IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA,

I

I

Plaintiff,

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I

v.

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MERCER COUNTY, NEW JERSEY;

I

BRIAN M. HUGHES, MERCER COUNTY

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EXECUTIVE; APRIL AARONSON,

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DIRECTOR OF MERCER COUNTY

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DEPARTMENT OF HUMAN SERVICES;

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ROBERT F. ECROYD, ADMINISTRATOR

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OF THE MERCER COUNTY GERIATRIC

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CENTER; IN THEIR OFFICIAL

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CAPACITIES,

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I

____

Defendants. __________

__

___

__

_____

__

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Case No. COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA, by its undersigned attorneys, hereby alleges upon information and belief:
1. The Attorney General files this complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, to enjoin the named Defendants from depriving residents housed in the Mercer County Geriatric Center (MCGC) of rights, privileges, or immunities secured and protected by the Constitution and laws of the United States.

JURISDICTION AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action

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pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing
requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the District of New Jersey is proper pursuant to 28 U.S.C. § 1391.
DEFENDANTS
6. Defendant MERCER COUNTY (County) is a governmental subdivision created under the laws of the State of New Jersey. The DEPARTMENT OF HUMAN SERVICES is a division of the Mercer County government. The County owns and operates the MERCER COUNTY GERIATRIC CENTER (''MCGCu), a nursing home located in Trenton, New Jersey.
7. Defendant MERCER COUNTY is the entity charged by the laws of the State of New Jersey with authority to operate the MCGC and is responsible for the living conditions and health and safety of persons living in MCGC.
8. Defendant BRIAN M. HUGHES lS the County Executive of Mercer County and serves as the chief executive of the County government. County Executive HUGHES is sued in his official capacity.
9. Defendant APRIL AARONSON is the Director of the Mercer County Department of Human Services. In her official capacity as Director, she is responsible for overseeing county services and
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programs for the elderly, including the county operation at MCGC. Director AARONSON is sued in her official capacity.
10. Defendant ROBERT F. ECROYD is the Administrator of MCGC and is responsible for the nursing home's day-to-day operations. In his official capacity as Administrator, he has the custody, control, and charge of MCGC and MCGC residents. Administrator ECROYD is sued in his official capacity.
11. Defendants are legally responsible, in whole or in part, for the operation of MCGC, for the nursing home conditions, and the health and safety of persons confined or residing in the facility.
12. At all relevant times, Defendants acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 13. MCGC is an institution within the meaning of
42 u.s.c. § 1997(1).
14. Mercer County receives federal Medicare and Medicaid funds for care provided at MCGC.
15. Persons institutionalized at MCGC are primarily geriatric residents, including both men and women, who have been placed in the facility to receive skilled nursing care. Many of the residents lack mobility, have significant mental impairments, or must rely on others for basic care.
16. Persons institutionalized at MCGC include ''qualified individual[s] with a disability" for purposes of the Americans
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with Disabilities Act, 42 U.S.C. § 12101 et ~., and implementing regulations.
17. Defendants and MCGC are ''public entit(ies)" under the ADA and implementing regulations.
18. Defendants have failed and continue to fail to ensure MCGC residents' personal safety.
19. Defendants have failed and continue to fail to meet MCGC residents' basic nursing and direct care needs.
20. Defendants have failed and continue to fail to provide MCGC residents with adequate access to qualified medical care for treatment of serious medical conditions.
21. Defendants have failed and continue to fail to provide MCGC residents with adequate access to qualified mental health care for treatment of serious mental health problems.
22. Defendants have failed and continue to fail to provide residents with rehabilitation and restorative treatment necessary to restore, maintain, and improve living skills.
23. Defendants have failed and continue to fail to prevent the unreasonable use of restraints.
24. Defendants have failed and continue to fail to provide residents with adequate nutritional services, including staff mealtime assistance, weight loss prevention, and hydration programs.
25. Defendants have failed and continue to fail to provide adequate communicable disease prevention, infection control, and
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a sanitary and safe living environment for MCGC residents. 26. Defendants have failed and continue to fail to
safeguard MCGC residents' property. 27. Defendants have interfered with residents' ability to
communicate with federal officials. 28. Defendants have failed and continue to fail to treat
MCGC residents in the most integrated treatment setting appropriate to the residents' individual needs.
29. Defendants have been aware of the unlawful conditions alleged in paragraphs 18-28 for a substantial period of time and have failed to address adequately these conditions.
30. The unlawful conditions alleged in paragraphs 18-28 have resulted in serious injury, death, pain, suffering, and harm to MCGC residents including harm associated with improperly treated bedsores, serious falls, elopements, abuse, poor paln control, loss of mobility and living skills, infections, inadequately treated chronic and degenerative illness, serious mental illness, health conditions associated with aspiration, and undue restraint use.
VIOLATIONS ALLEGED 31. The acts and omissions alleged in paragraphs 18-30 constitute a pattern or practice that violates MCGC residents' federal rights as protected by the Constitution and laws of the United States.
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32. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth ih paragraphs 18-30 that deprive MCGC residents of their rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.
COUNT I 33. The acts and omissions alleged in paragraphs 18-30 violate rights, privileges or immunities secured or protected by the First and Fourteenth Amendments to the Constitution of the United States.
COUNT II 34. The acts and omissions alleged in paragraphs 23 and 28-30 violate the Americans with Disabilities Act, 42 U.S.C. § 12101 et mi9·, and implementing regulations.
COUNT III 35. The acts and omissions alleged in paragraphs 18-30 violate the nursing home reform provisions of the Omnibus Budget and Reconciliation Act of 1987 (Act) and its implementing regulations. 42 U.S.C. § 1396r, 42 U.S.C. § 1395i-3, 42 C.f.R. § 483 Subpart B. Through their acts and omissions, Defendants have failed to provide "care for its residents in such matter and in such an environment as will promote maintenance or enhancement of the quality of life of each resident,'' and have further failed to provide "the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-
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/s/ Alberto R. Gonzales

/s/ Christopher J. Christie

/s/ R. Alexander Acosta

/s/ Bradley J. Schlozman

/s/ Shanetta Y. Cutlar /s/ Judy C. Preston /s/ Christopher N. Cheng

/s/ Alberto R. Gonzales

 
 Case 3:05-cv-01122-GEB-TJB Document 4 Filed 10/18/2005 Page 1 of 47

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

RECEIVED 00118.

UNITED STATES OF AMERICA,

r,T 8:30

I.'

WILLIAM T. WALSH

CI.!:FH:

Plaintiff,

Civ. No. 05-1122 (GEB)

v.

STIPULATION OF SETTLEMENT

MERCER COUNTY, NEW JERSEY, :
et at..

Defendants,

This matter comes before the Court upon thc Joint Motion for Approval of Settlement:

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SETTLEMENT

Case 3:05-cv-01122-GEB-TJB Document 4 Filed 10/18/2005 Page 3 of 47
I . lntroduc:tion .............................. , ..... , ..... 3
r I . De f.i nit i on s ....... ' ............. ' ...•................... 5
III. 8ackgr:ound ............... , ............................ 6 IV. Substantive Provisions ............. '" ................ 9
A. Assessment and Care P1.3nning ...................... 9 8. Restraints and Medication Usage .................. 13 C.Mealtime Assist~nce, Resident Nutr:ition,
~nd Hydration Practices .......................... 17
. D. Theupeutic Activities,"Rehabilitation, and' Restorative Care ..................... , ............ 18
C. .Mental Health Care ............................... 19 f. Treatment in the Most Integrated Setting
Appropriate to Individualized Needs .............. 20 G. Management, Oversight, and Tra.ining .............. 23 V Monitoring and Technical Assi s tance .................. 29 VI. Construction, Termin~tion, and Enforcement of Set tl ement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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Case 3:05-cv-01122-GEB-TJB Document 4 Filed 10/18/2005 Page 4 of 47
I. INTRODUCTION,
1. This C6urt hasjutisdiction over this action pursuant to 28 U.S.C. § 1345.
2. Venue in the Oistricto.f New Jersey is appropriate pursuant to 28 U. S. C. § 1391 Ib) "
3. The United States has met ,all pre-fiiing requi,rem~nts stated in the Civil Rights of Institl.l.tionalized Persons Act, 42 U.S.C. § 1997.
4. This Settlement Agreement (Settlement) is enter.ed into between tbe United States and Defendants.
5. This Settlement resolves the investigation conducted by the United States Department of Justice (DOJ) at the Mercer County Geriatric Center (MCGC) pursuant to the Civil Rights of Institutionalized rsons Act (CRIPA)", 42 U.S.C. § 1997. Th~ Settlement addresses the corrective measures set forth by DOJ in its October 9, 2002 letter to the County_ This Settlement does not serve as an admiSSion by the Defendants that corrective measures are ceces5ary to meet the constitutional and statutory rights of the residents of MCGC operated by the Defendants.
6. In conformity with CRIPA, this Settlement represents a voluntary effort by t,he Defendants to meet the concerns raised by DOJ's inVestigation. ,::>.ee q2 U.S.C. § 1997b(a) (2)(8) ~nd § 1997g,
7. By entering into this Set tlement, the Defendants are not admitting to any violation of [ ral or state law.
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B. The signatures below of officials representing the

United States and the Defendants signify that these parties have

given their final approval to this Settlement.
9. This Settlement is enforceable only by the parties and

is binding upon the rt ,by and through

offi als,

agents, employees, and successors. No person or entity is

intended to be a third party beneficiary of the provisions of

this Settlement for purposes of any civil, criminal or

administrative action, and accordingly, no persdn or entity may

assert any claim or right as a beneficiary or protected class

under this Settlement in any civil, criminal, or administrative

action. Similarly, this Settlement does not authorize, nor shall

it be construed to authorize, access.to Defendant documents by

persons or entities not a party to this Settlement.

10. This iettlement .sha1l constitute the entire integrated

agreement the

With the exception of the Justice

Department's findings letter re ranCId in Part III, paragraph 4,

hereof, no prior contemporaneous communications, oral or written,

or prior drafts, shall be relevant or admissible for purposes of

determining the meaning of any provisions herein in any

litigation or any other proceeding. 11. All parties shall be~r their own costs, including

atto;::ney fees, in this and any subsequent p;::oceedings.

12: The parties agree it is in their mutual interests to

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".
a~oid litigation. To that end, the parties have resolved their

differences by agreeing upon provisions contained in this

The

s a

that resolution of this case is in

the best interests of the Mercer County Geriatric Center

residents.

13. This Settlement shall take effect on the day it is

filed with the United States District Court, District of New

Jersey.

II. PEFINITION$

1. "Plaintiff" shall refer to the United States' of America.

2. "Defendants" shall refer to - Mercer County, New Jersey;

the Mercer County Executive, in. his official capacity; the Mercer

County Geriatric Center Hospital Administrator, in his official

capacity; the Director of the Mercer County Department Human

Services, in her official capacity; and their agents and

sticcessors in office.

