8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 1 of 9 - Page ID # 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

.,.,FILED U. DiSTRICT DlS ,, T OF r:t~
08 JLIN 30 AH 9: 28
OFF - OF ThE CLERK

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

V.

)

)

THE STATE OF NEBRASKA;

)

DAVE HEINEMAN, Governor ofthe State of )

Nebraska, in his official capacity only;

)

CHRISTINE PETERSON, Chief

)

Executive Officer, Nebraska Department

)

of Health and Human Services, in her official

)

capacity only; JOHN WYVILL, Director,

)

Division of Developmental Disabilities,

)

Nebraska Department of Health and Human

)

Services, in his official capacity only;

)

RON STEGEMANN, Chief Executive Officer, )

Beatrice State Developmental Center, in his

)

official capacity only,

)

)

Defendants.

)

CIVIL ACTION NO. ~: Q~ c_V~11
COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA ("Plaintiff'), 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 individuals housed at the Beatrice State Developmental Center ("BSDC") of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.

8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 2 of 9 - Page ID # 2
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein. 5. Venue in this district is proper pursuant to 28 U.S.C. § 1391.
DEFENDANTS 6. Defendant State of Nebraska ("State") owns and operates BSDC, a facility housing individuals with mental retardation or other developmental disabilities, and as such, has responsibility for the protections, services, and supports provided to BSDC residents. 7. Defendant Dave Heineman is the Governor of the State of Nebraska, and, in this capacity, heads the Executive Branch of the State's government and, among other duties, reviews and approves budget requests submitted by Executive Branch agencies regarding BSDC. He selects and appoints the Chief Executive Officer of the State ofNebraska's Department of Health and Human Services, which is responsible for the operation of BSDC. Governor Heineman is sued in his official capacity only. 8. Defendant Christine Peterson is the Chief Executive Officer of the State ofNebraska's Department of Health and Human Services, and, in this capacity, through its Division of Developmental Disabilities, exercises administrative control of, and responsibility for, BSDC. Ms. Peterson is an officer of the Executive Branch of the State of Nebraska, and is sued in her official capacity only.
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8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 3 of 9 - Page ID # 3
9. Defendant John Wyvill is the Director of the Division of Developmental Disabilities, a part of the State of Nebraska's Department of Health and Human Services, and, in this capacity, exercises administrative control of, and responsibility for, BSDC. Mr. Wyvill is an officer of the Executive Branch of the State of Nebraska, and is sued in his official capacity only.
10. Defendant Ron Stegemann is the Chief Executive Officer ofBSDC, and is responsible for the administration and day-to-day operations at BSDC. Mr. Stegemann is an officer of the Executive Branch of the State ofNebraska, and is sued in his official capacity only.
11. Defendants are legally responsible, in whole or in part, for the operation of and conditions at BSDC, and for the health and safety of the BSDC residents.
12. Defendants are governmental authorities or agents thereof with responsibility for the administration ofBSDC within the meaning of 42 U.S.C. § 1997a.
13. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 14. BSDC is an institution within the meaning of 42 U.S.C. § 1997(1). 15. Individuals are confined to, or reside at, BSDC because they have been determined by Defendants to have mental retardation or other developmental disabilities requiring protections, supports, and services. 16. Defendants are obligated to operate BSDC in a manner that does not infringe upon the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, ofBSDC residents.
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8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 4 of 9 - Page ID # 4
17. The protections, supports, and services at BSDC substantially depart from generally accepted professional standards of care, thereby exposing the individuals residing there to significant risk of harm, and in some cases, to actual harm.
18. The protections, supports, and services substantially depart from generally accepted professional standards of care in the following specific respects, among others:
a. the provision of reasonably safe conditions, including protection from abuse, neglect, and other harm, so as to ensure the reasonable safety and personal security of the BSDC residents;
b. the provision of that level of training, including behavioral, habilitation, and skills training and other related programs and activities, necessary to protect the BSDC residents' liberty interests, including their right to training sufficient to ensure their safety and freedom from undue or unreasonable restraint;
c. the provision of adequate psychiatric services to BSDC residents with mental illness;
d. the provision of adequate health care to BSDC residents, including adequate general and specialty medical and nursing services;
e. the provision of adequate nutritional and physical management to BSDC residents; and
f. the provision of adequate therapeutic services, including physical therapy, occupational therapy, speech therapy, and other forms of therapy.

