because it stems from the consumers’ choices while

they are well and is useful for consumers who can be hard to keep engaged

at times. If PADs are underutilized elsewhere in Georgia, this might make a

good learning community topic for discussion.

S4 Intensity of Service

In the five charts reviewed, the median service intensity was 90.5 mins per week (mean was 70.5 mins, highlighting how outliers can impact the mean). Weekly

averages were 15 mins and 25 mins, for two clients who were hospitalized and not

home for several home visit attempts. I discussed the lack of contact documented

during the hospitalization with the team leader (briefly). Other consumers had mean

weekly intensity of 90.5, 103, and 119 mins. The team did not have intensity reports

to review. A DACTS score of 5 would require two hours or more; a DACTS score of 4

would require 85-119 mins/week.

S5 Frequency of Contact

Based on chart review, contacts averaged .5, 1, 2.5, 3 and 3.5 contacts per week (median = 2.5, mean = 2.1). The team also had tracking reports for contacts for entire

caseload during the months of April and May 2012. This reports yielded April median

of 2.1 contacts per week (mean=1.9) and May median of 1.8 contacts per week

(mean = 1.8). All these scores would roughly score in the 2 or 3 range on DACTS,

lower than the intensity score. The report included consumers even if they were not

enrolled in ACT the entire month, so these reports might underestimate contacts a bit

and make me lean more toward the data from chart review.

S6 Work with Support System

No quantitative data collected, but the team leader reported encouraging families to obtain guardianship in some cases.

S7 Individualized No quantitative data collected on individual SA treatment provided. (I did not

Substance Abuse Treatment

interview SA specialist and team leader felt uncomfortable trying to make estimates, which is understandable). I did see a few individual contacts by the

SA specialist during chart review -- one visit was helping a consumer to

identify structured activity to help them stay away from substances of abuse,

which is clear SA counseling for active treatment dual consumers.

S8 Dual Disorder Team leader reports that the team offers two once-monthly dual groups

Treatment Groups

offered in different locations (so each group targets different consumers). The group is based on “double trouble” curriculum and the team offers

transportation to help support attendance at these groups. About eight

consumers attend one group each month and about five attend the other, so

about thirteen of the team’s thirty (43%) consumers with dual disorders attend

a dual group each month.

S9 Dual Disorders The team leader referred to stagewise treatment and motivational

(DD) Model

enhancement in a number of topics throughout the interview, including

reference to how the team approaches consumers with comorbid substance

use disorders. A more thorough assessment would yield more data on this

topic.

S10 Role of Consumers on Treatment Team

Team has no certified peer specialist on staff. The team leader and QA manager indicated they had trouble finding candidates who had completed the certification requirements prior to hire. They had a few candidates who were in the process of receiving certification. We wondered whether

regulations would allow the peer specialist to be hired conditionally while the

person pursued certification.

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River Edge Assessment Date: 7/18/12 Location: Region 2, Macon and Milledgeville Sources Used: Team Leader phone interview (brief – 1 hour, due to scheduling limitations)

DACTS Item Areas
Comments/Observations

H1 Small Caseload

Very small caseload for team – 10 FTE for 73 consumers (7.3:1). Team FTE does not include psychiatrist but does include the program manager who

continues to function as team leader while the newly hired team leader gets

acquainted with the job. (Hired just a couple of weeks prior). Program

manager has been functioning as team leader for two years but will eventually

transition out of this role. At that point, her FTE would not count toward team

staffing in scoring the DACTS. The team’s SA specialist position is currently

vacant.

H2 Team Approach

Not able to assess.

H3 Program Meeting

Team has daily team meeting, each consumer covered each time. The doctor attends this meeting all four days that she works with the team. All other staff

are full time and attend each meeting.

H4 Practicing Team Leader

Program manager has been spending 10 hours per week (about 50% of overall productivity required of a full time clinician) in direct clinical care. The

newly hired team leader has been spending roughly 5 hours/week in direct

service, mostly shadowing other staff members and meeting consumers this

way.

H5 Continuity of Staffing

Team has had eleven staff leave (out of eleven positions) in last two years. Turnover is a significant problem and seems to be concentrated in the

psychiatrist position (three MDs left in past two years) and nursing positions

(five nurses have occupied two nursing positions over the past two years), but

also occurs in other positions as well (CPS, BA-level and MA-level clinicians).

Hiring in the SA specialist position is also a struggle.

H6 Staff Capacity The team has only experienced five staff months of vacancies in the last year

since many of the doctors and nurses stayed until their replacements were

ready to start.

H7 Psychiatrist on Team has a 32 hour/week psychiatrist (4, 8-hours days of coverage) and 73

Staff

clients. This is just exceeding the DACTS standard. Any client caseload

above 80 and the MD time would need to be increased.

H8 Nurse on Staff Team has one full-time RN on staff for 73 clients. The team’s second nurse is

currently an LPN and is finishing her RN requirements, so technically we

cannot count her as fulfilling nursing needs beyond 50 consumers until she completes the requirements. Another LPN (second LPN, 3rd nurse) also is

full-time to the team. LPNs count toward general clinical staffing but do not

count towards RN positions required. In some cases, LPNs can be good

resources for ACT teams by traveling around to administer injections and

accompanying consumers on routine primary care appointments. By

delegating these tasks to LPNs, a team’s RN can focus more on training

consumers in medication education, managing more complex physical

comorbidities in conjunction with psychiatric treatment, and performing good

nursing assessments to inform comprehensive assessment and treatment

planning.

H9 Substance Abuse Specialist on

The team’s SA specialist position is currently vacant. The previous staff person in this position left in May 2012. The program has received no qualified applicants in response to the posted position.

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Staff

H10 Vocational

This team has a full-time Vocational specialist for 73 clients which is low for

Specialist on the DACTS standard, but in line with DHDD standards (and most states’

Staff

requirements for that matter).

H11 Program Size Team has 10.8 FTE and is ample enough in size to provide a range of

comprehensive services and coverage for the current caseload and for the

caseload to increase to 100, pending increases in specific specialty positions

(i.e., psychiatrist, nursing, SA specialist).

O1 Explicit Admission Criteria

Team does not deviate from the State’s criteria for ACT authorization, though they have added an additional criterion related to an absence of recent acts of physical aggression. The team leader said that, even with this criterion, they

will still admit someone but will delay the process until they can come up with

a plan for serving the consumer without jeopardizing staff safety. The team

receives referrals from a few major sources: Baldwin County jail, the Augusta

jail, the River-Edge crisis stabilization unit and other outpatient clinics.

O2 Intake Rate

The team was averaging about 4-6 intakes/month but were recently

designated as a rural team and only serve two counties now instead of four,

so they reported only two intakes each in April and May.

O3 Full

Not assessed.

Responsibility

for Treatment

Services

O4 Responsibility Not assessed.
for Crisis

Services

O5 Responsibility I could not assess cases of hospitalizations to quantify the team’s actual for Hospital involvement in hospital admissions and discharges, but the team leader Admissions described three vivid examples of her frustrations with Atlanta-area hospitals

around the topic of discharge planning. In one case, the hospital staff would

not discuss the case with the team by citing HIPAA, then during another

attempt to coordinate by an ACT team member, hospital staff denied the

consumer was there (team guessed the person had been discharged). The

team found out a year later that the consumer had been discharged to the

street (rather than coordinating discharge with the community provider),

committed a crime of some sort, ended up in Atlanta’s jail and then returned

to the home county for a probation violation. The team was reconnected with

him a year later, but felt that, had they been allowed to coordinate care during

the hospitalization, this situation might have been avoidable. In another case,

the team got a call from an Atlanta hospital that the consumer was “on their

way home” without any prior notice allowing the team to coordinate discharge

care. In a third case, a consumer was in a private psychiatric hospital and the

team was in contact with the staff but hospital staff were reportedly resistant

to the team’s input. The hospital informed the team that the consumer would

be discharged that evening when the team knew that the personal care home

owner had taken consumers out of town on an overnight outing and this

consumer would not be able to go there. (The consumer had lived at this

particular residence for years -- the team leader indicated “this was his

home.”) The hospital staff then said they would release the consumer to an

entirely new personal care home in another county (close to the hospital) that

evening. The ACT team leader had to beg the hospital staff to delay

discharge until the next day when he could return to his home.

O6 Responsibility See notes above.
for Hospital

Discharge

Planning

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 39 of 89


O7 Time-Unlimited Not assessed
Services

S1 In-Vivo Services

Not assessed.

S2 No Drop-Out Policy

Not assessed.

S3 Assertive Engagement

Not assessed.

Mechanisms

S4 Intensity of Service

Not assessed.

S5 Frequency of Not assessed.
Contact

S6 Work with Support

Not assessed.

System

S7 Individualized Not assessed.
Substance

Abuse

Treatment

S8 Dual Disorder Not assessed.
Treatment

Groups

S9 Dual Disorders Not assessed.
(DD) Model

S10 Role of Consumers on Treatment Team

Team has a certified peer specialist on staff. The CPS does not handle medications as other team members do, but this is not an agency restriction on the CPS role, but an accommodation for this particular consumer specialist.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 40 of 89

American Work Assessment Date: 7/18/12 Location: Region 5, Savannah Sources Used: Phone interview with Team Leader and supervisor

DACTS Item Areas
Comments/Observations

H1 Small Caseload

Very small caseload for team – Eight FTE (not including psychiatrist) for 71 consumers (8.9:1).

H2 Team Approach
H3 Program Meeting
H4 Practicing Team Leader

Not able to assess.
Team has daily team meeting, each consumer covered each time.
Team leader spends roughly 22-25 hours per week in direct service though some months are slightly less. He spends much of this time recruiting and assessing possible ACT consumers in hospitals and shelters. He also spends

much time filling in for SA specialist role duties while that position remains

vacant. This level of direct service is well-above the expected mark for the team leader.

H5 Continuity of Staffing

Team has had five staff leave (out of eleven positions) since April 2011 when team started. As with other teams, filling the specialist positions seems to be a struggle (RN, voc, SA), though this team has not had any issues with psychiatry – has the same contracted psychiatrist since team was started.

H6 Staff Capacity The team has experienced thirteen staff months of vacancies, with twelve of

those months from the vacant SA specialist position. They are having trouble finding someone who is properly certified.

H7 Psychiatrist on Team has a 20 hour/week psychiatrist (three days) and 71 clients, so

Staff

psychiatrist time is low for the caseload.

H8 Nurse on Staff Team has two full-time RNs on staff for 71 clients. The team’s second nurse

position was recently added to the team roster and was filled in June 2012, as

the team’s census increased. Nurse time is sufficient now.

H9 Substance Abuse Specialist on Staff

The team’s SA specialist position is currently vacant. As noted above, the team is struggling to find a certified person. However, the team leader has certification and could potentially count towards this position though it is typically difficult to both manage the team and function as one of the

specialists. The program continues to search for viable staff candidates.

H10 Vocational

This team has recently hired a full-time vocational specialist who will start in 2­

Specialist on 3 weeks, but would not count in this item until officially on staff.
Staff

H11 Program Size Team has 8.5 FTE, so it is of a decent size and would be above 10 FTE with

two vacant positions filled and some increase to psychiatrist time.

O1 Explicit Admission Criteria

Team does not deviate from the State’s criteria for ACT authorization. All consumers meet these criteria and the team has full authority to refuse referrals who do not meet the criteria. They estimated that 93% of referrals come from Georgia Regional Hospital. Others come from shelters, core providers, and jails.

O2 Intake Rate

The team usually stays under six intakes per month, with a few exceptions in early start-up phase. May included 3-4 intakes and June included five.

O3 Full

The team does have a few consumers who also receive housing support in

Responsibility one of their group homes or in other individual-apartment supported housing.

for Treatment Services

However, even combined, these would not be 10% of the caseload, so it

would not count as brokering. The team’s goal for consumer housing was

articulated as independent living in scattered-site apartments. The team

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 41 of 89


leader reported about 10 of 71 consumers do attend American Work PSR

programs. This would count as the only instance of brokering, per the DACTS

scoring, but is permitted within DBHDD rules for ACT.

O4 Responsibility Team rotates crisis coverage 24/7 using an office phone number that gets

for Crisis Services

forwarded to the staff member on call.

O5 Responsibility We could not quantify team’s involvement in hospital admissions, but the

for Hospital respondents estimated that almost all admissions involve the team. Admissions Occasional exceptions would include cases where family took the person to

the hospital in the middle of the night.

O6 Responsibility Again, we could not quantify the team’s involvement in hospital discharge

for Hospital planning but the team leader’s protocol is for staff to visit the hospital in

Discharge Planning

person the day after admission, if possible. The team leader reported he

personally participates in treatment planning at hospital in person, as part of

his direct service priorities.

O7 Time-Unlimited Team had a very high rate of graduations over the last year, with 17

Services

consumers graduating out of 91 total consumers (19%) served in that same

period. The respondents did feel that the APS authorization being extended

from three months to six months was an important improvement in policy for

their consumers. However, they also reported a disconnect between APS

staff in the home office who approved continuing stay criteria and APS field

auditors who came out to their site and questioned continuing stay criteria for

consumers. The providers felt that the two sets of staff were out of sync and it

was causing some confusion. They also stated that they felt that a provider

should not be held responsible for continuing stay criteria, once it has been

approved by APS.

S1 In-Vivo Services

Not assessed.

S2 No Drop-Out Policy

The team reported only one dropout in the last year. One other consumer died and another moved. This team’s low dropout rate is quite a contrast to

the Atlanta-area teams who are really struggling to keep transient consumers

engaged.

S3 Assertive Engagement Mechanisms

The team does become representative payee for many consumers and works often with mental health courts and jails to keep consumers engaged in services. The reported using outpatient commitments “for what they’re worth.”

When asked to clarify, they reported that their particular justice system

required a hospitalization to initiate a commitment and the consumer has to

have been seen within two days of a request to invoke the commitment. For

almost any consumer, this two-day requirement would be extremely difficult to

meet, so I see their point very clearly. The team leader also reported working

closely with their local, very active NAMI organization and participating in CIT

training program for police. They also mentioned working with and educating

families in a number of other points in the interview.

S4 Intensity of Service

Not assessed.

S5 Frequency of Contact
S6 Work with Support System

Not assessed.
Not assessed quantitatively, but as noted above, the team leader reports strong ties with NAMI, the CIT program for which NAMI is highly involved, and with individual family members of their consumers.

S7 Individualized 25 of 71 consumers have a comorbid substance use disorder. The team

Substance Abuse Treatment

leader does provide some individual SA counseling focusing on identifying triggers and using CBT to manage triggers. We did not attempt to quantify

extent of individual SA treatment provided.

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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 42 of 89


S8 Dual Disorder No dual group is currently being offered, but when the SA specialist is hired,

Treatment Groups

the team has a curriculum to use, based on some work done at Texas Christian – Wellness Self-Management Plus.

S9 Dual Disorders Difficult to rate without a full fidelity assessment. The team leader is clearly

(DD) Model

offering some SA treatment services.

S10 Role of
Consumers on Team has a full-time certified peer specialist on staff. For this position, there

Treatment Team

has never been any turnover.

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MEMORANDUM
To: Elizabeth Jones Independent Reviewer In the Matter of United States of America v State of Georgia (Civil Action No.1:10-CV-249-CAP)
From: Martha Knisley
RE: Site Visit Summary and Report on Housing Supports for Individuals with SPMI
Date: September 19, 2012
Below is the requested report summarizing my site visit to Atlanta, Georgia on August 6, 2012 and a brief review of Georgia's compliance to Supported Housing and Bridge Funding requirements in Schedules 2. c. ii. (A.-C.) of the Settlement Agreement between the United States and the State of Georgia in the above referenced matter.
Overview and Scope of Review
This brief report summarizes implementation of Supported Housing and Bridge Funding as required in this matter for July 1, 2011 through June 30, 2012 and to the Independent Reviewer recommendations for your review during the coming year.
As part of this review, I met with stakeholders, toured supported housing units (funded with Bridge Funding in Fulton County) discussed progress with the Fulton County PATH Team and met with Doug Scott, the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) Supported Housing Director.
I also reviewed three documents:
1. The Georgia Housing Voucher and Bridge Funding Program Summary (dated August 6, 2012); 2. The Georgia Department of Behavioral Health and Developmental Disabilities Housing
Voucher and Bridge Funding Program: A Year in Review power point presentation (not dated); 3. The Department of Behavioral Health and Developmental Disabilities (DBHDD) Housing
Voucher Program (GHVP)jBridge Funding SFY 2013 Program Description. (effective date 8-152012).
Observations
The documents and the discussions reveal the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) conclusively met the major targets of the Settlement Agreement's Schedule for Supported Housing for the year beginning July 1, 2011 and Bridge Funding
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for the same year. The DBHDD also met their targets for 2011. The DBHDD was at 129% of goal for Supported Housing and at 145% of goal for Bridge Funding in 2012.
Mr. Scott and DBHDD began their implementation in 2011 developing a clear decision making process and pipeline for both Supported Housing and Bridge Funding, establishing payment mechanisms and aggressively troubleshooting any potential implementation issues as borne out by their meeting their targets. The stakeholders and Mr. Scott were consistent in their descriptions of how the referral processes were developed and successes DBHDD had in meeting these goals. The Fulton County Path Team understands their mission, have processes in place to achieve their targets, have assigned staff who are knowledgeable of the target population, are well trained and prepared to assist tenants to seek housing, move in and retain their housing. They are knowledgeable of community resources and have built good repertoire with housing owners and property managers. While it is often difficult to generalize staff competencies and to determine how prepared staff are to carry out their assigned task across jurisdictions, cross region data reveals that the successes in the first two years were statewide.
Likewise the performance data demonstrate early success in housing stability and re-engagement. It is not clear what the correlation is between declining hospital census and Supported Housing as only 88 Supported Housing referrals appear to have originated from hospitals and the hospital census has dropped by 300 individuals. However,it is likely there is some correlation between the two.
As a result of reviewing the data and in talking with stakeholders and Mr. Scott, three items stand out as needing "future" exploration by the Independent Reviewer in her role assessing the State's compliance andjor implementation efforts with this Settlement Agreement:
1. The Referral Sources and percentage of referrals for the Georgia Housing Voucher Program are as follows: Homeless (48%), Intensive Residential (10%), Personal Care Homes or Group Homes (10%), Hospital (10%), Family or Friends (9%), Rent Burdened (5%) and Unknown (8%). For Region 3, the percentage of referrals of individuals who are homeless is 67%. The Settlement Agreement does not specify required percentages of individuals referred from any of these sources. It does speak to achieving the dual goals of "community integration" and "planning and services to support individuals at risk of institutionalization."
The agreement further addresses the target SPMI population as individuals "currently being served in State Hospitals, who are frequently readmitted to the State hospitals, who are frequently seen in Emergency Rooms, who are chronically homeless, andjor who are being released from jails and prison." Therefore, based on the underlying principles of the Settlement Agreement, are individuals currently hospitalized, frequently seen in Emergency Rooms, being frequently readmitted to the State Hospitals or being released from jail and prison being afforded access to the housing voucher in the same manner as individuals who are currently homeless? There are many reasons why individuals who are homeless are more frequently referred and placed. The pipeline for referrals is well established. Obviously, individuals who are severely and persistently mentally ill and homeless need housing. However,DBHDD is taking steps to assure their policies and referral processes address this potential uneven distribution of resources available for DBHDD to meet the terms of the Settlement Agreement.
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In their Housing Voucher Program (GHVP)jBridge Funding SFY 2013 Program Description, DBHDD has issued the following policies:
a) No provider that is also a Shelter Plus Care Grantee will be allowed to refer an individual who is homeless unless the federal definition of "homeless" restricts the use of available Shelter Plus Care resources. DBHDD will continually update Shelter Plus Care resource utilization capacity from the state's Continuum of Care jurisdictions.
b) DBHDD will provide a priority for those that meet the standards outlined under Tenant Eligibility and those that are transitioning from a state supported hospital or Crisis Stabilization Unit, transitioning from a DBHDD supported intensive residential treatment facility (only when that slot will be occupied by an individual transitioning from a state supported hospital or Crisis Stabilization Unit) and meet the clinical criteria for Assertive Community Treatment services. DBHDD may from time to time change the Tenant Priority at its sole and absolute discretion.
These policies may result in a change in the number of individuals referred who are homeless and have access to other resources. However, it is too early to tell if the numbers of individuals being referred from state supported hospitals, Crisis Stabilization Units or DBHDD supported intensive residential facilities will increase.
Overall, DBHDD faces difficult choices with the distribution of housing resources. There are simply fewer resources than demand. People with disabilities live on very meager incomes or have no income and obviously individuals who are homeless with a mental illness fall into that category. To their credit, DBHDD leadership has been vocal on the need for more federal and state housing resources for individuals who have a serious and persistent mental illness. DBHDD recently worked closely with the Georgia Department of Community Affairs (DCA) to make application to the HUD Section 811 Supportive Housing for Persons with Disabilities Project Rental Assistance Demonstration program (PRA demo) for additional subsidies for the Settlement Agreement's target populations.
2. The DBHDD has met their current Settlement housing targets but this does not assure that DBHDD will meet future targets. Nevertheless, It is not too early to review the steps DBHDD is taking to achieve future targets. Based on discussions with Doug Scott on this question, he does not underestimate this challenge and is splitting his time between meeting current targets and planning for meeting the longer term targets. Developing supported housing opportunities requires attention to creating affordable quality subsidized rental housing and creating the pipeline of new or moderately rehabilitated multi-family properties. Both types of housing require partnerships with state and federal housing agencies, local Public Housing Authorities, developers and ownersjproperty managers. Both require attention to the unique access and sustainability challenges presented by the target population.
3. The third issue is related to the interpretation of the state providing housing supports to approximately 2,000 individuals in the target population with SPMI that are deemed ineligible for any other benefits pursuant to a specific schedule. The interpretation of "deemed ineligible" may be being interpreted several ways. Does "benefits" in this context include Section 8, Shelter Plus Care, the new Section 811 PRA? If yes, then many individuals getting placed now may be eligible for
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those other benefits even if the supply of those benefits at any given time does not equal the demand.
On the other hand, this is not totally logical given that the Section 811PRA is targeted to individuals in the Settlement Agreement and Housing Vouchers could also be targeted.
Under the first scenario, "deemed ineligible" would only include individuals who are turned down for benefits not because there is a limited supply of resources but because a housing authority waiting list is closed or because a local jurisdiction or the state does not have the needed units or Section 8, SPC or PRA subsidies available at any given time or in their portfolio. DBHDD has dealt with this issue in part with their change in policy in FY 2013 restricting individuals who are referred by Shelter Plus Care providers and their commitment to update Shelter Plus Care utilization capacity from the state's Continuums of Care.
Recommendations to the Independent Reviewer
The DBHDD has been successful in meeting the 2011 and 2012 Supported Housing and Bridge Funding targets; there are no immediate reasons to recommend any remedial action. DBHDD has given priority to and fully embraced supported housing with 648 individuals served in Supported Housing and 568 individuals receiving Bridge Funding.
Given the challenges for meeting targets in the future and assuring individuals who are exiting hospitals or frequently using hospitals and emergency rooms have access to these resources, it is recommended the Independent Reviewer undertake three activities in the coming year:
1. DBHDD has taken significant steps to deal with the imbalance in distribution of Supported Housing Vouchers and Bridge Funding. It is recommended the Independent Reviewer monitor the impact of these policies in this fiscal year. It is also recommended the Independent Reviewer review the Transition Planning and Quality Management measures as required in this Settlement Agreement to determine if there are issues related to who is getting referred for these resources. This review may best be accomplished by reviewing the impact of these processes and policies on a sample of the individuals who are in the Agreement's target groups.
2. Review the long term arrangements for making housing resources available. This includes a review of state and local housing markets, the quality of available housing in the local markets, the DCA Section 811PRA Demo application and DBHDD plans for meeting targets in each of the next three years. Completing this exercise may help build support now for resources for the out years of this Agreement
3. Determine if further clarity is needed to assure the "target population with SPMI that are deemed ineligible for any other benefits" requirement is uniformly understood and applied to all applicable benefits.
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State of Georgia 
 Review of Supported Employment Services 
 Under the United States v. Georgia Settlement Agreement 

and the 
 Findings from the State Health Authority Yardstick 

Requested by Elizabeth Jones, Independent Reviewer
David Lynde, MSW September 16, 2012

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 48 of 89
 Table of Contents 


Settlement Agreement Provisions Executive Summary for the SHAY Report Introduction SHAY Findings National EBP Project SHAY Data Summary Table of Georgia SHAY Scores

Page 3 
 4 
 5 7 
 42 
 43 


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Department of Justice Settlement Agreement 

The reviewer was asked to advise whether the Department of Behavioral Health and Developmental Disabilities (DBHDD) has met the requirements of the Settlement Agreement regarding the provision of Supported Employment programs, and then to evaluate the quality of these services by completing a State Health Authority Yardstick (SHAY) review. The Settlement Agreement section on Supported Employment contains the following language:
“Supported Employment i. Supported Employment will be operated according to an evidence-based supported employment model, and it will be assessed by an established fidelity scale such as the scale included in the Substance Abuse and Mental Health Administration (“SAMHSA”) supported employment tool kit. ii. Enrollment in congregate programs shall not constitute Supported Employment. iii. Pursuant to the following schedule� (B) By July 1, 2012, the State shall provide Supported Employment services to 170 individuals with SPMI.”
While it is beyond the scope of the work of this reviewer to check the validity and the reliability of the specific data provided by DBHDD, the data presented from DBHDD and the information confirmed by a variety of stakeholders (including providers) that were interviewed do indicate that DBHDD is complying with the Supported Employment section of the Settlement Agreement. The SHAY, which was focused on the supported employment “slots” under the Settlement Agreement, may be viewed as an instrument to measure the extent and quality of that compliance.
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Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 50 of 89
 SHAY Executive Summary
This document provides a summary of the status of the work that has been done by the DBHDD regarding the implementation and dissemination of evidence based Supported Employment (SE) services for adults with severe mental illness (SMI) in the State of Georgia.
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SHAY Introduction 

The State Health Authority Yardstick (SHAY) was designed by a group of mental health researchers and implementers who were interested in assessing the facilitating conditions for the adoption of Evidence-Based Practices (EBPs) created by a state’s health or mental health authority.
The reviewer spent four days (July 16, 17, 18 and 19, 2012) meeting with and interviewing a variety of stakeholders in the State of Georgia as well as reading and reviewing relevant documentation provided by DBHDD. The interviews that were arranged by a number of stakeholders in Georgia included: staff from DBHDD, providers of SE services for adults with mental illness, family members, consumers, and representatives from consumer and family advocacy organizations and other mental health advocates.
The reviewer was asked to assess the extent that policies, procedures and practices are present in Georgia regarding SE services. Evidence-based Supported Employment is a Substance Abuse and Mental Health Services (SAMHSA) recognized practice that has been repeatedly demonstrated to be the most effective means to help adults with SMI to obtain and retain competitive employment as part of their recovery process.
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The reviewer is grateful for the warm and friendly welcome that he received from the staff of DBHDD and the visits that were set up with SE providers, clients of SE services and other stakeholders throughout the State. The reviewer met with staff from DBHDD and other stakeholders in Atlanta and with providers in Augusta, Tucker and Smyrna, GA.
The SHAY is a tool for assessing the state health or mental health authority responsible for mental health policy and Medicaid policies in a state. For the purposes of this report, the scope (or unit of analysis) for the SHAY is focused on the SE slots defined by the “Settlement Agreement.” The SHAY examines the policies, procedures and actions that are currently in place within a state system, or in this case, part of the state system. The SHAY does not incorporate planned activities, rather it focuses exclusively on what has been accomplished and what is currently occurring within a state. For the purposes of this, DBHDD has been identified as the “State Health Authority.” This report details the findings from information gathered in each of fifteen separate items contained in the SHAY. For each item, the report includes a brief description of the item and identifies the scoring criteria. Each item is scored on a numerical scale ranging from “five” being fully implemented, to a “one” designating substantial deficits in implementation. Recommendations for improvement also are included with each item. A summary table for the scoring of the SHAY items is contained at the end of the report.
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SHAY Findings

1. EBP Plan

The SMHA has an Evidence Based Practices (EBP) plan to address the 
 following:

Present Present Present Present Present
Present
Present

1. A defined scope for initial and future implementation efforts
2. Strategy for outreach, education, and consensus building among providers and other stakeholders
3. Identification of partners and community champions 4. Sources of funding 5. Training resources 6. Identification of policy and regulatory levers to support
EBP 7. Role of other state agencies in supporting and/or
implementing the EBP 8. Defines how EBP interfaces with other SMHA priorities
and supports SMHA mission 9. Evaluation for implementation and outcomes of the
EBP 10. The plan is a written document, endorsed by the
SMHA

Narrative The staff at DBHDD recognized that there is not a current written plan that describes how SE services fit with the overall mission of DBHDD or how SE services may be used with other services in the system to promote recovery. However, the staff were able to describe several instances where verbal presentations or presentations that included Power Point slides were given that describe the plan for SE services as they relate to the mission of DBHDD and in support of recovery.

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DBHDD has started “Supported Employment Coalition” meetings that are convened every other month (recent meetings were held in February, April and June, 2012) and include staff from DBHDD (Terri Timberlake, Monica Parker and Mary Shulman) as well as representatives from SE provider agencies. These meetings are designed to improve communication, collaboration and building supports for SE between DBHDD and provider agencies. While providers are invited to attend these meetings in person, most attend via teleconferencing.
Without the presence of a clear and comprehensive written plan for SE services, it is difficult to impossible for DBHDD to promote a vision for the system that promotes recovery and describes how evidence-based supported employment will help the system to fulfill that vision. Given the presence of numerous stakeholders with knowledge and experiences regarding SE, DBHDD seems to have some of the important ingredients already present in the State to collaboratively develop and disseminate a written comprehensive state plan regarding SE services.
Also, DBHDD has started the process of reviewing their current Medicaid plan in order to develop billing mechanisms for some parts of SE services. This strategy will help to diversify the funding of SE services for current providers as well as future expansion of SE funding, if needed. Additionally, DBHDD has completed a draft of a Memorandum of Understanding between the Georgia Department of Labor, Vocational Rehabilitation Program and DBHDD regarding Supported
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Employment. This draft agreement outlines some important areas of cooperation between the two agencies. The draft has been signed by former DBHDD Commissioner Shelp and is awaiting the signature of Georgia Vocational Rehabilitation Services.
DBHDD has entered into a training agreement with the Institute on Human Development and Disability at the University of Georgia, Athens. Doug Crandell at the University manages this training agreement. Currently, one cadre of provider SE program managers and leaders have completed one of the six week training modules. The training module includes an in person meeting and training followed by six-week courses that are provided via videoconferencing. The training also includes a follow up meeting to review the participants’ reactions to the training and to identify further training needs. The second module for SE employment specialists will start soon.
Several people commented on recently increased attention to and support of SE services at the leadership level of DBHDD. One person summarized, “There is beginning to be a true emphasis on SE here. Now, maybe it is only because of the DOJ settlement, but it is great that the emphasis is growing recently. There is movement in the right direction.” While there is an emerging plan and associated actions on many levels regarding the implementation of SE services, it would be useful and important for the leadership of DBHDD to develop a written version of this plan with input from consumers, family members,
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advocates and providers. A written plan will help provide a constant and consistent message as well as provide the basis for developing specific action or work plans associated with each step. Additionally, a written action plan would also allow the DBHDD leadership to be able to concretely track and record actions taken in support of SE services in the State.

2. Financing: Adequacy
Is the funding model for the EBP adequate to cover costs, including direct service, supervision, and reasonable overhead? Are all EBP sites funded at the same level? Do sites have adequate funding so that practice pays for itself?

Present

1. No components of services are reimbursable
2. Some costs are covered
3. Most costs are covered
4. Service pays for itself (e.g. all costs covered adequately, or finding of covered components compensates for noncovered components)
5. Service pays for itself and reimbursement rates attractive relative to competing non-EBP services.

Narrative For the purposes of the Settlement Agreement, funding for the designated SE slots (sometimes referred to as “ADA (Americans with Disabilities Act) slots”) is fixed at $410.00 per slot for each provider. Unlike most SE systems, this funding is “slot-specific” and not specific to individual clients in SE services or tied to SE landmarks or outcomes. Enrollment in the designated SE slots is defined in the Settlement Agreement:

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The target population for the community services described in this Section (III.B) shall be approximately 9,000 individuals by July 1, 2015, with SPMI who are currently being served in the State Hospitals, who are frequently readmitted to the State Hospitals, who are frequently seen in Emergency Rooms, who are chronically homeless, and/or who are being released from jails or prisons. b. Individuals with serious and persistent mental illness and forensic status shall be included in the target population, if the relevant court finds that community service is appropriate.
While this slot based funding structure is required as part of the Settlement Agreement, it still warrants attention to see if the rate is adequate for providers, as well as what the potential implications are for service delivery. DBHDD is currently working on a cost rate study that is in process and not yet completed. It will be important to transparently share the findings of that cost rate study as well as the data and calculation process that are used in completing the cost rate study with providers and other stakeholders in Georgia.
A second complication that warrants some further examination is to look at the consequences and lessons learned from funding SE slots rather than funding specific clients or specific outcomes. For example, an SE provider who is given a fixed number of SE slots may feel strong unintended pressures to make sure that clients (that meet the above criteria) in those slots are the best candidates for rapid employment to keep SE slot outcomes up. This may have the unintended consequence of providers re-assigning clients both into and out of their designated SE slots to improve outcomes and reduce the time and subsequent staffing and other costs that they invest in clients in SE slots. The
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leadership at DBHDD is aware of this complication and they are tracking data from providers to mitigate these potential consequences.

3. Financing: Start-Up & Conversion Costs
Are costs of start up and or conversion covered, including: 1) Lost productivity for staff training, 2) hiring staff before clients enrolled (e.g. ACT), 3) any costs associated with agency planning and meetings, 4) changing medical records if necessary, 5) computer hardware and/or software if necessary, etc.

Present

1. No costs of start-up are covered 2. Few costs are covered 3. Some costs are covered 4. Majority of costs are covered 5. Programs are fully compensated for costs of conversion

Narrative DBHDD has not had any new providers of SE services since the beginning of the settlement process. Leadership is aware of the need to address their existing lack of helping new SE providers with start up costs. DBHDD does not currently reimburse start up costs for a new provider to deliver SE services. Some typical start up costs for SE services includes software adaptations for tracking and reporting employment outcomes and services provided. Other start up costs may include the purchase of laptop computers, cell phones and transportation resources for employment specialists to be providing the majority of SE services in the community.

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4. Training: Ongoing consultation and technical support

Is there ongoing training, supervision and consultation for the program leader and clinical staff to support implementation of the EBP and clinical skills:

Present Present

1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training)
2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training)
3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months)
4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months)
5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months)

No components covered

Narrative As described earlier, DBHDD has entered into a training agreement with the Institute on Human Development and Disability at the University of Georgia. The rollout of the SE training has included in-person meetings with the group of SE provider leaders and managers, followed by a six-week introductory course regarding the principles of SE services which is provided via video telecast. Several providers were grateful for this new initial training method and felt that the video telecast provides a way to engage in training without incurring excessive travel and time costs. This group then had a follow up, in person,

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meeting with the trainer to gather feedback about the training and to identify further training needs. The trainer stated “one hundred percent of questions and concerns at the follow up meeting were about how to implement the program with fidelity at the agency level.”
A second group of SE practitioners (employment specialists) is currently enrolling to start another six week training rotation. Nearly everyone associated with and participating in the training program described it as being a very helpful and useful beginning, while recognizing that it is not sufficient to address the various training and implementation challenges encountered by providers in the State of Georgia. As one person who completed the first round of training stated, “We need the training to get down to the real skills of SE, not just the overview level. The training needs to fit within the context of our agency, not just the overview.”
The existing Scope Statement and Project Deliverables document for EvidenceBased Supported Employment Training and Technical Assistance (dated 02/15/2012) describes further training and consultation steps for employment specialists as well as “on-site training and technical assistance” and “on-site fieldwork during webinar break.” However, the course outline offers a very minimal amount of time (3 hours) for “On-site training and technical assistance regarding the Integration of Employment with Mental Health Services” for managerial staff and front line staff. This is clearly an insufficient amount of time
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for agency-based on-site consultations regarding the faithful implementation of SE services. In addition, no time is allocated for the “on-site fieldwork.”
It is also important for the DBHDD leadership staff to assure that all of the defined principles of evidence-based supported employment services are addressed in the training curriculum and that training in other employment models is not provided which will result in both model-drift and agency confusion. The training curriculum includes information not described in the defined SE principles nor in the SE fidelity scales, including references to the “Discovery Process” (usually associated with Customized Employment, not SE). Several course participants stated that they had noted the introduction of other materials in the SE training. One training participant described it as “a blend of SE training and employment training for people with developmental disabilities mixed in with Customized Employment training.” Another person commented on the inclusion of non-SE strategies where the training materials “do not line up with the fidelity scale,” such as “finding your personal genius,” or training people to take pictures of clients working to perspective employers. Again, these are ideas not consistent with SE fidelity or the evidence-based principles of SE.
As an evidence-based practice, SE has specifically identified skills, strategies, and agency-based policies that are required for good fidelity (effective and faithful to the researched model); SE services that help people to obtain and retain competitive employment. Implementation studies have identified access to
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several components of SE agency-based on-site consultation and training to be crucial in order for providers to help people with SE services in the most effective manner possible.

5. Training: Quality

Is high quality training delivered to each site? High quality training should include the following:

Present Present Present

1) Credible and expert trainer
2) Active learning strategies (e.g. role play, group work, feedback
3) Good quality manual, e.g. SAMHSA Toolkit 4) Comprehensively addresses all elements of the EBP
5) Modeling of practice for trainees, or opportunities to shadow/observe high fidelity clinical work delivered
6) High quality teaching aides/materials including workbooks/work sheets, slides, videos, handouts, etc., e.g. SAMHSA Toolkit

Narrative As noted in two previous sections, the current training agreement with the Institute on Human Development and Disability is a good start in terms of helping providers of SE services for the Settlement Agreement slots to be able to have a common language and common understanding of the principles and ideals of SE services.

It is important, as the training continues, that it incorporates critical components such as sufficient time for individual agency-based on-site consultations regarding the implementation and ongoing improvement of evidence-based SE services. Additionally, the agency-based consultations should incorporate
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 information gathered from fidelity reviews and working with provider agency leadership to develop specific steps and strategies for each agency to improve their fidelity scores. Another crucial element to helping employment specialists to learn vital skills, such as job development with employers in the community, is to assure that agencies have access to trainers who are able to work with employment specialists and their supervisors in their communities and with real employers. Job development is best learned when employment specialists have the chance to see the skills modeled for them with employers and are then given the chance to practice and demonstrate those skills while being shadowed by a trainer or supervisor.
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6. Training: Infrastructure / Sustainability Has the state established a mechanism to allow for continuation and expansion of training activities related to this EBP, for example relationship with a university training and research center, establishing a center for excellence, establishing a learning network or learning collaborative. This mechanism should include the following components:

Present Present
Present

1) Offers skills training in the EBP 2) Offers ongoing supervision and consultation to clinicians
to support implementation in new sites 3) Offer ongoing consultation and training for program EBP
leaders to support their role as clinical supervisors and leaders of the EBP 4) Build site capacity to train and supervise their own staff in the EBP 5) Offers technical assistance and booster trainings in existing EBP sites as needed 6) Expansion plan beyond currently identified EBP sites 7) One or more identified model programs with documented high fidelity that offer shadowing opportunities for new programs 8) SMHA commitment to sustain mechanism (e.g. center of excellence, university contracts) for foreseeable future, and a method for funding has been identified

No components covered

Narrative DBHDD has entered into a training agreement with the Institute on Human Development and Disability to provide training to providers of SE services for the existing Settlement Agreement slots. The initial basic overview training on SE services has been well-received in the field, though some questions exist about training information covered that is not included in the principles of SE or in the SE fidelity scale. It will be important for DBHDD to work with their provider partners and their training partner to expand and enhance the scope and the intensity of the initial overview training to address providing on-site technical

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 assistance and consultation to provider agency leadership and their Community Service Board partners, as well as expanding the scope of the training to include field demonstrations and skill development for employment specialists. This work can be done in a system sustainable way by focusing training on job development and field mentoring on SE supervisors and teaching them to train their existing SE workforce as well as new employees in the future. Providing the opportunity for SE providers to visit high fidelity SE programs is a very effective learning tool that promotes increased collaboration between providers. Several states (e.g. Oregon, Maryland and Kansas) have been successful in developing comprehensive training and consultation collaborations with their own universities or other resources to assure access to effective training and consultation resources for SE providers.
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7. Training: Penetration
What percent of sites have been provided high quality training
(Defined as having a score of “3 or higher” on item #4. Training: Ongoing consultation and technical support)
Ongoing training should include 3 or more of the following components: 1) Initial didactic training in the EBP provided to clinicians (e.g. 1-5 days intensive training) 2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g. 1 - 3 meetings with leadership prior to implementation or during initial training) 3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of 3 months, e.g. monthly x 12 months) 4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of 3 supervision meetings or sessions for each trainee, e.g. monthly x 12 months). 5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine work flow, policies and procedures at the agency (minimum of 3 months, e.g. monthly X 12 months)

Present

1. 0 – 20 % 2. 20 – 40% 3. 40 – 60% 4. 60 – 80% 5. 80 – 100%

Narrative In order to receive credit for how many sites have been able to access high quality training, the State must first assure that the training being provided is of high quality, both in terms of the training content focusing on evidence based SE

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skills strategies and in terms of addressing agency based consultation and technical assistance needs sufficiently. At this point, the new training that is being provided has not yet achieved the threshold of high quality training. However, DBHDD has arranged for all SE providers who have slots in the Settlement Agreement to be able to participate in the training program.

8. SMHA Leadership: Commissioner Level

Commissioner is perceived as a effective leader (influence, authority, persistence, knows how to get things done) concerning EBP implementation who has established EBPs among the top priorities of the SMHA as manifested by:

Present Present Present Present

1) EBP initiative is incorporated in the state plan, and or other state documents that establish SMHA priorities
2) Allocating one or more staff to EBP, including identifying and delegating necessary authority to an EBP leader for the SMHA
3) Allocation of non-personnel resources to EBP (e.g. money, IT resources, etc.)
4) Uses internal and external meetings, including meetings with stakeholders, to express support for, focus attention on, and move EBP agenda
5) Can cite successful examples of removing policy barriers or establishing new policy supports for EBP

Narrative Governor Nathan Deal has appointed Frank W. Berry, III as the new Commissioner of DBHDD starting on August 11, 2012. Given the timing of that significant change in Department leadership, this section of the report will focus on the active leadership at the DBHDD level including leadership being provided by Dr. Terri Timberlake in her position as Director, Adult Mental Health Services for DBHDD. Several people noted a significant change in the leadership at

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DBHDD regarding supported employment services and the role that employment can play in the recovery of people with severe mental illness in Georgia.
Several people commented on the apparent change of tone and commitment on the part of DBHDD leadership relative to SE services. People cited the recent well-attended Supported Employment Summit (June 2012) at the Carter Center as one example of a change of tone and presence. Other people noticed a difference in SE recently being included in meetings of the State Mental Health Planning and Advisory Council. One provider seemed to sum it up for many others, “Things are different now, for some years we were invisible, we still did our jobs, but now employment is becoming a big focus.” Another person stated, “The State is beginning to realize how high SE is in terms of being important for clients. We are all starting to come together on this instead of just employment services, we are coming together with other services about employment.” Another stakeholder commented, “It is good that we are helping people to get back to work. I am glad the focus on employment is back. I hope it stays this time.”
Staff from DBHDD described several staff meetings where employment and SE services were on the agenda. People also noted the presence of Dr. Timberlake on the bi-monthly SE coalition calls that were recently started. DBHDD has staff positions that are dedicated either in part or in whole to SE services. Most people stated the belief that Mary Shulman is the point person at DBHDD for SE
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services. Providers also described the offering of training and the fidelity site reviews as other signs of increased leadership and support for SE services in Georgia.

9. SMHA Leadership: Central Office EBP Leader

There is an identified EBP leader that is characterized by the following:

Present Present

1) EBP leader has adequate dedicated time for EBP implementation (min 10%), and time is protected from distractions, conflicting priorities, and crises
2) There is evidence that the EBP leader has necessary authority to run the implementation
3) There is evidence that EBP leader has good relationships with community programs
4) Is viewed as an effective leader (influence, authority, persistence, knows how to get things done) for the EBP, and can site examples of overcoming implementation barriers or establishing new EBP supports

Narrative Staff from DBHDD that were interviewed were clear about the designation and presence of a point person for SE services at their agency (Mary Shuman). Staff members were also clear that the point person has a number of different duties, including being a point person for peer support services and psychosocial rehabilitation services. While the scope of this review is to focus on what is in place rather than what is planned, it is important to note that DBHDD is also hiring another person (Tabatha Lewis) to work on the implementation of SE services in the state. The point person for SE does report directly to the Adult Mental Health Director and appears to work closely on SE services.

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Several providers stated that the only time they saw people from the State Office at their agencies for SE was during fidelity reviews. (Fidelity reviews are quality improvement strategies used to measure and improve the extent to which SE providers follow the evidence-based principles of the practice.) All providers described the fidelity review process as being conducted as “compliance audits” rather than collaborative efforts to understand and improve the quality of SE services at their agencies.
While providers were also grateful for the first three SE coalition meetings that have started, they also universally noted that these meetings are a new format and they described a lack of comfort and trust in those meetings. One person commented, “We attend those meetings by telephone, we are not really sure yet who is on those meetings from the State and who is listening and for what reasons.” It may be useful to convene those meetings in rotating regions around the State so that providers have the opportunity to attend some meetings in person, which may help with developing a working rapport within that group and improve some of the provider trust and confidence concerns while working with DBHDD SE staff.
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10. Policy and Regulations: Non SMHA State Agencies
The SMHA has developed effective interagency relations (other state agencies, counties, governors office, state legislature) to support and promote the EBP as necessary/appropriate, identifying and removing or mitigating any barriers to EBP implementation, and has introduced new key facilitating regulations as necessary to support the EBP.
Examples of supporting policies: • Medicaid agency provides reimbursement for the EBP (If Medicaid not under the SMHA) • The state’s vocational rehabilitation agency pays for supported 
 employment programs 

Examples of policies that create barriers: • Medicaid agency excludes EBP, or critical component, e.g. disallows any services delivered in the community (If Medicaid agency not under the SMHA) • State vocational rehabilitation agency does not allow all clients looking for work access to services, or prohibits delivery of other aspects of the supported employment model

Present

Virtually all policies and regulations impacting the EBP serve as barriers On balance, policies that create barriers outweigh policies that support/promote the EBP Policies that support/promote the EBP are approximately equally balanced by policies that create barriers On balance, policies that support/promote the EBP outweigh policies that create barriers Virtually all policies and regulations impacting the EBP support/promote the EBP

Narrative The successful implementation and sustaining of effective supported employment services on a statewide basis often relies upon effective policy and funding collaborations with other important agencies in a state, specifically the state’s Vocational Rehabilitation agency and the state’s Medicaid Authority or

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Agency. DBHDD staff has developed a draft of a Memorandum of Understanding to address some of the important policies and actions between Supported Employment services and the State’s Vocational Rehabilitation (VR) services. As described earlier, this draft has been signed on the DBHDD side and was awaiting signature from the State’s VR services at the time of the SHAY review. This will be a significant step in aligning the important partnership between SE services and VR services. (On August 27, 2012, the Department informed the Independent Reviewer that the Memorandum of Understanding now was fully signed.)
Aligning policies and procedures between VR and SE services is important at the executive level and equally important at the practice level, on the ground, between local VR counselors and SE providers. There appears to be a great deal of concern and variability in terms of local relationships between the State’s VR counselors and SE providers. One provider’s SE team leader described, “a great working relationship with my local VR counselor, she is a great partner.” This provider stated that the local VR counselor is always receptive to opening up shared clients and has worked very well with SE services. The provider attributed this to a longstanding personal working relationship with the VR counselor.
Other providers described a much different relationship with local VR counselors and SE services. One person seemed to speak for many in a meeting when they
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stated, “In the State of Georgia it is counter productive to work with VR on our SE clients. VR counselors are constantly pushing our clients for more assessments to see if they can work. We are trying to get people jobs.” Another provider stated that trying to work with VR “is like adding an anchor to the rapid job search process we are trying to accomplish in SE services.” Many providers expressed the concern that VR counselors do not seem to have any information about what SE services are or how they can work well with VR services. One person stated, “It seems that the VR approach in our state is outdated, they have not had the chance to catch up to where we are at with SE services.” And another comment included, “The last time I even tried to work with VR on SE was two years ago. The VR counselor was not a good match for SE services.” None of the clients who were in SE services were able to describe working with state VR services in getting or keeping a job.
The need to further develop an on-the-ground positive working relationship between VR and SE was also identified by other people. The person doing the training on SE stated that they had the chance to have one meeting with some VR counselors and they were struck by how little information the counselors had about SE services and the focus on rapid competitive employment for clients. Several people voiced the idea that state VR Counselors do not see people with mental illness as good candidates for competitive employment closures and, therefore, do not want them on their caseloads. One person from the State’s VR services summed up the opportunity well, “What really prompted us to get to the
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table together [to work on the MOU] is that no one has enough resources to get things done without doing them together. This is a chance for us to come together to do the right thing for the people who need our services.”

11. Policies and Regulations: SMHA

The SMHA has reviewed its own regulations, policies and procedures to identify and remove or mitigate any barriers to EBP implementation, and has introduced new key regulations as necessary to support and promote the EBP.

Examples of supporting policies: • SMHA ties EBP delivery to contracts • SMHA ties EBP to licensing/ certification/ regulation • SMHA develops EBP standards consistent with the EBP model • SMHA develops clinical guidelines or fiscal model designed to support model EBP implementation
Examples of policies that create barriers: • SMHA licensing/ certification/ regulations directly interfere with programs ability to implement EBP

Present

Score:




1. Virtually all policies and regulations impacting the EBP act as

barriers

2. On balance, policies that create barriers outweigh policies that

support/promote the EBP

3. Policies that are support/promote the EBP are approximately

equally balanced by policies that create barriers

4. On balance, policies that support/promote the EBP outweigh

policies that create barriers

5. Virtually all policies and regulations impacting the EBP

support/promote the EBP

Narrative DBHDD has incorporated language into their contracting procedures with the SE providers linked to the Settlement Agreement. This language specifies that Supported Employment providers provide SE services that are consistent with the description of evidence-based Supported Employment in the SAMHSA

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toolkits as well as most of the identified principles of evidence-based Supported Employment services. 12. Policies and Regulations: SMHA EBP Program Standards

The SMHA has developed and implemented EBP standards consistent with the EBP model with the following components:

Present Present

1) Explicit EBP program standards and expectations, consonant with all EBP principles and fidelity components, for delivery of EBP services
2) SMHA has incorporated EBP standards into contracts, criteria for grant awards, licensing, certification, accreditation processes and/or other mechanisms
3) Monitors whether EBP standards have been met
4) Defines explicit consequences if EBP standards not met (e.g. contracts require delivery of model supported employment services, and contract penalties or nonrenewal if standards not met; or licensing/accreditation standards if not met result in consequences for program license.)

Narrative As stated previously, DBHDD has included language in provider contracts that specifies that SE services will be consistent with SE services as described in the SAMHSA toolkit, some of the principles of evidence-based supported employment and some of the SE fidelity scale. One clear example of an evidence-based SE principle that is not included in the language, due to the structure of the Settlement Agreement, is the Zero Exclusion criteria which is mitigated by the language for the “Target Population” previously discussed in this report.

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DBHDD provided fidelity reviews for three of the Settlement Agreement providers between November 30, 2011 and December 15, 2011. (A more detailed discussion of fidelity is included in item #13 of this report.) Agencies were provided with copies of the Fidelity Review findings. Of particular note for this section is the wide variation from providers regarding the explicit expectations of DBHDD regarding their fidelity findings. While some staff at DBHDD stated the expectation that all providers would have an SE fidelity score of 100 (115 – 125 = Exemplary Fidelity; 100 - 114 = Good Fidelity; 74 – 99 = Fair Fidelity; 73 and below = Not Supported Employment) or higher (using the IPS-25 Fidelity Scale), no provider stated that they were aware of that expectation from DBHDD. One provider stated that DBHDD “expects a written corrective action plan for all items that scored a 2 (on a range of 5 to 1) or lower on the fidelity scale.” Another provider stated, “We have no idea what the State expectation is.” And a third stated, “I can’t answer that.” While the leadership at DBHDD may have communicated explicit expectations to providers regarding fidelity previously, it may well be worthwhile to revisit specific and explicit fidelity expectations with SE providers again, including a specific document. There is no language in the SE Service Definition document that identifies provider expectations regarding fidelity.
DBHDD has been gathering data from the Settlement Agreement providers regarding client outcomes (a more detailed discussion of this is included in item #14 of this report). When providers were asked about the expectations of
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DBHDD regarding client employment outcomes for the Settlement Agreement slots, there was, once again, great variability in their understandings. One provider stated that DBHDD “expects us to have 40% of people in slots competitively employed. Last year they expected 30%, this year it is 40% and next year it will be 50%. There is no sanction for going below 40%.” Another provider stated, “We are considered to have good quality SE services if we are at 35% employment for the ADA slots.” And still another provider stated that they were not clear at all on what DBHDD is expecting for employment outcomes, if anything at all. It is noteworthy that the DBHDD SE Coalition Meeting Notes of the June 20, 2012 meeting state, “Discussed initial FY13 target of 35% competitive employment rate.” Once again, even if DBHDD has already made outcome expectations clear to providers, including discussing expectations verbally in SE Coalition meetings, it may be worthwhile to revisit this communication and furnish providers with specific and clear written expectations related to employment outcomes for those people in the Settlement Agreement slots.
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13. Quality Improvement: Fidelity Assessment

There is a system in place for conducting ongoing fidelity reviews by trained reviewers characterized by the following components:

Present
Present Present Present

1) EBP fidelity (or functional equivalent designed to assess adherence to all critical components of the EBP model) is measured at defined intervals
2) GOI fidelity (or functional equivalent designed to assess adherence to all critical components required to implement and sustain delivery of EBP) is measured at defined intervals.
3) Fidelity assessment is measured independent – i.e. not assessed by program itself, but by SMHA or contracted agency
4) Fidelity is measured a minimum of annually 5) Fidelity performance data is given to programs and
used for purposes of quality improvement 6) Fidelity performance data is reviewed by the SMHA +/-
local MHA 7) The SMHA routinely uses fidelity performance data for
purposes of quality improvement, to identify and response to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.) 8) The fidelity performance data is made public (e.g. website, published in newspaper, etc.)

No components covered

Narrative

As previously noted, staff from DBHDD conducted fidelity reviews for three

providers of SE services for people in the Settlement Agreement slots between

November 30, 2011 and December 15, 2011. Reports were written based on

the reviews and sent to providers sometime in March 2012. The fidelity

reviewers used the newest fidelity scale for evidence-based employment (IPS­

25) that was developed in 2008. The reports include findings and

recommendations on each of the twenty five items in the fidelity scale. This may

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be the first time that some of the staff from DBHDD participated in the conducting of fidelity reviews for SE providers.
One of the substantial benefits of implementing evidence-based practices in mental health is that, by their very definition, evidence-based practices must have a fidelity scale that measures the extent to which providers of the service are following the principles of the practice that have been identified through research. Fidelity scales provide process based measurements that are extremely helpful as a quality improvement tool to assess where agencies are in terms of their faithfulness to the practice; to understand what barriers or challenges are common for agencies across a system; and to provide a specific focus and structure to improve the quality of SE services in order to help more people to achieve their competitive employment goals.
The collective experiences of agencies that received fidelity reviews were that the reviews were not conducted in a quality improvement fashion but were instead conducted and written up as compliance audits. Many providers raised questions about the qualifications and the experiences of the staff from DBHDD who conducted the audit and if they had ever been formally trained in conducting SE fidelity reviews or if they had ever had the experience of shadowing welltrained SE fidelity reviewers doing a review. One provider summarized their experience this way, “The most challenging part of the fidelity review was that we were being rated on things that we did not know that we needed to do, for
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example having job development logs, until after the review was over.” Another provider stated, “We had a fidelity review that felt very punitive to us. The evaluators of fidelity were very black and white in the way they viewed things.” Another person commented that, during the fidelity review, reviewers continually stated that things were “out of compliance with fidelity.” One provider felt this way, “The fidelity was much more of a compliance audit than a collaborative quality improvement activity. We have had other external fidelity reviews here that were collaborative. This review was nothing like that.” The written fidelity report for each agency includes references to a “fidelity audit” as well as language about a “fidelity review.”
Many providers raised questions about how the IPS-25 fidelity scale should be used differently when the provider of SE services and the provider of other mental health services are from different agencies. Several providers felt they were being held accountable for things that they cannot change or influence. The most common example was that agencies felt blamed for not having their employment staff attend integrated mental health treatment team meetings when the mental health providers do not have those meetings occurring in their agencies.
Providers stated they were required to submit “corrective action plans” for all items in the fidelity review that received a score of 2 or lower. When asked if they were provided with any types of consultation or technical assistance from
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DBHDD on how to improve those items, providers stated they had a phone call on the review but did not receive any consultation services regarding improving fidelity. While the agencies each received reports, they stated they were not given any information about how they did in the review compared with other providers in the state.
As stated earlier, this may be the first use of SE fidelity reviews in the DBHDD system and, as such, there may be an important learning curve across the system. Fidelity reviews work best when agencies being reviewed are prepared for the reviews beforehand by having access to an overview training that provides them with information about what is covered in the review; how information for the review will be obtained; how information will be translated into scoring; who will receive copies of the review, how to use the review to improve employment outcomes; and, then, agency-based consultation services to work with agency leadership on strategies to improve the quality of SE services by using fidelity reviews. It is also important to develop a shared understanding and trust of the fidelity review process between the fidelity reviewers, the agency leadership and the leadership at DBHDD.
Many states have a statewide SE leadership team that has access to all fidelity reviews and findings for the purpose of monitoring and improving the quality of SE services across the state in collaboration with their training and technical assistance centers. Specific trainings and consultations may be designed to
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 address areas where fidelity scores are low across the state. Additionally, when providers have access to other providers’ fidelity scores (or the range) then they are able to identify those other providers who may be doing well in an area where they are weak and then seek consultation in that area from the other provider. It would be useful for DBHDD to seek out some expert consultation and training on providing fidelity reviews at the agency level as well as developing a system based focus on fidelity as a quality improvement tool for SE services.
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14. Quality Improvement: Client Outcomes

A mechanism is in place for collecting and using client outcome data characterized by the following:

Present Present Present
Present

1) Outcome measures, or indicators are standardized statewide, AND the outcome measures have documented reliability/validity, or indicators are nationally developed/recognized
2) Client outcomes are measured every 6 months at a minimum
3) Client outcome data is used routinely to develop reports on agency performance
4) Client specific outcome data are given to programs and practitioners to support clinical decision making and treatment planning
5) Agency performance data are given to programs and used for purposes of quality improvement
6) Agency performance data are reviewed by the SMHA +/- local MHA
7) The SMHA routinely uses agency performance data for purposes of quality improvement; performance data trigger state action. Client outcome data is used as a mechanism for identification and response to high and low performers (e.g. recognition of high performers, or for low performers develop corrective action plan, training & consultation, or financial consequences, etc.).
8) The agency performance data is made public (e.g. website, published in newspaper, etc.)

Narrative Supported employment services produce clear and easily defined important recovery-oriented fundamental outcomes such as the percentage of people obtaining and retaining competitive employment in their communities. DBHDD is collecting information monthly, including employment outcomes, from providers who have the Settlement Agreement slots. This information includes a number of different “fields” such as “Number of new job starts this month,” “Number

37

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 84 of 89

competitively employed at the END of this month,” and “Average hours worked per week.” The staff members at DBHDD have been able to use this data to formulate monthly summary reports for the providers of the Settlement Agreement slots, including the trends of the total number of consumers served per month; the competitive employment trends by month; and the percentage of consumers looking for a job who have contact with an employer within 30 days. These are excellent examples of reports that can be used to focus on quality improvement at both the system and the provider level. DBHDD staff stated that the directors of provider agencies receive feedback from DBHDD based on reports developed from the provider data, while providers reported that they did not receive this type of summary data back from DBHDD regarding outcomes.
Many providers expressed confusion and dismay about the gathering and use of outcome data related to SE services. One provider covered two large tables with the spreadsheet that providers are asked to input data into on a monthly basis as a visual way to display how complicated and timely the data input process is for them. All providers stated the data gathering is a very lengthy and costly process in terms of staff time to input the data. Another provider stated, “We are not sure why this data system, or its uses, or the reasons, or any of the benefits of using this data system.” Another provider summarized it this way, “I want to understand why we are doing this (SE data system) and why we are spending so much time to enter this data.”
38

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 85 of 89
 Given the two vastly different understandings as to whether DBHDD is sending this data to providers, combined with numerous provider questions and concerns with the SE data and the collection method, it may be useful to have an open dialogue with the providers of SE services about how this data is being used and disseminated. Once again, any written document that outlines how the data is used and where the data can be accessed by providers for quality improvement purposes would also be helpful to address potential provider concerns and questions about SE data collection.
39

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 86 of 89

15. Stakeholders

The degree to which consumers, families, and providers are opposed or supportive of EBP implementation.

Consumer Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

4. Generally supportive, but no partnerships, or active proponents.

Present

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

Family Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

Present

4. Generally supportive, but no partnerships, or active proponents.

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

Provider Stakeholders

1. Active, ongoing opposition to the EBP

2. Opposition outweighs support, or opinion is evenly split, but no

active campaigning against EBP

3. Stakeholder is generally indifferent

Present

4. Generally supportive, but no partnerships, or active proponents.

5. Stakeholder advocacy organization leadership/opinion leaders

currently offer active, ongoing support for the EBP. Evidence of

partnering on initiatives.

4

15. Summary Stakeholder Score: (Average of 3 scores below)

5

15.a Consumers Stakeholders Score

4

15.b Family Stakeholders Score

4

15.c Providers Stakeholders Score

40

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 87 of 89
 Narrative The support for SE services in Georgia is quite strong across numerous stakeholder and advocacy groups. Georgia has a very active chapter of APSE (Association for People in Supported Employment). The Georgia Consumer Advocacy Network has a large annual conference. Numerous people cited that that group has chosen employment and supported employment as their top priority for numerous years. The network of providers who have the Settlement Agreement slots appear to be very enthusiastic and committed to the delivery of SE services. Family members and mental health advocates are clear about their support for supported employment and the importance of employment in helping their loved ones to make progress with their recovery.
41

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 88 of 89

National Implementing Evidence Based Practices Project SHAY Data The overall average SHAY item score for states participating in the Substance Abuse and Mental Health Services (SAMHSA) National Implementing Evidence Based Practices Project was 3.14. In those states, the overall average item fidelity score across all five identified EBPs was 3.47. In those states where provider agencies were able to successfully implement EBPs (average EBP fidelity item score of 4.0 or higher), the State Mental Health Authority had an average SHAY item score of 3.82. States with higher SHAY scores also had better EBP implementation. In other words, the actions of the State Mental Health Authority described in the contents of the SHAY are associated with the fidelity and quality of services provided at the local level.
42

Case 1:10-cv-00249-CAP Document 154 Filed 09/20/12 Page 89 of 89


Summary of Georgia SE SHAY Item Scores 2012 


1.EBP Plan

4

2.Financing: Adequacy

3

3.Financing: Start-up and Conversion Costs

1

4.Training: Ongoing Consultation & Technical Support

2

5.Training: Quality

3

6.Training: Infrastructure / Sustainability

3

7.Training: Penetration

1

8.SMHA Leadership: Commissioner Level

4

9.SMHA Leadership: EBP Leader

3

10. Policy and Regulations: Non-SMHA

2

11. Policy and Regulations: SMHA

4

12. Policy and Regulations: SMHA EBP Program Standards 3

13. Quality Improvement: Fidelity Assessment

3

14. Quality Improvement: Client Outcome

3

15. Stakeholders: Average Score

4

(Consumer, Family, Provider)

43

Total SHAY Score

2.9

Average SHAY Item Score

43

 
 Case 1:10-cv-00249-CAP Document 151 Filed 08/29/12 Page 1 of 4

UNITED STATES DISTRICT COURT
 NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION


UNITED STATES, Plaintiff,
v. STATE OF GEORGIA,
Defendant.

CIVIL ACTION NO. 1:10-CV-249-CAP

O R D E R

For good cause shown, and in consideration of the status

conference at which the Parties proposed modifications to the

Settlement Agreement [Docket Nos. 112 & 115], the court hereby

MODIFIES the Settlement Agreement as follows:

Section III.B.2.a.i(A):

ACT is a service that delivers comprehensive, individualized,

and flexible treatment, support, and rehabilitation to individuals

where they live and work. ACT is provided through a

multidisciplinary team that shall include a psychiatrist, nurse,

professional counselor, case worker, substance abuse specialist,

vocational rehabilitation specialist, and peer specialist. Services

are highly individualized and customized, and address the

constantly changing needs of the individual over time. Among the

services that ACT teams provide are: case management, initial and

ongoing assessments, psychiatric services, assistance with

employment and housing, family support and education, substance

Case 1:10-cv-00249-CAP Document 151 Filed 08/29/12 Page 2 of 4
abuse services, crisis services, and other services and supports critical to an individual’s ability to live successfully in the community. The ACT team also will have a team leader who supervises team members, organizes team functions, and provides direct clinical services to ACT consumers.
Section III.B.2.a.i(G): All ACT teams will operate with fidelity to the Dartmouth Assertive Community Treatment model. In order to provide the State with the flexibility to correct any perceived deficiencies in the ACT teams required to be created under this Agreement, the Independent Reviewer shall examine and review the performance of the ACT teams by July 1, 2012, but shall not make a determination of whether they operate with fidelity to the Dartmouth model until July 1, 2013. In addition, the State shall conduct a root cause analysis and develop a corrective action plan by September 1, 2012, regarding any perceived deficiencies in the ACT teams; the corrective action plan shall include timelines and provide for quarterly reporting on corrective actions until July 1, 2013. Section IV: A. By July 1, 2012, the State shall institute a quality management system regarding community services for the target populations specified in this Agreement. The quality management system shall perform annual quality service reviews of samples of
2


Case 1:10-cv-00249-CAP Document 151 Filed 08/29/12 Page 3 of 4
community providers, including face-to-face meetings with individuals, residents, and staff and reviews of treatment records, incident/injury data, and key-indicator performance data. The system’s review shall include:
1. The implementation of the plan regarding cessation of admissions for persons with developmental disabilities to the State Hospitals.
2. The service requirements of this Agreement. 3. The contractual compliance of community service boards
and/or community providers. 4. The network analysis. B. The State’s quality management system regarding community services shall analyze key indicator data relevant to the target population and services specified in this Agreement to measure compliance with the State’s policies and procedures. C. Beginning on February 1, 2013 and ending on February 1, 2015, the State’s quality management system shall create a report at least once every six months summarizing quality assurance activities, findings, and recommendations. The State shall also provide an updated quality management plan by July 1, 2012, and a provisional quality management system report by October 1, 2012. The provisional quality management system report shall not be subject to review by the Independent Reviewer under Section VI.B of
3


Case 1:10-cv-00249-CAP Document 151 Filed 08/29/12 Page 4 of 4
this Settlement Agreement. The State shall make all quality management reports publicly available on the DBHDD website.
In addition, the court has considered the Amici Curiae’s comments. Ms. Jones, the independent reviewer, needs no further authorization by the court to make recommendations regarding implementation of ACT and QMS to the State of Georgia officials. The court will not “require” the State of Georgia to implement her recommendations without further order. Nor will the court require Ms. Jones to oversee and coordinate training and technical assistance. Her role shall remain independent reviewer. All parties are encouraged to meet with the Amici for their recommendations. Since all parties believe Commissioner Berry will do so, no further order is needed. The court declines at this time to schedule annual status conferences with the parties, unless requested by the parties or the independent reviewer.
SO ORDERED, this 29th day of August, 2012.
/s/ Charles A. Pannell, Jr. CHARLES A. PANNELL, JR. United States District Judge
4


 
 IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 


UNITED STATES OF AMERICA,

)


)


Plaintiff,

)


)


v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

_________________________________________ )

CIVIL ACTION NO. 1:10-CV-249-CAP

SETTLEMENT AGREEMENT

I. Introduction
A. The United States brought this action by the filing of a complaint seeking declaratory and injunctive relief against Defendants based upon alleged violations of the Title II of Americans with Disabilities ADA, codified at 42 U.S.C. § 12101 (“ADA”), and implementing regulations at 28 C.F.R. Part 35, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and implementing regulations at 45 C.F.R. Part 84 (“Section 504”).

B. In order to resolve all issues pending between these parties without the expense, risks, delays, and uncertainties of a trial and any appeals that might follow such a trial, the United States and Defendants agree to the terms of this Settlement Agreement as stated below.

C. On January 15, 2009, the United States Department of Justice (“DOJ”) and the State entered into a settlement agreement which the United States District Court for the Northern District of Georgia entered as an order of the Court on September 24, 2010, in Civil Action No. 1:09-CV119-CAP. This Settlement Agreement does not affect the validity of the January 15, 2009 agreement between the parties.

D. On July 1, 2008, the State entered a Voluntary Compliance Agreement (“VCA”) with the United States Department of Health and Human Services’ Office for Civil Rights (“OCR”). This agreement supersedes the VCA.