3. "Qualified staff," "staff," and ~qualified

professional," shall refer to an individual (or individuals) qualified to render the ~~quisite and appropriate care~

treatment, judgment(s), training and service, based on

credentials recognized in the specific field.

4. "Substantial compliance" shall mean that the Defendants

are complying with each paragraph of this Settlement and that

such compliance has been maintained for a period of six. months.

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Isolated incidents of non-compliance shall not preclude a finding

of substantial compliance.

5. Any reference in this Settlement to "Mercer County

,Geriatric Center" taking certain action implies that all of the

Defendants are respons

for MCGC's compliance.

6. In all instances in this Settlement in which the

Defendants agree to provide care, treatment, and services in keeping with·professional standards," it shall mean that the Defendants will provide care, treatment, and services consistent

with "professional standards" as defined by Youngberg v. Romeo,

457 U.S. 307 (1982); Olmstead v. L.C., 527 U.S. 581 (1999); Americans with Disabilities Act, 42 U.S.C. § 12132 et ~.(ADA); 28 C.F.R. § 35.130(d) (ADA integration regulation); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (Section

··504), Grants to States for Medical Assistance Programs (Medicaid). 42 U.S.C. § 1396r (nursing home standards); 42 C.F.R.

§ 483 Subpart B (Medicare & Medicaid regulations); and applicable

federal case law. 7. ~Significant incidents N shall include all instances of

alleged, suspected, or SUbstantiated abuse, neglect, moderate or

major injury, elopement, theft, hospitalization due to an injury,

or unexpected death.

III. EACKGROUND
1. The Defendant Me~cer County owns and operates the Mercer

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county Geriatric Center (MCGCI, a nursing home located in Trenton, New Jersey.

2. The Deferidants are responsible for the operation of

,

' ,

MCGC.

3. On December 10, 2001, the United States notifi

Deferldants that the United States intended to investigate the

Mercer County

pur

the Civil Rights of

lristitutionalized Persons Act (CRIPA), 42 U.S.C, § 1997.

4. On October 9, 2002, the United States issued a letter of findings that notified Def~ndants of the result of thi~

investigation. This letter included recommendations to address cited. deficiencies.

5. In order to avoid protracted litigation regarding

conditions at HeGC, the parties agree to the provisions set forth in this Settlement.

6 . . MCGC residents have rights protected by the

constitution, federal statutes, and federal nursing home

regulations. See Youngberg v. Romeo, 457 U;S. 307 (1982);

Olmst.ead v. L.C., 527 U.S. 581 (1999); Americans with

Disabilities Act, 42 U.S.C. § 12132 et~. (ADA); 28 C.F.R.

§ 35.130 (d) (ADA integration regulation); Section 504 of the

Rehabilitation Ac:t of 1973, 29 U.S.C.A. § 794 (Section 504),

Grants to States for Medioal Assistance Programs (Medicaidl, 42

U.S.C. § 1396r (nursing home standards); and 42 C.r.R.§ 483

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Subpart B (Medicare & Medicaid regulations). This Settlement was

entered to ensure. MCGCis compliance with generally accepted

professional standards of care consistent with federal law.

7. Nothing in this Settlement is intended to serve as a

wa

or exemption from standax:ds identified in the above-

re renced federal atutes, implementing regulation·!!; ,and

as

ed surveyor guidance. MCGC ahallbe

to continue

fully complying with these federal standards.

8. Nothing in this Settlement shall preclude the United

States Department of Health and Human Services (HHS), the Centers

for Medicare arid Medicaid Services (eMS), or relevant state

agencies, from separately enforcing relevant nursing home

. .

stand"rds. Any penalties or findings by these or other

government agencies may be considered as relevant evidence, but

. ~hall not be determinative. as to MeGe's compliance with this

.settlement. The Defendants' submission of plans of Correction

to, or certification for receipt of federal funds by, .the Centers

for Medicare and Medicaid Services do not, in themselves,

constitute compliance with this Settlement .

. 9. Nothing in this Settlement shall be construed as an

acknowlBdgm~nt, an admission, or evidence of liability under

CRIPA, the Constitution, £ederal Or state law.

10. MCGC has advised the United Stktes that it has already

taken significant steps to improve the gualityof care in all

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areas co~ered by this Settlement. The State recently found the Center in compliance with state and federal nursing home reg~lations with only one deficiency.

11. This Settlement, voluntarily entered into, shall be

ante by

Unit

ates Oi

Court for the District of

New Jersey and shall be enforceable under the terms set forth

herein as an order of the Court.

12. 'l'he parties agree that the provisions of this

Settlement are a reasonable, lawful, and fundamentally fair resolution of this case.

IV. SUBSTANTIVE PROVISIONS

A. Assessment and Care P~anning

1. MCGC shall provide adequate safety, medical care, and

nursing care to MCGC residents. MCGC _hall develop and implement

policies and procedures to ensure timely and professionally

appropriate assessfuent and treatment of MCGC residents.

2. Initial assessments and rEl-assessments shall be

conducted as required by generally accepted professional standards.

3. MCGC will. conduct initial assessments on all new

residents and re-assessments of existing residents based on

medical need. All assessments shall be done consistent with

IV. A. 3. (a) ( I ) lo~. MCGC shall assess whether each resident

may be at risk for, or have a present need for, care to address

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the follo~ling lssues and problems commonly found in a geriatric population:
B. Pressure sores, skin damage, and necrosis., b. Restraint use. c. Elopement. d. Falls and unexplained injuries. B.Loss of physical and mental function, including
development of contractures, communication deficiencies, and cognitive impairment. f . Adaptive care ,and disability accommodation needs. g. Nutrition, hydration, and mealtime assistance needs. h. Mental health care requirements and behavioral issues. i. Rehabilitative and restorative care needs. j. Chronic disease. k. Pain. 1. Incontinence. 4. When a resident ~xperiencBs a significant change in condition, a profe~sionally appropri~te re-assessment shall be conducted. Significant changes in condit~on include: a. Development of pressure sores, une~plained skin
wounds, skin deteri ion or necrosis. h. Deterioration in a resident'.s.mental or physical

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"
function, including the development of

contractures,

c, Incidents elopement, falls, or injury,

d. Significant changes in weight or dehydiation.

e. A resi 's trans from another long-term care

facility or a resident's return to MCGC after

hospitalization at an outside medical facility.

f. Behavioral symptoms, increased depression, or

appearance of other serious mental illness.

g. Incontinence.

5. Assessments and re-assessments shall be incorporated

into resident care plans. Care plans shall meet generally'

accepted professional standards.

6.

shall include the llowing elements;

a. A care planning process that is conducted in an

interdisciplinary manner by qualified direct care,

nursing, physician, mental health, therapy, and

social work staff.

b. Active partJcipation by all appropriate staff

(including professionally appropriate attendance,

care review, and oversight by psychiatrists,

physicians, and psychologists) in care planning

mpPTings,

C. Active participation by social,workers to ensure

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that residents' psychosocial needs are addressed. d. Objective, comprehensive, data-based evaluation of
resident needs including careful incorporation of resident assessments into any care plan. e. Professionally appropriate evaluation and consideration of. reasonable, alternativ.e care options. f. Periodic update and review of care plans by qualified staff to ensure that care remains individualized and appropriate. g. Professionally appropriate consideration and monitoring of. factors that commonly contribute to the health and well-being of geriatric residents over the course of treatment, including;
i) Restraint use, ii) Restorative or rehabilitative care
needs, iii) Pain management needs, iv)Medication regimens, v) Availability of adaptive devices,
adaptive equipment, hospital fUrniture,. and <:,ppropriate housing environment, vi) Nutrition and hydration requirements. 7. Direct care staff shall be trained on the individuai

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needs and care plans for the residents in their care.

8. Assessments and care plans shall be implemented and incorporated into actual resident care. All medical and mental

health treatment, therapeutic activities, and other resident care
shall be designed to ensure that each r~sident attains Or.
maintains the highest practicable physical, mental, and

ychos I weI ing in accordance with each resident's individualized assessments and care plans.

9. MCGC shall ke reasonable

to ensure that:

a. Residents do not develop avoidable bedsores.

b. Residents are not fed by neo~gastric tubes unless unavoidable.

c. Residents do not experience avoidable malnutrition or dehydration.

d. Residents do not experience avoidable loss of

physical or mental function. 10. MCGC staff shall ensure that re~idents who .~eed

assistance with rsonal hygiene rece professionally

~ppropriate assistance .with bathing, cleaning, grooming, and

toileting.

B. Restraints and Medication Usage.

1. MCGC residents shall not be subjected to .unreasonable

restraints. MCGC shall meet generally 'accepted professional

standards identified in feder~l statutes and regulations

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governing the use of restraints. The United States acknowledges

that Defendants have adopted a "no restraints H policy designed to be consistent with this Settlement. ThIe Defendants acknowledge that MCGC restraint policies shall require implementation, staff

training, and continued updating to ensure compliance with

generally accepted professional standards on the use of restraints.

2. In order to minimize and decrease the use of mechanical·

and chemical (medication) re

, MCGC shall:

B. Develop and implement meaningful alternatives to

restraints including providing residents with

restorative care, therapeutic activities, and

changes to the living environment.

b. Ensure that restraints are riever used for the

convenience of staff or as.punishment. ·Restraints

shall not be incorporated into a resident's care

plan or used on a resident unless there has been a

thorough assessment of the need for restraint use,

the harm associated with restraint use, and

alternatives to restraint use. If emergency

restraints are necessary, they will only bj2l imposed

pursuant to an clinically appropriate physician's

order. Residents in emergency physical or

mechanical restraints shall be monitored to ensure

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that they have adequate circulation.

c. When restraints are recommended by st af.f to

prevent falls. MCGC shall ensure that there has

been an appropriate evaluation of the reasons for

the falls and ernatives to restraints. MCGC

shall assess whether addressing a resident's need

al

ing. strength building

exercises, adapted communication, assistance with

toileting, pain management, or treatment for

anxiety may be a rno!:e appropriate solution than

restraints.

d. Where restraints .are determined initially to be

appropriate, MCGC staff shall periodically

re-assess the perceived need for such re~traints

and attempt alternative approaches, as indicated.

e. Ensure that the use of devices such as bedrails

and "lap buddies" are covered by facility policies

and procedures governing use of restraints.

f. Ensure that residents' behavioral issues arB

assessed by qualified mental health professionals

and behavioral plans are developed based on valid,

reliable data and assessments. Any behavioral

plans shall be integrated into resi~ents'

comprehensive caie plans.

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3. Residents placed in restraints shall be carefully

supervised and provided food, water, and restroom breaks

i;l S requi red by.

ssional standards.

4. MCGC shall evaluate straint use as part of MCGC's

quality assurance and improvement nr"""ss.