8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 5 of 9 - Page ID # 5
19. Defendants are obligated to provide services, programs, and activities to BSDC residents consistent with the Americans with Disabilities Act of 1990 ("ADA"), and the regulations promulgated pursuant thereto. 42 U.S.C. § 12101 et seq., 28 C.F.R. Part 35.
20. Persons residing at BSDC are "qualified individual[s] with a disability" under the ADA, 42 U.S.C. §§ 12101, 12131.
21. The State of Nebraska and the State of Nebraska Department of Health and Human Services are "public entities" under Title II of the ADA, 42 U.S.C. § 12131.
22. Defendants have failed to meet the requirements of the ADA by excluding BSDC residents, by reason of their disability, from participation in, or by denying them the benefits of, the services, programs, or activities in the most integrated setting appropriate to their needs.
23. Defendants have failed and are continuing to fail to ensure that BSDC residents are adequately evaluated for placement in the most integrated setting; that those individual residents whom professionals determine should be placed in community programs are placed in such programs, when appropriate; and that the BSDC residents are served in the most integrated setting appropriate to each resident's individual needs.
VIOLATIONS t\LLEGED 24. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 23, as if fully set forth herein. 25. The acts and omissions alleged in Paragraphs 17 and 18 constitute a pattern or practice and infringe upon the BSDC residents' legal rights and substantive liberty interests and constitute resistance to their full enjoyment of their rights, privileges, or immunities secured or
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8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 6 of 9 - Page ID # 6
protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, and deprive the BSDC residents of such rights, privileges, or immunities.
26. The acts and omissions alleged in Paragraphs 22 and 23 violate the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the regulations promulgated thereto, 28 C.P.R. Part 35, by excluding the BSDC residents, by reason of their disability, from participation in, or by denying them the benefits of, the services, programs, or activities, or by subjecting them to discrimination, and by failing to administer services, programs, or activities in the most integrated setting appropriate to their needs.
27. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in Paragraphs 17, 18, 22, and 23, that deprive BSDC residents of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.
PRAYER FOR RELIEF 28. The Attorney General is authorized under 42 U.S.C. § 1997 to seek equitable relief. WHEREFORE, the United States of America respectfully requests that this Court:
a. Permanently enjoin Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts and omissions set forth above in Paragraphs 17, 18, 22, and 23, and require Defendants to take such actions as will bring Defendants into compliance with federal law and ensure that adequate protections, supports, and services are afforded to BSDC residents; and
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8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 7 of 9 - Page ID # 7 b. Grant such other and further equitable relief as the Court may deem just and proper. Respectfully submitted,
Attorney General of the United States I
I
I
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8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 8 of 9 - Page ID # 8

OE W. STECHER, #17802 United States Attorney District ofNebraska 1620 Dodge Street, Suite 1400 Omaha, NE 68102-1506 Tel: (402) 661-3700 Fax: (402) 661-3083 joe.stecher@usdoj .gov

HANETTA Y. CUTLAR [Cal. Bar #169849] Chief Special Litigation Section

J

0. TAYLOE, JR. [D.C. Bar#425691]

ARD J. FARANO [D.C. Bar #424225]

A MAZOR [D.C. Bar #479952]

A omeys

United States Department of Justice

Civil Rights Division

Special Litigation Section

950 Pennsylvania Avenue, NW

PHB - Room 5020

Washington, DC 20530

Tel: (202) 307-3116

Fax: (202) 514-0210

richard.farano@usdoj .gov

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8:08-cv-00271-RGK-DLP Doc # 1 Filed: 06/30/08 Page 9 of 9 - Page ID # 9
QMfict trf t~t Attorntl! ~tntral
Bas~ingtnn, 11. <!!. 20.530

CERTIFICATE OF THE ATTORNEY GENERAL
I, Michael B. Muk:asey, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. Nebraska. et al., I have complied with all subsections of 42 U.S.C. § 1997b(a)(l). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a)(2). I further certify, pursuant to 42 U.S.C. § 1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.
In addition, I certify that I have the "reasonable cause to believe," set forth in 42 U.S.C. § 1997a, to initiate this action, and that all statutory prerequisites to the initiation of this suit have been met.
Pursuant to 42 U.S.C.§ 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.
Signed this 26th dayof __J_..;;;;u:.=.;;n;.;::;;e_ _~

42 u.s.c. § 1997

Attorney General of the Uni ed States

United States of America v. State of Nebraska et al, Docket No. 8:08-cv-00271 (D. Neb. Jun 30, 2008), Court Docket
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© 2014 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 10