Page 1 of 40

E. By entering into this Settlement Agreement, Defendants do not admit to the truth or validity of any claim made against them by the United States. Defendants also do not speak for the Georgia General Assembly, which has the power under the Georgia Constitution and laws to determine the appropriations for, and to amend laws respecting, the State of Georgia’s programs for mental health. However, Defendants acting under their existing authority agree that it will be a condition of their conduct of the mental health program covered by this Settlement Agreement to comply with the Settlement Agreement.
F. If the United States seeks a judicial remedy for Defendants’ noncompliance with the Settlement Agreement in accordance with Section V.C., and at any stage of subsequent enforcement proceedings Defendants or their successors assert insufficient funds or the legislature’s amendment or non-amendment of state law as a legal excuse, the United States may rescind its consent to the Settlement Agreement.
G. All parties acknowledge that the Court has subject-matter jurisdiction over this case, and authority to enter this Settlement Agreement and to enforce its terms. Defendants acknowledge they are subject to personal jurisdiction of the Court, and that venue is proper in this Court.
H. The Defendants in these actions are the State of Georgia and, in their official capacities: the Governor of the State of Georgia, the Commissioner of the Department of Behavioral Health and Developmental Disabilities, and the Commissioner of the Georgia Department of Community Health.
I. No person or entity is intended to be a third-party beneficiary of the provisions of this Settlement Agreement for purposes of any other civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Settlement Agreement in any separate action. This Settlement Agreement is not intended to impair or expand the right of any person or organization to seek relief against the State or their officials, employees, or agents.
Page 2 of 40

J. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 1345; 42 U.S.C. § 1997; and 42 U.S.C. §§ 1213112132. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
K. Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, and implementing regulations at 28 C.F.R. Part 35, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and implementing regulations at 45 C.F.R. Part 84 (“Section 504”), require, among other provisions, that, to the extent the State offers public services to qualified individuals with disabilities, such services shall be provided in the most integrated setting appropriate to meet the needs of such qualified individuals with disabilities. Accordingly, throughout this document, the Parties intend that the principle of self-determination is honored and that the goals of community integration, appropriate planning and services to support individuals at risk of institutionalization are achieved.
II. Definitions
As used in this Settlement Agreement, the following definitions apply to the terms below, without regard to case, gender, tense, or number:
A. “Assisted living facility,” for purposes of this Agreement, shall mean a residential living arrangement that serves more than 4 persons unrelated to the proprietor in which residential amenities are combined, as needed, with assistance with activities of daily living and personal care.
B. “DBHDD” shall mean the Georgia Department of Behavioral Health and Developmental Disabilities.
C. “Developmental Disability” shall mean a severe, chronic disability of an individual that: (1) is attributable to a significant intellectual disability or combination of significant intellectual disability and physical impairments; (2) is manifested before the individual attains age 22; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in three or more areas of major life activity; and (5) reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. For purposes of this Agreement, this definition also includes any individual who is served in a State Hospital as of the Effective Date of this Agreement on a ward or facility designated for individuals with developmental
Page 3 of 40

disabilities, even if the individual does not otherwise meet the above definition.
D. “DOJ” shall mean the United States Department of Justice.
E. “Effective Date” shall be the date on which this Settlement Agreement is approved and entered by the Court pursuant to Federal Rule of Civil Procedure 41(a)(2).
F. “Family supports” shall mean an array of goods and services aimed at providing families with the highly individualized support needed to prevent institutionalization and continue to care for a family member with developmental disabilities at home.
G. “Home and Community Based Waiver Services” or “State’s HCBS Waiver Program” shall mean the program approved by the Centers for Medicare and Medicaid for the purpose of providing services in community settings for eligible persons with developmental disabilities who would otherwise be served in Medicaid Intermediate Care Facilities for the Mentally Retarded (ICF/MR’s). For purposes of this Settlement Agreement, “State’s HCBS Waiver Program” includes the services of the COMP and NOW waivers as being implemented on the execution date of this agreement.
H. “Informed choice” shall mean a voluntary, well-considered decision that an individual, or where legally required, the individual’s legal guardian, makes on the basis of appropriate options, information, and understanding.
I. “OCR” shall mean the United States Department of Health and Human Services’ Office of Civil Rights.
J. “Parties” shall mean the United States and the State of Georgia.
K. “Serious and persistent mental illness” or “SPMI” shall mean a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria that has occurred within the last year, has resulted in functional impairment which substantially interferes with or limits one or more major life activities, and has episodic, recurrent, or persistent features.
L. “State” or “Georgia” shall mean the State of Georgia, its agencies, and its departments; the State’s employees, agents, or assigns; and their successors or designees.
Page 4 of 40

M. “State Hospitals” shall mean the facilities, services, and programs supplied or provided to individuals admitted to the hospital at Georgia Regional Hospital at Atlanta (“GRHA”), Georgia Regional Hospital at Savannah (“GRHS”), Central State Hospital (“CSH”), Southwestern State Hospital (“SWSH”), West Central Georgia Regional Hospital (“WCGRH”), Northwest Georgia Regional Hospital (“NWGRH”), and East Central Regional Hospital (“ECRH”).
N. “United States” shall mean DOJ and OCR and their employees, agents, or assigns, and their successors or designees.
III. Substantive Provisions
As part of this Agreement to settle and resolve pending litigation between the United States and the State of Georgia, the Parties hereto agree to the measures set forth below:
A. Serving People With Developmental Disabilities In The Community
1. Cessation of Admissions to the State Hospitals
a. By July 1, 2011, the State shall cease all admissions to the State Hospitals of all individuals for whom the reason for admission is due to a primary diagnosis of a developmental disability.
b. The State will make any necessary changes to administrative regulations and take best efforts to amend any statutes that may require such admissions.
2. Enhancement of Community Services
a. The target population for the community services described in this Section (III.A) shall be individuals with a primary diagnosis of a developmental disability who are currently hospitalized in the State Hospitals and those who are at risk of hospitalization in the State Hospitals. Inclusion in the target population does not guarantee or create a right to receipt of services.
b. HCBS Waiver Schedule & Family Supports
i. Pursuant to the schedule set forth below, the State shall provide to individuals with developmental
Page 5 of 40

disabilities in the target population the waiver services provided in the State’s HCBS Waiver Program as of the Effective Date of this agreement.
(A) By July 1, 2011, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community and the State shall create 150 waivers to accomplish this transition. In addition, the State shall move from the State Hospitals to the community all individuals with an existing and active waiver as of the Effective Date of this Agreement, provided such placement is consistent with the individual’s informed choice. The State shall provide family supports to a minimum of 400 families of people with developmental disabilities.
(B) Between July 1, 2011, and July 1, 2012, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 450 families of people with developmental disabilities.
(C) Between July 1, 2012, and July 1, 2013, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide
Page 6 of 40

family supports to an additional 500 families of people with developmental disabilities.
(D) Between July 1, 2013, and July 1, 2014, the State shall move 150 individuals with developmental disabilities from the State Hospitals to the community. The State shall create 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the institutionalization of individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 500 families of people with developmental disabilities.
(E) Between July 1, 2014, and July 1, 2015, the State shall attempt to move any remaining individuals with developmental disabilities from the State Hospitals to the community. The State shall create up to 150 waivers to accomplish this transition. The State shall also create 100 additional waivers to prevent the hospitalization of individuals with developmental disabilities who are currently in the community. The State shall provide family supports to an additional 500 families of people with developmental disabilities.
(F) Any persons with developmental disabilities remaining in State Hospitals on July 2, 2015, shall be served in the most integrated setting appropriate to their needs.
ii. Community Living Options
(A) The State shall serve individuals in the target population receiving HCBS Waiver Program services in their own home or their family’s home consistent with each individual’s informed choice. In order to accomplish this, funds shall be provided to persons with developmental disabilities
Page 7 of 40

through the State’s HCBS Waiver Program, available federal funds, and/or State funds as necessary.
(B) Individuals in the target population shall not be served in a host home or a congregate community living setting unless such placement is consistent with the individual’s informed choice. For individuals in the target population not served in their own home or their family’s home, the number of individuals served in a host home as defined by Georgia law shall not exceed two, and the number of individuals served in any congregate community living setting shall not exceed four.
(C) Individuals receiving the State’s HCBS Waiver Program services shall not be served in a skilled nursing facility, intermediate care facility, or assisted living facility unless service in such a facility is in accordance with the individual’s informed choice.
iii. Support coordination shall be provided to all waiver participants. For the purposes of this agreement, support coordination shall mean:
(A) Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Service Plans, as required by the State’s HCBS Waiver Program, that are individualized and person centered;
(B) Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, and other services identified in the Individual Service Plan; and
Page 8 of 40

(C) Monitoring the Individual Service Plan to make additional referrals, service changes, and amendments to the plans as identified as needed.
iv. The State may provide funding for the obligations set forth in this schedule through any legal means, including the State’s current money-follows-theperson program.
c. Crisis Response
i. Mobile Crisis Teams
(A) By July 1, 2012, the State will have six mobile crisis teams for persons with developmental disabilities.
ii. Crisis Respite Homes
(A) Crisis Respite Homes provide respite services to persons with developmental disabilities and their families. Each Crisis Respite Home will have four beds for use by individuals with developmental disabilities.
(B) Pursuant to the schedule set forth below, the State will establish 12 Crisis Respite Homes by July 1, 2014.
(1) By July 1, 2012, the State will have five Crisis Respite Homes for individuals with developmental disabilities.
(2) By July 1, 2013, the State will establish an additional four Crisis Respite Homes for individuals with developmental disabilities.
(3) By July 1, 2014, the State will establish an additional three Crisis
Page 9 of 40

Respite Homes for individuals with developmental disabilities.

3. Individuals with Developmental Disabilities and Forensic Status

a. By July 1, 2013, the State shall create a program to educate judges and law enforcement officials about community supports and services for individuals with developmental disabilities and forensic status.

b. Individuals with developmental disabilities and forensic status shall be included in the target population and the waivers described in this Section, if the relevant court finds that community placement is appropriate. This paragraph shall not be interpreted as expanding the State’s obligations under paragraph III.A.2.b.

4. Assessing Quality

a. By July 1, 2013, the State will conduct an audit of community providers of waiver services.

b. By the Effective Date of this agreement, the State shall use a CMS approved Quality Improvement Organization (“QIO”) or QIO-like organization to assess the quality of services by community providers.

c. To evaluate the provision of care by community providers of waiver services, on an annual basis, the State may:

i.

Conduct face-to-face person centered interviews

with individuals receiving developmental disability

services;

ii. Conduct assessments of care of provider services, including support coordination agencies;

iii. Collect program participant feedback on the quality of the system through participation in the National Core Indicator Survey; and

Page 10 of 40

iv. Collect provider performance data through the use of specific federal and state performance indicators.
d. The State shall assess compliance on an annual basis and shall take appropriate action based on each assessment.
B. Serving Persons With Mental Illness In The Community
1. Target Population
a. The target population for the community services described in this Section (III.B) shall be approximately 9,000 individuals by July 1, 2015, with SPMI who are currently being served in the State Hospitals, who are frequently readmitted to the State Hospitals, who are frequently seen in Emergency Rooms, who are chronically homeless, and/or who are being released from jails or prisons.
b. Individuals with serious and persistent mental illness and forensic status shall be included in the target population, if the relevant court finds that community service is appropriate.
c. Pursuant to the VCA, the State established a Mental Health Olmstead List. The State shall ensure that all individuals on the Mental Health Olmstead List as of the Effective Date of this Agreement will, if eligible for services, receive services in the community in accordance with this Settlement Agreement by July 1, 2011. The Parties acknowledge that some individuals on the Mental Health Olmstead List are required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 et seq. The Parties further acknowledge that such registration makes placement in the community more difficult. The Parties may by written consent extend the application of the date set forth in this paragraph as it applies to such individuals. The written consent described in this paragraph will not require Court approval.
d. The State shall include any individual in the target population who otherwise satisfies one of the eligibility criteria above and who has a co-occurring condition, such as substance abuse disorders or traumatic brain injuries.
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2. To comply with this Settlement Agreement, the State shall provide the following services to individuals in the target population:

a. Intensive Services for Individuals with SPMI

i.

Assertive Community Treatment (“ACT”)

(A) ACT is a service that delivers comprehensive, individualized, and flexible treatment, support, and rehabilitation to individuals where they live and work. ACT is provided through a multidisciplinary team that shall include a psychiatrist, nurse, psychologist, social worker, substance abuse specialist, vocational rehabilitation specialist, and peer specialist. Services are highly individualized and customized, and address the constantly changing needs of the individual over time. Among the services that ACT teams provide are: case management, initial and ongoing assessments, psychiatric services, assistance with employment and housing, family support and education, substance abuse services, crisis services, and other services and supports critical to an individual's ability to live successfully in the community.

(B) ACT teams shall provide crisis services, including helping individuals increase their ability to recognize and deal with situations that may otherwise result in hospitalization, increase and improve their network of community and natural supports, and increase and improve their use of those supports for crisis prevention.

(C) ACT teams shall provide services to promote the successful retention of housing, including peer support, and services designed to improve daily living skills, socialization, and illness self-management.

Page 12 of 40

(D) ACT teams who serve individuals with co-occurring substance abuse disorders shall provide substance abuse treatment and referral services to those individuals. Such ACT teams shall include on their staff a clinician with substance abuse expertise.
(E) ACT services shall be available 24 hours per day, 7 days per week.
(F) The number of individuals served by an ACT team shall be no more than 10 individuals per ACT team member. ACT teams shall be comprised of 7 to 10 team members, with at least one member being a peer specialist.
(G) All ACT teams will operate with fidelity to the Dartmouth Assertive Community Treatment model.
(H) By July 1, 2013, the State shall have 22 ACT teams according to the following schedule:
(1) By July 1, 2011, the State shall have 18 ACT teams.
(2) By July 1, 2012, the State shall have 20 ACT teams.
(3) By July 1, 2013, the State shall have 22 ACT teams.
ii. Community Support Teams (“CSTs”)
(A) CSTs have at least three team members, including a nurse, certified peer specialist, and one to two paraprofessionals. CSTs provide services in the individual’s own home and ensure that community resources needed for the individual to remain in the community are in place. CST will be provided in areas of the State with lower population density than is needed for ACT, in professional workforce shortage areas, or
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in areas to complement existing ACT services.
(B) CSTs will have a staff to client ratio of 1 to 20 in rural areas and 1 to 30 in urban areas.
(C) By July 1, 2014, the State shall have eight CSTs pursuant to the following schedule:
(1) By July 1, 2012, the State will have two CSTs.
(2) By July 1, 2013, the State will have four CSTs.
(3) By July 1, 2014, the State will have eight CSTs.
iii. Intensive Case Management (“ICM”)
(A) ICM teams provide coordination of treatment and support services for individuals in the target population. Oversight of paraprofessionals delivering ICM is provided by a licensed mental health professional. ICM teams assist individuals with SPMI in accessing community resources.
(B) Each ICM teams is comprised of 10 case fulltime case managers and one full-time supervisor.
(C) ICM teams will have a staff to client ration of 1 to 20 in rural areas and 1 to 30 in urban areas.
(D) By July 1, 2015, the State shall have 14 ICM Teams according to the following schedule:
(1) By July 1, 2011, the State will have one ICM team.
(2) By July 1, 2012, the State will have two ICM teams.
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(3) By July 1, 2013, the State will have three ICM teams.
(4) By July 1, 2014, the State will have eight ICM teams.
(5) By July 1, 2015, the State will have 14 ICM teams.
iv. Case Management Services
(A) Case Management Services provides coordination of treatment and support services for individuals in the target population who need ongoing support in order to maintain services and supports that are in place.
(B) Each Case Management Service provider will have a 1 to 50 client to staff ratio.
(C) By July 1, 2015, the State shall have 45 Case Management service providers according to the following schedule:.
(1) By July 1, 2012, the State will have five Case Management service providers.
(2) By July 1, 2013, the State will have 15 Case Management service providers.
(3) By July 1, 2014, the State will have 25 Case Management service providers.
(4) By July 1, 2015, the State will have 45 Case Management service providers.
b. Crisis Services for Individuals with SPMI.
i. Crisis Service Centers (“CSCs”)
(A) Crisis Service Centers provide walk-in psychiatric and counseling services by licensed professionals in a center that is
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clinically staffed 24 hours per day, 7 days per week, to receive individuals in crisis, including individuals with co-occurring substance abuse disorders, and to assess and provide services and support, including referrals. (B) By July 1, 2015, the State agrees to establish a total of six CSCs according to the following schedule: (1) By July 1, 2013, the State will
establish one CSC. (2) By July 1, 2014, the State will
establish an additional two CSCs. (3) By July 1, 2015, the State will
establish an additional three CSCs. ii. Crisis Stabilization Programs (“CSPs”)
(A) CSPs are community-based residential services operated by community providers that provide psychiatric stabilization and detoxification services as an alternative to psychiatric hospitalization. They are located off the grounds of the State Hospitals. New CSPs will have 16 beds each.
(B) By July 1, 2014, the State will establish a total of three additional CSPs according to the following schedule: (1) The State will establish one CSP by July 1, 2012. (2) The State will establish an additional CSP by July 1, 2013. (3) The State will establish an additional CSP by July 1, 2014.
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iii. Community Hospital Beds
(A) Beginning on July 1, 2011, the State shall retain funding for 35 beds in non-State community hospitals without regard as to whether such hospitals are freestanding psychiatric hospitals or general, acute care hospitals.
iv. Crisis line
(A) The State shall operate a toll-free statewide telephone system for persons to access information about resources in the community to assist with a crisis (“Crisis Call Center”). Such assistance includes providing advice and facilitating the delivery of mental health services.
(B) The Crisis Call Center shall be staffed by skilled professionals 24 hours per day, 7 days per week, to assess, make referrals, and dispatch available mobile services. The Crisis Call Center shall promptly answer and respond to all crisis calls.
v. Mobile Crisis Services
(A) Mobile crisis services shall respond to crises anywhere in the community (e.g., homes or hospital emergency rooms) 24 hours per day, 7 days per week. The services shall be provided by clinical staff members trained to provide emergency services and shall include clinical staff members with substance abuse expertise and, when available, a peer specialist.
(B) Mobile crisis services shall be developed according to the following schedule:
(1) By July 1, 2013, the State shall have mobile crisis services within 91 of 159 counties, with an average annual
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response time of 1 hour and 10 minutes or less.

(2) By July 1, 2014, the State shall have mobile crisis services within 126 of 159 counties, with an average annual response time of 1 hour and 5 minutes or less.

(3) By July 1, 2015, the State shall have mobile crisis services within all 159 of 159 counties, with an average annual response time of 1 hour or less.

vi. Crisis Apartments

(A) Crisis apartments, located in community settings off the grounds of the State Hospitals and staffed by paraprofessionals and, when available, peer specialists, shall serve as an alternative to crisis stabilization programs and to psychiatric hospitalization.

(B) Each crisis apartment will have capacity to serve two individuals with SPMI.

(C) By July 1, 2015, the State will establish a total of 18 crisis apartments according to the following schedule:

(1) By July 1, 2013, the State will provide six crisis apartments.

(2) By July 1, 2014, the State will provide 12 crisis apartments.

(3) By July 1, 2015, the State will provide 18 crisis apartments.

c. Housing Supports for Individuals with SPMI.

i.

Supported Housing is assistance, including psycho-

social supports, to persons with SPMI in the target

population that will assist such individuals in

attaining and maintaining safe and affordable

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housing and support their integration into the community. Supported Housing includes integrated permanent housing with tenancy rights, linked with flexible community-based services that are available to consumers when they need them, but are not mandated as a condition of tenancy.
(A) Supported Housing includes scattered-site housing as well as apartments clustered in a single building. By July 1, 2015, 50% of Supported Housing units shall be provided in scattered-site housing, which requires that no more than 20% of the units in one building, or no more than two units in one building (whichever is greater), may be used to provide Supported Housing under this agreement. Personal care homes shall not qualify as scattered-site housing.
(B) It is the intent of the parties that approximately 60% of persons in the target population receiving scattered-site Supported Housing will reside in a twobedroom apartment, and that approximately 40% of persons in the target population receiving scattered-site Supported Housing will reside in a one-bedroom apartment. Provided, however, nothing in Section III.B.2.c shall require the State to forego federal funding or federal programs to provide housing for persons in the target population with SPMI.
(C) Bridge Funding includes the provision of deposits, household necessities, living expenses, and other supports during the time needed for a person to become eligible and a recipient of federal disability or other supplemental income.
ii. Schedules:
(A) By July 1, 2015, the State will have capacity to provide Supported Housing to any of the
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9,000 persons in the target population who need such support. The Supported Housing required by this provision may be in the form of assistance from the Georgia Department of Community Affairs, the federal Department of Housing and Urban Development, and from any other governmental or private source.
(B) The State will provide housing supports for approximately 2,000 individuals in the target population with SPMI that are deemed ineligible for any other benefits pursuant to the following schedule:
(1) By July 1, 2011, the State will provide a total of 100 supported housing beds.
(2) By July 1, 2012, the State will provide a total of 500 supported housing beds.
(3) By July 1, 2013, the State will provide a total of 800 supported housing beds.
(4) By July 1, 2014, the State will provide a total 1,400 supported housing beds.
(5) By July 1, 2015, the State will provide a total 2,000 supported housing beds.
(C) The State will provide Bridge Funding for up to 1800 individuals in the target population with SPMI pursuant to the following schedule:
(1) By July 1, 2011, the State will provide Bridge Funding for 90 individuals with SPMI. The State will also commence taking reasonable efforts to assist persons with SPMI to qualify in a timely manner for eligible supplemental income.
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(2) By July 1, 2012, the State will provide Bridge Funding for 360 individuals with SPMI.
(3) By July 1, 2013, the State will provide Bridge Funding for 270 individuals with SPMI.
(4) By July 1, 2014, the State will provide Bridge Funding for 540 individuals with SPMI.
(5) By July 1, 2015, the State will provide Bridge Funding for 540 individuals with SPMI.
d. Supported Employment
i. Supported Employment will be operated according to an evidence-based supported employment model, and it will be assessed by an established fidelity scale such as the scale included in the Substance Abuse and Mental Health Administration (“SAMHSA”) supported employment tool kit.
ii. Enrollment in congregate programs shall not constitute Supported Employment.
iii. Pursuant to the following schedule, the State shall provide Supported Employment services to 550 individuals with SPMI by July 1, 2015.
(A) By July 1, 2011, the State shall provide Supported Employment services to 70 individuals with SPMI.
(B) By July 1, 2012, the State shall provide Supported Employment services to 170 individuals with SPMI.
(C) By July 1, 2013, the State shall provide Supported Employment services to 440 individuals with SPMI.
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(D) By July 1, 2014, the State shall provide Supported Employment services to 500 individuals with SPMI.

(E) By July 1, 2015, the State shall provide Supported Employment services to 550 individuals with SPMI.

e. Peer Support Services

i.

Peer Support Services are delivered by peers to

improve an individual's community living skills,

including their ability to cope with and manage

symptoms and to develop and utilize existing

community supports. Peer support services may be

provided by face-to-face or telephone contact and

include outreach, wellness training, and training in

self-advocacy.

ii. In addition to the peer support services provided by ACT and CST teams, the State will make Peer Support services available to up to an additional 835 individuals with SPMI pursuant to the following schedule:

(A) By July 1, 2012, the State shall provide Peer Support services to up to 235 individuals with SPMI.

(B) By July 1, 2013, the State shall provide Peer Support services to up to 535 individuals with SPMI.

(C) By July 1, 2014, the State shall provide Peer Support services to up to 835 individuals with SPMI.

iii. Peer Support availability will be measured by providing funding allow on average 1.5 trips per week per consumer.

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C. Services in the Community
1. Individuals under the age of 18 shall not be admitted to, or otherwise served, in the State Hospitals or on State Hospital grounds, unless the individual meets the criteria for emancipated minor, as set forth in Article 6 of Title 15, Chapter 11 of the Georgia Code, O.C.G.A. §§ 15-11-200 et seq.
2. Individuals in the target population with developmental disabilities and/or serious and persistent mental illness shall not be transferred from one institutional setting to another or from a State Hospital to a skilled nursing facility, intermediate care facility, or assisted living facility unless consistent with the individual’s informed choice or is warranted by the individual’s medical condition. Provided, however, if the State is in the process of closing all units of a certain clinical service category at a State Hospital, the State may transfer an individual from one institutional setting to another if appropriate to that individual’s needs. Further provided that the State may transfer individuals in State Hospitals with developmental disabilities who are on forensic status to another State Hospital if appropriate to that individual’s needs. The State may not transfer an individual from one institutional setting to another more than once.
3. Oversight of Community Service Boards and/or Community Providers
a. By January 1, 2012, the State shall:
i. Establish the responsibilities of community service boards and/or community providers through contract, letter of agreement, or other agreement, including but not limited to the community service boards’ and/or community providers’ responsibilities in developing and implementing transition plans.
ii. Identify qualified providers through a certified vendor or request for proposal process or other manner consistent with DBHDD policy or State law, including providers in geographically diverse
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areas of the State consistent with the needs of the individuals covered by this Agreement.
iii. Perform a cost rate study of provider reimbursement rates.
iv. Require community service boards and/or community providers to develop written descriptions of services it can provide, in consultation with community stakeholders. The community stakeholders will be selected by the community services boards and/or community providers.
v. Require and/or provide training to community service boards and/or community providers so that services can be maintained in a manner consistent with this Agreement.
vi. Utilize contract management and corrective action plans to achieve the goals of this Agreement and of State agencies.
b. Beginning on January 1, 2012 and on at least an annual basis, the State shall perform a network analysis to assess the availability of supports and services in the community.
c. No provision of this Agreement shall provide a basis of liability against the State for the tortious acts or omissions of community service boards and/or community providers.
D. Transition Planning
1. By July 1, 2011, the State shall have at least one case manager and by July 1, 2012, at least one transition specialist per State Hospital to review transition planning for individuals who have challenging behaviors or medical conditions that impede their transition to the community, including individuals whose transition planning team cannot agree on a transition plan or does not recommend that the individual be discharged. The transition specialists will also review all transition plans for
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individuals who have been in a State Hospital for more than 45 days.
2. The Transition Specialists will coordinate with State Hospital staff, the appropriate regional office, and the individual’s choice of community provider(s) in the development of a transition plan for these individuals and in the moving of individuals to the community.
3. Planning for transition to the community
a. For persons identified in the developmental disability and mental illness target populations of this Settlement Agreement, planning for transition to the community shall be the responsibility of the appropriate regional office and shall be carried out through collaborative engagement with the discharge planning process of the State Hospitals and provider(s) chosen by the individual or the individual’s guardian where required.
b. The regional office shall maintain and provide to the State Hospital a detailed list of all community providers, including all services offered by each provider, to be utilized to identify providers capable of meeting the needs of the individual in the community, and to provide each individual with a choice of providers when possible.
c. The regional office shall assure that, once identified and selected by the individual, community service boards and/other community providers shall actively participate in the transition plan (to include the implementation of the plan for transition to the community).
d. The community service boards and/or community providers shall be held accountable for the implementation of that portion of the transition plan for which they are responsible to support transition of the individual to the community.
IV. Quality Management
A. By January 1, 2012, the State shall institute a quality management system regarding community services for the target populations
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specified in this Agreement. The quality management system shall perform annual quality service reviews of samples of community providers, including face-to-face meetings with individuals, residents, and staff and reviews of treatment records, incident/injury data, and key-indicator performance data. The system’s review shall include:
1. The implementation of the plan regarding cessation of admissions for persons with developmental disabilities to the State Hospitals.
2. The service requirements of this Agreement.
3. The contractual compliance of community service boards and/or community providers.
4. The network analysis.
B. The State’s quality management system regarding community services shall analyze key indicator data relevant to the target population and services specified in this Agreement to measure compliance with the State’s policies and procedures.
C. Beginning on July 1, 2012 and ending on July 1, 2014, the State’s quality management system shall create a report at least once every six months summarizing quality assurance activities, findings, and recommendations. The State shall make them publicly available on the DBHDD website.
V. Implementation of the Agreement
A. The implementation of this Settlement Agreement shall begin immediately upon the Effective Date.
B. Within one month from the Effective Date of this Settlement Agreement, the State shall appoint a Settlement Agreement Coordinator to oversee compliance with this Settlement Agreement and to serve as a point of contact for the United States and the Independent Reviewer(s).
C. The State shall maintain sufficient records to document that the requirements of this Settlement Agreement are being properly implemented and shall make such records available to the Independent Reviewer(s) and United States for inspection and copying on a reasonable basis.
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D. In order to determine compliance with this Agreement, and to the extent they are within the State’s custody or control, the Independent Reviewer(s) and the United States shall have full access to persons, employees, residences, facilities, buildings, programs, services, documents, records, and materials that are necessary to assess the State’s compliance and/or implementation efforts with this Settlement Agreement. Such access shall include departmental and/or individual medical and other records. The Independent Reviewer(s) and the United States shall provide reasonable notice of any visit or inspection. In addition, the United States shall exercise its access to DBHDD employees in a manner that is reasonable and not unduly burdensome to the Department’s affairs. The Parties agree in cases where there in an emergency situation that presents an immediate threat to life, health or safety of individuals, neither the United States nor Independent Reviewer(s) will be required to provide the State notice of such visit or inspection. Such access shall continue until this case is dismissed.
E. The State shall notify the Independent Reviewer(s) promptly upon the death of any individual actively receiving services pursuant to this agreement. The State shall, via email, forward to the United States and the Independent Reviewer(s) electronic copies of all completed incident reports and final reports of investigations related to such incidents as well as any autopsies and death summaries in the State’s possession.
VI. Independent Reviewer(s)
A. The Parties have jointly selected Elizabeth Jones as the Independent Reviewer(s) for the Settlement Agreement. In the event that Elizabeth Jones is unable to fulfill his/her duties under this Settlement Agreement, the Parties will select a replacement. If the Parties are unable to agree on a replacement, they shall each submit the names of up to three candidates to the Court, and the Court shall select the replacement.
B. The Independent Reviewer(s) shall conduct the factual investigation and verification of data and documentation necessary to determine whether the State is in compliance with the terms of this Settlement Agreement at least annually, commencing on July 1, 2011 during the pendency of the Settlement Agreement. The Independent Reviewer(s) will file with the Court a written report on the State’s performance within 60 days after the close of each review cycle. The Independent
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Reviewer(s) will provide both the United States and State a draft of his or her report at least 10 business days before issuing the report. Both Parties will have five business days to review and comment on the proposed report before it is filed with the Court. The Parties may agree to allow the Independent Reviewer(s) an additional 20 days to finalize a report after he or she receives comments from the Parties, and such an agreement does not require Court approval.
C. The Independent Reviewer(s) may:
1. Have ex parte communications with the Parties and the Court at any time, and speak with stakeholders at the Independent Reviewer(s)’ discretion.
2. Testify in this case regarding any matter relating to the implementation, enforcement, or dissolution of the Settlement Agreement, including, but not limited to, the Independent Reviewer(s)’ observations, findings, and recommendations in this matter.
D. No Independent Reviewer(s) shall be:
1. Liable for any claim, lawsuit, or demand arising out of the monitoring of this Settlement Agreement. This paragraph does not apply to any proceeding before this Court for enforcement of payment of contracts or subcontracts for monitoring this Settlement Agreement.
2. Subject to formal discovery, including, but not limited to, deposition(s), request(s) for documents, request(s) for admissions, interrogatories, or other disclosures. The Parties are not entitled to access the Independent Reviewer(s)’ records or communications, although the Independent Reviewer(s) may provide copies of records or communications at the Independent Reviewer(s)’ discretion. The Court may review all records of the Independent Reviewer(s) at the Court’s discretion.
E. To determine compliance with this Agreement, the Independent Reviewer(s) will have full access to residents, persons, employees, residences, facilities, buildings, programs, services, documents, records, and materials that are necessary to assess the State’s compliance and/or implementation efforts with this Settlement Agreement. To determine compliance with this Agreement, the Independent Reviewer(s) may also enter any facility or program
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providing services to persons covered by this Agreement and may interview, on a confidential basis or otherwise, persons directly affected by the Settlement Agreement with such person’s consent.
F. DHBDD, through its employees or agents, will collect data with regard to each element of required performance under the terms of the Settlement Agreement and make it available on a timely basis to the Independent Reviewer(s).
G. In addition to the other duties described above, by October 30, 2013, the Independent Reviewer(s) shall (1) assess whether the crisis and respite services, including mobile crisis teams, required under this agreement for individuals with developmental disabilities are adequate to address the needs of the target population; and (2) assess whether the Community Support Team model, as implemented by the State, provides services that are sufficient to meet the needs of the members of the target population who receive their services through CSTs. The Independent Reviewer(s) then shall provide recommendations to the Parties as to what, if any, additional crisis and respite services may be necessary. The parties shall consider any such recommendations and may modify the Settlement Agreement in accordance with the provisions of Section VII.E. The Independent Reviewer(s)’s assessment described in this paragraph shall neither be binding on the Parties nor given presumptive weight by the Court.
H. Budget of the Independent Reviewer(s)
1. Within 60 days of appointment, the Independent Reviewer(s) shall submit to the Court for the Court’s approval a proposed budget for the first twelve months of operations. The parties agree that the anticipated budget for the Independent Reviewer(s) shall be no more than $250,000 for fiscal year 2012 plus an equivalent amount prorated through the remainder of fiscal year 2011.
2. The Independent Reviewer(s) will provide the Parties a draft of the proposed budget at least thirty days in advance of submission to the Court. The Parties shall raise with the Independent Reviewer(s) any objections they may have to the draft of the proposed budget within ten days of its receipt. If the objection is not resolved before the Independent Reviewer(s)’ submission of a proposed budget to the Court, a Party may file the objection with the Court within ten days of the submission of
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the proposed budget to the Court. The Court will consider such objections and make any adjustments the Court deems appropriate prior to approving the budget.
3. Thereafter, the Independent Reviewer(s) shall submit annually a proposed budget for the Court’s approval in accordance with the process set forth above.
4. At any time, but at least 30 days after sending to the Parties for review, the Independent Reviewer(s) may submit to the Court for approval a proposed revision to the approved budget, along with any explanation of the reason for the proposed revision. The Parties shall have an opportunity to submit an objection to the Court concerning a proposed revision to the approved budget in accordance with the process set forth above. Budget revisions will be effective upon approval by the Court.
I. Reimbursement and Payment Provisions
1. The cost of the Independent Reviewer(s), including the cost of any consultants to the Reviewer(s), shall be borne by the State in this action. All reasonable expenses incurred by the Independent Reviewer(s) in the course of the performance of the duties of an Independent Reviewer shall be reimbursed by the State in accordance with State regulations, and shall be paid no later than 30 days after submission. The Court retains the authority to resolve any dispute that may arise regarding the reasonableness of fees and costs charged by the Independent Reviewer(s). The United States will bear its own expenses in this matter.
2. The State shall deposit $100,000.00 into the Registry of the Court as interim payment of costs incurred by the Independent Reviewer(s). This deposit and all other deposits pursuant to this Order shall be held in the Court Registry Investment System and shall be subject to the standard registry fee imposed on depositors. The Independent Reviewer(s) shall submit monthly statements to the Court, with copies to the Parties, detailing all expenses the Independent Reviewer(s) incurred during the prior month. The Court shall order the clerk to make payments to the Independent Reviewer(s). The clerk shall make those payments within 10 days of the entry of the Order directing payment. Within 45 days of the entry of each Order directing payment, the
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State shall replenish the fund with the full amount paid by the clerk in order to restore the fund’s total to $100,000.00.
3. The Independent Reviewer(s) shall not enter into any contract with the State while serving as an Independent Reviewer. If an Independent Reviewer resigns from his or her position as Independent Reviewer, the former Independent Reviewer may not enter into any contract with the State on a matter related to this Agreement without the written consent of the United States while this Agreement remains in effect.
4. Nothing in this provision shall be interpreted as altering the role of the Independent Reviewer(s). The parties agree that an Independent Reviewer is not an agent of the Court, nor does an Independent Reviewer have any authority to act on behalf of the Court.
VII. Construction and Termination
A. The Parties agree jointly to file this Agreement with the United States District Court for the Northern District of Georgia, Atlanta Division, in United States v. Georgia, Civil Action No. 1:10-CV-249-CAP. The joint motion shall request that the Court enter the Settlement Agreement pursuant to Federal Rule of Civil Procedure 41(a)(2), conditionally dismiss the complaint in this action, and retain jurisdiction to enforce the Settlement Agreement. The Parties further agree to jointly file a motion with the Court, to withdraw the United States’ motion for preliminary injunction and to enforce the Settlement Agreement in case styled United States v. Georgia, Civil Action No. 1:09-CV-119CAP, to vacate the hearing set for November 8, 2010, and to terminate any ongoing discovery in that action; the motion shall request that the case be returned to the Court’s inactive docket. If the Court does not retain jurisdiction to enforce the Settlement Agreement, the Settlement Agreement shall be void.
1. The Parties anticipate that the State will have substantially complied with all provisions of the Settlement Agreement by July 1, 2015. Substantial compliance is achieved if any violations of the Agreement are minor or occasional and are not systemic.
2. The Court shall retain jurisdiction of this action for all purposes until the State has substantially complied with all provisions of
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this Settlement Agreement and maintain substantial compliance with all provisions for one year.
3. The Parties may agree to jointly ask the Court to terminate the Settlement Agreement before the end of the five-year term, provided the State has substantially complied with all provisions of the Settlement Agreement and maintained substantial compliance with all provisions for one year. If the case has not yet been dismissed, the Parties agree to ask the Court for a non-evidentiary hearing on the status of compliance on or near July 1, 2015. If the Parties agree that there is noncompliance, or if there is a dispute about compliance, the Parties will so inform the Court, and the Court may set additional hearing dates as appropriate. The Parties may agree jointly at any time to allow for additional time to resolve compliance issues.
B. If the State believes it has achieved substantial compliance with a portion of the Settlement Agreement and has maintained substantial compliance for one year, it shall notify the United States and Independent Reviewer(s). If the United States and the Independent Reviewer(s) agree with the State’s assessment of substantial compliance, the State shall be relieved of that portion of the Settlement Agreement.
C. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals covered by this Agreement, if the United States believes that the State has failed to fulfill any obligation under this Settlement Agreement, the United States shall, prior to initiating any court proceeding to remedy such failure, give written notice to the State which, with specificity, sets for the details of the alleged noncompliance.
1. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals covered by this Agreement, the State shall have 45 days from the date of such written notice to respond to the United States in writing by denying that substantial noncompliance has occurred, or by accepting (without necessarily admitting) the allegation of noncompliance and proposing steps that the State will take, and by when, to cure the alleged noncompliance.
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2. If the State fails to respond with 45 days or denies that substantial noncompliance has occurred, the United States may seek an appropriate judicial remedy.
D. If the State timely responds by proposing curative action by a specified deadline, the United States may accept the State’s proposal or offer a counterproposal for a different curative action or deadline, but in no event shall the United States seek an appropriate judicial remedy for the alleged noncompliance until at least 30 days after the State has responded under Subsection VII.C above and until both sides have conferred in good faith to resolve any outstanding differences.
1. The parties may, by mutual agreement, extend the time period specified in this paragraph. If the Parties reach an agreement that varies from the provisions of this Settlement Agreement, the new agreement shall be reduced to writing, signed, and filed with the Court for approval.
2. If the Parties fail to reach agreement on a plan for curative action, the United States may seek an appropriate judicial remedy.
3. Notwithstanding the provisions of Sections VII.C & D, with the exception of conditions that pose an immediate and serious threat to the life, health, or safety of individuals covered under this Settlement Agreement, the United States shall not issue a noncompliance notice nor seek a judicial remedy for the first nine months after the entry of this Settlement Agreement.
E Any modification of this Settlement Agreement shall be executed in writing by the Parties, shall be filed with the Court, and shall not be effective until the Court enters the modified agreement and retains jurisdiction to enforce it.
F. The Settlement Agreement shall be applicable to, and binding upon, all Parties, their employees, assigns, and their successors in office. If the State contracts with an outside provider for any of the services provided in this agreement, the agreement shall be binding on the contracted parties, including agents and assigns.
G. The State shall ensure that all appropriate State agencies take any actions necessary for the State to comply with provisions of this Settlement Agreement.
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H. If the State fails to make any necessary appropriations to comply with this Settlement Agreement, the United States has the right to withdraw its consent to this Agreement and revive any claims otherwise barred by operation of this Settlement Agreement.
I. The United States and the State shall bear the cost of their fees and expenses incurred in connection with this case.
VIII. General Provisions
A. The State agrees that it shall not retaliate against any person because that person has filed or may file a complaint, provided assistance or information, or participated in any other manner in the DOJ’s and/or OCR’s investigations related to this Settlement Agreement. The State agrees that it shall timely and thoroughly investigate any allegations of retaliation in violation of this Settlement Agreement and the nonretaliation provision of CRIPA and take any necessary corrective actions identified through such investigations.
B. If an unforeseen circumstance occurs that causes a failure to timely fulfill any requirements of this Settlement Agreement, the State shall notify the United States and the Independent Reviewer(s) in writing within 20 calendar days after the State becomes aware of the unforeseen circumstance and its impact on the State’s ability to perform under the Settlement Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall take all reasonable measures to avoid or minimize any such failure.
C. Failure by any Party to enforce this entire Settlement Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver, including of its right to enforce other deadlines and provisions of this Settlement Agreement.
D. The Parties shall promptly notify each other of any court or administrative challenge to this Settlement Agreement or any portion thereof, and shall defend against any challenge to the Settlement Agreement.
E. The United States and the State of Georgia release the other from any and all claims and obligations arising out of the allegations set forth in the complaint. Except as provided in this Settlement Agreement,
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during the term of this Agreement, the United States will not bring a claim arising under the ADA or the Rehabilitation Act for those claims.
F. The Parties represent and acknowledge this Settlement Agreement is the result of extensive, thorough and good faith negotiations. The Parties further represent and acknowledge that the terms of this Settlement Agreement have been voluntarily accepted, after consultation with counsel, for the purpose of making a full and final compromise and settlement of any and all claims and for the express purpose of precluding any further or additional claims arising out of the allegations set forth in the complaints and pleadings in these Actions. Each Party to this Settlement Agreement represents and warrants that the person who has signed this Settlement Agreement on behalf of his or her entity is duly authorized to enter into this Settlement Agreement and to bind that Party to the terms and conditions of this Settlement Agreement.
G. The Parties agree that the provisions of this Settlement Agreement are lawful, fair, adequate, and a reasonable resolution of the pending lawsuit.
H. Nothing in this Settlement Agreement shall be construed as an acknowledgement, an admission, or evidence of liability of the State under the Constitution of the United States, federal or state law, and this Agreement may not be used as evidence of liability in this or any other civil or criminal proceeding.
I. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall together constitute one and the same agreement, notwithstanding that each party is not a signatory to the original or the same counterpart.
J. “Notice” under this Settlement Agreement shall be provided by overnight courier to the following or their successors:
Chief of the Special Litigation Section 
 United States Department of Justice
 Civil Rights Division 
 601 D Street, N.W. 
 Washington, D.C. 20004 

Director of the Office for Civil Rights United States Department of Health and Human Services 200 Independence Avenue, S.W.
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Room 515F, HHH Building Washington, D.C. 20201 Attorney General of Georgia 40 Capitol Square, S.W. Atlanta, Georgia 30334 Executive Counsel to the Governor 201 State Capitol Atlanta, GA 30334 Independent Reviewer(s)
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 U.S. Department of Justice Civil Rights Division

JMS:MRB:RAK :KH:JH:sh 168-19-74, -75; -19M-68, -69, -70; -20-45, -46

Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530

November 26, 2012

BY ELECTRONIC MAIL
Frank W. Berry, Commissioner Georgia Department of Behavioral Health and Developmental Disabilities 2 Peachtree Street, NW Atlanta, GA 30303
David A. Cook, Commissioner Georgia Department of Community Health 2 Peachtree Street, NW Atlanta, GA 30303
Re: United States v. Georgia, No . 1:1O-CV-249-CAP, Year Two of the Settlement Agreement
Dear Commissioners Berry and Cook:
We write to offer the United States' assessment of the State 's second year under the Settlement Agreement in this matter, Doc. Nos . 112, 115, 151. As reflected in the Independent Reviewer's report, the State attained compliance with 27 of the 30 provisions scored in Year Two of the Agreement. Doc. No . 154 at 8- 11 . We recognize this significant accompl ishment. Of particular note, the State transitioned 164 individuals with developmental disabilities from the State Hospitals into community residential settings, served an additional 117 individual s in community waivers to prevent their institutionalization, and provided family supports to 2,248 indi viduals to maintain their existing community support networks. In addition, the State operated 12 mobile crisis teams and I I crisis respite homes to respond to and serve individuals with developmental disabilities who experience a crisis while living in the community; established two Community Support Teams, two Intensive Case Management teams, and five Case Management service providers to serve more than 700 individuals with mental illness in community-based settings; and provided housing vouchers to 648 individual s and bridge support funding to 568 individuals through an innovative program flexibly designed to meet individual needs and keep individual s stably hou sed, a key foundation for recovery from mental illness.
However, the State failed to reach compliance on three scored provisions: two regarding the quality of placements for individuals with developmental disabilities, Agreement ~ III.A.2.b.iii, and one regarding not serving individual s under the age of 18 in the State Hospital s, Agreement ~ II1.C. I. This is the second year in a row that the State has received a rating of non-compliance on these provisions. See Doc. No. 154 at 10& 13; Doc. No. 131 at 11 & 14. We recognize that the State since has come into compliance with ' 11II.C.I using

-2 ­
thoughtful planning and oversight, which we commend. But we are particularly concerned with the State's shortcomings on ensuring that individuals with developmental disabilities transitioned into community settings are provided with the necessary supports and services. At our next meeting on the topic, we would like to discuss the State's efforts on the following: (1) the explicit instructions to providers and State regional staff on expectations for the location, size, and habilitation of placements; (2) the expectations for service coordination; (3) the development of community capacity for those with behavioral concerns; and (4) the oversight over the quality of transition planning. We know that the State shares our concern and recognizes the imperative of achieving compli ance on these provisions by the end of Year Three.
In addition, the State was not scored on ten provisions under Year Two of the Agreement: two concerning the fidelity of Assertive Conununity Treatment teams, ~ III.B.2.a.i, and eight concerning the State' s Quality Management System, ~~ III.C.3 .b, IV.A- C. The United States agreed with the State to amend these provisions, Doc. Nos. 143 & 145, because of unique circumstances where the State had collaborated closely with the United States and had obtained and provided technical assistance during the infancy of these key provisions . We expect that the additional time and information provided by the amendments will enable the State to achieve compliance on these foundational pieces of the Agreement in the next fiscal year.
We encourage the State to build on its Year One and Year Two successes as it continues to develop a community service system and focuses on the quality and sustainabi lity of those services. The State is scheduled to further develop its mental health crisis system with a Crisis Service Center, mobile crisis, and crisis apartments; transition additional individuals with developmental disabilities from the State Hospitals to community settings; and provide additional integrated supported housing for individuals with mental illness as a foundation for their recovery. In its efforts, we are heartened by the State's close collaboration with the Independent Reviewer, Elizabeth Jones, and recent outreach with the amici. We also thank the State for the openness and candor in our regular parties' meetings. These communications are vital as the State continues to work toward attaining compliance with the terms of the Agreement by the Agreement' s anticipated completion date.
We once again applaud the significant good-faith efforts made by the State to comply with the Agreement and the State's continued embrace of the Agreement. In particular, we conunend the Department of Behavioral Health and Developmental Disability's substantial commitment ofleadership, energy, and resources toward the Agreement; the Department of Community Health's accessibility and responsiveness to Ms. Jones and the United States; and the Georgia Legislature ' S continued approval of the funding required for the implementation of the Agreement. These pieces are all critical for the State ultimately to reach the outcomes required by the Agreement and accompli sh the purpose and goal of the Agreement- that Georgians with developmental disabilities and mental illness li ve integrated, meaningful, safe, and self-directed lives in the community.

-3­
If you have any questions, please do not hesitate to contact me at (202) 514-6255 , or the attorneys assigned to this matter: Robert Koch at (202) 305-2302 and Katherine Houston at (202) 307-0652.

cc: Mark H. Cohen Troutman Sanders LLP
Josh Belinfante 
 Robbins Law LLC 

Elizabeth Jones 
 Independent Reviewer 

Aileen Bell-Hughes Assistant United States Attorney Northern District of Georgia

Special Litigation Section

 
 U.S. Department of Justice Civil Rights Division

JMS:MRB:RAK:TJM 168-19-74

Special Litigation Section" PHE 950 Pennsylvania Ave, NW Washington DC 20530

November 21,2011
By Electronic and Regular Mail
Frank E. Shelp, Commissioner Department of Behavioral Health and Developmental Disabilities 2 Peachtree Street, NW, 24th Floor Atlanta, GA 30303
Re: United States v. Georgia, No. 1:10-CV-249-CAP, Independent Reviewer's Report
Dear Commissioner Shelp:
We write to offer the United States' assessment of the State's first year under the Settlement Agreement in this matter. We commend your stated commitment to the Agreement, your staffs embrace of the Agreement, and the State Legislature's support for the Agreement. We also applaud the State's determination to work collaboratively with the Independent Reviewer, Elizabeth Jones, to ensure that individuals with disabilities in the Agreement's tal'get populations live integrated and meaningful lives in the community.
As reflected in the Independent Reviewer's report, the State had less than nine months to comply with 35 provisions and successfully complied with 31 of them. Report of the Independent Reviewer (Oct. 5,2011), Doc. No. 131, at 4-10. Of particular note, the State ceased all admissions to the State Hospitals due to a developmental disability; transitioned almost 200 individuals with developmental disabilities from the State Hospitals to community-based settings with Home and Community-Based Services Waivers; brought online 18 Assertive Community Treatment teams and two Intensive Case Management temns; funded 35 psychiatric beds in community hospitals; and developed 100 supported housing vouchers and concomitant bridge funding. Id. These accomplishments are important first steps toward developing a community mental health system that complies with the Agreement, comports with the ADA and Olmstead, and, most importantly, enables individuals in Georgia with a developmental disability or serious and persistent mental illness to live satisfying, independent lives with dignity and respect.
On the four provisions with which the State failed to comply, we expect the State to attain compliance this fiscal year. Ms. Jones identified concerns regarding the choices, supports, and healthcare provided to some individuals with development disabilities in community placements; the State responded by instituting corrective active procedures and will work with Ms. Jones to develop specific outcome measures arolmd community integration. Ms. Jones also identified infrastructure concerns with the Supported Housing alld Supported Employment programs; tlle State has indicated its plans to addt'ess prioritization alld fidelity in these programs, respectively. Finally, Ms. Jones identified two individuals under the age of 18 still

being served in the State Hospitals who await community placement; we expect that the State will continue to work diligently to develop the appropriate individualized supports to transition these two individuals without uunecessary delay.
We anticipate that the State will build on its early successes as it implements year two of the Agreement. In addition to the numerical targets specified in the Agreement, Ms. Jones will review samples of individuals with serious and persistent mental illness, similar to her sample reviews of individuals with developmental disabilities. These reviews provide a window into how the State's systemic efforts are affecting the day-to-day lives of individuals in the Agreement's target populations. Moreover, the State's Quality Management system due online this fiscal year will allow the State's systems to monitor, evaluate, and correct themselves on important issues such as program capacity, program fidelity, and program outcomes. We hope that the State will continue its collaborative involvement with Ms. Jones, which worked so well in year one, and will deepen its involvement with stakeholders as it continues to learn and unlearn lessons in implementation. As noted by Ms. Jones, change tal,es time, but Georgia has taken important first steps toward attaining compliance with the terms of tlle Agreement by the Agreement's anticipated completion date.

cc: Josh Belinfante Robbins Law, LLC 999 Peachtree Street, N .E. Suite 1120 Atlanta, GA 30309
Mark Cohen Troutman Sanders 5200 Bank of America Plaza 600 Peachtree Street, N .E. Atlanta, GA 30308

ie Special Litigation Section

2 


 
 Case 1:09-cv-00119-CAP Document 188 Filed 02/28/14 Page 1 of 1

UNITED STATES DISTRICT COURT 
 NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION


UNITED STATES,

Plaintiff, v. STATE OF GEORGIA,

CIVIL ACTION NO. 1:09-CV-119-CAP

Defendant.

ORDER In this court’s order of October 21, 2010 [Doc. No. 175], the court granted the parties’ joint request to administratively close this action while the parties implemented their Settlement Agreement. The parties have now notified the court that the Settlement Agreement terminated pursuant to its terms on January 15, 2014. The parties request that this case be closed permanently [Doc. No. 187]. The parties’ request is GRANTED. The case is HEREBY DISMISSED with prejudice, and the clerk is DIRECTED to terminate this civil action. SO ORDERED this 28th day of February, 2014.

/s/ Charles A. Pannell, Jr. CHARLES A. PANNELL, JR. United States District Judge

 
 Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. STATE OF GEORGIA, et al.,
Defendants.

)

)

)

)

Civil Action No.

)

1:09-CV-0119-CAP

)

)

)

NOTICE OF TERMINATION OF SETTLEMENT AGREEMENT AND JOINT REQUEST TO CLOSE CASE
On October 21, 2010, upon the parties’ joint request, the Court administratively closed this case [doc. no. 175] while the parties implemented their Settlement Agreement [doc. no. 7-2]. Plaintiff and Defendants hereby jointly notify the Court that the Settlement Agreement terminated, by its terms, on January 15, 2014.
Section IV.E of the Agreement provides that “[t]he Agreement shall terminate five years from the Effective Date.” This section contemplates that the State will attain substantial compliance prior to termination. With the exception of the discharge and transition planning provisions in Section III.F.1, 3, 4, and 5d of the Settlement Agreement, the parties agree that the State has attained substantial compliance. The parties further agree that the discharge and transition planning provisions contained in Section III.F.1, 3, 4, and 5d of the Settlement Agreement in

Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 2 of 5
this case are subsumed within Section III.D of the 2010 Settlement Agreement entered in the related case, Civil Action No. 1:10-CV-249 [see doc. no. 112]. The parties also agree that effective implementation of the discharge and transition planning terms are essential to compliance with the 2010 Settlement Agreement and will be subject to the Court’s jurisdiction and enforcement, if necessary, in Civil Action No. 1:10-CV-249.
There is no further need for the Court to retain jurisdiction for purposes of enforcing the now-terminated Settlement Agreement in this case. Accordingly, the parties respectfully ask the Court to close this case permanently.
Respectfully submitted, this 5th day of February, 2014.
(signatures on following pages)
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Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 3 of 5

FOR PLAINTIFF:

SALLY QUILLIAN YATES United States Attorney Northern District of Georgia

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division

/s/ Aileen Bell Hughes AILEEN BELL HUGHES Georgia Bar No. 375505 Assistant United States Attorney Northern District of Georgia
600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Telephone: (404) 581-6302 Facsimile: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

EVE HILL Senior Counselor Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
KATHERINE HOUSTON Trial Attorney

U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Telephone: (202) 305-2302 Facsimile: (202) 514-0212

- 3 -

Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 4 of 5

FOR DEFENDANTS:
SAMUEL S. OLENS Attorney General Georgia Bar No. 033887
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
JENNIFER DALTON Senior Assistant Attorney General Georgia Bar No. 614120
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ Mark H. Cohen
(with express permission)
MARK H. COHEN Special Assistant Attorney General Georgia Bar No. 174567
Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399
Robbins Ross Alloy Belinfante Littlefield LLC 999 Peachtree Street, N.E., Suite 1120 Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 856-3250 Email: josh.belinfante@robbinsfirm.com

- 4 -

Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 5 of 5
CERTIFICATE OF SERVICE The undersigned hereby certifies that this Notice of Termination of Settlement Agreement and Joint Request to Close Case was electronically filed with the Clerk of Court using the CM/ECF system, which serves notification of such filing to all counsel of record. This 5th day of February, 2014.
/s/ Aileen Bell Hughes AILEEN BELL HUGHES Georgia Bar No. 375505 Assistant United States Attorney Northern District of Georgia

 
 u.s. Department of Justice
Civil Rights Division

Office ofthe Assistant Attorney General

Washington, D.C. 20530

The Honorable Sonny Perdue Office of the Govern6r -.
203 State Capital Atlanta, Georgia 30334

MAY 30 2DJ

Re: CRIPA Investigation of the Georgia Regional 
 Hospital in Atlanta 


Dear Governor Perdue:

I am writing to report the findings of the Civil Rights Division's investigation of conditions and practices in the State's Psychiatric Hospitals pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. CRIPA gives the Department of Justice authority to seek a remedy for a pattern and practice of conduct that violates the constitutional or federal statutory rights of patients with mental illness or developmental disabilities who are treated in public institutions. The findings discussed in this letter apply particularly to the Georgia Regional Hospital in Atlanta, Georgia ("GRHA"). We will provide a supplemental letter describing any additional findings concerning the remaining hospitals in the state hospital system as soon as reasonably possible. However, as detailed below, we found conditions at GRHA to be so critically deficient that we write to you at this time to stress the urgency of necessary reforms. 1

On April 18, 2007, we notified you that we were initiating an investigation of conditions and practices in the State's Psychiatric Hospitals pursuant to CRIPA. The State agreed that the Department's inspection of four of the State's hospitals would stand as representative of all seven hospitals in the system. We began our on-site inspections with a visit to GRHA on

1

We note that many, if not all, of the findings we make

regarding GRHA are representative of conditions encountered at

the two other hospitals we have inspected to date, the Northwest

Regional Hospital in Rome and the Georgia Regional Hospital at

Savannah.

-2­
September 17 through 21, 2007. Visits to the Northwest Regional Hospital in Rome and the Georgia Regional Hospital at Savannah occurred on October 29 through November 2, 2007, and on December 17 through 21, 2007, respectively. The visit to Central State Hospital in Milledgeville is tentatively scheduled for June 9 through 13, 2008.
We conducted our on-site review with the assistance of expert consultants in the fields of psychiatry, psychology, psychiatric nursing, protec'tion from harm, and. discharge planning and community placement. While on-site, we interviewed administrative staff, mental health care providers, and patients, and examined the physical plant conditions throughout most, but not all, of the facility.2 In addition to our on-site inspection of GRHA, we reviewed a wide variety of documents, including policies and procedures, incident reports, and medical and mental health records. Consistent with our commitment to provide technical assistance and conduct a transparent investigation, we concluded our tour with an extensive debriefing at which our consultants conveyed their initial impressions and grave concerns about GRHA to counsel, administrators and staff, and State officials.
In accordance with statutory requirements, we now write to advise you formally of the findings of our investigation pertaining to GRHA, the facts supporting them, and the minimum remedial steps that are necessary to remedy the deficiencies set
2 The State, asserting that CRIPA does not afford jurisdiction over admissions, intake, and "short-term outpatient" units, refused us access to such units at GRHA (and at the regional hospitals in Rome and Savannah). The State's position is incorrect. See, SL:..9...:.., 42 C.F.R. § 483.20 (2006) (describing the State's duty to provide physician orders for immediate care at the time of admission and to perform comprehensive assessments within fourteen days of admission). By law, our investigation must proceed regardless of whether officials choose to cooperate fully. Indeed, when CRIPA was enacted, lawmakers considered the possibility that state and local officials might not cooperate in our federal investigations. See H.R. Conf. Rep. 96-897, at 12 (1980), reprinted in 1980 U.S.C.C.A.N. 832, 836. As we informed the State.'s attorneys, the State's decision to deny us access to these areas permits us to draw negative inferences about ,conditions and practices in those units. See id. While we'did not draw negative inferences in making the findings described in this letter, we reiterate that we are authorized to do so if the State continues to deny us access to these areas in the future.

-3­
forth below. 42 U.S.C. § 1997b(a). Specifically, we have concluded that numerous conditions and practices at GRHA violate the constitutional and statutory rights of its residents. In particular, we find that GRHA: (1) fails to adequately protect its patients from harm; (2) fails to provide appropriate mental health treatment; (3) fails to use seclusion and restraints appropriately; (4) fails to provide adequate nursing and health care; (5) fails to provide adequate services to populations with specialized needs; and (6) fails to provide adequate discharge planning to ensure 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).
We note, at the outset, three overarching concerns. First, the majority of the findings we have made have also been made by other agencies in the past. See,~, United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, Survey of Georgia Regional Hospital at Atlanta (June 14, 2006) (describing failure to meet federal regulatory standards in protection from harm, mental health treatment, nursing and health care, and specialized .needs services, resulting in injuries to patients, including death); Memorandum from Peter Buckley, M.D., and Nan Lewis, M.P.H., of the Medical College of Georgia to William P. Kissel of the Georgia Department of Human Resources entitled UAudit Summary - Georgia Regional Hospital - Atlanta" (May 3, 2007) (describing deficits in protection from harm, mental health treatment, seclusion and restraint usage, nursing and health care, and discharge planning, resulting in staff and patient injuries). Throughout this letter, we have included specific references to past findings by these entities, where appropriate. In addition, recent media coverage, including a series of investigative articles in the Atlanta Journal Constitution, has also reported that patients at GRHA are exposed to a significant risk of harm and often suffer preventable injuries and illnesses, some of which have been fatal. We found that these same conditions remain unabated, despite GRHA's notice of the deficiencies.
Second, GRHA is the very hospital where, nearly a decade ago, the United States Supreme Court made clear that the unnecessary institutionalization of persons with disabilities violates the law. Olmstead, 527 U.S. 581 (1999). Olmstead involved two women with developmental disabilities who were inappropriately confined at GRHA. The Supreme Court held that states are required to provide mental health treatment to persons

-4­
in the most integrated, appropriate settings. In the wake of the Olmstead decision, Georgia commissioned numerous studies of deficiencies in its community mental health care system, including: a February 2004 Study of the Community Service Board ("CSB") Service Delivery System (Phase I); a January 2005 Study of the CSB Service Delivery System (Phase II); and a May 2005 Georgia Mental Health System Gap Analysis. As stated in the Phase II Study by the State's Department of Audits and Accounts, these studies "point to accountability, oversight, management, and quality of care issues." Despite the mandate by the Supreme Court and the subsequent clear analysis and recommendations in Georgia's own reports, as indicated herein, our review of discharge planning at GRHA finds that Georgia still frequently fails to ensure that patients receive appropriate and sufficient services to enable them to live in the least restrictive setting consistent with their needs, and as required by federal law.
Third, the findings that we make about the Adolescent Unit are particularly disturbing. We observed several troubling incidents during our tour, including one where an adolescent tore the water cooler from the wall and had to be forcibly escorted by staff to a seclusion room. One week earlier, a disturbance on the same unit required the assistance of county police to subdue the adolescents on the unit. Moreover, we found the number of incidents on the unit of patient-on-staff abuse and patient-on­ patient aggression to be extraordinarily high. The GRHA psychiatrist assigned to the Unit described the situation as "continuing clinical chaos." Another staff member candidly stated that the adolescent patients would be safer outside of GRHA. This is a highly dangerous situation that requires immediate attention.
I. BACKGROUND
Georgia Regional Hospital at Atlanta was established in 1968 and was the first hospital facility constructed in Georgia's regional hospital system. Located on 174 acres in DeKalb County, GRHA serves residents of metropolitan Atlanta and a section of Northeast Georgia. GRHA operates 352 licensed inpatient beds in four disparate program areas: adult mental health, adolescent mental health, forensic services, and services for persons with developmental disabilities. 3 The adult mental health unit is

3

We note that the combination of populations at GRHA is

unusual. Each population and the combination of these

populations present unique health, safety, and treatment

concerns.

-5­
comprised of 124 beds and serves the six counties of metropolitan Atlanta( a population of more than four million people. The adolescent unit, comprised of 28 beds, is the sole adolescent program statewide. The forensic unit, comprised of 90 beds, serves both persons charged with a crime who require evaluation before trial, as well as persons committed by the courts to the hospital for treatment after being found incompetent to stand trial or not guilty by reason of insanity. The unit for persons with developmental disabilities provides residential care to 41 patients. In addition, four beds are reserved for temporary care for individuals who are in crisis in the community. GRHA also operates 65 beds providing residential skilled nursing care to persons with developmental disabilities who are also medically fragile.
II. LEGAL STANDARDS
The Fourteenth Amendment due process clause requires state mental health care facilities to provide patients with "adequate food, shelter, clothing, and medical care," along with conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training, including treatment, as may be reasonable in light of their constitutionally-based liberty interests. Youngberg, 457 U.S. at 315, 319, 322.
In order to secure these liberty interests, individualized treatment must be provided that will give patients "a reasonable opportunity to be cured or improve [their] mental condition." Donaldson v. O'Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated on other grounds, O'Connor v. Donaldson, 422 U.S. 563 (1975); D.W. v. Rogers, 113 F.3d 1214, 1217-18 (11th Cir. 1997) (holding that the constitutional right to psychiatric care and treatment is triggered by the State's physical confinement of an individual with mental illness; the court noted the holding of former Fifth Circuit cases, including Donaldson (which are binding upon the Eleventh Circuit if decided before September 30, 1981)); see also Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
Treatment is not adequate if it substantially departs from accepted professional judgment, practice, or standards. Youngberg, 457 U.S. at 320-23. Patients have a due process right to have all major decisions regarding their treatment be made in accordance with the judgment of qualified professionals acting within professional standards. Griffith v. Ledbetter, 711' F. Supp. 1108, 1110 (N.D. Ga. 1989).
In addition, patients' constitutional liberty interests in security compel states to provide reasonable protection from harm

- 6­
in mental health hospitals. Youngberg t 457 U.S. at 315-16. States are also compelled by the Constitution to ensure that patients are free from hazardous drugs which are "not shown to be necessarYt used in excessive dosages t or used in the absence of appropriate monitoring for adverse effects.1I Thomas S. v. FlahertYt 699 F. Supp. 1178 t 1200 (W.D.N.C. 1988) t afftd t 902 F.2d 250 (4th Cir. 1990). "Even on a short-term basis t states may not rely on drugs to the exclusion of other methods to treat people with behavior problems. 1I Id. at 1188.
It is a substantial departure from professional standards to rely routinely on seclusion and restraint rather than behavior techniques t such as social reinforcement t to control aggressive behavior. Thomas S.t 699 F. Supp. at 1189. Seclusion and restraint should only be used as a last resort. Id.; Davis v. Hubbard t 506 F. Supp. 915 t 943 (W.D. Ohio 1980). Further t professional judgment should be exercised on a case-by-case basis regarding the most appropriate setting in which individual patients should be placed. See t ~t Thomas S.t 902 F.2d at 254-55.
Medicare/Medicaid regulations governing certified psychiatric hospitals t such as those in Georgia t require adequate staffing t record keeping t caret treatment t and discharge planning. 42 C.F.R. §§ 482-483.
Furthermore t Georgia must provlde services to qualified individuals with disabilities in the most integrated setting appropriate to their needs. Title II of the Americans with Disabilities Act ("ADAII) t 42 U.S.C. § 12132 ("no qualified individual with a disability shall t by reason of such disabilitYt be excluded from participation in or be denied the benefits of the services t programs t or activities of a public entitYt or be subjected to discrimination by any such entityll) t and its implementing regulations t 28 C.F.R. § 35.130(d) ("A public entity shall administer services t programs t and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities ll ); see Olmstead t 527 U.S. at 607 (holding that states are required to provide community-based treatment for persons with mental disabilities when the Statets treatment professionals determine that such placement is appropriate t the affected persons do not oppose such treatment t and the placement can be reasonably accommodated t taking into account the resources available to the State and the needs of others with mental disabilities) .

-7­
III. FINDINGS
Significant and wide-ranging deficiencies exist in GRHA's provision of care. Certain conditions and services at GRHA substantially depart from generally accepted professional standards, and violate the constitutional and federal statutory rights of patients who reside there. In particular, we find that GRHA: (1) fails to ensure the reasonable safety of its patients; (2) fails to provide adequate mental health treatment; (3) engages in the inappropriate use of seclusion and restraints; (4) fails to provide adequate nursing care; (5) fails to provide adequate services to populations with specialized needs; and (6) fails to provide adequate discharge planning to ensure placement in the most integrated setting. Many of these deficiencies stem from a system that does not have clear, specific standards of care or an adequate number of trained supervisory, professional, and direct care staff.
A. GRHA Does Not Adequately Protect Patients from Harm
Patients at GRHA have a right to live in reasonable safety. See Youngberg, 457 U.S. at 315, 322. GRHA fails to provide a living environment that complies with this constitutional mandate. Specifically, individuals residing at GRHA are subject to frequent patient assaults that often result in serious harm, to unchecked self-injurious behavior, and to abuse and neglect. The harm GRHA residents experience is multi-faceted and includes physical injury; psychological harm; inadequate, ineffective, and counterproductive treatment; repeated hospitalizations; and excessively long hospitalizations. The facility's ability to address this harm is hampered by inadequate incident, risk, and quality management, including deficient investigative practices.
1. Incidents at GRHA Are Serious and Recurring
Our review of the incidents at GRHA revealed that they are serious, recurring, and frequently result in grave harm. We highlight three areas where the problems are particularly acute: patient aggression, accumulation· of contraband, and suicide ideation and attempts.
a. Patient Aggression and Self-Injurious Behaviors Are Not Controlled
Patient aggression is not adequately controlled on many of the units at GRHA. A melee that occurred on the Adolescent Unit just one week prior to our visit is illustrative of the problems we found with uncontrolled patient aggression at GRHA:

- 8­

•

On September 8, 2007, six adolescents began throwing tables

and chairs at the window protecting the nurses' station.

Three of the adolescents forced the door to the lobby of the

Adolescent Unit open by kicking and slamming it with their

bodies. The patients broke tables and cabinets in the lobby

area and attempted to force open the outside door. One

patient held a piece of plexiglass to his neck, threatening

to cut himself, and then cut his neck before staff was able

to take the piece of plexiglass from him. Other patients

not involved in the destructive behavior refused to stay in

their rooms and began running around the unit. Staff and

facility police were unable to restore order and had to call

DeKalb County police officers to diffuse the situation.

Our review of patient incidents reveals troubling patterns in the patient aggression: repeat victims, repeat aggressors, and units where patient aggression is particularly uncontrolled. The frequent patient-on-patient assaults at GRHA often result in serious injury to the victim, including fractures, lacerations, and head wounds, many of which can not be treated at GRHA and require treatment at the local emergency room. These incidents are not merely fights between two patients. Rather, they often involve multiple assailants. For example:

•

A.A.4 was assaulted by two patients two days after he was

admitted; his right eye was injured. Less than a week

later, A.A. was again the victim of an assault by two

patients; this time his left eye was injured.

•

B.B. was attacked by three patients, and the following day

he was attacked by two patients, one of whom participated in

the first assault.

Assaults and patient aggression are particularly problematic on the Adolescent Unit. GRHA staff are unable to provide adequate security for the patients on that unit. Among the serious incidents that occurred during our visitS was one involving C.C., a 16-year-old patient experiencing his 13th

4 To protect patients' privacy, we identify them by initials other than their own. We will separately transmit to the State a schedule that cross-references the initials with patient names.
S The DOJ team was not on the Adolescent Unit at the time of the incident, although we observed the debriefing following the incident.

- 9­
psychiatric hospitalization in two years. C.C. entered a psychiatrist's office and refused to leave. His behavior became threatening, escalating out of control as he began destroying items in the office and banging on the locked door. The psychiatrist tried unsuccessfully to call for help and finally hailed a staff member in the vicinity who called an emergency code. C.C. left the doctor's office and damaged property in the front lobby before he was eventually calmed and placed in seclusion. In a debriefing following this incident, staff uniformly reported feeling unsafe on the Adolescent Unit. The psychiatrists asserted that lack of adequately trained staff resulted in "continuing clinical chaos" on the unit. Notably, GRHA staff asserted to the DOJ team that the adolescent patients would be safer outside of GRHA.
Staff as well as patients are often the victims of assault. Indeed, staff on the Adolescent Unit are repeatedly victims of patient aggression. Our review found at least 22 incidents of patient aggression against staff on the Adolescent Unit between January and August 2007, including kicking, punching, biting, and sexual assault. For example, on January 12, 2007, D.D. approached a female staff member from behind, covered her mouth with his hand, pushed her against the wall, and attempted to sexually assault her. In another incident, E.E. took scissors from a shelf and threatened to attack a physician. On March 18, 2007, when a staff member attempted to intervene in a fight between two patients, both patients began punching and kicking the staff member for intervening in the fight. Given these conditions, it is not surprising that staff expressed fear and concern for their own and patients' safety on the Adolescent Unit.
Sexual assaults are not limited to the Adolescent Unit. Staff members and patients on other units have been similarly assaulted. For instance, one female staff member was forced into the kitchen by a male patient who pushed his body against hers and attempted to sexually assault her. In another example, a female patient reported that a male patient had come into her room and attempted to remove her pants before she persuaded him to leave.
The repeated and significant level of violence on the units suggests a fundamental failure to address the root causes of patients' aggression and demonstrates a failure to intervene adequately to prevent future incidents. The case of patient F.F. is illustrative:

- 10 ­

•

One night in late January 2007, F.F. broke a light fixture

and threw a couch across the East Unit's day room. The

following afternoon, he punched another patient in the

forehead. A few days later, he pushed his physician during

an examination and broke furniture in the day room. Ten

days later, F.F. pushed another patient to the ground, and

the patient struck his head on a chair as he fell,

lacerating his eyelid and eyebrow. The following day, F.F.

threw chairs across the cafeteria, and then went outside and

began shaking a staff member's vehicle. That evening, F.F.

hit a patient in the face. Within the next few weeks, F.F.

attacked a staff member, putting him in a choke hold and

wrestling him to the ground. We found no indication that

F.F.'s treatment team developed a behavioral support plan to

address F.F.'s aggression.

b. Contraband Is Not Controlled

Contraband is frequently recovered at GRHA, and much of this contraband has been converted into weapons by patients. During the same time frame as the aggressive incidents described above, F.F. was discovered with two razors, a large pair of scissors, a broken plastic knife, and several other pieces of contraband. A.A. used a razor to cut arteries in his neck and arms, requiring emergency room treatment. Many other patients have been found with weapons, including knives and razors, and with toothbrushes and combs sharpened into shanks. Other patients have been able to hoard or smuggle numerous pills, which, if taken at one time, could cause grave illness or even death. Given the level of patient aggression and the psychological instability of many of the patients at GRHA, the amount of contraband accumulated by patients is indicative of inadequate care and supervision.

c. Suicidal Ideation and Attempts Are Not Addressed Appropriately

A significant number of patients are admitted to GRHA for stabilization and protection because of suicidal ideation or attempts. Our review revealed a troubling number of patients who obtained the means to attempt suicide and/or who inflicted serious self-harm despite being admitted because of suicidal ideation or after declaring an intent to harm themselves. Three examples are illustrative:

•

G.G. is a 21-year-old woman first admitted to GRHA in August

2007 after running into traffic with a broken glass bottle

in her hand, threatening to kill herself. GRHA

professionals determined that G.G. was stable approximately

- 11 ­

one week after her admission and discharged her to a homeless shelter. G.G. was readmitted to GRHA with suicidal ideation only three days after her discharge. Seven hours after arriving on a residential unit, and less than 32 hours after her admission, G.G. had both the means and the opportunity to make a serious suicide attempt. She was found lying face down in a pool of blood outside her bedroom doorway, unresponsive, with a cord wrapped tightly around her neck, and bleeding from her mouth and nose. Witness statements suggest that the cord was made of shoe laces and/or a robe belt from a bag given to G.G. on the admissions unit. GRHA records indicated that staff had not checked on G.G. for more than 30 minutes, although her observation level required that she be checked every 15 minutes.