1 outcomes

that may be associated with restraint use, such as weight loss

and trauma, shall be evaluated as part of this process .. Data and

trends regarding restraint use should be identified for both

individual residents and the MCGC system as a whole. Basect on

the data and trends identified by the quality assurance and

improvement process, MCGC shall make professionally .appropriate

systemic and operational changes to facility restraint practices

and procedures.

5. Medication audits at MCGC are conducted by an

independent pharmacy professional. The professional services

contract with the phi!lrmacy professional has been executed, and a

copy of this agreement has been provided to the Onited States

Department of Justice. MCGC .shall continue evaluating whether

residents are receiving necessary medications. Non-

pharmacological interventions shall be evaluated to determine

their efficacy and appropriateness given each resident's assessed

care needs. MCGC shall continue to identify and eliminate

pro ssionally inappropriate medication pra ices.

~. MCGC shall monitor medication side-ef ts both as part

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of each resident's care plan and as part of facility-wide

oversight procedures.

C. Mealtime Assistance, Nutrition and Hydration Practioes

1. MCGC shall provide all,residehts with adequate

nutrition, hydration, and

ime assi ance consistent with

generally accepted professional standards.

2. Facility nurses shall participate in the coordination

and oversight of staff response to residents' significant weight

~hanges.

3. All appropriate staff shall be given competency-based

training on mealtime procedures and hydration. Additionally,

MCGCshall train facility nurses in conducting appropriate weight

evaluations. Competency-based training on feeding and hydration

shall be provided

ifi ly for RN's, certif d nurse aides,

and 'activity professionals who assist with resident feeding.

4. MC~C shall ensure that nurses and,di

care sta are

supervised by facility management and physician staff to ensure

appropriate follow-through when significant weight changes are

identified.

5. For residents who need mealtime assistance or who are

losing, or at risk of losing, their ability to feed themselves,

MCGC shall provide professionally appropriate assistive devices,

therapeutic positioning, and functional seating programs. Such

assistance shall be part of the resident'S care plan and be based

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on the individual resident's assessments. 6. MCGC shall develop a~d implement clinically appropriate,

individualized mealtime assistance, hydration, and nutrition

plans for residents assessed as requiring such plans.

D. Therapeutic Aotivities, Rehabilitation., and Rest.orative Care

1. As part of the assessment and treatment process, all

MCGC residents shall be assessed

loss of physical or mental

function and their corresponding need for therapeutic activities,

rehabilitation, and restorative care. MCGC shall ensure that

residents have professionally appropriate rehabilitation and

restorative care plans. Resident mobility and self-care skills,

including the ability to bathe, toilet, communicate, and self-

feed, shall be specifically addressed in those plans. The

activity, rehabil atioD, and restorative care plans shall be

periodically r.viewed and upd~ted to ensure continued

individuali ion and compliance with

rally

professional standards. 2. MCGC shall develop and implement therapeutic activity

programs for residents with limited physical or cognitive function, including those ~esidents with dementia, depression,

aphasia, visual impairmetlts, communication issues, or hearing

loss. These programs shall be designed to help residents

maintain or impx;ove their functional abilities.

3.· MCGC shall obtain training and consulting services from

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a' qualified provider for the development and implementation of

restorative and rehabilitative care programs. The parties

anticipate that the Monitor will evaluate the Defendants' current

contracts for consulting services and provide further guidance on

how additional services can be provided by outside contractors or

in-house staff.

E. Mental Health Care

1. MCGC shall provide adequate and appropriate mental

1th se

in

with generally a

ed

professional standards.

2. Psycho-pharmacological medications shall be .ordered

pursuant to generally accepted professional standards. Residents

shall be assessed to determine any need for anti-depressants, and

anti-depressant use shall be properly documented in resident

medical records.

3. MCGC shall carefully monitor residents for medication

side-effects. Staff shall be trained on identifyin~ such side-

ef

in geriatric residents whose limited function and medi

problems can sometimes obscure the existence of su~h side-

effects.

4. Physicians and psychiatrists shall itclude in resident

medical record$;

a. Resident symptomatology and functioning;

b. Mental status exam;

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c. Assessments, fo~mulations, and Ca~e plans; and. d. Any identified medication side-effects and
laboratory testing ~esults.
F. Treatment in the Most, Integrated Setting Appropriate to Individualized Needs
1. MCGC residents shall be provided se~vices in the most integrated setting ~ppropriate to their individualized needs.
2. Consistent with Olmstead, the ADA, and ADA regulations, MCGC shall ensure that the facility's treatment professionals reliably assess Bach resident to determine whether community placement is appropriate for the individual. Such assessments shall be conducted iri a reasonable manner that meets generally accepted professional standards. The assessments shall take place before admission and periodically throughout a resident's placement at MCGC. If placement in a more integrated treatment setting is determined to be appropriate, then MCGC shall ensure that such placement shall be provided, if the affected person does not oppose such placement, and the placement can be reasonably accommodated. The parties acknowledge that in certain situations, an assessment cannot occur prior to admission due to a sident's tran~fer from a hospital or admission in an emergency situation. In such situations, MCGC shall conduct the placement assessment shortly after admission.
3. Prior to discharging a resident pursuant to § G.2, above, MCGC shall provide sufficient preparation and orientation
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to the resident to ensure safe and orderly transfer or discharge from the facility.

4. The Defendants shall not discharge residents to

facilities that would not be considered appropriate for the

resident according to

.uy

p

sional andards .

MCGC and the Defendants shall provide the United States with

copies

1 propos and final discharge plans. MCGC shall be

given four months from the time this Settlement is filed to

prepare such plans on all resident~ who do not currently have 'such plans.

5. MCGC'$ quality assutance system shall includg evaluation

and review of resident or family complaints about ,the discharge

assessment and planning process.

6. To ensure compliance with·ADA requirements, MCGC shall

ensure that the facility's therapy, restOrative,' and

rehabilit

care programs are developed by gualif

professionals with training and experience in implementing such

programs for residents with limited mental or physical function. The parties anticipate th~t the Monitor will svaluatethe

Defendants' current system for providing such programs and offer

further guidance on how additional services can be provided by

outside contractors or in-house staff.

7. In addition to the other reqllirements of this

Settlement, MCGC shall:

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a. Develop and implement an equipment management program to ensure thmt adaptive equipment is in

good functioning order.

b. Evaluate whether the use of ,wheelchairs or staff

mealtime assistance

s are resulting in the

unnecessary

ioration of resident self-care

skills.

c. Develop and implement a policy for discharge planning that includes consideration of hospice

care or transfer to the most integrated community

settings.

d. Participate in State planning to implement the

requirements of the Americans with Disabilities Act (ADA), ADA implementing regulations, and Olmstead.

As part of this planning process, MCGC shall

identify community placement resources

any

MCGC residents who may be appropriately placed in a cQmmunity setting and the barriers to such

placements' ..

e. Ensure that the resident assessment and care

planning process includes asSeSsment of the

appropriateness of placemerit at MCGC. The process

shall also include the identification of treatment

options, therapeutic activiti~s, rehabilitation,

22

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•

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• Filed 10/18/2005

Page 24 of 47

and restorative care that may be necessary to

ensure that residents receive care in the most

int

ing appropriate to their individual

needs.

G. Management, Oversight, and Training

1. Defendants shall ensure that MCGC is operat~d and managed in a manner consistent with generally accepted professional standards.

2. MCGC shall develop and implement a gerontologic core

training program that meets generally accepted profes.sional

standards. This training shall include competency evaluations of

staff to ensure that staff are proficient to implement care, plans for residents in their care. MCGCshall ensuie that the facility training program:

a, Trains staff on relevant federal regu~ations

regarding nursing homes, the nursing horne

guidelines set forth in federal law and generally accepted professional standards;

b. Provides appropriate MCGC staff with educational

instruction on methods of evaluation, diagnosis,

and treatment of residents with psychiatric and/or

behavioral problems;

c. Provides continuing medical education on age

related. mental health issues;

23

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d. Bdueates all appropriate staff on g~nerally
accepted p~ofessional app~oaches to promoting "
improved function, resident safety, h~alth, hydration, and nutrition. The approach~s addressed
by such training shall include, but not be limited

to - using adaptive devices to avoid more

restrictive re

or meal time practices,

modifying living conditions to allow greater

resident independence, and providing app~opr

the~apy and activities; e. Ed~cates staff on "restraint-free H treatment

approaches and alternatives to restraints;

f. Educates staff on their roles in the interdisciplinary care planning process, implementation of care plans and medical orders, and the individualization of re~ident assessments

and treatment; g. Educates staff on medi ion side ef ets; h. Educates staff on the psychosocial needs of

ge~iat~ic residents; i. 'l'rains staff on therapeutic activitie.s, restorative

care, and rehabilitation programs; j. Trains staff on medical .issues specifically related

to the aging process.

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3. MCGC shall ensure that a qualified geriatric physician oversees resident medical care, including care provided by any physicians with privileges at MCGC. This medical director shall be board certified with a certificate of added qualifications in geriatrics. The medical director's oversight shall compQrt with
g. ene. rally accepted standards and shall include review of care
plans, physician orders, staff implementation of physician orders, and compliance with facility quality assurance .policies. The medical director shall ively participate in the development of policies and procedures at MCGC. The medical director shall also play an active role in the credentials and hiring approval and review process for attending physicians.
4. In conjunction with facility management and as part of a facility-wide quality oversight process, the medical director and as appropriate, the independent pharmacy professional referenced in IV.a.S above, shall:.
a." Review resident charts and~edication practices to ensure that there is no pro ssionally inappropriate polypharmacy or unnecessary drug and restraint use;
b. Review resident charts. to ensure that physicians and staff are properly documenting clinical information, including the basis fqr their treatment decisions, drug reduction efforts, care

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"
plans, lab results, treatment data, and resident

health evaluations;

c. Monitor staff to ensure appropriate supervision of

residents and implementation of care plans;

d. Ensure that the care provided at MCGC is designed

to pro-actively improve resident quality of Ii

and prevent declines in resident function; and

e. Ensure that medication practices comport with

generally accepted professional standards and that

the use of medications is professionallY justified,

care"fully monitored, documented, and reviewed by

qualified staft.

5. MCGC shall develop and i~plement professionally

appropriate quality assurance and staff civersight poli6ies.

These policies shall include;

a. Mortality and peer

ews '""'-J!...SCL' an org ani zed

procedGte conducted by appropriate medical

professionals for completing detailed assessments

of resident deaths, negative outcomeS, and resident

care, in order to evaluate the p,erformance of

treating professionals in meeting the standards of

their specialty);

b. Objective, reliable, verifiable data collection to

identify problem trends or issues;

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"
c. Professionally apptopriate corrective action in

response to any identified problem trends or issues

facility, shift, resident, or housing unit

patterns of resident abuse; injuries; pressure

sores; falls; restraint use; infections;

communicable disease outbreaks; psychotropic

medication use; incontinence; or loss of function).

d.Procedures to ensure accurate reporting of serio~s

incidents, including the reporting of possible

abuse to other-agencies as required by law.