 
 8:08-cv-00271-RGK-DLP Doc # 9 Filed: 07/02/08 Page 1 of 2 - Page ID # 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF NEBRASKA, DAVE

)

HEINEMAN, Governor of the State of )

Nebraska, in his official capacity only, )

CHRISTINE PETERSON, Chief

)

Executive Officer, Nebraska Department )

of Health and Human Services, in her )

official capacity only, JOHN WYVILL, )

Director, Division of Developmental )

Disabilities, Nebraska Department of )

Health and Human Services, in his

)

official capacity only, and RON

)

STEGEMANN, Chief Executive

)

Officer, Beatrice State Developmental )

Center, in his official capacity only,

)

)

Defendants.

)

8:08CV271
MEMORANDUM AND ORDER

After consultation by telephone with Richard Farano, counsel for the United States, and Jodi Fenner, counsel for the defendants, and with their agreement,

IT IS ORDERED that:

1. No evidentiary hearing or other hearing is required or is necessary prior to the approval of the settlement agreement by the undersigned.

2. In accordance with Federal Rules of Civil Procedure 58 and 79, the settlement agreement, with the approval of the undersigned at page 38, shall constitute a final judgment the entry of which shall be deemed for all purposes to have occurred when the same is recorded on the Court’s CM/ECF system.

8:08-cv-00271-RGK-DLP Doc # 9 Filed: 07/02/08 Page 2 of 2 - Page ID # 27

Notwithstanding this provision, the undersigned retains continuing jurisdiction over this case and the parties to construe and enforce the settlement agreement.

3. For statistical purposes only, the Clerk shall close this case upon the approval of the settlement agreement by the undersigned which approval shall be manifested by his signature at page 38.

4. The Independent Expert and any other payee entitled to funds held by the Clerk must, as a prerequisite to payment, provide the Clerk with (a) a tax identification number or social security number; (b) a mailing address; (c) a telephone number; and (d) any other information reasonably requested.

5. The Clerk is ordered to place the funds deposited pursuant to the settlement agreement in an interest bearing account at a bank of the Clerk’s choosing. It is understood that despite the provisions of the settlement agreement, the Clerk does not maintain a “Court Registry Investment System.”

6. The Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed. At any time, the Clerk is also authorized to deduct from any monies deposited with the Clerk any fees and charges of the bank. The Clerk is directed to make these payments first and before all other payments.

7. The Clerk’s office shall maintain a spreadsheet with current accounting information which shall be available to the undersigned and counsel of record upon request.

July 2, 2008.

BY THE COURT:
s/Richard G. Kopf United States District Judge

2

United States of America v. State of Nebraska et al, Docket No. 8:08-cv-00271 (D. Neb. Jun 30, 2008), Court Docket
General Information

Court
Nature of Suit Docket Number Status

United States District Court for the District of Nebraska; United States District Court for the District of Nebraska
Civil Rights - Disabilities - Other[446]
8:08-cv-00271
Closed

© 2014 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 3

 
 8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 1 of 41 - Page ID # 28

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

FilED U.S. DISTRICT COURT OIST!l!Ct OF NEBRAS.K,\,
2008 JUL -2 AH 10: 07
OFfiCE OF THE CLE~

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF NEBRASKA;

)

DAVE HEINEMAN, Governor of the State of )

Nebraska, in his official capacity only;

)

CHRISTINE PETERSON, Chief

)

Executive Officer, Nebraska Department

)

of Health and Human Services, in her official

)

capacity only; JOHN WYVILL, Director,

)

Division of Developmental Disabilities,

)

Nebraska Department of Health and Human

)

Services, in his official capacity only;

)

RON STEGEMANN, Chief Executive Officer, )

Beatrice State Developmental Center, in his

)

official capacity only,

)

)

Defendants.

)

Civ. No. 08-08CV271

SEITLEMENT AGREEMENT
The United States and the State of Nebraska agree to settle this matter on the terms and conditions set forth below in this Settlement Agreement.
I. LEGAL FRAMEWORK
A. This case was instituted by the United States pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997.
B. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345.
C. Venueisappropriatepursuantto28U.S.C. § 139I(b).
D. The United States is authorized to institute this civil action pursuant to 42 U.S.C. § 1997a and has met all prerequisites for the institution of this civil action prescribed by the statute.
E. The Defendants are the State of Nebraska; the Honorable David Heineman, Governor of the State of Nebraska; Christine Peterson, the Chief Executive Officer of the Nebraska

8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 2 of 41 - Page ID # 29

Department of Health and Human Services; John Wyvill, the Director ofthe Division of Developmental Disabilities within the Nebraska Department ofHealth and Human Services; and Ron Stegemann, the Chief Executive Officer ofthe Beatrice State Developmental Center ("BSDC"). All individual Defendants are officers ofthe Executive Branch ofthe State of Nebraska and are sued only in their official capacities. The collective Defendants shall hereinafter be referred to as "the State."

