VIRGINIA CENTRAL STATE HOSPITAL SETTLEMENT
SETTLEMENT AGREEMENT
The United States of America (hereinafter the "United States") and the Commonwealth of Virginia (hereinafter "Virginia") agree to settle the above captioned matter (hereinafter "this Action") on the terms and conditions set forth below in this Settlement Agreement (hereinafter the "Agreement"). I. Introduction.
1. By letter dated March 24, 1997, the Acting Assistant Attorney General for Civil Rights, United States Department of Justice, informed the Governor of the Commonwealth of Virginia that the United States was commencing an investigation of the Central State Hospital (hereinafter "CSH") in Dinwiddie County, Virginia, pursuant to the Civil Rights of Institutionalized Persons Act (hereinafter "CRIPA"), 42 U.S.C. § 1997 et seq.
2. CSH is an institution covered by CRIPA and operated by Virginia to provide psychiatric treatment and other services to persons with mental illness.
3. On April 28 through May 2, 1997, representatives of the United States conducted on-site inspections and evaluations of CSH.
4. As a result of these examinations and inspections, the United States advised the Governor of Virginia, in a letter dated June 30, 1997, that, in its opinion, conditions at CSH constituted a pattern or practice of violations of the constitutional and federal statutory rights of CSH patients.
5. Beginning in June 1997, and continuing from time to time thereafter, Virginia voluntarily developed and commenced implementation of a written plan to address the care provided at CSH (the "Plan") ("Exhibit I").
6. Virginia has at all times denied that conditions at CSH violate the constitutional or federal statutory rights of patients at CSH.
7. Virginia has at all times maintained that, as a matter of state policy, it aspires to provide a level of care to CSH patients in excess of what it regards as the minimal level of care required by the Constitution and federal law. By entering into this Agreement and agreeing to implement the Plan, Virginia does not admit that any of the terms of such documents or the level of care it provides are legally required pursuant to the Constitution or federal law.
8. On May 6, 1999, in anticipation of the execution of this Agreement, the United States filed the Complaint in this Action.
9. The parties agree it is in their mutual interests to avoid adversarial litigation. To that end, the parties have agreed upon the Plan and upon methods of communication and conciliation as set forth in this Agreement. The parties recognize that implementation of the Plan provides CSH patients with a level of care satisfying all constitutional and federal statutory standards at issue in this litigation.
10. The parties agree that the resolution of this case is in the best interests of CSH patients, and otherwise in the best interests of their common citizens.
Accordingly, the parties agree as follows:
II. Rule 41(a)(2) Dismissal Without Prejudice.

1. Immediately upon execution of this Agreement, the parties shall jointly move the Court for entry of an Order of dismissal without prejudice pursuant to Rule 41(a)(2), in the form attached as Exhibit II. In the event the Court refuses or fails to enter that Order in the attached form, this Agreement shall be null and void.
III. Dismissal With Prejudice.
1. The Court shall enter a dismissal of this Action with prejudice upon the occurrence of one or more of the following conditions:
a. In the event the United States fails to file a Motion to Restore (defined in § VIII below), Virginia shall be conclusively entitled to an order dismissing this Action with prejudice exactly ten months from the Notice Date (defined in § VII below);
b. Joint motion of the parties;
c. Unopposed motion of defendants; or
d. In the event the United States files a Motion to Restore pursuant to the procedures set forth in § VIII below, but the Court does not find that Virginia failed to achieve substantial compliance with the Plan.
IV. Plan Implementation.
1. Virginia agrees to fully implement the Plan by the Notice Date, as defined in § VII(2) below, provided, however, Virginia agrees to implement the nurse staffing provisions contained in Section III of the Plan by December 31, 1999.
V. Consultation Tour.
1. To allow the United States an opportunity to observe Virginia's implementation of the Plan, and to promote the sharing of technical information and the amicable resolution of any disagreements, the United States shall retain expert consultants to tour CSH to assess the status of such implementation and to confer with CSH with respect to such implementation.
2. On dates mutually agreed upon by the parties, but no later than 180 days after entry of the Order described in § II above, the United States shall tour the facility with its expert consultants, after reasonable notice to Virginia of the identity and curriculum vitae of those consultants. One additional tour at a mutually agreeable date shall also be conducted prior to the Notice Date, unless both parties agree in writing that such a tour is unnecessary. At least 45 days prior to each tour, the United States shall inform Virginia of the documents its expert consultants will need in preparation for the tour. Said documents shall be substantially similar to those previously requested and provided during expert consultant tours of CSH. The United States agrees to provide information to Virginia based on these tours within 60 days of the tours. The parties agree to confer regarding the desirability of further sharing of technical information, including a conference between the United States' expert consultants and Virginia's professionals.
3. The United States' expert consultants shall tour CSH utilizing the same procedures used during prior United States' expert consultant tours at CSH, including but not limited to procedures governing confidentiality of patient records.
4. The United States shall not commence or support any civil action under this Agreement or otherwise, or initiate any other CRIPA proceeding against Virginia, based on any matter observed during these tours or documents produced in connection with the tours with the exception that the United States may use such documentation and information that it obtains or is provided to support a Motion to Restore filed pursuant to § VIII of this Agreement that Virginia has failed to comply with the nurse staffing requirements contained in § III of the Plan by December 31, 1999, or as provided in § IX of this Agreement.

5. The findings and conclusions of the United States' expert consultants shall not be used by the United States in any court proceeding nor shall they be disclosed or used by the United States for any purpose other than as set forth in § V(4) above, or in § IX of this Agreement.
VI. Interim Reports.
1. Beginning on April 30, 1999, and continuing every three months thereafter until the Notice Date defined in § VII below, Virginia shall provide the United States with quarterly summaries of each reported Category I and II incident as defined in the Standard Administrative Practices and Procedures Manual, Chapter 28, Reporting and Responding to Unusual Incidents, Appendix B (Exhibit III) occurring at CSH (hereinafter "Incident Summaries"), and each open or founded allegation of abuse and/or neglect as defined in Departmental Instruction #33 (Exhibit IV) (hereinafter "Abuse/Neglect Summaries"). The Incident Summaries shall be in the form attached as Exhibit V. The Abuse/Neglect Summaries shall be in the form attached as Exhibit VI. CSH will also provide a quarterly progress report outlining the status of its implementation of the Plan, including its efforts to fill nurse staffing positions.
2. The United States may request reasonable follow-up information, including documents from Virginia, with respect to any incident identified on the Incident and/or Abuse/Neglect Summaries.
3. The United States shall advise Virginia of any alleged deficiencies in the implementation of the Plan ascertained from its evaluation of Incident and/or Abuse and Neglect Summaries and follow-up information. Virginia agrees to confer in person or in writing with the United States with respect to any such alleged deficiencies.
VII. Certification Tour.
1. The purpose of the certification tour is to permit the United States to assess the status of Virginia's implementation of the Plan before this case is dismissed with prejudice as provided by § III, so that the United States may file a Motion to Restore, if necessary, pursuant to § VIII.
2. Not later than July 1, 2000, Virginia shall provide written notice to the United States that it may conduct the certification tour. A copy of the notice shall be filed simultaneously with the Clerk of the U.S. District Court in Alexandria. If Virginia fails to send this notice on or before July 1, 2000, the United States shall have the right to provide written notice to Virginia that it will conduct the certification tour. A copy of the notice shall be filed simultaneously with the Clerk of the U.S. District Court in Alexandria. The date such notice is filed with the Clerk, either by Virginia or the United States, shall be deemed the "Notice Date" for purposes of this Agreement.
3. By August 1, 2000, the United States shall inform Virginia of (i) the identity and vitae of any expert consultants it will retain to assess Virginia's compliance with the Plan, and (ii) the documents it seeks to assess Virginia's compliance with the Plan, which shall be substantially similar to those previously requested and provided during expert consultant tours of CSH.
4. By September 1, 2000, Virginia shall inform the United States of the identity and vitae of any expert consultants it will retain for the certification tour, and shall provide the United States with the requested documents.
5. No sooner than September 1, 2000, and no later than October 31, 2000, the United States' attorneys and expert consultants shall tour CSH to assess the status of Virginia's compliance with the Plan. The procedures for such tours shall be substantially similar to those previously used during expert consultant tours at CSH (including, but not limited to, procedures governing confidentiality of patient records), except that Virginia shall have the right for its own attorneys and expert consultants to accompany those of the United States on all aspects of the tour.
6. No later than January 1, 2001, Virginia and the United States shall receive from their respective expert consultants their reports evaluating Virginia's implementation of the Plan. In selecting and retaining their expert consultants, the United States and Virginia shall each be responsible for assuring that said expert reports can be completed by their expert consultants within this time period.