6. MCGC shall develop and implement policies and procedures

to ensure adequate clinical supervision of all staff, including

physicians and psychiatrists.

7. MCGC shall ensure that phys~cian and psychiatrist staff

'provide adequate on-site coverage at the ,facility and 'participate

meaningfully in the assessment and care plan

ss .. MCGC shall

monitor and evaluate the adequacy of physician and psychiatri

coverage ptirsuant to its quality ~ssurance procedure.

B. MCGC shall train and monitor staff on obtaining informed

consent as required by generally accepted professional standards.

Specifically, MCGC shall ensure that residents are not subjected

to medications, restraints, or o~her treatment without

appropriate consultation and consent from the residents or their

guardians/medical decision-makers.

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9. MCGC shall ensure that there are adequate numbers of staff to carry out the requirements of this Settlement. This shall include, but not be limited to:

a. Retaining three social workers to regularly provide

timely, direct, soc 1

ces re to the

idents. These social workers shall assist with

development and implementation of resident care

plans, discharge planning, and ADA compliance.

This staffing requirement is based on current MCGC

resident needs and assumes that the population

count remains stable at approximately 180

residents. It the resident populatiOn increases or decreases substant~allYI the 60cia1 workei staffing

requirement may be adjusted based on generally

accepted professional standards ..

b. Retaining a qualif~ed registered nurse to serve as

the facility's wound care nurse.

10. MCGC

1 develop and implement a facility

housekeeping, preventive m6intenance, and safety inspections

policy.

11. Resident hygiene, including grooming condition, shall

also be reviewed periodically as part of the facility's quality

assurance process. MCGC shall monitor ~nd maintain adequate supplies of ~lothirig, linens, towels, blankets and resident

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h~giene supplies.

12. MCGC shal.l train and monitor staff on compliance with

resident advanced directives. MCGC shall ensure that such

directives comply with applicable laws. To that end. MCGC shall

not rely on untrained staff to prepare resident's legal papers.

such as their advanced directives and care instructions. In

cases where there are no 1 I guardians, MCGC ~il1 continue to

seek appointment of guardians for residents;

VI. Monitoring and Technical Assistance

1. The United States and its attorneys, consultants, and

agents shall have access to MCGC, MCGC residents, MCGC residents

discharq- ed

after

entry

of

this

Settlement. ,

MCGC

staff, ,and'

documents as reasonably necessary to assess compliance with this

Settlement. The United States. its attorneys, consult~nts, and

agents. shall have the right to request., inspect, teview and copy

facility

, resident charts and other documents; conduct,

interviews with residents outside the presence of County lawyers

and staff; conduct interview~ with staff outside the presence of supervisory staff; and observ~, activities normally conducted at

MCGC to assess compliance with this S",ttl",ment. The Unit",d

States agrees to provide the Defendants with reasonable notice

before :;l!2eking access to documents, staff, residents, and

faci 1ities.

2. Nothing in this Settlement shall Preclude the parties

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from exercising their right to cond~ct discovery pursuant to the Federal Rules of Civil Procedure; nor shall this Settlement be construed as a waiver of any legal or equitable rights, remedies, defenses or privileges. It is not, however, the intention of the
rties to exe se any scovery rights associ~ted with.3ctive litigation, such as depositions and interrogatories, unless litig on resumes.
3. To evaluate the Defendants' compliance with § IV.!" above, the United States, and the Monitor referenced below, may visit alternative placement settings. The Defendants will work with the United States and the Monitor to facilitate visits to such settings.
4. MCGC shall submit quarterly compliance reports to the United States, the first. of which shall be submitted within 45 days after entry of this Settlement as a court order. The reports shall describe the ions MCGC has taken during the reportingperi~d to implement this Settlement and shall make specific reference to the Settlement provisions being implemented. MCGC shali make available records or other documents to verify that they have taken such actions as described in their compliance reports (~, census summaries, staffing sununaries, contrOicts, bills, incident reports), "nd will provide copies of all documents reason'ably requested by the Oni ted States without charge. As part of the compliance t'eport,

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i~form8tion provided shall include, but not be limited to:

8. All mortality o~ serious incident ~eviews o~

investigation>;;

for elopements, emergency

hospitalizations, fires, staff-on-~esident abuse,

communicable disease outbreaks, resident inju s) ;

b. Su~veys by s

,local, or federal officials

~~ health department, Medicaid agency);

marshal, ate

c. Quality assurance reports gene~ated during.the

reporting period;

d. ~taffing vacancy reports, staffing rosters, .~nd any

staffing needs assessments;

e. Resident population rEilPort and roster; and
. f. Resident or. fam.ily complaints/grievances, or
investigation notices, and the investigation

reports completed .i.n response to any of these

items.

5. The Defendants shall retain a qualified Monitor with exp~rience and training on geriatric is~ues.to assist in remedial

efforts under this Settlement. A copy of the Monitoring Protocol

is hereby incorporated at Exhibit A.

6. The Monitor shall evaluate MCGC's compliance with this

Settlement, and provide a report to the. pa~ties and the Court at

least once every six months as to the status of MCGC'! remedial

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efforts. Either party may use the reports or testimony of the

Monitor for this case, but the reports and testimony of the

Monitor shall not be determinative for purposes of a

ng

compliance with thi.8 Settlement. Either party may contest any

findings or recommendations by the Monitor. The Monitor shall

not testify in any other case unless both parties consent, the

Court orders the testimony, or such testimony is otherwise

required by law.

7. The Monitor shall provide on-site technical assistance

to' staff to assist the Defendants in achieving compliance with

this Settlement. To facilitate such technical assistahce and

compliance evaluation, the Monitor shall have the right to

request, inspect, review and copy f.acility records, resident

charts and other documents, conduct interviews with residents Dutside the presence of Defendants' laWyers and ~taff, conduct

interviews with staff outside the presence of Defendants' la0yers

and supervisory staff, and observe activities normally conducted

at MCGC to assess compliance with this Settlement.

8. The Defendants §hall bear all cost of the Monitor

consistent with the Monitoring, Protocol and budget incorpor-ated

into this Settlement as Exhibit A. A copy of the contract shall

be filed with the Court and served upon the United States.

9. Both the United States and the Defendants

to

agree on the Monitor selected for this position. If the parties.

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have not agreed to an Monitor before submission of this

Settlement, the parties intend to meet and confer on selection of

the Monitor within 45 days after entry of this Settlement.

Assuming the parties agree to the selection of a Monitor, the

parties shall file a Joint ~otion requesting that the Court

appoint the selected individual as Monitor. If the United States

and the Defendants cannot

on the Monitor within the 45 day

conferral period, then either party may file a unilateral Mo~ion

requesting that the Court select the Monitor. In that

circumstance, each party shall submit a list of no more than

three candidates with its motion (or response) to the Court for

review and appointment of an Monitor from those lists. After the

Court appoints the Monitor, the Def~ndant. shall file a copy of a

completed contract within 60 days after the Court's decision.

10. The Monitor shall not be terminated without leave of

th~ Court. Neither party shall move to terminate the Monitor

without providing at least 30 days' written notice to. the other

party their intention to do so. If a party unilaterally seeks

to terminate the Monitor, termination shall be granted only for

cause. The Monitor may be terminated on any grounds, however, if

both parties agre·e to such termination. If both parties agree to

terminate the Monitor, they shall file a Joint Motion for

Termination with the Court.

11. In the eVent the Monitoi is unable to carry out his or

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"
her obligations due to unforeseen circumstances (~ due to

death, illness, termination, or resignation), the parties shall

confer on the replacement of the Monitor. If they are unable to

jointly agree on a replacement, then the procedure outlined above

for appointment by the Court shall be applicable.

12. The Defendants, their, agents, employees, contractors,

and subcontractors 11 not take any aliatory action against

any individual or individuals who cooperated with the United

States' investigation of HeGe, or who cooperate with the United

States or the Monitor during the pendency of this Settlement.

VII. Construction, Termination, and Enforcement of Sliilttlement

1. This Settlement shall be applicable to and binding upon

all parties, their o.fficers, agents, employees, assigns, and

their successors in office.

2. The Defendants shall begin implementing this Settlement

immediately upon the ling of the Settlement with the Court .

. Except where otherwise specifically indicated, the Defendants

shall complete implementation of all the provisions of this

Settlement within one hcindred and eighty (180) days after the

filing of this Settlement with the Court. If Defendants are

unable to complete implementation of any provisions of this

Settlement within this one hundred and eighty (IBO} day period,

they may seek an ~dditional sixty (60) day-extension from the

Court by filing a motion with the Court. The Motion for

34

• Case 3:05-cv-01122-GEB-TJB

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Extension shall include a certification from the Monitor that a

good faith basis exists for granting this extension. Prior to

filing such a Motion ,for Extension, Defendants shall conslllt with

the United States. If the Defendants fail to implement the terms

of this Settlement on a timely basis, the United States may

appropriate relief from the Court, including immediate injunctive

relief if Defendants' failure to comply with the Settlement

creates a condition or practice at MCGe that rises to the level

of an emergency (imminent threat to the health, safety, or life

of a resident or residents) .

3. This Settlement will terminate three years after

approval of this Settlement by the Court. Nothing in this

,Settlement shall preclude early termination of this Settlement

be

the three year date if Defendants attain substantial

. compliance with this Settlement (as defined in II . 4 above) before

the

year termination date.

4. Any time after aPl?roval of this. Settlement by the Court,

the parties may seek termination of the Settlement by filing a,

Joint Motion for Termination. If the parties jOintly move for

termination, termination may be granted without ~ny further

proceedings, and the case will be dismissed with prejudice.

Alternatively, Defendants may file a Motion for Termination once

they have substantially complied (as defined in. II.4 above) with

this tlement. If Defendants unilaterally move for

35

'. Case 3:05-cv-01122-GEB-TJB

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,
termination, early dismissal shall bm granted unless the United StateS objects to termination within 90 days after Defendants filed their Motion for Termination. If the United States objects to termination, a hearing shall be held on the Motion for Termination, and dismissal shall not be grantmd un ss Defmndants have substantially complied (as defined in II.4 above) with this
1ement. 5. Consistent with the Federal Rules of Civil E'roceci'ure,
the burden of proof shall be on the movant in any adversarial
hearing set by the Court.
6. All staff members <:md other individuals responsible for implementing this Settlement shall be apprised of the contents of this Settlement. This Settlement shall be made available promptly to residents and resident family members upon request. Notices that this Settlement has been entered shall be posted in
1 resident housing areas. A copy of the Settlement shall be post~d on the Justice Department, Civil Rights Division, Special Litigation Section website.
7. The parties reserve the right to withdraw cons'ent to this Settlement in the event that this Settlement is not approved by the Court in its entirety.
8. If any provision of this Settlement, or the application thereof to any person or circumstance, is held invalid after entry of the Settlement, the remainder of ,the Settlement and its

36

- - - - - - - - - - - - - - - - - - .....