F. BSDC is an institution covered by CRIPA and is owned and operated by the State of Nebraska to provide habilitation and other protections, supports, and services to persons with mental retardation and/or other developmental disabilities. The State has authority and responsibility for the operation of BSDC and is responsible for the implementation of this Settlement Agreement.

G. On May 29, 2007, the Attorney General of the United States, by and through the Assistant Attorney General, Civil Rights Division, notified the Governor of the State of Nebraska, the Attorney General of the State of Nebraska, the ChiefExecutive Officer ofthe Nebraska Department of Health and Human Services, and the Acting Chief Executive Officer of BSDC, ofhis intention to investigate conditions ofcare and treatment of residents at BSDC pursuant to CRIPA.

H. Following an investigation, including an on-site tour ofBSDC from October 15-19, 2007,
on March 7, 2008, the Attorney General ofthe United States, by and through the Acting Assistant Attorney General, Civil Rights Division, informed the Governor ofNebraska, the Nebraska Attorney General, the ChiefExecutive Officer ofthe Nebraska Department ofHealth and Human Services, tbe Director oftbe Division ofDevelopmental Disabilities within the Nebraska Department ofHealth and Human Services, and the ChiefExecutive Officer ofBSDC, that the Attorney General had reasonable cause to believe that BSDC residents were being subjected to conditions that deprived them oftheir legal rights and oftbeir rights, privileges, and inununities secured by the Constitution of tbe United States.

I.

The parties agree that the care, conditions, and training provided to BSDC residents,

including any individual who was a BSDC resident at the time the United States concluded its

on-site tour ofBSDC on October 19, 2007 (hereinafter "residents"), implicate rights that are

secured and protected by the Constitution and laws of the United States. The parties entering

into this Settlement Agreement recognize these constitutional and legal interests, and for the

purpose of avoiding protracted and adversariallitigation, agree to the provisions set forth below.

J. The purpose of the Settlement Agreement is that the State will achieve and/or maintain desired outcomes for BSDC residents and ensure that tbey are provided them with tbe protections, supports, and services they need to ensure that their constitutional and statutory rights are protected. In entering into this Settlement Agreement, however, State officials do not admit any violation of the Constitution or ofany law, and this Settlement Agreement may not be used as evidence of liability in any other legal proceeding.