•

H.H. has repeatedly attempted suicide during her admissions

to GRHA. In July 2006, she obtained a razor and made

mUltiple cuts to her abdomen requiring suturing. Less than

two weeks later, H.H. broke a ceiling light and swallowed

the glass, requiring treatment at the emergency room. The

following month, H.H. broke a light bulb and repeatedly

lacerated her arms, again requiring attention at the

emergency room. During a subsequent admission in March

2007, H.H. again broke a ceiling light, lacerated her arms,

and allegedly ingested glass. These injuries once again

required emergency room treatment.

•

A.A. cut his neck and arms with a razor on May 8, 2007. He

was rushed to the emergency room to stop the arterial

bleeding. When staff initially entered his blood-spattered

room, A.A. shouted ftI told you I was suicidal."

2. GRHA Provides Inadequate Incident and Risk Management
(
To protect its patients in accordance with generally accepted professional standards, GRHA should have in place an incident and risk management system that helps to prevent incidents and ensures appropriate corrective action when incidents do Qccur. An effective incident and risk management system depends on: (1) accurate data collection and reporting; (2) thorough investigations; (3) identification of actual or potential risks of harm, including the tracking and trending of data; and (4) implementation and monitoring of effective corrective and/or preventive actions. Although policies and procedures describe such an incident and risk management system at GRHA, this system is not implemented, and the actual incident and risk management system falls significantly short of these

- 12 ­
standards. As indicated above, GRHA has serious, recurring incidents and inconsistent incident reporting. Moreover, GRHA fails to identify risks and to implement corrective actions, and performs inadequate investigations. As a result, patients are routinely exposed to actual and potential harm.
a. Incident Reporting Is Incomplete
The first necessary step in addressing harm like that at GRHA is to ensure complete and accurate incident reporting. Although GRHA's incident reporting policy requires that all incidents be sent to the Compliance and Risk Management Department so that they can be entered into a centralized incident and injury database, this policy is not adequately followed. During our tour, we reviewed documents generated from GRHA's incident and injury database, including a facility-wide statistical summary of all incidents and injuries for the period between January and July 2007. This database summary indicated that the Developmental Learning Center ("DLC"), a 38-bed unit, reported only three incidents in this six month period. Records maintained on the DLC unit, however, indicated that 153 incidents occurred during that same period. Neither the DLC Director nor the Director for Compliance and Risk Management, who oversees the database, were aware that the DLC's incident reports had not been forwarded to the risk management department. Thus, from January 2007 until our consultant's review of the records in September 2007 -- a period of more than eight months -- records in the risk management department reflected a nearly complete absence of harm in the DLC, and no one noticed, investigated, or corrected this highly unlikely anomaly.
Failure to forward incident reports to the risk management department, and a corresponding failure to notice that these reports are missing, is not limited to the DLC. According to our review, GRHA's risk managers had also not received any incident reports from Secure Unit II for August or September 2007, despite this unit averaging seven incidents per month. Even if this lapse was attributable to a delay, and not a failure to report, the delay itself would be a critical failure to respond promptly to incidents of harm. Indeed, we found that GRHA has been repeatedly cited by State investigators for failing to report critical incidents in a timely manner as required by State policy.
The absence of reliable incident data, coupled with GRHA's inability to recognize this issue, indicates a grave deficit in the administration's operational oversight. Without reliable data regarding incidents and injuries, GRHA is incapable of

- 13 ­

responding appropriately to prevent future harm. GRHA's failure to adequately report incidents and injuries significantly departs from generally accepted professional standards.

b. Risk of Harm Is Not Identified and Sufficient Preventive Actions Are Not Taken

Incident management focuses on the collection and aggregation of data that are meaningful to protect an individual from harm, while risk management focuses on identifying actual or potential harm from that data and taking timely action to prevent the harm from occurring or recurring. Generally accepted professional standards dictate that ~ facility's risk management program: (1) identify actual or potential risks of harm based on historical data, diagnoses, and co-occurring conditions; (2) develop timely and appropriate interventions designed to reduce or eliminate the risks of harm; and (3) monitor the efficacy of the interventions and modify them as necessary in response to further data. GRHA fails to provide adequate risk management in each of these areas.

Although GRHA's incident and injury data are significantly under-reported, trends in, the existing data are nevertheless evident. These trends, however, appear to go unrecognized at GRHA. We found numerous examples of significant incidents or escalating patterns of incidents that remain unaddressed. For example:

•

As discussed earlier, F.F. had at least seven incidents of 


aggression against peers and staff within a five-week 


period, and mUltiple incidents of seclusion and restraint. 


Notwithstanding these indications of continued crisis, F.F. 


does not appear on the facility's list of persons with a 


Behavior/Safety plan. 


•

I.I. was admitted to GRHA after he was found incompetent to 


stand trial on child molestation charges. In July 2007, 


I.I. reported to a nurse that he had inserted a bottle of

deodorant in his rectum, and was sent to the emergency room

to have it removed. The only intervention by GRHA staff

appears to have been an instruction not to insert objects in

his rectum again, and questioning from his psychiatrist

about why he had done so, which I.I. declined to answer.

I.I.' medical record does not reflect that his treatment

- 14 ­

team either revised his treatment plan or otherwise addressed this issue. 6

The failure to identify actual or potential risks to patients and respond with appropriate interventions is a significant departure from generally accepted professional standards. Even when risks are identified, however, GRHA inadequately addresses those known risks. For example:

•

A Corrective Action Plan ("CAP") was developed after H.H.'s

July 2006 suicide attempt but was not implemented at the

time of her discharge. It was not implemented when H.H. was

readmitted in March 2007 and made a similar suicide attempt,

her fourth, while at GRHA.7

•

1.1. was on "sexual protocol" which required both

line-of-sight observation and a single bedroom to prevent

1.1. from sexually assaulting other patients. On

June 14, 2007, 1.1. was assigned to the same bedroom as four

other patientsi that evening, 1.1. sexually assaulted

another patient in the room.

•

J.J. was assigned to line-of-sight observation in February

2007. Having failed to maintain this observation level, a

staff member went into J.J.'s bedroom only after hearing a

loud noise from inside and discovered J.J. choking another

patient: The victim required emergency room treatment. Had

J.J.'s line-of-sight protocol been followed, this incident

would not have occurred.

We discovered many other instances in which CAPs were not implemented in a timely manner. For example, in November 2006, several staff restrained a patient in a prone (face-down) position. The CAP involving this potentially life-threatening deviation from generally accepted professional standards was not initiated until three months· after this incident. In another egregious example, K.K. attempted to strangle herself with a string in May 2006, while on line-of-sight observation. A CAP

,

6

1.1. was discharged to a personal care home several

weeks later. There is no documentation of this incident in his

progress notes, discharge summary, or aftercare plan.

7

This is particularly troubling because of the great

similarity between her suicide attemptsi had a CAP been

implemented, her March 2007 suicide attempt might have been

prevented or the harm mitigated.

- 15 ­

was not initiated until March 2007 t 42 weeks after the incident. Moreover t we note that GRHAts failure to ensure that CAPs are completed and implemented in a timely fashion was raised in the
Medical College of Georgiats May 2007 Report. The repeated
failure to complete CAPs in a timely manner jeopardizes GRHAts
ability to protect patients from harm. GRHAts continued failure
to follow its own action plans t despite the identified risks t is a grave deviation from generally accepted professional standards.

c. Investigative Practices Are Inadequate

Generally accepted professional standards dictate that
facilities like GRHA investigate serious incidents such as
alleged abuse and neglect t serious injurYt and death. During the investigation t evidence should be systematically ide'ntified t collected t preserved t analyzed t and presented. Investigators should attempt to determine the underlying cause of the incident
bYt among other things t reviewing stafft s adherence to programmatic requirements such as policies and procedures.

The investigative process at GRHA significantly departs from
these standards t both because of irregularities in collection and preservation of evidence t and because we found instances in which serious allegations of abuse and injury were not investigated at
all. Illustrative examples include:

•

L.L. was admitted to GRHA on August 4 t 2007. She was

transferred from an acute care facility to GRHA because of

suicidal ideation. During her 44-day stay at GRHA t L.L. was

physically and sexually assaulted; her injuries included a

2-3 inch facial laceration. Neither assault was

investigated or addressed. The failure to investigate

assaults by a fellow patient during this time is especially

troubling because the assaults t which were 20 days apartt

were perpetrated by the same individual t and therefore t the

second assault was arguably preventable. Moreover t the

assaults L.L. suffered may have been the precipitating cause

of a severe regression in her mental health recovery.

•

On January 2t 2007 t M.M. reported to staff that she had been

sexually assaulted by her roommate t but there is no evidence

that this incident was ever investigated.

GRHAts failure to investigate allegations of this magnitude is a significant departure from generally accepted professional standards.

- 16 ­
In addition, we also found instances in which significant evidence was not properly identified, preserved, analyzed, and presented. The investigation surrounding the suicide attempt of patient G.G. in August 2007 illustrates the problems we found in this area. In the back of G.G.'s medical record, we discovered a manila envelope containing progress notes that related to G.G.'s attempted suicide, as well as statements by six patients who witnessed the incident. The outside of the envelope had a handwritten note stating that these documents were "removed from medical record." These additional progress notes and witness statements included relevant details about the incident that were not included in the progress note that remained in the medical chart. The additional statements describe several irregularities in G.G.'s care that may have played a significant role in the incident: (1) staff was meeting together during the incident and not observing G.G. at the 15 minute intervals required by her care plani (2) at least one staff member had argued with the patient just before her suicide attempt (an argument that escalated to shouting, and may have escalated to pushing) i and (3) staff were unable to locate emergency bags or scissors to cut the ligature from G.G.'s neck. The handwritten note on the manila envelope containing the removed materials also stated that staff had contacted the Director for Compliance and Risk Management regarding these documents.
The removal of documents from the medical record in these circumstances is highly irregular, and a significant departure from generally accepted professional standards. Equally disconcerting, however, is the fact that there appears to have been no investigation of the fact that documents were removed from the record. There is also no evidence that GRHA addressed any of the details raised in the additional progress notes and witness statements, or that the contradictory eyewitness statements were investigated and reconciled. Failing to investigate and reconcile these conflicting eyewitness statements is a serious departure from generally accepted professional standards in performing investigations.
Another example of GRHA's inadequate investigatory practices is the investigation and mortality review of the death of J.J. in April 2007. J.J. was admitted to GRHA from the Fulton County Jail on March 14, 2007 at 12:20 a.m. He spent the first two and a half hours in the Admissions Unit and was then transferred to the West Unit. At 7:00 p.m. that evening, staff found J.J. lying

- 17 ­
on his bed with coffee ground emesis8 on the sheets and the floor. He was promptly transferred to Grady Memorial Hospital I where he died five weeks later.
J.J.ls death certificate indicates that the medical examiner suggested that J.J. likely incurred an injury while at GRHA on March 141 2007 1 apparently by ingesting a foreign substance. GRHA conducted an internal investigation into J.J.ls death l but this investigation was inadequate. For example I critical information was not gathered or analyzed regarding the intensity level of J.J.ls supervisionl or whether he was supervised as required. GRHA investigators did not interview any of the staff who cared for J.J. during his brief stay at GRHA I nor determine whether he was examined by a physician after being placed on the West Unit. The investigative report is devoid of substantive information regarding the care J.J. received at GRHA. Nevertheless I the investigation concludes that: ~Staff followed hospital and DHR protocol in ensuring that [J.J.] received appropriate care. 1f There is no basis for this conclusion in the record. GRHAls investigation into J.J.ls death represents a gross deviation from generally accepted professional standards in mortality reviews. 9
3. Quality Management Is Inadequate
Generally accepted professional standards require that a facility like GRHA develop and maintain an integrated system to monitor and ensure quality of care across all aspects of care and treatment. An effective quality management program must incorporate adequate systems for data capture I retrieval I and statistical analysis to identify and track trends. The program should also include a process for monitoring the effectiveness of corrective actions taken in response to problems that are discovered.

8

Coffee ground emesis is the medical term for vomit that

contains blood.

9

When done properlYI mortality reviews often raise

programmatic issues that should be reviewed and evaluated. By

failing to require adequate mortality reviews I to follow

established procedures for conducting the reviews I and to follow

up on the reviews conducted l GRHA is failing to identify the

underlying causes of deaths and to correct deficiencies that may

prevent deaths or similar harm from occurring in the future.

- 18 ­
GRHA falls far below these standards. Instead, we found that GRHA's quality management system lacked accountability and oversight, resulting in corrective action plans and performance analyses remaining outstanding for months at time. For example, GRHA has a committee that is responsible for analyzing and addressing patient safety data and when necessary, conducting performance analyses to study and resolve adverse incidents or trends. At the committee's January 16, 2007 meeting, it noted that an analysis on sharps contraband for Central Unit remained outstanding for 25 weeks. By June 18, 2007, with the analysis still outstanding, more than 45 weeks after it had been initiated, another Central Unit patient had obtained a razor and attempted suicide.
B. Mental Health Care Is Inadequate
GRHA patients have a constitutional right to receive adequate mental health treatment. Donaldson, 493 F. 2d at 520. j The mental health services at GRHA, however, substantially depart from generally accepted professional standards. Psychiatric practices are marked by inadequate assessments and diagnoses, which in turn, lead to inadequate treatment planning and delivery of inadequate treatments and interventions. Psychology services and behavioral management services are particularly deficient. Medication management services are inadequate. Each of these failures affects the quality and effectiveness of the patients' treatment plans, which are the foundation of an adequate mental health care program. Moreover, GRHA's failure to treat a patient's ·mental health needs while hospitalized has frequently led to failed discharges and to repeated hospitalizations.
In accordance with generally accepted professional standards, each patient should have a comprehensive, individualized treatment plan based on the integrated assessment of mental health professionals. Treatment plans should define the goals of treatment, the interventions to be used in achieving these goals, and the manner in which staff are to coordinate treatment. The treatment plans should also detail an integrated plan designed to promote the patient's stabilization and/or rehabilitation so that the patient may return to the community. Taken together, treatment plans constitute the standard against which a facility evaluates the effectiveness of the services it offers. In this sense, they are critical to a hospital's ongoing efforts at quality improvement.
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

- 19 ­
clinical disciplines; (2) the use 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, revision of the treatment plan. 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 ensuring that relevant and critical patient information is obtained and considered.
GRHA treatment planning substantially departs from these standards. From initial diagnosis and assessment, to the development of skills and functioning necessary for recovery and community reintegration, GRHA's treatment planning fails to meet the fundamental requirements for the treatment and rehabilitation of its patients. As a result, patients' actual illnesses are not properly assessed and diagnosed; patients are not receiving appropriate treatment and rehabilitation; patients are at risk of harm from themselves and others; patients are subject to excessive use of restrictive.treatment interventions; patients are at increased risk of relapses and repeat hospitalizations; and patients' options for discharge are significantly limited, resulting in unne.cessary prolonged hospitalization( and, with respect to forensic patients, prolonged involvement in the criminal justice system.
1. Psychiatric Assessments and Diagnoses Are Inadequate
Mental health treatment begins at the time of admission. The admissions work-up is an integral part of the course of hospitalization; it establishes the initial diagnosis and begins the course of treatment for the patient as he/she begins his/her hospital stay. We noted many deficiencies in the initial assessments we reviewed. Assessments were often not timely or thorough. Intake patient histories and medical status were often incomplete and inadequate. One example is N.N., who we witnessed having a seizure during a medical code. N.N. had been admitted to GRHA the day before. The code was poorly handled. There was considerable delay due to the lack of clarity in his chart regarding his medical status and whether his seizure medication had been continued upon admission. It was apparent that inadequate assessment and the resulting inadequate documentation contributed to poor management of this seizure.

- 20 ­
An effective treatment plan begins with a diagnosis that is clinically justified. If mental health professionals do not correctly identify a patient's psychiatric condition before developing a treatment plan, the treatment interventions will not be aligned with the patient's needs. Thorough assessments are necessary to identify presenting problems and strengths and needs of the patient, and to identify potential risks from aggressive or self-injurious behavior, potential victimization, or high risks presented by substance abuse or certain medical conditions. Adequate assessments are essential to the development of a person-centered plan that can direct rehabilitation, treatment, and care while the patient resides in the hospital, and to formulate an adequate discharge and transition plan for the patient's return to the community. Psychiatry, medicine, nursing, psychology and social work each should contribute to the assessment in accord with generally accepted professional standards.
At a minimum, an initial assessment should include: (1) an adequate review of presenting symptoms and the patient's mental status; (2) a provisional diagnosis and differential diagnosis that provides a decision tree by which diagnosis and treatment options may be clarified over time; and (3) a plan of care that includes specific medication and/or other interventions to ensure the safety of the patient and others. As more information becomes available, the assessment must be updated to include: (1) a history of the presenting symptoms from the patient based on the patient's level of functioning and from collateral sources, as available; (2) the progression of the symptoms and setting within which the symptoms occur; (3) the relevant historical findings regarding the patient's biopsychosocial functioning; (4) a review and critical examination of diagnostic conclusions made in the past in light of new information; (5) a review of medical and neurological problems, if any, and their impact on the current status of symptoms and treatment; and (6) a complete mental status examination.
In many cases, initial assessments at GRHA are cursory. The assessments used at GRHA fail to identify the strengths of the patient. They also frequently fail to assess substance abuse history, vocational and educational history, and history of community living and prior placements. A majority of psychiatric assessments contained rudimentary descriptions of current symptoms without examining in any depth the history of the symptoms and previous treatments. Each of these failings creates a serious impediment to the treatment team's ability to identify the services and supports a patient may need while in the facility and upon discharge.

- 21 ­
GRHA patients are routinely given tentative and unspecified diagnoses (often referred to as "rule out" or "not otherwise specified" ("NOS") diagnoses) as a result of these flawed assessments. We found virtually no evidence of further assessments or observations to finalize the diagnoses. Because different psychiatric conditions can have similar signs and symptoms, it is important for mental health professionals to address rule out and NOS diagnoses to ensure that a patient's treatment is appropriate for his or her actual mental health needs. At GRHA, however, rule out and NOS diagnoses persist for months, with no sign of further diagnostic refinement. The prevalent use of the "NOS" diagnosis reflects an inadequate diagnostic evaluation process and contributes to the lack of specifici ty in treatment plans. 10
0.0., who has a discharge diagnosis of Psychotic Disorder NOS, exemplifies the inadequacy of GRHA's assessments. 0.0. has had multiple readmissions to GRHA and was slated for imminent discharge, notwithstanding discussion of her active psychosis in the treatment team meeting the day before her scheduled disch~rge. The absence of a definitive diagnosis has perpetuated a generic treatment approach that has repeatedly failed this patient.
GRHA's failures in the preliminary stages of assessment and diagnosis, as well as its failure to reassess patients to refine diagnoses, grossly depart from generally accepted professional standards. Patients receive, or are at risk of receiving, treatment that, at best, is unnecessary and, at worst, may actually exacerbate their mental illnesses. The result is that the actual mental illness is often unaddressed, placing patients at risk of prolonged institutionalization and/or repeated admissions to the facility.
10 The May 3, 2007 Medical College of Georgia Survey Report ("the MCG Report") also concluded that the prevalence of the NOS diagnoses at discharge (two of the top five discharge diagnoses in 2005-2006 at GRHA were Psychotic Disorder NOS and Depressive Disorder NOS) indicates a lack of thorough diagnostic evaluation. The MCG Report described one patient who- carried an NOS diagnosis for over two years. The lack of diagnostic specificity remains a continuing problem. From July 2006 to July 2007, Psychotic Disorder NOS and Depressive Disorder NOS remained two of the top five discharge diagnoses at GRHA.

- 22 ­

2. Treatment Planning Is Inadequate

a. Treatment Plans Are Not Individualized and Do Not Address Patients' Needs

Treatment plans, which at GRHA are called Individual Recovery Plans ("IRP"), or Individual Habilitation Plans ("IHPII), are, for the most part, inadequate and fall far short of generally accepted professional standards. They are frequently minimalist, generic, and reflect neither the true scope of patients' needs nor a coherent plan for treatment. When the treatment team fails to identify or address all of a patient's presenting concerns, that patient is deprived of treatment for those concerns, and frequently subject to a longer period of institutionalization or to a repeat admission when those conditions or behaviofs become barriers to successful community integration. Multiple re-admissions are extraordinarily costly to patients and the system. Frequent relapses may cause a progressive worsening of a patient's mental illness and make the patient more intractable to treatment. Multiple re-admissions are also costly to the system of care, resulting in mUltiple assessments, care plans, and other treatments, where one adequate provision of these services would have sufficed. Examples of deficient IRPs include:

•

P.P. had 21 readmissions to GRHA in the first nine months of

2007. Her treatment plans for each of these 21 stays at

GRHA were identical.

•

Q.Q.'s IRP included a single goal related to completing an

evaluation of competency to stand trial. There were no

goals or interventions to address his assaultive behaviors.

As a result, after he assaulted his peers in the Adolescent

Unit, he was transferred to an adult forensic unit in order

to protect the other adolescents.

•

R.R.'s IRP contained as his stated goal the phrase

"incompetent to stand trial," which ended in March 2007, six

months prior to our review. R.R. has no current treatment

goals or interventions despite the fact that his psychiatric

evaluation notes diagnoses of schizophrenia and substance

abuse, and concerns with "chronic boredom, failure to accept

responsibility for his actions, impulsivity, lack of

remorse, lack of victim empathy, and poor behavioral

controls. II

•

8.8.'s IRP calls for the psychologist to meet on an

"as-needed" basis for cognitive behavioral therapy.

- 23 ­

Cognitive behavior therapy requires a systematic, planned approach to psychotherapy sessions; providing it on an "as-neededll basis is contrary to the principles of the intervention and has virtually no chance of a meaningful treatment effect. Moreover, none of the treating or supervising clinicians on this case appear to have noticed this glaring incongruity, which suggests a deficit in professional knowledge, training, andlor supervision.

•

T.T.'s IRP lists only his diagnoses ("Major Depressive

Disorder, recurrent, severe; Alcohol Dependencell ) and four

problems ("suicidal ideation, depressed mood, paranoid,

substance abusell ); the remainder of the IRP is blank. The

IRP fails to include any goals, objectives, or'interventions

to address his identified problems.

•

D.D.'s IRP lists only his diagnoses ("Psychotic d/o, NOS;

Cannabis abusell ) and a single problem statement ("Paranoid,
suspicious; h[istory] o[f] S[uicidal] I [deation] I

H[omicidal] I [deation] II) • The IRP does not include any

goals or objectives nor any interventions to address the

problems. The patient was discharged after one day with a

single progress note which concludes: "Will dlc [discharge]

him as he is stable now. 1I

•

V.V. has had 107 admissions to GRHA. Despite her continuing

need to be hospitalized, V.V.'s treatment plan rarely varies

across her more than one hundred admissions.

Inadequate assessments that fail to discern the reasons for multiple re-admissions, and treatment plans that fail to address relevant clinical presentations in a specific, individualized, strengths-based, recovery-oriented manner have resulted in repeated failures of treatment at GRHA and the subsequent failure to succeed in the community.

Treatment plans at GRHA often provide no clear alternatives if the initial, vague interventions prove ineffective, leaving staff with few alternatives to restraint, seclusion, and PRN (pro re nata or "as neededll ) medications to address challenging behaviors. Examples of vague or generic treatment plans include the following plans, which provide nearly identical goals for patients with very different diagnoses and treatment needs:

•

W.W.'s diagnoses include Impulse Control Disorder,

Post-Traumatic Stress Disorder, and moderate mental

retardation. His IRP contains a single generic goal related

to his mental illness: to "participate in developing a

- 24 ­

realistic aftercare plan that can be followed in the community. "

•

X.X.'s diagnoses include schizoaffective disorder and

borderline personality disorder. His IRP includes a goal

identical to that for W.W.

The recurrence of identical goals and objectives for patients makes evident the non-individualized nature of GRHA's treatment plans.

The lack of meaningful treatment and habilitation services for residents on the DLC unit, where the major1ty of the residents may need behavioral supports but have no co-occurring psychiatric disorder, is particularly problematic. 11 A sense of complacency pervades the DLC, where patients' limited skills or challenging behaviors seemingly are accepted as unchangeable, and is reflected in the inadequate treatment plans and interventions for the residents of these units. For example:

•

Y.Y.'s IHP does not provide for any skill training programs

despite identified challenging behaviors. Y.Y. has a

behavior plan that calls for increasing her verbal

expression of needs and desires, but no program plan

designed to accomplish this goal. Accordingly, Y.Y.'s

behaviors have remained unabated, requiring intensive 1:1

supervision for over two months' time.

•

Z.Z.'s "skill training" of learning how to hold a switch in

an "on" position is inappropriate, meaningless, and will not

enrich this person's life.

GRHA's failure to provide adequate treatment to DLC residents is exacerbated by clinically outdated and unsupportable opinions about patients with developmental disabilities. For example, the facility.ls speech therapist told us that an entire unit of residents in the DLC does not require communication skills programming because their level of development is too minimal to benefit from this training.

To conclude that challenging behaviors are an inherent and unchangeable part of the condition of mental retardation is a

11 As indicated earlier, the DLC, or Developmental Learning Center, houses residents with developmental disabilities, with the majority having no co-occurring psychiatric disorder.

- 25 ­

gross deviation from generally accepted professional standards r and suggests a lack of training and competency regarding current
practices. Because of this commonly-held view at GRHA r these behaviors are not addressed r patients are deprived of effective treatment r and these behaviors become a justification for continued institutionalization. This is an egregious violation of these patients r rights.

b. Failure to Address Repeated Admissions

GRHArs high rates of hospital re-admission are well
documented. Audits commissioned by the Governor r including the 2005 Georgia Mental Health Gap Analysis studYr concluded that a ­
30-day readmission rate 55% greater than the national average contributed to overburdening the Staters Psychiatric Hospitals. These conditions persist. In the past year r several units at GRHA routinely exceeded 100% occupancYr and high 30-day readmission rates continued as well.

The work of admitting patients and providing the crisis
stabilization necessary for new admissions leaves an already overburdened system with fewer staff resources to provide
treatment planning r interventions r and supervision for patients. Moreover r frequent re-admissions are extremely detrimental to these individual patients r disrupting their recoveries and their lives in the community. Frequent relapses and re-admissions may progressively worsen a patientrs serious and persistent mental
illness and make patients more intractable to treatment. Thus r generally accepted professional standards demand that treatment
teams routinely examine and address issues that cause individuals to be admitted repeatedly to the hospital. However r in mUltiple cases of repeated admissions we saw no evidence that the
treatment team examined or addressed the factors that led to re-admission or altered the patientrs treatment from a previous
stay at the hospital. For example:

•

As mentioned previouslYr V.V. has had 107 GRHA admissions r

with little change in her treatment plans across admissions.

•

P.P. had 21 GRHA hospitalizations in the first nine months

of 2007 r with no change in her treatment plans.

•

A.B. has had 14 GRHA admissions r including twice in 2007 r

with virtually the same treatment plan upon each admission.

Despite a diagnosis of substance abuser he received no

substance abuse treatment during his two 2007 admissions.

- 26 ­

c. Treatment for Substance Abuse Is Inadequate

There is a stark lack of treatment and interventions for patients with co-occurring diagnoses of substance abuse. It was evident in a significant number of records that this issue was one of the most serious impediments to community placement and part of the reason for frequent re-admissions to the hospital. Examples include:

•

A.C. has had 37 GRHA admissions, including twice in 2007.

She has a diagnosis of substance-induced psychotic disorder

with hallucinations, but has received no substance abuse

treatment during her many GRHA admissions. In addition,

GRHA discharged A.C. to the Union Mission night shelter

without adequate planning for community substance abuse

care.

• A.D. has had 41 admissions to GRHA. He has a dual diagnosis of schizoaffective disorder and substance abuse. After his last two admissions in 2007, he was discharged to a homeless shelter without adequate coordination with community substance abuse services.

•

A.B. has had 14 GRHA admissions, with two admissions in

2007. He has a co-occurring diagnosis of mood disorder and

substance abuse disorder. In the past year, A.B. was

discharged to a homeless shelter after his first admission

and returned to GRHA only ten days later. He received no

treatment for substance abuse while at GRHA anq no planning

for substance abuse services when he returned to the

community.

•

A.E. has had 53 GRHA admissions, with four admissions in

2007. He has a diagnosis of schizoaffective disorder and

substance-induced psychotic disorder. On her last two

admissions, A.E. was discharged to a homeless shelter

without adequate planning for substance abuse care in the

community.

•

A.F. is an adolescent with profound substance abuse problems

noted in his record. His treatment plan says A.F. is to be

enrolled in a substance abuse group, but there are no

substance abuse services offered on the Adolescent Unit.

The lack of substance abuse programming and its deleterious effects on patients at GRHA is well known to hospital and state administrators. The GRHAadministrator and the Director of the Division of Mental Health, Developmental Disabilities, and

- 27 ­
Addictive Diseases both candidly admitted this deficiency and acknowledged that the deficiency was particularly acute for adolescent patients. This deficit was also cited in theMCG audit. Notwithstanding these admissions, and in a pattern that echoes the failure of accountability throughout this system, a draft of the hospital's Corrective Action Plan generated in response to the MCG findings (dated several months prior to our visit), proclaims that corrective actions to remedy the substance abuse deficit in adolescent programming at GRHA are "complete. 1I
3. Behavioral Management Services Are Inadequate
Behavioral support plans ("BSPs lI ) at GRHA are largely nonexistent, and those that exist are largely inadequate and not well integrated into overall treatment. Many patients who were repeatedly subject to seclusion, restraint, and/or administration of PRN medications - measures that should be reserved for emergency crisis intervention - have no behavioral supports in place. This is an egregious departure from generally accepted professional standards. Staff across the facility were unable to identify events that would trigger a referral for a behavioral assessment dr a revision to an existing behavior treatment plan. For those few patients with behavioral management plans, treatment teams routinely fail to revise those plans, notwithstanding evidence of continuing or escalating problem behaviors. In addition, there are clearly too few skilled psychologists and behavioral specialists on staff to develop and monitor adequate behavior management plans for the many patients whose behaviors suggest a compelling need for such plans.
When performed, behavioral assessments depart substantially from generally accepted professional standards. The few attempts at functional assessments of behavior found in patient charts at .GRHA typically do not consider antecedent, environmental, or health factors that influence a behavior, whether a behavior is situationally appropriate, or possible reinforcers. The assessments do not contain sufficient baseline data, do not hypothesize a function for the behavior, and do not select replacement behaviors. When questioned about these deficiencies, the clinicians who prepared these functional assessments or supervised these cases appeared unfamiliar with many of the essential components of a minimally-adequate functional assessment. The inadequacies in the assessments undermine any subsequent behavioral treatment planning. An example is Q.Q., who has a behavior plan that does not define target behaviors, shows no baseline data for those behaviors, and specifies no replacement behaviors other than compliance with staff directions. His chart contained only one partially completed

- 28 ­

behavior plan monitoring checklist. Not surprisingly, Q.Q.'s disruptive behaviors continued, leading to his transfer from the adolescent unit to an adult forensic unit.

GRHA fails also to collect sufficient behavioral data on which to base treatment decisions. Generally accepted professional standards require a mental health professional to analyze objective data concerning symptoms or behavior, and not merely anecdotal information. In interviews, GRHA staff indicated that the "data" they use in assessing a patient's target behavior, replacement behaviors, or his or her progress in meeting goals comes from reviewing progress notes· or from asking line staff. The lack of accurate behavioral data hinders accurate evaluation of the progress, or lack of progress, made by patients. Accordingly, actions by treatment teams are often based on inaccurate summaries of the limited data collected, leaving teams at risk of making decisions that are not clinically indicated. Examples include:

•

A.G.'s progress notes and data sheets are inconsistent. A

progress note for A.G. dated June 1 reported zero incidents

of sexually inappropriate behaviors, agitation, or angry

outbursts for more than two weeks; however, the data sheets

indicated he was verbally abusive toward staff/peers on

May 29, May 30, and June 1, the days immediately before the

progress note. A note dated June 20 reported zero incidents

of sexually inappropriate behavior "since implementation."

Yet the data sheets documented sexually inappropriate

behavior every day but one, from June 10 through June 17.

•

A.H.'s behavior plan data monitoring sheets include many

inconsistent gaps. The data revealed numerous instances

where a reward was provided when the data indicated it had

not been earned, and numerous instances where the reward was

apparently earned but not provided.

The lack of reliable and complete behavioral data deprives treatment teams of essential information on which to make sound clinical decisions, denying patients timely and effective interventions and allowing harmful and dangerous behaviors,to persist.

Specific examples of GRHA's inadequate behavioral management services include:

•

S.S. is a resident of the adolescent unit with documented

repeated instances of serious self-injurious behaviors in

September 2007. A BSP was initiated on September 9, 2007,

- 29 ­

primarily consisting of 1:1 supervision but no other intervention. A September 19 note in her chart acknowledges that the behavior plan is not helping, but no change is recommended. The following day, we observed S.S. repeatedly bang her head against a wall while the staff assigned to provide her with 1:1 supervision recorded these events without intervening.

•

A.H.'s Treatment Plan Review Note dated August 6, 2007,

states that he "did not have a good review period. He

showed frequent agitation .

He exhibited numerous

episodes of object aggression. . Due to worsened

behavior, he was transferred on 7/17/07 to Forensics I unit

. His impulse control remains poor .

"Despite

this review documenting escalating problem behaviors, A.H.'s

treatment team failed to recommend any change in his

behavior plan.

•

A.I.'s chart contains frequent progress notes indicating

deteriorating behaviors, including assault on staff members.

The sole intervention is repeated PRN medications for

"agitation." Following three days of daily incidents of

significant aggression, which is not addressed at all in

A.I.'s treatment plan, the Treatment Plan Review Note dated

August 27, 2007, reads: "All goals are current and

appropriate, Treatment plan to continue." The following

week's Weekly Note stated that he "has become more

disorganized and aggressive. . He is up and awake for

most of the night. He is not fully compliant with his

treatment plan. The percentage of 'met' is getting lower."

Significant aggression continued to be documented through

the time of our site visit more than two weeks later, yet no

changes were made to his plan.

•

A.J.'s monthly behavior plan monitoring report documented

steadily increased monthly rates of "inappropriate sexual

behavior," increasing from three instances in April 2007 to

36 and 22 incidents in August and September, respectively.

Despite this substantial increase, there was no evidence of

a change to the behavior plan.

C. Seclusion and Restraints Are Used Inappropriately

The right to be free from undue bodily restraint is the core of the liberty protected from arbitrary governmental action by the Due Process Clause. Youngberg, 457 U.S. at 316. Thus, the State may not subject residents of GRHA to seclusion and restraint "except when and to the extent professional judgment

- 30 ­

deems this necessary to assure [reasonable] safety [for all residents and personnel within the institution] or to provide needed training." Id. at 324. Generally accepted professional standards require that seclusion and restraints: (1) will be used only when persons pose an immediate safety threat to themselves or others and after a hierarchy of less restrictive measures has been exhausted; (2) will not be used in the absence of, or as an alternative to" active treatment, as punishment, or for the convenience of staff; (3) will not be used as a behavioral intervention; and (4) will be terminated as soon as the person is no longer a danger to himself or others. GRHA's use of seclusion and restraints, including medication used as a chemical restraint, substantially departs from these standards and exposes patients to excessive and unnecessarily restrictive interventions.

Given the deleterious effects of seclusion and restraint,

and the fact that these measures restrict patients' rights and

their ability to receive appropriate care, generally accepted

professional standards require that institutions like GRHA reduce

their use of seclusion/restraint by addressing behavior problems

with less intrusive and restrictive strategies. Regrettably,

this does not occur at GRHA. Instead, many patients at GRHA have

endured frequent episodes of seclusion, restraint, and/or

sedating PRN medications, without any indication that the team

adequately assessed the patient, developed and/or reviewed the

treatment plan, or considered alternative interventions. For

example, none of the following patients, who received multiple

crisis interventions, including seclusion, restraint, and PRN

medications, appeared on a list of patients with BSPs between May

1 and July 30, 2007:

'

•

F.F. had 25 instances of seclusion or restraint in the

four-month period between January 11, 2007 and May 11, 2007.

•

A.K. had 12 instances of seclusion or restraint in the

33-day period between May 7, 2007, and June 9, 2007.

•

A.J. had 13 instances of seclusion or restraint in the

six-month period between February 16, 2007, and August 17,

2007.

•

A.L. received 12 psychotropic PRN medications in the ten day

period between June 7 and June 17, 2007.

•

A.M. received 7 psychotropic PRN medications in a single

week beginning July 9, 2007.

- 31 ­

•

A.N. received 23 psychotropic PRN medications in the two

weeks beginning May 4, 2007.

•

A.O. received 28 psychotropic PRN medications in the month

of May 2007.

•

A.P. received 11 psychotropic PRN medications in the ten

days between July 9 and July 19, 2007.

There is no effective data collection and monitoring system with respect to the use of restrictive interventions such as seclusion, restraint, and PRN medications. Typically, nursing and direct care staff on the units are responsible for this documentation, but there are no systems in place at GRHA to ensure that this information is gathered. As a result, patients who are in need of more intensive treatment, or an alternate approach to treatment, are not identified and targeted for treatment plan revisions.

In a significant departure from generally accepted professional standards, the facility does not ensure that seclusion and restraints, including manual holds and PRNs, are used only as a last resort and not in the place of active treatment, as punishment, or as a convenience for staff. In some cases, restraints are written right into the program. In addition, contrary to generally accepted practices, we also found insufficient review of restrictive programs by the facility's human rights committee. Representative examples include:

•

A.Q.'s behavior plan specifies an escalating series of

negative consequences for displays of physical aggression,

culminating in the statement: "Manual Restraint may be .

used."

•

A.R.'s behavior plan states that if his self-injurious

behavior continues, a team of "trained staff may implement a

two person hold."

•

A.J.'s behavior plan states that if he does not withdraw to

a quiet location to calm down, "staff (at least 2) using

mandt12 approved manual holds, may assist to a quiet

location."

12 The Mandt System is a program deSigned to assist staff in de-escalating inappropriate patient behaviors while treating the patient with dignity and respect.

·- 32 ­

•

Q.Q.'s behavior plan includes "a prescribed p.r.n. if

necessary" for escalating behaviors.

Throughout the facility, staff effort is focused primarily on controlling dangerous patients rather than treating them and changing their behavior. The Adolescent Unit is particularly problematic, where a volatile mix of patients, insufficient staffing and supervision, and ineffective treatment create a dangerous environment. Untrained staff lack the skills necessary to handle the large number of very impaired patients who are dangerous to themselves or others or who have specialized needs. Not surprisingly, we found that in these difficult circumstances, staff resort to seclusion and restraint and secondarily, PRN medication, in lieu of appropriate treatment.

Restrictive interventions clearly are used in place of active treatment, as punishment, and for the convenience of staff at GRHA, contrary to generally accepted standards. The facility averaged over 200 episodes of PRN use per month in the first seven months of 2007. In addition, a sample of 77 recent seclusion or restraint monitoring forms contained frequent notations that a patient was "out of control and was a threat to himself and others." However, in not a single instance were specific behaviors recorded that supported the conclusion that the patient was a threat to self or others. Moreover, there was not a single instance in these 77 examples where it was documented that alternative measures were tried prior to the use of a restrictive device, as required by generally accepted professional standards.

Furthermore, we found no system is in place to audit medical records regarding episodes of seclusion, restraints, or manual holds. This is notwithstanding assurances in the GRHA Plan of Correction, developed in response to findings of deficient seclusion and restraint documentation in the MCG Report, that "quality management staff will monitor charts with seclusion and restraint documentation for completion."

D. Medical Care Is Inadequate

Although GRHA patients are entitled to receive adequate health'care, see Youngberg, 457 U.S. at 315, the facility's basic medical care and nursing services substantially depart from generally accepted professional standards. Specifically, GRHA fails to provide basic medical care and has inadequate clinical oversight, staffing, nursing services, medication administration, infection control, physical and nutritional management, and emergency preparedness.

- 33 ­
1. Inadequate Clinical Oversight
The major role of clinical oversight in any institution is to ensure that generally accepted professional standards of practice and accountability are maintained. Specifically, staff responsible for clinical oversight should respond, in a timely manner, to identified problems and offer stable, consistent administrative guidance and supervision. GRHA fails to provide such adequate clinical oversight. Staff responsible for oversight in all of the major disciplines appear to be overwhelmed and reacting primarily to escalating crises. Repeated failures by supervisory staff to implement timely appropriate corrective action plans have led to significant and numerous harmful situations.
Both the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services and consultants from the Medical College of Georgia have chronicled grave deficiencies at GRHA, including inadequate staffing and programming, the excessive use of seclusion and restraint, and unsafe clinical situations that have resulted in injuries to patients, including death. Despite these clear findings of repeated deficiencies, these conditions remain unabated. Despite a "plan of correction" and the administration's verbalization of an understanding of the extant deficits, the system of care remains in disarray with no sense of urgency of the need for things to change. Patient and staff injuries continue to occur with an alarming regularity without adequate intervention by those responsible for clinical oversight. The critical incidents we witnessed on the Adolescent Unit reflect the egregious consequences of the failure to address burgeoning problems effectively.
2. Inadequate Staffing and Nursing Services
In addition to lack of appropriate clinical oversight, GRHA suffers from a chronic nursing shortage, which has caused a number of serious deficiencies in the nursing services provided to patients. Specifically, nursing staff: (1) fail to provide basic medical care such as monitoring vital signs and responding in a timely manner to changes in patients' medical status; (2) fail to participate actively in the treatment team process by providing 'feedback on patients' responses, or lack thereof, to medication and behavioral interventions; (3) fail to document and monitor properly the administration of medications; and (4) fail to implement adequate infection control procedures. These deficiencies expose GRHA patients to harm and a significant risk of harm, including death.

- 34 ­
In order for GRHA's nursing administration to verify that these essential elements of care are routinely provided, the department should have a formal, comprehensive, and rigorous system of monitoring the process, quality, and outcomes of the nursing department. Data generated from this system should be regularly reviewed and analyzed for trends, and plans of correction should be initiated for areas that fall below an acceptable standard of compliance. In addition, these data assist nursing management in identifying the etiology of problematic issues so that appropriate interventions can be implemented. This type of system also ensures that the Nurse Executive and facility administration are aware and responsive to the needs of department and ultimately, to the needs of the individual patients. Overall, those responsible for nursing oversight at GRHA are unaware of critical practice deficits that have become routine. In addition, there is no effective system in place that regularly reviews the practice of nursing to ensure that patients receive quality care and services.
Generally accepted professional standards require facilities like GRHA to provide sufficient nursing staff to, at a minimum, protect patients from harm, ensure adequate and appropriate treatment, and prevent unnecessary and prolonged institutionalization. GRHA, however, routinely compromises its patients' care and treatment by failing to satisfy these requirements. In the September 2007 melee on the Adolescent Unit, described infra, at page 8, in which local police were needed to restore order, the hospital's own staffing records called for three staff on each side of the housing unit, yet only two were present on each side. Before police could help restore order, the adolescent patients damaged property and at least one adolescent injured himself by cutting his neck with plexiglass.
The current Nurse Executive at GRHA admitted that recruitment and retention has been a major issue for the nursing department. She reported that there were a number of nursing vacancies but was unable to recall the exact number. Senior staff and administrators across disciplines agreed that there were excessive vacancies in nursing and direct care staff. A recurring issue is that GRHA has no formal mechanism with which to analyze the specific needs of each unit and determine the number and skill mix of nursing staff that each unit requires. Instead, nursing staff seem to be assigned to particular units based upon their schedules and availability, without serious regard to patients' needs. Although the facility has been working to revise the policy for minimum staffing ratios, there are no set criteria or models being used to determine adequate staffing levels. We found that many of the shortcomings in

- 35 ­

nursing care are exacerbated by the lack of adequate staffing l support I training l and supervision. For example I recurring deficiencies in response to codes (both in drills and actual emergencies) show that staff were not retrained in essential skills l including rescue breathing and chest compressions in cardio-pulmonary resuscitation ("CPR II ) I maintenance of emergency equipment I and use of automatic external defibrillator ("AEDII) . devices. Oxygen tanks were frequently empty and emergency bags were missing essential equipment I despite logs signed by nursing staff indicating that they had been checked. We saw no evidence that this falsification of documents had been addressed by supervisors or administrators.

3. Failure to Provide Basic Medical Care

Effective medical services depend on timelYI thorough assessments and monitoring. GRHA staff often fail to provide even the most basic carel opting instead for a reactive approach in which patients l medical needs are addressed only after problems develop. ConsequentlYI patients are exposed to a significant risk of harm and often suffer preventable injuries and illnesses. The harm at GRHA can be fatal:

•

A.S. was 14 years old when she died in February 2006 of

sepsis l likely caused by a severely impacted colon. She had been a patient at GRHA for several months. On the day.

before she died l she complained of stomach pain l and had nausea and vomiting l but no fever or other signs of infection. An on-call physician did not document an

abdominal examination or a rectal exam to rule out

impaction l a known side-effect of many antipsychotic medications used in A.S./s treatment at GRHA.

•

A.T. died at GRHA only three days after A.S./s death. He

was 33 years old and had been a patient at GRHA for several

months. Several of A.T./s medical concerns were

mishandled l including failure to monitor his bowel function despite being on medications with a known side effect of

constipation. He tOOl had a markedly-impacted colon at the

time of death.

•

Later that same year l a third patient l A.V.I died

unexpectedlYI also with an impacted colon. This death

likely would have been prevented l had the protocol allegedly adopted after A.T./s death been followed. A.V. went for

many days without a bowel movement I but this information was

not flagged on the medical log designed to communicate daily

information to physicians. While A.V./s stated cause of

- 36 ­

death was cardiovascular, his bowel obstruction clearly contributed to his death.

GRHA's failure to critically review the first death, which should have led to corrective actions that could have prevented the second and third fatalities, compounds the tragedy of these three deaths.

More examples of lapses in medical care, thankfully not fatal, include the following:

•

Mild mental retardation, attention deficit disorder, and

hyperthyroidism were noted and documented by A.V.'s

psychiatrist, but not by his nurse. As a result, none of

these issues are included in his nursing treatment plan.

•

A.W.'s nursing treatment plan indicates that he is at risk

for violence as evidenced by his self harm, aggressive

behavior, and attacks on others. However, none of the

nursing assessments address any of these issues.

•

A.X.'s assessments indicate that he was disoriented,

confused, and had a history of falls "while intoxicated.1f

His nursing treatment plan fails to address any of these

assessments. Moreover, A.X.'s nursing treatment plan

indicates that he was a risk for violence against staff.

However, his nursing assessments show no indication that

this issue was ever evaluated.

•

A.Y.'s nursing assessments are incomplete, with the section

regarding emotional and behavioral status blank. In

addition, there is nothing in the nursing assessments

indicating that A.Y. was either aggressive or has suicidal

ideation. His nursing treatment plan, however, indicated

that he was at risk for violence to self or others related

to aggression, as evidenced by threatening to kill animals

and self-injurious behavior.

4. Inadequate Medication Administration

Generally accepted professional standards of nursing practice dictate that medications be administered as prescribed and appropriately documented. Moreover, generally accepted professional standards require that staff properly complete the Medication Administration Records ("MARs lf ). Among other things, MARs list current medications, dosages, and times that medications are to be administered. Proper and timely completion of the MARs is fundamental to maintaining patient safety and

- 37 ­
reducing the likelihood of medication errors and adverse drug effects. Failure to follow accepted MARs protocol may result in patients not receiving medications or receiving them too frequently.
Our review of the MARs revealed numerous instances where several medications had not been recorded as given. Contrary to generally accepted professional standards, nurses did not perceive that these blanks were. medication variances that needed to be reported. We also found blanks on the Narcotic Logs, where the on-coming and off-going nurses are to sign after the narcotics are counted together. Because narcotics have powerful and potentially addictive effects and are often classified as controlled substances, GRHA's failure to account properly for their administration is deeply troubling. Once again, the nurses did not perceive the omissions in the Narcotic Logs as medication variances that needed to be reported. This finding indicates unacceptable nursing medication practices as well as a lack of supervision by nursing supervisors during medication administration. In addition, this finding indicates that medication variances are grossly underreported.
5. Inadequate Infection Control
Generally accepted professional standards require adequate infection control. The components of an adequate infection control program fall into two general categories: surveillance and reporting; and control and prevention.
Surveillance and reporting include data collection, tabulation, and analysis on both the population of the facility and its employees. Data on infections adquired in the community before admission to GRHA, and infections acquired while residing at the facility should be collected. This data can be used to establish baseline infection rates for different units to determine problem areas or areas where in-service education could lower infection rates. This information can also be used to identify outbreaks of infections rapidly so that concentrated efforts can be initiated to prevent the spread of the infection.
In addition, facility personnel should be monitored and data analyzed for possible exposure to, or as the source of, communicable and infectious diseases. The environment itself must be monitored as a source of potential infection hazards, especially during outbreaks of infection. Also, the facility must report all communicable diseases to the appropriate health authorities in the State.
l

- 38 ­
Control and prevention activities are of equal importance in an infection control program. In general, developing policies and procedures, staff training, patient educational programs regarding communicable diseases, and a regular committee review of facility infection control activities are components of a proactive infection control program.
GRHA's infection control program fails to meet these standards. Specifically, GRHA fails to provide adequate oversight to ensure that patients with infectious diseases are adequately treated, protected from additional infection or reinfection, and that other patients who live in the same buildings are appropriately protected from transmission of infections. At the time of our review, there was no system in place even to generate a list of patients or staff with infectious conditions such as hepatitis A, B or C, methicillin~ resistant staph ("MRSA") infections, HIV, or other common, but serious, infectious conditions that should be monitored.
Moreover, there is no system in place ensuring that any infection control data collected throughout the facility is reliable or that any plans of correction have actually been implemented. There is currently no adequate infection control program at GRHA, a facility with a high risk population for communicable diseases, which places patients there at high risk for harm.
6. Inadequate Physical and Nutritional Management
Generally accepted professional standards dictate that an effective physical and nutritional management system include: the identification of patients who are at risk for aspiration/choking and the assignment of an appropriate risk level; the identification of patients' triggers or symptoms of aspiration; adequate assessments of safe positioning for the 24-hour day; clinically-justified techniques, based on the assessment, that ensure safety during daily activities; deyeloping and implementing a plan containing specific instructions for the techniques determined by the assessment, with clinical justifications; providing competency-based training to all staff assisting these patients regarding individualized dysphagia13 plans; developing a method to monitor, track, and document clinically objective data, including triggers, lung sounds, oxygen saturations, and vital signs, to determine if treatment interventions are effective or in need of modification;
13 Dysphagia is the medical term for difficulty in swallowing.

- 39 ­
development of a mechanism for reporting triggers that generate an immediate response from a physical nutritional management team ("PNMTIf ) to re-evaluate the plan and its implementation; development of an overall monitoring system conducted by members of the PNMT to ensure that plans are being consistently implemented and that this monitoring is most intense for those with the highest level of risk; and ensuring that this system is effective so that it may be transferred into the community.
GRHA patients residing at the Skilled Nursing Facility ("SNF If ) and the Developmental Living Center ("DLCIf) who are at risk for aspiration are not provided adequate assessments, interventions, proactive monitoring of symptoms r and regular treatment plan monitoring, which places them at significant risk for harm. GRHA does not provide these patients with physical and nutritional management care consistent with generally accepted professional standards.
None of GRHA's various disciplines (nursing, physical therapy, occupational therapy, speech pathology, and dietary management), have the requisite specialized training or experience demonstrating competency with physical nutritional management. This training is necessary for the care and treatment of patients at risk for aspiration and choking.
GRHA has failed to identify adequately patients who have physical or nutritional management issues. GRHA has no written criteria that adequately identify patients at risk for aspiration and/or choking. During interviews, staff were unable to identify the patients who were at risk for aspiration. Episodes of coughing or gagging were not routinely documented in the medical record. Consequently, there is no systematic collection of clinical data to indicate if a person's dysphagia is getting better or worse. Thus, GRHA rarely evaluates or modifies the interventions from treatment plans unless there has been an acute event of pneumonia, aspirat'ion pneumonia, or respiratory distress. In some cases reviewed, there was no indication that the treatment plans were modified even when the patient experienced an acute event related to their aspiration risk. For example, A.Z., B.A., Z.Z., and N.N. were all admitted to the community hospital in 2007 for episodes of pneumonia, aspiration, and/or respiratory distress. However, none of their respective treatment plans for dysphagia included any indication that the team conducted additional assessments to evaluate the need to modify their interventions. The risks inherent in this flawed approach are not hypothetical. For example, A.Z. was admitted a second time to the hospital for aspiration pneumonia.

- 40 ­

Moreover, there is also no system in place to accurately determine which patients fall into the severe, moderate, or mild risk categories. Consequently, there is no delineation of risk to identify those patients needing the most intensive, proactive treatments and interventions. The criteria for the risk categories should include past incidents of aspiration, episodes of aspiration pneumonia, presence of a gastrostomy ("G-Tube ff ) or jejunostomy ("J-Tube ff ) tube,14 and coughing or gagging during meals and at bedtime. Developing criteria that identify patients who are at the greatest risk for physical and nutritional management problems is necessary to assist the teams in developing systems that ensure resources and interventions are appropriately focused.

Patients with dysphagia who have experienced recurrent aspiration pneumonia, pneumonia, or respiratory distress are not provided a comprehensive re-evaluation that assesses the appropriateness of the current treatment plan and modifies the interventions when necessary. There are several patients at the DCL and SNF units who have had recurrent bouts of aspiration pneumonia or pneumonia and are being fed by a J- or G-Tube. However, there was no indication that teams reassessed these patients or their treatment plans despite recurrent adverse outcomes. There was no indication that they were monitored for appropriate 24-hour positioning to ensure that the treatment plan was being implemented appropriately. Moreover, we found no proactive interventions initiated, such as monitoring lung sounds and oxygen saturations before and after meals, to detect health status changes.

Three patients illustrate the tragic consequences of deficiencies in physical and nutritional management: A.Z., B.C., and B.D., who each died of aspiration pneumonia. In each case, we found the following deficiencies:

•

aspiration risk with recurrent signs and symptoms of

dysphagia;

•

failure to adequately identify the patients as aspiration

risks and assign a risk level;

14 Gastrostomy and jejunostomy tubes, often referred to as a "G-Tube ff or a "J-Tube,ff respectively, are used for the feeding of patients. A gastrostomy tube is placed in a surgical opening in the stomach, while a jejunostomy tube is placed in a surgical opening in the jejunum, a part of the small intestine.

- 41 ­

•

no indication that individual triggers or symptoms were

identified, tracked, and documentedi

•

no adequate assessments for safe positioning and techniques

for activities such as mealtime, oral care, bathing, dental

appointments, or bedtimei

•

no clinical justifications included in any positioning

recommendationsi

•

no specific treatment plans containing specific instructions

for any activities that increased their risksi

•

no indication that staff responsible for their care received

competency-based training on their treatment plansi

•

no documentation of clinical objective data, including

triggers, routine lung sounds, and oxygen saturations to

proactively detect changes in statusi

•

no documentation that their plans were re-evaluated in

response to changes in their health statusi and

•

no indication that their treatment plans were being

regularly monitored to ensure consistency in implementation.

Compounding the tragedy of these three deaths, once again, is GRHA's failure to critically review the first death, which should have led to corrective actions that could have prevented the second and third fatalities.

GRHA has no protocol that addresses who is responsible for reviewing aspiration data, how often it should be reviewed, when other disciplines should alert the team to changes in the patient, and when the meal plan and treatm~nt plan should be reassessed. These deficiencies in recording and using objective data to inform treatment decisions is the same systemic failure as the failure to record behavior data for purposes of therapeutic intervention, and the failure to record medication data and variances to monitor proactively medical conditions and medication regimes. There is no mechanism for reporting triggers to the treatment team and no time-line requiring the team to re-evaluate the treatment plan. According, the facility has no system in place to address adequately the physical and nutritional management of patients at risk of aspiration. These systemic deficiencies have resulted in tragic harm and continue to place patients at significant risk for harm.

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7. Emergency Preparedness Is Inadequate
In accordance with generally accepted procedures, all staff should be well-trained in emergency preparedness, aware of emergency materials and where they are located, and conduct sufficient practice codes to be able to perform adequately when confronted with an actual emergency. Appropriate emergency medical response also includes physical plant readiness.
GRHA practices and procedures regarding emergency preparedness deviate substantially from generally accepted professional standards. For example, we found a significant lack of practice emergency codes. At the time of our September 2007 tour, no practice code had been conducted in the past year. Minutes from the Medical Emergency Committee detail a concern about the lack of drills and mis~ing vital medical supplies discovered during an actual emergency medical code in which a patient died. Medical Emergency Committee minutes further identified other deficiencies including: emergency equipment not reaching the scene in a timely manner because the equipment was locked in medication rooms with limited accessibility; medical code sheets not appropriately completed; delayed responses due to unclear or inadequate announcements of medical codes; lack of staff familiarity with the use of emergency medical equipment; and oxygen tanks missing regulators and/or k~ys despite documentation indicating that the tanks were checked regularly. We found that these deficiencies noted by the GRHA Medical Emergency Committee still existed.
An example is the medical code for N.N. that we observed during our on-site tour. N.N. suffered a seizure in the GRHA cafeteria. Most of the assembled staff appeared not to be assisting, but merely observing. Contrary to generally accepted professional standards, nursing did not take the lead in conducting the code ,and implementing the physician's orders. Staff spent a significant amount of time trying to locate equipment and medications from nearby units because nothing was available in the cafeteria. Eventually, mUltiple staff members brought multiple emergency crash carts, medication, oxygen tanks, and orange emergency bags. Necessary equipment and medications were missing despite the multiple emergency bags brought to the scene. Multiple requests by the physician internist for a necessary medication and equipment went unheeded, resulting in unnecessary delay. In addition, GRHA staff responding to the medical emergency did not wear protective gloves, including the nurse who eventually injected the patient with medication. The chaos observed and evidenced during the handling of this medical code is reflective of poor training and inadequate preparedness

- 43 ­
for emergencies. This is particularly troubling because of the vulnerable populations at GRHA. This is a gross and dangerous deviation from generally accepted professional standards.
The poor handling of this medical code was exacerbated by an equally inadequate review. The post-medical code debriefing, while acknowledging the lack of equipment, noted that "the response was quick and the staff who attended the code was [sic] efficient and followed directives well." Problematic issues that arose during the actual medical code were not addressed. Thus, the grave deficits we observed during this emergency code will likely continue to repeat.
Another example of a deficient code response - and a deficient review of the incident such that no lessons were learned to. inform better practice in the future - is the suicide attempt of G.G., described earlier in this letter. Although witness statements described a confused staff response, emergency bags that did not contain scissors to cut the ligature from around G.G.'s neck, and other deficiencies, these witness statements had been removed from the official file. There was no investigation of these problems with the code, and indeed, as the example of the seizure incident during our tour illustrates, the problems persist.
E. Services to Populations with 'Specialized Needs Are Inadequate
1. Services to Patients with Limited English Proficiency Are Insufficient
Pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and its implementing regulations, GRHA is required to take reasonable steps to ensure meaningful access to their programs and activities by persons with limited English proficiency ("LEP"). See also Dept. of Justice Guidance to Recipients, 67 Fed. Reg. 41455 (June 18, 2002). Georgia's Mental Health Gap Analysis in May 2005 identified glaring deficiencies in mental health services available to persons with hearing impairments or limited English proficiency. Although the State has adopted a Limited English Proficiency and Sensory Impaired Client Services Manual, we saw little evidence that the policies outlined in the Manual were followed. Examples include R.R., who received little to no mental health treatment at GRHAi this same patient, later transferred to the Regional Hospital at Savannah, surprised his treating psychiatrist there by asking for a copy of his group schedule in Spanish so that he could read and comply with it. R.R. had not previously been identified as requiring

- 44 ­
translation services r despite a months-long stay at GRHA. AccordinglYr GRHA must take steps to ensure that meaningful access is being provided to LEP persons.
2. Education and Special Education Services for Qualified Students Are Insufficient
GRHA fails to provide sufficient education services to youth throughout the facility as required by the Individuals with Disabilities Education Act ("IDEAII) r 20 U.S.C. § 1401 et seq.r Section 504 of the Rehabilitation Act of 1973 r 29 U.S.C. § 794 ("Section 504") and the Americans with Disabilities Act r 42 U. S . C. § 1210 lr et seq. ("ADAII).
The general education programr although generally strong r has a significant deficiency. The points awarded for positive behavior during school time are based on individual instructors r point systems r and this point system is neither individualized nor integrated with any behavioral treatments or interventions that may be used in the residential units. Particularly for, adolescents at the facility for more than a few daysr interventions provided at the school should be consistent with their individual treatment plans.
"Related services ll under the IDEA are those necessary to permit the student to benefit from instruction. 20 U.S.C. § 1414 (d) (2002). We found no evidence of a plan to provide special education-related services to students at the facility. Only one student on the Adolescent Unit had a behavioral support programr despite the high rate of dangerous r disruptive behaviors on that unit and the frequent use of PRN r seclusion r and restraints to control these disruptive behaviors. Behavioral supports are frequently considered necessary related services under the IDEA. We find the failure to screen and identify any special education students needing these services to be a critical deficiency.
GRHA also fails to provide sufficient special education instructors. Staff reported that the special education teacher on the SNF unit usually serves nine patients in the morning and six in the afternoon r and does not have an instructional aide. One instructor is insufficient to provide individualized instruction to this many students with this level of impairment r especially during the morning session.
Students eligible for serviqes under the IDEA are required to have an Indlvidualized Education Plan ("IEplI) r developed by the responsible education agency. Among other requirements r an

- 45 ­
IEP requires assessment of a student's progress toward annual educations goals. 20 U.S.C. § 1414(d). This requires communication of this assessment data to any school that a student attends during the review period. GRHA has no policy regarding communication of assessment data to schools to which discharged adolescents return. Staff reported such follow-up to be rare, and only upon request by the outside school. GRHA's failure to provide information concerning the student's educational progress, any educationally-relevant assessments conducted during the student's hospitalization, and recommendations for necessary accommodations to the schools to which its school-eligible patients are discharged is a substantial dep~rture from generally accepted professional standards and a critical lapse in supporting the students' successful transition and discharge.
F. Inadequate Discharge Planning and Placement in the Most Integrated Setting
Federal law requires that GRHA actively pursue the timely discharge of patients to the most integrated, appropriate setting that is consistent with the patients' needs. Olmstead, 527 U.S. at 607. Thus, at the time of admission and throughout a patient's stay, GRHA should: (1) identify, through professional assessments, the factors that likely will foster viable discharge for the patient; and (2) use these factors to drive treatment planning and intervention. Without clear and purposeful identification of such factors, patients will be denied rehabilitation and other services and supports that will help them acquire, develop, and/or enhance the skills necessary to function in a community setting.
The GRHA discharge planning process significantly deviates from generally accepted professional standards. GRHA fails to meet the discharge planning principles stated in its own policies. The State's own audits of the ~State of Georgia Behavioral Health System" prepared for the Governor in 2004 and 2005 identified egregious, systemic deficits in the coordination -of care between GRHA and the community. Based on our review of recent discharges from GRHA, these same deficits persist. Specifically, we find that: (1) discharge plans are based on inadequate assessments; (2) discharges are frequently inappropriate because of inadequate coordination of care; (3) discharge planning services are not provided in accordance 
 with GRHA policy; and (4) discharge plans fail to address 
 repeated readmissions. 


- 46 ­
1. Discharge plans Are Based on Inadequate Assessments
Deficits in discharge planning begin with assessments upon admission. Complete and accurate assessments are essential to develop a treatment plan that can direct rehabilitation while in the facility and to form the basis for a viable discharge plan. The deficits in assessments, discussed at page 20, supra, were particularly evident for those patients with short lengths of stay. The absence of information on critical aspects of functioning, which have often proved to be problematic in the community and contributed to the person's admission or readmission to the facility, is a serious impediment to identifying the services and supports needed for these patients to transition successfully to community living.
We were unable to locate any pre-admission information obtained from community providers in any of the records examined. Of the records reviewed, it appeared as if each admission was treated like a first admission, and GRHA failed to take advantage of available information regarding previous admissions, successful and unsuccessful treatments, and skills that needed to be developed to live successfully in the community. These failures greatly contribute to the high rate of recidivism at GRHA.
2. Inadequate Coordination of Care Routinely Leads to Inappropriate Discharges
Contrary to generally accepted professional standards, GRHA fails to provide adequate coordination and continuity of care, and this failure routinely leads to inappropriate discharges. Moreover, the failure to provide appropriate coordination of care results in numerous negative outcomes, including placements in inappropriate locations, re-admissions to the facility, and unnecessary delays in community placement. Although GRHA policy identifies the major resources necessary for a successful return to the community, in the vast majority of cases, these resources were not considered or were not made available.
More than 300 patients in a twenty-month period were discharged to inappropriate locations such as shelters and bus stops. Our investigation revealed that, during the period between January I, 2006 and August 6, 2007, 301 patients were discharged to homeless shelters, 32 to "transportation terminal[s] ," 33 to hotels and lodges, 12 to single room occupancy apartments, and 36 to what were listed as "Temporary

- 47 ­

Locations. filS There were 19 patients who were discharged to these locations on multiple occasions during this period. Most of these patients had mUltiple previous admissions to GRHA. Many patients go through the cycle of admission and discharge mUltiple times without any improvement in the discharge planning process.

Homeless shelters are not equipped to provide the level of care required for a patient being discharged from a psychiatric hospital, many of whom have severe and persistent mental illness. Moreover, many shelters are often at or above their capacity to serve local community needs. Thus, patients discharged to homeless shelters are likely to return to the hospital and repeat the cycle of inadequate discharge mUltiple times. Research indicates that the best chance for a successful recovery outcome is achieved when the person receives adequate care during the first episode of the psychiatric illness and that the opportunities for successful recovery diminish on each future episode.

Examples of discharge to inappropriate locations include:

•

B.E., who had eight prior admissions to GRHA, including

August 2007 and again in September 2007. She was discharged

to a hotel and instructed to contact the local mental health

center. There was no specific case manager, physician, or

psychiatrist identified in her plan. No community provider

was present at her discharge treatment meeting. Despite

having returned to GRHA only ten days after her previous

discharge, there was no effort by her treatment team to

review the reasons for that discharge failure or to prevent

its recurrence.

•

A.C. was admitted to GRHA twice in 2007, and has a history

of 35 prior admissions. She has co-occurring diagnoses of

substance abuse and psychotic disorder with hallucinations,

but received no substance abuse treatment while at GRHA.

She was discharged to the Union Mission Night Shelter

without adequate planning for community substance abuse

care.

•

A.D. has had 41 admissions to GRHA. A.D. has a dual

diagnosis of schizo-affective disorder and substance abuse.

On each of his discharges, including the most recent one on

November 14, 2007, he was discharged to a homeless shelter

15 The Supreme Court, in Olmstead, stated that homeless shelters were inappropriate discharge locations. Olmstead v. L.C., 527 U.S. 581, 605 (1999).

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without adequate planning for community substance abuse services and treatment.

•

A.B. has a diagnosis of mood disorder and substance abuse

disorder. He was admitted to GRHA twice in 2007 and has a

history of 14 admissions. He was discharged to a homeless

shelter in February 2007 and returned to GRHA ten days

later. A.B. received no treatment for substance abuse while

at GRHA and no planning for substance abuse services when he

returned to the community.

3. Discharge Planning services Are Not Provided in Accordance with GRHA Policy

We found that, although GRHA has a number of policies and procedures that articulate an adequate discharge planning and coordination of care process, in practice, these policies and procedures are not implemented. For example, GRHA's policy requires that case expediters work with both the hospital and community providers to help them understand and carry out their responsibilities. This ensures that the hospital and community providers perform their respective roles to achieve integrated transition planning for the patient. In the vast majority of cases reviewed, the roles described in this policy were not followed. In fact, there was little documented contact between the hospital and the case expediter beyond a phone call. The community transition generally consisted of the GRHA social worker making an appointment for the person at the community mental health center and providing a bus ticket for transportation.

4. Discharge Plans Fail to Address Repeated Readmissions

GRHA discharge planners and social workers identified the following primary barriers to community placement: lack of income, family, and housing; and medication non-compliance, particularly for patients with a dual diagnosis of substance abuse. Contrary to generally accepted professional standards, these professionals reported that the State lacks sufficient Assertive Community Treatment teams, which serve as a vital link between the hospital and the community for participants. Assertive Community Treatment programs offer an array of services customized to individual needs, delivered by a community-based team of mental health practitioners, and available 24 hours per day. The State's own findings in the 2005 Georgia Mental Health Gap Analysis also discussed the dearth in this essential service. Our review of discharges from GRHA suggests that this glaring gap in provision of services, and in particular for patients with a

- 49 ­
history of repeated admissions, is as great today as it was three years ago.
In most cases, neither formal or informal supports have been developed and prepared for use by patients transitioning from GRHA. There is little indication that the facility has attempted to locate, develop, or advocate for needed supports or services that GRHA professionals know are needed to ensure successful transitions to community living.
IV. RECOMMENDED REMEDIAL MEASURES
To remedy the deficiencies discussed above and protect the constitutional and federal statutory rights of the patients at GRHA, the State of Georgia should promptly implement the minimum remedial measures set forth below:
A. Protection From Harm
The G~orgia Psychiatric Hospitals shall provide their patients with a safe and humane environment and protect them from harm. At a minimum, the Georgia Psychiatric Hospitals shall:
1. Create or revise, as appropriate, and implement an incident management system that comports with generally accepted professional standards. The Georgia Psychiatric Hospitals shall:
a. 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 those involving any physical injury; patient aggression; abuse and neglect; contraband; and suicide ideation or attempts;
b. Require all staff to complete competency-based training in the revised reporting requirements;
c. Create or revise, as appropriate, and implement thresholds for indicators of events, including, without limitation, patient injury, patient-on­ patient assaults, self-injurious behavior, falls, and suicide ideation or attempts, that will initiate review at both the unit/treatment team level and at the appropriate supervisory level; whenever such thresholds are reached, this will be

- 50 ­
documented in the patient medical record, with explanations given for changing/not changing the patient's current treatment regimenj
d. Create or revise, as appropriate, and implement policies and procedures addressing the investigation of serious incidents, including, without limitation, abuse, neglect, suicide ideation or attempts, unexplained injuries, and all injuries requiring medical attention more significant than first aid. The policies and procedures shall require that investigation of such incidents that are comprehensive, include consideration of staff's adherence to programmatlc requirements, and are performed by independent investigatorsj
e. Require all staff members charged with investigative responsibilities to complete competency-based training on investigation methodologies and documentation requirements necessary in mental health service settingsj
f. Monitor the performance of staff charged with investigative responsibilities and provide administrative and technical support and training as needed to ensure the thorough, competent, and timely completion of investigations of serious incidents;
g. Ensure that corrective action plans are developed and implemented in a timely manner;
h. Review, revise, as appropriate, and implement policies and procedures related to the tracking and trending of incident data, including data from patient aggression and abuse and neglect allegations, to ensure that such incidents are properly investigated and appropriate corrective actions are identified and implemented in response to problematic trends; and
i. Create or revise, as appropriate, and implement policies and procedures regarding the creation, preservation, and organization of all records relating to the care and/or treatment of patients, including measures to address improper removal, destruction, and or falsification of any record.