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• Case 3:05-cv-01122-GEB-TJB

Document 4

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application to other persons or circumstances shall not be affected thereby.

9. Except as otherwise expressly provided in this

Settlement, any notice or request to be given hereunder by either party to the other shall be in wri~ing and may be a cted either by personal delivery or by mai~, registered or certified, postage

pr id with return receipt requested, Mailed notices shall be

addressed to the parties at the following addresses, but ei the,r

rty may change s not address by providing written notice to the other in accordance with this paragraph.

10. In the event this Settlement is challenged in state or

federal court, either party may seek removal to federal court.

11. The parties may jointly agree, in writing, to modify this Settlement.

12. Any notice br request that must. be given under this

Settlement in writing by either party to the other may be

effected either by personal delivery, Federal Express, o~ by

mail,

ste or certifi , post prepaid with return

receipt requested.

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Agreed to by:
COUNSEL FOR THE UNITED STATES:
Date: .::z1:;-p , 2005

Christopher United Stat District of New Jersey 970 Broad Street Room 700 Newark, NJ 07102

R_ Alexander Acosta Assistant Attorney General Civil Rights Division
United States Department Of Justice

3.8

• Case 3:05-cv-01122-GEB-TJB

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'.

1 netta Y. Cutlar hief U.S. Department of Justice. Civil Rights Division Special Litigation Section

Deputy Chief Civil Rights Division Special Litigation Section

Christo er N. aheng
Trial Attorney 0
U.S. Department of Justice
.Civil Rights Division Special Litigation Section 601 D. Street N.W. Washington D.C. 20004
(:2 02) 514 ~ 8.~ 92

• Case 3:05-cv-01122-GEB-TJB

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. "

COUNSEL FOR DEFENDANTS - MERCER COUNTY, MERCER COUNTY EXECUTIVE, AND MERCER COUNTY BOARD OF CHOSEN FREEHOLDERS.

Date: 1'l::.11-t , 2004
•

~~ijSb: Brian M. Hughes County Executive Office of the County Executive Mercer County
McDade Administration Building .. 640 S. Broad Street
. NJ 08611

, Jr. Mercer unt Counsel Mercer Cou Executive's Office McDade Administration Building 640 South Broad Street P.O. Box 8068 Trenton, NJ 08650-0068 (609) 989-6511
row eputy county Mercer County Executive's Office McDade Administration Building 640 South Broad Street P.O. Box 8068 Trenton, NJ 08650-0068 (609) 989 6513

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• Case 3:05-cv-01122-GEB-TJB

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WHEREFORE, the parties to this action ha~ing agreed to the

provisions in tha Settlement set forth above, and the Court being

advi

the

ses, thi~ Settlement is hereby ent

as the

order and judgment of this Court.

~ay It is so ordered, this

of 0 (Y/Vf;eI1-, 20 OS, at Trenton,

New Jersey.

Judge

41

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• Case 3:05-cv-01122-GEB-TJB Document 4

• Filed 10/18/2005 Page 43 of 47

MONITORING PROTOCOL

The United

, the County of Mercer and

...-J

in his/her capacity as the Monitor as specified in the Settlement Agreement, captioned:

Uni ted States of America, Plaintiff, v. the County of Mercer, etc. Defendartts,

hereby agree that all monitoring called for in the. Settlement Agreement, shall be conducted pursuant to the following terms .and
conditions:

1. Appligation of settlement A~~eement

A. Pursuant the Settlement Agreement ("Agreement") between the united States and the County of Mercer, the Monitor shall monitor and report on the County's substantial compliance or noncompliance with all provisions of the Agreement at the Mercer County Geriatric Center (~MCGC").

B. All monitoring· shall be done in accoTdance with this Monitoring Protocol (~Protocol") and the Agreement.

C. To the extent that the Protocol and the Agreement are

lll.UCIIlBi

to one another, all. monitoring shall take place

in accordance with the Agreement.

II. Budget and Payment

A. The costs for the Monitor and his or her consultants; including all expenses, shall not exceed $200,000.00 per fiscal year ·(July 1 to June 30). The budget sball include all
Page 1 of 5

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travel costs and other expenses. If the Monitor needs additional resources to investigate a death caused by alleged abuse, neglect or improper care I the Monitor will provide written notice to the parties and the County agrees to pay all of the Monitor's reasonable requests for costs, but the reasonable cos I including all travel costs and other expenses, shall not exceed an additional $50,000.00 per year.
B. The County will arrange for payment of all Monitoring costs upon presentment of monthly, itemized invoices from the Monitor. Travel costs for the Monitor and his/her consultants shall be reimbursed consistent with State and Federal per diem rates and guideline~. The Monitor agrees to provide any and all additional documentation requested by the County in order to facilitate payment to the Monitor.

III. Monitoring Visits:
A. lilequla:l: Monitoring Visits; Monitoring shall occur in accordance with the Agreement, two times per year at approximately 6 month intervals and shall be arranged for. dates and at times mutually agreeable to the County and the Monitor. The first visit will occur within 30 days of execution of the settlement Agreement. The County shall not unreasonably fail to agree on the time for Monitor visits.

B. Additional Monito:l: Visit:

In the event of the death of a resident caused by alleged

abuse, neglect or improper care at MCGC, MCGC.will report the

death .to the MOnitor within 5 business days and provide an

investigation report with preliminary findings. MCGC's report

will also include what, if any, addi~ional information is

necessary for a final conclusion. Based on MCGC's report, the

Monitor may conduct· an additional review prior to the neltt

scheduled review. The scope of the review, including whether

document

ew, in-person or telephone interviews, and/or on-

sight visit are n.ecessary, shall be in the Monitor.' s

discretion.

1. If the monitor elects to conduct an additional review pursuant. to this Paragraph, the monitor will give reasonable notice of theadditio~al r~view.
Page 2 of 5

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'

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C. Componen~B of Monitoring Visi~s
1. Matters inquired into during any such monitoring visit, interview or review of records or other documents shall be limited to matters directly addressed in Part IV of the Agreement.
2. These monitoring visits may include the following, as the Monitor determines is necessary:
a. on-site inspection of MCGC;
b. interviews with staff, contractors and residents.
i. The Monitor will work with MCGC to arrange interviews with staff at mutually agreeable times, in an effort not to disrupt the operation of MCGC.
ii. The County may have a MCGC representati;ve present for any interview with staff or contractors unless the Monitor, in her discretion, believes that the presence of a such representative would be detrimental to. the Monitor or her consultant's interview'with staff or contractors.
iii. Any staff member who is a member of a collective bargaining unit, consistent with the contract between the collective bargaining unit and the County, may have a representative present at any interview.
IV. Monitoring Visits:
A. If the Monitor determines that the County is not in substantial compliance with a provision of the Agreement, the Monitor shall so state in its written report and provide the factual basis for the findings, including, as . appropriate: identification of residents involved; dates and times of incidents; and/or care, treatment, or services at issue and a summary specifying the documents and records the
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Monitor reviewed and the interviews the Monitor conducted that support the Monitor's determination.
B. If the Monitor determines that the County is'in substantial compliance with all prOVisions of the Agreement, the Monitor shall so state and provide the factual basis for the findings, including a summary specifying the documents and records the Monitor reviewed and the interviews the Monitor conducted that support the Monitor's determination.

VI. contact with Monitor by Either Party
A. The Monitor shall make him or herself and the consultants available for an ex parte meeting or conference call with aither party within a reasonabl,e time from a request for any such meeting or call.
VI. Modifioation

Any of the provisions of the ~rotocol that do not appear in the Agreement may be modified with the written consent of the ,Uni ted StateB, the County," and the Monitor.

Respectfully submitted,'

'Agreed to by the undersigned:

FOR THE UNITED STATES:

K,<m.
Me~cer County Counsel 640 South Broad Street P.O. Box 8068 Trenton, New Jersey 08650
(609) 98,9,-6511

R. ALEXANDER ACOSTA Assistant Attorney General Civil Rights Division
BRADLEY J. SCHLOZMAN Deputy Assistant Attorney General Civil Rights Division

Page 4 of 5

, '., "
•

• Case 3:05-cv-01122-GEB-TJB

Document 4

• Filed 10/18/2005 Page 47 of 47

~. AH G. CROWLEY Deputy County Co'" ...!Oclf 640 South Broad Street P.O. Box 8068 Trenton, New Jersey OB650
(609) 989-6511

SHANETTAY. CUTLAR Chief Special Litigation Section
JUDY C. PRESTON Deputy Chief Special Litigation section

CHRISTOPHER N. CHENG

Trial Attorney

U.S. Department of Justice

Civil Rights Division Special

Litigation Section

950 Pennsylvania Avenue, NW Washington, D.C. 20~30

(202) 514-8892'

(202)514-4883 (fax)

,

'

Page 5 of 5

 
 Case 3:05-cv-01122-GEB-TJB Document 14 Filed 01/09/09 Page 1 of 3 PageID: 254 Case 3:05-cv-01122-GEB-TJB Document 13 Filed 11/21/2008 Page 6 of 9

UNITED STATES DISTRICT COURT FO~ THE P:X:STRIC'l' OP NEW JERSEY

t)lUTED. STATES OF AMER~C,!I., Plaip.tiff,
v.
MERCER COUNTY 1 et aJ..
Defen4ants. (DOCUMENT ELECTRONICALLY FILED)

) ) ) )
) C;;tJOe No·. 3: 05-CV-01122
) ) .. ) ) ) ) )

P~OPO~~D ORDER OF CONDITIONAL DISMISSAL

WHEREFORE, the Parties filed and stipulated to a Settlement

Agreement (Agreement) in this case on February 18, 2005;

WHEREFORE, 'the Co).lrt signed and or_dered the ,!l.greement on

\
October 14, 2005;

·~.

;·.

WHEREFO:\l.E;

.··
the.Agreement was

E;~ritere.d by the

Clerk o!

the

Court on Octob'er :19, '200"5;

...,

::

':'

WHEREFORE, VI1.3 of the Agreement-provides that the

.Agreement expired on October 14, 2008, "tl:lree years after the

[Court' s] approval" of the Agreement; .

WHEREFORE tho:l Parties have agreed to continue wo'rking

together to address disputes arisin~ out of this Agreement;

BOT WHEREFORE the Parties agree that Defendants have made

significant prbgress in implementing the ·Agreement;

AND the Parties have jointly filed a Motion for conditional

Case 3:05-cv-01122-GEB-TJB Document 14 Filed 01/09/09 Page 2 of 3 PageID: 255 Case 3:05-cv-01122-GEB-TJB Document 13 Filed 11/21/2008 Page 7 of 9

Dismissal With One Year of Continued Oversight;

Pursuant to Federal Rule of Civil Procedure 4l(a) (2), it is

therefore ORDERED:

1. This case is hereby conditionally dismissed without

prejudice. 2. The Court's <;lismissal· of this case is conditioned on
Defendants attaining substantial compliance with the remain;i.n~

provisions of the Agreement.