7. No later than February 1, 2001,the United States shall notify Virginia of any alleged deficiencies in Virginia's implementation of the Plan. The United States shall specify by page numbers, paragraphs and subparagraphs, each provision of the Plan which it alleges to have been implemented in a deficient manner. The United States shall set forth in reasonable detail (i) the evidentiary basis of its allegations of deficiency, and (ii) the remedial measures which it proposes to remedy each deficiency. The reasonable details to be provided shall include, but not be limited to, a complete statement of all the opinions of any expert consultants on which the United States relies, the basis and reasons for such opinions and the information considered by the expert in forming such opinions. The United States may, at its option, satisfy the requirement of reasonable detail by providing a copy of said expert's report and by citing to the provisions of the expert's report upon which it relies, if such information, as is specified above, is contained in said expert's report.
8. No later than March 1, 2001, Virginia shall notify the United States of Virginia's concurrence or disagreement with each of the United States' allegations of deficiency and proposed remedial measures. If Virginia concurs with any of the United States' allegations of deficiency, but disagrees with the proposed remedial measure, it shall propose an alternative remedial measure.
9. Between March 1, and April 30, 2001, Virginia and the United States shall endeavor in good faith to resolve any disputes over the United States' allegations of deficiency and/or disputes over the proposed remedial measures. The conciliation process shall include at least one face-to-face meeting between representatives of the parties; and if such meeting does not achieve conciliation, then the conciliation process shall continue with a prompt mediation session before a judicial officer, if feasible under the time frames in this Agreement. During the conciliation process, Virginia shall have the right, but shall not be required, to support its position by disclosing relevant portions of its expert reports.
10. Should Virginia give notice as provided in ¶ 2 of this section prior to July 1, 2000, the dates specified herein shall commence on the first day of the first full month following the Notice Date and follow in time intervals similar to those indicated in §§ V and VII.
VIII. Motion to Restore The Action.
1. In the event Virginia and the United States are unable to resolve any dispute concerning the United States' allegations of Virginia's failure to implement the Plan or a provision of the Plan, the United States may file a motion to vacate the dismissal without prejudice and to restore the Action to the Court's active docket ("Motion to Restore") for the purpose of adjudicating allegations by the United States that Virginia has failed to substantially comply with the Plan.
2. The United States may not file a Motion to Restore earlier than the ninth month following the Notice Date, except with respect to an allegation that Virginia has failed to implement the nurse staffing provisions contained in Section III of the Plan. By no later than January 31, 2000, Virginia shall provide the United States with documentation, in a format to be mutually agreed upon by the parties, describing the numbers and deployment of nursing staff. The United States shall provide Virginia with any allegations that CSH has failed to comply with the nurse staffing provisions of the Plan within 15 days of receipt of the documentation. Virginia shall respond to any such allegations within 15 days of receipt. Within the following 30 days, the parties shall attempt to resolve any disputes involving the alleged nurse staffing deficiencies which shall include at least one face-to-face meeting between representatives of the parties, and a mediation session before a judicial officer, if feasible under the timeframes in this Agreement. The alleged deficiencies shall be subject to a Motion to Restore after March 31, 2000.
3. The Motion to Restore shall (i) identify those portions of the Plan the United States alleges that Virginia has violated, specifying Plan page numbers, paragraphs, and subparagraphs; and (ii) identify with specificity the remedial measures sought by the United States.
4. Any Motion to Restore shall be served upon counsel for Virginia by certified mail, return receipt requested.
5. Unless a different time is ordered by Order of the Court, Virginia shall have twenty (20) days from the receipt of such motion to file its response.

6. Upon the filing of the Motion to Restore, the Action shall be litigated in accordance with the applicable Federal Rules of Civil Procedure, Local Rules, and orders of the Court, including, but not limited to, such rules and orders pertaining to discovery provided, however, that the Complaint shall be deemed amended and superseded in accordance with the allegations set forth within the Motion to Restore pursuant to ¶¶ 2 and 3 above.
7. The United States shall have the burden of proof. To prevail, the United States must show that Virginia failed to achieve substantial compliance with the Plan.
8. The parties shall request the Court to hear such motions and to conduct such trial as may be necessary to adjudicate the Motion to Restore the Action, including the allegations set forth pursuant to ¶¶ 2 and 3 above. If the Court finds that Virginia is not in substantial compliance with the Plan, it may order specific performance of those portions of the Plan which the Court finds Virginia has violated.
9. The exclusive remedy for any alleged failure by Virginia to achieve substantial compliance with the Plan shall be an Order for specific performance pursuant to ¶ 8 above; provided, however, that this limitation shall not be construed as an attempt to limit the power of the Court in the event any such order for specific performance is entered and thereafter violated. Any such order for specific performance may be directed against such officials whom the Court may determine are responsible for such violations. Neither Virginia nor any officials thereof shall be subject to a finding of, or sanctions for, contempt unless an order for specific performance has been entered pursuant to a Motion to Restore and is thereafter violated in such a manner as to make such a finding or sanctions appropriate. The provisions of this paragraph are of the essence of this Agreement.
10. If, following a Motion to Restore after the Notice Date, the Court finds that Virginia is in substantial compliance with the Plan, it shall dismiss this Action with prejudice.
IX. Emergency Provision.
1. The United States may seek immediate relief from the Court for the limited purpose of redressing an alleged emergency at CSH. An emergency shall be defined as apattern or practice of violating the Plan that creates an immediate substantial risk of serious bodily harm to CSH patient(s).
2. In any motion seeking relief for an alleged emergency, the United States shall file an enhanced pleading which sets forth the specific facts on which an emergency is alleged, the specific violations of the Plan, and the legal basis for the allegations (hereinafter "Motion for Emergency Relief").
3. The parties shall confer in good faith in an effort to resolve any such allegations prior to filing any such Motion for Emergency Relief.
4. Any Motion for Emergency Relief shall be served upon counsel for Virginia by certified mail, return receipt requested.
5. Unless a different time is ordered by Order of the Court, Virginia shall have twenty (20) days from the receipt of such motion to file its response.
6. Upon the filing of any Motion for Emergency Relief, the motion shall be litigated in accordance with the applicable Federal Rules of Civil Procedure, Local Rules, and orders of the Court, including but not limited to such rules and orders pertaining to discovery.
7. The United States shall have the burden of proof. To prevail, the United States must prove the existence of an emergency as defined in ¶ 1 above.
8. The parties shall request the Court to hear such motions and to conduct such trials as may be necessary to adjudicate the Motion for Emergency Relief, including the allegations required by ¶ 2 above. If the Court finds that no emergency exists, it shall dismiss the Motion with prejudice. The dismissal shall have no effect on the United