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2. Develop and implement a comprehensive quality improvement system consistent with generally accepted professional standards. At a minimum, such a system shall:
a. Collect information related to the adequacy of the provision of the protections, treatments, services, and supports provided by the Georgia Psychiatric Hospitals, 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. Mental Health Care
1. Assessments and Diagnoses
The Georgia Psychiatric Hospitals shall ensure that their patients receive accurate, complete, and timely assessments and diagnoses~ consistent with generally accepted professional standards, and that these assessments and diagnoses drive tTeatment interventions. More particularly, the Georgia Psychiatric Hospitals shall:
a. Develop and implement comprehensive policies and procedures regarding the timeliness and content of initial psychiatric assessments and ongoing reassessments; and ensure that assessments include a plan of care that outlines specific strategies, with rationales, including adjustment of medication regimens and initiation of specific treatment interventions.
b. Ensure that psychiatric reassessments are completed within time-frames that reflect the patient's needs, including prompt reevaluations of all patients requiring restrictive interventions.
c. Develop diagnostic practices, consistent with generally accepted professional standards, for

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reliably reaching the most accurate psychiatric diagnoses.

d. Conduct interdisciplinary assessments of patients consistent with generally accepted professional standards. Expressly identify and prioritize each patient's individual mental health problems and needs, including, without limitation, maladaptive behaviors and substance abuse problems.

e. Develop a clinical formulation of 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.

f. Ensure that the information gathered in the assessments and reassessments is used to justify and update diagnoses, and establish and perform further assessments for a differential diagnosis.

g. Review and revise, as appropriate, psychiatric

assessments of all patients, providing clinically

justified 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.

h. Develop a monitoring instrument to ensure a systematic review of the quality and timeliness of all assessments according to established indicators, including an evaluation of initial assessments, progress notes, and transfer and discharge summaries, and require each clinical discipline's peer review system to address the process and content of assessments and reassessments, identify individual and group trends, and provide corrective action.

2. Treatment Planning

The Georgia Psychiatric Hospitals shall develop and implement an integrated treatment planning process consistent

- 53 ­
with generally accepted professional standards. More particularlYr the Georgia Psychiatric Hospitals shall:
a. Develop and implement policies and procedures regarding the development of individualized treatment plans consistent with generally accepted professional standards.
b. Ensure that treatment plans derive from an integration of the individual disciplines r assessments of patients r and that goals and interventions are consistent with clinical assessments. At a minimum r this should include:
(1) Review by psychiatrists of all proposed behavioral plans to determine that they are compatible with the psychiatric formulations of the case;
(2) Regular exchange of objective data between the psychiatrist and the psychologist and use of this data to distinguish psychiatric symptoms that require drug treatments from behaviors that require behavioral therapies;
(3) Integration of psychiatric and behavioral treatments in those cases where behaviors and psychiatric symptoms overlap; and
(4) Documentation in the patientrs record of the rationale for treatment.
c. Ensure that treatment plans address repeated admissions and adjust the plans accordingly to examine and address the factors that led to re­ admission.
d. Develop and implement treatment goals that will establish an objective r measurable basis for evaluating patient progress.
e. Ensure that treatment plans are consistently assessed for their efficacy and reviewed and revised when appropriate.

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f. Provide adequate and appropriate mental health services l including adequate psychological services l behavioral management I and active treatment I in accordance with generally accepted professional standards.
g. Provide psychologists with sufficient education and training to ensure:
(1) competence in performing behavioral assessments l including the functional analysis of behavior and appropriate identification of target and replacement behaviors;
(2) the development and implementation of clear thresholds for behaviors or events that trigger referral for a behavioral assessment;
(3) timely review of behavioral assessments by treatment teams I including consideration or revision of behavioral interventions I and documentation of the team/s review in the patient/s record;
(4) the development and implementation of protocols for collecting objective data on target and replacement behaviors; and
(5) assessments of each patient/s cognitive deficits and strengths to ensure that treatment interventions are selected based on the patient/s capacity to benefit.
h. Re-assess all patients at the facility to identify those who would benefit from speech and communication therapy and provide sufficient qualified and trained staff to provide services to all patients who would benefit from this service.
i. Require all clinical staff to complete successfully competency-based training on the development and implementation of individualized treatment plans l including skills needed in- the development of clinical formulations I needs I

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goals, and interve~tions, as well as discharge criteria.
j. Ensure that the medical director timely reviews high-risk situations, such as patients requiring repeated use of seclusion and restraints.
k. Develop and implement policies to ensure that patients with special needs, including co­ occurring diagnoses of substance abuse and/or developmental disability, and physical, cognitive and/or sensory impairments are evaluated, treated, and monitored in accordance with generally accepted professional standards.
1. Develop and implement policies for patients exhibiting suicidal ideation, including for patients identified as suicidal, develop and implement a clear and uniform policy for patient assessment and treatment.
m. Develop a system to ensure that staff receive competency-based training on individualized plans, including behavioral support plans and interventions, and document this training.
n. Ensure that restrictive interventions receive appropriate review by a Human Rights Committee, or its equivalent, to guarantee any restriction of rights are necessary, appropriate, and of limited duration.
~. Ensure that all psychotropic medications are:
(1) administered as prescribed;
(2) tailored to each patient's individual symptoms;
(3) monitored for efficacy and potential side-effects against clearly-identified target variables and time frames;
(4) modified based on clinical rationales; and
(5) properly documented.

- 56 ­
p. Institute systematic monitoring mechanisms regarding medication use throughout the facility. In this regard, the Georgia Psychiatric Hospitals shall:
(1) Develop, implement, and continually update a complete set of medication guidelines in accordance with generally accepted professional standards that address the indications, contraindications, screening procedures, dose requirements, and expected individual outcomes for all psychiatric medications in the formulary; and
(2) Develop 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, a documented rationale for the use of more than one medication on a PRN basis, and physician documentation to ensure timely, critical review of the patient's response to PRN treatments and reevaluation of regular treatments as a result of PRN uses.
C. Seclusion and Restraints
The Georgia Psychiatric Hospitals shall 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, the Georgia Psychiatric Hospitals shall:
1. Eliminate the use of planned (i.e., PRN) seclusion and planned restraint.
2. Ensure that restraints and seclusion:

- 57 ­
a. Are used only when persons pose an immediate threat to themselves or others and after a hierarchy of less restrictive measures has been exhausted;
b. Are not used in the absence of, or as an alternative to, active treatment, as punishment, or for the convenience of staff;
c. Are not used as part of a behavioral intervention;
d. Are terminated as soon as the person is no longer an imminent danger to himself or others; and
e. Are used in a reliably documented manner.
3. 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; and
b. The training that all staff receive in the management of the patient crisis cycle, the use of restrictive measures, and the use of less­ restrictive interventions.
4. Ensure that if seclusion and/or restraint are initiated, the patient is regularly monitored in accordance with generally accepted professional standards and assessed within an appropriate period of time, and that an appropriately trained staff member makes and documents a determination of the need for continued seclusion and/or restraint.
5. Ensure that a physician's order for seclusion and/or restraint includes:
a. The speci·fic behaviors requiring the procedure;
b. The maximum duration of the order; and
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.

- 58 ­
6. Ensure that the patient's attending physician be promptly consulted regarding the restrictive intervention.
7. Ensure that at least every thirty minutes, patients in seclusion and/or restraint be re-informed of the behavioral criteria for their release from the restrictive intervention.
8. Ensure that immediately following a patient being placed in seclusion and/or restr~int, the patient's treatment team reviews the incident within one business day, and the attending physician documents the review and the reasons for or against change in the patient's current pharmacological, behavioral, or psychosocial treatment.
9. Comply with the requirements of 42 C.F.R. § 483.360(f) regarding assessments by a physician or licensed medical professional of any resident placed in seclusion and/or restraints.
10. Ensure that staff successfully complete competency­ based training regarding implementation of seclusion and restraint policies and the use of less-restrictive interventions.
D. Medical and Nursing Care
The Georgia Psychiatric Hospitals shall provide medical and nursing services to its patients consistent with generally accepted professional standards. Such services should result in patients of the Georgia Psychiatric Hospitals receiving individualized services, supports, and therapeutic interventions, consistent with their treatment plans. More particularly, the Georgia Psychiatric Hospitals shall:
1. Ensure adequate clinical oversight to ensure that generally accepted professional standards are maintained.
2. Ensure that patients are provided adequate medical care in accordance with generally accepted professional standards.
3. Ensure sufficient nursing staff to provide nursing care and services in accordance with generally accepted professional standards.

- 59 ­
4. Ensure that, before nursing staff work directly with patients, they 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.
5. Ensure that nursing staff accurately and routinely monitor, document, and report patients' symptoms and target variables in a manner that enables treatment teams to assess the patient's status and to modify, as appropriate, the treatment plan.
6. Ensure that nursing staff actively participate in the treatment team process and provide feedback on patients' responses, or lack thereof, to medication and behavioral interventions.
7. Ensure that nursing staff are appropriately supervised to ensure that they administer, monitor, and record the administration of medications and any errors according to generally accepted professional standards.
8. 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-Record.
9. Ensure that all failures to properly sign the Medication Administration Record and/or the Narcotics Log are treated as medication errors, and that appropriate follow-up occurs to prevent recurrence of such errors.
10. Ensure that ~ach 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.

- 60 ­
11. Establish an effective infection control program to prevent the spread of infections or communicable diseases. More specifically, the Georgia Psychiatric Hospitals shall:
a. Actively collect data with regard to infections and communicable diseases;
b. Analyze 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 the quality assurance review of the Georgia Psychiatric Hospitals; and
g. Ensure that nursing staff implement the infection control program.
12. Establish an effective physical and nutritional management program for patients who are at risk for aspiration or dysphagia, including but not limited to the development and implementation of assessments, risk assessments, and interventions for mealtimes and other activities involving swallowing.
13. Ensure that staff with responsibilities for patients at risk for aspiration and dysphagia have successfully completed competency-based training commensurate with their responsibilities.
14. Provide adequate, appropriate, and timely rehabilitation therapy services and appropriate adaptive equipment to each individual in need of such services or equipment, consistent with generally accepted professional standards.
15. Establish an effective medical emergency preparedness program, including appropriate staff training; ensure staff familiarity with emergency supplies, their operation, maintenance and location; conduct sufficient practice drills to ensure adequate performance when confronted with an actual emergency.

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E. Services to Populations with Specialized Needs
1. Provide adequate services to patients with limited English proficiency, co~sistent with the requirements of the State's Limited English Proficiency and Sensory Impaired Client Services Manual and federal law.
2. Provide adequate education and special education services for qualified students, including:
a. Adequate assessments of individual educational needs and monitoring and reporting of individual progress, including reporting all relevant assessments and information to a new school upon discharge from the hospital;
b. Development and implementation of IEPs consistent with the requirements of the IDEA; and
c. Ensure that students receive instruction and behavioral supports appropriate to their learning abilities and needs, ·consistent with generally accepted professional standards.
F. Discharge Planning
The State shall ensure that patients receive services in the most integrated, appropriate setting that is consistent with their needs and legal status and actively pursue the appropriate discharge of patients. More particularly, the Georgia Psychiatric Hospitals shall:
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, psychiatric distr~ss, or cognitive impairment;
b. Any other barriers preventing that specific patient from transitioning to a more integrated environment, especially difficulties raised in previously unsuccessful placements; and
c. The patient's strengths, preferences, and personal goals.

- 62 ­
2. Ensure that the patient is an active participant in the placement process.
3. 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. 

4. Provide the patient adequate assistance in 
 transitioning to the new setting. 

·5. 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.
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. Develop 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
b. Hire sufficient staff to implement these minimum remedial measures with respect to discharge planning.
7. The State shall ensure that it provides community-based treatment for persons with disabilities consistent with federal law.
v. CONCLUSION
We appreciate the cooperation we received from the Georgia Department of Mental Health Developmental Disabilities and Addictive Diseases, and the State's Attorney General's Office. We also wish to thank the administration and staff at each of the hospitals we visited for their professional conduct, their generally timely responses to our information requests, and the extensive assistance they provided during our tours. Further, we

- 63 ­
wish to especially thank those individual hospital staff members, both new and longstanding, who make daily efforts to provide appropriate care and treatment, and who improve the lives of patients at these facilities. Those efforts were noted and appreciated by the Department of Justice and our expert consultants.
The collaborative approach the parties have taken thus far has been productive~ We hope to continue working with the State in an amicable and cooperative manner to resolve our outstanding concerns with regard toGRHA, and in due course, any additional concerns with the remaining hospitals in the Georgia system.
Please note that this findings letter is a public document. It will be posted on the website of the Civil Rights Division. While we will provide a copy of this letter to any individual or entity upon request, as a matter of courtesy, we will not post this letter on our website until 10 calendar days from the date of this letter.
Provided that our cooperative relationship continues, we will forward our expert consultants' reports under separate cover. These reports are not public documents. Although our expert consultants' 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 your efforts at promptly remediating areas that require 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 next steps in further detail.

/s/ Grace Chung Becker

- 65 ­
James Jackson Regional Hospital Administrator West Central Regional Hospital
Susan. Trueblood Regional Hospital Administrator Georgia Regional Hospital/Atlanta
David E. Nahmias United States Attorney Northern District of Georgia Richard B. Russell Federal Building
Maxwell ·Wood United States Attorney Middle District Of Georgia
Edmund A. Booth, Jr United States Attorney Southern District of Georgia

 
 U.S. Department of Justice
Civil Rights Division
Assistant Attorney General 950 Pennsylvania Avenue, NW - RFK Washington, DC 20530
January 15, 2009

The Honorable Sonny Perdue
 Office of the Governor
 203 State Capital
 Atlanta, Georgia 30334

Re: CRIPA Investigation of the Northwest Georgia Regional
 Hospital in Rome 

Dear Governor Perdue:

I am writing to provide the Civil Rights Division’s second
 report of findings regarding our investigation of conditions and
 practices in the State’s Psychiatric Hospitals pursuant to the
 Civil Rights of Institutionalized Persons Act (“CRIPA”),
 42 U.S.C. § 1997. CRIPA gives the Department of Justice
 authority to seek a remedy for a pattern and practice of conduct
 that violates the constitutional or federal statutory rights of
 patients with mental illness or developmental disabilities who
 are treated in public institutions. The findings discussed in
 this letter apply particularly to the Northwest Georgia Regional
 Hospital in Rome, Georgia (“NWGRH” or “Facility”). Our first
 report, dated May 30, 2008, concerned the Georgia Regional
 Hospital in Atlanta (“GRHA”).1

On April 18, 2007, we notified you that we were initiating
 an investigation of conditions and practices in the State’s
 Psychiatric Hospitals pursuant to CRIPA. The State agreed that
 the Department’s inspection of four of the State’s hospitals
 would stand as representative of all seven hospitals in the
 system. We began our on-site inspections with a visit to GRHA on
 September 17 through 21, 2007. The visit to NWGRH was on
 October 29 though November 2, 2007, and the visit to the Georgia
 Regional Hospital at Savannah occurred on December 17
 through 21, 2007. The visit to Central State Hospital in

1
 We note that many, if not all, of the findings we make
 regarding NWGRH are representative of conditions encountered at
 the two other hospitals we have inspected to date, the Georgia
 Regional Hospitals at Atlanta and Savannah.


- 2 -

Milledgeville was postponed, and we have not yet been able to
 find a mutually agreeable date for that visit. According to our
 agreement with the State, these four hospitals would be
 representative of the remaining State Psychiatric Hospitals,
 including Southwestern State Hospital, East Central Regional
 Hospital, and West Central Regional Hospital. 

We conducted our on-site review with the assistance of
 expert consultants in the fields of psychiatry, psychology,
 psychiatric nursing, protection from harm, and discharge planning
 and community placement. While on-site, we interviewed
 administrative staff, mental health care providers, and patients,
 and examined the physical plant conditions throughout most, but
 not all, of the Facility.2 In addition to our on-site inspection
 of NWGRH, we reviewed a wide variety of documents, including
 policies and procedures, incident reports, and medical and mental
 health records. Consistent with our commitment to provide
 technical assistance and conduct a transparent investigation, we
 concluded our tour with an extensive debriefing at which our
 consultants conveyed their initial impressions and grave concerns
 about NWGRH to counsel, administrators and staff, and State
 officials.

In accordance with statutory requirements, we now write to
 advise you formally of the findings of our investigation


2

As we noted in our May 30 letter, the State, asserting


that CRIPA does not afford jurisdiction over admissions, intake,


and “short-term outpatient” units, refused us access to such


units at each of the hospitals we have visited thus far. The


State’s position is incorrect. See, e.g., 42 C.F.R. § 483.20


(2006) (describing the State’s duty to provide physician orders


for immediate care at the time of admission and to perform


comprehensive assessments within fourteen days of admission). By


law, our investigation must proceed regardless of whether


officials choose to cooperate fully. Indeed, when CRIPA was


enacted, lawmakers considered the possibility that state and


local officials might not cooperate in our federal


investigations. See H.R. Conf. Rep. 96-897, at 12 (1980),


reprinted in 1980 U.S.C.C.A.N. 832, 836. As we informed the


State’s attorneys, the State’s decision to deny us access to


these areas permits us to draw negative inferences about


conditions and practices in those units. See id. While we did


not need to draw negative inferences in making the findings


described in this letter, we reiterate that we are authorized to


do so if the State continues to deny us access to these areas in


the future.


- 3 ­
pertaining to NWGRH, the facts supporting them, and the minimum
 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 NWGRH violate
 the constitutional and statutory rights of its patients. In
 particular, we find that NWGRH: (1) fails to adequately protect
 its patients from harm; (2) fails to provide appropriate mental
 health treatment; (3) fails to use seclusion and restraints
 appropriately; (4) fails to provide adequate medical care;
 (5) fails to provide adequate services to populations with
 specialized needs; and (6) fails to provide adequate discharge
 planning to ensure placement in the most integrated setting. See
 Youngberg v. Romeo, 457 U.S. 307 (1982); Title XVIII and Title
 XIX of the Social Security Act, 42 U.S.C. §§ 1395 to 1395b-10 and
 1396 to 1396w-1; 42 C.F.R. §§ 482-483 (listing program
 requirements for participating in Medicare and Medicaid);
 Americans with Disabilities Act (“ADA”), 42 U.S.C.
 §§ 12132-12134; 28 C.F.R. § 35.130(d); Title VI of the Civil
 Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7; see also
 Olmstead v. L.C., 527 U.S. 581 (1999). 

As we noted when we wrote concerning GRHA, the majority of
 the findings we have made have also been made by other agencies
 in the past. See, e.g., Peter Buckley, M.D., and Nan Lewis,
 M.P.H., Medical College of Georgia, Audit Summary - Northwest
 Georgia Regional Hospital - Rome, September 26, 2007 (describing
 deficits in protection from harm, mental health treatment,
 nursing staffing, risk management, and performance improvement);
 United States Department of Health and Human Services, Centers
 for Medicare and Medicaid Services, Survey of Northwest Georgia
 Regional Hospital at Rome, March 3, 2004 (“CMS Survey”)
 (describing failure to meet federal regulatory standards in
 protection from harm, individualized mental health treatment, use
 of seclusion and restraints, and nursing services). Throughout
 this letter, we have included specific references to past
 findings by these entities, where appropriate. We found that
 these same conditions remain unabated, despite NWGRH’s notice of
 the deficiencies.

Nearly a decade ago, the United States Supreme Court made
 clear that the unnecessary institutionalization of persons with
 disabilities violates the law. Olmstead, 527 U.S. at 587.
 Olmstead involved two women with developmental disabilities and
 mental illness who were inappropriately confined at another of
 the State’s Psychiatric Hospitals, GRHA. Id. at 593, 597. The
 Supreme Court held that states are required to provide mental
 health treatment to persons in the most integrated, appropriate
 settings. See id. at 596-97. In the wake of the Olmstead


- 4 ­
decision, Georgia commissioned numerous studies of deficiencies
 in its community mental health care system, including: a
 February 2004 Study of the Community Service Board (“CSB”)
 Service Delivery System (Phase I); a January 2005 Study of the
 CSB Service Delivery System (Phase II); and a May 2005 Georgia
 Mental Health System Gap Analysis. As stated in the Phase II
 Study by the State’s Department of Audits and Accounts, these
 studies “point to accountability, oversight, management, and
 quality of care issues.” The finding that Georgia’s high
 hospitalization and readmission rates compared to national
 averages persist, and are “evidence of a lack of community based
 services,” was reiterated in the June 2, 2008 Governor’s Mental
 Health Service Delivery Commission’s Progress Report. Despite
 the mandate by the Supreme Court and the subsequent clear
 analysis and recommendations in Georgia’s own reports, as
 indicated herein, our review of discharge planning at NWGRH finds
 that Georgia still frequently fails to ensure that patients
 receive appropriate and sufficient services to enable them to
 live in the most integrated setting consistent with their needs,
 as required by federal law.

I. BACKGROUND

Northwest Georgia Regional Hospital in Rome, Georgia serves
 residents of the 23 counties of northwest Georgia who have mental
 illness, substance abuse issues, and developmental disabilities.
 At the time of our visit, NWGRH had approximately 280 patients.
 Inpatient units included acute and long-term adult psychiatric
 units, forensic units, and units for persons with developmental
 disabilities.3 Approximately 100 patients reside on the
 developmental service units (“DSU”), which are the units for
 persons with developmental disabilities, approximately 70
 patients reside on the forensic units, and the remainder reside
 on the adult mental health units. The Facility is located on a
 large campus that includes a number of additional programs not
 included in this review. 

II. LEGAL STANDARDS

The Fourteenth Amendment due process clause requires state
 mental health care facilities to provide patients with “adequate
 food, shelter, clothing, and medical care,” along with conditions

3
 We note that, as with GRHA, the combination of
 populations at NWGRH is unusual for a psychiatric hospital. Each
 population and the combination of these populations present
 unique health, safety, and treatment concerns.


- 5 ­
of reasonable care and safety, reasonably nonrestrictive
 confinement conditions, and such training, including treatment,
 as may be reasonable in light of their constitutionally-based
 liberty interests. Youngberg, 457 U.S. at 315, 319, 322.

In order to secure these liberty interests, individualized
 treatment must be provided to give patients “a reasonable
 opportunity to be cured or to improve [their] mental condition.”
 Donaldson v. O’Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated
 on other grounds, O’Connor v. Donaldson, 422 U.S. 563 (1975);
 D.W. v. Rogers, 113 F.3d 1214, 1217-18 (11th Cir. 1997) (holding
 that the constitutional right to psychiatric care and treatment
 is triggered by the State’s physical confinement of an individual
 with mental illness; the court noted the holding of Fifth Circuit
 cases, including Donaldson, which are binding upon the Eleventh
 Circuit if decided before September 30, 1981); see also Wyatt v.
 Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974).

Treatment is not adequate if it “is such a substantial
 departure from accepted professional judgment, practice, or
 standards as to demonstrate that the person responsible actually
 did not base the decision on such a judgment.” Youngberg,
 457 U.S. at 323. Patients have a due process right to have all
 major decisions regarding their treatment be made in accordance
 with the judgment of qualified professionals acting within
 professional standards. Griffith v. Ledbetter, 711 F. Supp.
 1108, 1110 (N.D. Ga. 1989). 

In addition, patients’ constitutional liberty interests in
 security compel states to provide reasonable protection from harm
 in mental health hospitals. Youngberg, 457 U.S. at 315-16.
 States are also compelled by the Constitution to ensure that
 patients are free from hazardous drugs which are “not shown to be
 necessary, used in excessive dosages, or used in the absence of
 appropriate monitoring for adverse effects.” Thomas S. v.
 Flaherty, 699 F. Supp. 1178, 1200 (W.D.N.C. 1988), aff’d,
 902 F.2d 250 (4th Cir. 1990). “Even on a short-term basis, it is
 not acceptable to rely on drugs to the exclusion of other methods
 to treat people with behavior problems.” Id. at 1188. 

It is a substantial departure from professional standards to
 rely routinely on seclusion and restraint rather than behavior
 techniques, such as social reinforcement, to control aggressive
 behavior. Id. at 1189. Seclusion and restraint should only be
 used as a last resort. Id.; Davis v. Hubbard, 506 F. Supp. 915,
 943 (W.D. Ohio 1980). Further, professional judgment should be
 exercised on a case-by-case basis regarding the most appropriate


- 6 ­
setting in which individual patients should be placed. See,
 e.g., Thomas S., 902 F.2d at 254-55.

Additionally, patients in a psychiatric hospital have
 certain rights protected by federal statutory law. Specifically,
 the State must provide services and activities to patients at
 NWGRH that are consistent with Title XVIII and Title XIX of the
 Social Security Act and their implementing regulations. See
 42 U.S.C. §§ 1395 to 1395b-10 and 1396 to 1396w-1; 42 C.F.R.
 §§ 482-483 (listing program requirements for participating in
 Medicare and Medicaid). Furthermore, the State must take
 reasonable steps to ensure that patients with limited English
 proficiency and sensory deficiencies are provided with meaningful
 access to programs and services. See Title VI of the Civil
 Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7; 45 C.F.R.
 § 80.3; Americans with Disabilities Act, 42 U.S.C.
 §§ 12132-12134.

Furthermore, Georgia must provide services to qualified
 individuals with disabilities in the most integrated setting
 appropriate to their needs. Title II of the Americans with
 Disabilities Act, 42 U.S.C. § 12132 (“no qualified individual
 with a disability shall, by reason of such disability, be
 excluded from participation in or be denied the benefits of the
 services, programs, or activities of a public entity, or be
 subjected to discrimination by any such entity”), and its
 implementing regulations, 28 C.F.R. § 35.130(d)(“A public entity
 shall administer services, programs, and activities in the most
 integrated setting appropriate to the needs of qualified
 individuals with disabilities”); see Olmstead, 527 U.S. at 607
 (holding that states are required to provide community-based
 treatment for persons with mental disabilities when the State’s
 treatment professionals determine that such placement is
 appropriate, the affected persons do not oppose such treatment,
 and the placement can be reasonably accommodated, taking into
 account the resources available to the State and the needs of
 others with mental disabilities). 

III. FINDINGS

Significant and wide-ranging deficiencies exist in NWGRH’s
 provision of care. Certain conditions and services at NWGRH
 substantially depart from generally accepted professional
 standards and violate the constitutional and federal statutory
 rights of patients who reside there. In particular, we find that
 NWGRH: (1) fails to ensure the reasonable safety of its
 patients; (2) fails to provide adequate mental health treatment;
 (3) engages in the inappropriate use of seclusion and restraints;


- 7 ­
(4) fails to provide adequate medical care; (5) fails to provide
 adequate services to populations with specialized needs; and
 (6) fails to provide adequate discharge planning to ensure
 placement in the most integrated setting. Many of these
 deficiencies stem from a system that does not have clear,
 specific standards of care or an adequate number of trained
 supervisory, professional, and direct care staff. 

A. NWGRH Does Not Adequately Protect Patients From Harm

Patients at NWGRH have a right to live in reasonable safety.
 See Youngberg, 457 U.S. at 315, 322. NWGRH fails to provide a
 living environment that complies with this constitutional
 mandate. Specifically, patients at NWGRH are subject to
 self-injurious behaviors that are not responded to appropriately,
 particularly suicide attempts, and to frequent patient assaults
 that often result in serious harm. The Facility’s ability to
 address this harm is hampered by inadequate incident and risk
 management, including deficient investigative practices.

1. Incidents at NWGRH Are Serious and Recurring

Our review of the incidents at NWGRH revealed that they are
 serious, recurring, and frequently result in grave harm. We
 highlight two areas where the problems are particularly acute:
 suicide ideation and attempts and patient aggression.

a. Suicidal Ideation and Attempts Are Not Addressed
 Appropriately

A significant number of patients are admitted to NWGRH for
 stabilization and protection because of suicidal ideation or
 attempts. We found a troubling number of incidents in which
 NWGRH failed to recognize signs of suicide risk and failed to
 take appropriate action. The following incidents illustrate the
 grave harm that has resulted from these failures:

• M.U.4
 was transferred to NWGRH as an emergency involuntary
 admission on March 31, 2006, having refused to take her
 medications at a community-based residential services
 provider. Her admitting diagnosis was paranoid
 schizophrenia, and she also reportedly had a history of

4
 To protect patients’ privacy, we identify them by
 initials other than their own. We will separately transmit to
 the State a schedule that cross-references the initials with
 patient names.


- 8 ­
auditory and visual hallucinations. Documentation from her
 admission indicates that she denied present hallucinations,
 but she also stated that she believed she was under
 investigation. The admitting documentation also indicates
 that she refused to answer whether she was suicidal. 
 Nevertheless, NWGRH placed her on routine observation. She
 was moved to a unit that evening. The next day, during room
 checks, M.U. was withdrawn, and NWGRH staff found her
 sitting on the floor of her room, rocking back and forth.
 That evening, when the unit was taken outside, M.U. climbed
 a tree and attempted to hang herself with her shoelaces.
 When that was unsuccessful, she dove head first out of the
 tree and died on impact. 

• S.T. was admitted to NWGRH in October 2006, and he was noted
 to have a history of self-mutilation and suicide attempts.
 On October 19, 2006, just two weeks after his admission,
 S.T. went into a bathroom without any staff present after a
 staff member had given him a razor for shaving. S.T.
 removed the blade from the razor and slit his throat from
 ear to ear, resulting in four deep lacerations. Notably,
 although S.P. was placed on one-to-one observation following
 the incident, he was not reassessed for his emotional
 stability or risk of harm, and no treatment or behavioral
 interventions were made or modified.

Our review also revealed a number of incidents in which NWGRH
 failed to take appropriate corrective actions after the risk of
 suicide became evident. These examples illustrate a failure to
 intervene adequately to prevent future incidents:

• M.P. has lived on the DSU since 2004 and has a history of
 depression. On May 4, 2007, a staff member asked M.P. about
 an injury on his head, and M.P. alleged that he had been
 pushed into the wall by another staff member, striking his
 head. NWGRH initiated an investigation, which concluded
 that the allegation could not be substantiated. During
 interviews conducted pursuant to the investigation, however,
 three staff members reported that M.P. had threatened to
 kill himself earlier that day and was hitting his head
 against the wall in the dining room and his bedroom. None
 of the three staff members reported the suicide threats or
 self-injurious behaviors before the investigation.
 Moreover, even though the investigation recommended that the
 staff be retrained on reporting of suicidal threats and
 self-injurious behaviors, no referral was made to M.P.’s
 interdisciplinary team to reassess his current suicide risk


- 9 ­
and to implement changes in his treatment and behavior
 plans.

• On June 16, 2007, D.I. attempted to strangle herself and was
 rushed to the emergency room. We found no evidence that
 this suicide attempt was reported or reviewed as required by
 NWGRH and State policies and generally accepted professional
 standards. Nor could we find any evidence that an
 investigation was conducted of the incident or that any
 corrective actions were taken. 

b. Patient Aggression Is Not Controlled

Patient aggression is not adequately controlled at NWGRH.
 We found numerous instances in which patient-on-patient assaults
 resulted in serious injury to the victim, including fractures,
 lacerations, and head wounds, as the following examples indicate:

• A patient attacked K.Z. on September 25, 2007, and K.Z.
 suffered a laceration on his forehead that required sutures
 to close. On September 5, 2007, just 20 days earlier, a
 patient attacked K.Z., resulting in a cut above K.Z.’s right
 eye that also required sutures.

• In another assault in September 2007, a patient attacked
 A.W., fracturing his nose.

• On August 31, 2007, M.E. fractured his finger during a fight
 with another patient.

• Also on August 31, 2007, S.K. needed sutures to repair his
 left eyelid after an assault by another patient.

• Similarly, on August 23, 2007, E.Y. required sutures to
 close a cut on his left eyelid due to an assault. Five
 months earlier, on April 9, 2007, a patient attacked E.Y.,
 and he sustained cuts to his face that required sutures.

• On July 3, 2007, a patient attacked K.I., resulting in cuts
 and bruises on K.I.’s scalp and left eyebrow and hearing
 loss in his left ear.

• When being assaulted by another patient on May 3, 2007, P.L.
 suffered a cut to the back of his head that needed sutures.

• On April 29, 2007, a patient assaulted K.R., and K.R. needed
 sutures to close the cut on his lip.


- 10 ­
• A patient pushed K.H. to the floor on March 10, 2007, and
 K.H. hit his head, necessitating stitches to close the
 wound.

• On October 28, 2006, a patient hit C.D., fracturing his
 jawbone bilaterally.

• L.F. needed sutures to close a large wound to his scalp
 following an assault by another patient on October 1, 2006.

These examples also demonstrate the disturbing patterns we
 found in the patient-on-patient assaults, including repeat
 victims and units where patient aggression is particularly
 uncontrolled. E.Y. was attacked in both April and August 2007,
 resulting in significant lacerations, and K.Z. was attacked twice
 in September 2007, suffering similar injuries. Moreover, the two
 attacks on K.Z. both occurred on Unit 410, the same unit on which
 A.W. was assaulted, also in the month of September 2007. The
 repeated and significant level of violence on the units suggests
 a fundamental failure to address the root causes of patients’
 aggression and demonstrates a failure to intervene adequately to
 prevent future incidents.

2. NWGRH Provides Inadequate Incident and Risk Management

To protect its patients in accordance with generally
 accepted professional standards, NWGRH should have in place an
 incident and risk management system that helps to prevent
 incidents and ensures appropriate corrective action when
 incidents do occur. An effective incident and risk management
 system depends on: (1) accurate data collection and reporting;
 (2) thorough investigations; (3) identification of actual or
 potential risks of harm, including the tracking and trending of
 data; and (4) implementation and monitoring of effective
 corrective and/or preventive actions. NWGRH’s policies and
 procedures indicate that NWGRH has developed incident and risk
 management protocols, including incident reporting protocols,
 that are consistent with generally accepted professional
 standards. Unfortunately, these protocols are not consistently
 implemented at NWGRH, and the actual incident and risk management
 system substantially departs from generally accepted professional
 standards. Specifically, NWGRH fails to report incidents in a
 consistent and timely fashion. Moreover, NWGRH fails to identify
 risks and to implement corrective actions, and performs
 inadequate investigations. As a result, patients are routinely
 exposed to actual and potential harm, as indicated previously.


- 11 ­
a. Incident Reporting Is Incomplete and Untimely

The first necessary step to address harm like that at NWGRH
 is to ensure complete, accurate, and timely incident reporting.
 If incidents are not reported properly, NWGRH’s ability to
 respond to harm or the potential for harm on both individual and
 systemic bases is significantly diminished. Our review found
 that incidents are frequently not reported in a timely manner
 and, in some instances, are never reported. These deficiencies
 expose NWGRH patients to harm, as the following examples
 demonstrate:

• D.J.’s attempted suicide, discussed above, was not reported
 or reviewed as required by NWGRH and State policies. As a
 result, no investigation was initiated and no corrective
 actions were implemented, increasing the likelihood that
 such an incident could recur.

• On September 9, 2007, a staff member noticed a large bruise
 on U.M.’s shoulder but did not report it, in violation of
 policy. Later that day, a second staff member noticed the
 bruise but did not report it, also violating policy. On the
 morning of September 10, 2007, a third staff member noticed
 the bruise but did not report it, violating reporting
 policies yet again. It was not until early in the afternoon
 of September 10, 2007, that a staff member noticed the
 bruise and reported it as required by policy. U.M. was
 diagnosed with a fractured left clavicle, and the
 investigation into the cause of the fracture revealed the
 three staff members’ failure to report their observations. 

• Our review of witness statements and progress notes dated
 August 10, 2007, revealed that O.N. had assaulted other
 patients every day for a week, but NWGRH’s aggregate
 incident report data erroneously indicated that O.N. had not
 had an incident of aggression since May 14, 2007.

• On July 11, 2007, T.C. was allegedly unnecessarily and
 improperly restrained on the admissions unit. NWGRH did not
 report this incident to the Georgia Division of Mental
 Health, Developmental Disabilities, and Addictive Diseases
 (“MHDDAD”) for five days, contrary to State policy.


- 12 ­
• K.D., a patient with developmental disabilities, has a
 history of silent aspiration, dysphagia,5
 and
 “handmouthing,” where she places her hands in her mouth as a
 soothing mechanism. At approximately 4:30 p.m. on
 April 14, 2007, K.D. began exhibiting signs that she was
 choking. These signs continued and became so severe that at
 6:00 p.m., the physician ordered increased supervision,
 vital sign measurements every two hours, and restricted her
 diet to ice chips. It was not until shortly after
 8:00 p.m., however, when K.D. began to cough and gag
 repeatedly, that a staff member reported to the nurse that
 at approximately 4:00 p.m., when K.D. was moved from her bed
 to her wheelchair, a few broken hair barrettes were observed
 on her sheets. K.D. was immediately sent to a local
 hospital for observation, and was readmitted to the local
 hospital twice over the following two days for aspiration
 pneumonia. X-rays revealed a metallic object in her gastric
 area, and at least two broken barrettes were removed during
 surgery. The failure to immediately report the broken
 barrettes on K.D.’s bed is troubling, especially given the
 level of harm suffered. More troubling, however, is that
 this incident was never reported as the ingestion of
 inedible objects, known as “pica,” and was thus not included
 in the Facility’s aggregate data on pica incidents.
 Moreover, a safety plan addressing this risk was not
 completed until June 2007, nearly two months after the
 incident took place.

• U.N. is a patient with a significant history of choking,
 aspiration, and pica. On February 10, 2007, a NWGRH staff
 member left U.N. unattended during breakfast. When the
 staff member returned, she noted that U.N. had food on his
 face, but the paper cup holding the food was missing. At
 9 a.m., a nurse attempted to give U.N. his medications, but
 he repeatedly spit them out. When the nurse inquired
 whether U.N. had eaten his breakfast, the staff reported
 that he had not eaten well and spilled his tray. It was not
 until the nurse asked to see U.N.’s tray and inquired about
 the cup that the staff member reported that the cup was
 missing. U.N. was placed on close observation, and was
 eventually sent to the local hospital. After returning
 briefly to NWGRH, U.N. began vomiting and was returned to
 the hospital. NWGRH and the local hospital both concluded
 that U.N.’s symptoms were due to the ingestion of the cup. 

5
 Dysphagia is the medical term for difficulty in
 swallowing.


- 13 ­
The failure to report the missing cup immediately, given
 U.N.’s history of pica, placed him at significant risk of
 harm.

Without reliable and timely data regarding incidents and
 injuries, NWGRH is incapable of responding appropriately to
 prevent future harm. Moreover, NWGRH has repeatedly been put on
 notice of its failure to report incidents, and to report
 incidents in a timely manner, by the State itself. The State’s
 own investigative findings and corrective action recommendations,
 made by MHDDAD, consistently note these failures, and yet they
 persist:

• On March 21, 2007, the State recommended that a staff member
 receive additional training on the reporting of incidents,
 and also receive counseling regarding her fears of
 retaliation if she reported incidents.

• On March 28, 2007, the State required NWGRH to submit a Plan
 of Correction describing the steps NWGRH would take to
 ensure that incidents are reported in a timely manner.

• On May 7, 2007, the State required NWGRH to submit a
 Corrective Action Plan describing the steps NWGRH would take
 to retrain staff members on reporting of critical incidents,
 and particularly allegations of abuse.

• On May 16, 2007, the State reported that an allegation of
 abuse was not reported promptly in violation of procedure.
 Because this allegation was not timely reported, procedures
 for immediately removing staff from client contact while an
 investigation was conducted were not followed.

• On May 31, 2007, the State reported that NWGRH staff failed
 to report a suicide threat.

• In an August 13, 2007, report, the State observed that
 allegations of physical abuse were not reported, and that
 when they were reported, it was not in a timely manner.
 According to the report: “This is a repeat recommendation
 to NWGRH. This issue was most recently noted as a concern
 by this investigator in a report dated June 22, 2007.”

NWGRH’s failure to report incidents and injuries in a consistent
 and timely manner, especially after it has been notified of this
 failure repeatedly by the State, substantially departs from
 generally accepted professional standards.


- 14 ­
b. Risk of Harm Is Not Identified and Sufficient
 Preventive Actions Are Not Taken 

Incident management focuses on the collection and
 aggregation of data that are meaningful to protect an individual
 from harm, while risk management focuses on identifying actual or
 potential harm from that data and taking timely action to prevent
 the harm from occurring or recurring. Generally accepted
 professional standards dictate that a facility’s risk management
 program: (1) identify actual or potential risks of harm based on
 historical data, diagnoses, and co-occurring conditions;
 (2) develop timely and appropriate interventions designed to
 reduce or eliminate the risks of harm; and (3) monitor the
 efficacy of the interventions and modify them as necessary in
 response to further data. NWGRH’s risk management program fails
 to meet these standards.

As an initial matter, NWGRH fails to identify actual or
 potential risks of harm through analysis of historical data. For
 example, more than half of NWGRH’s patients identified as having
 pica behaviors in 2007 reside on one unit. In 2007, these six
 patients ingested batteries, buttons, paper clips, crayons, and
 cleaning fluid. These patients have been treated at the local
 hospital on at least four occasions after ingesting an inedible
 object. Despite the potential for harm, during our visit to this
 unit we observed that numerous objects, including objects similar
 to those ingested, were easily accessible to the patients. Most
 troubling, we observed one patient at risk for pica attempting to
 obtain an item that easily could have been swallowed.

NWGRH also fails to implement appropriate interventions and
 corrective actions in a timely manner, as demonstrated by the
 following examples:

• On August 3, 2007, S.Q. eloped from his unit and was later
 discovered outside another building on campus. His
 interdisciplinary team was assigned to address this issue,
 but no corrective action had been taken by the time of our
 tour on October 29, 2007, nearly three months later.

• On July 23, 2007, F.L. fell when a staff member attempted to
 transfer him to a wheelchair. We found no record that the
 staff member had been trained on proper transfer techniques
 as of October 29, 2007.

• On July 6, 2007, S.L. fell during a transfer from his
 wheelchair to the bathing trolley, but corrective actions


- 15 ­
were not completed until September 11, 2007, more than two
 months later.

• On June 25, 2007, K.K. eloped from the same unit that S.Q.
 eloped from later in the summer. The unit leader was
 required to address the failures in supervision that
 permitted K.K. to elope and to ensure that all staff
 understood their supervisory responsibilities. These
 corrective actions were not recorded as complete until
 August 10, 2007, a week after K.K. eloped again, and a week
 after S.Q.’s elopement from the same unit.

The failure to identify patients at risk of harm and to
 complete corrective action plans in a timely manner jeopardizes
 NWGRH’s ability to protect patients from harm, and is a
 substantial departure from generally accepted professional
 standards.

c. Investigative Practices Are Inadequate

Generally accepted professional standards dictate that
 facilities like NWGRH investigate serious incidents such as
 alleged abuse and neglect, serious injury, attempted suicide, and
 death. During the investigation, evidence should be
 systematically identified, collected, preserved, analyzed, and
 presented. Investigators should attempt to determine the
 underlying cause of the incident by, among other things,
 reviewing staff’s adherence to programmatic requirements such as
 policies and procedures. The investigative report should set
 forth the evidence considered, including all interviews conducted
 and documents reviewed, and it should clearly state the
 conclusions reached and the reasons for those conclusions.

The investigative process at NWGRH substantially departs
 from these standards. We found instances in which serious
 incidents and injuries, including attempted suicide, were not
 investigated at all. In addition, we also found instances in
 which critical evidence was not collected or considered,
 significantly diminishing the quality of the investigations.
 Failing to collect and consider significant relevant information
 is a substantial departure from generally accepted professional
 standards in performing investigations. The following
 investigations each illustrate these failures:

• As previously discussed, U.M. suffered a fractured clavicle
 on September 9, 2007. The investigative report into this
 incident does not include critical relevant information. In
 particular, it does not include any account of the events


- 16 ­
that may have led to this injury. Moreover, there is no
 evidence that the investigator questioned U.M. about his
 injury or how it occurred. Ultimately, the report never
 determines what caused U.M.’s fractured clavicle.

• After M.U.’s suicide, discussed previously, NWGRH undertook
 a Root Cause Analysis (“RCA”) to determine whether any
 measures could have been taken to prevent it. The RCA
 concluded that all policies and procedures had been
 followed, and staffing ratios were sufficient. The RCA
 bases this conclusion, in part, on its finding that neither
 the admitting hospital nor M.U. herself clearly indicated
 her suicidal ideation. The RCA does not appear to consider,
 however, that M.U. was admitted under the code for
 “Dangerous to Self Due to Mental Illness,” and that this was
 the reason for her involuntary admission to the hospital and
 NWGRH. This status suggests that significant precautions
 should have been, but were not, taken.

• On February 2, 2007, N.L. alleged that she was struck by a
 staff member. There is no evidence in the investigative
 report, however, indicating that N.L. was examined by a
 nurse or other medical professional to determine whether she
 had an injury consistent with her allegation. Without
 considering this potentially critical evidence, the report
 instead concludes that the allegation could not be
 substantiated based on the staff member’s denial and the
 supporting statement of another staff member.

Our review of the investigation into N.L.’s abuse allegation
 also revealed other troubling practices that substantially depart
 from generally accepted professional standards, and these
 practices unfortunately characterized other investigations we
 reviewed at NWGRH as well. First, the investigative process was
 not initiated in a timely manner. Although the alleged abuse
 occurred on February 2, 2007, the investigation did not commence
 until February 15, 2007, nearly two weeks later. The failure to
 investigate promptly impairs the collection and preservation of
 evidence and delays the implementation of corrective action that
 may prevent future harm. Second, the investigation included
 certain inconsistencies that raise doubts about its accuracy and
 thoroughness. The investigative report is dated
 February 21, 2007, but it includes a staff interview that is
 stated as having occurred on March 1, 2007. It is troubling that
 an apparently relevant staff interview may not have been
 conducted until after the report’s conclusions were already
 reached. 


- 17 ­
B. Mental Health Care Is Inadequate

NWGRH patients have a constitutional right to receive
 adequate mental health treatment. Donaldson, 493 F.2d at 520.
 The mental health services at NWGRH, however, substantially
 depart from generally accepted professional standards.
 Psychiatric practices are marked by inadequate assessments and
 diagnoses, which in turn, lead to inadequate treatment planning
 and delivery of inadequate treatments and interventions.
 Contrary to generally accepted professional standards, treatment
 planning is not person-centered, individualized, or integrated
 across disciplines. Psychology services, physical, nutritional
 and speech therapy, and behavioral management services are
 particularly deficient. Medication practices and emergency
 services are inadequate. Each of these failures affects the
 quality and effectiveness of the patients’ treatment plans, which
 are the foundation of an adequate mental health care program.
 Many of these deficiencies directly threaten patients’ physical
 health and well being as well. Moreover, as was also the case at
 GRHA, NWGRH’s failure to treat a patient’s mental health needs
 while hospitalized has frequently led to failed discharges and to
 repeated hospitalizations.

In accordance with generally accepted professional
 standards, each patient should have a comprehensive,
 individualized treatment plan based on the integrated assessment
 of mental health professionals. Treatment plans should define
 the goals of treatment, the interventions to be used in achieving
 these goals, and the manner in which staff are to coordinate
 treatment. The treatment plans should also detail an integrated
 plan designed to promote the patient’s stabilization and/or
 rehabilitation so that the patient may return to the community.
 Taken together, treatment plans constitute the standard against
 which a facility evaluates the effectiveness of the services it
 offers. In this sense, they are critical to a hospital’s ongoing
 efforts at quality improvement. 

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
 clinical disciplines; (2) the use 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, revision of the treatment plan. To be effective, the


- 18 ­
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 ensuring that
 relevant and critical patient information is obtained and
 considered.

NWGRH treatment planning substantially departs from these
 standards. From initial diagnosis and assessment to the
 development of skills and functioning necessary for recovery and
 community reintegration, NWGRH’s treatment planning fails to meet
 the fundamental requirements for the treatment and rehabilitation
 of its patients. As a result, patients’ actual illnesses are not
 properly assessed and diagnosed; patients are not receiving
 appropriate treatment and rehabilitation; patients are at risk of
 harm from themselves and others; patients are subject to
 excessive use of restrictive treatment interventions; and
 patients are at increased risk of relapses and repeat
 hospitalizations. Further, patients’ options for discharge are
 significantly limited, resulting in unnecessarily prolonged
 hospitalization, and, with respect to forensic patients,
 prolonged involvement in the criminal justice system. 

1. Psychiatric Assessments and Diagnoses Are Inadequate

Mental health treatment begins at the time of admission. An
 admissions work-up is an integral part of the course of
 hospitalization; it establishes the initial diagnosis and begins
 the course of treatment for patients as they begin their hospital
 stay. We noted many deficiencies in the initial assessments we
 reviewed. Assessments were often not timely or thorough. Fatal
 harm can result from a failed assessment: M.U., discussed
 previously, received no suicide risk assessment before being
 given access to a courtyard area where she killed herself. 

An effective treatment plan begins with a diagnosis that is
 clinically justified. If mental health professionals do not
 correctly identify a patient’s psychiatric condition before
 developing a treatment plan, the treatment interventions will not
 be aligned with the patient’s needs. Thorough assessments are
 necessary to identify presenting problems and strengths and needs
 of the patient, and to identify potential risks from aggressive
 or self-injurious behavior, potential victimization, substance
 abuse, or certain medical conditions. Adequate assessments are
 essential to the development of a person-centered plan that can
 direct rehabilitation, treatment, and care while the patient
 resides in the hospital, and to formulate an adequate discharge
 and transition plan for the patient’s return to the community.
 Psychiatry, medicine, nursing, psychology, and social work should


- 19 ­
each contribute to the assessment in accord with generally
 accepted professional standards. 

At a minimum, an initial assessment should include: (1) an
 adequate review of presenting symptoms and the patient’s mental
 status; (2) a provisional diagnosis and differential diagnosis
 that provides a decision tree by which diagnosis and treatment
 options may be clarified over time; and (3) a plan of care that
 includes specific medication and/or other interventions to ensure
 the safety of the patient and others. As more information
 becomes available, the assessment must be updated to include:
 (1) a history of the presenting symptoms from the patient based
 on the patient’s level of functioning and from collateral
 sources, as available; (2) the progression of the symptoms and
 setting within which the symptoms occur; (3) the relevant
 historical findings regarding the patient’s biopsychosocial
 functioning; (4) a review and critical examination of diagnostic
 conclusions made in the past in light of new information; (5) a
 review of medical and neurological problems, if any, and their
 impact on the current status of symptoms and treatment; and (6) a
 complete mental status examination. 

In many cases, initial assessments at NWGRH are incomplete.
 The majority of records reviewed at NWGRH lack assessments of
 social, vocational, functional, educational, and independent
 living skills. They also uniformly fail to assess history of
 community living and prior placements. These inadequacies are
 especially troubling for patients with a history of failed
 discharges and frequent re-admissions. Each of these
 deficiencies in assessment creates a serious impediment to the
 treatment team’s ability to identify the services and supports a
 patient may need while in the Facility and upon discharge. An
 example of inadequate assessments includes:

• E.G., who has a diagnosis of schizoaffective disorder and
 mild mental retardation, resided at NWGRH from April through
 August 2007. Eighteen previous placements in different
 foster homes were disrupted by her aggressive behaviors.
 NWGRH did not perform a functional assessment to identify
 possible reasons for these behaviors or to develop a
 behavioral plan. E.G. received 31 PRN6
 medications during
 this admission, with one only two days before her discharge,
 and continued to have incidents of aggression and property
 destruction. Her treatment plan was not adjusted to address

6
 PRN, or pro re nata, medications are dispensed on an
 “as needed” basis. 


- 20 ­
her aggressive behavior. Thus, one of the primary problems
 presented at admission – E.G.’s aggressive and maladaptive
 behavior – was not assessed, not treated, and appeared not
 to be resolved at discharge. 

NWGRH patients are routinely given tentative and unspecified
 diagnoses (including “rule out” and “not otherwise specified”
 (“NOS”) diagnoses) as a result of these flawed assessments. We
 found virtually no evidence of further assessments or
 observations to finalize the diagnoses. Because different
 psychiatric conditions can have similar signs and symptoms, it is
 important for mental health professionals to address NOS
 diagnoses to ensure that a patient’s treatment is appropriate for
 his or her actual mental health needs. At NWGRH, however, NOS
 diagnoses persist for months and over multiple admissions, with
 no sign of further diagnostic testing or refinement. The
 prevalent use of the “NOS” diagnosis reflects an inadequate
 diagnostic evaluation process and contributes to the lack of
 specificity in treatment plans. For example:

• N.Y. has had numerous diagnoses over the course of 16
 admissions, and his stays are characterized by frequent
 agitation and clinical instability. There is no evidence
 that the Facility conducted psychological testing to clarify
 his diagnosis and, thus, target treatments more effectively.

• K.R. has a diagnosis of psychosis NOS, and her treatment has
 not changed significantly over the course of more than 50
 admissions. 

NWGRH’s failures in the preliminary stages of assessment and
 diagnosis, as well as its failure to reassess patients to refine
 diagnoses, substantially depart from generally accepted
 professional standards. Patients receive or are at risk of
 receiving treatment that, at best, is unnecessary and, at worst,
 may actually exacerbate their mental illnesses. The result is
 that the actual mental illness is often unaddressed, placing
 patients at risk of prolonged institutionalization and/or
 repeated admissions to the Facility. 

2. Treatment Planning Is Inadequate

a. Treatment Plans Are Not Individualized or Patient
 Centered and Do Not Address Patients’ Needs

Treatment plans, which at NWGRH are called Individual
 Recovery Plans (“IRP”) or Individual Habilitation Plans (“IHP”),
 are, for the most part, inadequate and fall far short of


- 21 ­
generally accepted professional standards. They are frequently
 minimalist, generic, and reflect neither the true scope of
 patients’ needs nor an integrated, coherent plan for treatment.
 Surveys by the Centers for Medicare and Medicaid Services
 documented incomplete assessments that result in incomplete and
 generic treatment interventions. See e.g., March 3, 2004 CMS
 Survey (treatment plans for 11 of 11 patients lacked
 comprehensive and individualized interventions). When the
 treatment team fails to identify or address all of a patient’s
 presenting concerns, that patient is deprived of treatment for
 those concerns, and frequently subject to a longer period of
 institutionalization or to a repeat admission when those
 conditions or behaviors become barriers to successful community
 integration. Even worse, treatment plans at NWGRH often reflect
 contradictory plans of care. Treatment plans do not reflect
 interdisciplinary planning and corroboration, and contradictory
 assessments from different disciplines are neither addressed nor
 reconciled. Examples of deficient IRPs include: 

• K.J. was re-admitted in July of 2007, one month after his
 last discharge. His diagnoses included depressive disorder
 and cocaine dependence. He received no treatment for
 substance abuse while in the Facility, and no referral to
 substance abuse services in the community. He was homeless
 at the time of this admission, and was discharged to a
 hotel. 

• T.C., on her 44th admission to NWGRH, had been at the
 Facility for six weeks at the time of our visit. She had
 not participated in any active treatment, and had not been
 referred for a behavioral assessment, yet received PRN
 medications for disruptive behavior 13 times in a month. 

• M.L. has a diagnosis of depressive disorder and anxiety
 disorder and was receiving two psychotropic medications,
 Buspar and Lexapro, presumably to address these disorders,
 yet his behavioral support plan (“BSP”) does not address any
 behaviors or symptoms associated with depression or anxiety. 

• F.C.’s communication assessment notes that he is considered
 “nonverbal,” yet his behavior plan suggests that he “request
 social attention by speaking to others.” 

• K.I.’s annual communication assessment recommended no formal
 communication training; at the same time, his behavioral
 assessment found that his challenging behaviors served to
 elicit attention and gain access to desired activities,
 which are maladaptive means of communicating.


- 22 ­
As discussed supra, Section III.B.1, inadequate assessments
 that fail to discern the reasons for multiple re-admissions, and
 treatment plans that fail to address relevant clinical
 presentations in a specific, individualized, strengths-based, and
 recovery-oriented manner have resulted in repeated failures of
 treatment at NWGRH and the subsequent failure to succeed in the
 community. Multiple re-admissions are extraordinarily costly to
 patients and the system. Frequent relapses may cause a
 progressive worsening of a patient’s mental illness and make the
 patient more intractable to treatment. Multiple re-admissions
 are also costly to the system of care, resulting in multiple
 assessments, care plans, and other treatments, where one adequate
 provision of these services would have sufficed. 

Treatment plans at NWGRH often provide no clear alternatives
 if the initial, vague interventions prove ineffective, leaving
 staff with few alternatives to restraint, seclusion, and PRN
 medications to address challenging behaviors. We typically found
 generic treatment objectives for patients with psychotic
 diagnoses and substance abuse diagnoses. The recurrence of 
 near-identical goals and objectives for so many patients makes
 evident the non-individualized nature of NWGRH’s treatment plans.

NWGRH does not provide sufficient treatment programming to
 patients, as noted by the State’s own audit, which found “a fair
 amount of patient inactivity and sleeping on the units.” NWGRH
 also fails to intervene when patients do not participate in even
 the limited number of treatment groups available. For example:

• F.O. attended none of the 35 groups scheduled in one week;
 his treatment team took no notice. 

• B.T. attended no activities according to his QMRP quarterly
 review, although he was credited with 100% attendance and
 engagement levels, contradictory findings that apparently
 were not challenged by his treatment team.

• T.C., noted above, did not participate in active treatment
 for the first six weeks of her current admission, which was
 her 44th. 

The lack of meaningful treatment and habilitation services
 for patients on the DSU, where the majority of the patients may
 need behavioral supports, is particularly problematic. A sense
 of staff complacency pervades the DSU, where patients’ limited
 skills or challenging behaviors seemingly are accepted by staff
 as unchangeable, and is reflected in the inadequate treatment


- 23 ­
plans and interventions for the patients of these units. For
 example:

• N.C.’s person-centered planning meeting was held without
 her, even though N.C. is described as a “very effective
 communicator via verbal productions” with excellent
 receptive language skills. The record also shows no
 participation by any family member, advocate, guardian, or
 direct care staff who knows N.C.

• None of T.M.’s training goals are related to the choices
 identified in her ISP, which is not surprising, given that
 neither T.M. nor any direct care staff participated in her
 person-centered planning meeting.

• K.I.’s plan includes only two training goals: one, within
 two years to be able to point to his pill and state its
 purpose; and two, within three years to fill out a mock
 check. The expectation of such slow and limited progress
 indicates unreasonably low expectations for K.I. Moreover,
 this plan ignores K.I.’s clear need for communication
 training to provide appropriate ways to express his
 preferences. His behavioral assessment hypothesizes that
 his challenging behaviors are associated with attempts to
 access preferred activities, that is, to communicate what
 he’d like to do. 

The State’s own audit also noted a concern with low hours of
 active treatment and patient interaction on the DSU. NWGRH’s
 failure to provide adequate treatment to DSU patients is
 exacerbated by clinically outdated and unsupportable opinions
 about patients with developmental disabilities. For example,
 G.L.’s diagnoses include “behavior problems secondary to mental
 retardation.” To conclude that challenging behaviors are an
 inherent and unchangeable part of the condition of mental
 retardation is a gross deviation from generally accepted
 professional standards, and suggests a lack of training and
 competency regarding current practices. Because of this
 commonly-held view at NWGRH, these behaviors are not addressed,
 patients are deprived of effective treatment, and these behaviors
 become a justification for continued institutionalization. This
 is an egregious violation of these patients’ rights.

b. Failure to Address Repeated Admissions

High rates of re-admission at the Georgia Regional Hospitals
 are well documented. Audits commissioned by the Governor,
 including the 2005 Georgia Mental Health Gap Analysis study,


- 24 ­
concluded that a 30-day readmission rate 55 percent greater than
 the national average contributed to overburdening the State’s
 Psychiatric Hospitals. These conditions persist.

The work of admitting patients and providing the crisis
 stabilization necessary for new admissions leaves an already
 overburdened system with fewer staff resources to provide
 treatment planning, interventions, and supervision for patients.
 Moreover, frequent re-admissions are extremely detrimental to
 these individual patients, disrupting their recoveries and their
 lives in the community. Frequent relapses and re-admissions may
 progressively worsen a patient’s serious and persistent mental
 illness and make patients more intractable to treatment. Thus,
 generally accepted professional standards demand that treatment
 teams routinely examine and address issues that cause patients to
 be admitted repeatedly to the hospital. However, in multiple
 cases of repeated admissions, we saw no evidence that the
 treatment team examined or addressed the factors that led to
 re-admission and altered the patient’s treatment from a previous
 stay at the hospital. For example:

• K.T. was admitted for the fourth time on October 27, 2007,
 and was discharged, still grossly psychotic, two days later.
 His previous admission was just a month earlier, when he was
 discharged after just three days to a homeless shelter. At
 the time of that third admission, his team expressed the
 “hope” of identifying permanent housing such as a group
 home. But he was nonetheless discharged to a shelter
 without the supports of a group home, an unsuitable
 discharge that led to his fourth admission. 

• K.J., discussed above, was also re-admitted within one month
 of his prior discharge. Despite diagnoses of depressive
 disorder and cocaine dependence, he received no treatment
 for substance abuse while institutionalized, and no referral
 to substance abuse services in the community. 

• T.C., on her 44th admission to NWGRH, had not participated
 in any active treatment, and had not been referred for a
 behavioral assessment six weeks into her current
 hospitalization, despite frequent episodes of disruptive
 behavior and resulting restraint and administration of PRN
 medications.

• N.Y. was hospitalized for the 7th time in 2007 alone, yet
 his files contained no clinical information from prior
 hospitalizations to guide the team in understanding the


- 25 ­
course of his illness and possible reasons for his repeated
 admissions. 

c. Treatment for Substance Abuse Is Inadequate

There is a stark lack of treatment for patients with
 co-occurring diagnoses of substance abuse. It was evident in a
 significant number of records that this issue was one of the most
 serious impediments to community placement and part of the reason
 for frequent re-admissions to the hospital. In addition to lack
 of treatment in the Facility, we did not find a single referral
 for community substance abuse treatment in the discharge plans we
 reviewed for patients with a substance abuse problem. Among the
 more egregious examples were:

• N.T., with diagnoses of schizoaffective disorder and opiate
 dependence, reported using heroin for the past nine months.
 She was discharged following her 19th admission to the home
 of a family friend.

• K.U., with diagnoses of psychotic disorder, mood disorder,
 alcohol dependence, cocaine dependence, opiate abuse, and
 alcohol withdrawal, reported that he lived in an environment
 that was “drug infested.” He was nonetheless discharged
 after ten days with no connection to substance abuse
 treatment.

The lack of substance abuse programming and its deleterious
 effects on patients at NWGRH is well known to hospital and State
 administrators. CMS cited NWGRH on February 7, 2007, for failing
 to provide adequate discharge planning in the case of a patient
 discharged with a bus ticket, a boxed lunch, and the address of
 an out-of-state shelter, but no provision for follow-up
 psychiatric care or substance abuse programming. We found
 numerous instances of similarly deficient discharge planning in
 our visit more than eight months later. In a pattern that echoes
 the failure of accountability throughout this system, the
 Facility’s Chief of Social Work was unfamiliar with the plan of
 correction submitted to CMS that promised monthly audits of
 discharge plans overseen by the Chief of Social Work. 

3. Behavioral Management Services Are Inadequate 

a. Behavioral Services Are Not Timely

Behavioral support plans (“BSPs”) at NWGRH are largely
 nonexistent, and those that exist are largely inadequate and not
 well integrated into overall treatment. Many patients who were


- 26 ­
repeatedly subject to seclusion, restraint, and/or administration
 of PRN medications – measures that should be reserved for
 emergency crisis intervention – have no behavioral supports in
 place. This is an egregious departure from generally accepted
 professional standards. Routinely, even when a treatment team
 makes a recommendation for a BSP, these plans are not developed
 and implemented in a timely manner. Examples of failure to
 provide, or of inordinate delay in providing behavior management
 services include:

• N.Y., on his 7th admission in 2007, was subject to repeated
 PRNs and restraint, but had no behavior supports
 consistently in place.

• K.Q., whose challenging behaviors include rectal digging,
 aggression, and agitated movement (which his treatment team
 characterizes as “buck dancing”), waited nine months from
 referral to approval of a BSP.

• O.N., whose challenging behaviors include self-injury and
 physical and verbal aggression, showed marked increases in
 problematic behaviors in May, June, and August 2007, while
 his BSP remained “under development.” The BSP had not been
 implemented by the time of our tour in late October.

• T.C. received multiple PRN medications and restraints due to
 agitation and aggression over a six-week period, but
 attended no active treatment and received no counseling; at
 the time of our tour, she had not been referred for an
 individual behavioral intervention.

• Q.M.’s treatment notes indicate that she does not understand
 her treatment and is confused and disorganized. She had
 received frequent PRNs during her year-long hospitalization,
 yet the hospital had not provided her with a functional
 assessment or behavioral treatment plan. We saw no evidence
 that her treatment plan had been adjusted despite her poor
 response to the current plan. 

• D.D. was administered emergency medications at least nine
 times during the four months he waited for NWGRH to develop
 a BSP.

• A behavior specialist prepared a BSP for G.L. in May 2006,
 but it was not approved and implemented for more than five
 months. During this wait, G.L. continued to harm himself
 frequently. 


- 27 ­
• K.C. was admitted in January 2007, in part, because of
 unmanageable behaviors at home. While at the Facility, he
 continued to engage in self-injurious behaviors and physical
 aggression, behaviors that were noted by his treatment team
 in its monthly reviews. Despite continued maladaptive
 behaviors, and significant spikes in these behaviors in May
 and August, no behavior support plan was developed for more
 than nine months. 

b. Behavioral Plans Are Not Modified Appropriately

For those few patients with behavioral management plans,
 treatment teams routinely fail to revise those plans,
 notwithstanding evidence of continuing or escalating problem
 behaviors. For example:

• G.L., whose BSP was delayed for more than five months in
 2006, continued to engage in self-injurious behavior
 frequently in during the first quarter of 2007.
 Nonetheless, his QMRP Quarterly review for that quarter
 recommended “[n]o changes at this time.” His substantially
 increased aggression and episodes of taking others’ food in
 the following quarter drew the same response from his team:
 “Continues current programing . . . [N]o changes at this
 time.” 

• K.Y. showed an onset of physical aggression and increased
 verbal aggression in the first two quarters of 2006, yet his
 BSP was not revised; his current BSP states that he “has
 displayed neither maladaptive behaviors nor depressive or
 psychotic symptoms since his admission . . .,” an assertion
 clearly inconsistent with this record. 

NWGRH has too few skilled psychologists and behavioral
 specialists on staff to develop and monitor adequate behavior
 management plans for the many patients whose behaviors suggest a
 compelling need for such plans. At the time of our visit, the
 Chief of Psychology’s caseload included 110 patients on the
 mental health units, plus 105 patients on the DSU. Generally
 accepted professional standards would require at least five more
 psychologists to service these units. Two forensic psychologists
 were responsible for 67 forensic patients and all necessary court
 evaluations. A total of six behavior specialists were also
 assigned to the units. Generally accepted professional standards
 require the work of the behavior specialists to be supervised by
 a doctoral-level psychologist – adding to the psychologists’
 already-impossible workload. 


- 28 ­
c. Behavioral Plans Substantially Depart From
 Generally Accepted Professional Standards

The few behavioral assessments in place at NWGRH
 substantially depart from generally accepted professional
 standards. In some cases, patients with behavior plans had no
 functional assessments of the problematic behaviors to support
 the behavior plan. In others, the functional analysis was
 deficient in one or more significant ways: many failed to
 hypothesize the function of the challenging behavior; did not
 consider antecedent, environmental, or health factors that
 influence a behavior; did not contain sufficient baseline data;
 failed to identify target or replacement behaviors; and suggested
 inappropriate and even dangerous replacement behaviors. These
 inadequacies in behavioral assessments undermine all subsequent
 behavioral treatment planning. Examples include:

• L.Q.’s BSP suggests that, as a replacement behavior for his
 aggression, L.Q. should stand up, move around, and “feel[]
 around the walls” as an indication that he wishes to go for
 a walk. L.Q. is legally blind. The suggested replacement
 behavior to “feel[] around the walls” is demeaning and
 deviates grossly from generally accepted professional
 standards. 

• L.Q.’s BSP also suggests that rectal digging may be an
 appropriate self-stimulatory behavior to engage in when he
 is in a private place. Encouraging as a replacement
 behavior an activity that can easily lead to injury or
 illness evidences questionable clinical judgment. 

• BSPs for Y.B., K.C., and G.L. include the planned use of
 manual holds or restraints, a gross departure from generally
 accepted professional standards. 

NWGRH fails also to collect sufficient behavioral data on
 which to base treatment decisions, and staff told us that no data
 at all are collected on replacement behaviors. Generally
 accepted professional standards require a mental health
 professional to analyze objective data concerning symptoms or
 behavior, and not merely anecdotal information. The lack of
 accurate behavioral data hinders accurate evaluation of the
 progress, or lack of progress, made by patients. Accordingly,
 actions by treatment teams are often based on inaccurate and
 limited data, leaving teams at risk of making decisions that are
 not clinically indicated. Examples include: 


- 29 ­
• D.I. has a behavior plan to reduce his intrusiveness, and
 his prior treatment plan included a communication goal to
 “verbally express wants, needs, and feelings with
 intelligibility.” His new plan discontinues the
 communication goal without addressing whether he had made
 any progress. Improved communication skills could help
 reduce maladaptive, intrusive behaviors, and the team’s
 decision to drop that goal does not appear to be based on
 objective data.

• O.N.’s BSP cites baseline data from a previous admission in
 2005-06, and includes no data from his current admission,
 even though he had been at the Facility for at least four
 months in 2007. 

• The replacement behaviors on F.C.’s BSP are identical in
 2005 and 2007, although there are no data to determine
 whether he has made any progress in acquiring replacement
 behaviors. The data on his target behaviors, however varies
 widely, suggesting that whether or not he acquired
 replacement behaviors, they were not serving the purpose of
 reducing maladaptive target behaviors.

Behavioral data in individual charts is not current, and
 appears typically to be updated only annually. The failure to
 implement timely behavioral supports, to evaluate and revise
 behavior plans as clinically indicated, and to collect objective
 data with which to support clinical decisions are all egregious
 departures from generally accepted professional standards.