3. This ·case· shall. remain on the court's inactive docket.·

4. The Court retains· ju~isdiction over this civil action

and

to

resolve

any

disputes

·'
arising

out

of

the

Agree~nt

until

one year after entry of this Order, This paragraph supersedes

, VII ..3 of the Ag;J:"eement . ·

5. If any dispute arises in this civil action or under the

Agreement, either Party may file a motion with the court to restore this case to the Court's active docket, and the Co~rt may

grant any appropriate relief.

6. The services of the court's Monitor are no longer

required .. The United States shall continue to have the right to

independently evaluate conditions at Mercer County Geriatric

Center. To that end, thepnited· States Department of Justice;

Civil Rights Division, Special Litigation Section (Division),

shall have the.right to conduct .one additional on-site inspection

of the Mercer County Geriatri'<:! CEOnter with the Division's OW!).

experts.

Case 3:05-cv-01122-GEB-TJB Document 14 Filed 01/09/09 Page 3 of 3 PageID: 256 Case 3:05-cv-01122-GEB-TJB Document 13 Filed 11121/2008 Page 8 of 9
7. Final dismissal of this case shall. continue to be governed by the ~rocess·outlined in·~ VII of the ·Agreement. Final dismissal of this Agreement shall occur one year after. the parties signed the Motion for Cond~tional Pismissal with ·one Year of Continued oversight unless a party has filed a motion to stay dismissal with the Court .
so. ORDE!mD, t)1is ~..-.tfdf-a, ; o£/-t-}-f-;!14IJJ?.'f
Jersey.
Judge

 
 Case 3:05-cv-01122-GEB-TJB Document 18 Filed 08/26/10 Page 1 of 2 PageID: 338 "' • Case 3:05-cv-01122-GEB-TJB Document 15-8 Filed 08/06/10 Page 1 of 2 PageiD: 328

ARTHUR R. SYPEK, JR. (AS1361)

MERCER COUNTY COUNSEL

McDade Administration Building

640 South Broad Street

PO Box 8068

Trenton, New Jersey 08650

(609)989-6511

AUG 2 6 20t

BY: Sarah G. Crowley, Deputy County Counsel AT ..

O

Attomey(s) for Defendant Mercer County

8l;J,~~M
C~ 7. WA!..SH LERK

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA,

: CIVIL ACTION NO. 3:05-cv-01122

Plaintiff

: Civil Action

v.

ORDER

MERCER COUNTY, et al.,

Defendants.

THIS MATTER, having been opened to the Court by the Mercer County Counsel's

Office, attorneys for Defendant, Mercer County, Sarah G. Crowley, Deputy County Counsel

appearing, on Notice of Motion for Dismissal of Plaintiffs Complaint against Defendants Mercer

County, and the Court having reviewed the moving and opposing papers and good cause having

been shown,

Jl.

I r IT IS on this ). ' day of WGtt s

'2010

ORDERED that Plaintiffs Complaint against Defendant Mercer County, is hereby

dismissed with prejudice, and;

IT IS FURTHER ORDERED that a copy of this Order shall be served upon all counsel

Case 3:05-cv-01122-GEB-TJB Document 18 Filed 08/26/10 Page 2 of 2 PageID: 339 • Case 3:05-cv-01122-GEB-TJB Document 15-8 Filed 08/06/10 Page 2 of 2 PageiD: 329
of record within seven (7) days from the date hereof.

 
 Case: 3:05-cv-1122 As of: 08/09/2013 10:44 PM EDT 1 of 3
U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:05−cv−01122−GEB−TJB

CLOSED

UNITED STATES OF AMERICA v. MERCER COUNTY, NEW JERSEY et al Assigned to: Judge Garrett E. Brown, Jr Referred to: Magistrate Judge Tonianne J. Bongiovanni Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/18/2005 Date Terminated: 11/29/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

UNITED STATES OF AMERICA

represented by CHRISTOPHER N. CHENG U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION − SPECIAL LITIGATION SECTION 950 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20530 (202) 514−8892 Email: christopher.cheng@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

CHRISTOPHER JAMES CHRISTIE UNITED STATES ATTORNEY FOR THE DISTRICT OF NEW JERSEY 970 BROAD STREET SUITE 700 NEWARK, NJ 07102 (973) 645−2890 Email: christopher.christie@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant MERCER COUNTY, NEW JERSEY
Defendant BRIAN M. HUGHES Mercer County Executive
Defendant APRIL AARONSON Director of Mercer County Department of Human Services

represented by SARAH G. CROWLEY OFFICE OF THE MERCER COUNTY COUNSEL MCDADE ADMINISTRATION BUILDING 640 SOUTH BROAD STREET PO BOX 8068 TRENTON, NJ 08650−0068 (609) 989−6511 Email: scrowley@mercercounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by SARAH G. CROWLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by SARAH G. CROWLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:05-cv-1122 As of: 08/09/2013 10:44 PM EDT 2 of 3

Defendant
ROBERT F. ECROYD Administrator of the Mercer County Geriatric Center

represented by SARAH G. CROWLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/18/2005
08/04/2005
08/04/2005 10/18/2005 11/22/2005 11/29/2005 11/29/2005 08/29/2006 08/30/2006 12/21/2006 12/21/2006 10/10/2007 05/16/2008 11/21/2008 11/24/2008

# Docket Text
1 COMPLAINT against MERCER COUNTY, NEW JERSEY, BRIAN M. HUGHES, APRIL AARONSON, ROBERT F. ECROYD ( Filing fee $0 ), filed by UNITED STATES OF AMERICA. (Attachments: (1) Exhibit Settlement)(tp ) (Entered: 03/01/2005)
2 STIPULATION of Settlement by UNITED STATES OF AMERICA. (Attachments: # 1 Attachment − Joint Motion# 2 Text of Proposed Order Proposed Settlement Order# 3 Proposed Monitor's c.v.)(CHENG, CHRISTOPHER) (Entered: 08/04/2005)
3 CERTIFICATE OF SERVICE by UNITED STATES OF AMERICA re 2 Stipulation (Amended cert. of service) (CHENG, CHRISTOPHER) (Entered: 08/04/2005)
4 STIPULATION &ORDER OF SETTLEMENT. Signed by Judge Garrett E. Brown, Jr. on 10/14/05. (ij). (Entered: 10/19/2005)
5 Letter from Christopher Cheng (US Dept. of Justice − Civil Rights Division). (Attachments: # 1 Text of Proposed Order to Appoint Marie Boltz as Monitor)(CHENG, CHRISTOPHER) (Entered: 11/22/2005)
***Civil Case Terminated pursuant to 4 STIPULATION &ORDER OF SETTLEMENT. Signed by Judge Garrett E. Brown, Jr. on 10/14/05. (ms) (Entered: 11/29/2005)
6 ORDER appointing Marie Boltz as the monitor in this case. Signed by Judge Garrett E. Brown, Jr. on 11/28/05. (ck ) (Entered: 11/29/2005)
7 STATUS REPORT (Monitor's Report) by UNITED STATES OF AMERICA. (Attachments: # 1)(CHENG, CHRISTOPHER) (Entered: 08/29/2006)
8 CERTIFICATE OF SERVICE by UNITED STATES OF AMERICA re 7 Status Report (Amended Certificate of Service) (CHENG, CHRISTOPHER) (Entered: 08/30/2006)
9 NOTICE by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Monitor's Second Report)(CHENG, CHRISTOPHER) (Entered: 12/21/2006)
10 CERTIFICATE OF SERVICE by UNITED STATES OF AMERICA re 9 Notice (Other) (Amended certificate) (CHENG, CHRISTOPHER) (Entered: 12/21/2006)
11 NOTICE by UNITED STATES OF AMERICA Submission of Monitor's Third Status Report (Attachments: # 1 Exhibit Monitor's Third Status Report)(CHENG, CHRISTOPHER) (Entered: 10/10/2007)
12 STATUS REPORT by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Monitor's March 21 2008 Report)(CHENG, CHRISTOPHER) (Entered: 05/16/2008)
13 MOTION to Dismiss Conditionally with One Year of Continued Oversight by UNITED STATES OF AMERICA. (CHENG, CHRISTOPHER) (Entered: 11/21/2008)
13 MOTION to Dismiss Conditionally with One Year of Continued Oversight set for 12/15/08 will be decided on the papers before Chief Judge Garrett E. Brown, Jr. No appearance required unless notified by the Court. (ij, ) (Entered: 11/24/2008)

Case: 3:05-cv-1122 As of: 08/09/2013 10:44 PM EDT 3 of 3

01/09/2009 08/06/2010
08/09/2010
08/09/2010 08/09/2010 08/25/2010 08/26/2010

14 ORDER granting 13 Motion to Dismiss. Signed by Chief Judge Garrett E. Brown, Jr. on 1/7/09. (ij, ) (Entered: 01/09/2009)
15 MOTION to Dismiss by APRIL AARONSON, ROBERT F. ECROYD, BRIAN M. HUGHES, MERCER COUNTY, NEW JERSEY. Responses due by 8/24/2010 (Attachments: # 1 Brief, # 2 Certification of Sarah G. Crowley, # 3 Exhibit A pages 1−10, # 4 Exhibit A pages 11−23, # 5 Exhibit A pages 24−41, # 6 Exhibit B, # 7 Exhibit C, # 8 Text of Proposed Order, # 9 Certificate of Service)(CROWLEY, SARAH) (Entered: 08/06/2010)
CLERK'S QUALITY CONTROL MESSAGE − The Brief attached to the Motion to Dismiss 15 appears to be incomplete. Counsel is advised to review the attachment and if the document is incomplete to please RESUBMIT THE INCOMPLETE DOCUMENT ONLY. This message is for informational purposes only. (gxh) (Entered: 08/09/2010)
Set Deadlines as to 15 MOTION to Dismiss. Motion set for 9/7/2010 before Chief Judge Garrett E. Brown, Jr.. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 08/09/2010)
16 Letter from Sarah G. Crowley to Hon. Garrett E. Brown, U.S.D.J. re 15 MOTION to Dismiss. (CROWLEY, SARAH) (Entered: 08/09/2010)
17 RESPONSE to Motion re 15 MOTION to Dismiss filed by UNITED STATES OF AMERICA. (CHENG, CHRISTOPHER) (Entered: 08/25/2010)
18 ORDER granting 15 Motion to Dismiss; that Pltf's Complaint against Deft Mercer County is dismissed with prejudice. Signed by Chief Judge Garrett E. Brown, Jr. on 8/26/2010. (gxh) (Entered: 08/26/2010)