States' ability to file a Motion to Restore pursuant to § VIII. If the Court finds that an emergency exists, it may order specific performance of those portions of the Plan which the Court finds gave rise to the emergency.
9. The exclusive remedy for an alleged emergency shall be specific performance pursuant to ¶ 8 above; provided however that this limitation shall not be construed as an attempt to limit the power of the Court in the event any such order for specific performance is entered and thereafter violated. Any Order for specific performance may be directed against such officials whom the Court may determine are responsible for such emergencies. Neither Virginia nor any officials thereof shall be subject to a finding of, or sanctions for, contempt unless an order for specific performance has been entered pursuant to a Motion for Emergency Relief and is thereafter violated in such a manner as to make such findings or sanctions appropriate.
X. Interpretation of the Plan.
1. The parties recognize that implementation of the Plan must be evaluated and interpreted in light of standards not expressly set forth in the Plan. In such cases, for purposes of determining whether CSH has implemented the Plan, or any portion thereof, the parties agree that the relevant and applicable standard shall be as follows: Decisions by Virginia with respect to the implementation of policies, procedures, and other activities required by the Plan shall be evaluated for the purposes of determining compliance with the Plan by the "professional judgment" standard articulated in Youngberg v. Romeo, 457 U.S. 307 (1982).
2. This Agreement, together with attachments, is an integrated document and contains the entire agreement between the parties, and wholly cancels, terminates, and supersedes any and all previous and/or contemporaneous oral agreements, negotiations, and commitments and writings between the parties thereto with respect to this Action and CSH.
3. Except as provided in ¶ 7 below, no change, modification, extension, termination, discharge, abandonment or waiver of this Agreement or any of the provisions hereof, nor any representation, promise or condition relating to this Agreement shall be binding upon the parties hereto unless made in writing and signed by the parties or their counsel.
4. Nothing contained in this Agreement or in the Plan shall be construed as an admission or evidence (i) that the practices at CSH have at anytime or in any way violated constitutional standards or other legal standards governing the provision of care at CSH, (ii) that the terms of the Agreement or the Plan are necessary to meet constitutional standards or other legal standards governing the provision of care at CSH, or (iii) that the policies, practices, and procedures described in the Plan did not exist at CSH prior to the initiation of the CRIPA investigation; nor shall this Agreement or the Plan be used by any person or party as the basis for any liability of Virginia except as expressly provided herein with respect to this Action.
5. Each of the terms of the Agreement and the Plan shall be deemed to have been mutually drafted by the parties, and shall not be construed against either party as the author thereof.
6. Deadlines and time references (e.g., use of present and past tense) used in the Plan shall reflect CSH's schedule for implementation as of the original and/or revised date of the Plan. They may be used for purposes of consultation between the United States and Virginia, pursuant to the Consultation Tour provided by Section V. Notwithstanding such deadlines and time references, CSH shall be deemed to have implemented this Plan for all purposes under the Agreement if it has been implemented by the Notice Date, except that the nurse staff provisions contained in Section III of the Plan shall be subject to a Motion to Restore if not implemented by December 31, 1999.
7. Virginia shall have the right to propose modifications to the Plan from time to time by giving the United States written notice of the language proposed for deletion from and/or addition to the Plan. Such proposed modifications shall be deemed effective for all purposes under this Agreement on the date specified in the proposal unless the United States gives Virginia written notice of its objection within 30 days of its receipt of the proposed modification.
8. Virginia shall not be deemed to have failed to achieve substantial compliance with the Plan due to any shortage of staff where such shortage is the result of an unusual level of absences beyond Virginia's reasonable control, or

vacancies created by the death, discharge, retirement, or resignation of any employee or by the creation of new positions in response to an increase in census, so long as Virginia takes necessary steps to fill such vacancies with reasonable promptness.
9. In the event the United States hereafter files any motion or commences any action or proceeding, alleging that Virginia has failed to meet any obligations to which it may be lawfully subject under the Americans with Disabilities Act of 1990 ("ADA"), neither the position of the United States nor the position of Virginia shall be in any way prejudiced by the provisions of the Plan found under Part V thereof ("Discharge Planning and Community Placement"). Said provisions shall in no way limit either party with respect to the ADA, including but not limited to arguments regarding constitutional, statutory and/or regulatory interpretation and authority.
XI. Miscellaneous.
1. The parties shall request that the Motion to Restore and any other proceeding held in this case be heard by the Honorable Leonie M. Brinkema, United States District Court Judge. Any party may file a motion to vacate the dismissal without prejudice and to restore the case to the active docket for the limited purpose of adjudicating an alleged violation of § V, VI, or VII of this Agreement. Any such motion shall be adjudicated pursuant to the Federal Rules of Civil Procedure and the local rules of this Court. Any such motion shall state the paragraphs of the Agreement that are alleged to be violated. The exclusive remedy for any such violation shall be an order for specific performance. Any such order for specific performance shall be directed against such officials whom the Court may determine are responsible for such violations. No party nor any official thereof shall be subject to a finding of, or sanctions for, contempt unless such an order for specific performance has been hereafter entered and is thereafter violated in such a manner as to make such finding or sanctions appropriate. The parties shall attempt in good faith to resolve any dispute prior to filing any motion alleging a violation of this Agreement.
2. This Agreement shall be applicable to and binding on the parties to this Agreement, their officers, agents, employees, and successors.
3. Notwithstanding any other provision of this Agreement, the United States shall have no standing to seek, nor shall it be entitled to entry of, any order for specific performance that would, as a practical matter, require the expenditure of funds in any biennium in excess of (i) the level of funding appropriated for the facility by the General Assembly in the 1998-2000 biennium, plus (ii) such additional funding, if any, as may be needed to fund staff positions required by the Plan but not currently filled. Virginia represents its good faith belief that the level of funding appropriated for the 1998-2000 biennium, together with such additional funds as are available to the Governor for funding such staff positions in said biennium, is sufficient to implement the Plan.
4. This Agreement and the Rule 41(a)(2) Dismissal referenced in this Agreement resolve all of the allegations raised in the Complaint. Accordingly, the United States shall not amend its Complaint (except as provided in § VIII ¶¶ 1, 2, and 6, above) nor file any new CRIPA action based on events at CSH occurring prior to entry of any dismissal with prejudice of this Action.
5. Each party shall bear its own costs, including attorney's fees, except that Virginia may move for attorney's fees pursuant to 28 U.S.C. § 1997a(c) at the conclusion of any proceeding brought by the United States pursuant to §§ VIII and IX herein.
6. An executed copy of this Agreement shall be filed with the Clerk of Court, and a copy delivered to the United States District Judge assigned to this Action.
7. The following shall govern the termination of Virginia's obligation under the Agreement and the Plan:
(a) subject to the provisions of subparagraph (b), Virginia's obligation with respect to the Agreement and the Plan shall terminate ten months from the Notice Date or with the entry of a Dismissal with Prejudice, whichever is earlier.