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8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 3 of 41 - Page ID # 30
K. This Settlement Agreement is not intended to create any rights in any person or entity not a party to it. Nothing herein is intended to waive any rights or claims with respect to third parties who are not parties to this Settlement Agreement.
L. The provisions of this Settlement Agreement, voluntsrily entered into, are a lawful, fair, and appropriate resolution of this case.
M. The parties shall request that this Settlement Agreement be entered by the United States District Court for the District ofNebraska, and be enforceable as an Order of the Court.
N. Once entered by the Court, this Settlement Agreement is legally binding and judicially enforceable by the parties, and it shall be applicable to and binding upon all of the parties, their officers, agents, employees, assigns, and successors.
0. Except where otherwise specified, the State shall implement all provisions of this Settlement Agreement within 90 days of the filing of this Settlement Agreement with the Court.
P. The United States agrees to consult with State officials before seeking judicial enforcement of this Settlement Agreement. Throughout, the United States and the State will coordinste and discuss areas of disagreement and attempt to resolve outstanding differences. It is intended that the parties will pursue a problem-solving approach so that litigation and disagreements can be minimized and the energies of the parties can be focused on the task of meeting the needs of the residents and achieving the outcomes set forth in this Settlement Agreement. The State shall ensure that identified deficiencies, if any, are remedied promptly.
Q. The United States will have full access to residents, persons, employees, residences, facilities, bnildings, programs, services, documents, records, and materials that are necessary to assess the State's compliance and/or implementation efforts with this Settlement Agreement. Such access shall include departmental and/or individual resident medical and other records. The United States shall provide reasonable notice ofany visit or inspection, although the parties agree no notice shall be required in an emergency situation where the life, immediate health or immediate safety ofresident(s) are at issue. Such access shall continue until this case is dismissed.
R. All provisions of this Settlement Agreement will have ongoing effect until the final dismissal of this action.
S. The parties anticipate that the State will have implemented all provisions of the Settlement Agreement within four years of its filing with the Court. The Court shall retain jurisdiction of this action for all purposes until the State has implemented aU provisions of this Settlement Agreement and maintained implementation of all provisions for one year and until such time as this action is dismissed. The parties may agree to jointly ask the Court to terminate the Settlement Agreement prior to the end of the four-year term, provided the State has implemented all provisions of the Settlement Agreement and maintained implementation of all
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8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 4 of 41 - Page ID # 31
provisions for one year. If the case bas not yet been dismissed, the parties agree to ask the Court for a non-evidentiary hearing on the status ofcompliance on or near this four-year anniversary date. Ifthe parties agree that there is non-compliance, or if there is a dispute about compliance, the parties will so inform the Court, and the Court may set additional hearing dates as appropriste. The parties may agree jointly at any time to allow for additional time to resolve complisnce issues.
T. The parties and the Independent Expert agree that any documents produced pursuant to this Settlement Agreement may be shared only with the following: (I) the Court; (2) any expert(s) or consultant(s) selected orretained by the parties pursuant to this Settlement Agreement; (3) all counsel of record in this matter; (4) staff and clerical personnel working with counsel of record in this matter; and (5) United States and other governmental officials, as necessary, in order to carry out law enforcement responsibilities.
U. All parties and the Independent Expert shall be responsible for maintaining the confidentiality of records in their possession. Submissions to the Court that contain identifYing information of residents (such as their full name, address, or social security number) shall be filed with the Court using codes or pseudonyms.
V. The State shall promptly notifY the United States upon the death ofany resident, including the name of the resident, the date ofdeath, and a preliminary cause of death. The State shall promptly forward to the United States copies of any completed incident reports related to deaths, autopsies, and/or death summaries of residents, as well as all final reports of substantiated abuse and/or neglect investigations that involve residents. The United States may require additional written reports from the State regarding the State's compliance with the Settlement Agreement. The State will cooperate and comply with any such requests.
W. The parties reserve the right to withdraw consent to the Settlement Agreement in the
event that the Settlement Agreement is not approved by the Court in its entirety.
X. · The parties shall bear their own costs, including attorney fees.
II. OFFICE OF THE INDEPENDENT EXPERT
A. Selection oft/w Ilflltatendent ~Hf.wrt qnd Consultgnts
1. The parties have jointly agreed thatJohn J. McGee, Ph.D., shall be appointed as the
Independent Expert to monitor the State's implementation ofthis Settlement Agreement.
2. In the event that Dr. McGee resigns, or in the event that the parties for any reason jointly agree to discontinue the use of Dr. McGee as Independent Expert, the parties shall meet or
confer within 30 days to tty to agree upon a replacement person to fulfill the duties of the Independent Expert. The parties shall jointly select a replacement. If the parties are able to agree on a replacement, they shall notifY the Court of their joint selection. If the parties are
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8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 5 of 41 - Page ID # 32