 
 Findings Letter for Mercer County Geriatric Center

Page 1 of 9

Robert D. Prunetti County Executive 640 South Broad Street P.O. Box 8068 Trenton, NJ 08650-0068
Re: CRIPA Investigation of Mercer County Geriatric Center
Dear Mr. Prunetti:
On December 10, 2001, we notified you that we were investigating the Mercer County Geriatric Center (MCGC) pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. Consistent with statutory requirements, we are now writing to advise you of our findings, supporting facts, and recommended remedial measures, pursuant to 42 U.S.C. § 1997b(a)(1).
Unfortunately, Mercer County officials declined to cooperate with this investigation. They refused to turn over any documents, allow access to the facility, or permit any on-site witness interviews. Mercer County's conduct is unusual in this regard. Most government officials cooperate with CRIPA investigations because they recognize that protecting the rights of institutionalized citizens warrants a thorough and impartial review.
We met promptly with County officials to explain the reasons for our investigation and its procedures. We then also communicated repeatedly with County officials in an effort to convince them that cooperation was in the public interest and could only improve the fact-finding process. If the County had agreed to our proposed investigation procedures, County officials would have had an early opportunity to work directly with our experts and staff. They also would have had an opportunity to address any identified problems on a voluntary basis at an early stage of this investigation. County officials declined, however, to provide even the most basic policies and procedures, access to staff, or even exculpatory documents. Most recently, County officials, through their attorney, Harry G. Parkin, interfered with our access to the residents themselves. These residents are all independent witnesses, and your counsel offered no legal basis for such an unusual act.
As we repeatedly advised you and your counsel, however, our investigations proceed regardless of whether officials choose to cooperate. Indeed, when CRIPA was enacted, lawmakers considered the possibility that local officials might not assist a federal investigation. Such non-cooperation is a factor that may be considered adversely when drawing conclusions about a facility. We now draw such an adverse conclusion. The County's non-cooperation is, however, only one factor that we have considered in preparing our statutory findings and recommendations. We have also considered federal and state survey information, news articles, medical records, family interviews, private attorney and advocate interviews, and publicly available data.
According to our information, MCGC houses approximately 200 residents and has a 240-bed capacity. MCGC participates in both Medicare and Medicaid and provides nursing home services for an elderly population with significant medical problems. Approximately 57% of the residents are incontinent, 26% have restricted joint motion, 38% need help in eating, and 35% have behavioral symptoms. (1)
Under the United States Constitution and federal law, nursing home residents have a right to reasonably safe living conditions, adequate health care, restorative and rehabilitative care services, freedom from unreasonable restraints, and a treatment setting that is the most integrated and appropriate based on individual resident needs. See United States Constitution Amendments I, XIV; Youngberg v. Romeo,

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457 U.S. 307 (1982); Olmstead v. L.C., 527 U.S. 582 (1999). Federal statutes governing the operation of nursing homes and their implementing regulations create similar rights. See, e.g., Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (Section 504); Grants to States for Medical Assistance Programs (Medicaid) 42 U.S.C. § 1396r; Health Insurance for Aged and Disabled (Medicare) 42 U.S.C. § 1395i-3; 42 C.F.R. § 483 Subpart B.
Based upon our investigation, we find that Mercer County has violated the federal rights of MCGC residents.
I. MCGC residents are exposed to unsafe living conditions.
Mercer County does not maintain sanitary and safe living conditions at MCGC.
First, the facility does not maintain sanitary living conditions. Family members report finding feces on the fingernails of their relatives, unchanged diapers, a stench in living areas, and dirty sheets. On more than one occasion, state surveyors cited MCGC for failing to serve food at temperatures that are safe from food-borne pathogens. Surveyors have also noted concerns with staff hand-washing practices, disinfection techniques, tuberculosis prevention, and infection control investigations. For instance, surveyors observed improper cleaning of an incontinent resident. The surveyors noted that the resident's sacrum and buttocks were covered with feces. Staff changed a wound dressing and rinsed the area with some saline solution. They did not, however, use soap and water to disinfect. This resident had only recently been hospitalized for septic shock and dehydration. These types of problems have appeared in a number of surveys and been identified by a number of sources.
Second, the facility fails to ensure residents' personal safety. Staff have left residents, including those with mobility and mental impairments, completely unattended for long periods of time. Staff inattention in general results in serious accidents, falls and unexplained injuries. For example, one visiting family member repeatedly found her relative lying on the floor of the facility. On at least one occasion, the resident wandered out of the facility itself. From the time another resident entered the facility to the time of her discharge, she suffered from numerous falls, bone fractures, and unexplained injuries. One time, the resident was dropped on her head while being moved. How this could happen if staff had been attentive was never explained satisfactorily to the resident's relatives. In a third example, a family member used to visit at odd hours, only to find her unattended relative lying in urine, with parts of her naked body exposed. This family member also noted unexplained skin bruises.
These types of personal safety problems extend beyond mere resident neglect. MCGC also has problems with staff verbal abuse and the unexplained disappearance of residents' personal belongings. Residents' glasses, dentures, bedding, and other personal possessions reportedly disappear, and then the facility staff fail to investigate adequately or remedy the situation. Visitors have observed that staff inappropriately berate residents who rely on those staff for their daily care.
II. MCGC residents do not receive adequate medical and mental health care.
MCGC medical staff fail to assess and treat residents properly for potentially serious medical and mental health problems. When basic medical care is not provided, fragile geriatric residents often face increased risk of harm from their medical conditions and inappropriate medication practices.
For instance, during a recent inspection, surveyors reported that MCGC staff did not obtain information required to develop individualized, comprehensive treatment plans to address resident weight loss and

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dehydration. Another survey found problems with treatment and prevention of bedsores. A number of sources report residents with deep, bleeding bedsores, infections, and other potentially life-threatening conditions. In a nursing home, it is essential that staff take vigorous action to prevent and treat such conditions.
MCGC's weakness in assessing and treating serious medical conditions also includes the treatment of mental health problems. Many nursing home residents have dementia, schizophrenia, and other psychiatric diagnoses. Where warranted, appropriate mental health care and review should be closely integrated into the resident's general care plan. We noted deficiencies at MCGC in the documentation and drug practices associated with treating such mental illnesses. For instance, a resident was kept on the same drug regimen for an extended period of time without adequate justification in the resident record. A state survey suggests that the facility staff fail to appreciate how resident mental health issues may act as a contributing factor to other medical problems. In one case, a resident with possible depression lost approximately 22% percent of her body weight. MCGC social services recommended a psychiatric evaluation, but the facility staff failed to respond in a timely manner. In a second case, a resident also exhibited symptoms of weight loss and depression. Yet, in both cases, MCGC staff apparently failed to follow-up on the symptoms of depression by conducting prompt, comprehensive causal assessments and appropriate professional intervention.
Inadequate medication practices contribute to problems with medical and mental health care. MCGC staff have failed to provide adequate pain medication to some residents; provided medications without adequate monitoring of their effects; and prescribed or terminated medications to residents for reasons that are not supported by resident medical data. A number of examples illustrate this problem. For instance, staff prescribed Zyprexa to one resident for restlessness, delusions, and self-injury. Yet, when asked by surveyors, staff could not explain what delusions the resident actually experienced, nor could they identify any examples of resident self-injury. If the medication was for restlessness only, that would be an inappropriate reason in this case for prescribing an anti-psychotic medication. In another example, a resident had to take medications through a gastrostomy tube. Inspectors noticed however that the medication nurse administered medications and food to this resident without properly checking that the tube was actually in place. This failure was cited as a departure from basic standards of practice. In a third example, surveyors discovered medical staff were giving a resident two different medications on a daily basis, despite a physician's order to the contrary.
III. MCGC residents are denied rehabilitation, restorative care, and freedom from unreasonable restraints.
When a facility lacks comprehensive assessment, rehabilitation, and restorative treatment programs, residents are more likely to lose their living skills. When treatment options are limited and as a resident's condition deteriorates, nursing home staff sometimes rely on inappropriate restraints as a substitute for treatment. MCGC denies residents rehabilitation and restorative care, and instead relies on inappropriate restraints.
While MCGC residents may have access to some recreational programs, the facility does not always develop the individualized restorative care and rehabilitation programs needed to maintain or improve resident functioning. For example, a resident entered the facility able to walk, eat, and use the bathroom with little or no staff assistance. Within a few days of his admission, however, MCGC staff obtained a physician's order to keep the resident in bed with side rails and a bed alarm. No assessment was made to justify the use of these measures. Even as the resident's physical condition declined, the treatment team failed to develop a plan to try to help the resident regain his former functional level. In the month after his arrival, the resident lost seventeen pounds and developed pressure sores. Shortly afterwards, the resident had to be hospitalized.

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Second, staff sometimes rely on inappropriate restraints instead of providing appropriate, individualized, interdisciplinary care. Data reported by MCGC itself suggests restraint usage rates at least two times the State average. Staff routinely restrain residents while the staff engage in various tasks. For instance, one resident was frequently tied to his chair. He apparently beat on the arms of the chair so often that his arms were constantly bloodied. In addition to physical restraints, some reports indicate the inappropriate use of medication as restraints. Both physical and chemical restraints are inappropriate when they are used for the convenience of staff.
IV. MCGC mealtime assistance, nutrition, and hydration practices are not adequate.
MCGC's own data suggests that some 38% of MCGC residents are very dependent on staff for mealtime assistance. A breakdown in the facility's system for feeding residents therefore exposes large numbers of residents to serious risk of harm. While feeding issues are often complicated in a geriatric population, MCGC has failed to develop consistent and appropriate nutrition and hydration plans.
Thus, we have reports of residents losing ten percent or more of their body weight after just a month's stay in MCGC. Even as they lost such large amounts of weight, staff failed to develop appropriate intervention and feeding assistance plans. We have reports of residents who could not get a drink of water because staff failed to assist with their hydration.
MCGC administrators and staff have long been aware of deficiencies with the facility's nutrition and hydration practices. State surveyors have repeatedly advised Mercer County officials of a number of incidents. For example, there have been at least two hospitalizations identified in recent state survey reports regarding residents who suffered from dehydration and other problems. Our own review of resident deaths found signs of improper nutrition and malnourishment in some cases. Separately, one of our sources reported the case of a resident with an improperly positioned feeding tube. This resident slowly starved without adequate MCGC staff intervention.
In one particularly serious incident, staff fed a resident so quickly, she aspirated and died. Emergency room hospital physicians pumped a significant volume of food from the resident's lungs. If staff are properly trained in feeding practices and sensitive to residents' mealtime assistance needs, it is difficult to explain how such an incident could occur. This incident took place in January 2002, just weeks after we met with County officials to request their cooperation in our CRIPA investigation. County officials have continued to ignore all of our requests for information pertaining to such resident deaths.
V. MCGC residents are not treated in the most integrated setting appropriate to individual resident needs.
Under federal law, MCGC residents have the right to be treated in the most integrated setting appropriate to their individual needs. At MCGC, however, staff make little effort to identify options for providing more integrated treatment settings. When combined with a failure to develop restorative treatment programs, MCGC's failure to address the integration issue may result in the unnecessary institutionalization of some residents. Alternatively, it may result in excessively segregated treatment within a nursing home setting.
Our sources report little discussion by treatment teams regarding resident discharge issues, and the treatment meetings themselves do not include family members on a regular basis. Treatment plans also reflect the lack of an interdisciplinary approach.
When discharge and hospitalization decisions take place without adequate planning, inappropriate and