(b) With respect to any provisions of the Plan which are the subject of a Motion to Restore under § VIII, the obligations of such provisions shall continue pending an adjudication of such Motion to Restore.
(c) With respect to any provisions of the Plan for which the Court has entered an order for specific performance, the parties agree to jointly move the Court to dismiss such orders and to dismiss the case with prejudice within one year from the date such order for specific performance was entered, unless and to the extent that the United States has moved for a finding of civil contempt with respect to such order within said one year period.
(d) If the United States moves for a finding of civil contempt, but the Court finds no such contempt, Virginia's obligations under the Agreement and Plan shall terminate as of that time with respect to the provision(s) that was the subject of said motion for contempt.
(e) If a finding of civil contempt has been made, the obligations under the provisions of the Plan with respect to which such finding has been made shall be extended for such period as may be required by the Court as a remedy for such contempt.
8. The parties recognize that the community services boards ("CSBs") and local behavioral health authorities referenced in the Plan are agencies of local government rather than state government. Nothing in the Agreement nor the Plan shall be construed to impose any obligation on CSBs or such authorities, nor to impose any obligation on Virginia with respect to funding or directing the activities of CSBs and/or such authorities beyond what may be required by state law.
9. This Settlement Agreement is signed on behalf of the United States by Bill Lann Lee, Acting Assistant Attorney General and other counsel of record for the United States, and on behalf of the Commonwealth of Virginia by William H. Hurd, Senior Counsel to the Attorney General, and other counsel of record for the Commonwealth of Virginia. Each of said counsel represents that she or he has and/or has obtained all authority necessary to sign on behalf of the United States and the Commonwealth of Virginia, respectively. Counsel for the Commonwealth further represent that they execute this Settlement Agreement on behalf of the Commonwealth with the authorization consent and/or approval of the other Defendants in this case, to-wit: Governor James S. Gilmore III, Secretary Claude A. Allen, Commissioner Richard E. Kellogg, and James S. Reinhard, M.D., Acting Director of Central State Hospital.
This Settlement Agreement between the United States of America and the Commonwealth of Virginia regarding the Central State Hospital is signed on behalf of the United States of America by the following:
______________________________
By: Bill Lann Lee, Acting Assistant Attorney General, Civil Rights Division
______________________________
By: Steven H. Rosenbaum, Chief, Special Litigation Section
______________________________
By: David Deutsch, Senior Trial Attorney, Special Litigation Section
______________________________
By: Richard Parker, Assistant United States, Attorney
This Settlement Agreement between the United States of America and the Commonwealth of Virginia regarding the Central State Hospital is signed on behalf of the Commonwealth of Virginia by the following:
______________________________

By: William H. Hurd, Senior Counsel to the Attorney General ______________________________ By: Ashley L. Taylor, Jr., Deputy Attorney General _______________________________ By: Jane D. Hickey, Senior Assistant Attorney General ______________________________ By: Garland L. Bigley, Assistant Attorney General

 
 CENTRAL STATE HOSPITAL FINDINGS LETTER
June 30, 1997 The Honorable George Allen Governor of Virginia Richmond, VA 23212
Re: CRIPA Investigation of Central State Hospital
Dear Governor Allen:
On March 24, 1997, we notified you that we were conducting an investigation, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 etseq., of Central State Hospital ("Central State"), a psychiatric hospital near Petersburg, Virginia. Prior to initiating this investigation, former Virginia Attorney General James Gilmore called Attorney General Janet Reno to pledge the Commonwealth's full cooperation in any Departmental investigation of the conditions. Special Litigation Section Chief Steven Rosenbaum and his staff subsequently met with Virginia Deputy Attorney General William Hurd and his staff to discuss the Department's plans for investigating Central State and the Commonwealth's plans for improving conditions at the facility. I am writing now to report our findings with regard to this investigation.
Central State is a 495-bed psychiatric state hospital that was originally established in 1870 as a separate institution for African-Americans who had mental health disorders. Today, the hospital provides psychiatric services to all persons. It serves adolescents and adult civil patients from a defined geographic area surrounding the Petersburg area. In addition, Central State houses the only secure forensic hospital unit in Virginia. The hospital has six buildings that contain 20 patient wards. The patient population is broken down as follows: the forensic unit (7 wards) is comprised of 176 patients; the adolescent unit (2 wards) houses 19 patients and the adult civil unit (11 wards) has approximately 270 patients.
We conducted the investigation by touring the facility with expert consultants in psychiatry and psychiatric nursing between April 28 through May 2, 1997. During the course of this investigation, these experts made observations, interviewed staff and patients, and examined numerous patient and facility records, including incident and restraint statistics and summaries, committee minutes, morbidity/mortality reviews, and facility policies and procedures. At the conclusion of these tours, both experts provided Central State Hospital staff and Commonwealth officials with a summary of their major findings.
On May 29, 1997, we met with Deputy Attorney General Hurd and his staff in Fredericksburg, Virginia to discuss the status of our investigation of Central State and matters related to our CRIPA activities in other institutions in Virginia. We subsequently reached agreement with Commonwealth officials on a process, with time frames, for resolving our Central State investigation. As part of that process, the Commonwealth has agreed to take some immediate steps to address serious deficiencies at Central State and to develop and implement additional plans for remedial action, based upon the findings and recommendations in this letter.
Before addressing the substantive violations, we would like to express our appreciation to the staff of the Department of Mental Health, Central State, and the Attorney General's office for their assistance and cooperation during our investigation of Central State. We expect to continue to work with these officials in the same cooperative manner to remedy the problems at the facility.
In investigating Central State Hospital, our purpose was to evaluate whether patients were being afforded their constitutional and federal statutory rights. Patients in state-operated mental health facilities have a Fourteenth Amendment due process right to adequate food, clothing, shelter, medical care, reasonably safe conditions and