C. Seclusion and Restraints Are Used Inappropriately

The right to be free from undue bodily restraint is the core
 of the liberty protected from arbitrary governmental action by
 the Due Process Clause. Youngberg, 457 U.S. at 316. Thus, the
 State may not subject patients of NWGRH to seclusion and
 restraint “except when and to the extent professional judgment
 deems this necessary to assure [reasonable] safety [for all
 residents and personnel within the institution] or to provide
 needed training.” Id. at 324. Generally accepted professional
 standards require that seclusion and restraints: (1) will be
 used only when persons pose an immediate safety threat to
 themselves or others and after a hierarchy of less restrictive
 measures has been exhausted; (2) will not be used in the absence
 of, or as an alternative to, active treatment, as punishment, or
 for the convenience of staff; (3) will not be used as a
 behavioral intervention; and (4) will be terminated as soon as
 the person is no longer a danger to himself or others. NWGRH’s


- 30 ­
use of seclusion and restraints, including medication used as a
 chemical restraint, substantially departs from these standards
 and exposes patients to excessive and unnecessarily restrictive
 interventions. 

Given the deleterious effects of seclusion and restraint,
 and the fact that these measures restrict patients’ rights and
 their ability to receive appropriate care, generally accepted
 professional standards require that institutions like NWGRH
 reduce their use of seclusion/restraint by addressing behavior
 problems with less intrusive and restrictive strategies. We
 found that, while NWGRH has reduced the use of physical restraint
 and seclusion — which is commendable — the use of chemical
 restraint remains high, and when physical restraint and seclusion
 are used, the time periods that patients are subject to them is
 excessive. 

Throughout the Facility, staff effort is focused primarily
 on controlling patients rather than treating them and replacing
 their maladaptive behaviors. On the adult mental health units,
 for example, only two of the 110 patients had behavior plans,
 despite many instances of challenging behaviors. Untrained staff
 lack the skills necessary to handle the large number of highly
 challenged patients who are dangerous to themselves or others or
 who have specialized needs. Not surprisingly, we found that in
 these difficult circumstances, staff resort to seclusion,
 restraint, and, secondarily, PRN medication, in lieu of
 appropriate treatment. Restrictive interventions clearly are
 used in place of active treatment, as punishment, and for the
 convenience of staff at NWGRH, contrary to generally accepted
 professional standards. 

Use of antipsychotic medications for behavior control is
 chemical restraint. We found numerous instances where
 medications are being used as a form of behavior control, rather
 than as form of treatment for symptoms of psychosis. In many of
 these instances, the patient had no behavioral treatment plan, or
 the existing behavior plan was not utilized sufficiently. For
 example, N.Y. has been given multiple PRN medications for
 behavior control, including Ativan, Zyprexa, Thorazine, Geodon,
 and Haldol. N.Y. did not have a behavioral treatment plan in
 place when he was given any of these medications. The use of
 medications as chemical restraint, especially when there is no
 behavioral treatment plan in place, is a substantial departure
 from generally accepted professional standards. Moreover, the
 use of medications for these purposes has a significant potential
 for harm because of the side effects linked to exposure to
 antipsychotic medications, including irreversible motor


- 31 ­
disorders, such as tardive dyskinesia, and the inability to
 control levels of glucose and lipids in the blood.

Furthermore, in a significant departure from generally
 accepted professional standards, NWGRH does not ensure that
 seclusion and restraints, including manual holds and PRNs, are
 used only as a last resort and not in the place of active
 treatment, as punishment, or as a convenience for staff. In some
 BSPs, such as those of Y.B., K.C., and G.L., restraints are
 written right into the program. 

Our review also noted that, while the use of physical
 restraints and seclusion at NWGRH is relatively low compared to
 the other State Psychiatric Hospitals we visited, the duration of
 the restraint or seclusion is often extended. The following uses
 of mechanical restraint illustrate their extended use at NWGRH:

• On September 14, 2007, L.C. was mechanically restrained for
 four hours; the day before, L.C. was also mechanically
 restrained for four hours. On September 11, 2007, just two
 days previous, L.C. was mechanically restrained for eight
 hours, while the day before she was mechanically restrained
 for nearly three and a half hours; 

• On September 13, 2007, N.G. was mechanically restrained for
 nearly three hours;

• K.R. was mechanically restrained for three and a half hours
 on August 25, 2007; he had previously been restrained for
 the same length of time on April 28, 2007;

• On May 13, 2007, E.G. was mechanically restrained for over
 two and a half hours; she had previously been restrained for
 three hours and 15 minutes on April 17, 2007;

• T.I. was mechanically restrained on April 28, 2007, for four
 hours;

• On April 15, 2007, B.M. was mechanically restrained for
 nearly seven and a half hours; and

• On April 4, 2007, O.D. was mechanically restrained for
 nearly ten hours.

As with mechanical restraints, use of seclusion at NWGRH,
 when used, is often extended:


- 32 ­
• On September 10, 2007, L.C. was held in seclusion for four
 hours; as noted above, over the next four days L.C. also
 spent nearly 20 hours in mechanical restraints;

• On July 4, 2007, K.N. was held in seclusion for seven hours
 and 45 minutes; and

• On June 30, 2007, S.N. was held in seclusion for seven
 hours.

The extended use of mechanical restraints and seclusion at
 NWGRH suggests that they are not being terminated as soon as the
 person is no longer a danger to himself or others. The failure
 to terminate the use of mechanical restraints or seclusion when
 the person is no longer a danger is a substantial departure from
 generally accepted professional standards.

In addition, contrary to generally accepted practices, we
 found insufficient review of restrictive programs by the
 Facility’s human rights committee, and inappropriate exclusion
 from treatment as a punishment for problem behaviors. Examples
 include:

• S.K. was restricted from day treatment for one week because
 he tried to kiss a staff member.

• U.W. was restricted from day programs because he brought
 cigarettes back to the unit.

• B.R.’s behavior contract includes “24 hour social isolation”
 and “24 hours media restriction” that do not appear to have
 been approved by the human rights committee. 

D. Medical Care Is Inadequate

Although NWGRH patients are entitled to receive adequate
 health care, see Youngberg, 457 U.S. at 315, the Facility’s basic
 medical care and nursing services substantially depart from
 generally accepted professional standards. NWGRH, like GRHA,
 fails to provide basic medical care and has inadequate clinical
 oversight, pharmacological practices, medication administration,
 infection control, physical and nutritional management, emergency
 preparedness, and staffing. Our findings regarding medical care
 echo many of those previously made in the State’s own survey by
 the Medical College of Georgia.


- 33 ­
1. Inadequate Clinical Oversight

The major role of clinical oversight in any institution is
 to ensure that generally accepted professional standards of
 practice and accountability are maintained. These standards
 require that nursing departments have a nursing and medical
 quality assurance program. Such a program provides internal
 monitoring for a nursing department and permits a facility to
 identify its problematic areas and correct them. A regular
 review of provided services also allows the nursing department to
 ensure that the services it purports to provide are those that it
 actually provides. 

A quality assurance program for nursing consists of a number
 of monitoring instruments that measure the quality of care and
 services that are provided by the nursing department. These data
 are then regularly reviewed, analyzed, tracked, and trended. For
 areas that yield a low level of compliance, a plan of correction
 should be developed and implemented to increase the compliance
 rates for areas that are found to be deficient. Monitoring
 permits nursing management and facility administration to be
 aware and responsive to the needs of a department. It also
 assists nursing management in determining what types of
 interventions are needed when problem areas are identified and in
 tracking outcomes after interventions have been initiated. 

NWGRH’s nursing department does not have a program that
 monitors, tracks, identifies trends, and recognizes when a
 particular system is in need of corrective action. The data
 provided in response to our request for all nursing monitoring
 data, which was sparse, was not able to be interpreted in any
 meaningful way. Predictably, then, NWGRH’s nursing services have
 several problematic areas that have not been identified by
 nursing leadership and, as a result, poor nursing practices have
 not been addressed. 

Interviews with nursing management and staff confirmed that
 monitoring, if it is done at all, is done informally and
 inconsistently. Indeed, the lack of monitoring is disturbing
 given that the Medical College of Georgia survey identified
 problems with NWGRH’s nursing care, but no actions have been
 taken to address these problems.

2. Failure to Provide Basic Medical Care

Effective medical services depend on timely, thorough
 assessments and monitoring. Generally accepted professional
 standards require nursing assessments to be designed to collect


- 34 ­
specific, individual data to assist the team and the patient with
 case formulation, diagnosis, and treatment planning. The nursing
 assessments we reviewed at NWGRH did not meet these standards. 
 At best, the nursing assessments were superficial and had little
 to no clinical relevance. Based on our review, NWGRH does not
 have a system in place ensuring that nursing assessments and
 documentation are adequate, complete, and accurate. For example,
 upon her admission, E.Y. was noted to be at risk for falls. The
 nurse’s note indicates that, on the same day as her admission,
 E.Y. fell in her room and complained of leg pain. The following
 day she fell twice, and a nurse noted she had a knot on the back
 of her head. Her assessments following the falls, to the extent
 they were performed, do not indicate whether any vitals signs
 were taken, which leg was injured, or whether a neurological
 check was conducted. E.Y. had numerous other falls that lacked
 adequate nursing assessments — she fell a total of six times in
 one month without any proactive interventions except being placed
 in a bed with side rails. E.Y. experienced a dramatic change in
 her mental status following one fall: she became drowsy, her
 speech became slurred and disconnected, and she required
 hospitalization for a procedure to relieve pressure on her brain.
 In short, E.Y. was not appropriately assessed by nursing to
 determine her status after each fall. E.Y.’s treatment plan
 indicates that physical therapy could have been consulted for her
 risk of falls, but no such consult was initiated. The failure of
 basic nursing care and lack of interventions to address her risk
 of falls resulted in significant harm to E.Y.

The nursing assessments for O.G. were similarly incomplete.
 O.G. was sent to the emergency room for dehydration,
 malnourishment, and medical instability. But the nursing notes
 stated only that he was sent to the emergency room for evaluation
 — no symptoms or vital signs were recorded. The note upon his
 return to NWGRH included orders to encourage oral intake; no
 further assessment of his status was included in his record. 
 D.J. was also transported to an emergency room without an
 adequate nursing assessment. In her case, the nurse’s note
 indicated that D.J. had symptoms suggesting a possible stroke or
 infarction.7 But there is no indication of when these symptoms
 began, and no vital signs were taken or neurological checks
 conducted before D.J.’s transportation to the emergency room.
 The nursing assessment, as with the cases described above, was
 incomplete and unacceptable. 

7
 Infarction is a condition in which tissue dies because
 its blood supply is blocked.


- 35 ­
We also reviewed numerous assessments lacking information
 required for basic medical care. For example, the psychiatric
 nursing assessment for K.H. presented only a generic picture of
 his condition at admission. The only written description of him
 noted that he was “agitated” and that he was “cooperative at
 times” and “uncooperative at times.” While the nurse indicated
 that he had Hepatitis C and tachycardia,8
 his problem list did
 not include either of these issues. The psychiatric nursing
 assessment for another patient, D.O., was incomplete. Although
 the nurse noted that the patient had stomach surgery resulting
 from a gunshot wound to the abdomen, the only related
 documentation was vague: “some bowel and kidney complications.”
 D.O. was taken to the hospital for severe diarrhea and nausea
 several days after this incomplete assessment. Similarly, while
 the nursing assessment for M.N. indicated that she had
 hypertension, cellulitis, and a urinary tract infection, it
 failed to indicate that she was significantly obese. Such an
 omission places her at medical risk and is also a factor in
 selection of an appropriate psychotropic medicine. The omission
 extended to treatment: M.N.’s treatment plan did not address her
 obesity in any way. Thus, the nursing assessments at NWGRH are
 inadequate; they do not facilitate sound clinical judgments in
 planning appropriate interventions and place the patients
 residing there at significant risk for harm.

The health care plans at NWGRH are similarly inadequate.
 The purpose of a health care plan is to guide therapeutic
 interventions systematically, document progress, and achieve the
 expected individual outcomes. These plans should be
 individualized and should identify priorities for care and
 interventions that are consistent with current generally accepted
 professional standards. The numerous plans we reviewed all had
 essentially identical goals, objectives, and recommendations,
 reflecting a lack of individualization and no identification of
 priorities in a given patient’s care. The listed interventions
 provided no guidance regarding treatment modalities, and the
 plans failed to include proactive interventions addressing risk
 factors.

We reviewed a sample of health care plans for NWGRH patients
 identified as at risk for aspiration. None of the health care
 plans included aspiration as a health risk. Proactive
 interventions, such as obtaining lung sounds and oxygen
 saturation to determine changes in health status, were absent in

8
 Tachycardia is the medical term for a rapid heart rate,
 usually defined as over 100 beats per minute.


- 36 ­
the health care plans for these at-risk patients. Instead, the
 health care plans we reviewed included the generic statement
 “monitor and maintain good physical health over the next 12
 months.” The harm caused by non-individualized treatment can be
 seen in the following examples:

• E.D. was sent to the hospital because of coffee ground
 emesis,9
 respiratory congestion, and possible pneumonia. 
 E.D. is also at risk for aspiration. But his health care
 plan did not include these health issues or related
 interventions to assist staff in providing care. 

• D.H. was diagnosed with the infectious disease
 methicillin-resistant staph (“MRSA”) and is also at high
 risk for aspiration due to gastro-esophageal reflux disease.
 His health care plan did not include either of these major
 health issues nor did it include regular assessment of his
 health status. The generic quality of his health care plan
 provides no guidance to staff.

• T.H. has been identified as at high risk for aspiration.
 His health care plan did not include this risk and therefore
 does not provide for interventions to prevent aspiration or
 assess any potential status change. T.H. has been sent to
 the hospital three times in three months for episodes of
 difficulty breathing, rhonchi,10
 lethargy, and pneumonia. 
 Despite repeated hospital visits, his health care plan
 requires no proactive assessments or interventions.

• N.N. has similarly been identified as at high risk for
 aspiration and has no health care plan that addresses this
 risk. She too has endured repeated trips to the hospital
 for episodes of dehydration, fever, lethargy, and possible
 aspiration pneumonia.

• K.D. has been sent to the hospital twice for aspiration
 pneumonia and choking; her health care plan did not include
 aspiration as a risk.

• D.M. was sent to the hospital four times in two weeks: the
 first time for fever, cough, and respiratory distress, the
 second time for respiratory distress and symptoms of

9
 Coffee ground emesis is the medical term for vomit that
 contains blood.

10
 A coarse rattling sound usually caused by the
 accumulation of mucus or other material in a bronchial tube.


- 37 ­
pneumonia, and the third and fourth times for pneumonia.
 Her health care plan did not include her risk for aspiration
 or any preventative interventions.

• R.H. was sent to the hospital for shortness of breath,
 cough, and pneumonia, but R.H.’s health care plan did not
 include her risk for aspiration or any preventative
 interventions.

Health care plans at NWGRH are alarmingly inadequate. They
 provide no clinical template for health care and fail to identify
 and address significant health issues so that positive outcomes
 may be achieved. Many patients suffered acute health issues;
 their health care plans failed to address these issues, and were
 not modified to prevent recurrences. The health care plans at
 NWGRH depart substantially from generally accepted professional
 standards, resulting in harm to patients.

3. Pharmacology Practices are Inadequate

Medication practices at NWGRH substantially depart from
 generally accepted professional standards in several critical
 respects. Contrary to accepted practice, pharmacological
 treatments are frequently the only interventions used to manage
 symptoms and behaviors, as discussed in Section III.C, supra. 
 Many patients receive psychotropic medication – or multiple
 medications – for the purpose of sedation or to manage behavior,
 without underlying behavioral support plans. N.Y. and E.G.,
 discussed previously, are two egregious examples of patients who
 received multiple medications for disruptive behavior without any
 behavioral support plans in place. 

We also found medication prescription practices that are
 inconsistent with generally accepted professional standards.
 Polypharmacy, the practice of prescribing multiple medications to
 address the same indications, is widespread, and many records
 lack appropriate justification for this practice. For example,
 K.U., K.R., and K.N. were each receiving five such medications
 without sufficient clinical justification. Moreover, a number of
 medications were prescribed (and in some instances, not
 prescribed) in a manner inconsistent with generally accepted
 professional standards. For example, we observed orders for the
 emergency administration of Depakote and serotonin-specific
 re-uptake inhibitors, although these medications take weeks to be
 effective, and are thus inconsistent with emergency dosing.
 These practices substantially depart from generally accepted
 professional standards in pharmacology.


- 38 ­
4. Inadequate Medication Administration

Generally accepted professional standards dictate that
 medications be administered according to nursing procedures that
 ensure that the correct patient receives the prescribed dosage of
 the prescribed medication by the prescribed route at the
 prescribed time. Moreover, generally accepted professional
 standards require that nursing staff properly complete Medication
 Administration Records (“MARs”). Among other things, MARs list
 current medications, dosages, and times that medications are to
 be administered. Proper and timely completion of the MARs is
 fundamental to maintaining patient safety and reducing the
 likelihood of medication errors and adverse drug effects.
 Failure to follow accepted MARs protocol may result in patients
 not receiving medications or receiving them too frequently, which
 could result in serious harm.

Our review of the MARs revealed numerous instances in which
 NWGRH administered medicine in manner that deviates substantially
 from generally accepted professional standards. Specifically, we
 found MARs that had blanks and MARS that were signed before
 medication was actually administered or signed in bulk after all
 medication had been administered. We also found missing
 signatures in the Narcotics Logs, where the on-coming and
 off-going nurses are to sign after the narcotics are counted
 together. Because narcotics have powerful and potentially
 addictive effects and are often classified as controlled
 substances, NWGRH’s failure to account properly for their
 administration is deeply troubling. Also troubling is the
 failure of the nursing staff to understand their duty to report
 the errors indicated above as medication variances. These
 errors, and the failure of nurses to record them as variances,
 indicate both a gross underreporting of medication variations at
 NWGRH and a serious lack of supervision of medication
 administration. 

5. Inadequate Infection Control

Generally accepted professional standards require adequate
 infection control. The components of an adequate infection
 control program fall into two general categories: surveillance
 and reporting; and control and prevention. 

Surveillance and reporting include data collection on
 infections acquired in the community before admission to NWGRH
 and on infections acquired while residing at the Facility. These
 data can be used to establish baseline infection rates for
 different units to determine problem areas or areas where


- 39 ­
in-service education could lower infection rates. This
 information can also be used to identify outbreaks of infections
 rapidly so that concentrated efforts can be initiated to prevent
 the spread of the infection.

In addition, Facility personnel should be monitored and data
 analyzed for possible exposure to, or as the source of,
 communicable and infectious diseases. The environment itself
 must be monitored as a source of potential infection hazards,
 especially during outbreaks of infection. Further, the Facility
 must report all communicable diseases to the appropriate health
 authorities in the State. 

Control and prevention activities are of equal importance in
 an infection control program. In general, developing policies
 and procedures, staff training, patient educational programs
 regarding communicable diseases, and regular committee review of
 infection control activities are components of a infection
 control program that complies with generally accepted
 professional standards. 

NWGRH’s infection control program fails to meet these
 standards. NWGRH focuses on data collection at the expense of
 adequate treatment of patients with infectious diseases. The
 Infection Control Nurse has virtually no connection with the unit
 staff actually caring for patients with infectious diseases; the
 Infection Control Nurse does not review, and plays no role in
 developing, health care plans for these patients.
 Unsurprisingly, we found numerous patients with infectious
 diseases who had no provision in their respective health care
 plans for interventions related to their infectious diseases:

• One patient, E.E., was noted to have heavy growth of MRSA.
 Her medical record did not, however, reflect any treatment
 plan addressing either the care of the lesion or the need to
 take precautions related to it. The record did include a
 nurse’s note that a call had been placed to the Infection
 Control Nurse to discuss MRSA compliance, but the
 documentation indicated that there was no answer. We found
 no other documentation indicating that the infection control
 program played any role in ensuring that E.E. received
 proper treatment or that other patients in her unit were
 protected.

• The admission notes for K.H. indicated that he had
 Hepatitis C, but his medical record included no treatment
 plan for this issue. As a result, K.H. was not provided
 with any type of education regarding transmission of the


- 40 ­
disease or needed life-style changes that may have led to a
 long-term positive outcome. Further, we found no indication
 that the infection control program had any involvement with
 his case.

• Echoing the case of K.H., we found seven patients residing
 in the same unit and included in the infection control list
 as having Hepatitis B. None of their health care plans
 mention Hepatitis B, nor did we find any indication that the
 infection control program was involved in their cases.

NWGRH’s infection control data collection efforts have no
 accompanying analysis regarding possible unit-level transmission
 of infectious disease. Moreover, NWGRH has not performed an
 analysis to demonstrate the efficacy, or lack thereof, of the
 activities and interventions of the infection control program.
 Our review found no data addressing employee health issues or
 patients who refuse tuberculin skin tests or immunizations.
 Further, there is no system in place ensuring that infection
 control data collected throughout the Facility is reliable, and
 data reliability from the units is problematic. The
 unreliability of infection data and the limited use to which it
 is put demonstrates that the infection control program at NWGRH
 is inadequate. Consequently, patients are at a high risk for
 harm. 

6. Inadequate Physical and Nutritional Management

Generally accepted professional standards dictate that an
 effective physical and nutritional management system include:
 the identification of patients who are at risk for
 aspiration/choking and the assignment of an appropriate risk
 level; the identification of patients’ triggers or symptoms of
 aspiration; adequate assessments of safe positioning for the
 24-hour day; clinically-justified techniques, based on the
 assessment, that ensure safety during daily activities; the
 development and implementation of a plan containing specific
 instructions for the techniques determined by the assessment,
 with clinical justifications; the provision of competency-based
 training to all staff assisting these patients regarding
 individualized dysphagia plans; the development of a method to
 monitor, track, and document clinically objective data, including
 triggers, lung sounds, oxygen saturations, and vital signs, to
 determine if treatment interventions are effective or in need of
 modification; the development of a mechanism for reporting
 triggers that generate an immediate response from a physical
 nutritional management team (“PNMT”) to re-evaluate the plan and
 its implementation; development of an overall monitoring system


- 41 ­
conducted by members of the PNMT to ensure that plans are being
 consistently implemented and that this monitoring is most intense
 for those with the highest level of risk; and assurance that this
 system is effective so that it may be transferred into the
 community.

NWGRH patients residing at the DSU who are at risk for
 aspiration are not provided adequate assessments, interventions,
 proactive monitoring of symptoms, and regular treatment plan
 monitoring, which places them at significant risk for harm.
 NWGRH does not provide these patients with physical and
 nutritional management care consistent with generally accepted
 professional standards.

None of NWGRH’s various disciplines, including nursing,
 physical therapy, occupational therapy, speech pathology, and
 dietary management, have the requisite specialized training or
 expertise in treating patients with physical and nutritional
 management needs. NWGRH fails to identify patients who have
 physical or nutritional management issues adequately, and the
 draft policies NWGRH has developed in this area fall far short of
 addressing the individualized needs of persons at risk for
 aspiration.

NWGRH’s failures in training its staff and in identifying
 patients having physical and nutritional management issues
 includes patients facing serious risks of harm from aspiration
 and choking. In our review, we found no written criteria that
 adequately identified patients at risk for aspiration and
 choking. When asked, staff members were unable to articulate how
 to identify patients at risk for aspiration. Even for those
 patients who had been identified as at risk, NWGRH did not assess
 the degree of risk. Patients with recurrent episodes of
 aspiration pneumonia would, for example, normally be considered
 at the highest level of risk, but NWGRH made no such designation.
 As a result, NWGRH does not focus its most intensive, proactive
 treatments and interventions on the patients who need them.
 Indeed, there is little difference in the clinical care and
 treatment plans for patients who had no designated risk of
 aspiration and for patients who had a significant risk of
 aspiration. 

For example, NWGRH designated four patients living on one
 unit as being at risk for aspiration. Our review of the
 alternative positioning for all of these patients showed that
 each patient had the same three generic alternative positions.
 None had clinical assessments indicating that these positions
 were evaluated as safe. Nor did we find follow-up assessments


- 42 ­
indicating that these positions were safe. The alternative
 positions for these patients may therefore actually increase
 their risk for aspiration; we found no clinical data indicating
 otherwise. This lack of safety assessments extended to other
 high-risk activities, including oral care, bathing, dental
 appointments, and during sleep.

The mealtime plans we reviewed also lacked information to
 guide staff in feeding patients designated as at risk for
 aspiration. Mealtime plans for tube-fed patients — a group at
 the highest risk for aspiration — contained no special
 instructions for positioning during feeding or how long after the
 feeding the patient should remain in a specific upright position.
 Moreover, staff assigned to assist patients with meals and other
 activities did not receive competency-based training on carrying
 out the requirements of mealtime plans or treatment plans. The
 widespread absence of information guiding the treatment of
 at-risk patients is therefore compounded by the absence of any
 system to ensure that staff are competent in adequately executing
 treatment and mealtime instructions.

We observed numerous instances of inadequate staff
 assistance during mealtimes. Staff did not follow any procedure
 in keeping patients upright after meals. Our mealtime
 observations also showed that patients in wheelchairs were not in
 correct body alignment, thereby increasing their risk of
 aspiration. We observed a number of these patients coughing and
 gagging throughout their meals. Staff members stated that such
 coughing and gagging was a regular occurrence, and further
 indicated that they respond by feeding the patients slowly. This
 is not what we observed. Instead, we observed staff members
 responding to coughing and gagging by encouraging more food and
 fluids, a practice which increases the risk of aspiration.
 Furthermore, staff members did not respond to episodes of
 coughing or gagging by calling a nurse for assessment before
 continuing a meal. Nor did staff document these episodes of
 coughing and gagging — known triggers or symptoms of
 aspiration — in the patients’ charts.

The failure to document episodes of coughing and gagging at
 mealtimes is symptomatic of NWGRH’s deficiencies regarding
 aspiration risk. NWGRH does not identify individualized symptoms
 of aspiration or triggers to be monitored for patients who are at
 risk for aspiration. Consequently, no clinical data exists that
 would permit the PNMT team to evaluate the effectiveness of its
 interventions, except an actual episode of pneumonia, aspiration
 pneumonia, or respiratory distress. Without clinical data
 gathering that would enable early intervention to prevent an


- 43 ­
episode of aspiration or aspiration pneumonia, NWGRH operates
 reactively, resulting in harm.

We observed such reactive treatment in the case of N.T., who
 displayed chronic symptoms of aspiration that were inadequately
 addressed. N.T. had been on a pureed diet with liquids thickened
 to a honey consistency for over a year. Interviews with staff
 indicated that N.T. had significant difficulties in swallowing,
 and would cough, hold food in his mouth, and refuse food during
 mealtimes. His record contained only a bare statement that his
 swallowing function had declined, but no monitoring appears to
 have been conducted. N.T. eventually developed unstable vital
 signs and was sent to the community hospital, where he was
 diagnosed with aspiration pneumonia. Upon his return to NWGRH,
 all of his previous treatment plans were reinstated without
 review. NWGRH ultimately determined that the diet it had
 provided to N.T. for at least a year had been causing him to
 aspirate. He now receives nothing by mouth and is given all
 nourishment through a tube.

The example of N.T. also shows that NWGRH does not initiate
 24-hour dysphagia treatment plans even when an acute event, such
 as aspiration pneumonia, occurs. Such a plan should contain
 specific and individualized instructions and proactive
 interventions to address all activities during a patient’s
 24-hour day. But staff perception of N.T., as a result of their
 lack of training and expertise in dysphagia, is that he is no
 longer at risk of aspiration because he now has a tube. But N.T.
 does, in fact, remain at high risk for aspiration, a fact only
 partially reflected in the speech therapist’s note that N.T.
 “could remain at risk for aspiration.” N.T. continues to be at
 significant risk for harm.

N.T. is not the only patient at risk for harm due to the
 lack of safe, appropriate, and adequate interventions. Our
 review yielded a number of other examples:

• Y.O. has issues with weight loss and has had episodes of
 vomiting, difficulty in swallowing, coughing, and elevated
 temperatures. He has had several tests showing that he has
 a significant swallowing disorder and that he aspirates, but
 there has been no systematic tracking of his triggers for
 aspiration. He has not been given a treatment plan or
 intervention that adequately address his dysphagia and
 aspiration. Y.O. is therefore at risk for harm.

• N.N., a patient at risk for aspiration, was repeatedly sent
 to the emergency room for dehydration, fever, lethargy, and


- 44 ­
pneumonia. Staff members indicated that she coughs
 frequently during mealtime. Nevertheless, NWGRH does not
 regularly collect data indicating when she began to
 experience triggers or how often they occurred, nor were
 lung sounds and oxygen saturation levels regularly taken to
 note changes in her status. Without this data, NWGRH is not
 adequately monitoring her aspiration risk.

• D.M. is also at risk for aspiration. She has had repeated
 visits to the emergency room for fever, cough, respiratory
 distress, bronchitis, and pneumonia. NWGRH has failed to
 institute proactive interventions and a systematic review of
 her condition, despite her repeated visits to the emergency
 room.

The lack of effective response by NWGRH, even to repeated
 acute instances of illness, is demonstrated in three other
 patients at risk for aspiration that we reviewed, each of whom
 made repeated trips to the emergency room. K.D. was sent to the
 emergency room three times — twice on the same day — for choking,
 turning blue, and pneumonia. E.N. was sent four times with
 multiple seizures, medication toxicity due to dehydration,
 lethargy, and aspiration pneumonia. And T.H. was sent to the
 emergency room three times for difficulty breathing, rhonchi, and
 pneumonia.

These examples demonstrate that there is no system in place
 at NWGRH to ensure that patients at risk for aspiration are
 provided with safe, appropriate, and adequate treatment
 interventions. Patients with dysphagia who have experienced
 recurrent respiratory distress, pneumonia, or aspiration
 pneumonia are not comprehensively reevaluated to assess the
 appropriateness of the current treatment plan and to modify
 interventions when necessary. The failure to reassess these
 patients and to provide proactive interventions is a gross
 departure from generally accepted professional standards. These
 deficiencies have resulted in harm and continue to place patients
 with physical and nutritional issues at serious risk of harm.

7. Emergency Preparedness Is Inadequate

In accordance with generally accepted professional
 standards, all staff should be well-trained in emergency
 preparedness, aware of emergency materials and where they are
 located, and conduct sufficient practice codes to be able to
 perform adequately when confronted with an actual emergency.
 Appropriate emergency medical response also includes physical
 plant readiness. 


- 45 ­
NWGRH practices and procedures regarding emergency
 preparedness substantially depart from generally accepted
 professional standards. This deviation is well-illustrated by
 the medical emergency drills we reviewed, a significant number of
 which were failed drills. In several of the drills, there was an
 absence of leadership, as the first-arriving nurse did not take
 charge of the code. One drill continued for 14 minutes without a
 physician arriving, and the nursing manager was unable to find
 the site of the drill. These drills also featured a variety of
 improper practices, including improper use of the Automated
 External Defibrillator (“AED”), incorrect positioning of the
 victim, and an inability to perform CPR correctly. Indeed, a
 review of documentation for current staff members showed that 197
 employees had not been certified in CPR, while 146 held expired
 CPR certifications. NWGRH has no system in place to ensure that
 staff are properly trained and updated in CPR. Perhaps more
 egregiously, the nurse executive indicated that he was unaware
 that there were significant issues regarding drills. These
 repeated errors and lack of training place patients at the
 Facility at significant risk for harm.

These serious deficits in training exist throughout NWGRH’s
 emergency preparedness programs. For example, we observed nurses
 who did not know how to turn on oxygen tanks, despite emergency
 preparedness documentation indicating that they were completing
 this task daily. In once instance, we observed a nurse struggle
 to turn a tank on, ask another nurse for assistance, and, after
 several failed joint attempts, successfully turn the tank on only
 to discover that it was empty. The monitoring sheet for the
 oxygen tank, however, indicated that it was full. We found
 numerous other instances where oxygen tanks had not been checked
 appropriately, according to NWGRH’s own documentation. This
 pattern of unacceptable nursing practice was prevalent throughout
 the Facility.

Nor were nurses trained appropriately in testing suction
 machines or AED. Suction machine testing done by nurses was
 superficial, essentially demonstrating only that the suction
 machines could turn on rather than actually perform their
 intended function. Documentation indicated, however, that the
 suction machines were tested daily to ensure functionality.
 Nurses were unaware of when AED batteries should be changed to
 ensure functionality, and we did not find a single AED with
 documentation showing the installation date for its battery.
 Failures with respect to testing emergency equipment and
 documenting such testing extended to supervision by Nurse
 Managers. The managers did not observe staff checking emergency


- 46 ­
equipment, nor did they review the emergency equipment logs for
 accuracy. 

Poor preparedness and training in handling emergency code
 drills has significant ramifications for NWGRH’s response to
 actual emergency codes. Moreover, errors in that response are
 not likely to be corrected by NWGRH’s emergency code review
 process. Our review of actual codes showed the review process to
 be both incomplete and superficial. These reviews lacked
 important information related to the conduct of the code and,
 further, made no recommendations to improve conduct of future
 emergency codes. For example, in two separate codes, NWGRH’s
 official review indicated that the AED showed that no shock was
 necessary. But records from the code itself indicated that the
 AED had not actually been applied; application of the AED is
 necessary for the AED to show that no shock was necessary. The
 absence of any critical review of these emergency codes permits
 the deficient practices outlined above to continue. As such,
 NWGRH departs from generally accepted standards of practice both
 in the substance of its emergency preparedness and in its
 procedures for reviewing that preparedness.

8. Inadequate Staffing and Nursing Services

The deficiencies in medical and nursing care identified
 above are exacerbated by chronic staffing shortages. Generally
 accepted professional standards require facilities like NWGRH to
 have staff sufficient to provide nursing services that, at a
 minimum, protect patients from harm, ensure adequate and
 appropriate treatment, and prevent unnecessary and prolonged
 institutionalization. 

The current nurse executive at NWGRH admitted that
 recruitment and retention has been a major issue for the nursing
 department. He reported that NWGRH needed to fill 68 Registered
 Nurse vacancies and 46 Licensed Practical Nurse vacancies. 
 Further, according to the nurse executive, the nursing department
 was struggling to maintain minimum staffing ratios.
 Nevertheless, the nurse executive was unable to produce any
 meaningful data about which shifts and units had fallen below
 minimum staff ratios or departmental turnover rates. Shortages
 have also resulted in many units having inadequate nurse
 management. Despite the nurse executive’s evident awareness of
 the nursing shortage, we found no indication that a system had
 been established to review the effect of the shortage on clinical
 outcomes.


- 47 ­
Moreover, the State’s own 2007 survey by the Medical College
 of Georgia noted the nursing staff shortage and its potential
 effect on the services provided to patients at the NWGRH.
 NWGRH’s corrective action plan promised that staffing problems
 would be addressed, but the nursing executive was unable to
 articulate the safeguards that had been implemented to ensure
 safe practices during the current staffing shortage. Our review
 showed that a number of shifts at NWGRH fall below minimum
 staffing levels each week. The nursing executive reported that
 NWGRH was in the process of working on revising the policy for
 minimum staffing ratios, but he was unable to describe the model,
 or to produce any data or criteria, used in determining what
 would constitute adequate staffing levels. 

NWGRH’s failure to provide adequate nursing staff, along
 with the deficits in care and treatment that necessarily result
 from the critical and ongoing shortages at NWGRH, is a
 substantial departure from generally accepted professional
 standards.

E. Services to Populations with Specialized Needs Are
 Inadequate

1. Services to Patients with Limited English Proficiency
 Are Insufficient

Pursuant to Title VI of the Civil Rights Act of 1964,
 42 U.S.C. § 2000d et seq., and its implementing regulations,
 NWGRH is required to take reasonable steps to ensure meaningful
 access to their programs and activities by persons with limited
 English proficiency (“LEP”). See 45 C.F.R. Part 80 (Department
 of Health and Human Services regulations). Georgia’s Mental
 Health Gap Analysis in May 2005 identified glaring deficiencies
 in mental health services available to persons with hearing
 impairments or limited English proficiency. Although the State
 has adopted a Limited English Proficiency and Sensory Impaired
 Client Services Manual, we saw little evidence that the policies
 outlined in the Manual were followed. Examples include G.R.,
 whose record indicates that he was unable to receive adequate
 treatment and services because of his limited English language
 ability. U.M. also has extremely limited English language
 ability, which made it impossible for him to assist in the
 investigation of his unexplained injury – a broken clavicle. The
 language barrier thus was a barrier to his participation in
 treatment and to efforts to protect him from future harm. The
 records of two acutely psychotic patients, J.P. and O.G., state
 that they “refused” interpretation services, but do not evidence
 any attempt by the Facility to address these refusals, which


- 48 ­
effectively denied these patients psychiatric care. NWGRH’s
 failure to ensure that meaningful access to necessary services is
 being provided to persons with LEP violates federal law.

2. Services to Patients with Sensory Impairment
 Are Insufficient

Title II of the Americans with Disabilities Act prohibits
 discrimination against persons with disabilities in the provision
 of benefits and services. Patients with vision and hearing
 impairments receive inadequate services at NWGRH. For example,
 at the time of our visit, there was no vision specialist on
 staff, no Braille instruction, and no orientation or mobility
 instruction for patients who are legally blind. To the contrary,
 staff told us that the treatment team had been reluctant to
 provide P.C. with a cane typically used by persons with limited
 sight for fear that he would use it as a weapon. The treatment
 plan for, another patient, P.P., who is legally blind, encourages
 him to “feel around the walls” as the preferred method of
 communicating that he would like to go for a walk. R.D., who has
 a hearing impairment, has been at the Facility for nearly two
 years. At the time of our visit, her treatment team was starting
 to pursue hearing aides for her; reportedly she had destroyed
 some in the past. Although the audiologist recommended using
 sign language, no staff member on her unit can sign. These
 examples evidence a profound lack of attention to the needs of
 patients with hearing and vision loss. They also suggest that
 the State has taken no effective action to remedy deficiencies in
 services to persons with sensory impairments, although these
 deficiencies were clearly identified in the State’s own Mental
 Health Gap Analysis in 2005. These deficiencies violate federal
 law. 

F. Inadequate Discharge Planning and Placement in the Most
 Integrated Setting

Federal law requires that NWGRH actively pursue the timely
 discharge of patients to the most integrated, appropriate setting
 that is consistent with the patients’ needs. Olmstead, 527 U.S.
 at 607. Thus, at the time of admission and throughout a
 patient’s stay, NWGRH should: (1) identify, through professional
 assessments, the factors that likely will foster viable discharge
 for the patient; and (2) use these factors to drive treatment
 planning and intervention. Without clear and purposeful
 identification of such factors, patients will be denied
 rehabilitation and other services and supports that will help
 them acquire, develop, and/or enhance the skills necessary to
 function in a community setting.


- 49 ­
The NWGRH discharge planning process substantially departs
 from generally accepted professional standards. Futhermore,
 NWGRH fails to meet the discharge planning principles stated in
 its own policies. The State’s own audits of the “State of
 Georgia Behavioral Health System,” prepared for the Governor in
 2004 and 2005, identified egregious, systemic deficits in the
 coordination of care between NWGRH and the community. Based on
 our review of recent discharges from NWGRH, these same deficits
 persist. Specifically, we find that: (1) discharge plans are
 based on incomplete and inadequate assessments; (2) discharge
 planning services are not provided in accordance with NWGRH
 policies, although those policies are consistent with generally
 accepted professional standards; (3) inadequate coordination of
 care leads routinely to inappropriate discharges; and
 (4) discharge plans fail to address repeated readmissions.

1. Discharge Plans Are Based on Inadequate Assessments

Deficits in discharge planning begin with assessments upon
 admission. Complete and accurate assessments are essential to
 develop a treatment plan that can direct rehabilitation while in
 a facility and to form the basis for a viable discharge plan. In
 addition to the deficits in assessments discussed previously in
 this letter, the majority of charts we reviewed were missing
 assessments of social, vocational, functional, educational,
 self-care, and independent-living skills, particularly for those
 patients with short lengths of stay. The absence of information
 on critical aspects of functioning is a serious impediment to
 identifying the services and supports needed for these patients
 to transition successfully to community living. NWGRH fails to
 take advantage of available information regarding previous
 admissions, successful and unsuccessful treatments, and skills
 that needed to be developed to live successfully in the
 community. These failures greatly contribute to the high rate of
 recidivism at NWGRH.

As described previously, treatment teams at NWGRH routinely
 fail to adjust treatment plans even when objective signs show
 that the current plan is ineffective. Thus, patients do not
 receive supports and services to address problematic symptoms and
 behaviors that often disrupt community placements. The case of
 E.G., discussed previously, is one example. Her aggressive
 behaviors had disrupted 18 prior foster home placements, and the
 behaviors continued throughout her stay at NWGRH, requiring PRN
 medications 31 times, including just two days before her
 discharge. Despite this, there was no change in her treatment to
 address aggressive behavior. 


- 50 ­
2. Discharge Planning Services Are Not Provided in
 Accordance with NWGRH Policy

We found that, although NWGRH has a number of policies and
 procedures that articulate an adequate discharge planning and
 coordination of care process, in practice, these policies and
 procedures are not implemented. For example, NWGRH’s policy for
 discharge of patients to personal care homes, which are among the
 most frequent placements, require adequate discharge planning to
 ensure that the home is suitable to the individual’s needs. The
 procedures require the treatment team meeting to include a
 liaison from the Community Service Board (“CSB”), to develop a
 list of any specialized care recommendations, and facilitate a
 leave of absence pending discharge to the home in order to
 facilitate adjustment to the new home. We saw only one case in
 which the Facility’s discharge policies had been followed, for
 A.N. In every other discharge that we reviewed there was
 noncompliance: no contact with the CSB, no specialized care
 recommendations, and no placement of patients on extended leave
 to the new home pending discharge. This noncompliance is
 particularly troubling because many patients discharged from
 NWGRH have major impairments in multiple areas of functioning,
 and would typically require substantially more supervision and
 oversight than a personal care home can usually provide. 

NWGRH policy also notes that shorter lengths of stay may not
 permit contacts with outpatient providers before the day of
 discharge. In those cases, the case manager is supposed to
 contact the provider on the day of discharge and make aftercare
 arrangements, document these on the discharge letter, and fax it
 to the provider. We did not find a single aftercare plan
 complying with NWGRH policy in any of the discharge records we
 reviewed. For patients discharged to homeless shelters, the case
 manager is supposed to call and verify that the shelter is still
 receiving clients. We spoke with administrators of Must
 Ministries, a homeless shelter in Marietta, Georgia, who
 confirmed that, in their experience, NWGRH’s practice does not
 follow this policy. Discharged patients typically arrive at the
 shelter without an advance phone call, and the shelter is not
 able to provide the level of care needed by individuals with
 serious mental illness or substance abuse disorders. These
 failures violate NWGRH policies and are a substantial departure
 from generally accepted professional standards. 


- 51 ­
3. Inadequate Coordination of Care Routinely Leads to
 Inappropriate Discharges

Contrary to generally accepted professional standards, NWGRH
 fails to provide adequate coordination and continuity of care,
 and this failure routinely leads to inappropriate discharges.
 The failure to appropriately coordinate continuing care results
 in numerous negative outcomes, including placements in
 inappropriate locations, re-admissions to the Facility, and
 unnecessary delays in community placement. 

NWGRH declined to provide for our review aggregate
 information on the discharge location of all recently discharged
 patients. Nonetheless, during our review of individuals’
 records, we noted multiple examples of patients discharged to
 inappropriate locations, including patients with a history of
 repeat admissions discharged to homeless shelters without
 appropriate support:

• L.L. was discharged from her 18th admission to a Salvation
 Army homeless shelter, with no contact from the local
 Community Service Board.

• K.N. was discharged following his third admission with a bus
 ticket, five days of medication, and the address of a rescue
 mission shelter in a different state.

• K.T. was discharged from his third and fourth admissions to
 a homeless shelter.

Homeless shelters are not equipped to provide the level of
 care required for a patient being discharged from a psychiatric
 hospital, many of whom have severe and persistent mental
 illness.11 NWGRH’s own documents note that NWGRH’s professionals
 are aware that shelters do not have sufficient structure or
 supervision for persons with mental illness. Patients discharged
 to homeless shelters are likely to return to the hospital and
 repeat the cycle of inadequate discharge multiple times.
 Research indicates that the best chance for a successful recovery
 outcome is achieved when the person receives adequate care during
 the first episode of the psychiatric illness and that the
 opportunities for successful recovery diminish on each future
 episode. NWGRH’s failure to provide adequate coordination and

11
 Indeed, as we noted in the findings letter regarding
 GRHA, the Supreme Court, in Olmstead, stated that homeless
 shelters were inappropriate discharge locations. Olmstead v.
 L.C., 527 U.S. 581, 605 (1999).


- 52 ­
continuity of care, routinely resulting in inappropriate
 discharges, is a substantial departure from generally accepted
 professional standards. 

4. Discharge Plans Fail to Address Repeated Readmissions

In addition to many discharges to inappropriate locations
 without sufficient supports, we noted approximately 240 patients
 who were discharged and re-admitted to the hospital within the
 first nine months of 2007. Dozens of these patients had lifetime
 histories of more than 20 re-admissions. That so many patients
 go through the cycle of admission and discharge multiple times
 indicates significant flaws in the discharge planning process. 

NWGRH is not adequately addressing the significant barriers
 to successful discharge that many patients face. NWGRH social
 workers identified housing as a primary barrier to community
 placement. The Chief of Social Work denied that sufficient
 substance abuse treatment was a placement barrier for those
 patients with substance abuse history, but in our review of
 discharge plans, we saw no referrals for this essential service.
 The State’s own findings in the 2005 Georgia Mental Health Gap
 Analysis also discussed the dearth of sufficient Assertive
 Community Treatment teams, which serve as a vital link between
 the hospital and the community for participants. Assertive
 Community Treatment programs offer an array of services
 customized to individual needs, delivered by a community-based
 team of mental health practitioners, and available 24 hours per
 day. Our review of discharges from NWGRH suggests that this
 glaring gap in provision of services, and in particular for
 patients with a history of repeated admissions, is as great today
 as it was three years ago.

In most cases, neither formal or informal supports have been
 developed and prepared for use by patients transitioning from
 NWGRH. There is little indication that the Facility has
 attempted to locate, develop, or advocate for needed supports or
 services that NWGRH professionals acknowledge are needed to
 ensure successful transitions to community living. NWGRH’s
 failure to address repeat admissions and barriers to successful
 placement deviates substantially from generally accepted
 professional standards. 

IV. RECOMMENDED REMEDIAL MEASURES

To remedy the deficiencies discussed above and protect the
 constitutional and federal statutory rights of the patients at


- 53 ­
NWGRH, the State of Georgia should promptly implement the minimum
 remedial measures set forth below:

A. Protection From Harm

The Georgia Psychiatric Hospitals shall provide their
 patients with a safe and humane environment and protect them from
 harm. At a minimum, the Georgia Psychiatric Hospitals shall:

1. Create or revise, as appropriate, and implement an
 incident management system that comports with generally
 accepted professional standards. The Georgia
 Psychiatric Hospitals shall:

a. 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 those involving any physical injury; patient aggression; abuse and neglect; contraband; and suicide ideation or attempts;
b. Require all staff to complete competency-based training in the revised reporting requirements;
c. Create or revise, as appropriate, and implement thresholds for indicators of events, including, without limitation, patient injury, patient-on-patient assaults, self-injurious behavior, falls, and suicide ideation or attempts, that will initiate review at both the unit/treatment team level and at the appropriate supervisory level; whenever such thresholds are reached, this will be documented in the patient medical record, with explanations given for changing/not changing the patient’s current treatment regimen;
d. Create or revise, as appropriate, and implement policies and procedures addressing the investigation of serious incidents, including, without limitation, abuse, neglect, suicide ideation or attempts, unexplained injuries, and all injuries requiring medical attention more significant than first aid. The policies and procedures shall require that investigation of such incidents that are comprehensive, include

- 54 ­
consideration of staff’s adherence to programmatic
 requirements, and are performed by independent
 investigators; 

e. Require all staff members charged with
 investigative responsibilities to complete
 competency-based training on investigation
 methodologies and documentation requirements
 necessary in mental health service settings; 

f. Monitor the performance of staff charged with
 investigative responsibilities and provide
 administrative and technical support and training
 as needed to ensure the thorough, competent, and
 timely completion of investigations of serious
 incidents;

g. Ensure that corrective action plans are developed
 and implemented in a timely manner;

h. Review, revise, as appropriate, and implement
 policies and procedures related to the tracking
 and trending of incident data, including data from
 patient aggression and abuse and neglect
 allegations, to ensure that such incidents are
 properly investigated and appropriate corrective
 actions are identified and implemented in response
 to problematic trends; and

i. Create or revise, as appropriate, and implement
 policies and procedures regarding the creation,
 preservation, and organization of all records
 relating to the care and/or treatment of patients,
 including measures to address improper removal,
 destruction, and/or falsification of any record.

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

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


- 55 ­
b. Analyze the information collected in order to
 identify strengths and weaknesses within the
 current system; and

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

B. Mental Health Care

1. Assessments and Diagnoses

The Georgia Psychiatric Hospitals shall ensure that their
 patients receive accurate, complete, and timely assessments and
 diagnoses, consistent with generally accepted professional
 standards, and that these assessments and diagnoses drive
 treatment interventions. More particularly, the Georgia
 Psychiatric Hospitals shall:

a. Develop and implement comprehensive policies and
 procedures regarding the timeliness and content of
 initial psychiatric assessments and ongoing
 reassessments; and ensure that assessments include
 a plan of care that outlines specific strategies,
 with rationales, including adjustment of
 medication regimens and initiation of specific
 treatment interventions.

b. Ensure that psychiatric reassessments are
 completed within time-frames that reflect the
 patient’s needs, including prompt reevaluations of
 all patients requiring restrictive interventions.

c. Develop diagnostic practices, consistent with
 generally accepted professional standards, for
 reliably reaching the most accurate psychiatric
 diagnoses.

d. Conduct interdisciplinary assessments of patients
 consistent with generally accepted professional
 standards. Expressly identify and prioritize each
 patient’s individual mental health problems and
 needs, including, without limitation, maladaptive
 behaviors and substance abuse problems.

e. Develop a clinical formulation of each patient
 that integrates relevant elements of the patient’s


- 56 ­
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.

f. Ensure that the information gathered in the
 assessments and reassessments is used to justify
 and update diagnoses, and establish and perform
 further assessments for a differential diagnosis.

g. Review and revise, as appropriate, psychiatric
 assessments of all patients, providing clinically
 justified 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.

h. Develop a monitoring instrument to ensure a
 systematic review of the quality and timeliness of
 all assessments according to established
 indicators, including an evaluation of initial
 assessments, progress notes, and transfer and
 discharge summaries, and require each clinical
 discipline’s peer review system to address the
 process and content of assessments and
 reassessments, identify individual and group
 trends, and provide corrective action.

2. Treatment Planning

The Georgia Psychiatric Hospitals shall develop and
 implement an integrated treatment planning process consistent
 with generally accepted professional standards. More
 particularly, the Georgia Psychiatric Hospitals shall:

a. Develop and implement policies and procedures
 regarding the development of individualized
 treatment plans consistent with generally accepted
 professional standards.

b. Ensure that treatment plans derive from an
 integration of the individual disciplines’
 assessments of patients, and that goals and
 interventions are consistent with clinical
 assessments. At a minimum, this should include:


- 57 ­
(1) Review by psychiatrists of all proposed
 behavioral plans to determine that they
 are compatible with the psychiatric
 formulations of the case;

(2) Regular exchange of objective data
 between the psychiatrist and the
 psychologist and use of this data to
 distinguish psychiatric symptoms that
 require drug treatments from behaviors
 that require behavioral therapies; 

(3) Integration of psychiatric and
 behavioral treatments in those cases
 where behaviors and psychiatric symptoms
 overlap; and

(4) Documentation in the patient’s record of
 the rationale for treatment. 

c. Ensure that treatment plans address repeated
 admissions and adjust the plans accordingly to
 examine and address the factors that led to 
 re-admission.

d. Develop and implement treatment goals that will
 establish an objective, measurable basis for
 evaluating patient progress.

e. Ensure that treatment plans are consistently
 assessed for their efficacy and reviewed and
 revised when appropriate.

f. Provide adequate and appropriate mental health
 services, including adequate psychological
 services, behavioral management, and active
 treatment, in accordance with generally accepted
 professional standards. 

g. Provide psychologists with sufficient education
 and training to ensure:

(1) competence in performing behavioral
 assessments, including the functional
 analysis of behavior and appropriate
 identification of target and replacement
 behaviors;


- 58 ­
(2) the development and implementation of
 clear thresholds for behaviors or events
 that trigger referral for a behavioral
 assessment;

(3) timely review of behavioral assessments
 by treatment teams, including
 consideration or revision of behavioral
 interventions, and documentation of the
 team’s review in the patient’s record;

(4) the development and implementation of
 protocols for collecting objective data
 on target and replacement behaviors; and

(5) assessments of each patient’s cognitive
 deficits and strengths to ensure that
 treatment interventions are selected
 based on the patient’s capacity to
 benefit.

h. Re-assess all patients at the Facility to identify
 those who would benefit from speech and
 communication therapy and provide sufficient
 qualified and trained staff to provide services to
 all patients who would benefit from this service.

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

j. Ensure that the medical director timely reviews
 high-risk situations, such as patients requiring
 repeated use of seclusion and restraints.

k. Develop and implement policies to ensure that
 patients with special needs, including
 co-occurring diagnoses of substance abuse and/or
 developmental disability, and physical, cognitive
 and/or sensory impairments are evaluated, treated,
 and monitored in accordance with generally
 accepted professional standards.


- 59 ­
l. Develop and implement policies for patients
 exhibiting suicidal ideation, including for
 patients identified as suicidal, develop and
 implement a clear and uniform policy for patient
 assessment and treatment.

m. Develop a system to ensure that staff receive
 competency-based training on individualized plans,
 including behavioral support plans and
 interventions, and document this training. 

n. Ensure that restrictive interventions receive
 appropriate review by a Human Rights Committee, or
 its equivalent, to guarantee any restriction of
 rights are necessary, appropriate, and of limited
 duration. 

o. Ensure that all psychotropic medications are:

(1) administered as prescribed; 

(2) tailored to each patient’s individual
 symptoms;

(3) monitored for efficacy and potential
 side-effects against clearly-identified
 target variables and time frames;

(4) modified based on clinical rationales;
 and

(5) properly documented.

p. Institute systematic monitoring mechanisms
 regarding medication use throughout the Facility.
 In this regard, the Georgia Psychiatric Hospitals
 shall:

(1) Develop, implement, and continually
 update a complete set of medication
 guidelines in accordance with generally
 accepted professional standards that
 address the indications,
 contraindications, screening procedures,
 dose requirements, and expected
 individual outcomes for all psychiatric
 medications in the formulary; and


- 60 ­
(2) Develop 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, a
 documented rationale for the use of more
 than one medication on a PRN basis, and
 physician documentation to ensure
 timely, critical review of the patient’s
 response to PRN treatments and
 reevaluation of regular treatments as a
 result of PRN uses.

C. Seclusion and Restraints

The Georgia Psychiatric Hospitals shall 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, the Georgia
 Psychiatric Hospitals shall:

1. Eliminate the use of planned (i.e., PRN) seclusion and
 planned restraint.

2. Ensure that restraints and seclusion:

a. Are used only when persons pose an immediate
 threat to themselves or others and after a
 hierarchy of less restrictive measures has been
 exhausted;

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

c. Are not used as part of a behavioral intervention;

d. Are terminated as soon as the person is no longer
 an imminent danger to himself or others; and

e. Are used in a reliably documented manner. 


- 61 ­
3. 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; and

b. The training that all staff receive in the
 management of the patient crisis cycle, the use of
 restrictive measures, and the use of
 less-restrictive interventions.

4. Ensure that if seclusion and/or restraint are
 initiated, the patient is regularly monitored in
 accordance with generally accepted professional
 standards and assessed within an appropriate period of
 time, and that an appropriately trained staff member
 makes and documents a determination of the need for
 continued seclusion and/or restraint. 

5. Ensure that a physician’s order for seclusion and/or
 restraint includes:

a. The specific behaviors requiring the procedure;

b. The maximum duration of the order; and

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. 

6. Ensure that the patient’s attending physician be
 promptly consulted regarding the restrictive
 intervention. 

7. Ensure that at least every thirty minutes, patients in
 seclusion and/or restraint be re-informed of the
 behavioral criteria for their release from the
 restrictive intervention. 

8. Ensure that immediately following a patient being
 placed in seclusion and/or restraint, the patient’s
 treatment team reviews the incident within one business
 day, and the attending physician documents the review
 and the reasons for or against change in the patient’s


- 62 ­
current pharmacological, behavioral, or psychosocial
 treatment. 

9. Comply with the requirements of 42 C.F.R. § 483.360(f)
 regarding assessments by a physician or licensed
 medical professional of any resident placed in
 seclusion and/or restraints.

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

D. Medical and Nursing Care

The Georgia Psychiatric Hospitals shall provide medical and
 nursing services to its patients consistent with generally
 accepted professional standards. Such services should result in
 patients of the Georgia Psychiatric Hospitals receiving
 individualized services, supports, and therapeutic interventions,
 consistent with their treatment plans. More particularly, the
 Georgia Psychiatric Hospitals shall:

1. Ensure adequate clinical oversight to ensure that
 generally accepted professional standards are
 maintained.

2. Ensure that patients are provided adequate medical care
 in accordance with generally accepted professional
 standards.

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

4. Ensure that, before nursing staff work directly with
 patients, they 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. 

5. Ensure that nursing staff accurately and routinely
 monitor, document, and report patients’ symptoms and
 target variables in a manner that enables treatment


- 63 ­
teams to assess the patient’s status and to modify, as
 appropriate, the treatment plan.

6. Ensure that nursing staff actively participate in the
 treatment team process and provide feedback on
 patients’ responses, or lack thereof, to medication and
 behavioral interventions.

7. Ensure that nursing staff are appropriately supervised
 to ensure that they administer, monitor, and record the
 administration of medications and any errors according
 to generally accepted professional standards. 

8. 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 Record. 

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

10. 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.

11. Establish an effective infection control program to
 prevent the spread of infections or communicable
 diseases. More specifically, the Georgia Psychiatric
 Hospitals shall:

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

b. Analyze these data for trends;

c. Initiate inquiries regarding problematic trends; 


- 64 ­
d. Identify necessary corrective action;

e. Monitor to ensure that appropriate remedies are
 achieved;

f. Integrate this information into the quality
 assurance review of the Georgia Psychiatric
 Hospitals; and

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

12. Establish an effective physical and nutritional
 management program for patients who are at risk for
 aspiration or dysphagia, including but not limited to
 the development and implementation of assessments, risk
 assessments, and interventions for mealtimes and other
 activities involving swallowing.

13. Ensure that staff with responsibilities for patients at
 risk for aspiration and dysphagia have successfully
 completed competency-based training commensurate with
 their responsibilities.

14. Provide adequate, appropriate, and timely
 rehabilitation therapy services and appropriate
 adaptive equipment to each individual in need of such
 services or equipment, consistent with generally
 accepted professional standards. 

15. Establish an effective medical emergency preparedness
 program, including appropriate staff training; ensure
 staff familiarity with emergency supplies, their
 operation, maintenance and location; conduct sufficient
 practice drills to ensure adequate performance when
 confronted with an actual emergency.

E. Services to Populations with Specialized Needs

1. Provide adequate services to patients with limited
 English proficiency or sensory deficiencies, consistent
 with the requirements of the State’s Limited English
 Proficiency and Sensory Impaired Client Services Manual
 and federal law. 


- 65 ­
F. Discharge Planning

The State shall ensure that patients receive services in the
 most integrated, appropriate setting that is consistent with
 their needs and legal status and actively pursue the appropriate
 discharge of patients. More particularly, the Georgia
 Psychiatric Hospitals shall: 

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, psychiatric distress, or cognitive
 impairment;

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

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

2. Ensure that the patient is an active participant in the
 placement process.

3. 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.

4. Provide the patient adequate assistance in
 transitioning to the new setting. 

5. 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. 

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. Develop a system of follow-up with community
 placements to determine if discharged patients are


- 66 ­
receiving the care that was prescribed for them at
 discharge; and

b. Hire sufficient staff to implement these minimum
 remedial measures with respect to discharge
 planning. 

7. The State shall ensure that it provides community-based
 treatment for persons with disabilities consistent with
 federal law.

. . . . . . . . . . .

V. CONCLUSION

We appreciate the cooperation we received from the Georgia
 Department of Mental Health Developmental Disabilities and
 Addictive Diseases, and the State’s Attorney General’s Office
 during our visit to NWGRH. We also wish to thank the
 administration and staff at NWGRH for their professional conduct,
 their generally timely responses to our information requests, and
 the extensive assistance they provided during our tour. Further,
 we wish to especially thank the hospital’s staff members, both
 new and longstanding, who make daily efforts to provide
 appropriate care and treatment, and who improve the lives of
 patients at these facilities. Those efforts were noted and
 appreciated by the Department of Justice and our expert
 consultants. 

Please note that this findings letter is a public document.
 It will be posted on the website of the Civil Rights Division.
 While we will provide a copy of this letter to any individual or
 entity upon request, as a matter of courtesy, we will not post
 this letter on our website until 10 calendar days from the date
 of this letter.

As discussed in our letters of June 27, 2008, and November
 20, 2008, we will forward our expert consultants’ reports under
 separate cover once we are confident that you intend to use the
 reports to address the deficiencies outlined in our findings
 letters. These reports are not public documents. Although our
 expert consultants’ 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 State chooses to cooperate with us so we may
 provide them to you in the near future, and that you will give


- 67 ­
this information careful consideration and use it to assist in
 your efforts at promptly remediating areas that require
 attention.

We are obliged by statute to advise you that, in the 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 remain amenable to
 expeditiously resolving this matter by working cooperatively with
 you. The lawyers assigned to this matter will be contacting your
 attorneys to discuss next steps 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/ Grace Chung Becker

Grace Chung Becker
 Acting Assistant Attorney General
 Civil Rights Division

cc: The Honorable Thurbert E. Baker
 Attorney General
 Office of the Attorney General Of Georgia

B.J. Walker
 Commissioner
 Georgia Department of Human Resources

Gwendolyn Skinner
 Director
 Georgia Division of Mental Health, Developmental
 Disabilities 

Marvin Bailey
 Regional Hospital Administrator
 Central State Hospital

Ben Walker 
 Regional Hospital Administrator
 East Central Regional Hospital


- 68 ­
Charles Li, MD
 Regional Hospital Administrator
 Georgia Regional Hospital/Savannah

Thomas Muller, MD
 Regional Hospital Administrator
 Northwest Regional Hospital

Joseph Leroy, MD
 Regional Hospital Administrator
 Southwestern State Hospital

James Jackson
 Regional Hospital Administrator
 West Central Regional Hospital

Susan Trueblood
 Regional Hospital Administrator
 Georgia Regional Hospital/Atlanta

David E. Nahmias
 United States Attorney
 Northern District of Georgia
 Richard B. Russell Federal Building

Maxwell Wood
 United States Attorney
 Middle District Of Georgia

Edmund A. Booth, Jr
 United States Attorney
 Southern District of Georgia

Winston A. Wilkinson 
 Director, Office for Civil Rights
 U.S. Department of Health and Human Services
 200 Independence Avenue, S.W.
 Room 509F, HHH Building
 Washington, D.C. 20201


 
 '.
SETTLEMENT AGREEMENT
I. INTRODUCTION
A. This Settlement Agreement ("Agreement") is entered into by: (1) the United States of America ("United States"); and (2) the State of Georgia ("State").
B. This Agreement addresses the United States' investigation of the Georgia Regional Hospital at Atlanta, the Georgia Regional Hospital at Savannah, the Central State Hospital, the Southwestern State Hospital, the West Central Georgia Regional Hospital, the Northwest Georgia Regional Hospital, and the East Central Regional Hospital (collectively, the "Georgia Psychiatric Hospitals"), pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. This agreement addresses the corrective measures set forth in the United States' letter to the State dated May 30, 2008, and which shall be implemented at all Georgia Psychiatric Hospitals. This Agreement does not serve as an acknowledgement or admission by the State that corrective measures are necessary to meet the constitutional and statutory rights of the residents of the Georgia Psychiatric Hospitals, nor does this Agreement serve as an acknowledgement or admission by the United States that the State has acted, or continues to act, in compliance with the Constitution or other laws of the United States.
C. The State, on July 1,2008, entered a Voluntary Compliance Agreement with the United States Department of Health and Human Services Office for Civil Rights, concerning the State's compliance with Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, and implementing regulations at 28 C.F.R. Part 35 ("ADA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and implementing regulations at 45 C.F.R. Part 84 ("Section 504"), which prohibit discrimination on the basis of disability and require certain public entities to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The Voluntary Compliance Agreement is not incorporated herein by reference.
D. This investigation began on April 18, 2007, when the United States notified the State, pursuant to CRIPA, that it was initiating an investigation into the conditions of care and treatment of patients at the Georgia Psychiatric Hospitals. The State agreed that the United States' findings regarding four of the State's hospitals would stand as representative of all seven hospitals in the system. The United States began its on-site inspections with a tour of the Georgia Regional Hospital at Atlanta on September 17 through 21, 2007. Tours of the Northwest Georgia Regional Hospital and the Georgia Regional Hospital at Savannah occurred on October 29 through November 2,2007, and on December 17 through 21, 2007, respectively. The tour of Central State Hospital did not occur.
1

E. Each and every provision of this Agreement is entered into by clear agreement of the parties, after thorough negotiations. The purpose of this Agreement is to achieve the substantive outcomes set forth within this Agreement.
F. It is agreed by the parties that disclosure of patient records to the United States in connection with the investigation of the Georgia Psychiatric Hospitals pursuant to CRIPA is authorized under the privacy regulations of the Health Insurance Portability and Accountability Act of 1996.
G. The parties agree that the provisions of this Agreement are a lawful, fair, adequate, and reasonable resolution of this investigation.
H. This Agreement is binding on the Georgia Psychiatric Hospitals through the State, its agencies, departments, or their successors or assigns that manage or operate the Georgia Psychiatric Hospitals. If the State contracts with an outside provider for any of the services which are covered under this Agreement, the Agreement shall be binding on any contracted parties, including agents and assigns. The parties understand that the State is considering privatization, and this Agreement will in no way impair the State's ability to privatize. This Agreement will continue in effect even if privatization occurs.
II. DEFINITIONS
As used in this Agreement, the following definitions apply to the terms below, without regard to case, gender, tense, or number:
A. "Competency-based training" shall mean the provision ofknowledge and skills sufficient to enable the trained person to meet specified standards of performance consistent with generally accepted professional standards or specified in law, regulation, or policy, as validated by that person's demonstration that he or she can use such knowledge or skills effectively.
B. "Consistent with Generally Accepted Professional Standards" shall mean a decision by a qualified professional that is not such a substantial departure from contemporary, accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such accepted professional judgment.
C. "Effective Date" shall be the date on which this Agreement is signed by both parties.
D. "Georgia Psychiatric Hospitals" shall mean the facilities, services, and programs supplied by or provided by the State to patients ofthe Georgia Regional Hospital at Atlanta, the Georgia Regional Hospital at Savannah, the Central State Hospital, the Southwestern State Hospital, the West Central Georgia Regi?nal Hospital, the Northwest
2 


Georgia Regional Hospital, and the East Central Regional Hospital.

E. "Patient" means any person who is evaluated, assessed, admitted to (whether by admission to an inpatientunit or by operation of law) or treated in the Georgia Psychiatric Hospitals during the term of this Agreement and who resides in such hospital. This does not include persons who are not admitted to the Hospitals following said evaluation or assessment.

F. "Physician" shall mean a medical or osteopathic doctor licensed to practice medicine in the State of Georgia.

G. "Psychiatrist" shall mean a medical or osteopathic doctor licensed to practice medicine or osteopathy in the State of Georgia, who has completed a residency in psychiatry in a program accredited by the American Association of Medical Colleges or the American Osteopathic Association.

H. "Psychology Staff' shall mean an individual licensed to practice psychology in the State of Georgia or a behavioral specialist working under the supervision of a licensed psychologist.

1.

"Psychotropic medication" shall mean any medication prescribed by a physician that is used in the

treatment of mental illness which exerts an effect on the brain and is capable of

modifying mental activity or behavior.

J. "Registered Nurse" or "RN" shall mean an individual licensed as a registered nurse by the State of Georgia.

K. "Short-Term Treatment Goal or Objective" shall mean the statement of a specific and realistic observable, measurable and time targeted incremental step that, if achieved, will assist the patient in meeting a long-term treatment goal.

L. "State" or "Georgia" shall mean the State of Georgia, its agencies, departments, or their successors or designees, and the State's employees, agents, or assigns.

M. "Student" shall mean any patient of school age or other patient who qualifies for special education as required by law.

N. "Substantial Compliance" shall mean with regard to an individual hospital that the State has satisfied all of the requirements set forth in section III (Substantive Provisions) and IV (Implementation) of this Agreement. With regard to an individual hospital, substantial compliance is achieved if any violations are minor or occasional and are not systemic.

3

On a systemic level, substantial compliance is achieved, when evaluating the State's compliance with this Agreement as a whole, any noted deviations from specific requirements does not bring the level of care and treatment below care consistent with generally accepted professional standards. Noncompliance with mere technicalities will not constitute failure to achieve substantial compliance.
O. "Sustained Compliance" shall mean substantial compliance as determined by the United States on two consecutive visits not more than eighteen months apart. The United States shall conduct an evaluation within ninety days of the State giving notice of its claim that a Hospital is in substantial compliance; provided, however, that the State may give notice of a claim of substantial compliance regarding any Hospital no more than once every ninety days. If the United States does not conduct an evaluation within ninety days of this notice, or conduct its second evaluation within eighteen months of the first evaluation (whichever comes fust), the parties agree that that claim of substantial compliance regarding the applicable hospital shall be dispositive for purposes of evaluating compliance with this Agreement. The time period for evaluations shall be tolled during fiscal exigencies that prevent the United States from conducting compliance activities; the United States shall provide prompt written notice thereof.
P. "Treatment Plan" shall mean a document that sets out, in an integrated manner, the individualized treatments and services to be provided to the patient to assist the patient in symptom stabilization and successful discharge from the hospital; is periodically reviewed; is revised in accordance with generally accepted professional standards and applicable laws, regulations, and policies; is based upon comprehensive assessments performed by members of an interdisciplinary team; incorporates the patient's input, preferences, strengths, and needs; and specifies methods to track and document progress toward identified goals and objectives.
Q. "United States" shall mean the United States Department of justice and its employees, agents, assigns, or successors.
III. SUBSTANTIVE PROVISIONS
In order to protect the constitutional and federal statutory rights of Patients, the State shall promptly implement the remedial measures set forth below:
A. Protection From Harm
The Georgia Psychiatric Hospitals shall provide their patients with a safe and humane environment and protect them from harm. The Georgia Psychiatric Hospitals shall:
4

1. Create or revise, as appropriate, and implement an incident management system that comports with generally accepted professional standards. The Georgia Psychiatric Hospitals shall:

a. 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 those involving any physical injury or threats of serious physical injury; abuse and neglect; contraband; or suicide attempts;

b. Require all staff to complete competency-based training in the revised reporting requirements;

c. Create or revise, as appropriate, and implement thresholds for indicators of incidents, including, without limitation, patient injury, patient-on-patient assaults, self-injurious behavior, falls, and suicide attempts, that will initiate review at the unit/treatment team level and review by supervisors consistent with generally accepted professional standards and policy, regulation, and law; whenever such thresholds are reached, the treatment team shall review patient incidents and document in the patient medical record the rationale for changing/not changing the patient's current treatment regimen;

d. Create or revise, as appropriate, and implement policies and procedures addressing the investigation of serious incidents, including, without limitation, abuse, neglect, suicide attempts, unexplained injuries, and all injuries requiring medical attention more significant than first aid. The policies and procedures shall require that all investigations of such incidents are comprehensive, include consideration of staff's adherence to programmatic requirements, and are performed by investigators with no conflict of interest;

e. Require all hospital staff members charged with investigative responsibilities to complete competency-based training on investigation methodologies and documentation requirements necessary in mental health service settings;

f.