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potentially dangerous situations may arise. For instance, in one case, lack of thorough discharge planning may have resulted in the premature discharge of a resident whose medical condition was still very fragile. After this resident was sent home, a visiting nurse complained that the resident needed emergency hospitalization. In another example, MCGC delayed providing a highly-functional resident who was deaf with interpreter services for nearly a year. If that resident was a candidate for services at home or in another community setting, this failure to accommodate a disability effectively resulted in the lengthy and improper segregation of the resident from society.
VI. Staffing, administration, and policy deficiencies contribute to inadequate care.
Our concerns about deficiencies with respect to resident care are heightened by a number of other systemic issues.
First, MCGC has staffing issues that contribute to deficiencies in care. Nurse staffing is a particular weakness at this facility. Our data indicates that MCGC registered nurse staffing levels fall well below the state average. Complaints about inadequate nurse response times, gaps in physician and psychiatrist oversight, and the County's unwillingness to share staffing data all evidence significant staffing problems.
Second, the County's policy towards residents' civil rights also causes us concern. While we recognize that jurisdictions may have legitimate reasons to monitor access to their facilities, Mercer County has gone one step further. They recently have denied us access to the residents themselves. As we have explained to the County in separate correspondence, interfering with communications between residents and federal officials is a violation of both federal law and state policy. See United States Constitution Amendments I, XIV; In re Quarles 158 U.S. 532, 535-36 (1895) (discussing right of citizens to communicate with federal law enforcement officials regarding violations of federal law); Lutz v. City of York, 899 F.2d 255, 263-266 (3rd Cir. 1990) (noting strict limits on State's ability to interfere with transactions between United States government and its citizens); see, e.g., Johnson v. Avery, 393 U.S. 483, 485 (1969) (institutionalized persons retain freedom to petition government for redress of grievances); see, also, New Jersey Rules of Professional Conduct Rules 3.4, 4.4. Residents do not lose their civil rights simply because they rely on the County for care. The County's approach towards the residents and their families is problematic. Such an approach can reflect or result in an institutional environment that places institutional interests over resident rights.
MINIMUM REMEDIAL MEASURES
In order to remedy the identified deficiencies and to protect the constitutional and federal rights of MCGC residents, MCGC should implement, at minimum, the following measures:
I. Resident safety and living conditions.
A. Regularly provide pre-service and in-service training for staff on resident care procedures. Such training must address general resident supervision, wound treatment, resident hygiene, and infection control. Facility management and medical administrators must begin direct and vigorous monitoring of the direct care staff's actual resident care practices and policy compliance. More particularly, training and procedures must address implementation of individualized resident care plans, cleaning and prevention of bedsores, communicable disease prevention, catheter use, hand-washing, facility maintenance, resident grooming, and prevention of injuries.

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B. Ensure that individual staff are specifically trained on the needs and treatment of residents in their care. Staff must be evaluated in part on their compliance with care plans, and competency-based training must be incorporated into facility policies.
C. Ensure that staff routinely assist residents with their personal hygiene needs as necessary under their treatment and care plans. Where professionally indicated, such services must include assistance with toileting, dressing, and bathing.
D. Develop and implement meaningful incident review, peer review, and quality improvement procedures to allow investigation and follow-up of significant nursing home incidents. Issues to be targeted specifically, but not exclusively, include resident deaths, abuse, neglect, falls, unexplained injuries, property loss, medication errors, infectious disease transmission, and training failures. Injury, abuse, death, and infection trends must be fully investigated, and emerging issues must be identified and addressed. While individual staff accountability is a component of any staff oversight and quality improvement process, any such process must also identify systemic deficiencies and facility-wide remedies to address such deficiencies.
II. Medical and mental health care.
A. Provide nursing home residents with comprehensive, clinically defensible, and individualized treatment for their medical and mental health conditions.
1. Base medication prescriptions, behavioral interventions, and other treatment on thorough resident assessments, valid and reliable data, clearly established goals, and professionally justified diagnoses.
2. Develop comprehensive treatment plans that are individualized for each resident. Such plans must address residents' medical, mental health, nursing, disability, communication, discharge planning, and daily activity issues. Plans must be developed by an interdisciplinary team that has representatives from all appropriate disciplines, including physicians, psychologists, psychiatrists, nurses, therapists, direct care aides, nurses, and social workers. This treatment planning process must be an ongoing one for each resident. Staff must monitor the effectiveness of treatment and update treatment plans regularly.
3. Document treatment plans, behavioral programs, progress notes, medical orders, and other information in resident medical records as required by professional standards. Reliable, valid data must underlie treatment and behavioral planning decisions, and staff must be trained on proper documentation and data collection.
B. Conduct mortality reviews on all deaths that have occurred at MCGC in the last three years. Mortality reviews must be conducted by qualified, independent medical professionals. Mortality reviews must also be conducted regularly as part of any staff oversight and quality improvement program. MCGC must take appropriate corrective action based upon those reviews.
C. Conduct regular, comprehensive audits of medication use at MCGC. Qualified, independent medical professionals must be retained to target specifically any inappropriate

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poly-pharmacy, clinically indefensible prescriptions, or problems with medication distribution and monitoring.
III. Rehabilitation, restorative care, and freedom from excessive restraints.
A. Develop rehabilitation and restorative care programs to help residents improve or maintain levels of functioning, ensure resident safety, and protect against excessive restraints. These programs must be part of an integrated, individualized treatment process, and must reflect interdisciplinary planning.
1. Develop rehabilitation and restorative care planning, policies, and protocols through structured procedures that allow facility-wide adoption and participation.
2. Tailor treatment plans to a resident's individual treatment goals, desires, interests, and lifestyle preferences.
3. As with resident treatment in general, monitor rehabilitation and restorative care plans for effectiveness and update regularly.
B. Implement policies to prevent inappropriate restraints. These policies must include safeguards against clinically indefensible restraint orders, prohibition and deterrence of unauthorized restraint use, development of behavioral support programs, and improved monitoring of individual and system-wide restraint use.
1. Consistent with professional standards, make every reasonable effort to reduce the use of restraints at MCGC. Restraints must never be used for the convenience of staff.
2. At a minimum, limit restraints only to emergency situations as permitted by professional standards. If restraints are required, staff must promptly obtain necessary physician authorization. Physicians and nursing managers must also personally and frequently review such orders during the period a resident is restrained.
3. Document properly all restraint usage at MCGC. Such documentation must include records on how often a resident was checked and the reasons for placing the resident in restraints. The documentation must also include clear criteria establishing when a resident should be released from restraints. Aggregate and trend data must be collected and incorporated into facility staff oversight and quality improvement processes.
4. Require treatment teams to review and address causal factors, including behavioral issues, that result in the restraint of a resident.
5. Develop policies and procedures to prevent the inappropriate use of medications as restraints. Oversight of inappropriate staff restraint usage must include review of physicians who prescribe psychotropic and sedative medications without professional justification.

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6. Prohibit use of any restraint methods that do not meet professional standards and have not been approved in advance by qualified medical management staff.
IV. Mealtime assistance, resident nutrition, and hydration practices.
A. Regularly assess residents for dehydration, weight loss, and swallowing difficulties. Appropriate mealtime assistance, nutrition, and hydration plans must be developed and implemented. Necessary therapeutic positioning and functional seating programs must be developed for residents to facilitate feeding.
B. Carefully train and supervise staff in the implementation of nutrition and hydration plans. Training must include competency-based training on mealtime procedures, supplemented with quality monitoring of mealtimes. Only staff who have demonstrated competency with an individual's mealtime plan may provide assistance to that individual.
C. Ensure that the kitchen prepares and serves meals in a safe manner.
V. Community integration and ADA.
A. Assess residents to determine whether placement in the facility constitutes placement in the most integrated setting appropriate to individual needs. These assessments must be conducted in a manner consistent with a facility-wide policy and professional standards. Assessments must occur at admission and periodically during any resident's stay. If a more integrated setting would appropriately meet an individual's needs, MCGC must develop promptly a transition plan that includes clear target dates, measurable goals and outcomes, training and transition strategies, and responsible staff. Discharge and transition planning must be closely integrated into individual treatment plans. MCGC must identify barriers to discharge, make reasonable efforts to address such barriers, and follow-up on discharged residents in order to improve the quality of the discharge process.
B. Make a greater effort to include re
sidents and family members in the treatment and discharge planning process.
C. Provide reasonable accommodations for disabilities to ensure meaningful participation in treatment and activities by residents with disabilities.
VI. Staffing, administration, and policy.
A. Retain sufficient numbers of qualified registered nurses, aides, licensed practical nurses, therapists, nutritionists, social workers, psychologists, psychiatrists, and physicians to provide adequate care.
B. Develop and implement accurate and reliable systems for identifying problems with individual resident care, problems with facility-wide practices, and root causes for serious incidents. Incidents must be reported accurately to all appropriate federal, state, and local officials.
C. Maintain accurate, current, complete, and organized records on resident care. The quality assurance procedures must address the quality and accuracy of records.

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D. Fully protect residents' legal rights, including their First Amendment right to communications with government officials. Mercer County must allow residents to meet with governmental and legal representatives.
We invite the County to discuss with us these remedial recommendations, with the goal of remedying the identified constitutional and statutory violations without resort to litigation. In the event we are unable to reach a resolution regarding our concerns, we are obligated to advise you that the Attorney General may initiate a lawsuit pursuant to CRIPA, to correct deficiencies or otherwise protect the rights of MCGC residents, 49 days after the receipt of this letter.
42 U.S.C. § 1997b (a)(1). Accordingly, we will soon contact County officials to discuss in more detail the measures that the County must take to address the deficiencies identified in this letter. (2)
Sincerely,
Ralph F. Boyd, Jr. Assistant Attorney General
cc: Harry G. Parkin, Esq. Chief of Staff Mercer County Executive's Office
Sylvia Mulraney Acting Director of Human Services Mercer County Department of Human Services
Donald E. Lynch Mercer County Geriatric Center Hospital Administrator
Christopher J. Christie United States Attorney District of New Jersey

1. While we presume these figures are correct, they are based principally on self-reported data. Because MCGC has demonstrated an unwillingness to assist with fact-finding and may not have in place the systems necessary to identify accurately residents with serious needs, we are concerned that problems are under-reported.
2. We understand that Mr. Parkin, your Chief of Staff, is serving as counsel due to the fact that your County Attorney, Alfred Vuocolo, has a conflict of interest in this matter.

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