adequate mental health treatment. Youngberg v. Romeo, 457 U.S. 307 (1982); O'Connor v. Donaldson, 422 U.S. 563 (1975). In addition, the Commonwealth must provide public services to individuals with disabilities in the most integrated setting appropriate to their needs. See, e.g., Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132 et seq., 28 C.F.R. § 35.130(d); and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. and the regulations promulgated pursuant thereto.
During our investigation, we found numerous conditions that lead us to conclude that constitutional and federal statutory rights of Central State patients are being violated. As detailed below, a major cause of many of these deficiencies is that Central State has an insufficient number of adequately trained professional and direct care staff to meet the needs of patients. The facts that support our findings of unlawful and unconstitutional conditions at Central State Hospital are set forth below, followed by the remedial actions that we believe are necessary to remedy these conditions.
I. Central State Is Failing To Ensure The Reasonable Safety Of Its Patients
A. Inadequate Protection From Injuries, Dangerous Behaviors, and Abuse
The facility's incident reports and special abuse investigations reveal a high level of injuries and dangerous situations that place patients at risk of harm. Patients are injured repeatedly due to self-injurious behavior and aggressive acts of other patients. Many of these incidents are preventable and reflect systemic deficiencies at Central State including lack of adequate staffing, failure to supervise patients, and inadequate assessment and treatment of mental illness, particularly patients with behavioral problems.
Central State does not provide needed treatment to abate or eliminate these behaviors. For example, in the period just prior to our tour, one patient engaged in almost daily incidents of self-injurious behavior, including banging his head on the wall, hitting his face with his fist, punching a wall, and assaulting others on a regular basis. Our experts concluded that this patient did not have an appropriate treatment plan to address his serious behavior problems. Another patient with numerous incidents of self-injurious behavior was characterized by staff as "merely seeking attention," resulting in her behaviors largely being ignored, rather than treated.
The lack of supervision is prevalent throughout the hospital. It is not uncommon, for example, for nearly half the acute admissions ward, approximately 76 patients, to be on "high risk status" necessitating staff observation at least every fifteen minutes. In order to be placed on this status, a physician must determine that the patient poses a special risk because the patient is suicidal or homicidal, presents an elopement or arson risk, or requires special precautions. Despite the potential for serious harm posed by each of these conditions, Central State does not provide adequate staffing to carry out the physicians' orders for enhanced supervision. As a result, Central State patients fail to receive the professional judgments by qualified professionals that is necessary to their care.
In addition to inadequate supervision on the acute admissions ward, our experts found the lack of supervision and potential for harm particularly significant on the Forensic Unit, which houses the most aggressive, assaultive and self-injurious patients. Incident reports document numerous injuries to these high-risk patients as a result of not being monitored adequately.
Central State also fails to take adequate steps to assess, supervise and treat patients who are at risk of suicide. Central State has abandoned the use of a formalized suicide assessment for incoming patients. Instead, the standard currently used by Central State to determine whether a patient will be closely monitored by staff rests solely on a verbalization of immediate suicide plans at the time of admission. Without a formalized suicide assessment, physicians are unable to determine which patients are at risk and the level of staff supervision that is necessary to

ensure a patient's safety. Our experts found that the standard for assessing suicide risk at Central State departs substantially from accepted professional standards.
The failure to assess and supervise patients at risk of suicide has dire consequences for Central State patients. For example, last year one patient was admitted with a history of suicide ideations, verbalizations and gestures while confined to a jail. On admission, the patient denied immediate plans to commit suicide and was not placed on any type of increased supervision. The patient eventually hanged himself. Staff found another patient, who had threatened to harm herself, gouging her abdomen and shouting that she must pay for what she had done --but the patient was not placed on increased supervision. She was found three days later underneath her bed, nude, with a bra wrapped around her neck in an effort to strangle herself. A review of incidents from January 1996 to April 1997 reveal numerous suicide attempts, including repeated attempts by patients who were not supervised properly.
Other types of preventable incidents that occur routinely throughout the facility demonstrate a systemic failure to protect patients from harm. Staff also frequently fail to report injuries. For example, in one case, a patient was discovered last year to have 42 bruises, ranging in size from one to two inches, over his upper torso. He sustained these injuries despite the fact that he was under supposedly 24-hour surveillance by Central State staff. Although the facility suspected that the bruises occurred during a two-week period of time, during which there were multiple opportunities for staff to observe the bruises, none of the bruises were reported until the end of the two-week period.
Central State also does not have an adequate procedure for investigating untoward events, abuse allegations and deaths. We reviewed numerous incident reports involving injuries where the medical staff conducted little or no follow-up to determine the cause of the incident, its effect on the patient, or how similar incidents might be avoided in the future. In addition, Central State staff disclosed that follow-up is generally limited to reviewing the initial incident report and quantifying the number of incidents rather than identifying the reason for the incident and how to prevent it in the future. Central State also fails to investigate allegations of abuse in a comprehensive and timely manner. Many of the allegations of abuse cannot be substantiated because the quality of the evidence is so poor or outdated. Finally, the facility fails to conduct routine mortality reviews. Given the problems with the health care delivery system at Central State, detailed below, the failure to conduct routine, independent mortality reviews is a serious deficiency because such reviews may reveal issues that require remedial attention.
These facts demonstrate that Central State residents are at serious risk of harm and have suffered harm, in violation of their basic rights, due to the facility's failure to provide adequate staffing, supervision and treatment.
B. Unsafe and Inadequate Physical Conditions
The physical plant of the Forensic Unit is dangerous and compromises the welfare and safety of patients residing there. The Unit has too many patients, too little space and numerous blind spots. Moreover, temperature control and ventilation problems pose a health risk to patients who receive psychotropic medications that impair their ability to regulate internal body temperature. In addition, the nurses' station does not have adequate sight lines to allow adequate supervision of patients. Such poor environmental and physical conditions subject Central State patients, as well as staff, to serious risks to their personal safety and well being.
II. Central State Is Failing To Provide Adequate Mental Health Care For Its Patients
Central State is not providing its patients with adequate psychiatric and mental health services in accordance with generally accepted standards. Psychiatric practices at Central State are typically characterized by superficial evaluations, inadequate follow-ups, a lack of cogent treatment planning, a lack of multi-disciplinary input into

psychiatric treatment decisions, and an over-reliance on restrictive interventions. Moreover, the psychiatric and mental health services at Central State fail to provide patients with a reasonable opportunity to be cured or function as independently as their psychiatric conditions permit.
A. Inadequate Psychiatric and Mental Health Services
Central State frequently fails to diagnose patients' mental illness appropriately. An adequate diagnosis is essential to develop appropriate treatment. Inadequate diagnoses have led to improper treatment that has harmed patients, either by subjecting them to needless or improper medications and their attendant side-effects, or by failing to treat the underlying mental illness, thereby exposing the patient to negative behaviors that are not controlled properly.
Patient treatment is not multi-disciplinary, individualized or properly managed, in accordance with accepted professional standards. Review of patient records and interviews with Central State staff reveal little or no evidence of multi-disciplinary participation in treatment planning. Records demonstrate that staff are providing treatment without an adequate understanding of the patient's problems. Treatment goals are vague and fail to provide an objective, measurable basis for evaluating patient progress.
Treatment is also not adequately coordinated between disciplines. In particular, master treatment and nursing care plans are inconsistent. Additionally, nursing care plans suffer similar defects to treatment plans. For instance, initial nursing care plans are not individualized. Patients are placed in categories, and then all patients in the same category receive the same nursing care plan without regard to their individual needs.
Behavioral management planning and psychological services are also inadequate. Of the records reviewed, we found numerous patients with recurrent self-injurious behavior who were not receiving appropriate behavioral management. This is particularly true of the Forensic Unit. The failure to provide adequate behavioral management has led to patients receiving little therapeutic care, treatment and programming. To the extent that behavior programming does exist, its negative nature predominates. The emphasis is primarily on containment, rather than teaching alternative, adaptive behaviors.
Central State's Forensic Unit houses several patients who are dually diagnosed as being both mentally ill and mentally retarded. Staff admit that they are not trained to address the needs of this patient population and that the facility offers no specialized programming. Central State also fails to provide adequate treatment for the 22 percent of the patient population who are dually diagnosed as having a substance abuse problem in addition to being mentally ill.
B. Inadequate Discharge Planning and Community Services
Our consultants found that Central State's discharge planning is inadequate and violates professional standards. Central State fails to ensure that professional judgments about the most integrated setting appropriate to meet each patient's needs are made and implemented with due regard to the commitment status of the patient. Patient charts lack adequate discharge criteria. This inhibits the exercise of professional judgment about readiness for discharge. Our experts found Central State's discharge system to be arbitrary, with some patients released too soon while others are hospitalized for too long.
Discharge planning is given low priority at Central State. Discharge plans are often developed only shortly before a patient is about to be released, rather than being incorporated into treatment objectives in accordance with accepted professional standards. Consequently, patients are often discharged without a clear plan and adequate services to