Require the thorough, competent, and timely completion of investigations

of serious incidents; monitor the performance of hospital staff charged

with investigative responsibilities; and provide administrative and

technical support and training as needed;

5

g. Require that corrective action plans are developed and implemented in a timely manner;

h. Require qualified clinical professional(s) at the applicable hospital to review all findings and recommendations made by bodies investigating patient care and safety, and develop and implement appropriate remedial measures as necessary;

1.

Review, revise as appropriate, and implement policies and procedures

related to the tracking and trending of incident data; require that incidents

are properly investigated and responsive corrective actions are identified

and implemented in response to undesirable trends; and

J.

Create or revise, as appropriate, and implement policies and procedures

regarding the creation, structure, and preservation of all records of care

and treatment of patients, including measures to address improper

removal, destruction, or falsification of any record.

2. Develop and implement a comprehensive quality management system and risk management system, consistent with generally accepted professional standards. Such a system shall:

a. Collect information related to the adequacy of safety, treatments, and services provided by the Georgia Psychiatric Hospitals;

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

c. Identify and monitor implementation of corrective and preventative actions to address identified issues; and

d. Assess and document the effectiveness of the actions taken.

B. Mental Health Care

1. Assessments and Diagnoses

The Georgia Psychiatric Hospitals shall require that their patients receive accurate, complete, and timely assessments and diagnoses, consistent with generally accepted professional standards, and that these assessments and diagnoses drive treatment interventions. More particularly, the Georgia Psychiatric Hospitals shall:

6

a. Develop and implement comprehensive policies and procedures regarding the timeliness and content of initial psychiatric assessments and ongoing reassessments;
b. Develop a clinical fonnulation of each patient that integrates relevant elements of the patient's history, mental status examination, and response to current and past medications and other interventions, that is used to prepare the patient's treatment plan;
c. Require that psychiatric reassessments are completed within time-frames that reflect the patient's needs, including prompt reevaluations of each patient for whom a restrictive intervention was used;
d. Develop diagnostic practices, consistent with generally accepted professional standards;
e. Conduct multidisciplinary assessments of patients consistent with generally accepted professional standards. Expressly identify and prioritize each patient's individual mental health problems and needs, including, without limitation, challenging behaviors and substance abuse problems;
f. Require that the infonnation gathered in the assessments and reassessments is used to justify and update diagnoses and to establish the need to perfonn further assessments for a differential diagnosis;
g. Review and revise, as needed, psychiatric assessments of all patients, providing clinically justified current diagnoses for each patient and removing all diagnoses that cannot be clinically justified. Modify treatment and medication regimens as necessary, considering factors such as the patient's response to treatment, significant developments in the patient's condition, and changing patient needs; and
h. Develop or modify instruments to conduct ongoing systematic review of the quality and timeliness of all assessments according to established indicators, including an evaluation of initial assessments, progress notes, and transfer and discharge summaries; require the director of each clinical discipline to address the process and content of assessments and reassessments, identify individual and group trends, and provide corrective action consistent with generally accepted professional standards.
7

2. Treatment Planning

The Georgia Psychiatric Hospitals shall develop and implement an integrated treatment planning process consistent with generally accepted professional standards. More particularly, the Georgia Psychiatric Hospitals shall;

a. Develop and implement policies and procedures regarding the development of individualized treatment plans consistent with generally accepted professional standards.

b. Develop and implement policies and procedures to promote participation in the treatment process by: each patient, and where applicable the legal guardian; and family members if desired by the patient.

c. Require that treatment plans derive from an integration of the individual disciplines' assessments of patients, and that goals and interventions are consistent with clinical assessments. At a minimum, this should include;

(1) Review by the attending psychiatrist, or, for those patients with no psychiatric diagnosis, by the attending physician, of all proposed behavioral plans to determine that they are compatible with the clinical formulations of the case;

(2) Integration of psychiatric and behavioral data and treatments in those cases where clinically indicated; and

(3) Documentation in the patient's record of the rationale for treatment.

d. Require that treatment plans address repeated admissions and adjust treatment plans accordingly to examine and address the factors that led to re-admission.

e. Develop and implement short-term treatment goals that establish an objective, measurable basis for evaluating patient progress, including goals' that address barriers to successful placement in a community based setting.

f.

Require that treatment plans are assessed for their effectiveness and

revised in accordance with policy and as clinically indicated.

g. Provide mental health and behavioral services, including active treatment consistent with generally accepted professional standards.

8

h. Require that all psychologists who provide or supervise the provision of behavioral services have training and demonstrate competency in:

(1) performing behavioral assessments, including the functional analysis of behavior and appropriate identification of target and replacement behaviors;

(2) , the development and implementation of thresholds for behaviors or events that trigger referral for a behavioral assessment;

(3) timely review of behavioral assessments by treatment teams, including consideration or revision of behavioral interventions, and documentation of the team's review in the patient's record;

(4) the development and implementation, when indicated, of behavior support plans that are consistent with generally accepted professional standards;

(5) the development and implementation of processes for collecting objective data on target and replacement behaviors; and

(6) supervision of staff who collect behavioral data and perform behavioral interventions, including monitoring the fidelity of implementation of the behavior plan.

I.

Assess patients' cognitive deficits and strengths and select treatment

interventions based on the patient's capacity to benefit.

J.

Consistent with generally accepted professional standards and policy,

regulation, and law, screen or rescreen all patients to identifY those who

have speech or communication deficits that are barriers to treatment or

discharge and who would benefit from speech or communication therapy;

when indicated, develop and implement interventions to establish and

maintain communication behaviors that reduce or eliminate barriers to

treatment and discharge; provide sufficient qualified and trained staff to

provide adequate and timely communication intervention services that are

consistent with and supportive of behavior support plans according to the

outcome of each patient evaluation.

k. Develop and implement a qualitative review process for treatment plans consistent with generally accepted professional standards. The review

9

· process will include ongoing feedback and professional development for all professional staff.

I.

Require all treatment team staff, consisting of professionals and direct care

staff involved in the treatment team, to complete successfully competency-

based training, appropriate to their duties, on the development and

implementation of individualized treatment plans, including behavioral

plans and the development of clinical formulations, goals, interventions,

and discharge criteria.

m. Require the clinical director to review high-risk situations in a timely manner, consistent with generally accepted professional standards.

n. Develop and implement policies to require that patients with special needs, including co-occurring diagnoses of substance abuse and/or developmental disability, physical, cognitive, and/or sensory impairments are evaluated, treated, or referred for timely treatment consistent with generally accepted professional standards.

o. Develop and implement a policy for suicide risk assessment and management of suicidality.

p. Require that, with the exception of emergency interventions, no planned restrictive interventions shall be used in the Georgia Psychiatric Hospitals without prior review and approval by a Human Rights Committee, or its equivalent, as to whether the degree of restriction of rights is necessary, appropriate, and of limited duration.

q. Require that all psychotropic medications are:

(1) tailored to each patient's individual symptoms;

(2) administered as prescribed;

(3) monitored for effectiveness and potential side-effects against clearly-identified patient outcomes and time frames;

(4) modified based on clinical rationales;

(5) properly documented; and

10

(6) subject to regular review consistent with generally accepted professional standards.

r.

Institute systematic monitoring mechanisms regarding medication use

throughout the facility. In this regard, the Georgia Psychiatric Hospitals

shall implement a procedure governing the use of pro re nata ("PRN") and

"Stat" medications that includes requirements for specific identification of

the signs and symptoms prior to administration ofPRN or "Stat"

medication, a time limit on PRN orders, a documented rationale for the

use of more than one medication on a PRN or "Stat" basis, triggers for

review by the treatment team, and physician documentation to require

timely, critical review of the patient's response to PRN or "Stat"

medication including reevaluation of regular treatments as a result ofPRN

or "Stat" use.

C. Seclusion or Restraint

The Georgia Psychiatric Hospitals shall require that the use of seclusion or restraint is used in accordance with requirements of applicable policies, regulations, and law, and consistent with generally accepted professional standards. More particularly, the Georgia Psychiatric Hospitals shall:
1. Eliminate the planned use of restrictive interventions, including planned seclusion and planned restraint, with the exception of the use of restrictive interventions for persons with diagnoses of developmental disability, which have received the prior review and approval of a Human Rights Committee, or its equivalent, as to whether the degree of restriction of rights is necessary, appropriate, and of limited duration.

2. Require that the use of restraint or seclusion:

a. Occurs only when persons pose an imminent threat to themselves or others and after less restrictive measures have been determined to be ineffective;

b. Is not an alternative to active treatment, as coercion, punishment, retaliation, or is not for the convenience of staff;

c. Is terminated at the earliest possible time;

d. Is documented in the clinical record; and

e. Is regularly monitored and assessed consistent with generally accepted professional standards and applicable policy, regulation, and law, and that
11

a qualified staff member with appropriate training makes and documents a determination of the need for continued seclusion or restraint.
3. Create or revise, as appropriate, and implement policies and procedures consistent with generally accepted professional standards and applicable law and regulation that cover the following areas:
a. The restrictive alternatives available to staff and a clear defmition of each, including restrictive alternatives available for dental and medical procedures; and
b. The training that all staff receive in identifying factors that may trigger circumstances that require the use of restraint or seclusion, the safe use of restraint or seclusion, and the use ofless-restrictive interventions.
4. Require that any order for seclusion or restraint includes:
a. The specific behaviors requiring the procedure;
b. The maximum duration ofthe order; and
c. Behavioral criteria for release, which, ifmet, require the patient's release even if the maximum duration of the initiating order has not expired.
5. Require that the patient's attending physician be consulted in a timely fashion regarding the seclusion or restraint if the attending physician did not order the intervention.
6. Require that at least every thirty minutes, if their clinical condition permits, patients in seclusion or restraint be re-informed of the behavioral criteria for their release from the restrictive intervention.
7. Require that following a patient being placed in seclusion or restraint, the patient's treatment tearn reviews the incident within one business day, and documents the review and the reasons for or against change in the patient's current pharmacological, behavioral, andlor psychosocial treatment.
8. Develop and implement a policy that addresses multiple episodes of restraint or seclusion that include revising the treatment plan if appropriate and consideration of a behavior support plan.
9. Act consistent with generally accepted professional standards and applicable law and regulations regarding assessments of any patient placed in seclusion or
12

restraints, by a physician, nurse practitioner or clinical nurse specialist licensed in the State of Georgia.
10. Require that staff successfully complete competency-based training regarding implementation of seclusion or restraint and the use of less-restrictive interventions.
D. Medical and Nursing Care

The Georgia Psychiatric Hospitals shall provide medical and nursing services to its patients consistent with generally accepted professional standards for an inpatient psychiatric facility and for long-term care, as applicable, including individualized care, services and treatment, consistent with their treatment plans. More particularly, the Georgia Psychiatric Hospitals shall:

1

Require adequate clinical oversight of the standard of care consistent with

general1y accepted professional standards.

2. Require sufficient nursing staff to provide nursing care and services consistent with generally accepted professional standards.

3. Require that before nursing staff work directly with patients, they have completed successfully competency-based training, appropriate to their duties, regarding mental health diagnoses, related symptoms, psychotropic medications, identification of side effects ofpsychotropic medications, monitoring ofsymptoms and responses to treatment, and documenting and reporting of the patient's status.

4. Require that nursing staff accurately and routinely monitor, document, and report patients' symptoms and responses to nursing interventions in a manner that enables treatment teams to assess the patient's status and to modify the treatment plan as required.

5. Require that nursing staff actively participate in the treatment team process.

6. Require that nursing staff provide input to and implement interventions in the individualized treatment plan.

7. Require that licensed nurses are appropriately supervised in the administration, monitoring, and recording of the administration of medications and any errors, consistent with generally accepted professional standards.

8. Require that, prior to assuming their duties and on a regular basis thereafter, all 13

staff responsible for the administration of medication have completed successfully competency-based training on the completion of the Medication Administration Record.
9. Require that all failures to properly sign the Medication Administration Record and/or the Narcotics Log are treated as medication errors and that appropriate follow-up occurs to prevent recurrence of such errors.
10. Establish an effective infection control program to minimize the spread of infections or communicable diseases. The infection control program shall:
a. Actively collect data with regard to infections and communicable diseases;
b. Analyze these data for trends;
c. Initiate inquiries regarding undesirable trends;
d. IdentifY necessary corrective action;
e. Monitor to determine whether remedies are achieved consistent with generally accepted professional standards;
f. Integrate this information into the hospital quality management system; and
g. Require that nursing staff participate in the infection control program.
11. Establish an effective physical and nutritional management program for patients who are at risk for aspiration or dysphagia, including but not limited to the development and implementation of assessments, risk assessments, and interventions for mealtimes and other activities involving swallowing. The physical and nutritional management program shall:
a. IdentifY patients at risk for aspiration or choking and assign an appropriate risk level to that patient;
b. IdentifY triggers on an individualized basis for patients identified as at risk;
c. Assess and determine appropriate and safe positioning for each at risk patient for the 24 hour day;
14

d. Develop and implement plans that include specific instructions on implementation of the appropriate techniques for all patient activities based on the patient's assessment, with clinical justifications;
e. Monitor and document objective clinical data for at risk patients; and
f. Implement a system to review and revise plans based on appropriate triggering events and outcomes.
12. Require that staff with responsibilities for patients at risk for aspiration and dysphagia have successfully completed competency-based training on duties commensurate with their responsibilities.
13. Provide adequate, appropriate, and timely rehabilitationlhabilitation therapy services and appropriate adaptive equipment to individuals whose special needs affect their daily functional abilities, consistent with generally accepted professional standards, policy, regulation and law.
14. Establish an effective medical emergency preparedness program, including competency-based staff training; require staff familiarity with emergency supplies, their operation, maintenance and location; and conduct sufficient practice drills to attain adequate performance when confronted with an actual emergency.
15. Develop, implement, and review as necessary medical/nursing protocols for medical conditions commonly found within the patient population of the Georgia Psychiatric Hospitals, consistent with generally accepted professional standards.
E. Services to Populations with Specialized Needs
The Georgia Psychiatric Hospitals shall provide services to patients with specialized needs. More particularly, the Georgia Psychiatric Hospitals shall:
1. Provide services to patients with limited English proficiency, consistent with the requirements of the State's Limited English Proficiency and Sensory Impaired Client Services Manual and federal law.
2. Require the provision of adequate education and special education services for qualified students, including:
a. Adequate assessments of individual educational needs and 15

monitoring and reporting of individual progress, including reporting all relevant assessments and information to a new school upon discharge from the hospital;
b. Development and implementation oflndividualized Education Plans ("IEPs") consistent with the requirements of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1401; and
c. A requirement that students receive instruction and behavioral supports appropriate to their learning abilities and needs, consistent with generally accepted professional standards.
F. Discharge Planning
The Georgia Psychiatric Hospitals shall, consistent with federal law, treat patients in a marmer consistent with their clinical needs and legal status and shall, consistent with federal law, actively pursue the clinically indicated discharge of patients when not otherwise legally prohibited from doing so. The foregoing shall be satisfied if the State shall:
1. IdentifY and address in treatment planning within three days ofadmission but in all cases prior to discharge, barriers to discharge for a particular patient, including but not limited to:
a. The individual patient's symptoms of mental illness or cognitive impairment;
b. Any other barriers preventing that specific patient from transitioning to a more integrated setting, including problems identified as creating the need for readmission that can be addressed by the hospital;
c. The types of resources necessary for discharge; and
d. The patient's strengths, preferences, and personal goals.
2. Provide the opportunity for every patient to be an active participant in the discharge process, commensurate with the patient's ability and willingness to participate.
3. Include in treatment interventions the development of skills necessary to achieve
16

successful discharge.

4. Provide hospital transition services to patients consistent with generally accepted professional standards.

5. Create a Repeat Admissions Review Coordinator position ("RARC"):

a. The State shall have at each hospital a RARC who will be a senior member of the social work department;

b. Every patient admitted with three or more admissions in a twelve month period or more than ten total admissions to any of the Georgia Psychiatric Hospitals, shall have a "repeat admissions review" conducted by the RARC or such coordinator's staff that is consistent with generally accepted professional standards. The review shall, at a minimum, specify barriers to successful discharge, reasons for repeat admissions, and recommended strategies to promote successful discharge;

c. The findings of the repeat admissions review shall be supplied to the treatment team at least one day prior to the team meeting to write the individualized treatment plan;

d. The treatment team shall consider the [mdings of the RARC and shall address the findings ofthe repeat admissions review in writing in the treatment plan, including specific reasons for adopting or rejecting the recommendations made in the repeat admissions review;

e. Upon request by any treatment team, the RARC will attend the treatment planning meeting to assist with discharge planning; and

f.

The RARC shall participate in the quality assurance or utilization review

of the hospital's discharge process.

6. Create or revise, as appropriate, and implement a quality assurance or utilization review process to oversee the hospital's discharge process.

IV. IMPLEMENTATION OF THE AGREEMENT
A. The State shall implement all reforms necessary to effectuate this Agreement. The implementation of this Agreement shall begin immediately upon the Effective Date.
17

B. Within six months of the Effective Date of this Agreement, the State shall communicate with Georgia Psychiatric Hospital officials, employees, agents, and independent contractors involved in providing care to the patients at the Georgia Psychiatric Hospitals the provisions set forth in this Agreement that are applicable to their respective job duties.
c. The Georgia Psychiatric Hospitals shall comply with all applicable federal and state
licensing requirements.
D. The State shall appoint a person at the Division ofMHDDAD to serve as a point of contact for the United States during monitoring of compliance with this Agreement. The foregoing person shall prepare reports regarding compliance with this Agreement within six months and twelve months of the Effective Date and annually thereafter, which reports shall be promptly provided to the United States along with any reports prepared by the State's technical consultants regarding compliance with this Agreement and any other reports routinely submitted to the point of contact regarding compliance with this Agreement.
E. If the State selects technical consultants that it used prior to the execution of this agreement, such action does not waive or impair the attorney work product protections and attorney client privileges that apply to the parties outside of this Agreement.
F. The State shall make reasonable efforts to coordinate its remedial actions across the Georgia Psychiatric Hospitals, so that adequate remedial measures developed at one Georgia Psychiatric Hospital may be implemented system wide.
G. For the purpose of ascertaining compliance with this Agreement, the United States and its attorneys, expert consultants, and agents shall have reasonable access to: all ofthe Georgia Psychiatric Hospitals' buildings and facilities; documents (except those documents not in the Georgia Psychiatric Hospitals' possession, custody, or control); records; State officials, employees, agents, and independent contractors; and patients, including the right to meet with patients privately when clinically appropriate and with their consent; and to patient records, documentation, and information relating to the issues addressed in this Agreement, except where covered by attorney work product protections or the attorney-client privilege. Such reasonable access shall encompass physical access to admissions and to records of patients, but this shall in no way limit the United States' ability to talk to persons. The State shall make all employees available so that they may choose to cooperate fully with the United States. The United States agrees to provide the State with at least IS-days notice of any visit or inspection, although the United States and the State agree that no notice shall be
18

required in an emergency situation where the life, immediate health, or immediate safety of a patient is at issue. Nothing in this Agreement shall abridge the whistleblower rights of State employees or contractors under law. Such access shall continue until this Agreement is terminated in accordance with the termination provisions herein. Within 30 days of receipt of reasonable written questions from the United States concerning the State's compliance with the requirements of this Agreement, the State shall provide the United States with written answers and any requested documents. The State shall provide copies of all documents, except peerreview documents, reasonably requested by the United States in an electronic format.
H. The State shall notifY the United States promptly upon the death of any patient and other sentinel events. The State shall forward to the United States copies of all completed incident reports and final reports of investigations related to such incidents as well as any autopsies and death summaries in the State's possession.
I. The parties and all of their agents shall, to the fullest extent allowed by law, maintain the confidentiality ofpatients' confidential, personal, and protected health information. All non-public information obtained by the United States shall be maintained in a confidential manner.
J. The State shall implement Quality Assurance mechanisms to assess its compliance consistent with generally accepted professional standards, policies, regulations, and law. The Quality Assurance program shall require:
1. Comprehensive audits -of relevant areas at the Georgia Psychiatric Hospitals by qualified professionals, to monitor compliance with the Georgia Psychiatric Hospitals' policies and procedures. A comprehensive audit of each Hospital shall be conducted within one year of the Effective Date of this Agreement, and on a semi-annual basis thereafter. The comprehensive audit shall include:
a. Review of relevant documents for both adequacy of documentation of the rationale and provision of services;
b. Interviews with appropriate staff, including not only those staff directly involved in the service being audited, but also other staff who may have relevant information, including administrators;
c. Interviews with patients as indicated;
d. Observation of activities involving patients;
19

e. Steps to detennine whether there are patients in the Georgia Psychiatric Hospitals who should be receiving appropriate services but are not, including random re-evaluations of recent admissions and assessments, and interviews of line staff who may be aware of patients who would benefit from, but are not receiving, appropriate services;

f.

Written findings and the development of plans of improvement, as

necessary; and

g. Periodic review of the adequacy of each Hospital's internal quality management activities.

2. Monitoring and review of the status of remedial measures implemented based on findings and recommendations made by bodies investigating patient care and safety, relevant to the area of care being assessed. Such review shall involve debriefings with relevant staff to detennine whether policies, practices, or training should be modified to minimize the risk of such events in the future.

4. Analysis of relevant key indicator data to measure compliance with the Georgia Psychiatric Hospitals' policies.

5. Regular reports at least once every six months summarizing quality assurance activities, findings, and recommendations.

K. The State shall provide reports to the United States at least once every six months during the tenn of this agreement regarding its Quality Assurance mechanisms.
v. MODIFICATION AND TERMINATION

A. If, at any time, any party to this Agreement desires to modifY it for any reason, that party shall notifY the other party to this Agreement, in writing, of the proposed modification and the reasons therefor. No modification will occur unless there is written agreement by and between the United States and the State.

B. The State will undertake its best efforts to obtain the necessary appropriations, limitations, or other expenditure authority to comply with this Agreement. If the State's executive agencies cannot comply with the tenns of this Agreement due to legislative action or inaction, the United States has the right to seek judicial enforcement of this Agreement.

C. The parties agree to file this Agreement with the United States District Court for the Northern District of Georgia, Atlanta Division, in conjunction with a complaint and a joint
20

motion, pursuant to Fed. R. Civ. P. 41(a)(2), for the conditional dismissal of the case. The motion shall request that the case be placed on the Court's inactive docket.
D. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety ofpatients served by the Georgia Psychiatric Hospitals, during the term ofthis Agreement, if the United States reasonably believes that the State has failed to fulfill any obligation under this Agreement, the United States shall, before initiating any court proceeding to remedy such failure, give written notice of the failure to the State. With the exception of an immediate or serious threat to life, health, or safety of patients of a Georgia Psychiatric Hospital, the State shall have 90 days from the date of such notice to cure or substantially cure the non-compliance and provide the United States with sufficient evidence of such cure. The Parties shall attempt to resolve any differences during this period. If the parties fail to agree upon a modification or on an extension of time for cure by the end of the 90-day cure period, and the United States determines that the failure has not been cured, the United States may, without further notice, take appropriate legal action, including filing a motion to restore the case to the court's active docket to enforce any provision of this Agreement.
E. This Agreement shall terminate five years from the Effective Date. Within one year of the Effective Date, the Georgia Psychiatric Hospitals shall lie in substantial compliance regarding choking and aspiration risk assessment and prevention, suicide risk assessment and prevention, prevention of patient on patient assault, and implementation of emergency medical codes consistent with generally accepted professional standards. The Agreement may terminate earlier as to any particular hospital if the hospital has achieved sustained compliance. The burden shall be on the State to demonstrate this level of compliance. The United States agrees to modify this agreement to show the removal of a particular hospital based on its achievement of sustained compliance, and the United States will not unreasonably withhold such modification of this agreement. During the last twelve months of this Agreement, the United States shall conduct an evaluation of any of Georgia's Psychiatric Hospitals that remain subject to this Agreement. The State will undertake its best efforts to bring the Georgia Psychiatric Hospitals into compliance at the earliest possible date and will notify the United States that the State is in substantial compliance no later than twelve months before the expiration of this Agreement.
VI. GENERAL PROVISIONS
A. This Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, assigns, 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 accordingly, no person or entity may
21

assert any claim or right as a beneficiary or protected class under this Agreement in any civil, criminal, or administrative action. This agreement does not authorize, nor shall it be construed to authorize, access to State documents by persons or entities not a party to this Agreement except as allowed by applicable law.
B. The State agrees that it shall not retaliate against any person because that person has filed or may file a complaint, provided assistance or information, or participated in any other manner in the United States' investigation of the Georgia Psychiatric Hospitals or in proceedings related to this Agreement. The State agrees that it shall timely and thoroughly investigate any allegations of retaliation in violation of this Agreement and the non-retaliation provision ofCRlPA and take any necessary corrective actions identified through such investigations.
C. Nothing in this Agreement shall be construed as an acknowledgement, an admission, or
evidence ofliability of the State under CRlPA, the United States Constitution or federal or state law, and this Agreement may not be used as evidence ofliabiJity in this or any other civil or criminal proceeding.
D. "Notice of Non-Compliance" under this Agreement shall be provided by overnight courier to the following or their successors:
Executive Counsel to the Governor Governor's Office 201 State Capitol Atlanta, Georgia 30334
Georgia Attorney General 40 Capitol Square, S.W. Suite 132 Atlanta, Georgia 30334-1300
Commissioner for the Department of Human Resources 2 Peachtree Street, N.W. Suite 19.240 Atlanta, GA 30303-3142
Chief Legal Officer for the Department of Human Resources 2 Peachtree Street, N.W. Suite 29.201 Atlanta, Georgia 30303-3142
22

Director of the Division of Mental Health, Developmental Disabilities and Addictive Diseases 2 Peachtree Street Suite 22-235 Atlanta, Georgia 30303-3142
E. "Notice" under this Agreement, with the exception of "Notice of Non-Compliance" described above, shall be provided by overnight courier to the following or their successors:
Chief of the Special Litigation Section 601 D Street, N.W. Washington, D.C. 20004
Attorney General of Georgia 40 Capitol Square, S.W. Atlanta, Georgia 30334
Executive Counsel to the Governor of Georgia 20 I State Capitol Atlanta, Georgia 30334
F. If an unforeseen circumstance occurs that causes a failure to timely fulfill any requirements ofthis Agreement, the State shall notify the United States in writing within 20 calendar days after the State becomes aware of the unforeseen circumstance and its impact on the State's ability to perform under the Agreement. The notice shall describe the cause ofthe failure to perform and the measures taken to prevent or minimize the failure. The State shall take all reasonable measures to avoid or minimize any such failure.
G. Failure by any party to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions of this Agreement.
H. The parties shaH promptly notify each other of any court or administrative challenge to this Agreement or any portion thereof.
I. In the event any provision of the Agreement is declared invalid, for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement:
23

J. This Agreement shall constitute the entire integrated agreement of the parties.
K. Each party shall bear the cost of its fees and expenses incurred in connection with this case.

Executed this f.'J, /-h day of .jtJ=lNLlAI2.'1

,2009.

By: ~--~--~~--------Grace Chung Becker Acting Assistant Attorney General

By::-:-_----:c----:-_ _ _ _ __
Shanetta Cutlar Chief, Special Litigation Section United States Department of Justice
By:_ _ _ _ _ _ _ _ __ Judy Preston Deputy Chief, Special Litigation Section United States Department of Justice
By: --~----------------David Deutsch Mary Bohan Timothy Mygatt Amin Aminfar Special Litigation Section United States Department of Justice

24

FORmE UNITED STATES

JfctteR,*,~~ e , CE CHUNG ECKER Acting Assistant Attorney General Civil Ri s Division·

Du.u....,TTA Y. CUTLAR Chief Special Litigation Section
~ON
Deputy Chief Special Litigation Section

DAVID DEUTSCH MARYR. BOHAN TIMOTHY D. MYGATT
·AMIN AMINFAR
Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-0212 Email: Timothy.Mygatt@usdoj.gov

BY:~2'£~'47--~~~~~==Govemoroft
•
25

 
 U.S. Department of Justice Civil Rights Division
Assistant Attorney General 950 Pennsylvania Avenue, NW - RFK Washington, DC 20530

December 8, 2009

The Honorable Sonny Perdue Office of the Governor 203 State Capital Atlanta, Georgia 30334
Re: Investigation of the State Psychiatric Hospitals Dear Governor Perdue:
I am writing to provide the Civil Rights Division’s report of findings regarding our investigation of conditions and practices in the State’s Psychiatric Hospitals, pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. CRIPA gives the Department of Justice authority to seek a remedy for a pattern and practice of conduct that violates the constitutional or federal statutory rights of patients with mental illness or developmental disabilities who are treated in public institutions, including those rights protected by the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12132-12134. The findings discussed in this letter apply to Georgia Regional Hospital at Savannah (“GRHS”), East Central Regional Hospital in Augusta, Georgia (“ECRH”), Central State Hospital in Milledgeville, Georgia (“CSH”), Southwestern State Hospital in Thomasville, Georgia (“SWSH”), and West Central Georgia Regional Hospital in Columbus, Georgia (“WCGRH”) (collectively, the “State Psychiatric Hospitals”), and are consistent with our two prior letters, the May 30, 2008 letter concerning the Georgia Regional Hospital in Atlanta (“GRHA”), and the January 15, 2009 letter concerning the Northwest Georgia Regional Hospital in Rome, Georgia (“NWGRH”).
On April 18, 2007, we notified you that we were initiating an investigation of conditions and practices in the State Psychiatric Hospitals pursuant to CRIPA. We subsequently conducted on-site reviews with the assistance of expert consultants in the fields of psychiatry, psychology, nursing, protection from harm, and discharge planning and community placement.1 While on-site, we interviewed administrative

1

We conducted our first inspection of GRHA on September 17-21, 2007,

and a second inspection on August 2-6, 2009; NWGRH on October 29 through

- 2 staff, mental health care providers, and patients, and examined the physical plant conditions throughout the State Psychiatric Hospitals. In addition, we reviewed a wide variety of documents, including policies and procedures, incident reports, and medical and mental health records. We also have received and reviewed the State’s own audits of its Hospitals by consultants from the Medical College of Georgia, see Peter Buckley, M.D., and Nannette M. Lewis, M.P.H., Medical College of Georgia, A Comprehensive Evaluation of Georgia’s State Hospital Services, December 2007 (describing deficits at the seven State Psychiatric Hospitals in protection from harm, mental health treatment, nursing staffing, risk management, and performance improvement), the State’s Plan of Implementation and Compliance Report (“POI Report”) filed with the District Court in September of this year, and the State’s quality management reports sent to us in August of this year. Consistent with our commitment to provide technical assistance and proceed in a transparent manner, we have concluded each of our site visits with extensive debriefings at which our consultants conveyed their initial impressions and grave concerns about conditions to counsel, administrators and staff, and State officials.
In accordance with statutory requirements, we now write to advise you formally of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to remedy the deficiencies. 42 U.S.C. § 1997b(a). We have concluded that numerous conditions and practices at the State Psychiatric Hospitals violate the constitutional and statutory rights of the patients confined there. Specifically, we find that the State Psychiatric Hospitals fail to provide adequate discharge planning to ensure placement in the most integrated setting and to provide adequate supports and services necessary for successful discharge, see Americans with Disabilities Act, 42 U.S.C. §§ 12132-12134; 28 C.F.R. § 35.130(d); Section 504 of Rehabilitation Act, 29 U.S.C. § 794; Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7; Olmstead v. L.C., 527 U.S. 581 (1999), and continue to provide deficient services that subject patients both to actual harm, and to an excessive risk of serious harm, including: (1) inadequate protection from harm; (2) inappropriate mental health treatment; (3) inappropriate seclusion and restraints; (4) inadequate medical care; and (5) inadequate services to populations with specialized needs. See Youngberg v. Romeo, 457 U.S. 307 (1982); Title XVIII and Title XIX of the Social Security Act, 42 U.S.C. §§ 1395 to 1395b-10 and 1396 to 1396w-1; 42 C.F.R. §§ 482-483 (listing program requirements for participating in Medicare and Medicaid).
November 2, 2007; GRHS on December 17-21, 2008, and again on June 22-26, 2009; ECRH on May 4-8, 2009; CSH on April 8, June 30, and July 1, 2009, and again on November 2-6, 2009; SWSH on October 13-16, 2009; WCGRH on November 30 through December 3, 2009.

- 3 As we noted in our prior letters, the majority of the findings we have made also have been made by other agencies in the past. See, e.g., Peter Buckley, M.D., and Nan Lewis, M.P.H., Medical College of Georgia, A Comprehensive Evaluation of Georgia’s State Hospital Services, December 2007 (describing deficits at the seven State Psychiatric Hospitals in protection from harm, mental health treatment, nursing staffing, risk management, and performance improvement); United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, Surveys of the Hospitals. We have included specific references to past findings by these entities, where appropriate. We found that these conditions remain largely unabated, despite the State’s knowledge of the deficiencies. More than a decade ago, the United States Supreme Court made clear that the unnecessary institutionalization of persons with disabilities violates the law. Olmstead, 527 U.S. at 587. Olmstead involved two women with developmental disabilities and mental illness who were inappropriately confined in one of the State’s own Hospitals, GRHA. Id. at 593, 597. The Supreme Court held that states are required to provide services to persons with disabilities in the most integrated, appropriate settings. See Id. at 596-97. In the wake of the Olmstead decision, Georgia commissioned numerous studies of deficiencies in its community mental health care system, including: a February 2004 Study of the Community Service Board (“CSB”) Service Delivery System (Phase I); a January 2005 Study of the CSB Service Delivery System (Phase II); and a May 2005 Georgia Mental Health System Gap Analysis. As stated in the Phase II Study by the State’s Department of Audits and Accounts, these studies “point to accountability, oversight, management, and quality of care issues.” The finding that Georgia’s high hospitalization and readmission rates compared to national averages persist, and are “evidence of a lack of community based services,” was reiterated in the June 2, 2008, Governor’s Mental Health Service Delivery Commission’s Progress Report. Indeed, as detailed below, high rates of re-admission, particularly repeated re-admission of the same patients dozens of times, are strong evidence of continued deficiency in discharge planning and provision of community supports. Despite the mandate by the Supreme Court and the subsequent clear analysis and recommendations in Georgia’s own reports, our review of discharge planning at all of the State Psychiatric Hospitals concludes that Georgia still fails to ensure that persons with disabilities receive appropriate and sufficient services to enable them to live in the most integrated setting consistent with their needs, as required by federal law.
I. BACKGROUND The seven State Psychiatric Hospitals at any one time house approximately 2,000 patients who have mental illness, substance abuse issues, and/or developmental disabilities. The State Psychiatric Hospitals’ services include crisis stabilization beds that may house patients from 23 hours to four weeks, acute and

- 4 long-term adult psychiatric units, child and adolescent programs, forensic units, units for persons with developmental disabilities, and skilled nursing units.2 The seven State Psychiatric Hospitals are located in geographically diverse areas of the State.
II. LEGAL STANDARDS The State must provide services to qualified patients with disabilities in the most integrated setting appropriate to their needs. ADA, 42 U.S.C. § 12132 (“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”), and its implementing regulations; 28 C.F.R. § 35.130(d); see Olmstead, 527 U.S. at 607 (holding that a State is required to provide community-based treatment for persons with disabilities when that State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated); Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) (holding that the ADA was violated where a person with disabilities was offered personal care services in an institutional setting but not at home); see also Press Release, The White House, “President Obama Commemorates Anniversary of Olmstead and Announces New Initiatives to Assist Americans with Disabilities” (June 22, 2009) (Announcing the Year of Community Living Initiative, President Obama affirmed “one of the most fundamental rights of Americans with disabilities: Having the choice to live independently.”). In construing the anti-discrimination provision contained within the ADA, the Supreme Court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. Specifically, the Court established that states are required to provide community-based services and supports for persons with disabilities when treatment professionals have determined that community placement is appropriate, provided that the transfer is not opposed by the affected patient, and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with disabilities. Id. at 602, 607. Courts reviewing the sufficiency of states’ efforts to comply with the integration mandate have held that an “individualized review of patients does not amount to a sufficient deinstitutionalization plan.” Pennsylvania Protection & Advocacy v. Dep’t of Public Welfare, 402 F.3d 374, 384 (3d Cir. 2005). Moreover, budgetary constraints “alone

2

We note that the combination of these diverse populations within the

same Hospitals is unusual. Each population and the combination of these

populations present unique health, safety, and treatment concerns.

- 5 are insufficient” to establish a defense to full compliance with the Olmstead mandate. Id. at 380.
The regulations promulgated pursuant to the ADA provide: “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (the integration mandate). The courts have endorsed a straightforward reading of this regulation:
[t]he proper interpretation of the regulations’ definition of “most integrated setting” is set forth in the regulations themselves: whether a particular setting “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 320 (E.D.N.Y. 2009). The Fourteenth Amendment Due Process Clause also requires a state mental health care facility to provide “adequate food, shelter, clothing, and medical care,” Youngberg, 457 U.S. at 315, along with “conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests,” Id. at 324. Individualized treatment must be provided to give patients “a reasonable opportunity to be cured or to improve [their] mental condition.” Donaldson v. O’Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated on other grounds, O’Connor v. Donaldson, 422 U.S. 563 (1975); D.W. v. Rogers, 113 F.3d 1214, 1217-18 (11th Cir. 1997) (holding that the constitutional right to psychiatric care and treatment is triggered by the State’s physical confinement of an individual with mental illness; the court noted the holding of Fifth Circuit cases, including Donaldson, which are binding upon the Eleventh Circuit if decided before September 30, 1981); see also Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974). Patients in a psychiatric hospital also have certain rights protected by federal statutory law. Specifically, the State must provide services and activities to patients at the State Psychiatric Hospitals that are consistent with Title XVIII and Title XIX of the Social Security Act and their implementing regulations. See 42 U.S.C. §§ 1395 to 1395b-10 and 1396 to 1396w-1; 42 C.F.R. §§ 482-483 (listing program requirements for participating in Medicare and Medicaid). The State must also take reasonable steps to ensure that patients with limited English proficiency and sensory deficiencies are provided with meaningful access to programs and services. See Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7; 45 C.F.R. § 80.3; A DA, 42 U.S.C. §§ 12132-12134. Moreover,

- 6 the state’s duty to render the kind of treatment prescribed by Youngberg is not discharged by simply releasing a class member from the institution where he or she had been hospitalized. Otherwise the state could unilaterally avoid the obligations imposed by Youngberg and Thomas II [Thomas S., 699 F. Supp. 1178] and defeat the claims of class members by terminating their institutional care while the case was pending. Thomas S. v. Flaherty, 902 F.2d 250, 254-55 (4th Cir. 1990). A court may order twofold relief: “to ameliorate the lingering effects, if any, of improper treatment; and to remedy inappropriate community placements, if any . . . that were not anticipated by professionals in the institutions.” Id. Accordingly, the State must remedy the constitutionally inadequate care and treatment that took place while the individuals were in State custody, including remedial measures to correct the transition of individuals to a placement that is not the most integrated setting appropriate to their needs. The measure of inadequate treatment is whether it substantially departs from generally accepted professional judgment, practice, or standards. Youngberg, 457 U.S. at 320-23. Patients have a due process right to have all major decisions regarding their treatment be made in accordance with the judgment of qualified professionals acting within professional standards. Griffith v. Ledbetter, 711 F. Supp. 1108, 1110 (N.D. Ga. 1989). It is a substantial departure from professional standards to rely routinely on seclusion and restraint rather than behavior techniques, such as social reinforcement, to control aggressive behavior. Id. at 1189. Seclusion and restraint should only be used as a last resort. Id.; Davis v. Hubbard, 506 F. Supp. 915, 943 (W.D. Ohio 1980); see also Thomas S., 699 F. Supp. 1178, 1200 (W.D.N.C. 1988) (States are compelled by the Constitution to ensure that patients are free from hazardous drugs which are “not shown to be necessary, used in excessive dosages, or used in the absence of appropriate monitoring for adverse effects.”), aff’d., 902 F.2d 250. As described below, placement and discharge decisions, as well as treatment within the State Psychiatric Hospitals, fall far short of constitutional and statutory requirements.
III. FINDINGS Significant and wide-ranging deficiencies exist in the State’s provision of services to persons with disabilities who are confined in the State’s Hospitals. Discharge services at the State Psychiatric Hospitals substantially depart from generally accepted professional standards and violate the constitutional and federal

- 7 statutory rights of patients who reside there. In particular, we find that the State: (1) unnecessarily institutionalizes persons with disabilities who, with appropriate supports and services, could be served in the community; (2) fails to provide discharge and transition services at the State Psychiatric Hospitals in accord with generally accepted standards of care and the State’s own policies; (3) fails to provide adequate assessments, diagnoses and treatment that would enable persons in the institutions to develop the skills necessary to live successfully in the community; (4) fails, in particular, to analyze the reasons for high rates of recidivism, and, consequently, to provide appropriate treatment to those patients; and (5) fails to identify and develop resources necessary to facilitate successful discharge. Patients confined to the State Psychiatric Hospitals, including those patients unnecessarily institutionalized, continue to suffer from additional, preventable harm, including: assault by peers; self-harm; regression and loss of skills from inadequate treatment and services; harm from excessive restraint and administration of sedating medications; harm from inadequate medical and nursing care; and harm from the lack of services to patients with specialized needs.
We find that the violations cited in our earlier letters concerning GRHA and NWGRH continue at the State Psychiatric Hospitals. Following site visits to CSH, ECRH, and GRHS earlier this year, the United States provided written feedback to the State detailing deficient conditions, harms resulting from those deficiencies, and recommendations for measures to ameliorate those conditions. See Letters dated April 15, 2009 (CSH patient homicide); July 16, 2009 (follow-up concerning CSH homicide); September 9, 2009 (ECRH Compliance Letter); November 19, 2009 (GRHS Compliance Letter); and November 25, 2009 (CSH Emergency Letter) (Enclosed as Attachments 1-5, respectively). The United States identified additional significant harms to patients at each of the State Psychiatric Hospitals due to the State’s deficient practices, and provided written notice of its concerns regarding these incidents to the State. See Letters dated June 9, 2009 (series of patient deaths at CSH); July 31, 2009 (admitted rape of a patient at SWSH); August 14, 2009 (alleged sexual assaults at ECRH); September 4, 2009 (suicide of a patient at GRHS); and November 18, 2009 (ECRH suicide attempt) (Enclosed as Attachments 6-10, respectively). In this letter, we incorporate by reference the pattern or practice of conditions that violate the Constitution and federal law, the supporting facts, and the remedial measures detailed in those letters. Finally, we note that the State’s own progress reports detailing its Quality Management systems (“QM Report”), and its Progress Report on development of a Plan of Implementation (“POI Report”), while promising plans for remedial action, demonstrate that essential services are not being provided to the patients of the State Psychiatric Hospitals in violation of the Constitution and federal statutory law.

- 8 A. The State Segregates Hundreds of Patients Who Do Not Require
Institutional Care The State fails to provide services to patients in the most integrated setting appropriate to their needs. As detailed below, hundreds of patients currently confined at the State Psychiatric Hospitals have been determined by their teams of treatment professionals to be appropriate for community-based treatment, but nonetheless have not been discharged to the community or another more integrated setting. Scores of patients appear to be institutionalized because community services were not available to address their needs before admission; many of these patients never should have been admitted to an institution in the first place. There are numerous other patients who are admitted to the hospital for a brief period, given neither adequate treatment nor adequate discharge and transition planning, and then released, only to be re-admitted in weeks or months. In this population, frequently referred to as the “revolving door” population, it is not uncommon to find patients at any of the State Psychiatric Hospitals who have been institutionalized dozens of times in a period of a few years. Many patients, incredibly, have been re-admitted more than 100 times to the State Psychiatric Hospitals. With adequate treatment and discharge planning, and with expanded services in the community, this cycle of needless repeated institutionalization could be avoided. The State maintains lists of patients who have been institutionalized for 60 days or longer and whose treatment teams have determined can be served in a less restrictive setting – the so-called Olmstead lists. The Olmstead lists are compiled separately for patients with psychiatric disabilities and those with developmental, or intellectual disabilities. For patients on these lists, continued institutionalization without provision of necessary services to facilitate discharge is unjustified segregation by reason of a disability – the very discrimination clearly forbidden by the ADA. Olmstead, 527 U.S. at 597. The State’s Olmstead lists identify only a fraction of the people currently institutionalized in the State’s Hospitals who could be more appropriately served in a less restrictive setting. The State has made the judgment that all of the persons with developmental disabilities in the institutions could live successfully in the community with appropriate supports, and our expert consultants concur. Accordingly, the State places all individuals with developmental disabilities on its Olmstead list, unless its treatment professionals perceive that the individual or his representative objects to community placement.

- 9 Persons with a mental illness, however, face a higher threshold for being placed on the State’s Olmstead List.3 A State policy limits the State’s Olmstead list for people with a mental illness to those who already have been institutionalized for 60 days. Thus, the State is concentrating its discharge planning efforts—and tracking of those efforts system-wide—on those patients who have been institutionalized for 60 days or more. For persons with diagnoses of mental illness, who typically experience much shorter lengths of stay, this decision has the effect of leaving most patients with mental illness off of the State’s Olmstead list. Perversely, State policy dictates that a person-centered transition plan is created for a person with a mental health disability only after that patient has been identified and placed on the Olmstead list. A patient with mental illness does not receive the very services necessary to ameliorate specific barriers to their discharge until the treatment team has decided the patient is ready for discharge (and at least 60 days have passed since the patient was admitted). This approach makes it almost impossible for patients with mental illness to get the continuity of care they so desperately need. Moreover, as described more fully below, our investigation has identified significant flaws in the assessments conducted in the State Psychiatric Hospitals. The first, and most fundamental step in formulating an accurate diagnosis and plan of care for individuals with developmental disabilities or mental illness is to conduct an adequate assessment. The initial failure to identify a patient’s needs leads, almost inevitably, to a poor plan for treatment while in the institution and upon discharge. Because those with mental illness depend on these assessments for placement on the Olmstead list, their inadequacy amounts to yet another barrier to discharge. All patients on the State’s Olmstead lists, no matter their disability, frequently remain institutionalized in the State Psychiatric Hospitals due to a lack of appropriate services in the community. The Supreme Court, in discussing the boundaries of the integration mandate, wrote that the State could show it was

3

Consequently, the State’s Olmstead list for persons with

developmental disabilities has more than ten times as many people as the Olmstead

list for persons with a diagnosis of mental illness. Of the 884 individuals in the

State Psychiatric Hospitals with a primary diagnosis of a development disability,

765 individuals are listed on the September 2009 Olmstead list. Of the 595

individuals with a primary diagnosis of a mental health disability, only 57

individuals are listed.

- 10 making reasonable accommodations for individuals with disabilities desiring community placement, if:
the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated . . . . Id. at 605-06. The State’s own Olmstead Monthly Progress Report demonstrates Georgia’s failure to maintain a waiting list that moves at a reasonable pace. In September 2009, there were 765 persons with developmental disabilities on the Developmental Disabilities Olmstead list. In the previous year, 189 persons had been discharged from this list. But, the report shows that 150 persons with developmental disabilities were admitted to the State Psychiatric Hospitals and placed immediately on the Olmstead list, so that the net number of persons placed into a community setting was minuscule. Moreover, the number of placements slowed considerably in the last quarter for which data was provided (i.e, in July, August and September). The pace of placement also slowed considerably over the past year. The report shows that the average number of days a person on the Developmental Disabilities Olmstead list waited for community services doubled in the past year, and 86 people were still waiting for services after the date set by their treatment team for their discharge had come (and gone). Both of these indicators increased dramatically over the course of the year, a trend that shows that the State’s ability to secure community placements is becoming more—not less—limited. The Monthly Progress Report for the Adult Mental Health Olmstead list also demonstrates the State’s failure to maintain a reasonable pace for discharge of these individuals. Only 57 persons were listed in September 2009, although the total census of persons with mental health disabilities at the end of September was 595.4 The State designated only 10% of the institutionalized population of adult mental health consumers eligible for the Olmstead list (and, thus, for the person-centered transition planning process that will identify and marshal resources to support the person upon discharge). The Monthly Progress Report shows that, in most months, the number of persons discharged from the list is roughly equal to the number added to the list—the number of persons in this population who are supported in the community thus appears to remain static. The average number of days a consumer spent waiting for services after being placed on

4

The State’s Olmstead list does not appear to include forensic patients,

many of whom have a primary diagnosis of a mental health disability.

- 11 the Adult Mental Health Olmstead list doubled in the past year, to an average of 107 additional days in the institution. The prolonged institutionalization of persons on Olmstead lists violates the integration mandate of federal law. Waiting lists that deinstitutionalize such small percentages of qualified patients do not evidence “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings.” See Olmstead, 527 U.S. at 606.
The lack of available community services continues to be a barrier to successful discharge of institutionalized persons who could be served in the community with appropriate supports. The State has known for years of this, and other barriers to discharge, but has not taken effective steps to address them. The State’s 2003 Olmstead Plan outlines its plans to achieve compliance with the ADA’s integration mandate. See State of Georgia Olmstead Strategic Plan, March 2003, available at http://www.files.georgia.gov/DHR/DHR_CommonFiles/, 16739455Olmstead_Plan_Perdue.pdf (“The Olmstead plan”). In its Plan, the State—more than six years ago—identified the following urgent needs and goals that remain unaddressed:
Affordable and accessible housing is essential to the transition of individuals from institutions to community-based settings. Individuals with disabilities, including some currently living in institutions, can live successfully in the community. To succeed, they need decent, safe, affordable and accessible housing that is separate from, but provides access to, the community-based supports and services they want and need to live as independently as possible. Nationally, there is a critical shortage of affordable housing. Similarly, Georgia does not have enough affordable housing. Home and Community-Based Waiver Programs and the Medicaid Rehabilitation Option do not pay for room and board. Funding for implementation of modifications and subsidized rental and home ownership programs is insufficient. The use of some subsidies to support home ownership has only recently become a possibility. Goal: Residential capacity and housing options for individuals with disabilities and older adults are increased. Action 1: The State should take steps to promote change in housing policies and model more effective strategies for using governmental housing programs. Action 2: The State should call upon state agencies to partner in the development and implementation of strategies to address the housing needs of individuals with disabilities and older adults.

- 12 Action 3: The State should encourage public/private/family partnerships to address the housing needs of individuals with disabilities and older adults. The Olmstead Plan at 16. The State’s actions belie these statements—in 2009, budget cuts in the Department of Behavioral Health have adversely affected housing opportunities in the community, and the State’s Community Service Boards (“CSBs”) perceive a move to redirect scarce funds in future proposed budgets away from community mental health services to the institutions. See Letter from Ellice P. Martin, President, Georgia Association of Community Service Boards to Commissioner Frank E. Shelp (October 30, 2009) (citing State funding cuts in 2009 and proposed re-direction described in budget briefings for fiscal years 2010 and 2011). Without a continuum of services including healthy and fully functional community-based programs, the CSBs have warned, the institutions cannot be stabilized. Id. Our experts concur. The population inappropriately confined to the State Psychiatric Hospitals includes many patients with previously-identified barriers, and we saw little or no evidence that the barriers have been addressed in treatment or in resource development, in violation of constitutional standards and the ADA. For example: 1. Staff at each hospital we toured assert that there are insufficient Assertive Community Treatment teams to provide services to the discharged patients who require them. Our expert consultants concur. This deficiency was also previously identified in 2005 in the State’s own Mental Health GAP analysis. 2. Individuals with developmental disabilities, in particular, are institutionalized for long periods while waiting for funding of community slots. 3. Individuals with developmental disabilities face unnecessary or premature admission to CSH, the largest of the institutions housing people with developmental disabilities, because the supports in the community for crisis intervention do not appear adequate to handle the normal behavioral variability of some persons with developmental disabilities. See, e.g., MCG Report on CSH at 9. 4. Lack of income and employment have long been identified as barriers to successful community living, yet the State Psychiatric Hospitals receive no support from the State’s office of vocational rehabilitation. Supported Employment programs have suffered from budget cuts and services cutbacks in each of the past several fiscal years. See, e.g., Governor Sonny Perdue’s Mental Health Service Delivery Commission Final Report at 37 (December 4, 2008) (“Mental Health Commission Report”).

- 13 5. The State Psychiatric Hospitals currently function as the “front door” to
accessing mental health services in the State, instead of as a part of a continuum of care for those with chronic mental illness for whom community-based services and supports have been exhausted. See, e.g., Mental Health Commission Report at 9. Finally, a significant portion of the institutionalized persons in the State Psychiatric Hospitals are patients who are continually discharged and re-admitted for short lengths of stay. Extremely high rates of re-admission at the State Psychiatric Hospitals are well documented. Audits commissioned by the State years ago, including the 2005 Georgia Mental Health Gap Analysis study, concluded that a 30-day re-admission rate 55 percent greater than the national average contributed to overburdening the State Psychiatric Hospitals. These conditions persist today. For example: 6. In each quarter of fiscal year 2009, the State missed its own targets for reducing re-admissions. Statewide Quality Management Report at 25. 7. A review of data produced by WCGRH, CSH, and ECRH revealed that each of these hospital’s re-admit rates significantly exceed the national average.5 See CSH Quality Management Report at 192; ECRH Quality Management Report at 47-49; WCGRH Quality Management Report at 72-74. The reports produced by SWSH and GRHS call into question whether those hospitals are tracking re-admission rates at all, as SWSH’s report states only that “[n]o statistical improvement in the number of 30-day readmits” without providing a single piece of data, and GRHS’s report fails even to mention re-admit rates. See SWSH Quality Management Report at 201-204, GRHS Quality Management Report. 8. The State continues to discharge hundreds of patients each year to homeless shelters and recent data from CSH shows that the rate of discharges to shelters increased in the past few months.6

5

For fiscal year 2007, the national average for patients re-admitted to

state psychiatric hospitals within 180 days of discharge was 19.9 percent. In

Georgia, it was 26.1 percent. Substance Abuse & Mental Health Services

Administration, National Outcome Measures Georgia State Summary,

http://nationaloutcomemeasures.samhsa.gov/Outcome/StateReportSummary.aspx?i

d=GA.

6

In Olmstead, the Court made clear that discharge of patients to

homeless shelters is inappropriate. 527 U.S. at 605.

- 14 9. Hundreds more patients, particularly those destined to return repeatedly,
are discharged to a variety of unsupervised locations, including personal care homes, that demonstrably do not provide the level of support necessary to support a person with severe mental illness. The work of admitting patients and providing the crisis stabilization necessary for new admissions leaves an already overburdened system with fewer staff resources to provide treatment planning, interventions, and supervision for patients. Moreover, frequent re-admissions are extremely detrimental to these individual patients, disrupting their recoveries and their lives in the community. Frequent relapses and re-admissions may progressively worsen a patient’s serious and persistent mental illness and make patients more intractable to treatment. Thus, constitutional standards demand that treatment teams routinely examine and address issues that cause patients to be admitted repeatedly to the hospital. Our teams of expert consultants examined dozens of treatment records and discharge plans for individuals with high rates of re-admission at ECRH, GRHS, SWSH, CSH, and WCGRH and found that they failed to meet constitutional standards. In multiple cases of repeated admissions, we saw no evidence that the treatment teams examined or addressed the factors that led to re-admission for an individual patient and altered the patient’s treatment from a previous stay at the hospital.7 There is also no systematic analysis or action to address reasons for readmission. The State has not acted on the recommendations of the 2008 Mental Health Commission Report, which concluded that developing a comprehensive, statewide supported housing program would help reduce the number of individuals with mental illness in jails, prisons, and shelters. Individuals discharged to shelters, bus terminals, and similar locations without adequate supports and services (including, in August 2009, a “car or abandoned building”) result in the highest number of re-admissions to the hospitals, and they also are frequently detained or arrested by the police and confined to a jail or prison. Such discharges are shocking departures

7

A remedial effort still in its infancy at the State Psychiatric Hospitals

involves creation of the position of Repeat Admissions Review Coordinator

(“RARC”), required to perform an analysis of past admissions for individual patients

with multiple readmissions, and to present that information to the individual’s

treatment team. At CSH, this effort was further advanced than at the other

hospitals, and RARC staff were beginning to identify barriers to successful

discharge for individual patients, identifying, for example, issues with medication

non-compliance or substance abuse. Appropriate action to address those barriers is

not yet evident from our review of case files.

- 15 from generally accepted professional standards, perpetuate a revolving door of multiple re-admissions, and violate federal law. Failure to address long-standing deficiencies in the community mental health system, many of which were identified by the State’s own audits, contributes to needless institutionalization of patients for whom supports necessary to live successfully in the community do not exist. In addition, the failure to provide discharge and transition planning services consistent with constitutional standards, federal statutory law, and the State’s own policies and procedures, contributes to the unjustified segregation of individuals with disabilities in the State Psychiatric Hospitals.
Our expert consultants reviewed scores of recent discharge plans while on site at ECRH, GRHS, GRHA, SWSH, CSH, and WCGRH and found that they substantially depart from generally accepted professional standards. The discharge plans we reviewed do not describe, identify, or secure the community resources necessary to serve patients in the community. An essential component of an adequate discharge plan for any patient is linkage to necessary community supports. State and facility policies, procedures, and strategic plans confirm the critical importance of community coordination, yet we saw no evidence that these policies are implemented in the great majority of cases. Failure to ensure continuity of care in the community has resulted in failed discharges and in long delays for placement into the community. Examples are detailed in our attached letters, which are incorporated by reference herein. Additional examples include: 10. In December 2008, a patient at SWSH was discharged to the community
while on heightened observation as a suicide-risk precaution, a decision which SWSH later concluded was due to pressure to reduce the hospital’s census. This patient committed suicide nine days later. 11. A patient at GRHS with a history of more than 100 hospital admissions was discharged to “wherever he goes.” His prognosis was that “he would return in a week.” 12. Over 100 patients in the past year were discharged from CSH to shelters, including 33 in the last three months. 13. In addition to dozens of patients discharged to shelters, two dozen different patients at SWSH were discharged in recent months to locations such as “streets” and “car or other abandoned building.” 14. In the past year, 39 patients at WCGRH were discharged to locations such as “streets (public park, bridge),” “car or abandoned house/building,” “night shelter,” “hotel/motel,” and “crisis or emergency center.”

- 16 The State admits in its POI Report that essential steps to remedy these systemic deficiencies have not yet been undertaken by the State Psychiatric Hospitals. For example, the POI Report states that development and implementation of treatment goals that address barriers to successful placement in the community will begin in January 2010. See POI Report at 28 (emphasis added). And it sets January, 2010 as the target compliance date for identifying barriers that prevent a specific patient from transitioning to a more integrated setting. The State’s failure to prioritize remedial actions to address unnecessary institutionalization violates federal law. In addition, those patients unnecessarily segregated in the State Psychiatric Hospitals contribute to crowded conditions and insufficient numbers of staff to supervise so many patients, which, in turn, contributes to inadequate treatment and supervision of patients and high rates of patient harm. The State Psychiatric Hospitals’ failure to provide sufficient treatment programming to patients also seriously impedes Olmstead compliance. At each of our site visits, we noted patients with little or no treatment activity, and much of the available activity was best characterized as diversionary, not treatment. There is a stark lack of treatment for patients with co-occurring diagnoses of substance abuse. It was evident in a significant number of records that this issue was one of the most serious impediments to community placement and part of the reason for frequent re-admissions to the State Psychiatric Hospitals. There are no vocational services provided to patients on mental health units, aside from a handful of patients employed at several of the Hospitals in grounds keeping or food service activities. The lack of resources for supported employment was highlighted by the State’s own 2008 Mental Health Commission Report, which stressed the importance of employment for individuals with mental illness to provide “more independence and hope, as well as a daily motivation to continue toward recovery.” Mental Health Commission Report at 7. B. Patients are Subject to Serious, Frequent, and Recurrent Harm Patients confined to the State Psychiatric Hospitals have a right to live in reasonable safety. See Youngberg, 457 U.S. at 315, 322. Yet patients in the State Psychiatric Hospitals are not reasonably safe. Critical incidents at the State Psychiatric Hospitals in recent months demonstrate that patients throughout the State Psychiatric Hospitals continue to suffer preventable harm due to deficient practices: 1. In August 2008, a patient at WCGRH assaulted and killed another patient. Earlier that morning, the victim had assaulted the aggressor, and both patients had a history of aggression. Nevertheless, when the aggressor later

- 17 verbally accosted the victim, and the victim retaliated by assaulting the aggressor, nearby staff, one of whom was an instructor in techniques for de-escalation of aggression, did not physically intervene. The aggressor then assaulted the victim, who fell and struck his head, knocking him unconscious and causing blood to trickle out of his ear. Contrary to hospital policy, staff tried to lift the victim, causing him to strike his head a second time. Staff never called a code blue, and an ambulance did not arrive for 50 minutes. The victim died a few days later from blunt force trauma to the head. The aggressor was transferred to CSH, and his discharge summary from WCGRH to CSH contained no information about this incident or the extent of his aggressive behaviors. 2. In September 2008, a patient at CSH with a history of three serious suicide attempts that required admissions to an Intensive Care Unit was discharged with a 5-day supply and 30-day prescription for amitriptyline, a psychoactive anti-depressant. As opposed to other anti-depressants that could have been prescribed, amitriptyline is particularly lethal at high doses. The patient died from an overdose of amitriptyline four days later. 3. In October 2008, a patient at WCGRH died of a ruptured spleen due to blunt force trauma. Earlier that morning he had complained of not feeling well. Hours later, when he was found naked on the floor in his own urine, he was treated with antipsychotic medication despite displaying no documented psychotic symptoms. The mortality review focused primarily on the timeliness of the code blue call and never addressed nor investigated how the patient suffered trauma so significant that it ruptured his spleen. 4. On April 5, 2009, a patient at CSH assaulted and killed another patient. The aggressor was supposed to be on close observation because he had allegedly murdered two other individuals in the past, including his jail cell mate immediately before his transfer to CSH in January 2009. Systemic deficiencies contributing to this incident include the failure of staff to supervise patients, and of hospital supervisors to supervise staff. 5. The victim of an admitted rape at SWSH in July 2009 had a prior sexual encounter with the aggressor. The prior encounter had been neither investigated nor addressed in treatment. 6. A patient in GRHS committed suicide on August 27, 2009, months after our site visit in which we warned the facility of the risk inherent in its deficient suicide assessments and the inadequacy of its risk management system.

- 18 We have repeatedly highlighted the State’s deficient practices regarding patient-on-patient aggression and suicide risk during our site visits, technical assistance, and in our correspondence to the State. See e.g., Attachments 1-9. Nevertheless, incidents of violent aggression continue and numerous living spaces at the State Psychiatric Hospitals continue to contain environmental hazards that pose significant risks to the health of patients. For example, the patient who committed suicide at GRHS in August 2009 tipped the bed up on end and used one of the legs as a tie off point on which to hang himself. Our consultant has warned the State of the dangers posed by these beds throughout our investigative and compliance tours. Despite these warnings, when we visited CSH in November 2009, two months after the suicide at GRHS, we found a bed in the seclusion room—a room that a patient in crisis might be sent to for their own protection—that could similarly be tipped on end. The mattress on the bed had a plastic covering on the bottom that easily could be removed, giving individuals another potential instrument by which to hang themselves. When we removed part of the plastic covering, large, industrial-size staples came out of the mattress that could also be used for self harm. Indeed, we discovered one individual during our visit to CSH who had repeatedly abused herself by placing staples into various parts of her body, including one that had to be surgically removed. The State’s failure to address these evident environmental hazards, despite our repeatedly bringing them to the State’s attention, is deeply troubling. To protect its patients in accordance with constitutional standards, the State Psychiatric Hospitals should have in place an incident and risk management system that helps to prevent incidents and ensures appropriate corrective action when incidents do occur. An effective incident and risk management system depends on: (1) accurate data collection and reporting; (2) thorough investigations; (3) identification of actual or potential risks of harm, including the tracking and trending of data; and (4) implementation and monitoring of effective corrective and/or preventive actions. The State Psychiatric Hospitals’ incident and risk management systems do not meet constitutional standards, placing the individuals in the State Psychiatric Hospitals at significant risk of serious and immediate harm. State and facility incident management policies and procedures do not meet constitutional standards, because they lack sufficient incident categories and reporting requirements. Even the incident data the State Psychiatric Hospitals do gather, however, is highly inaccurate. During our visit to GRHS, for example, we found suicide attempts during our record review that were not captured in the hospital’s suicide attempts data. Without accurate and comprehensive gathering of incident data, the State is ill-equipped to recognize emerging trends before life-threatening conditions arise.

- 19 Furthermore, the State Psychiatric Hospitals do not adequately analyze the data they currently gather to prevent harm from occurring. Therefore, the risk management systems at the State Psychiatric Hospitals are not serving one of their essential purposes: to anticipate potential harm and mitigate the risk of that harm occurring. This is due, in part, to the inadequacies of the policies and procedures themselves, but it is also due to a failure to train individuals on incident and risk management policies and procedures and to monitor performance to make sure that these policies and procedures are followed. The State Psychiatric Hospitals routinely fail to implement corrective actions in response to known risks, and when corrective actions are implemented, they often are not implemented in a timely manner. Indeed, as indicated previously, many environmental hazards continue to exist at the State Psychiatric Hospitals, despite repeated warnings about these hazards. For example, we noted during earlier visits to the State Psychiatric Hospitals that we found situations in which the door to a seclusion room had jammed, causing the patient’s agitation to increase visibly while hospital staff worked to open the door. During our review at GRHS, we found that the doors to the seclusion rooms continued to jam. On the adult mental health units at CSH, we observed numerous doorknobs and similar physical features that pose known suicide risks, despite our warnings about the risks these features posed during visits to some of the State Psychiatric Hospitals more than two years ago. The State’s failure to address known suicide hazards bespeaks deliberate indifference to potential deaths. The investigations of incidents occurring at the State Psychiatric Hospitals also are inadequate. The investigations often omit information that is critical to finding the root cause of the incident, preventing the State and hospital from taking adequate corrective action. We reviewed, for example, numerous incidents that suggested there may have been a breakdown in supervision of patients, but critical information such as staff assignments and staffing ratios was not included in the investigation. Accordingly, the investigations did not result in any corrective actions regarding staffing or supervision levels. This is particularly problematic, as our review found that inadequate staffing and supervision have resulted in grave harm at the State Psychiatric Hospitals, and that harm will continue if it is not appropriately addressed in investigations and corrective actions. Finally, the quality management systems at the State Psychiatric Hospitals do not meet constitutional standards. Like the incident and risk management systems, the quality management systems do not collect sufficient information to ensure that the care and treatment provided at the State Psychiatric Hospitals meets constitutional standards. Without collecting sufficient information, the State Psychiatric Hospitals cannot assess appropriately the adequacy of the services they provide. At this point, however, the State Psychiatric Hospitals do not even

- 20 adequately analyze the limited information they do collect to ensure that their services meet constitutional requirements. As a result of the inadequacies in the State’s incident, risk, and quality management systems, patients are routinely exposed to actual and potential harm in violation of their constitutional rights. C. Mental Health Treatment and Rehabilitation Is Inadequate
Patients in the State Psychiatric Hospitals have a constitutional right to receive adequate mental health treatment. Donaldson, 493 F.2d at 520. The mental health services at the State Psychiatric Hospitals, however, violate constitutional standards. Contrary to constitutional standards, treatment planning is not person-centered, individualized, or integrated across disciplines. Psychology services, physical, nutritional and speech therapy, and behavioral management services are particularly deficient. Each of these failures affects the quality and effectiveness of the patients’ treatment plans, which are the foundation of an adequate mental health care program. Many of these deficiencies also directly threaten patients’ physical health and well being. Moreover, as was the case at GRHA and NWGRH, the failure to treat patients’ mental health needs while hospitalized has frequently led to failed discharges and to repeated hospitalizations in violation of Olmstead.
1. Assessments are Inadequate Mental health treatment in an institution begins at the time of admission. An admissions work-up is an integral part of the course of hospitalization; it establishes the initial diagnosis and begins the course of treatment for patients as they begin their hospital stay. Our expert consultants reviewed a plethora of assessments while on site at ECRH, GRHS, SWSH, CSH, and WCGRH and found that they substantially departed from generally accepted professional standards. At a minimum, an initial assessment should include: (1) an adequate review of presenting symptoms and the patient’s mental status; (2) a provisional diagnosis and differential diagnosis that provides a decision tree by which diagnosis and treatment options may be clarified over time; and (3) a plan of care that includes specific medication and/or other interventions to ensure the safety of the patient and others. As more information becomes available, the assessment must be updated to include: (1) a history of the presenting symptoms from the patient based on the patient’s level of functioning and from collateral sources, as available; (2) the progression of the symptoms and setting within which the symptoms occur; (3) the relevant historical findings regarding the patient’s biopsychosocial functioning; (4) a review and critical examination of diagnostic conclusions made in the past in light of new information; (5) a review of medical and neurological problems, if any, and their impact on the current status of symptoms and treatment; and (6) a complete mental status examination.

- 21 In many cases, initial assessments at the State Psychiatric Hospitals lack critical information. This failure occurs, in part, because the assessment forms used at the State Psychiatric Hospitals lack essential elements, but also because the clinicians performing the assessments often fail to complete the assessment form or appear to skip certain elements of the assessment altogether. During our tour of GRHS, for example, we found that suicide risk assessments were not completed at all for five individuals. The assessments that are done often lack information regarding the precipitating factors that led to admission, as well as relevant facts regarding the individual's psychosocial, developmental, educational, medical, and substance abuse history. At CSH in November 2009, we found numerous cases of conflicting diagnoses due to inadequate assessments, and we also noted significant under-diagnosing of serious conditions, such as substance abuse. Similar problems were noted during our review of the other State Psychiatric Hospitals. Patients in the State Psychiatric Hospitals routinely are given tentative and unspecified diagnoses (including “rule out” and “not otherwise specified” (“NOS”) diagnoses) as a result of these flawed assessments. With some exceptions, we found little evidence of further assessments or observations to finalize these diagnoses. Because different psychiatric conditions can have similar signs and symptoms, it is important for mental health professionals to clarify diagnoses to ensure that a patient’s treatment is appropriate for his or her actual mental health needs. At the State Psychiatric Hospitals, however, NOS diagnoses and contradictory diagnoses persist for months and over multiple admissions, with no sign of further diagnostic testing or refinement. The prevalent use of the NOS diagnosis reflects an inadequate diagnostic evaluation process and contributes to the lack of specificity in treatment plans. This pattern of excessive numbers of NOS diagnoses was a critical deficiency also noted by MCG in its reviews two years ago, and the State Psychiatric Hospitals continue to fail to address it. The State Psychiatric Hospitals’ failures in the preliminary stages of assessment and diagnosis, as well as their failure to reassess patients to refine diagnoses, run afoul of constitutional standards. Patients receive or are at risk of receiving treatment that, at best, is unnecessary and, at worst, may actually exacerbate their mental illnesses, causing them to suffer from the side effects of inappropriate medications, and placing them at risk of serious harm. The result is that the actual mental illness is often unaddressed, placing patients at risk of prolonged institutionalization and/or repeated hospital admissions in violation of Olmstead. Moreover, fatal harm can result from an inadequate assessment.8

8

Although this letter does not pertain to GRHA, we note that its

assessment of a patient contained inaccurate information concerning her

- 22 Assessment information, even when compelling, frequently does not translate into appropriate treatment. The State Psychiatric Hospitals’ failure to provide proper treatment can also result in serious harm. 2. Treatment Planning is Inadequate In accordance with generally accepted professional standards, each patient should have a comprehensive, individualized treatment plan based on the integrated assessment of mental health professionals. Treatment plans should define the goals of treatment, the interventions to be used in achieving these goals, and the manner in which staff are to coordinate treatment. The treatment plans also should detail an integrated plan designed to promote the patient’s stabilization and/or rehabilitation so that the patient may return to the community. Taken together, treatment plans constitute the standard against which a facility evaluates the effectiveness of the services it offers. In this sense, they are critical to a hospital’s ongoing efforts at quality improvement. 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 clinical disciplines; (2) the use 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, promote functional independence, and assist community integration; (4) the identification of appropriate interventions that will guide staff as they work toward those goals; and (5) ongoing assessments and, as warranted, revision of the treatment plan. 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 ensuring that relevant and critical patient information is obtained and considered. Our expert consultants reviewed dozens of treatment plans and attended treatment team meetings during each of our site visits to ECRH, GRHS, SWSH, CSH, and WCGRH and found that treatment plans routinely substantially depart from generally accepted professional standards. Treatment plans frequently are minimalist, generic, and reflect neither the true scope of patients’ needs nor an integrated, coherent plan for treatment. When the treatment team fails to identify
compliance with treatment and the extent of her thought disorder. This patient’s family opposed her discharge on these bases, but she was nonetheless discharged; shortly after her release this patient acted on her previous threats and killed a family member. This incident highlights the dangers of the inadequate practices found throughout Georgia’s State Psychiatric Hospitals.