unable to agree on a replacement within 30 days oftheir first meeting or conference, they shall jointly petition the Court to make the selection. In this petition, each party will be permitted to propose the names of three alternate candidates for the position, from which the Court shall select the new Independent Expert. The parties shall submit the candidates' curricula vitae, along with other pertinent information regarding the proposed candidates at the time of the submission of the names of the candidates. The procedure described in this paragraph, if necessary, shall apply to the selection ofall successor Independent Experts.
3. The parties agree that Dr. McGee may use consultants to assist in completing the duties of the Independent Expert. In collabomtion with the Independent Expert, the parties shall meet or otherwise confer whenever necessary to agree upon which particular consultant(s) Dr. McGee shall use to assist in completing the duties of the Independent Expert.
4. Neither the Independent Expert, nor any consultant (person or entity) retained by the Independent Expert to assist in completing the duties of the Independent Expert, shall be liable for any claim, lawsuit, or demand arising out of the monitoring of this Settlement Agreement. This paragraph does not apply to any proceeding before this Court for enforcement of payment of contmcts or subcontmcts for monitoring this Settlement Agreement. The selection of the Independent Expert shall be conducted solely pursuant to the procedures set forth in this agreement, and will not be governed by any formal or legal procurement requirements.
B. Budget ofthe Inde.pendent Expert
5. The parties and Dr. McGee have agreed upon the annual budget for Dr. McGee's work as Independent Expert. The agreed-upon budget is attached
C. Reimbursement qnd PqymentProvisions
6. The cost of the Independent Expert, including the cost of any consultant to assist the Independent Expert, shall be bome by the State in this action. All reasonable expenses incurred by the Independent Expert or any consultant, in the course of the performance of the duties ofthe Independent Expert, pursuant to the attached budget of the Independent Expert, shall be reimbursed by the State. The State shall provide the office ofthe Independent Expert with access to clerical assistance, office space, and office supplies as necessary. The United States will bear its own expenses in this matter.
7. The State shall deposit $100,000.00 into the Registry of the Court as interim payment of costs incurred by the Independent Expert. This deposit and all other deposits pursuant to this Order shall be held in the Court Registry Investment System and shall be subject to the standard registry fee imposed on depositors.
8. The Independent Expert shall submit monthly statements to the Court, with copies to the parties, detailing all expenses the Independent Expert incurred during the prior month. These statements shall include daily records of time spent and expenses incurred, and shall include
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8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 6 of 41 - Page ID # 33
copies ofany supporting documentation, including receipts. The parties shall have seven business days from the receipt of the Independent Expert's monthly statements to submit to the Court any comments on or objections to the statements. The Court will then review the statements and any party's comments or objections and order the cleik: to make the appropriate payments to the Independent Expert. The clerk shall then make those payments within 10 days of the entry of the Order authorizing payment. Within 45 days of the entry ofeach Order authorizing payment, the Defendants shall replenish the fund with the full amount paid by the clerk in order to restore the fund's total to $100,000.00.
D. Re1J10nsibllit/es qndA11tlwrity o.ftbe lndmmJ<nt 11wert
9. The Independent Expert shall have the responsibility and authority to independently observe, assess, review, and report on the State's implementation of and compliance with the provisions ofthis Settlement Agreement. The Independent Expert shall regularly review the protections, services, and supports provided to residents in their residential settings and day programs or other programs to determine the State's implementation ofand compliance with this Settlement Agreement. The Independent Expert's evaluation shall include: regular on-site inspection of the residences and programs of residents, interviews with administrators, professional and direct care staff, contractors, and residents, and detailed review ofpertinent documents and resident records. The Independent Expert shall conduct on-site inspections at least every quarter. The Independent Expert shall devote such time as is necessary to fulfill the duties and responsibilities of the Independent Expert porsuant to this Settlement Agreement.
10. Within 30 days of appointment, the Independent Expert shall consult with the parties and shall submit a written plan with regard to the methodologies to be used by the Independent
Expert to assess the State's compliance with and implementation ofthe Settlement Agreement.
ll. The Independent Expert will have full access to residents, persons, employees, residences, facilities, buildings, programs, services, documents, records, and materials that are necessary to assess the State's compliance and/or implementation efforts with this Settlement Agreement. Such access shall include departmental and/or individual resident medical and other records. Such access shall continue until this case is dismissed.
12. The Independent Expert may have ex parte communications with the parties at any time.
13. The Independent Expert shall confer regularly and informally with the parties on matters
relating to compliance, and the parties envision that the Independent Expert may provide specific recommendations with regard to steps to be taken to come into compliance with the Settlement Agreement. However, the State retains the discretion to achieve compliance by any legal means available, and may choose to utilize methods other than those that may be proposed by the Independent Expert. The Independent Expert shall not be empowered to direct the State or any of its subordinates to take, or to refrain from taking, any specific action to achieve compliance