address basic living needs. For example, one patient was discharged on a temporary leave to a group home, without needed supervision, and was found shortly thereafter in a creek near the facility where he apparently drowned. Finally, the failure of Central State to provide adequate discharge planning for those patients who are dually diagnosed as having a substance abuse problem in addition to being mentally ill, results in frequent re-admissions after these patients are discharged to the community.
The Commonwealth is not providing integrated hospital and community services in order to ensure adequate patient transition into the community. Because community treatment services are inadequate, persons who otherwise could live in community settings end up being re-hospitalized.
III. Inappropriate Use of Restraints and Seclusion.
Restraint and seclusion practices depart substantially from accepted professional standards. Despite recent improvements in hospital policy, Central State employs an excessive amount of seclusion and restraint for inappropriately long periods of time, contrary to accepted professional practice. For example, incident reports reveal that staff placed patients in restraints for extended periods of time simply because they did not follow ward rules (e.g., left the ward without permission). In one case, a patient was placed in restraints because he talked back to the staff. Staff appear frequently to make ad hoc decisions about whether to place a patient in restraints, often without appropriate precipitating factors.
Central State's inappropriate use of restraints and seclusion as punishment has had tragic consequences. Last year, a patient died after staff secured her to a bed by her arms, legs and waist in five-point restraints and then left her unattended in a locked seclusion room. Almost a year before her death, her Central State psychiatrist had warned Central State officials that she should not be left unattended in restraints because the patient faced potentially lifethreatening consequences from her asthma and epileptic seizures. The psychiatrist in a memorandum titled "Duty to Warn," urged staff members to avoid strapping down the patient as punishment. The memorandum also noted that Central State staff continually ignored the patient as she lay unconscious during potential fatal epileptic seizures. Appealing for more humane treatment of his patient, the psychiatrist warned that the seizures could be fatal to the patient because thick nasal mucus could drain into her mouth and obstruct breathing. At the time of her death, her behavior program provided that she be placed in restraints for 48 hours to be renewed for an additional eight hour periods if inappropriate behavior continued. Staff were instructed to not "engage in small talk" and to ignore her protests. The patient had spent over 300 hours of the last two months of her life in restraints. Our experts concluded that the facility's care and treatment of this patient was clearly inappropriate. The year before, another patient died while in restraints and locked alone in a secluded room.
Numerous other patients were documented as being restrained almost on a daily basis. According to Central State's monthly reports on "Extensive Use of Seclusion/Restraint," one patient was secluded/restrained for 1,727 hours over an eight month period. Another patient was reported as having been secluded/restrained for 720 hours over a fourmonth period. In the first three months of 1997, a third patient is reported as being secluded or restrained for 668 hours. Our experts concluded that these and other examples demonstrated an excessive use of restraint and seclusion -- a problem that Central State staff have acknowledged. Following an internal staffing and patient abuse report, the Medical Director announced on February 25, 1997, that seclusion and restraint would only be used as an emergency intervention and would no longer be used as program interventions in behavior treatment plans.
Nonetheless, the inappropriate and excessive use of restraints and seclusion for patients still remains a problem at Central State. While overall usage is down, our review of restraint and seclusion data since the enactment of the new policy still indicates the extensive use of seclusion and restraint for many patients, particularly those with behavioral problems. For example, on the Forensic Unit, one patient, in the one-month period just prior to our tour, had been subjected to 33 orders of seclusion/restraint for a total of 233 hours, an average of seven hours each time. Another patient had 49 orders of seclusion/restraint for a total of 396 hours, an average of eight hours each time. Moreover,

Adolescent Unit physicians continue to use the most restrictive intervention of restraint as the first choice of behavioral treatment.
Our expert consultants found that the continuing problems in restraint and seclusion are related to the facility's generally inadequate treatment process. The low staffing level at Central State also contributes to the excessive use of restraint and seclusion as the staff are unable to spend sufficient time with agitated patients to prevent aggression or to implement programs necessary to afford patient safety. Patients at Central State are often kept in restraints and seclusion without any objective, recorded criteria for their release or explanation of the problem behavior that is being addressed by the use of restraints. Staff lack an understanding of less restrictive measures that could be utilized where appropriate. Patients, therefore, often remain in restraints long past the point when professionals agree that release should occur. Monitoring of patients while in seclusion or restraint is deficient at Central State as demonstrated in the incidents during the past several years where patients have died. A recent incident where a patient set fire to the bed after staff restrained him and left him unattended in seclusion highlights this deficiency. In sum, Central State's restraint and seclusion practices require immediate correction.
IV. Inadequate medical care and medication practices.
Central State's psychopharmacological practices substantially depart from generally accepted medical judgment. Little or no effort is expended to conduct the detailed review of a patient's medication history necessary to avoid the risk of placing patients on medications that have produced adverse side-effects in the past or that have proven ineffective.
The medication practices throughout Central State vary substantially and appear to be based on decisions by individual physicians who are not properly supervised. Physicians are underutilizing standard technologies and medications. The problem is exacerbated by confusing and sometimes contradictory memoranda defining medication practices. Physicians fail to justify the medications chosen for treatment or changes made in treatment. Medications are either not changed at all or changed so frequently that it is difficult if not impossible to ascertain the efficacy of the medication. Our experts found medications being prescribed at sub-therapeutic levels. The result is that medications are not working, patients are acting out more, and staff rely on restraints as a means of patient control.
We further found inappropriate and excessive use of medications on a pro re nata ("PRN"), or "as needed" basis. This practice gives discretion to unqualified staff to determine when medications should be given to a patient. Moreover, nurses fail to document the effect of PRN medications in violation of standard nursing practices.
Comprehensive assessments of patients' health care needs and evaluation of the efficacy of treatment interventions are a critical component of adequate health care. Central State physicians, however, are not routinely performing adequate assessments. Nor does the staff act in an interdisciplinary way to identify, plan for, and treat the specific needs of patients. This lack of interdisciplinary communication is a basic failing that negatively affects practically every aspect of patient care at Central State.
Emergency medical care at Central State is also inadequate. Our nursing expert concluded that inadequate medical emergency response was a contributing factor to two deaths at Central State that occurred during the past year. In one instance, there was a delay in initiating cardiopulmonary resuscitation. In another instance, there was a delay in providing emergency medical equipment. One of the deaths occurred on the weekend in the Forensic Unit, where there is only one registered nurse on duty for an entire building of 176 patients.