- 23 or address all of a patient’s presenting concerns, that patient is deprived of treatment for those concerns, and frequently subject to a longer period of institutionalization or to a repeat admission when those conditions or behaviors become barriers to successful community integration. Treatment plans do not reflect interdisciplinary planning and corroboration, and contradictory assessments from different disciplines are neither addressed nor reconciled. Additionally, they often provide no clear alternatives if the initial, vague interventions prove ineffective, leaving staff with few alternatives to restraint, seclusion, and PRN medications to address challenging behaviors. We typically found generic treatment objectives for patients with psychotic diagnoses and substance abuse diagnoses. The recurrence of near-identical goals and objectives for so many patients makes evident the non-individualized nature of the State Psychiatric Hospitals’s treatment plans.
The State Psychiatric Hospitals’ treatment planning process also departs from constitutional standards. From initial diagnosis and assessment to the development of skills and functioning necessary for recovery and community reintegration, the State Psychiatric Hospitals’ treatment planning process fails to meet the fundamental requirements for the treatment and rehabilitation of its patients. As a result, patients’ actual illnesses are not properly assessed and diagnosed; patients are not receiving appropriate treatment and rehabilitation; patients are at risk of harm from themselves and others; patients are subject to excessive use of restrictive treatment interventions; and patients are at increased risk of relapses and repeat hospitalizations. For example, a 2007 MCG report noted that patients assessed at elevated risk of harm do not receive the heightened supervision called for by policy. This deficiency persists—in our recent visit to CSH, we noted a patient who was assessed as a moderate to high risk of suicide, but did not receive heightened supervision until after she attempted suicide. Further, patients’ options for discharge are significantly limited, resulting in unnecessarily prolonged hospitalization, and, with respect to forensic patients, prolonged involvement in the criminal justice system.
3. Behavioral Management Services Are Inadequate Behavioral support plans (“BSPs”) at the State Psychiatric Hospitals are virtually nonexistent, and those that exist largely are inadequate and not well integrated into overall treatment. Many patients who were repeatedly subject to seclusion, restraint, and/or administration of PRN medications—measures that should be reserved for emergency crisis intervention—have no behavioral supports in place. This is an egregious departure from generally accepted professional standards. Routinely, even when a treatment team makes a recommendation for a BSP, these plans are not developed and implemented in a timely manner. For those

- 24 few patients with behavioral management plans, treatment teams routinely fail to revise those plans, notwithstanding evidence of continuing or escalating problem behaviors.
The few behavioral assessments in place at the State Psychiatric Hospitals substantially depart from generally accepted professional standards. In some cases, patients with behavior plans had no functional assessments of the problematic behaviors to support the behavior plan. In others, the functional analysis was deficient in one or more significant ways: many failed to hypothesize the function of the challenging behavior; did not consider antecedent, environmental, or health factors that influence a behavior; did not contain sufficient baseline data; failed to identify target or replacement behaviors; and suggested inappropriate and even dangerous replacement behaviors. These inadequacies in behavioral assessments undermine all subsequent behavioral treatment planning. This is especially true for patients with specialized needs or identified issues, like aggression. For example, 1. A BSP developed for a patient at GRHS in June 2009 did not mention nor
address an incident in which this patient grabbed and ingested cleaning fluid two weeks earlier. 2. A patient at GRHS suffered multiple restraint and PRN episodes, including three restraints and nearly-daily PRNs in the week before a psychological evaluation, yet the evaluation did not recommend a behavioral assessment nor a BSP for this patient. 3. In the case of the murder of a patient by another patient, although the aggressor was alleged to have committed two other murders before his admission, there was no BSP put in place until following the murder at the hospital. 4. A patient that struck a peer had a BSP implemented shortly thereafter. But no functional assessment was completed and, a few months later, he committed three more assaults over a seven day period. Despite this, the chart did not include any documentation on the plan’s effectiveness since its implementation, nor any reflection on a need to update the plan due to the outbreak of aggressive incidents. Behavioral data in individual charts, when present at all, typically is not current, although we saw improved data collection in our most recent site visit to CSH. The failure to implement timely behavioral supports, to evaluate and revise behavior plans as clinically indicated, and to collect objective data with which to

- 25 support clinical decisions are all egregious departures from generally accepted professional standards. D. Seclusion and Restraints Are Used Inappropriately
The right to be free from undue bodily restraint is the core of the liberty protected from arbitrary governmental action by the Due Process Clause. Youngberg, 457 U.S. at 316. Thus, the State may not subject patients of the State Psychiatric Hospitals to seclusion and restraint “except when and to the extent professional judgment deems this necessary to assure [reasonable] safety [for all residents and personnel within the institution] or to provide needed training.” Id. at 324. Generally accepted professional standards require that seclusion and restraints: (1) will be used only when persons pose an immediate safety threat to themselves or others and after a hierarchy of less restrictive measures has been exhausted; (2) will not be used in the absence of, or as an alternative to, active treatment, as punishment, or for the convenience of staff; (3) will not be used as a behavioral intervention; and (4) will be terminated as soon as the person is no longer a danger to himself or others. The State Psychiatric Hospitals’ use of seclusion and restraints, including medication used as a chemical restraint, substantially departs from these standards and exposes patients to excessive and unnecessarily restrictive interventions.
Given the deleterious effects of seclusion and restraint, and the fact that these measures restrict patients’ rights and their ability to receive appropriate care, generally accepted professional standards require that institutions like the State Psychiatric Hospitals reduce their use of seclusion/restraint by addressing behavior problems with less intrusive and restrictive strategies, and that, if used, physical restraint and seclusion should be minimized, monitored, and documented, in accord with generally accepted professional standards. We found that, even at hospitals where there have been efforts to reduce seclusion and restraint, such as WCGRH and CSH, the definition of seclusion and restraint used by the hospital appears not to include all practices that constitute seclusion and restraint, and there have been troubling increases in the use of “stat” medications, often without appropriate modification of the individual’s behavioral treatment.
Seclusion and restraint practices at the State Psychiatric Hospitals include violations of both policy and generally accepted practice. We found instances where restraints were used unnecessarily, such as when a patient was sleeping, or after a patient had walked back to her room to be restrained. In many cases, the criteria listed for release of restrained patients were generic and did not reflect the specific behaviors that had warranted the restrictive procedures. At times, the criteria were extreme and inappropriate, such as requirements that the patient be able to state the reasons for behavior and contract that the behavior will not occur again.

- 26 The facilities also lacked a system whereby patients that were high users of restraint or seclusion were brought to the attention of interdisciplinary teams so that the issue could be addressed. Moreover, seclusion and restraint incidents were not adequately reviewed, and the reviews that were conducted sometimes revealed inappropriate and dangerous attitudes toward the use of seclusion and restraint. For example, the question “What could have been done different?” on the debriefing form often elicited a response of “nothing,” and the question, “What helped gain control” sometimes was answered with “five point restraints and PRN.” These responses reveal that staff members do not understand the purpose of the process—to discover the precursors to the behavior so that the need for seclusion and/or restraint can be mitigated. E. Medical Care Is Inadequate
Although patients in the State Psychiatric Hospitals are entitled to adequate health care, see Youngberg, 457 U.S. at 315, basic medical care and nursing services substantially depart from generally accepted professional standards. The State Psychiatric Hospitals fail to provide basic medical care and provide inadequate clinical oversight, pharmacological practices, medication administration, infection control, physical and nutritional management, emergency preparedness, and staffing. Some of these failures are particularly germane to the State Psychiatric Hospitals’ care and treatment of individuals with developmental disabilities. Our findings regarding medical care echo many of those previously made in the State’s own survey by the Medical College of Georgia.
1. Failure to Provide Basic Medical Care Effective medical services depend on timely, thorough assessments and monitoring. Generally accepted professional standards require assessments to be designed to collect specific, individual data to assist the team and the patient with case formulation, diagnosis, and treatment planning. The quality of assessments we reviewed at the State Psychiatric Hospitals varied considerably but, for the most part, they substantially departed from these standards. At best, the assessments were superficial and had little to no clinical relevance. Based on our review, the State Psychiatric Hospitals do not have systems in place to ensure that assessments and documentation are adequate, timely, complete, and accurate. Potential health concerns that are not even identified due to inadequate assessments clearly do not receive adequate monitoring. Health care plans at the State Psychiatric Hospitals are alarmingly inadequate. The purpose of a health care plan is to guide therapeutic interventions systematically, document progress, and achieve the expected individual outcomes. These plans should be individualized and should identify priorities for care and

- 27 interventions that are consistent with generally accepted professional standards. Many plans we reviewed had essentially identical goals, objectives, and recommendations, reflecting a lack of individualization and no identification of priorities in a given patient’s care. The listed interventions provided no guidance regarding treatment modalities, and the plans failed to include proactive interventions addressing risk factors. They provided no clinical template for health care and failed to identify and address significant health issues so that positive outcomes may be achieved. Many patients suffered acute health issues; their health care plans failed to address these issues, and were not modified to prevent recurrences. Other patients suffered changes in physical health status, some necessitating transfer to a hospital emergency rooms, with no subsequent change in their health care or monitoring plans. Changes in physical health status often were not assessed in a timely manner, and in some instances, did not result in any assessment whatsoever.
We reviewed health care plans for patients at risk from a variety of conditions, including patients at risk from the side effects of psychotropic medications, and patients at risk for choking and aspiration. The plans we reviewed generally did not include sufficient proactive steps to monitor and treat these and other conditions that place patients at significant risk of harm. For example, the State Psychiatric Hospitals do not routinely use timely and accurate diagnostic testing to detect movement disorders that may develop as a known, and irreversible, side effect of certain medications. This is an egregious departure from generally accepted practice, and places patients at an undue risk of significant and irreversible harm.
2. Inadequate Clinical Oversight The major role of clinical oversight in any institution is to ensure that generally accepted professional standards of practice and accountability are maintained. These standards require that medical and nursing departments have a quality assurance program. Such a program provides internal monitoring for a these departments and permits a facility to identify its problematic areas and correct them. A regular review of provided services also allows the clinical director and the nursing department to ensure that the services they purport to provide are those that they actually provides. A quality assurance program for nursing consists of a number of monitoring instruments that measure the quality of care and services that are provided by the nursing department. These data should be regularly reviewed, analyzed, tracked, and trended. When these analyses indicate that the nursing department is not providing quality care, a plan of correction should be developed and implemented to address the problem. Monitoring permits nursing management and facility

- 28 administration to be aware and responsive to the needs of a department. It also assists nursing management in determining what types of interventions are needed when problem areas are identified and in tracking outcomes after interventions have been initiated. Nursing and clinical disciplines throughout the State Psychiatric Hospitals utilize inadequate monitoring tools that do not collect reliable and clinically reliable data.
Robust peer review is an essential element of an adequate quality assurance program for clinical services, and this review is not evident in the State Psychiatric Hospitals. The disciplines of nursing, occupational, physical and speech therapy conduct no qualitative peer review at all. The mortality review process is one area in which critical peer review is prerequisite to an effective process that identifies problematic trends and necessary corrective actions. At each of the State Psychiatric Hospitals we visited, we found that the mortality review process failed to identify adverse trends in a timely manner and to implement appropriate corrective actions, and, as a consequence, missed opportunities to mitigate risk of future harm.
3. Pharmacology Practices are Inadequate Medication practices at the State Psychiatric Hospitals substantially depart from generally accepted professional standards in several critical respects. Contrary to accepted practice, pharmacological treatments are frequently the only interventions used to manage symptoms and behaviors. Many patients receive psychotropic medication—or multiple medications—for the purpose of sedation or to manage behavior, without underlying behavioral support plans. We also found medication prescription practices that are inconsistent with generally accepted professional standards. Polypharmacy, the practice of prescribing multiple medications to address the same indications, is widespread, and many records lack appropriate justification for this practice. Moreover, a number of medications are prescribed (and in some instances, not prescribed) in a manner inconsistent with generally accepted professional standards. For example, our review of patients who were prescribed medications with known risks found a pattern of deficient justification for the use of high-risk medications, deficient assessment and monitoring of the known risks, and insufficient evidence of attempts to use safer treatments. As a result, patients are exposed to a continuing risk of undue harm.

- 29 4. Inadequate Medication Administration Generally accepted professional standards dictate that medications be administered according to nursing procedures that ensure that the correct patient receives the prescribed dosage of the prescribed medication by the prescribed route at the prescribed time. Moreover, generally accepted professional standards require that nursing staff properly complete Medication Administration Records (“MARs”). Among other things, MARs list current medications, dosages, and times that medications are to be administered. Proper and timely completion of the MARs is fundamental to maintaining patient safety and reducing the likelihood of medication errors and adverse drug effects. Failure to follow accepted MARs protocol may result in patients not receiving medications or receiving them too frequently, which could result in serious harm. We found significant breaches in procedure regarding proper and timely completion of the MARs at the State Psychiatric Hospitals. At ECRH, for example, nurses were initialing medication administration records as they set up the medications, not upon administration as required by generally accepted standards of practice. At CSH, nurses were initialing medical administration records hours after the medications were purportedly administered, sometimes up to 24 hours later. Consequently, medication administration quality assurance data at these hospitals reflected virtually 100% compliance, which is not realistic. The State Psychiatric Hospitals have been unable to reduce dangerous medication errors. In June 2009, for all State Psychiatric Hospitals, the medication error rate was double the target set by the State. Quality Management Report at 20. 5. Inadequate Infection Control Generally accepted professional standards require adequate infection control. The components of an adequate infection control program fall into two general categories: surveillance and reporting; and control and prevention. Surveillance and reporting include data collection on infections acquired in the community before admission to the State Psychiatric Hospitals and on infections acquired while residing there. These data can be used to establish baseline infection rates for different units to determine problem areas or areas where in-service education could lower infection rates. This information can also be used to identify outbreaks of infections rapidly so that concentrated efforts can be initiated to prevent the spread of the infection. In addition, staff should be monitored and data analyzed for possible exposure to, or as the source of, communicable and infectious diseases. The environment itself must be monitored

- 30 as a source of potential infection hazards, especially during outbreaks of infection. Further, the Hospitals must report all communicable diseases to the appropriate health authorities in the State.
Control and prevention activities are of equal importance in an infection control program. In general, developing policies and procedures, staff training, patient educational programs regarding communicable diseases, and regular committee review of infection control activities are components of an infection control program that complies with generally accepted professional standards.
Frequently, the infection control programs at the State Psychiatric Hospitals substantially depart from these standards. These programs collect data but do not collect information on clinical outcomes. There is no system in place to review the development of health care plans for individuals with infectious diseases to ensure that appropriate interventions are implemented. Moreover, there is no analysis of trends in the data concerning the activities and interventions of the infection control department in conjunction with the units' practices. We found numerous patients with infectious diseases who had no provision in their respective health care plans for interventions related to their infectious diseases. In addition, we found that there generally is no analysis of data regarding infectious diseases that are present in the State Psychiatric Hospitals, such as hepatitis A, hepatitis B, hepatitis C, MRSA, tuberculosis, sexually transmitted diseases, and HIV, nor any analysis regarding individuals who became infected with these diseases while at the State Psychiatric Hospitals.
6. Inadequate Physical and Nutritional Management Generally accepted professional standards dictate that an effective physical and nutritional management system include: the identification of patients who are at risk for aspiration/choking and the assignment of an appropriate risk level; the identification of patients’ triggers or symptoms of aspiration; adequate assessments of safe positioning for the 24-hour day; clinically-justified techniques, based on the assessment, that ensure safety during daily activities; the development and implementation of a plan containing specific instructions for the techniques determined by the assessment, with clinical justifications; the provision of competency-based training to all staff assisting these patients regarding individualized dysphagia plans; the development of a method to monitor, track, and document clinically objective data, including triggers, lung sounds, oxygen saturations, and vital signs, to determine if treatment interventions are effective or in need of modification; the development of a mechanism for reporting triggers that generate an immediate response from a physical nutritional management team (“PNMT”) to re-evaluate the plan and its implementation; development of an overall monitoring system conducted by members of the PNMT to ensure that plans are

- 31 being consistently implemented and that this monitoring is most intense for those with the highest level of risk; and assurance that this system is effective so that it may be transferred into the community.
Patients residing at the State Psychiatric Hospitals who are at risk for aspiration are not provided adequate assessments, interventions, proactive monitoring such as such as obtaining lung sounds and oxygen saturation to determine changes in health status, or regular treatment plan monitoring, which places them at significant risk for harm. The lack of safety assessments extended to many high-risk activities, including oral care, bathing, dental appointments, and during sleep. The mealtime plans we reviewed lacked information to guide staff in feeding patients designated as at risk for aspiration. Mealtime plans for tube-fed patients—a group at the highest risk for aspiration—contained no special instructions for positioning during feeding or how long after the feeding the patient should remain in a specific upright position. Moreover, staff assigned to assist patients with meals and other activities did not receive competency-based training on carrying out the requirements of mealtime plans or treatment plans. The widespread absence of information guiding the treatment of at-risk patients is therefore compounded by the absence of any system to ensure that staff are competent in adequately executing treatment and mealtime instructions.
There is no system in place in the State Psychiatric Hospitals to ensure that patients at risk for aspiration are provided with safe, appropriate, and adequate treatment interventions. The state-wide policies developed in this area fall far short of addressing the individualized needs of persons at risk for aspiration. Patients with dysphagia who have experienced recurrent respiratory distress, pneumonia, or aspiration pneumonia are not comprehensively reevaluated to assess the appropriateness of the current treatment plan and to modify interventions when necessary. The failure to reassess these patients and to provide proactive interventions is a gross departure from generally accepted professional standards. These deficiencies have resulted in harm and continue to place patients with physical and nutritional issues at serious risk of harm. Indeed, a large number of patients at State Psychiatric Hospitals suffer grievous, preventable harm, including death, from aspiration pneumonia or complications of this condition. The State’s failure to take appropriate steps to ameliorate this harm is deeply troubling.
The above-described deficiencies and the resultant harm to patients can be seen in the case of A.A.9 Throughout her chart, there were notations that she has

9

To protect patients’ privacy, we identify them with initials other than

their own. We will separately transmit to the State a schedule that cross-references

the initials with patient names.

- 32 behavioral issues that should have resulted in A.A. being identified as at a moderate to high risk of choking. But, because A.A. was never adequately assessed, her meal plan identified her as being only at a minimal risk for choking, and made no mention of the behavioral issues described above. As a result, no precautions had been taken to protect A.A. from this severe risk of harm.
On our tour of CSH, we observed A.A. eating alone and shoving food into her mouth at a rapid pace without taking any liquid between bites—the very behavioral issues noted in her chart. We observed her coughing while eating on more than one occasion during her meal, prompting nearby staff members to turn and tell her to “slow down.” No staff intervened to assist her in regulating her speed, however, until she had a choking incident so severe it resulted in a staff member with whom we were touring performing the Heimlich maneuver on A.A.
Subsequent to this incident, A.A. was placed on a modified diet without an adequate assessment by a member of the PNMT and with no clinically objective data to justify these modifications. She was then placed on one-to-one observation during her next two meals. A.A. was observed during those two meals by an unlicensed direct care staff member, without the adequate supervision of a member of the PNMT, who reported that A.A. did not have any incidents of coughing during those meals. Without appropriate and adequate assessments being done, A.A. was then taken off one-to-one observation and resumed eating her meals unsupervised and without assistance. In addition, even the inadequate and perhaps inappropriate revisions to A.A.’s meal plan that had been recommended by the speech therapist simply had been hand-written into her plan, with no evidence that staff had been competency-based trained on those modifications. Consequently, even after a severe choking incident, A.A. remains at significant risk of harm.
7. Emergency Preparedness Is Inadequate In accordance with generally accepted professional standards, all staff should be well-trained in emergency preparedness, aware of emergency materials and where they are located, and conduct sufficient practice codes to be able to perform adequately when confronted with an actual emergency. Appropriate emergency medical response also includes physical plant readiness. Although the State Psychiatric Hospitals’ emergency preparedness policies appear adequate, practices regarding emergency preparedness depart from constitutional standards. For example, although generally accepted professional standards require that mock codes be conducted on all units on all three shifts at least quarterly, with some exceptions, data from the State Psychiatric Hospitals does not indicate that this is occurring. In addition, there is no system in place in the State Psychiatric Hospitals to critically analyze mock codes and develop and

- 33 implement a plan of correction to address problematic issues. The risks associated with these deviations from generally accepted professional standards is well-illustrated by the medical emergency drills we reviewed, a significant number of which were failed drills. For example, we observed nurses at CSH and ECRH who did not know how to turn on oxygen tanks, despite emergency preparedness documentation indicating that they were completing this task daily. This pattern of unacceptable nursing practice was prevalent throughout the State Psychiatric Hospitals.
8. Inadequate Staffing and Nursing Services The deficiencies in medical and nursing care identified above are exacerbated by chronic staffing shortages. Generally accepted professional standards require facilities like the State Psychiatric Hospitals to have staff sufficient to provide nursing services that, at a minimum, protect patients from harm, ensure adequate and appropriate treatment, and prevent unnecessary and prolonged institutionalization. The State’s own survey by the Medical College of Georgia noted the nursing staff shortage and its potential effect on the services provided to patients. The failure to provide adequate nursing staff, along with the deficits in care and treatment that necessarily result from the critical and ongoing shortages, is a substantial departure from generally accepted professional standards. F. Services to Populations with Specialized Needs Are Inadequate Pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and its implementing regulations, the State Psychiatric Hospitals are required to take reasonable steps to ensure meaningful access to their programs and activities by persons with limited English proficiency (“LEP”). See 45 C.F.R. Part 80 (Department of Health and Human Services regulations). Georgia’s Mental Health Gap Analysis in May 2005 identified glaring deficiencies in mental health services available to persons with hearing impairments or limited English proficiency. Although the State has adopted a Limited English Proficiency and Sensory Impaired Client Services Manual, we saw little evidence that the policies outlined in the Manual were followed. At best, the Hospitals use language-line services, limited bi-lingual staff, including some professional staff, and limited numbers of translators to provide some translation services to identified patients. Critical documents, including consents to care, are not translated into languages the clients can understand. Patients with limited English proficiency, as well as patients with speech, language or hearing deficits are largely under-served in the State Psychiatric Hospitals.

- 34 IV. RECOMMENDED REMEDIAL MEASURES
 To remedy the deficiencies discussed above and protect the constitutional and federal statutory rights of the patients who are confined, or at risk of being confined inappropriately in the State Psychiatric Hospitals, the State of Georgia should immediately develop a comprehensive, effectively working plan to remedy the constitutional and federal statutory violations discussed in this letter and should implement the plan promptly. The plan shall address the minimum remedial measures set forth below: A. Support For Discharges to the Most Integrated Setting 1. The State shall provide services in the most integrated setting appropriate to each patient’s needs, consistent with the mandate of Title II of the ADA and its implementing regulations, and section 504 of the Rehabilitation Act and implementing regulations. 2. The State shall ensure that all individuals in the State Psychiatric Hospitals receive treatment and/or habilitation as necessary to prepare those individuals adequately for the most integrated setting appropriate to their needs, and that care is directed towards acquiring skills and abilities that promote as much independence, autonomy, and development as possible. 3. The State admits that all persons with developmental disabilities can be successfully provided services in the community with appropriate supports, and will, therefore, develop its community resources in order to eliminate the institutionalization of individuals with developmental disabilities, provided that those individuals do not oppose community placement. The State shall utilize each of the Hospitals as a resource center to support community services and ensure continuity of care. 4. The State shall ensure the participation in all aspects of care, treatment and discharge planning by the patient, his or her guardian, family, and friends, as appropriate, and staff who know the patient best. 5. The State shall conduct an interdisciplinary assessment of each patient to determine whether the patient is receiving services in the most integrated setting appropriate for his or her needs, and ensure that this determination is based on the identified needs of the individual, and not on what is currently available in the community.

- 35 6. If it is determined that a more integrated setting would appropriately
meet the patient’s needs and the patient does not oppose community placement, the State shall ensure that treatment teams promptly develop and implement a transition plan that specifies actions necessary to ensure safe, successful transition from the facility to a more integrated setting, the names and positions of those responsible for these actions, and corresponding time frames. 7. The State shall add to a waiting list for services all patients (regardless of length of stay in the hospital) for whom the treatment team has determined a more integrated setting would be appropriate, and shall track the list to show how long each patient has been on the waiting list, and the particular barriers for each patient on the waiting list that are preventing discharge to a more integrated setting. 8. The State shall monitor and assess the waiting list to ensure it moves at a reasonable pace. 9. The State shall provide education and counseling to patients, their guardians, and/or families regarding community supports and services and the transition process. 10. The State shall conduct, and update as necessary, interdisciplinary assessments of each patient that are adequate to develop treatment goals and intervention strategies while at the State Psychiatric Hospitals and upon return to the community. The State shall ensure that professional staff performing assessments obtain and document sufficiently detailed information regarding patients’ strengths, preferences, needs, and history. 11. The State shall ensure, for all patients, that discharge planning is linked to hospital treatment planning, and, at a minimum, that barriers to discharge are identified and addressed in the treatment planning process and in implementation of individual treatment plans. 12. The State shall ensure that, for patients with a history of frequent re-admission, factors that led to re-admission are analyzed and addressed in treatment and discharge planning. 13. The State shall ensure continuity of care upon discharge. At a minimum, the State shall:

- 36 a. Follow its policies and procedures that require contact with
identified community providers prior to discharge; and b. Develop and implement a system to follow up individuals after
discharge to identify gaps in care and address proactively any such gaps to reduce the risk of re-hospitalizations. 14. The State shall immediately assess areas of need for additional community services to support patients discharged from the State Psychiatric Hospitals, and expand and modify community services so that patients can be discharged to the community in a timely manner. The needs assessment shall include an inventory of the specific needs of institutionalized patients, and in addition, shall build upon the existing assessments made by the State in its 2003 Olmstead Plan, the 2005 Mental Health System Gap Analysis, and the 2008 Mental Health Service Delivery Commission Report. 15. The State shall develop and implement hospital diversion programs to reduce Georgia’s over-reliance on institutional care as recommended in Governor Sonny Perdue’s 2008 Mental Health Service Delivery Commission Report. 16. The State shall develop a comprehensive, state-wide supported housing program as recommended in the 2008 Mental Health Service Delivery Commission Report. 17. The State shall create a statewide continuum of adequate case management services as recommended in the 2008 Mental Health Service Delivery Commission Report. 18. The State shall create adequate supported employment opportunities, as recommended in the 2008 Mental Health Service Delivery Commission Report. 19. The State shall provide sufficient mechanisms for patients discharged from the State Psychiatric Hospitals to access needed medication, transportation, benefits and programming, as recommended in the 2008 Mental Health Service Delivery Commission Report. Community supports shall include a focus on evidence-based and recovery-oriented programs and services.

- 37 20. The State shall provide sufficient specialized services in the
community for persons with co-occurring conditions of mental illness and substance abuse, and mental illness and developmental disability. 21. The State shall develop a system to track vacancies in community-based residential homes and programs to ensure the efficient use of these resources and the timely placement of persons with mental illness or developmental disabilities in the most integrated setting. 22. The State shall identify gaps in services by geographic region and level of care to provide sufficient information to develop reasonable service development plans and appropriate funding proposals for needed services. 23. The State shall monitor and assess adequacy of community-based programs and services to ensure the State does not discriminate against persons with mental illness and developmental disabilities by not providing those services in the most integrated setting within a reasonable amount of time. 24. The State shall provide competency-based training to staff on revised policies and procedures relating to the discharge process. 25. The State shall create, or revise, as appropriate, and implement a quality assurance or utilization review process to oversee the discharge process, including, at a minimum: a. Develop a system to review the quality and effectiveness of
discharge plans; b. Develop a system to track discharged patients to determine if
they receive care in the community as prescribed at discharge; and c. Identify and assess gaps in community services identified through the tracking of discharge outcomes. B. Prevent Frequent and Recurrent Harm The State shall provide patients with a safe and humane environment and protect them from harm. At a minimum, the State shall:

- 38 1. Create or revise, as appropriate, and implement an incident
management system that comports with generally accepted professional standards, including, at a minimum: a. 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 those involving any physical injury; patient aggression; abuse and neglect; contraband; and suicide ideation or attempts; b. Require all staff to complete competency-based training in the revised reporting requirements; c. Create or revise, as appropriate, and implement thresholds for indicators of events, including, without limitation, patient injury, patient-on-patient assaults, self-injurious behavior, falls, and suicide ideation or attempts, that will initiate review at both the unit/treatment team level and at the appropriate supervisory level; whenever such thresholds are reached, this will be documented in the patient medical record, with explanations given for changing/not changing the patient’s current treatment regimen; d. Create or revise, as appropriate, and implement policies and procedures addressing the investigation of serious incidents, including, without limitation, abuse, neglect, suicide ideation or attempts, unexplained injuries, and all injuries requiring medical attention more significant than first aid. The policies and procedures shall require that investigation of such incidents that are comprehensive, include consideration of staff’s adherence to programmatic requirements, and are performed by independent investigators; e. Require all staff members charged with investigative responsibilities to complete competency-based training on investigation methodologies and documentation requirements necessary in mental health service settings; f. Monitor the performance of staff charged with investigative responsibilities and provide administrative and technical support and training as needed to ensure the thorough,

- 39 competent, and timely completion of investigations of serious incidents;

g. Ensure that corrective action plans are developed and implemented in a timely manner;

h. Review, revise, as appropriate, and implement policies and procedures related to the tracking and trending of incident data, including data from patient aggression and abuse and neglect allegations, to ensure that such incidents are properly investigated and appropriate corrective actions are identified and implemented in response to problematic trends; and

i.

Create or revise, as appropriate, and implement policies and

procedures regarding the creation, preservation, and

organization of all records relating to the care and/or treatment

of patients, including measures to address improper removal,

destruction, and/or falsification of any record.

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

a. Collect information related to the adequacy of the provision of the protections, treatments, services, and supports provided by the State Psychiatric Hospitals, 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 the implementation of corrective and preventative actions to address identified issues and ensure resolution of underlying problems.

3. Immediately eliminate all environmental conditions that pose a potential suicide risk in patient areas.

- 40 C. Mental Health Care and Treatment
1. Assessments and Diagnoses The State Psychiatric Hospitals shall ensure that their patients receive accurate, complete, and timely assessments and diagnoses, consistent with generally accepted professional standards, and that these assessments and diagnoses drive treatment interventions. More particularly, the State Psychiatric Hospitals shall:
a. Develop and implement comprehensive policies and procedures regarding the timeliness and content of initial psychiatric assessments and ongoing reassessments; and ensure that assessments include a plan of care that outlines specific strategies, with rationales, including adjustment of medication regimens and initiation of specific treatment interventions.
b. Ensure that psychiatric reassessments are completed within time-frames that reflect the patient’s needs, including prompt reevaluations of all patients requiring restrictive interventions.
c. Develop diagnostic practices, consistent with generally accepted professional standards, for reliably reaching the most accurate psychiatric diagnoses.
d. Conduct interdisciplinary assessments of patients consistent with generally accepted professional standards. Expressly identify and prioritize each patient’s individual mental health problems and needs, including, without limitation, maladaptive behaviors and substance abuse problems.
e. Develop a clinical formulation of 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.
f. Ensure that the information gathered in the assessments and reassessments is used to justify and update diagnoses, and establish and perform further assessments for a differential diagnosis.

- 41 g. Review and revise, as appropriate, psychiatric assessments of all
patients, providing clinically justified 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.

h. Develop a monitoring instrument to ensure a systematic review of the quality and timeliness of all assessments according to established indicators, including an evaluation of initial assessments, progress notes, and transfer and discharge summaries, and require each clinical discipline’s peer review system to address the process and content of assessments and reassessments, identify individual and group trends, and provide corrective action.

2. Treatment Planning

The State Psychiatric Hospitals shall develop and implement an integrated treatment planning process consistent with generally accepted professional standards. More particularly, the State Psychiatric Hospitals shall:

a. Develop and implement policies and procedures regarding the development of individualized treatment plans consistent with generally accepted professional standards.

b. Ensure that treatment plans derive from an integration of the individual disciplines’ assessments of patients, and that goals and interventions are consistent with clinical assessments. At a minimum, this should include:

i.

Review by psychiatrists of all proposed behavioral plans

to determine that they are compatible with the

psychiatric formulations of the case;

ii. Regular exchange of objective data between the psychiatrist and the psychologist and use of this data to distinguish psychiatric symptoms that require drug treatments from behaviors that require behavioral therapies;

- 42 iii. Integration of psychiatric and behavioral treatments in
those cases where behaviors and psychiatric symptoms overlap; and iv. Documentation in the patient’s record of the rationale for treatment. c. Ensure that treatment plans address repeated admissions and adjust the plans accordingly to examine and address the factors that led to re-admission. d. Develop and implement treatment goals that will establish an objective, measurable basis for evaluating patient progress. e. Ensure that treatment plans are consistently assessed for their efficacy and reviewed and revised when appropriate. f. Provide adequate and appropriate mental health services, including adequate psychological services, behavioral management, and active treatment, in accordance with generally accepted professional standards. g. Provide psychologists with sufficient education and training to ensure: i. competence in performing behavioral assessments, including the functional analysis of behavior and appropriate identification of target and replacement behaviors; ii. the development and implementation of clear thresholds for behaviors or events that trigger referral for a behavioral assessment; iii. timely review of behavioral assessments by treatment teams, including consideration or revision of behavioral interventions, and documentation of the team’s review in the patient’s record; iv. the development and implementation of protocols for collecting objective data on target and replacement behaviors; and

- 43 v. assessments of each patient’s cognitive deficits and
strengths to ensure that treatment interventions are selected based on the patient’s capacity to benefit.

h. Re-assess all patients at the State Psychiatric Hospitals to identify those who would benefit from speech and communication therapy and provide sufficient qualified and trained staff to provide services to all patients who would benefit from this service.

i.

Require all clinical staff to complete successfully

competency-based training on the development and

implementation of individualized treatment plans, including

skills needed in the development of clinical formulations, needs,

goals, and interventions, as well as discharge criteria.

j.

Ensure that the medical director timely reviews high-risk

situations, such as patients requiring repeated use of seclusion

and restraints.

k. Develop and implement policies to ensure that patients with special needs, including co-occurring diagnoses of substance abuse and/or developmental disability, and physical, cognitive and/or sensory impairments are evaluated, treated, and monitored in accordance with generally accepted professional standards.

l.

Develop and implement policies for patients exhibiting suicidal

ideation, including for patients identified as suicidal, develop

and implement a clear and uniform policy for patient

assessment and treatment.

m. Develop a system to ensure that staff receive competency-based training on individualized plans, including behavioral support plans and interventions, and document this training.

n. Ensure that restrictive interventions receive appropriate review by a Human Rights Committee, or its equivalent, to guarantee any restriction of rights are necessary, appropriate, and of limited duration.

- 44 o. Ensure that all psychotropic medications are:

i.

administered as prescribed;

ii. tailored to each patient’s individual symptoms;

iii. monitored for efficacy and potential side-effects against clearly-identified target variables and time frames;

iv. modified based on clinical rationales; and

v. properly documented.

p. Institute systematic monitoring mechanisms regarding medication use throughout the Facility. In this regard, the State Psychiatric Hospitals shall:

i.

Develop, implement, and continually update a complete

set of medication guidelines in accordance with generally

accepted professional standards that address the

indications, contraindications, screening procedures, dose

requirements, and expected individual outcomes for all

psychiatric medications in the formulary; and

ii. Develop 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, a documented rationale for the use of more than one medication on a PRN basis, and physician documentation to ensure timely, critical review of the patient’s response to PRN treatments and reevaluation of regular treatments as a result of PRN uses.

q. Provide competency-based training to all staff appropriate to their duties in all aspects of treatment planning and delivery of mental health treatment services.

r. Create, or revise, as appropriate, and implement a quality assurance or utilization review process to ensure quality of treatment planning and mental health services.

D. Seclusion and Restraints

- 45 -

The State Psychiatric Hospitals shall 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, the Hospitals shall:

1. Eliminate the use of planned (i.e., PRN) seclusion and planned restraint.

2. Ensure that restraints and seclusion:

a. Are used only when persons pose an immediate threat to themselves or others and after a hierarchy of less restrictive measures has been exhausted;

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

c. Are not used as part of a behavioral intervention;

d. Are terminated as soon as the person is no longer an imminent danger to himself or others; and

e. Are used in a reliably documented manner.

3. 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; and

b. The training that all staff receive in the management of the patient crisis cycle, the use of restrictive measures, and the use of less-restrictive interventions.

4. Ensure that if seclusion and/or restraint are initiated, the patient is regularly monitored in accordance with generally accepted professional

- 46 standards and assessed within an appropriate period of time, and that an appropriately trained staff member makes and documents a determination of the need for continued seclusion and/or restraint. 5. Ensure that a physician’s order for seclusion and/or restraint includes: a. The specific behaviors requiring the procedure; b. The maximum duration of the order; and 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. 6. Ensure that the patient’s attending physician be promptly consulted regarding the restrictive intervention. 7. Ensure that at least every thirty minutes, patients in seclusion and/or restraint be re-informed of the behavioral criteria for their release from the restrictive intervention. 8. Ensure that immediately following a patient being placed in seclusion and/or restraint, the patient’s treatment team reviews the incident within one business day, and the attending physician documents the review and the reasons for or against change in the patient’s current pharmacological, behavioral, or psychosocial treatment. 9. Comply with the requirements of 42 C.F.R. § 483.360(f) regarding assessments by a physician or licensed medical professional of any resident placed in seclusion and/or restraints. 10. Ensure that staff successfully complete competency-based training regarding implementation of seclusion and restraint policies and the use of less-restrictive interventions. E. Medical and Nursing Care The State Psychiatric Hospitals shall provide medical and nursing services to its patients consistent with generally accepted professional standards. Such services should result in patients of the State Psychiatric Hospitals receiving individualized services, supports, and therapeutic interventions, consistent with their treatment plans. More particularly, the State Psychiatric Hospitals shall:

- 47 1. Ensure adequate clinical oversight to ensure that generally accepted
professional standards are maintained. 2. Ensure that patients are provided adequate medical care in accordance
with generally accepted professional standards. 3. Ensure sufficient nursing staff to provide nursing care and services in
accordance with generally accepted professional standards. 4. Ensure that, before nursing staff work directly with patients, they
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. 5. Ensure that nursing staff accurately and routinely monitor, document, and report patients’ symptoms and target variables in a manner that enables treatment teams to assess the patient’s status and to modify, as appropriate, the treatment plan. 6. Ensure that nursing staff actively participate in the treatment team process and provide feedback on patients’ responses, or lack thereof, to medication and behavioral interventions. 7. Ensure that nursing staff are appropriately supervised to ensure that they administer, monitor, and record the administration of medications and any errors according to generally accepted professional standards. 8. 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 Record. 9. Ensure that all failures to properly sign the Medication Administration Record and/or the Narcotics Log are treated as medication errors, and that appropriate follow-up occurs to prevent recurrence of such errors. 10. Ensure that each patient’s treatment plan identifies: a. The diagnoses, treatments, and interventions that nursing and
other staff are to implement;

- 48 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. 11. Establish an effective infection control program to prevent the spread of infections or communicable diseases. More specifically, the State Psychiatric Hospitals shall: a. Actively collect data with regard to infections and communicable
diseases; b. Analyze 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 the quality assurance review of
the State Psychiatric Hospitals; and g. Ensure that nursing staff implement the infection control
program. 12. Establish an effective physical and nutritional management program
for patients who are at risk for aspiration or dysphagia, including but not limited to the development and implementation of assessments, risk assessments, and interventions for mealtimes and other activities involving swallowing. 13. Ensure that staff with responsibilities for patients at risk for aspiration and dysphagia have successfully completed competency-based training commensurate with their responsibilities. 14. Provide adequate, appropriate, and timely rehabilitation therapy services and appropriate adaptive equipment to each individual in need of such services or equipment, consistent with generally accepted professional standards. 15. Establish an effective medical emergency preparedness program, including appropriate staff training; ensure staff familiarity with

- 49 emergency supplies, their operation, maintenance and location; conduct sufficient practice drills to ensure adequate performance when confronted with an actual emergency. F. Services to Populations with Specialized Needs and Training 1. Provide adequate services to patients with limited English proficiency or sensory deficiencies, consistent with the requirements of federal law. Review applicable law, Title VI Limited English Proficiency (“LEP”) guidance issued by the U.S. Departments of Justice and Health and Human Services and available literature on standards of care for LEP patients. Resources are available at www.lep.gov (see, for example, http://www.usdoj.gov/crt/cor/lep/hhsrevisedlepguidance.pdf) and www.hhs.gov/ocr/office/index.html. 2. Provide competency-based training to staff on the requirements of all revised policies and procedures in all substantive areas.
V. CONCLUSION We appreciate the cooperation we received from the Georgia Department of Behavioral Health, and its predecessor, the Department of Mental Health Developmental Disabilities and Addictive Diseases. We also wish to thank the administration and staff at the State Psychiatric Hospitals we visited for their professional conduct, their timely responses to our information requests, and the extensive assistance they provided during our tours. Further, we wish to especially thank the Hospitals’ staff members, both new and longstanding, who make daily efforts to provide appropriate care and treatment, and who improve the lives of patients at these facilities. Those efforts were noted and appreciated by the Department of Justice and our expert consultants. Please note that this findings letter is a public document. It will be posted on the website of the Civil Rights Division, and we will provide a copy of this letter to any individual or entity upon request. In the event that we are unable to reach a resolution regarding our concerns, the Attorney General is empowered to initiate a lawsuit to correct deficiencies of the kind identified in this letter. We remain amenable to expeditiously resolving this matter by working cooperatively with you. The lawyers assigned to this matter will be contacting your attorneys to discuss next steps in further detail.

- 50 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 Thomas E. Perez Thomas E. Perez Assistant Attorney General Civil Rights Division cc: The Honorable Thurbert E. Baker Attorney General Office of the Attorney General Of Georgia Frank Shelp, M.D. Commissioner Georgia Department of Behavioral Health and Developmental Disabilities Marvin V. Bailey
 Regional Hospital Administrator
 Central State Hospital
 Nannette M. Lewis, M.P.H.
 Regional Hospital Administrator
 East Central Regional Hospital
 Charles Li, M.D.
 Regional Hospital Administrator
 Georgia Regional Hospital/Savannah
 Karl H. Schwarzkopf, Ph.D.
 Regional Hospital Administrator
 Northwest Georgia Regional Hospital
 Hillary Hoo-you
 Regional Hospital Administrator
 Southwestern State Hospital


- 51 John L. Robertson Regional Hospital Administrator West Central Georgia Regional Hospital Susan Trueblood Regional Hospital Administrator Georgia Regional Hospital/Atlanta Sally Quillian Yates United States Attorney Northern District of Georgia G. F. Pete Peterman, III United States Attorney Middle District Of Georgia Joseph D. Newman Acting United States Attorney Southern District of Georgia Georgina C. Verdugo Director, Office for Civil Rights U.S. Department of Health and Human Services

 
 Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 1 of 40
4months,CLOSED
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:10−cv−00249−CAP

The United States of America v. The State of Georgia et al

Date Filed: 01/28/2010

Assigned to: Judge Charles A. Pannell, Jr

Date Terminated: 10/29/2010

Cause: 42:12101 et seq. Americans with Disabilities Act of 1990 Jury Demand: None

Nature of Suit: 445 Civil Rights:

Americans with Disabilities − Employment

Jurisdiction: U.S. Government Plaintiff

Plaintiff

The United States of America

represented by Katherine Houston United States Department of Justice 950 Pennsylvania Avenue, NW 601 D Street, NW Washington, DC 20530 202−307−0652 Email: katherine.houston4@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mary R. Bohan Office of the United States Attorney−Civ/Housing Civil Rights Division − Housing and Civil Enforcement 950 Pennsylvania Avenue, NW Northwestern Building

Washington, DC 20530 202−616−2325 Email: mary.bohan@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Regan Bailey United States Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20004 202−305−3113 Email: Regan.Bailey@usdoj.gov LEAD ATTORNEY

Samuel R. Bagenstos United States Department of Justice Civil Rights Division−Special Litigation Sect 950 Pennsylvania Avenue, NW Washington, DC 20530 202−514−6255 TERMINATED: 11/02/2016 LEAD ATTORNEY

Aaron S. Fleisher Office of the United States Attorney−DC−CvlRghts Civil Rights Division 950 Pennsylvania Avenue, NW

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 2 of 40
Washington, DC 20530 202−307−6457 Email: aaron.fleisher@usdoj.gov TERMINATED: 05/26/2011 PRO HAC VICE
Aileen Bell Hughes Office of the United States Attorney−ATL600 Northern District of Georgia 600 United States Courthouse 75 Ted Turner Dr., S.W. Atlanta, GA 30303 404−581−6000 Email: aileen.bell.hughes@usdoj.gov ATTORNEY TO BE NOTICED
Ashley J. McDonald U.S. Department of Justice 601 D Street NW Washington, DC 20004 202−353−1118 Email: ashley.mcdonald@usdoj.gov TERMINATED: 11/02/2016
Emily A. Gunston United States Department of Justice 601 D Street, NW Washington, DC 20004 (202) 305−3203 TERMINATED: 05/26/2011
Jeffrey R. Murray Office of the United States Attorney−DC−CvlRghts Civil Rights Division 950 Pennsylvania Avenue, NW
Washington, DC 20530 202−353−9269 Email: jeff.murray@usdoj.gov TERMINATED: 05/26/2011 PRO HAC VICE
Jessica Polansky U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 202−353−1280 Email: jessica.polansky@usdoj.gov TERMINATED: 11/02/2016
Judy C. Preston U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Special Litigation Section Washington, DC 20530 202−514−3301 TERMINATED: 05/26/2011 PRO HAC VICE

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 3 of 40
Max P. Lapertosa Office of the United States Attorney−DC−CvlRghts Civil Rights Division 950 Pennsylvania Avenue, NW
Washington, DC 20530 202−305−1077 Email: Max.Lapertosa@usdoj.gov TERMINATED: 05/26/2011
Mina Rhee Office of the United States Attorney−ATL600 Northern District of Georgia 600 United States Courthouse 75 Ted Turner Dr., S.W. Atlanta, GA 30303 404−581−6302 Email: mina.rhee@usdoj.gov TERMINATED: 05/26/2011
Richard J. Farano Office of the United States Attorney−DC−CvlRghts Civil Rights Division 950 Pennsylvania Avenue, NW
Washington, DC 20530 202−307−3116 Email: richard.farano@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Koch United States Department of Justice 950 Pennsylvania Avenue, NW 601 D Street NW Washington, DC 20530 (202) 305−2302 Email: Robert.Koch@usdoj.gov TERMINATED: 11/02/2016
Shanetta Y. Cutlar United States Department of Justice Civil Rights Division−Special Litigation Sect 950 Pennsylvania Avenue, NW Washington, DC 20530 202−514−6255 TERMINATED: 05/26/2011
Thomas Jackson Morse United States Department of Justice, Civil Rights Division PHB, Room 5907D 950 Pennsylvania Avenue, N.W. Washington, DC 20003 (202) 305−4039 Email: jack.morse@usdoj.gov TERMINATED: 11/02/2016
Thomas E. Perez

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 4 of 40
United States Department of Justice Civil Rights Division−Special Litigation Sect 950 Pennsylvania Avenue, NW Washington, DC 20530 202−514−6255 TERMINATED: 05/27/2011
Timothy D. Mygatt Office of the United States Attorney−Civ/Housing Civil Rights Division − Housing and Civil Enforcement 950 Pennsylvania Avenue, NW Northwestern Building
Washington, DC 20530 202−514−6255 Email: timothy.mygatt@usdoj.gov TERMINATED: 05/26/2011 PRO HAC VICE

V. Defendant The State of Georgia ex rel

represented by Jaime L. Theriot Troutman Sanders, LLP−ATL Suite 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308−2216 404−885−3000 Email: jaime.theriot@troutmansanders.com ATTORNEY TO BE NOTICED
Jason S. Naunas Attorney General's Office−Atl Department of Law 40 Capitol Square, SW Atlanta, GA 30334 404−656−3357 Email: jnaunas@law.ga.gov TERMINATED: 09/10/2012
Jennifer Dalton Georgia Dept. of Behavioral Health & Developmental Dis. 24−275 2 Peachtree Street, NW Atlanta, GA 30303 404−463−6351 Email: jennifer.dalton@dbhdd.ga.gov
Jeremy Patrick Burnette Troutman Sanders, LLP−ATL Bank of America Plaza, Suite 3000 600 Peachtree St., NE Atlanta, GA 30308−2216 404−885−3397 Email: jburnette@polsinelli.com
Jeremy U. Littlefield Robbins Ross Alloy Belinfante Littlefield LLC

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 5 of 40
500 14th Street, N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: jlittlefield@robbinsfirm.com ATTORNEY TO BE NOTICED
John Nicholas Phillips Bloom Parham, LLP 977 Ponce de Leon Avenue, NE Atlanta, GA 30306−4265 404−577−7710 Fax: 404−577−7715 Email: nphillips@bloom−law.com
Joshua Barrett Belinfante Robbins Ross Alloy Belinfante Littlefield, LLC −Atl 500 Fourteenth St., N.W. Atlanta, GA 30318 678−701−9381 Email: jbelinfante@robbinsfirm.com ATTORNEY TO BE NOTICED
Kevin Gregory Meeks Meeks Law Firm, LLC Suite 200 1100 Peachtree Street, NE Atlanta, GA 30309 404−520−7466 Fax: 404−962−6605 Email: kevin.g.meeks@gmail.com TERMINATED: 06/01/2018
Lindsey B. Mann Troutman Sanders, LLP−ATL Bank of America Plaza, Suite 3000 600 Peachtree St., NE Atlanta, GA 30308−2216 404−885−2743 Email: lindsey.bowen@troutmansanders.com ATTORNEY TO BE NOTICED
Lynette Eaddy Smith Chick−fil−A, Inc. 5200 Buffington Rd. Atlanta, GA 30349 404−530−1843 Email: lynette.smith@chick−fil−a.com ATTORNEY TO BE NOTICED
Mark J. Cicero Office of State Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334−1300 404−656−3391 Email: mcicero@law.ga.gov TERMINATED: 09/10/2012
Mark Howard Cohen Troutman Sanders, LLP−ATL Bank of America Plaza, Suite 3000 600 Peachtree St., NE Atlanta, GA 30308−2216 404−885−3597

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 6 of 40

Email: mark.cohen@troutmansanders.com TERMINATED: 11/26/2014

Steven J. Hewitson Troutman Sanders Bank of America Plaza 600 Peachtree Street, N.E. Suite 5200 Atlanta, GA 30308−2216 404−885−3000 Email: steven.hewitson@troutmansanders.com ATTORNEY TO BE NOTICED

Defendant
Sonny Perdue Governor, State of Georgia, in his official capacity

represented by Joshua Barrett Belinfante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Dalton (See above for address)

John Nicholas Phillips (See above for address)

Mark Howard Cohen (See above for address) TERMINATED: 11/26/2014

Defendant
Frank E. Shelp Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities, in his official capacity

represented by Joshua Barrett Belinfante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Dalton (See above for address)

John Nicholas Phillips (See above for address)

Mark Howard Cohen (See above for address) TERMINATED: 11/26/2014

Defendant
Rhonda M. Medows Commissioner, Georgia Department of Community Health, in her official capacity

represented by Joshua Barrett Belinfante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Nicholas Phillips (See above for address)

Mark Howard Cohen (See above for address) TERMINATED: 11/26/2014

Amicus Georgia Advocacy Office, Inc.

represented by Joshua H. Norris Joshua H. Norris, LLC Suite 125

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 7 of 40

1801 Peachtree St., NE Atlanta, GA 30309 404−867−6188 Fax: 404−393−9680 Email: josh.norris@childrenshealthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis Bossing Bazelon Center for Mental Health Law Suite 1212 1101 15th Street NW Washington, DC 20005 202−467−5730 x 116 Email: lewisb@bazelon.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alison N. Barkoff Bazelon Center for Mental Health Law Suite 1212 1101 15th Street NW Washington, DC 20005 202−467−5730 Email: abarkoff@cpr−ma.org ATTORNEY TO BE NOTICED

Devon Orland Georgia Department of Law Office of the Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334−1300 404−885−1234 Fax: 404−378−0031 Email: dorland@thegao.org ATTORNEY TO BE NOTICED

Julie Coleman Kegley Georgia Advocacy Office, Inc. Suite 625 One West Court Square Decatur, GA 30030 404−885−1234 Email: jkegley@thegao.org ATTORNEY TO BE NOTICED

Amicus Cynthia Wainscott

represented by Alison N. Barkoff (See above for address) TERMINATED: 08/18/2016 LEAD ATTORNEY PRO HAC VICE

Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield Doffermyre Shields Canfield & Knowles, LLC Suite 1900

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 8 of 40

1355 Peachtree Street, N.E. Atlanta, GA 30309−3521 404−881−8900 Fax: 404−920−3246. Email: kcanfield@dsckd.com ATTORNEY TO BE NOTICED

Amicus Carter Center Mental Health Program

represented by Alison N. Barkoff (See above for address) TERMINATED: 08/18/2016 LEAD ATTORNEY PRO HAC VICE

Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield (See above for address) ATTORNEY TO BE NOTICED

Amicus Mental Health America of Georgia

represented by Alison N. Barkoff (See above for address) TERMINATED: 08/18/2016 LEAD ATTORNEY PRO HAC VICE

Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield (See above for address) ATTORNEY TO BE NOTICED

Amicus
Georgia Mental Health Consumer Network

represented by Alison N. Barkoff (See above for address) TERMINATED: 08/18/2016 LEAD ATTORNEY PRO HAC VICE

Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield (See above for address) ATTORNEY TO BE NOTICED

Amicus Georgia Parent Support Network

represented by Alison N. Barkoff (See above for address) TERMINATED: 08/18/2016

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 9 of 40

LEAD ATTORNEY PRO HAC VICE

Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield (See above for address) ATTORNEY TO BE NOTICED

Amicus Dr. John J Gates

represented by Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield (See above for address) ATTORNEY TO BE NOTICED

Amicus Georgia Council on Substance Abuse

represented by Alison N. Barkoff (See above for address) TERMINATED: 08/18/2016 LEAD ATTORNEY PRO HAC VICE

Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield (See above for address) ATTORNEY TO BE NOTICED

Amicus
Atlanta Legal Aid Society's Disability Rights Project

represented by Alison N. Barkoff (See above for address) TERMINATED: 08/18/2016 LEAD ATTORNEY PRO HAC VICE

Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield (See above for address) ATTORNEY TO BE NOTICED

Amicus
National Alliance on Mental Illness − Georgia

represented by Alison N. Barkoff (See above for address) TERMINATED: 08/18/2016

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 10 of 40
LEAD ATTORNEY PRO HAC VICE
Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth S. Canfield (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/28/2010 01/29/2010 01/29/2010 01/29/2010 01/29/2010 01/29/2010 01/29/2010 02/04/2010
02/12/2010
02/19/2010
02/19/2010

# Docket Text
1 COMPLAINT filed by The United States of America. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. (Attachments: # 1 Civil Cover Sheet)(adg) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 01/29/2010)
2 NOTICE Of Filing Exhibit to Complaint by The United States of America re 1 Complaint, Exhibit 1 (Mygatt, Timothy) (Entered: 01/29/2010)
3 NOTICE Of Filing Exhibit 2 to Complaint by The United States of America (Mygatt, Timothy) (Entered: 01/29/2010)
4 NOTICE Of Filing Exhibit 3 to Complaint by The United States of America (Mygatt, Timothy) (Entered: 01/29/2010)
5 NOTICE Of Filing Exhibit 4 to Complaint by The United States of America (Mygatt, Timothy) (Entered: 01/29/2010)
6 NOTICE Of Filing Exhibit 5 to Complaint by The United States of America (Mygatt, Timothy) (Entered: 01/29/2010)
7 NOTICE Of Filing Exhibit 6 to Complaint by The United States of America (Mygatt, Timothy) (Entered: 01/29/2010)
8 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference/Status Conference held on 2/4/2010, This case is set for a hearing on 3/1/2010 at 10:00 AM before Judge Charles A. Pannell Jr. The court will hold another conference call a week from today. Hearing concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 02/05/2010)
9 TRANSCRIPT of Proceedings held on 2/4/10 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/5/2010. Redacted Transcript Deadline set for 3/15/2010. Release of Transcript Restriction set for 5/13/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 02/12/2010)
10 TRANSCRIPT of Proceedings held on 2/4/10 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/12/2010. Redacted Transcript Deadline set for 3/22/2010. Release of Transcript Restriction set for 5/20/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 02/19/2010)
11 TRANSCRIPT of Proceedings held on 2/16/10 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 11 of 40

02/25/2010 02/26/2010
04/01/2010 04/07/2010 04/07/2010 04/07/2010 04/30/2010 05/03/2010 05/12/2010 05/17/2010 05/28/2010 05/28/2010 06/18/2010 06/21/2010
06/21/2010 06/30/2010 07/01/2010 07/01/2010

3/12/2010. Redacted Transcript Deadline set for 3/22/2010. Release of Transcript Restriction set for 5/20/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 02/19/2010)
12 MOTION to Stay by The United States of America. (Mygatt, Timothy) (Entered: 02/25/2010)
13 ORDER GRANTING 12 Motion to Stay so that the Parties may engage in settlementnegotiations. The Court also hereby GRANTS the request to toll until 3/15/2010, the response time on all pending responses and replies. Should negotiationsfail, the Court will reschedule the proceedings to begin on 3/15/2010, or assoon as possible thereafter. Signed by Judge Charles A. Pannell, Jr on 2/26/2010. (adg) (Entered: 02/26/2010)
14 PROPOSED CONSENT ORDER re: Agreed Extension for Defendants to File Answer, Motion, or Other Responsive Pleading re: 1 Complaint,. (Cohen, Mark) (Entered: 04/01/2010)
15 ORDER TO EXTEND TIME TO ANSWER Complaint to and through 5/6/2010. Signed by Judge Charles A. Pannell, Jr on 4/7/2010. (adg) (Entered: 04/07/2010)
16 NOTICE of Appearance by Joshua Barrett Belinfante on behalf of The State of Georgia, Frank E. Shelp, Rhonda M. Medows and Sonny Perdue (Belinfante, Joshua) Modified on 4/8/2010 to correct docket text (adg). (Entered: 04/07/2010)
17 NOTICE of Appearance by Mark Howard Cohen on behalf of Frank E. Shelp, Rhonda M. Medows, The State of Georgia, Sonny Perdue (Cohen, Mark) (Entered: 04/07/2010)
18 PROPOSED CONSENT ORDER re: Agreed Extension of Time for Defendants to File Answer, Motion, or Other Responsive Pleading. (Cohen, Mark) (Entered: 04/30/2010)
19 ORDER TO EXTEND TIME TO ANSWER; defendants answer to complaint due 5/13/2010. Signed by Judge Charles A. Pannell, Jr on 5/3/2010. (adg) (Entered: 05/03/2010)
20 PROPOSED CONSENT ORDER re: Agreed Extension of Time for Defendants to File Answer, Motion, or Other Responsive Pleading. (Cohen, Mark) (Entered: 05/12/2010)
21 ORDER TO EXTEND TIME TO ANSWER, defendants answer due 6/1/2010. Signed by Judge Charles A. Pannell, Jr on 5/17/2010. (adg) (Entered: 05/17/2010)
22 PROPOSED CONSENT ORDER re: Agreed Extension of Time for Defendants to File Answer, Motion, or Other Responsive Pleading. (Cohen, Mark) (Entered: 05/28/2010)
23 CONSENT ORDER TO EXTEND TIME TO ANSWER COMPLAINT. Defendants shall have through and including 6/22/2010 to answer complaint. Signed by Judge Charles A. Pannell, Jr on 5/28/2010. (adg) (Entered: 05/28/2010)
24 PROPOSED CONSENT ORDER re: Agreed Extension of Time for Defendants to File Answer, Motion, or Other Responsive Pleading. (Cohen, Mark) (Entered: 06/18/2010)
25 ORDER TO EXTEND TIME TO ANSWER. The Defendants shall have through and including July 1, 2010 to file their answer, motion, or other responsive pleading to Plaintiff's Complaint. Signed by Judge Charles A. Pannell, Jr on 6/21/2010. (ank) (Entered: 06/21/2010)
Clerk's Certificate of Mailing as to US Dept of Justice re 25 Order (ank) (Entered: 06/21/2010)
26 MOTION for Order Setting Status Conference by The United States of America. (Attachments: # 1 Text of Proposed Order)(Rhee, Mina) (Entered: 06/30/2010)
27 MOTION for Leave to File Excess Pages (for Memorandum of Law in Support of Motion to Dismiss) by The State of Georgia. (Attachments: # 1 Text of Proposed Order)(Cohen, Mark) (Entered: 07/01/2010)
28 MOTION to Dismiss with Brief In Support by The State of Georgia. (Attachments: # 1 Brief in Support)(Cohen, Mark) (Entered: 07/01/2010)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 12 of 40

07/15/2010 07/15/2010 07/22/2010 07/27/2010 07/27/2010 07/27/2010 07/29/2010 07/29/2010 07/29/2010 07/29/2010 08/02/2010
08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/03/2010 08/05/2010
08/06/2010
08/09/2010

29 MOTION for Leave to File Excess Pages with Brief In Support by The United States of America. (Koch, Robert) (Entered: 07/15/2010)
30 RESPONSE re 28 MOTION to Dismiss filed by The United States of America. (Koch, Robert) (Entered: 07/15/2010)
31 RESPONSE re 26 MOTION for Order Setting Status Conference (Defendants' Status Update and Proposed Agenda for Status Conference) filed by The State of Georgia. (Attachments: # 1 Exhibit A)(Cohen, Mark) (Entered: 07/22/2010)
Submission of 27 MOTION for Leave to File Excess Pages (for Memorandum of Law in Support of Motion to Dismiss), submitted to District Judge Charles A. Pannell. (adg) (Entered: 07/27/2010)
32 APPLICATION for Admission of Timothy D. Mygatt Pro Hac Vice with Brief In Support by The United States of America. (Rhee, Mina) (Entered: 07/27/2010)
33 APPLICATION for Admission of Max Lapertosa Pro Hac Vice with Brief In Support by The United States of America. (Rhee, Mina) (Entered: 07/27/2010)
APPROVAL by Clerks Office. Attorney Max P. Lapertosa, Timothy D. Mygatt added appearing on behalf of The United States of America (cdg) Modified on 8/2/2010 to create doc. link (cdg). (Entered: 07/29/2010)
34 APPLICATION for Admission of Robert A. Koch Pro Hac Vice by The United States of America. (Rhee, Mina) (Entered: 07/29/2010)
35 APPLICATION for Admission of Judy C. Preston Pro Hac Vice by The United States of America. (Rhee, Mina) (Entered: 07/29/2010)
36 APPLICATION for Admission of Mary R. Bohan Pro Hac Vice by The United States of America. (Rhee, Mina) (Entered: 07/29/2010)
APPROVAL by Clerks Office re: 36 APPLICATION for Admission of Mary R. Bohan Pro Hac Vice, 34 APPLICATION for Admission of Robert A. Koch Pro Hac Vice, 35 APPLICATION for Admission of Judy C. Preston Pro Hac Vice. Attorney Robert Koch, Mary R. Bohan, Judy C. Preston added appearing on behalf of The United States of America (cdg) (Entered: 08/02/2010)
37 REPLY BRIEF re 28 MOTION to Dismiss filed by The State of Georgia. (Cohen, Mark) (Entered: 08/02/2010)
38 ORDER GRANTING 34 Application for Admission Pro Hac Vice of Robert A. Koch. Signed by Judge Charles A. Pannell, Jr on 8/2/2010. (adg) (Entered: 08/03/2010)
39 ORDER GRANTING 35 Application for Admission Pro Hac Vice of Judy C. Preston. Signed by Judge Charles A. Pannell, Jr on 8/2/2010. (adg) (Entered: 08/03/2010)
40 ORDER GRANTING 36 Application for Admission Pro Hac Vice of Mary R. Bohan. Signed by Judge Charles A. Pannell, Jr on 8/2/2010. (adg) (Entered: 08/04/2010)
Submission of 29 MOTION for Leave to File Excess Pages, 28 MOTION to Dismiss, submitted to District Judge Charles A. Pannell. (adg) (Entered: 08/03/2010)
NOTICE of TELECONFERENCE Hearing: Status Conference set for 8/6/2010 at 11:15 AM before Judge Charles A. Pannell Jr.. Participants are directed to dial (866)742−9889. Id No.: 93154695. The court plans to address the issues proposed by the parties.(yrm) (Entered: 08/05/2010)
41 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference held on 8/6/2010. Court heard from counsel. Hearing to be set for 11/8/2010. Written order to follow. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 08/09/2010)
42 ORDER DENYING 28 Motion to Dismiss and DIRECTING the parties to initiate discovery in the matter. The Joint Proposed Preliminary Report and Discovery Plan will be filed within 20 days of the date of this order. Discovery shall begin upon the filing of this order. Discovery in one action may be used and incorporated in the other action.. Signed by Judge Charles A. Pannell, Jr on 8/9/2010. (adg) (Entered: 08/10/2010)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 13 of 40

08/12/2010 08/12/2010 08/12/2010 08/16/2010 08/16/2010 08/16/2010
08/17/2010 08/17/2010 08/17/2010 08/23/2010
08/24/2010 08/30/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010

43 APPLICATION for Admission of Richard J. Farano Pro Hac Vice with Brief In Support by The United States of America. (Rhee, Mina) (Entered: 08/12/2010)
44 APPLICATION for Admission of Jeffrey R. Murray Pro Hac Vice with Brief In Support by The United States of America. (Rhee, Mina) (Entered: 08/12/2010)
45 APPLICATION for Admission of Aaron S. Fleisher Pro Hac Vice with Brief In Support by The United States of America. (Rhee, Mina) (Entered: 08/12/2010)
46 CERTIFICATE OF SERVICE re: First Set of Interrogatories by The United States of America.(Lapertosa, Max) (Entered: 08/16/2010)
47 CERTIFICATE OF SERVICE re: First Set of Requests for Production of Documents by The United States of America.(Lapertosa, Max) (Entered: 08/16/2010)
APPROVAL by Clerks Office re: 44 APPLICATION for Admission of Jeffrey R. Murray Pro Hac Vice, 45 APPLICATION for Admission of Aaron S. Fleisher Pro Hac Vice, 43 APPLICATION for Admission of Richard J. Farano Pro Hac Vice. Attorney Aaron S. Fleisher, Jeffrey R. Murray, Richard J. Farano added appearing on behalf of The United States of America (cdg) (Entered: 08/16/2010)
48 ORDER GRANTING 43 Application for Admission Pro Hac Vice of Richard J. Farano. Signed by Judge Charles A. Pannell, Jr on 8/17/2010. (adg) (Entered: 08/17/2010)
49 ORDER GRANTING 45 Application for Admission Pro Hac Vice of Aaron S. Fleisher. Signed by Judge Charles A. Pannell, Jr on 8/17/2010. (adg) (Entered: 08/17/2010)
50 ORDER GRANTING 44 Application for Admission Pro Hac Vice of Jeffrey R. Murray. Signed by Judge Charles A. Pannell, Jr on 8/17/2010. (adg) (Entered: 08/17/2010)
51 ANSWER to 1 COMPLAINT by Rhonda M. Medows, Sonny Perdue, Frank E. Shelp, The State of Georgia. Discovery ends on 1/20/2011.(Cohen, Mark) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/23/2010)
52 CERTIFICATE OF SERVICE for Defendants' First Set of Interrogatories to Plaintiff AND Defendants' First Request for Production of Documents to Plaintiff by The State of Georgia.(Cohen, Mark) (Entered: 08/24/2010)
53 Joint PRELIMINARY REPORT AND DISCOVERY PLAN filed by The United States of America. (Mygatt, Timothy) (Entered: 08/30/2010)
54 NOTICE to Take Deposition of All Defendants 30(b)(6) filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
55 NOTICE to Take Deposition of Shelp 30(b)(6) filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
56 NOTICE to Take Deposition of Clyde Reese 30(b)(6) filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
57 NOTICE to Take Deposition of All Defendants 30(b)(6) filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
58 NOTICE to Take Deposition of Jason Bearden filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
59 NOTICE to Take Deposition of Greg Hoyt filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
60 NOTICE to Take Deposition of William H. Janes filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
61 NOTICE to Take Deposition of Donald Manning filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 14 of 40

09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/14/2010 09/14/2010 09/14/2010 09/14/2010 09/15/2010
09/16/2010
09/17/2010
09/20/2010 09/20/2010 09/20/2010 09/20/2010

62 NOTICE to Take Deposition of Denise McClain filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
63 NOTICE to Take Deposition of William McDonald filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
64 NOTICE to Take Deposition of Karen Green McGowan filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
65 NOTICE to Take Deposition of Jewel Norman filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
66 NOTICE to Take Deposition of Andrew Phillips filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
67 NOTICE to Take Deposition of Mary Lou Rahn filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
68 NOTICE to Take Deposition of Frank Shelp filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
69 NOTICE to Take Deposition of Nirbhay Singh filed by The United States of America (Lapertosa, Max) (Entered: 09/02/2010)
70 Amended NOTICE to Take Deposition of Rule 30(b)(6) deposition of Clyde Reese, in his official capacity as Director of the Georgia Department of Community Health filed by The United States of America (Lapertosa, Max) (Entered: 09/14/2010)
71 Amended NOTICE to Take Deposition of Mary Lou Rahn filed by The United States of America (Lapertosa, Max) (Entered: 09/14/2010)
72 PROPOSED CONSENT ORDER Consent Confidentiality and Protective Order. (Cohen, Mark) (Entered: 09/14/2010)
73 NOTICE by The State of Georgia Notice of Subpoenas for Depositions of Non−Party Witnesses (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Cohen, Mark) (Entered: 09/14/2010)
74 CERTIFICATE OF SERVICE of Defendants' Responses and Objections to Plaintiff's First Set of Interrogatories and Defendants' Responses and Objections to Plaintiff's First Request for Production of Documents by The State of Georgia.(Cohen, Mark) (Entered: 09/15/2010)
75 TRANSCRIPT of Proceedings held on 8/6/10 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/7/2010. Redacted Transcript Deadline set for 10/18/2010. Release of Transcript Restriction set for 12/15/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 09/17/2010)
NOTICE The court will conduct a status conference at 2:00 p.m. on September 23, 2010 in Courtroom 2307. Participation by telephone will not be possible. The topics the court intends to address are: (1) the proposed preliminary report and discovery plan; and (2) the amici curiae's motion seeking copies of discovery. (mam) (Entered: 09/17/2010)
76 ORDER granting 33 Application for Admission Pro Hac Vice of Max Lapertosa. Signed by Judge Charles A. Pannell, Jr on 9/20/2010. (adg) (Entered: 09/20/2010)
77 ORDER granting 32 Application for Admission Pro Hac Vice of Timothy D. Mygatt. Signed by Judge Charles A. Pannell, Jr on 9/20/2010. (adg) (Entered: 09/20/2010)
78 Amended NOTICE to Take Deposition of 30(b)(6) GAMH Budget filed by The United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
79 Amended NOTICE to Take Deposition of 30(b)(6) Housing filed by The United States of America (Fleisher, Aaron) (Entered: 09/20/2010)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 15 of 40