with the Settlement Agreement. Conversely, no party or any employee or agent ofany party shall have any supervisory authority over the Independent Expert's activities, reports, findings,
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or recommendations. The parties do not intend for the Independent Expert to have the role of a "Special Master."
14. At least every quarter, the Independent Expert shall submit to the parties a draft written report with regard to the State's implementation efforts and compliance with the Settlement Agreement. The parties shall have 15 business days to submit a response to the report to the Independent Expert. The Independent Expert shall consider the parties' comments and within I0 days of receipt of the comments shall submit a fmal report to the parties, making whatever modifications the Independent Expert deems appropriate in light ofthe parties' comments. While the parties are reviewing the draft report and submitting comments, the State will take timely action to remedy alny deficiencies cited by the Independent Expert. Only where conditions or practices pose an immediate and serious threat to the life, health or safety of a resident or residents, may the United States use the Independent Expert's draft report in a compliance action before the Court prior to the completion ofthe review and submission period set forth above.
15. So as to review issues related to this Agreement, the State shall promptly notify the Indepeodent Expert upon the death ofany resident, including the name ofthe resident, the date of death, and a preliminary cause ofdeath. The State shall promptly forward to the Independent Expert copies ofany completed incident reports related to deaths, as well as autopsies, and/or death summaries of residents. The State shall promptly notify the Independent Expert of serious incidents, including but not limited to allegations of abuse and/or neglect, incidents producing a serious injury, incidents involving prolonged physical and/or mechanical restraint, and incidents involving law enforcement personnel. The State shall promptly forward to the Independent Expert copies ofall final reports of investigations that involve residents. The State shall provide advance notice to the Independent Expert, along with copies of discharge plans, fur residents to be transitioned to the community or any other setting. Tbe Independent Expert may require additional written reports from the State regarding the State's compliance with the Settlement Agreement. Tbe State will cooperate and comply with any such reasonable requests.
16. It is intended that the Independent Expert will pursue a problem-solving approach so that disagreements can be minimized and the energies ofthe parties and the Independent Expert can be focused on the task ofmeeting the needs ofthe residents and achieving the outcomes set forth in this Settlement Agreement.
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Ill. REMEDIAL MEASURES
A. REASONABLE SAFE'fY. PRQTECl]ON FROM HARM
PrinciPal Reguirement
I. The State has declared that the most important concern of the State Department of Health and Human Services is the safety and quality of life of its clients with developmental disabilities. To this end, the State agrees to provide residents with a reasonably safe and humane living environment which includes that the State shall: (1) protect residents from abuse and neglect; and (2) take effective steps to minimize or eliminate resident injuries and other significant incidents that may negatively impact their health, safety, and welfare.
Zero-Toferqnce for Abuse 1111d Neglect
2. The State shall take effective steps to ensure that residents are free from abuse and neglect. The State has announced, and shall maintain, a policy of"zero-tolemnce" for abuse (including verbal, mental, sexual, or physical abuse) and neglect, whether from other residents or from staff.
3. The State shall provide effective, ongoing competency-based training to staff on recognizing and reporting potential signs and symptoms of abuse and/or neglect, and on the prevention of abuse and neglect of residents by staff. Such training shall include providing staff with an explanation of the definitions ofresident abuse and neglect, explaining to staff that abuse and neglect are prohibited, explaining to staff the requirement to promptly report any suspected abuse or neglect, and advising staff of the potential consequences ifthey commit abuse or neglect or fail to promptly report witnessed or suspected abuse or neglect.
At/equate Stq.ffinr
4. The State shall maintain sufficient numhers of adeqnately trained professional and direct care staff on each shift to provide adequate protections, supports, and services to residents at all times.
5. On or before November I, 2008, the State shall maintain sufficient staff in direct care positions so as to minimize or eliminate the use of overtime to meet resident needs. The State may address staffing issues by hiring additional staff and/or by reducing the resident census at BSDC. In order to address staff fatigue, the use ofmandatory overtime and requiring that staff work double shifts (two consecutive eight-hour shifts) is disfavored. In order to increase continuity of care and the familiarity ofstaff with particular residents and their needs, the State shall minimize or eliminate the use of part-time "on-call" staff and "pulled" staff who are unfamiliar with the residents on a unit.
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6. The State shall ensure that residents receive all protections, supports, and services from staff who are properly trained on how to meet their individualized needs. The State shall place a heightened focus on ensuring that part-time "on-call" staff and staff pulled from other units are properly trained on individualized resident needs before assignment to any particular unit.
7. The State shall adequately supervise and monitor staff and residents at all times to ensure that staff are continually working to address resident needs.
8. The State shall conduct a regular review of all resident injuries and "significant" incidents to deterntine if staffing concerns are a contributing factor; wherever this is the case, the State shall develop and implement prnmpt and effective measures to address the staffing concerns in order to provide adequate and sufficient staff to care for and supervise residents and to prevent otherwise avoidable injuries and incidents. "Significant'' resident incidents include all instances of: alleged, suspected, and/or substantiated abuse and/or neglect; serious injury, including those of unknown origin; actual or attempted elopement from the facility; and death.