Central State staff and administrators admit that nursing care is particularly understaffed. The nursing shortages have resulted in a lack of monitoring, review and coordination of medical services. Our nursing consultant found that to make up for the lack of nurses, Central State has had to use an excessive rate of overtime since the beginning of the calendar year. To continue the use of overtime at the same rate for the entire year would result in the equivalent of hiring 53 additional full-time nurses. This excessive use of overtime in a mental health facility is dangerous and does not comport with accepted professional standards.
Inadequate and incomplete record keeping practices deprive Central State staff of information necessary to make professional decisions concerning patient care and treatment. Patient charts lack sufficient medical histories of patients to allow professional judgments to be made regarding treatment. Diagnostic evaluations lack appropriate documentation and justification. Our consultants found that staff did not record patient response to prescribed treatment and medication. Records regarding the detection, evaluation and management of drug side effects were absent from patient charts. Nor do the records reflect explanations for changes in treatment or follow-up procedures pertaining to recognized medical conditions. In sum, Central State records lack relevant clinical information necessary for staff to make professional decisions.
MINIMUM REMEDIAL MEASURES
I. Protection From Harm
1. Central State must provide a safe environment for its patients. Staff members should adequately monitor and safeguard the patients, especially those with histories of exhibiting behaviors that cause injuries to themselves or others. Patients also must be protected from being victimized by other aggressive patients.
2. Central State should employ sufficient trained, independent investigators to ensure that all incidents of abuse, serious injury or unexpected death are adequately investigated.
3. Central State should develop and implement adequate suicide prevention measures, including initial assessment protocols and a sufficient number of qualified staff to adequately supervise suicidal patients.
4. The physical plant of the Forensic Unit needs to be modified to ensure the safety and well being of Central State patients and staff.
5. Central State should hire and deploy a sufficient number of qualified direct care and professional staff necessary to provide patients with adequate supervision and medical and psychiatric treatment.
6. Physician orders for enhanced supervision must be communicated to appropriate staff and implemented.
II. Mental Health Care
1. Central State must evaluate, diagnose, treat, and discharge patients consistent with generally accepted professional standards. Individualized psychological assessments should be performed promptly in accordance with professional standards. In particular, such assessments should be conducted for patients who repeatedly engage in problem behaviors.

2. The treatment process should be reformed. Patient treatment must be appropriate, individualized, coordinated, and properly managed. Such programs should give each patient a reasonable opportunity to be cured and function as independently and effectively as possible given his or her individual condition. To that end, treatment planning should reflect multi-disciplinary thinking. Patients should have appropriate input in the treatment process. Treatment should be based on objective data and clearly established goals. Staff should be trained to write professionally appropriate behavioral goals and objectives. Data collected by staff for treatment decisions should be adequately incorporated into the treatment planning process. Master treatment and nursing care plans need to be consistent and adequately organized for staff review.
3. Central State needs to provide adequate treatment for patients with specialized needs. If mentally retarded patients continue to be housed at Central State, they must be provided with adequate individualized treatment and training. Patients with a dual diagnosis of substance abuse should be provided adequate treatment for that problem.
4. Qualified professionals at Central State must evaluate patients to determine the most integrated setting appropriate to meet their needs. Discharge criteria need to be adequately developed and discharge planning should be a consideration long before a patient is about to be discharged. Central State must develop and implement adequate discharge plans that identify the necessary aftercare services to meet the needs of patients upon discharge. The Commonwealth should develop a quality assurance/improvement system to oversee the discharge process. This system should ensure that patient discharge plans are implemented and that appropriate aftercare services are provided that meet the needs of the patient in the community. Individualized, professionally justified placement decisions should consider a patient's needs.
III. Seclusion and Restraint
1. Seclusion and restraint policies must comport with professional standards and must be conducted in a safe and appropriate manner. The practice of using seclusion for the convenience of staff, or in lieu of treatment, must cease immediately. The decision to seclude and/or restrain a patient should only be employed pursuant to the exercise of professional judgment by a qualified professional (i.e., psychiatrist, medical doctor, psychologist, or registered nurse). Patients in seclusion and/or restraint should be adequately and appropriately monitored. Use of seclusion and restraints should be properly documented and reviewed in a timely fashion by qualified staff. Criteria for release from seclusion and restraints should be clearly identified, and use of seclusion and restraints as part of any treatment process should be professionally appropriate and regularly reviewed.
IV. Medical Care and Medication Practices
1. Central State's psychopharmacological practices must comport with generally accepted professional standards. Patients should receive prompt professional evaluation of medical problems. All use of drugs should be professionally justified, carefully monitored, documented, and reviewed by qualified staff.
2. Central State must provide adequate and appropriate psychiatric and mental health services in accordance with accepted professional standards.
3. Central State must ensure that its patients receive adequate medical, including emergency, care in accordance with generally accepted standards of care. Central State should ensure adequate and appropriate interdisciplinary communication among relevant professionals, and Central State physicians should write appropriate, complete and clear orders pursuant to professionally accepted standards.

4. Central State should develop and implement an adequate quality assurance process in accordance with professionally accepted standards.
Pursuant to the Civil Rights of Institutionalized Persons Act, the Attorney General may initiate a lawsuit to correct deficiencies at an institution forty-nine days after appropriate officials are notified of them. 42 U.S.C. § 1997b(a)(1). We know that Virginia is already engaged in efforts to improve conditions at Central State and look forward to receiving the initial plan of correction based upon these efforts. As we have agreed, we will give the Commonwealth an opportunity to respond to this findings letter in accordance with the time frames agreed to in the correspondence between Special Litigation Section Chief Steven Rosenbaum and Virginia Deputy Attorney General William H. Hurd.
Again, we want to thank you for your cooperation. We will continue to work with you and other Commonwealth officials to resolve the serious deficiencies we have identified.
Sincerely,
Isabelle Katz Pinzler Acting Assistant Attorney General Civil Rights Division
cc: The Honorable Richard Cullen Attorney General Commonwealth of Virginia
Mr. Robert Metcalf Secretary Department of Mental Health and Human Resources
Mr. Timothy Kelly Commissioner Department of Mental Health
Mr. James C. Bumpas Director Central State Hospital
Helen F. Fahey, Esq. United States Attorney Eastern District of Virginia >

 
 VIRGINIA CENTRAL STATE HOSPITAL
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION v.
THE COMMONWEALTH OF VIRGINIA; THE HONORABLE JAMES S. GILMORE III, Governor of Virginia; RICHARD KELLOGG, Commissioner of the Department of Mental Health, Mental Retardation, and Substance Abuse Services; and LARRY A. LATHAM, Director of Central State Hospital, Defendants.
________________________________________
COMPLAINT 1. The Attorney General of the United States brings this action on behalf of the United States of America, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. §§ 1997-1997j, to enjoin the named Defendants from depriving persons residing at Central State Hospital ("CSH") in Dinwiddie County, Virginia, of rights, privileges or immunities secured or protected by the laws and Constitution of the United States.
JURISDICTION, STANDING AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345.
3. The United States has standing to maintain this action pursuant to 42 U.S.C. § 1997a.
4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met and that she has the "reasonable cause to believe" set forth in 42 U.S.C. § 1997a. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the United States District Court for the Eastern District of Virginia is proper pursuant to 28 U.S.C. § 1391.
DEFENDANTS 6. Defendant COMMONWEALTH OF VIRGINIA ("Virginia" or "State") owns and operates CSH, a facility for persons with mental illness.
7. Defendant JAMES S. GILMORE III is the Governor of the Commonwealth of Virginia, and, in this capacity, heads the Executive Branch of the State's government and, among other duties, reviews and approves budget requests submitted by Executive Branch agencies regarding state institutions. He selects and appoints the Commissioner of the Department of Mental Health, Mental Retardation, and Substance Abuse Services.
8. Defendant RICHARD KELLOGG is the Commissioner of Virginia's Department of Mental Health, Mental Retardation, and Substance Abuse Services ("DMHMRSAS") and, in this capacity, exercises administrative control of, and responsibility for, the institutions.
9. Defendant LARRY A. LATHAM is the Director of CSH, and is responsible for the administration and day-to-day operations of CSH.
10. The individual Defendants named in paragraphs 7, 8, and 9 are officers of the Executive Branch of the Commonwealth of Virginia and are sued in their official capacities.
11. CSH is an "institution" as that term is defined in 42 U.S.C. § 1997(1)(A), (1)(B)(i) and (1)(B)(v).
12. Persons residing at the institution are "qualified individual[s] with a disability" under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, 12131.