09/20/2010 09/20/2010 09/20/2010 09/20/2010 09/21/2010 09/23/2010 09/24/2010 09/24/2010 09/24/2010 09/24/2010 09/24/2010 09/24/2010
09/24/2010
09/26/2010 09/27/2010
09/28/2010 09/28/2010 09/28/2010 09/28/2010

80 Amended NOTICE to Take Deposition of Greg Hoyt filed by The United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
81 Amended NOTICE to Take Deposition of William Janes filed by The United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
82 Amended NOTICE to Take Deposition of Jewel Norman filed by The United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
83 Amended NOTICE to Take Deposition of Denise McClain filed by The United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
84 NOTICE by The State of Georgia re: Subpoenas for Depositions of Non−Party Witnesses (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cohen, Mark) (Entered: 09/21/2010)
NOTICE re 29 MOTION for Leave to File Excess Pages, 27 MOTION for Leave to File Excess Pages are GRANTED. (mam) (Entered: 09/23/2010)
85 Amended NOTICE to Take Deposition of William Janes filed by The United States of America (Fleisher, Aaron) (Entered: 09/24/2010)
86 Amended NOTICE to Take Deposition of Donald Manning filed by The United States of America (Fleisher, Aaron) (Entered: 09/24/2010)
87 Amended NOTICE to Take Deposition of Karen Green−McGowan filed by The United States of America (Fleisher, Aaron) (Entered: 09/24/2010)
88 Amended NOTICE to Take Deposition of Frank Shelp filed by The United States of America (Fleisher, Aaron) (Entered: 09/24/2010)
89 Amended NOTICE to Take Deposition of Jewel Norman filed by The United States of America (Fleisher, Aaron) (Entered: 09/24/2010)
90 MOTION for Immediate Relief by The United States of America. (Attachments: # 1 Memorandum of Law, # 2 Text of Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27)(adg) (Filed pursuant to 9/24/2010 Order in 1:09−cv−119−CAP) (Entered: 09/24/2010)
91 RESPONSE in Opposition re 90 MOTION for Immediate Relief filed by Rhonda M. Medows, Sonny Perdue, Frank E. Shelp, The State of Georgia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(adg) (Filed pursuant to 9/24/2010 Order in 1:09−cv−119−CAP) (Entered: 09/24/2010)
92 NOTICE by The State of Georgia re: Amended Subpoena for Deposition of Non−Party Witness (Gates) (Attachments: # 1 Exhibit A)(Cohen, Mark) (Entered: 09/26/2010)
93 ORDER approving 53 Preliminary Report and Discovery Plan, except as herein modified: The parties shall jointly file a proposed schedule for PhaseTwo of discovery within 14 days of the date the court issues a ruling regarding the issues presented at the 11/8/2010 hearing. Signed by Judge Charles A. Pannell, Jr on 9/27/2010. (adg) (Entered: 09/27/2010)
94 NOTICE of Appearance by Kevin Gregory Meeks on behalf of The State of Georgia (Meeks, Kevin) (Entered: 09/28/2010)
95 NOTICE of Appearance by Jaime L. Theriot on behalf of The State of Georgia (Theriot, Jaime) (Entered: 09/28/2010)
96 NOTICE of Appearance by Jeremy U. Littlefield on behalf of The State of Georgia (Littlefield, Jeremy) (Entered: 09/28/2010)
97 NOTICE of Appearance by Jeremy Patrick Burnette on behalf of The State of Georgia (Burnette, Jeremy) (Entered: 09/28/2010)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 16 of 40

09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/29/2010 09/29/2010 09/29/2010 09/29/2010 09/29/2010 10/01/2010 10/06/2010 10/07/2010 10/12/2010 10/19/2010 10/21/2010
10/22/2010 10/26/2010 10/29/2010
10/29/2010 12/20/2010 12/22/2010 01/14/2011

98 NOTICE of Appearance by Lynette Eaddy Smith on behalf of The State of Georgia (Smith, Lynette) (Entered: 09/28/2010)
99 NOTICE of Appearance by Steven J. Hewitson on behalf of The State of Georgia (Hewitson, Steven) (Entered: 09/28/2010)
100 NOTICE of Appearance by Lindsey Elisa Bowen on behalf of The State of Georgia (Bowen, Lindsey) (Entered: 09/28/2010)
101 CERTIFICATE OF SERVICE filed by The United States of America re: DISCOVERY (Fleisher, Aaron) (Entered: 09/28/2010)
102 CERTIFICATE OF SERVICE filed by The United States of America re: DISCOVERY (Fleisher, Aaron) (Entered: 09/28/2010)
103 First NOTICE to Take Deposition of BEVERLY ROLLINS filed by The United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
104 First NOTICE to Take Deposition of DR. NIRBHAY N. SINGH filed by The United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
105 Amended NOTICE to Take Deposition of DR. WILLIAM MCDONALD filed by The United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
106 Amended NOTICE to Take Deposition of 30(B)(6) DEPOSITION filed by The United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
107 Amended NOTICE to Take Deposition of 30(B)(6) DEPOSITION filed by The United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
108 NOTICE of Appearance by Jason S. Naunas on behalf of The State of Georgia (Naunas, Jason) (Entered: 10/01/2010)
109 NOTICE of Appearance by Mark J. Cicero on behalf of The State of Georgia (Cicero, Mark) (Entered: 10/06/2010)
110 CERTIFICATE OF SERVICE re: Supplemental Discovery by The United States of America.(Murray, Jeffrey) (Entered: 10/07/2010)
111 CERTIFICATE OF SERVICE for Rule 26 Expert Disclosures by The United States of America.(Fleisher, Aaron) (Entered: 10/12/2010)
112 Joint MOTION for Settlement by The United States of America. (Koch, Robert) (Entered: 10/19/2010)
NOTICE The hearing scheduled for November 8, 2010 is canceled. All discovery and briefing related to this hearing is to be suspended. The parties' settlement agreement is under review by the court. (mam) (Entered: 10/21/2010)
113 RESPONSE in Support re 112 Joint MOTION for Settlement filed by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Entered: 10/22/2010)
114 STIPULATION re 112 Joint MOTION for Settlement by The United States of America. (Koch, Robert) (Entered: 10/26/2010)
115 ORDER ADOPTING 112 Joing Motion to Enter Settlement Agreement; DISMISSING as moot 90 Motion for Preliminary Injunction; The clerk is DIRECTED toadministratively close this civil action. The court will retain jurisdiction to enforce the Settlement Agreement (as revised). Signed by Judge Charles A. Pannell, Jr on 10/29/2010. (adg) (Entered: 11/01/2010)
Civil Case Terminated. (adg) (Entered: 11/01/2010)
Funds Deposited per Order: $ 100,000.00, receipt number 100031077 (adg) (Entered: 12/20/2010)
116 NOTICE Of Filing Joint Filing of the Budget for the Independent Reviewer by The United States of America (Koch, Robert) (Entered: 12/22/2010)
117 Mail Returned as Undeliverable. Mail sent to Samuel R. Bagenstos re 23 Order to Extend Time to Answer. (adg) (Entered: 01/19/2011)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 17 of 40

02/22/2011
03/03/2011 03/23/2011 03/24/2011
04/19/2011 04/20/2011
05/02/2011 05/18/2011 05/26/2011
05/26/2011 06/01/2011 07/07/2011 07/15/2011
07/15/2011

118 ORDER DIRECTING the Clerk to make an interim payment to Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., in the amount of $10,656.50. Signed by Judge Charles A. Pannell, Jr on 2/22/2011. Thispayment shall be made from the monies deposited by the State ofGeorgia into the Registry of the Court pursuant to Section VI(I)(2)of the court's October 29, 2010 order Doc. No. 115 (Attachments: # 1 Statement of Fees and Expenses)(cc: Financial)(adg) (Entered: 02/22/2011)
Funds Deposited per Order: $ 10,656.00, receipt number 100033176 (adg) (Entered: 03/04/2011)
Funds Deposited per Order: $ 9,613.21, receipt number 1000033825 (adg) (Entered: 03/23/2011)
119 ORDER DIRECTING the Clerk to make an interim payment to Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., in the amount of $9,613.21. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI (I) (2) of the court's 10/29/2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 3/24/2011. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 03/24/2011)
Funds Deposited per Order: $ 7,562.69, receipt number 100034690 (adg) (Entered: 04/20/2011)
120 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $7,562.69. Thispayment shall be made from the monies deposited by the State ofGeorgia into the Registry of the Court pursuant to Section VI(I)(2)of the court's 115 Order of 10/29/2010. Signed by Judge Charles A. Pannell, Jr on 4/20/2011. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 04/20/2011)
121 NOTICE Of Filing Joint Filing of the Budget for the Independent Reviewer by The United States of America (Koch, Robert) (Entered: 05/02/2011)
122 NOTICE of Appearance by Thomas Jackson Morse on behalf of The United States of America (Morse, Thomas) (Entered: 05/18/2011)
123 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $8,967.88. Thispayment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 115 Order. Signed by Judge Charles A. Pannell, Jr on 5/26/2011 (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 05/26/2011)
124 Certification of Consent to Substitution of Counsel. Thomas Jackson Morse replacing attorney Aaron S. Fleisher; Emily A. Gunston; Max P. Lapertosa; Jeffrey R. Murray; Timothy D. Mygatt; Judy C. Preston; Mina Rhee; Shanetta Y. Cutlar and Richard J. Farano. (Morse, Thomas) (Entered: 05/26/2011)
Funds Deposited per Order: $ 8,967.88, receipt number 100035877 (adg) (Entered: 06/01/2011)
Funds Deposited per Order: $ 16,119.06, receipt number 100036916 (adg) (Entered: 07/07/2011)
125 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $16,119.06. Signed by Judge Charles A. Pannell, Jr on 7/15/2011. (Attachments: # 1 Billing Statements)(adg) (Entered: 07/15/2011)
126 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $30,747.26. Signed by Judge Charles A. Pannell, Jr on 7/15/2011. (Attachments: # 1 Billing Statements)(adg) (Entered: 07/15/2011)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 18 of 40

07/15/2011 08/23/2011 08/26/2011
09/15/2011
09/20/2011 09/20/2011 10/07/2011 10/17/2011
10/25/2011 11/15/2011
11/22/2011 12/08/2011
12/12/2011 01/23/2012

Funds Deposited per Order: $ 30,747.26, receipt number 100037196 (adg) (Entered: 07/15/2011)
Funds Deposited per Order: $ 54,172.31, receipt number 38347. (jtj) (Entered: 08/24/2011)
127 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $54,172.31. Signed by Judge Charles A. Pannell, Jr. on 08/26/2011. (Attachments: # 1 Invoice Attachment) (jtj) (Entered: 08/26/2011)
128 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $49,484.06. Signed by Judge Charles A. Pannell, Jr. on 09/15/2011. (Attachments: # 1 Invoice Attachment) (jtj) (Entered: 09/15/2011)
129 Consent MOTION for Extension of Time File Report of the Independent Reviewer by The United States of America. (Koch, Robert) (Entered: 09/20/2011)
130 ORDER GRANTING 129 Motion for Extension of Time until 10/7/2011 for filing the Independent Reviewer's compliance report. Signed by Judge Charles A. Pannell, Jr on 9/20/2011. (adg) (Entered: 09/21/2011)
131 NOTICE Of Joint Filing of the Report of the Independent Reviewer by The United States of America (Koch, Robert) Modified on 10/7/2011 to correct docket text. (jtj) (Entered: 10/07/2011)
132 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No.1204, West Hollywood, CA 90069 in the amount of $19,204.58. Signed by Judge Charles A. Pannell, Jr on 10/17/2011. (Attachments: # 1 Billing Statements and Supporting Documents)(adg) (Entered: 10/17/2011)
Funds Deposited per Order: $ 19,204.58, receipt number 100040124. (jtj) (Entered: 10/26/2011)
133 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $9,281.19. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's 10/29/ 2010 Order 115 . Signed by Judge Charles A. Pannell, Jr. on 11/15/2011. (Attachments: # 1 Statement of Fees and Expenses) (jtj) (Entered: 11/15/2011)
Funds Deposited per Order: $ 9,281.19, receipt number 40931. (jtj) (Entered: 11/22/2011)
134 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $6,476.87. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI (1) (2) of the court's 115 Order of 10/29/2010. Signed by Judge Charles A. Pannell, Jr on 12/8/2011. (Attachments: # 1 Statement of Fees)(adg) (Entered: 12/09/2011)
Funds Deposited per Order: $ 6,476.87, receipt number 41544. (jtj) (Entered: 12/13/2011)
135 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $6,160.41. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the Court's 115 order of 10/29/2010. Signed by Judge Charles A. Pannell, Jr on 01/23/2012. (Attachments: # 1 Statement of Fees)(jtj) (Entered: 01/23/2012)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 19 of 40

02/14/2012
02/15/2012 03/16/2012
03/20/2012 04/10/2012
04/11/2012 05/01/2012 05/11/2012 05/17/2012
06/06/2012
06/14/2012 07/12/2012
07/17/2012

136 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $4,837.84. Thispayment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115]. Signed by Judge Charles A. Pannell, Jr on 02/14/2012. (Attachments: # 1 Statement of Fees) (jtj) (Entered: 02/14/2012)
Funds Deposited per Orders 135 and 136 : $ 10,998.25, receipt number 100043381. (jtj) (Entered: 02/15/2012)
137 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $1,500.00. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court. Signed by Judge Charles A. Pannell, Jr. on 3/16/2012. (Attachments: # 1 Statement of Fees) (jtj) (Entered: 03/16/2012)
Funds Deposited per Order: $ 1,500.00, receipt number GAN100044380. (jtj) (Entered: 03/21/2012)
138 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $7,844.53. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's 115 Order of 10/29/2010. Signed by Judge Charles A. Pannell, Jr on 4/10/2012. (Attachments: # 1 Statement of Fees)(adg) (Entered: 04/10/2012)
Funds Deposited per Order: $ 7,844.53, receipt number 100045017 (adg) (Entered: 04/12/2012)
139 NOTICE Of Filing of the Budget for the Independent Reviewer for the State Fiscal Year 2013 by The State of Georgia ex rel (Cohen, Mark) (Entered: 05/01/2012)
Funds Deposited per Order: $ 8,973.63, receipt number 100045941 (adg) (Entered: 05/14/2012)
140 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $8,973.63. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's 115 Order of 10/29/2010. Signed by Judge Charles A. Pannell, Jr. on 5/17/2012. (Attachments: # 1 Statement of Fees) (jtj) (Entered: 05/17/2012)
141 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $6,352.14. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 6/6/2012. (Attachments: # 1 Statement of Fees)(adg) (Entered: 06/06/2012)
Funds Deposited per Order: $ 6,352.14, receipt number GAN20002110. (sk) (Entered: 06/14/2012)
142 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $52,291.90. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 7/12/2012. (Attachments: # 1 Statement of Fees)(adg) (Entered: 07/12/2012)
Funds Deposited per Order: $ 52,291.90, receipt number 100047645 (adg) (Entered: 07/18/2012)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 20 of 40

07/18/2012 07/18/2012
07/25/2012 07/30/2012 07/31/2012
07/31/2012 08/22/2012 08/23/2012 08/27/2012
08/28/2012 08/29/2012 09/10/2012 09/18/2012 09/19/2012

143 Joint MOTION for Order for a Status Conference by The United States of America. (Koch, Robert) (Entered: 07/18/2012)
144 The Parties are ORDERED to file a Joint Status Report no later than 8/1/2012, providing details on why modification is necessary and what practical effect the changes will have on the Settlement Agreement. Upon receipt of status report, the court will schedule a hearing. Signed by Judge Charles A. Pannell, Jr on 7/18/2012. (adg) (Entered: 07/18/2012)
145 STATUS REPORT regarding modifications by The United States of America. (Morse, Thomas) (Entered: 07/25/2012)
147 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference held on 7/30/2012 on Joint Motion for Status Conference re: modifications to Settlement Agreement. Hearing set for 8/28/2012 at10:00 a.m. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 08/01/2012)
146 ORDER GRANTING 143 Motion for Status Conference. Hearing set for 8/28/2012 at 10:00 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr. The Clerk is DIRECTED to mail a copy of this order to the counsel for the objectors/amici curiae listed on the docket in the related case, United States v. State of Georgia, 1:09−CV−0119−CAP. The objectors/amici curiae may file any comments on the proposed modifications to the Settlement Agreement by 8/23/2012. The hearing will be open for all to attend. Signed by Judge Charles A. Pannell, Jr. on 7/31/2012. (adg) (Entered: 07/31/2012)
Clerks Certificate of Mailing to Kenneth S. Canfield, Ira A. Burnim, Lewis Bossing, Andrew S. Penn re 146 Order on Motion for Status Conference. (adg) (Entered: 07/31/2012)
Funds Deposited per Order: $ 76,411.37, receipt number 100048657 (adg) (Entered: 08/22/2012)
148 NOTICE Of Filing Amici Curiae's Comments on the Parties' Proposed Modifications to the Settlement Agreement by Georgia Advocacy Office, Inc. re 145 Status Report (Norris, Joshua) (Entered: 08/23/2012)
149 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $76,411.37. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 8/27/2012. (Attachments: # 1 Statement of Fees)(adg) (Entered: 08/27/2012)
150 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Status Conference held on 8/28/2012 re the proposed modifications to the settlement agreement. Court heard from counsel and Elizabeth Jones. Written order to follow. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 08/28/2012)
151 ORDER MODIFYING SETTLEMENT AGREEMENT re: 112 Joint MOTION for Settlement and 115 Order on Motion for Settlement. Signed by Judge Charles A. Pannell, Jr on 8/29/2012. (adg) (Entered: 08/29/2012)
152 Certification of Consent to Substitution of Counsel. Jennifer Dalton replacing attorney Mark J. Cicero and Jason S. Naunas. (Dalton, Jennifer) (Entered: 09/10/2012)
Funds Deposited per Order: $ 21,057.05, receipt number 100049346 (adg) (Entered: 09/19/2012)
153 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $21,057.05. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 9/19/2012. (Attachments: # 1 Statement of Fees)(adg) (Entered: 09/19/2012)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 21 of 40

09/20/2012 09/21/2012 09/26/2012 09/27/2012
09/27/2012 09/27/2012 10/10/2012 10/12/2012
10/12/2012 11/20/2012
11/20/2012 11/20/2012 12/11/2012
12/14/2012 01/28/2013 01/29/2013

154 NOTICE by The State of Georgia ex rel, The United States of America Joint Filing of the Report of the Independent Reviewer (Cohen, Mark) (Entered: 09/20/2012)
155 APPLICATION for Admission of Katherine Houston Pro Hac Vice by The United States of America. (Hughes, Aileen) (Entered: 09/21/2012)
APPROVAL by Clerks Office re: 155 APPLICATION for Admission of Katherine Houston Pro Hac Vice. Attorney Katherine Houston added appearing on behalf of The United States of America (pb) (Entered: 09/26/2012)
156 TRANSCRIPT of Proceedings held on 8/28/12 (Motion Hrg), before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/18/2012. Redacted Transcript Deadline set for 10/29/2012. Release of Transcript Restriction set for 12/26/2012. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 09/27/2012)
157 NOTICE by The United States of America of Consent to Withdrawal (Morse, Thomas) (Entered: 09/27/2012)
158 ORDER GRANTING 155 Application for Admission Pro Hac Vice of Katherine Houston. Signed by Judge Charles A. Pannell, Jr on 9/27/2012. (adg) (Entered: 09/28/2012)
Funds Deposited per 159 Order in the amount of $8,708.82, receipt number GAN100049955. (jtj) (Entered: 10/12/2012)
159 ORDER DIRECTING Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., in the amount of $8,708.82. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order. Signed by Judge Charles A. Pannell, Jr. on 10/12/2012. (Attachments: # 1 Statement of Fees and Expenses)(dfb) (Entered: 10/12/2012)
Clerks Certificate of Mailing. Copy of 159 Order sent to Elizabeth Jones. (dfb) (Entered: 10/12/2012)
160 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $1,636.26. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order 115 . Signed by Judge Charles A. Pannell, Jr. on 11/20/12. (Attachments: # 1 Statement of Fees and Expenses)(cem) (Entered: 11/20/2012)
Clerks Certificate of Mailing as to Katherine Houston re 160 Order. (cem) (Entered: 11/20/2012)
Funds Deposited per 160 Order: $ 1636.26, receipt number 51008. (cem) (Entered: 11/20/2012)
161 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $10,483.90. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order 115 . Signed by Judge Charles A. Pannell, Jr. on 12/11/12. (cem) (Additional attachment(s) added on 12/11/2012: # 1 Statement of Fees and Expenses) (cem). (Entered: 12/11/2012)
Funds Deposited per Order: 161 $ 10,483.90, receipt number 51706. (cem) (Entered: 12/14/2012)
Funds Deposited per Order: $ 7,282.61, receipt number 100052750 (adg) (Entered: 01/29/2013)
162 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer,Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No.

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 22 of 40

02/20/2013
02/21/2013 03/20/2013 03/21/2013
04/04/2013 04/17/2013
04/23/2013 05/08/2013
05/14/2013 06/24/2013
07/12/2013

1204, West Hollywood, CA 90069 in the amount of $7,282.61. This payment shall be made from the monies deposited by the State of Georgia into theRegistry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 1/29/2013. (Attachments: # 1 Statement of Fees)(adg) (Entered: 01/29/2013)
163 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $17,305.80. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 2/20/2013. (Attachments: # 1 Statement of Fees)(adg) (Entered: 02/20/2013)
Funds Deposited per Order: $ 17,305.80, receipt number 100053459 (adg) (Entered: 02/22/2013)
Funds Deposited per Order: $ 7,066.07, receipt number 100054263 (adg) (Entered: 03/21/2013)
164 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $7,066.07. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order Doc. No. 115 Signed by Judge Charles A. Pannell, Jr on 3/21/2013. (Attachments: # 1 Statement of Fees)(adg) (Entered: 03/21/2013)
165 NOTICE Of Filing Joint Filing of Budget of Independent Reviewer by The United States of America (Koch, Robert) (Entered: 04/04/2013)
166 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $9,626.34. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 4/17/2013. (Attachments: # 1 Statement of Fees)(adg) (Entered: 04/18/2013)
Funds Deposited per Order: $ 9,626.34, receipt number 100055165 (adg) (Entered: 04/25/2013)
167 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $21,542.49. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 5/8/2013. (Attachments: # 1 Statement of Fees)(adg) (Entered: 05/09/2013)
Funds Deposited per Order: $ 21,542.49, receipt number 100055791 (adg) (Entered: 05/16/2013)
168 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $47,332.71. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order Doc. No. 115 . (ddm) (Additional attachment(s) added on 6/25/2013: # 1 Statement of Fees and Expenses) (adg). (Entered: 06/24/2013)
169 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $24,818.09. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 7/12/2013. (Attachments: # 1 Statement of

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 23 of 40

07/22/2013 07/26/2013 08/15/2013
08/16/2013 09/06/2013
09/12/2013 09/17/2013
09/19/2013 10/07/2013
10/15/2013 11/14/2013
11/21/2013 12/04/2013

Fees and Expenses)(adg) (Entered: 07/12/2013)
170 Joint MOTION for Order to Modify the Agreement by The United States of America. (Koch, Robert) (Entered: 07/22/2013)
171 ORDER GRANTING 170 Motion to Modify 112 115 & 151 Settlement Agreement.. Signed by Judge Charles A. Pannell, Jr on 7/26/2013. (adg) (Entered: 07/26/2013)
172 ORDER the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $73,117.49. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 8/15/2013. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 08/15/2013)
Funds Deposited per Order: $ 73,117.49, receipt number 100058181 (adg) (Entered: 08/20/2013)
173 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $13,455.46. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 9/6/2013. (Attachments: # 1 Billing Statement)(adg) (Entered: 09/06/2013)
Funds Deposited per Order: $ 35,359.55, receipt number 100058818 (adg) (Entered: 09/12/2013)
174 ORDER AMENDING the 173 Order of Disbursement of Funds. The clerk isDIRECTED to make payment to Elizabeth Jone, Fieldstone Partnership, Inc.,1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in theamount of $35,359.55 This payment shall be made from the moniesdeposited by the State of Georgia into the Registry of the Court pursuant toSection VI(I)(2) of the courts October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 9/17/2013. (adg) Modified on 9/17/2013 (adg). (Entered: 09/17/2013)
175 NOTICE by The State of Georgia ex rel, The United States of America Joint Filing of the Report of the Independent Reviewer (Koch, Robert) (Entered: 09/19/2013)
176 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $36,509.37. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 10/7/2013. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 10/08/2013)
Funds Deposited per Order: $ 36,509.37, receipt number 100059584 (adg) (Entered: 10/16/2013)
177 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $28,143.01. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . (Attachments: # 1 Statement of fees and expenses). Signed by Judge Charles A. Pannell, Jr. on 11/14/2013. (mdy) (Entered: 11/15/2013)
Funds Deposited per Order: $ 28,143.01, receipt number 100060589 (adg) (Entered: 11/25/2013)
178 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 24 of 40

12/10/2013 01/10/2014
01/15/2014 02/11/2014
02/14/2014
02/18/2014 02/25/2014 03/11/2014 03/11/2014 03/12/2014
03/24/2014

of $22,529.67. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 12/4/2013. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 12/05/2013)
Funds Deposited per Order: $ 22,529.87, receipt number 100061034 (adg) (Entered: 12/11/2013)
179 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $20,291.12. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 1/10/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 01/10/2014)
Funds Deposited per Order: $ 20,291.12, receipt number 100061919 (adg) (Entered: 01/15/2014)
180 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $38,460.07. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I) (2) of the courts October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr. on 2/11/2014. (dfb) (Additional attachment added on 2/14/2014: # 1 Statement of Fees and Expenses) (dfb (Entered: 02/14/2014)
181 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $6,903.45. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I) (2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr. on 2/14/2014. (Attachments: # 1 Statement of Fees and Expenses) (dfb) (Entered: 02/14/2014)
Funds Deposited per Order: $ 11,142.53, receipt number 100062578 (adg) (Entered: 02/19/2014)
Funds Deposited per Order: $ 27,317.54, receipt number 100062813 (adg) (Entered: 02/26/2014)
182 NOTICE Of Filing Joint Filing of Budget Modification for the Independent Reviewer by The United States of America (Attachments: # 1 Appendix Budget Modification Sheet)(Houston, Katherine) (Entered: 03/11/2014)
Funds Deposited per Order: $ 38,256.18, receipt number 100063236 (adg) (Entered: 03/12/2014)
183 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $38,256.18. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 3/11/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 03/12/2014)
184 NOTICE Of Filing Joint Filing of the Supplemental Report of the Independent Reviewer by The United States of America (Attachments: # 1 Supplement Attachment A − Supplemental Report of Independent Reviewer, # 2 Supplement Attachment 1, # 3 Supplement Attachment 2, # 4 Supplement Attachment 3)(Houston, Katherine) (Entered: 03/24/2014)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 25 of 40

04/04/2014
04/09/2014 04/23/2014 05/09/2014
05/19/2014 06/10/2014
06/16/2014 07/07/2014
07/11/2014 08/13/2014
08/19/2014 09/10/2014

185 ORDER OF DISBURSEMENT of Funds. ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $8,145.90. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 4/4/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 04/07/2014)
Funds Deposited per Order: $ 8,145.90, receipt number 100064016 (adg) (Entered: 04/09/2014)
186 NOTICE Of Filing Joint Filing of Budget of Independent Reviewer by The United States of America (Houston, Katherine) (Entered: 04/23/2014)
187 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $10,249.32. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 5/9/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 05/12/2014)
Funds Deposited per Order: $ 10,249.32, receipt number 100064982 (adg) (Entered: 05/20/2014)
188 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $19,090.21. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 6/10/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 06/11/2014)
Funds Deposited per Order: $19,090.21, receipt number GAN100065658. (bdb) (Entered: 06/17/2014)
189 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $18,841.00. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 7/7/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 07/07/2014)
Funds Deposited per Order: $ 18,841.00, receipt number 100066333 (adg) (Entered: 07/14/2014)
190 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $49,050.29. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 8/13/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 08/14/2014)
Funds Deposited per Order: $ 49,050.29, receipt number 100067288 (adg) (Entered: 08/20/2014)
191 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $42,138.51. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 26 of 40

09/12/2014 09/18/2014 10/07/2014
10/09/2014 11/10/2014
11/13/2014 11/20/2014 12/12/2014 12/16/2014
01/09/2015
01/15/2015 02/10/2015

October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr. on 9/10/2014. (Attachments: # 1 Statement of Fees and Expenses Part 1, # 2 Statement of Fees and Expenses Part 2)(bdb) (Entered: 09/11/2014)
Funds Deposited per Order: $42,138.51, receipt number GAN100067846. (bdb) (Entered: 09/15/2014)
192 NOTICE Of Filing Joint Filing of the Report of the Independent Reviewer by The United States of America (Attachments: # 1 Exhibit, # 2 Exhibit)(Houston, Katherine) (Entered: 09/18/2014)
193 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $24,186.89. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 10/7/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 10/07/2014)
Funds Deposited per Order: $ 24,186.89, receipt number 100068467 (adg) (Entered: 10/09/2014)
194 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $40,582.20. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 11/10/2014. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 11/10/2014)
Funds Deposited per Order: $ 40,582.20, receipt number 100069271 (adg) (Entered: 11/14/2014)
195 NOTICE by The State of Georgia ex rel Notice of Withdrawal of Counsel for Defendants (Cohen, Mark) (Entered: 11/20/2014)
Funds Deposited per Order: $ 12,407.93, receipt number 100069967 (adg) (Entered: 12/15/2014)
196 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $12,407.93. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 12/16/2014. (Attachments: # 1 Statement of Fees and Expenses)(dfb) (Entered: 12/16/2014)
197 ORDER OF DISBURSEMENT of Funds. the Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $17,869.61. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 1/9/2015. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 01/09/2015)
Funds Deposited per Order: $ 17,869.61, receipt number 100070661 (adg) (Entered: 01/15/2015)
198 ORDER OF DISBURSEMENT of Funds. the Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $19,846.84. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 27 of 40

02/11/2015 03/10/2015
03/17/2015 03/20/2015 04/09/2015
04/16/2015 05/07/2015
05/12/2015 05/15/2015 06/10/2015
06/18/2015 07/15/2015

2/10/2015. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 02/10/2015)
Funds Deposited per Order: $ 19,846.84, receipt number 100071349 (adg) (Entered: 02/11/2015)
199 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $28,346.93. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 3/10/2015. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 03/10/2015)
Funds Deposited per Order: $ 28,346.93, receipt number 100072213 (adg) (Entered: 03/19/2015)
200 NOTICE of Joint Filing of the Supplemental Report of the Independent Reviewer by The United States of America (Attachments: # 1 Supplemental Report of the Independent Reviewer)(Houston, Katherine) Modified on 3/25/2015 (adg). (Entered: 03/20/2015)
201 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $18,715.10. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr. on 4/9/15. (Attachments: # 1 Statement of Fees and Expenses)(jpa) Modified on 5/8/2015 (adg). (Entered: 04/10/2015)
Funds Deposited per Order: $ 18,715.10, receipt number GAN100072886 (jpa) (Entered: 04/16/2015)
202 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $10,685.89. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 5/7/2015. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 05/08/2015)
203 NOTICE Of Filing Joint Filing of Budget of Independent Reviewer by The United States of America (Houston, Katherine) (Entered: 05/12/2015)
Funds Deposited per Order: $ 10,685.89, receipt number 100073653 (adg) (Entered: 05/15/2015)
204 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $8,635.68. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115. Signed by Judge Charles A. Pannell, Jr on 6/10/2015. (Attachments: # 1 Statement of Fees and Expenses)(dfb) (Entered: 06/11/2015)
Funds Deposited per Order: $ 8,635.68, receipt number 100074460 (adg) (Entered: 06/23/2015)
205 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $34,557.58. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115]. Signed by Judge Charles A. Pannell, Jr on

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 28 of 40

07/20/2015 08/07/2015
08/13/2015 09/10/2015
09/15/2015 09/18/2015 09/23/2015
10/13/2015
10/15/2015 10/16/2015 10/21/2015 10/22/2015 11/10/2015

7/15/2015. (Attachments: # 1 Statement of Fees and Expenses)(dfb) (Entered: 07/15/2015)
Funds Deposited per Order: $ 34,557.58, receipt number GAN100075197 (jpa) (Entered: 07/21/2015)
206 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $88,878.68. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115]. Signed by Judge Charles A. Pannell, Jr on 8/7/2015. (Attachments: # 1 Attachment: Statement of Fees and Expenses)(dfb) (Entered: 08/07/2015)
Funds Deposited per Order: $ 88,878.68, receipt number 100075881 (adg) (Entered: 08/13/2015)
207 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $44,381.25. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 9/10/2015. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 09/10/2015)
Funds Deposited per Order: $ 44,381.25, receipt number 100076719 (adg) (Entered: 09/15/2015)
208 NOTICE by The United States of America Joint Filing of the Report of the Independent Reviewer (Attachments: # 1 Appendix, # 2 Appendix)(Houston, Katherine) (Entered: 09/18/2015)
209 ORDER setting a Non−Evidentiary Hearing for 10/29/2015 at 10:30 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr. The court DIRECTS the parties to jointly file an agenda summarizing all issues to be addressed during the hearing. The agenda shall be filed no later than 10/15/2015. Signed by Judge Charles A. Pannell, Jr on 9/23/2015. (adg) (Entered: 09/23/2015)
210 ORDER OF DISBURSEMENT of Funds. The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $14,142.56. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order Doc. No. 115 . Signed by Judge Charles A. Pannell, Jr on 10/13/2015. (Attachments: # 1 Statement of Fees and Expenses)(adg) (Entered: 10/14/2015)
211 NOTICE by The United States of America Joint Filing of Agenda for Non−Evidentiary Hearing (Houston, Katherine) (Entered: 10/15/2015)
Funds Deposited per Order: $ 14,142.56, receipt number 100077524 (adg) (Entered: 10/16/2015)
NOTICE Resetting Non−Evidentiary Hearing for 12/17/2015 at 02:00 PM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr.. (dcs) (Entered: 10/21/2015)
Remark: Received electronic notification that attorney Jeremy Burnette is no longer employed with Kilpatrick Townsend & Stockton. His electronic notification has been turned off. A notice of withdrawal or substitution of counsel should be filed by the firm. (aar) (Entered: 10/22/2015)
212 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $8,760.38. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ].

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 29 of 40

12/08/2015 12/09/2015
12/09/2015
12/09/2015
12/11/2015 12/11/2015 12/14/2015 12/14/2015 12/15/2015 12/15/2015 12/17/2015
12/17/2015 12/18/2015

Signed by Judge Charles A. Pannell, Jr on 11/10/2015. (tcc) (Additional attachment(s) added on 11/10/2015: # 1 Attachment # 1) (tcc). (Entered: 11/10/2015)
Interim payment to the Independent Reviewer: $8,541.86, receipt number 78939. (tcc) (Entered: 12/08/2015)
213 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $8,541.86. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 12/9/2015. (Attachments: # 1 Billing Statement)(tcc) (Entered: 12/09/2015)
214 Amicus Curiae APPEARANCE entered by Kenneth S. Canfield on behalf of Cynthia Wainscott, Carter Center Mental Health Program, Mental Health America of Georgia, Georgia Mental Health Consumer Network, Georgia Parent Support Network, John J Gates, Georgia Council on Substance Abuse, Atlanta Legal Aid Society's Disability Rights Project, National Alliance on Mental Illness − Georgia. (Canfield, Kenneth) (Entered: 12/09/2015)
215 APPLICATION for Admission of Lewis Bossing Pro Hac Vice (Application fee $ 150, receipt number 113E−6184668)by Atlanta Legal Aid Society's Disability Rights Project, Carter Center Mental Health Program, John J Gates, Georgia Council on Substance Abuse, Georgia Mental Health Consumer Network, Georgia Parent Support Network, Mental Health America of Georgia, National Alliance on Mental Illness − Georgia, Cynthia Wainscott. (Canfield, Kenneth) (Entered: 12/09/2015)
216 NOTICE by The United States of America Notice of United States' Filing of Status Conference Agenda (Houston, Katherine) (Entered: 12/11/2015)
217 NOTICE by The State of Georgia ex rel State Defendants Notice Regarding Non−Evidentiary Hearing on December 17, 2015 (Theriot, Jaime) (Entered: 12/11/2015)
218 NOTICE Of Filing Amici Curiae's Notice Regarding Non−Evidentiary Hearing by Georgia Advocacy Office, Inc. (Norris, Joshua) (Entered: 12/14/2015)
219 NOTICE by The United States of America Statement in Support of Status Conference Agenda (Houston, Katherine) (Entered: 12/14/2015)
220 NOTICE Of Filing Statement in Support of Status Conference Agenda by The United States of America re 219 Notice (Other) Notice of Filing Exhibit 1 in Support of United States' Statement in Support of Status Conference Agenda (Houston, Katherine) (Entered: 12/15/2015)
221 NOTICE by The State of Georgia ex rel re 219 Notice (Other) State Defendants Response to Plaintiffs Statement Regarding December 17, 2015 Hearing (Theriot, Jaime) (Entered: 12/15/2015)
222 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Status Conference held on 12/17/2015. The court heard the report of the independent reviewer Elizabeth Jones. The U.S. government addressed the court regarding the settlement agreement and compliance. The State of Georgia responded regarding compliance and continuing negotiations. The court continued the hearing until 1/6/2016 at 2:00pm. (Court Reporter Debra Bull)(tcc) (Entered: 12/17/2015)
NOTICE of Hearing: Non−Evidentiary Hearing set for 1/6/2016 at 02:00 PM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr.. (dcs) (Entered: 12/17/2015)
APPROVAL by Clerks Office re: 215 APPLICATION for Admission of Lewis Bossing Pro Hac Vice (Application fee $ 150, receipt number 113E−6184668). Attorney Lewis Bossing added appearing on behalf of Atlanta Legal Aid Society's Disability Rights Project, Carter Center Mental Health Program, John J Gates, Georgia Advocacy Office, Inc., Georgia Council on Substance Abuse, Georgia Mental Health Consumer Network, Georgia Parent Support Network, Mental Health America of Georgia, National Alliance on Mental Illness − Georgia, Cynthia Wainscott (pb) (Entered: 12/18/2015)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 30 of 40

12/21/2015 12/21/2015
12/31/2015 01/04/2016 01/05/2016 01/05/2016 01/05/2016 01/06/2016
01/06/2016
01/06/2016
01/08/2016
01/12/2016 01/14/2016

223 ORDER granting 215 Application for Admission of Lewis Bossing Pro Hac Vice. Signed by Judge Charles A. Pannell, Jr on 12/21/2015. (tcc) (Entered: 12/21/2015)
224 APPLICATION for Admission of Alison Nodvin Barkoff Pro Hac Vice (Application fee $ 150, receipt number 113E−6202421)by Atlanta Legal Aid Society's Disability Rights Project, Carter Center Mental Health Program, John J Gates, Georgia Council on Substance Abuse, Georgia Mental Health Consumer Network, Georgia Parent Support Network, Mental Health America of Georgia, National Alliance on Mental Illness − Georgia, Cynthia Wainscott. (Canfield, Kenneth) (Entered: 12/21/2015)
RETURN of 224 APPLICATION for Admission of Alison Nodvin Barkoff Pro Hac Vice (Application fee $ 150, receipt number 113E−6202421) to attorney for correction re: courts. (pb) (Entered: 12/31/2015)
225 ORDER granting 224 Application for Admission of Alison Nodvin Barkoff Pro Hac Vice. Signed by Judge Charles A. Pannell, Jr on 1/4/2015. (tcc) (Entered: 01/05/2016)
226 STATUS REPORT Submitted by State Defendants by The State of Georgia ex rel. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Theriot, Jaime) (Entered: 01/05/2016)
227 NOTICE by The United States of America United States' Statement for the January 6, 2016 Status Conference (Houston, Katherine) (Entered: 01/05/2016)
228 NOTICE by Georgia Advocacy Office, Inc. Amici Curiae's Statement Regarding January 6, 2016 Non−Evidentiary Hearing (Norris, Joshua) (Entered: 01/05/2016)
229 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Status Conference held on 1/6/2016. AUSA Mary Bohan updated the court regarding compliance/negotiations of the settlement agreement, counsel stated that there is a need for a court order regarding terms/enforcement of settlement agreement, requested briefing. The State of Georgia responded, counsel agreed with opposing counsels assessment of the status of the case. The Amicus responded. The court directed the USA to file its motion to enforce within 10 days. Evidentiary Hearing on the issues raised in the motion to enforce scheduled for 3/28/16 at 2:00PM. (Court Reporter Elizabeth Cohn)(tcc) (Entered: 01/06/2016)
230 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 1155 N. La Cienega Blvd. No. 1204, West Hollywood, CA 90069 in the amount of $17,155.17. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 1/6/2016. (Attachments: # 1 Attachment)(tcc) (Entered: 01/06/2016)
231 ORDER − The court has scheduled an evidentiary hearing to begin March 28, 2016 at 2:00 p.m. The parties are DIRECTED to brief the issues that require resolution pursuant to the following schedule: (see 231 Order for schedule). In the event that the Department of Justice believes more immediate relief is needed for particular individuals as a result of the alleged noncompliance by the State, the Department may file a separate motion seeking an expedited briefing and hearing schedule as to specific issues. Signed by Judge Charles A. Pannell, Jr. on 1/6/2016. (tcc) (Entered: 01/06/2016)
232 TRANSCRIPT of Hearing Proceedings held on January 6, 2016, before Judge Charles A. Pannell, Jr.. Court Reporter/Transcriber Elizabeth G. Cohn, Telephone number (404) 215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/29/2016. Redacted Transcript Deadline set for 2/8/2016. Release of Transcript Restriction set for 4/7/2016. (Attachments: # 1 Notice of Filing Transcript) (egc) (Entered: 01/08/2016)
Funds Deposited per Order: $17,155.17, receipt number 79817. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 01/12/2016)
233 APPLICATION for Admission of Regan Bailey Pro Hac Vice with Brief In Support by The United States of America. (Hughes, Aileen) (Entered: 01/14/2016)

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01/19/2016
01/20/2016 01/21/2016 01/21/2016
01/28/2016 01/29/2016 02/01/2016
02/01/2016 02/01/2016 02/01/2016 02/08/2016 02/10/2016
02/11/2016 02/12/2016

234 First MOTION for Order to Show Cause as to why the State Should Not be Held in Contempt by The United States of America. (Attachments: # 1 Brief Memorandum in Support of Motion to Show Cause, # 2 Exhibit Declaration of Nancy Ray, Ed.D., # 3 Exhibit filed under seal, # 4 Exhibit Recommendations for Improving Support Coordination, # 5 Exhibit Declaration of Kathy E. Sawyer, # 6 Exhibit filed under seal, # 7 Exhibit number not used, # 8 Exhibit filed under seal, # 9 Exhibit Georgia State Review, # 10 Exhibit filed under seal, # 11 Exhibit 2015 Interim Quality Management Report, # 12 Exhibit Update on Progress/Re−Engineering Roadmap, # 13 Exhibit Annual Quality Management Report, # 14 Exhibit filed under seal)(Houston, Katherine) (Entered: 01/19/2016)
235 NOTICE by The United States of America of Motion to File Documents Under Seal (Hughes, Aileen) (Entered: 01/20/2016)
236 MOTION for Leave to File Documents under Seal by The United States of America. (Attachments: # 1 Text of Proposed Order)(dfb) (Entered: 01/21/2016)
237 ORDER granting the United States' 236 Motion for Leave to File Documents under Seal. The United States shall electronically file on the public docket the redacted version of Exhibit 2. The United States shall electronically file under seal (1) the unredacted version of Exhibit 2 and (2) Exhibits 5−15, 17, 19, and 23 in their entirety. Signed by Judge Charles A. Pannell, Jr. on 1/21/2016. (dfb) (Entered: 01/21/2016)
APPROVAL by Clerks Office re: 233 APPLICATION for Admission of Regan Bailey Pro Hac Vice. Attorney Regan Bailey added appearing on behalf of The United States of America (pb) (Entered: 01/28/2016)
238 NOTICE Of Filing Plaintiff's Redacted Exhbit 2 by The United States of America re 237 Order on Motion for Leave to File, (Attachments: # 1 Exhibit 2 (Redacted))(Hughes, Aileen) (Entered: 01/29/2016)
239 (FILED UNDER SEALED) NOTICE Of Filing Plaintiff's Sealed Exhibits 5−15, 17, 19, and 23 by The United States of America re 237 Order on Motion for Leave to File, (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13, # 10 Exhibit 14, # 11 Exhibit 15, # 12 Exhibit 17, # 13 Exhibit 19, # 14 Exhibit 23)(Hughes, Aileen) (Entered: 02/01/2016)
240 ORDER granting 233 Application for Admission Pro Hac Vice Regan Bailey for plaintiff. Signed by Judge Charles A. Pannell, Jr. on 2/1/2016. (bdb) (Entered: 02/01/2016)
Clerks Certificate of Mailing as to The United States of America re 240 Order on Application for Admission PHV to Regan Bailey. Notice of street name change for the Atlanta courthouse included. (bdb) (Entered: 02/01/2016)
241 APPLICATION for Admission of Ashley J. McDonald Pro Hac Vice with Brief In Support by The United States of America. (Hughes, Aileen) (Entered: 02/01/2016)
Submission of 234 First MOTION for Order to Show Cause as to why the State Should Not be Held in Contempt, submitted to District Judge Charles A. Pannell. (tcc) (Entered: 02/08/2016)
242 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $35,690.58. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 2/10/2016. (Attachments: # 1 Attachment)(tcc) (Entered: 02/10/2016)
APPROVAL by Clerks Office re: 241 APPLICATION for Admission of Ashley J. McDonald Pro Hac Vice. Attorney Ashley J. McDonald added appearing on behalf of The United States of America (pb) (Entered: 02/11/2016)
243 ORDER granting 241 Application for Admission of Ashley J. McDonald Pro Hac Vice. Signed by Judge Charles A. Pannell, Jr on 2/12/2016. (tcc) (Entered: 02/12/2016)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 32 of 40

02/17/2016 02/18/2016 03/04/2016 03/11/2016
03/14/2016 03/16/2016 03/18/2016 03/21/2016 03/21/2016 03/21/2016
03/22/2016 03/23/2016 03/23/2016 03/23/2016 04/12/2016

244 RESPONSE in Opposition re 234 First MOTION for Order to Show Cause as to why the State Should Not be Held in Contempt filed by The State of Georgia ex rel. (Theriot, Jaime) (Entered: 02/17/2016)
Funds Deposited per Order: $35,690.58, receipt number 80824. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 02/22/2016)
245 APPLICATION for Admission of Jessica Polansky Pro Hac Vice with Brief In Support by The United States of America. (Hughes, Aileen) (Entered: 03/04/2016)
246 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $53,613.29. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 3/11/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 03/11/2016)
247 REPLY to Response to Motion re 234 First MOTION for Order to Show Cause as to why the State Should Not be Held in Contempt filed by The United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Errata 4, # 5 Exhibit 5, # 6 Exhibit 6)(McDonald, Ashley) (Entered: 03/14/2016)
Funds Deposited per Order.: $ 53,613.29, receipt number 81615. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 03/16/2016)
APPROVAL by Clerks Office re: 245 APPLICATION for Admission of Jessica Polansky Pro Hac Vice. Attorney Jessica Polansky added appearing on behalf of The United States of America (pb) (Entered: 03/18/2016)
248 Joint MOTION to Continue Hearing by The United States of America. (McDonald, Ashley) (Entered: 03/21/2016)
249 PROPOSED CONSENT ORDER to Continue Hearing re: 248 Joint MOTION to Continue Hearing. (McDonald, Ashley) (Entered: 03/21/2016)
250 RESPONSE in Support re 234 First MOTION for Order to Show Cause as to why the State Should Not be Held in Contempt filed by Georgia Advocacy Office, Inc.. (Attachments: # 1 Declaration of Katherine Chandler, # 2 Declaration of Mona Givens, # 3 Declaration of Susan Walker Goico, # 4 Declaration of Roslind Hayes, # 5 Declaration of Bonnie Moore, # 6 Declaration of Nancy Thaler, # 7 Declaration of Michelle Schwartz, # 8 Report of Martha Knisley)(Norris, Joshua) (Entered: 03/21/2016)
251 NOTICE of Appearance by John Nicholas Phillips on behalf of Rhonda M. Medows, Sonny Perdue, Frank E. Shelp, The State of Georgia ex rel (Phillips, John) (Entered: 03/22/2016)
252 ORDER granting 248 Motion to Continue Hearing. Evidentiary Hearing reset for 5/9/2016 at 02:00 PM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr.. Signed by Judge Charles A. Pannell, Jr on 3/23/2016. (tcc) (Entered: 03/23/2016)
253 ORDER granting 245 Application for Admission of Jessica Polansky Pro Hac Vice. Signed by Judge Charles A. Pannell, Jr on 3/23/2016. (tcc) (Entered: 03/23/2016)
NOTICE of Undeliverable Electronic Mail re: 253 Order on Application for Admission PHV, 252 Order on Motion to Continue, 251 Notice of Appearance. Mail returned for Jennifer Dalton due to no longer employed with the firm. Electronic notification has been turned off. (aar) (Entered: 03/23/2016)
254 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $20,773.58. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 4/12/2016. (tcc) (Additional attachment(s) added on 4/12/2016: # 1 Invoice) (tcc). (Entered: 04/12/2016)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 33 of 40

04/19/2016 05/02/2016 05/03/2016 05/10/2016
05/18/2016 05/19/2016 05/20/2016 05/27/2016
06/08/2016
06/21/2016 06/21/2016 07/01/2016 07/01/2016 07/14/2016
07/19/2016

Funds Deposited per Order: $ 20,773.58, receipt number 82501. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 04/19/2016)
255 Second MOTION to Continue Hearing by The United States of America. (Hughes, Aileen) (Entered: 05/02/2016)
256 ORDER granting 255 Joint Motion to Continue Hearing. The hearing is hereby CONTINUED until May 23, 2016 at 2:00 p.m.. Signed by Judge Charles A. Pannell, Jr on 5/3/2016. (tcc) (Entered: 05/03/2016)
257 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $10,703.29. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 5/10/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 05/10/2016)
258 MOTION Joint Motion to Enter Extension of Settlement Agreement with Brief In Support by The United States of America. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Hughes, Aileen) (Entered: 05/18/2016)
NOTICE OF CANCELLATION of Hearing re: Non−Evidentiary Hearing set for 5/23/2016 at 02:00 PM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr.. (dcs) (dcs) (Entered: 05/19/2016)
Funds Deposited per Order: $ 10,703.29, receipt number 83370 (jkl) (Entered: 05/20/2016)
259 CONSENT ORDER − The Court GRANTS the Joint Motion to Enter Extension of Settlement Agreement [Doc. 258 ; retains jurisdiction to enforce the Extension of Settlement Agreement; denies as moot Plaintiffs' Motion for Order to Show Cause Why the State Should Not Be Held in Civil Contempt of Court [Doc. 234 ; and vacates the hearing set for May 23, 2016. Signed by Judge Charles A. Pannell, Jr on 5/27/2016. (tcc) (Entered: 05/27/2016)
260 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $25,262.94. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 6/8/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 06/08/2016)
Funds Deposited per Order: $25,262.94, receipt number 84151. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 06/21/2016)
261 NOTICE Of Filing Supplement Report of the Independent Reviewer by The United States of America (Attachments: # 1 Appendix Independent Reviewer's Supplemental Report)(Bailey, Regan) (Entered: 06/21/2016)
262 NOTICE of Appearance by Julie Coleman Kegley on behalf of Georgia Advocacy Office, Inc. (Kegley, Julie) (Entered: 07/01/2016)
263 NOTICE Of Filing Certificate of Consent to Withdraw by Georgia Advocacy Office, Inc. (Norris, Joshua) (Entered: 07/01/2016)
264 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $42,142.36. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 7/13/2016. Signed by Judge Charles A. Pannell, Jr on 7/13/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 07/14/2016)
Funds Deposited per Order: $42,142.36, receipt number 84884. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 07/19/2016)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 34 of 40

08/10/2016
08/18/2016 08/18/2016 08/24/2016 09/06/2016
09/06/2016 09/19/2016 09/19/2016 09/19/2016 10/12/2016
10/18/2016 11/02/2016 11/09/2016
11/10/2016

265 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $44,594.14. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 8/10/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 08/10/2016)
266 NOTICE by Cynthia Wainscott Certificate of Consent to Withdrawal of Alison N. Barkoff as Co−Counsel for Amici (Bossing, Lewis) (Entered: 08/18/2016)
267 NOTICE of Appearance by Alison N. Barkoff on behalf of Georgia Advocacy Office, Inc. (Barkoff, Alison) (Entered: 08/18/2016)
Funds Deposited per Order: $44,594.14, receipt number 85780. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 08/24/2016)
268 ORDER: Pursuant to this 115 court's order of October 29, 2010, the Independent Reviewer has submitted the attached billing statement, which has been reviewed and approved by the parties. Accordingly, the Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $45,025.87. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order 115 . Signed by Judge Charles A. Pannell, Jr on 9/6/16. (Attachments: # 1 Billing Statement)(kxw) (Entered: 09/06/2016)
Remark re 268 Order − forwarded to Financial Department in Clerk's Office. (kxw) (Entered: 09/06/2016)
269 NOTICE Of Filing by The United States of America Jointly with the State of Georgia (Attachments: # 1 Appendix Report on Housing, # 2 Appendix Report on Discharges, # 3 Appendix Report on Crisis Services, # 4 Appendix Report on Employment, # 5 Appendix Report on ACT)(Farano, Richard) (Entered: 09/19/2016)
270 NOTICE Of Filing Reports of Independent Reviewer by The United States of America re 269 Notice of Filing, (Farano, Richard) (Entered: 09/19/2016)
Funds Deposited per Order: $ 45,025.87, receipt number 86466. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 09/21/2016)
271 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $13,818.77. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 10/12/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 10/12/2016)
Funds Deposited per 271 Order: $ 13,818.77, receipt number 87125 (jkl) (Entered: 10/18/2016)
272 Certification of Consent to Substitution of Counsel. Richard J. Farano replacing attorney Ashley J. McDonald; Thomas Jackson Morse; Jessica Polansky; Samuel R. Bagenstos and Robert Koch. (Farano, Richard) (Entered: 11/02/2016)
273 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $7,024.73. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 11/9/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 11/09/2016)
Funds Deposited per Order: $ 7,024.73, receipt number 87913. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 11/10/2016)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 35 of 40

12/12/2016
12/13/2016
12/13/2016 12/14/2016
01/18/2017 01/19/2017
02/09/2017
02/15/2017 03/03/2017
03/03/2017 03/10/2017 03/24/2017

274 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $53,437.30. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 12/12/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 12/12/2016)
275 AMENDED ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $53,432.80. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 12/13/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 12/13/2016)
Funds Deposited per Order: $ 53,432.50, receipt number 88722. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 12/14/2016)
276 SECOND AMENDED ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $53,432.50. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 12/14/2016. (Attachments: # 1 Invoice)(tcc) (Entered: 12/14/2016)
Funds Deposited per Order: $ 32,573.90, receipt number 89546. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 01/20/2017)
277 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $32,573.90. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 1/19/2017. (Attachments: # 1 Invoice)(tcc) (Entered: 01/19/2017)
278 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $63,532.71. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 2/9/2017. (Attachments: # 1 Invoice)(tcc) (Entered: 02/09/2017)
Funds Deposited per Order: $63,532.71, receipt number 90376. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 02/15/2017)
279 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $82,712.40. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 3/3/2017. (tcc) (Additional attachment(s) added on 3/3/2017: # 1 Invoice) (tcc). (Entered: 03/03/2017)
Notification of Docket Correction re 279 Order, invoice has been attached to the docket entry. (tcc) (Entered: 03/03/2017)
Funds Deposited per Order: $ 82,712.40, receipt number 91013. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 03/14/2017)
280 NOTICE Of Filing by The United States of America and the State of Georgia of the Report of the Independent Reviewer (Attachments: # 1 Appendix Report of Independent Reviewer)(Farano, Richard) (Entered: 03/24/2017)

Case: 1:10-cv-00249-CAP As of: 04/04/2019 01:31 PM EDT 36 of 40

04/04/2017
04/25/2017 04/26/2017 05/08/2017
05/09/2017 06/07/2017
06/16/2017 07/06/2017
07/18/2017 08/08/2017
08/14/2017 09/06/2017

281 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $16,169.59. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 4/4/2017. (Attachments: # 1 Invoice)(tcc) (Entered: 04/04/2017)
Funds Deposited per Order: $16,169.59, receipt number 92221. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 04/25/2017)
NOTICE of Undeliverable Electronic Mail re: Fee Payment Received. Mail returned for Regan Bailey due to no longer employed with the agency. Electronic notification has been turned off. (aar) (Entered: 04/26/2017)
282 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $24,011.69. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 5/8/2017. (Attachments: # 1 Invoice)(tcc) (Entered: 05/08/2017)
Fund Deposited per Order: $24,011.69, receipt number 92650. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 05/11/2017)
283 ORDER directing the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $12,479.07. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115]. Signed by Judge Charles A. Pannell, Jr. on 6/7/17. (Attachments: # 1 Invoice)(jpa) (Entered: 06/07/2017)
Funds Deposited per Order: $12,479.07, receipt number 93639. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 06/20/2017)
284 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $22,436.89. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 7/6/2017. (Attachments: # 1 Invoice)(tcc) (Entered: 07/06/2017)
Funds Deposited per 284 Order: $ 22,436.89, receipt number 94481 (jkl) (Entered: 07/18/2017)
285 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $62,746.37. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 8/8/2017. (Attachments: # 1 Invoice)(btql) (Entered: 08/08/2017)
Funds Deposited per Order: $62,746.37, receipt number 95238. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 08/15/2017)
286 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $41,152.19. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 9/6/2017. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 09/06/2017)

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09/14/2017 09/19/2017 09/25/2017
10/10/2017
10/12/2017 11/07/2017
11/13/2017 12/04/2017
01/11/2018
01/19/2018 02/06/2018
02/20/2018

287 NOTICE of Appearance by Devon Orland on behalf of Georgia Advocacy Office, Inc. (Orland, Devon) (Entered: 09/14/2017)
Funds Deposited per Order: $41,152.19, receipt number 96083. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 09/21/2017)
288 NOTICE Of Filing by The United States of America and State of Georgia − Independent Reviewer Report (Attachments: # 1 Exhibit Report of the Independent Reviewer 2017, # 2 Exhibit Attachment A to IR Report−2017 Review Ga Supported Housing and Bridge Funding, # 3 Exhibit Attachment B to IR Report− Report on Discharges from GRHA, # 4 Exhibit Attachment C to IR Report−Discharge Planning for Forensic Clients in State Hospitals, # 5 Exhibit Attachment D to IR Report−Report on Support Coordination)(Hughes, Aileen) (Entered: 09/25/2017)
289 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive, Silver Spring, Maryland 20901, in the amount of $11,591.87. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's 115 October 29, 2010 Order. Signed by Judge Charles A. Pannell, Jr on 10/10/2017. (Attachments: # 1 Invoice) c:Financial Office(dfb) (Entered: 10/10/2017)
Funds Deposited per Order: $ 11,591.87, receipt number 100096749 (adg) (Entered: 10/13/2017)
290 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive, Silver Spring, Maryland 20901, in the amount of $21,827.99. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's 115 October 29, 2010 Order. Signed by Judge Charles A. Pannell, Jr on 11/7/2017. (Attachments: # 1 Invoice) c:Financial Office(btql) (Entered: 11/08/2017)
Funds Deposited per Order: $ 21,827.99, receipt number GAN100097542. (hfm) (Entered: 11/13/2017)
291 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive, Silver Spring, Maryland 20901, in the amount of $14,054.47. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's 115 October 29, 2010 Order. Signed by Judge Charles A. Pannell, Jr on 12/4/2017. (Attachments: # 1 Invoice) c:Financial Office(btql) (Entered: 12/05/2017)
292 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $10,447.68. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 1/10/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 01/11/2018)
Funds Deposited per Order: $10,477.68, receipt number GAN100099241. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 01/19/2018)
293 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive, Silver Spring, Maryland 20901, in the amount of $49,204.37. This amount is $30.00 less than the approved invoice amount due to a $30.00 overpayment by the State of Georgia in December 2017. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the court's 115 October 29, 2010 Order. Signed by Judge Charles A. Pannell, Jr on 2/6/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 02/06/2018)
Funds Deposited per Order: $49,204.37, receipt number GAN100100224. (tcc) Modified on 2/22/2018 to correct event type (tcc). (Entered: 02/20/2018)

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02/21/2018
03/13/2018
03/20/2018 03/27/2018 04/06/2018
04/19/2018 05/08/2018
05/25/2018 06/01/2018 06/05/2018
06/19/2018 06/29/2018 07/13/2018

294 ORDER that the order of February 6, 2018 [Doc. No. 293 ] is AMENDED as follows: The Clerk is DIRECTED to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $49,234.37. This payment represents the $30.00 surplus deposited by the State on January 19, 2018 and the $49,204.37 deposited by the State on February 20, 2018 into the Registry of the Court pursuant to Section VI(I)(2) of the court's October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 2/21/2018. c:Financial Office(tcc) (Entered: 02/21/2018)
295 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $54,957.87. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 3/13/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 03/13/2018)
Funds Deposited per Order: $ 54,957.87, receipt number GAN100101105. (tcc) (Entered: 03/20/2018)
296 NOTICE by The State of Georgia ex rel and USA: Joint Notice of Filing Report of Independent Reviewer (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E)(Theriot, Jaime) (Entered: 03/27/2018)
297 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $14,062.00. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr on 4/6/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 04/06/2018)
Funds Deposited per Order: $ 14,062.00, receipt number GAN100101967. (tcc) (Entered: 04/19/2018)
298 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $10,362.46. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 5/8/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 05/08/2018)
299 NOTICE by Rhonda M. Medows, Sonny Perdue, Frank E. Shelp, The State of Georgia ex rel of Withdrawal of Counsel for Defendants (Meeks, Kevin) (Entered: 05/25/2018)
Funds Deposited per Order: $ 10,362.46, receipt number 103057. (rjs) (Entered: 06/01/2018)
300 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $19,068.43. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 6/5/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 06/05/2018)
Funds Deposited per Order: $ 19,068.43, receipt number GAN100103640. (tcc) (Entered: 06/19/2018)
301 STATUS REPORT Joint by The United States of America. (Hughes, Aileen) (Entered: 06/29/2018)
Funds Deposited per Order: $ 18,821.87, receipt number 104352. (rjs) (Entered: 07/13/2018)

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07/16/2018
08/10/2018
08/21/2018 09/18/2018
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09/20/2018 10/04/2018
10/23/2018 11/07/2018
11/16/2018 12/11/2018

302 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $18,821.87. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 7/16/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 07/16/2018)
303 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $70,955.51. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 8/10/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 08/10/2018)
Funds Deposited per Order: $ 70,955.51, receipt number GAN100105397 (btql) (Entered: 08/21/2018)
304 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $39,950.26. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 9/18/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 09/19/2018)
305 NOTICE Of Filing Jointly The Report of the Independent Reviewer by The United States of America (Attachments: # 1 Report of Ihe Independent Reviewer, # 2 L. Nuss Report − Attachment to Independent Reviewers Report, # 3 A. Rollins Report − Attachment to Independent Reviewers Report, # 4 P. Heick Report − Attachment to Independent Reviewers Report, # 5 B. Gouse Report 1 − Attachment to Independent Reviewers Report, # 6 B. Gouse Report 2 −Attachment to Independent Reviewers Report)(Hughes, Aileen) (Entered: 09/19/2018)
Funds Deposited per Order 304 : $ 39,950.26, receipt number GAN100106280. (ddm) (Entered: 09/20/2018)
306 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $8,286.82. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 10/4/2018. (Attachments: # 1 Invoice)(tcc) (Entered: 10/04/2018)
Funds Deposited per Order: $ 8,286.82, receipt number 107215. (tcc) (Entered: 10/23/2018)
307 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $7,309.34. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 11/7/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 11/07/2018)
Funds Deposited per 307 Order: $7,309.34, receipt number 107866. (tcc) (Entered: 11/16/2018)
308 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $5,562.50. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29,2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 12/11/2018. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 12/12/2018)

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309 NOTICE by The United States of America & The State of Georgia of Joint Filing of the Supplemental Report of the Independent Reviewer (Attachments: # 1 Supplemental Report of the Independent Reviewer)(Hughes, Aileen) (Entered: 12/21/2018)
310 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $2,287.50. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 1/15/2019. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 01/16/2019)
Funds Deposited per 310 Order: $ 2287.50, receipt number 109480. (tcc) (Entered: 01/22/2019)
311 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $3,975.00. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 2/12/2019. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 02/12/2019)
Funds Deposited per 311 Order: $ 3,975.00, receipt number 10477. (tcc) (Entered: 03/06/2019)
312 ORDER DIRECTING the Clerk to make an interim payment to the Independent Reviewer, Elizabeth Jones, Fieldstone Partnership, Inc., 608 Symphony Woods Drive Silver Spring, Maryland 20901, in the amount of $8,550.00. This payment shall be made from the monies deposited by the State of Georgia into the Registry of the Court pursuant to Section VI(I)(2) of the courts October 29, 2010 order [Doc. No. 115 ]. Signed by Judge Charles A. Pannell, Jr. on 3/11/2019. (Attachments: # 1 Invoice) c:Financial Office(tcc) (Entered: 03/11/2019)
Funds Deposited per Order 312 : $ 8,550.00, receipt number 11182. (tcc) (Entered: 03/25/2019)

 
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Home » Briefing Room » Justice News

Department of Justice

FOR IMMEDIATE RELEASE

Office of Public Affairs

Tuesday, October 19, 2010

Justice Department Obtains Comprehensive Agreement Regarding the State of Georgia’s Mental Health and Developmental Disability System

WASHINGTON - The Justice Department today announced that it has entered into a comprehensive settlement agreement that will transform the state of Georgia’s mental health and developmental disability system and resolve a lawsuit the United States brought against the state. The lawsuit alleged unlawful segregation of individuals with mental illness and developmental disabilities in the state’s psychiatric hospitals in violation of the Americans with Disabilities Act (ADA) and the Supreme Court’s landmark decision in Olmstead v. L.C.

The U.S. District Court for the Northern District of Georgia will retain jurisdiction to enforce today’s settlement agreement, which supersedes a 2008 agreement between the state and the Office for Civil Rights of the U.S. Department of Health and Human Services (HHS) concerning Georgia’s provision of community services for individuals with mental illness and developmental disabilities. In light of today’s agreement and the progress the state has made in complying with an earlier agreement regarding the conditions in the psychiatric hospitals, the United States has agreed to withdraw its motions to enforce that earlier agreement.

More than a decade ago, in Olmstead v. L.C.,the Supreme Court found that one of Georgia’s state hospitals was impermissibly segregating two individuals with disabilities in that hospital when they could have been served in more integrated settings. The Supreme Court ordered states to serve individuals with disabilities in the most integrated settings appropriate to their needs.

"The Olmsteaddecision strongly affirmed that people with disabilities have a right to live and receive services in the most integrated setting appropriate for them as individuals," said Thomas E. Perez, Assistant Attorney General for Civil Rights. "Under this agreement, the state of Georgia will provide services in the community to hundreds of people with developmental disabilities and thousands of people with mental illness. The promises of the ADA and Olmsteadwill finally become a reality for individuals in Georgia with mental illness and developmental disabilities."

"Georgia is the home of the Supreme Court’s Olmsteaddecision," said Sally Quillian Yates, U.S. Attorney for the Northern District of Georgia. "With this agreement, the state begins to make good on Olmstead’s promise to end the inappropriate segregation of people with disabilities in state hospitals that set apart from the community."

"The expansion of community living opportunities is critical to protecting the civil rights of individuals with disabilities under Olmstead, said Georgina Verdugo, Director of the Office for Civil Rights at HHS. "The specific requirements and timelines in this agreement will ensure that Georgians with mental illness and developmental disabilities have the services they need to live full lives in the community and achieve their goals."

The Justice Department began its investigation in 2007, and found that preventable deaths, suicides and assaults occurred with alarming frequency in the state hospitals. In January 2009, the department entered into a settlement agreement with the state of Georgia regarding conditions in the hospitals. Further investigation found that the state also failed to serve individuals with mental illness and developmental disabilities in the most

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integrated setting appropriate to their needs, in violation of the ADA and the Olmsteaddecision. In January 2010, the department filed a freestanding complaint under the ADA and a motion for immediate relief seeking to protect individuals confined in the hospitals from continued segregation and from threats of harm to their lives, health and safety. The department subsequently entered into extensive settlement negotiations with Georgia, the Office for Civil Rights and local mental health advocates.

The agreement signed today resolves the ADA lawsuit. The agreement expands community mental health services so that Georgia can serve individuals with mental illness and developmental disabilities in the most integrated setting appropriate to those individuals’ needs. Under today’s agreement, over the next five years, Georgia will increase its assertive community treatment, intensive case management, case management, supported housing and supported employment programs to serve 9,000 individuals with mental illness in community settings. The agreement will also increase community crisis services to respond to and serve individuals in a mental health crisis without admission to a state hospital, including crisis services centers, crisis stabilization programs, mobile crisis and crisis apartments; create at least 1,000 Medicaid waivers to transition all individuals with developmental disabilities from the state hospitals to community settings; and increase crisis, respite, family and housing support services to serve individuals with developmental disabilities in community settings.

The Civil Rights Division enforces the ADA which authorizes the attorney general to investigate whether a state is serving individuals in the most integrated settings appropriate to their needs. Please visit www.justice.gov/crtto learn more about the Olmsteaddecision, the ADA and other laws enforced by the Justice Department’s Civil Rights Division.

The agreements in this case protecting the rights of individuals with mental illness and developmental disabilities in Georgia are due to the efforts of the following Special Litigation Section attorneys: Judy Preston, Acting Chief; Mary Bohan, Deputy Chief; Timothy Mygatt, Special Counsel; Robert Koch, Max Lapertosa, Richard Farano, Aaron Fleisher, Jeffrey Murray, Jennifer Mondino, David Deutsch, Emily Gunston, Samantha Trepel, and Amin Aminfar, Trial Attorneys. In addition, the division received support and assistance from Aileen Bell-Hughes and Mina Rhee, Assistant U.S. Attorneys for the Northern District of Georgia.

10-1165

Civil Rights Division

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