13. The Commonwealth of Virginia, DMHMRSAS, and CSH are "public entities" under Title II of the ADA, 42 U.S.C. § 12131.
14. Defendants are legally responsible, in whole or in part, for the operation of and conditions at the institution, as well as for the care and treatment of persons residing at the institution.
15. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 16. Defendants have failed and are continuing to fail to provide reasonably safe conditions and to ensure the reasonable safety of CSH patients.
17. Defendants have failed and are continuing to fail to provide adequate medical and mental health care to CSH patients.
18. Defendants have failed and are continuing to fail to ensure that CSH patients are free from undue or unreasonable restraint and seclusion.
19. Defendants have failed and are continuing to fail to ensure that use of restraint and seclusion at CSH is authorized by appropriately qualified professionals in keeping with accepted professional standards, and is not used as punishment, in lieu of treatment, or for the convenience of staff.
20. Defendants have failed and are continuing to fail to ensure that medications are prescribed and administered to CSH patients by appropriately qualified professionals in keeping with accepted professional standards, and are not used as punishment, in lieu of treatment, or for the convenience of staff.
21. Defendants have failed and are continuing to fail to provide CSH patients with that level of treatment and training necessary to protect the patients' liberty interests, including their right to treatment and training sufficient to ensure safety and freedom from undue restraint.
22. Defendants have failed and are continuing to fail to provide a sufficient number of adequately trained staff to render the essential care, treatment and training, outlined above in paragraphs 16 through 21, as required by the Constitution of the United States.
23. Defendants have failed and are continuing to fail to maintain professionally based record keeping and record review systems to ensure that patient records contain accurate, up-to-date and relevant information necessary to enable staff to provide adequate care, treatment, and training to CSH patients.
24. Defendants have failed and are continuing to fail to ensure that CSH patients are evaluated by appropriate professionals for placement in the most integrated setting and placed in the most integrated setting appropriate to each patient's individual needs.
25. Defendants have failed and are continuing to fail to meet the requirements of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and the regulations promulgated pursuant thereto, by excluding the persons living at CSH, by reason of their disability, from participation in or by denying them the benefits of services, programs, or activities, or by subjecting them to discrimination, and by failing to administer services, programs, and activities in the most integrated setting appropriate to their needs.
VIOLATIONS ALLEGED 26. The acts and omissions alleged in paragraphs 16 through 25 infringe upon the patients' legal rights and substantive liberty interests and constitute resistance to their full enjoyment of rights, privileges or immunities secured or protected by the Constitution or laws of the United States, and deprive CSH patients of such rights, privileges or immunities.

27. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 16 through 25 that deprive CSH patients of rights, privileges, or immunities secured or protected by the laws and Constitution of the United States, and cause irreparable harm to those patients.

PRAYER FOR RELIEF 28. The Attorney General is authorized under 42 U.S.C. § 1997a to seek only equitable relief.

WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, practices and omissions at the institutions set forth in paragraphs 16 through 25, and to require Defendants to take such action as will bring Defendants into compliance with federal law and provide constitutional conditions of care to persons who reside at CSH. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.

Respectfully submitted,

JANET RENO, Attorney General of the United States

HELEN FAHEY, United States Attorney, Eastern District of Virginia

BILL LANN LEE, Acting Assistant Attorney General, Civil Rights Division

_______________________________

STEVEN H. ROSENBAUM, Chief, Special Litigation Section

ROBINSUE FROHBOESE, Deputy Chief, Special Litigation Section

DAVID DEUTSCH, Senior Trial Attorney

U.S. Department of Justice

Civil Rights Division

Special Litigation Section

P.O. Box 66400

Washington, D.C. 20035-6400

(202) 514-6270

Updated August 6, 2015

 
 Case: 1:99-cv-642 As of: 04/09/2018 09:58 PM EDT 1 of 2
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:99−cv−00642−LMB

CLOSED

United States v. Commonwealth of Virg, et al Assigned to: District Judge Leonie M. Brinkema Demand: $0 Cause: 42 USC 1997 CRIPA
Plaintiff
United States of America

Date Filed: 05/06/1999 Date Terminated: 05/06/1999 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff
represented by Richard Parker United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299−3700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Commonwealth of Virginia

Defendant
James S. Gilmore, III Governor of Virginia

Defendant
Richard Kellogg Commissioner of the Department of Mental Health, Mental Retardation, and Substance Abuse Services

Defendant
Larry A. Latham Director of Central State Hospital

Date Filed 05/06/1999 05/06/1999 05/06/1999
05/06/1999 03/01/2001 04/20/2001 04/23/2001
10/04/2001

# Docket Text
1 COMPLAINT Filed (pmil) (Entered: 05/06/1999)
2 Settlement Agreement by United States, Commonwealth of Virg Filed w/Exhibits (1 Black Binder) (pmil) (Entered: 05/06/1999)
3 ORDER this civil action is hereby DISMISSED w/out Prejudice pursuant to FRCP 41(a)(2) of the FRCP (ent. & filed) (see Order for details) ( signed by Judge Leonie M. Brinkema ) Copies Mailed: yes (pmil) (Entered: 05/06/1999)
Case closed (pmil) (Entered: 05/06/1999)
4 NOTICE for Certification Tour by United States (clerk) (Entered: 03/01/2001)
5 MODIFICATION OF SETTLEMENT AGREEMENT filed by plaintiff United States, defendant Commonwealth of Virg (clerk) (Entered: 04/23/2001)
So Ordered: granting [5−1] Modification of Settlement Agreement.−ent. & filed. ( signed by Judge Leonie M. Brinkema ) Copies Mailed: yes (clerk) (Entered: 04/24/2001)
6 JOINT MOTION by Larry A. Latham, Richard Kellogg, James S. Gilmore III, Commonwealth of Virg, United States to Dismiss (clerk) (Entered: 10/04/2001)

Case: 1:99-cv-642 As of: 04/09/2018 09:58 PM EDT 2 of 2

10/04/2001

7 ORDERED that in accordance with Rule 41(a)(2) of the FRCP, this cae is hereby DISMISSED with Prejudice.−ent. & file. (signed by Judge Leonie M. Brinkema. Copies Mailed: yes [EOD Date: 10/5/01] (clerk) (Entered: 10/05/2001)