9. Befure permitting any staffperson to work with residents, the State shall investigate the criminal history and other relevant background factors regarding that staffperson, whether fulltime, part-time, temporary, or permanent, including regularly-scheduled volunteer staff with direct resident contact. The State shall screen and take appropriate action to protect residents if the investigation indicates that the person would pose a risk of harm to the residents.
Resident Incidents
10. The State shall take effective steps to minimize incidents that ruay adversely impact the
health, safety, and welfare of residents. This includes all "significant" resident incidents, especially those incidents that result in serious injury to residents.
11. Whenever a significant incident (other than death) occurs, the State shall immediately take appropriate measures to protect the safety and well-being of the resident(s) involved, including procuring any necessary basic care and/or health care treatment.
12. An interdisciplinary team on each BSDC living unit shall meet to identify, discuss, and address individual and systemic issues that have arisen since the last unit team meeting, as well as any individual and systemic issues that ruay arise before the next unit team meeting. The team's conclusions and action steps shall be conveyed across shifts to ensure continuity and consistency with regard to implementation efforts.
13. On or before January 1, 2009, the State shall develop and implement across all settings and shifts an integrated and coordinated incident management system. All resident incidents, including incidents that result in injury, shall be accurately and consistently documented. Documentation ofeach injury shall be kept in the resident's file and in a central location, and all incidents and injuries shall be entered into a central database, which is capable ofcapturing the following inforntation: the type ofincident, the time the incident occurred, the location of the
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incident, the resident(s) and/or staff involved in the incident, and the nature and severity of the injury, if any. The State shall develop and implement, within 90 days, a policy mandating that staff report all incidents in a timely manner.
Qualitr Assurance
14. The State shall develop and implement a comprehensive qnality assurance program to track and analyze patterns and trends ofincidents and injuries, including incidents and injuries of unknown origin. The State shall develop and implement prompt and effective measures to address patterns and trends that impact the health, safety, and welfare of residents, so as to minimize or eliminate their occurrence in the future.
15. The State shall place an emphasis on identifYing and analyzing resident-to-resident
interactions that create risk of harm and/or actual harm, and then develop and implement
measures to address these risk factors to prevent residents from harming themselves or others.
The State shall identifY vulnerable residents who are at higher risk of harm, and develop and implement measures to minimize or eliminate potential risk factors. The State shall identifY
aggressor residents and develop and implement messures, in conjunction with behavioral and other interventions, to minimize or eliminate potential triggers for aggression.
lnyefligqtlpn e{Sjrmlticpntlncidents
16. The State shall investigate all "significant" resident incidents. As referenced above, "significant" resident incidents include all instances of: alleged, suspected, and/or substantiated abuse and/or neglect; serious injury, including those ofunknown origin; aetna! or attempted elopement from the facility; and death.
17. The investigation of each significant incident shall be accurate, thorough, and complete. Investigations are to commence at least by the next working day ofthe incident being reported, and shall be concluded within 30 days ofthe incident being reported, or, when material evidence is unavailable to the investigator, as soon as is practicable so as to eliminate any undue delay. Other than with regard to matters involving a criminal investigation conducted by law enforcement authorities, investigators shall conduct interviews ofall necessary witnesses in a timely manner. Each investigation will result in a written report. Each investigation report shall include: a summary of the incident and investigation, a chronology ofevents, a summary of interviews with all relevant staff and residents who may have information about the incident,
findings with a detailed discussion of the bases for the findings (including a reasoned analysis of
witness statements, documents, and other evidence considered), and recommendations for corrective action, when necessary, with timeframes for completion. The State shall ensure that investigators are competent, experienced, and well-trained in conducting investigations of significant incidents.
18. The State shall develop and implement prompt and effective remedial measures to address the individual and systemic issues and recommendations associated with these
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investigation reports. The State shall track the implementation of the remedial measures on an ongoing basis to ensure that outstanding issues are addressed and appropriate resident outcomes are achieved in each instance.
19. The State shall require stsfi; including supervisory personnel, to safeguard evidence associated with the significant incident.
20. The State shall require that all potential criminal matters are referred promptly to appropriate law enforcement authorities. When law enforcement authorities indicate an intent to proceed with a criminal investigation, any compelled interviews of State employees shall be delayed until those authorities issue a written declination to proceed with a criminsl investigation.
21. The State shall immediately remove any staff member suspected ofstsff-on-resident abuse or neglect from direct resident contact until the conclusion of the investigation and submission of the written investigation report about the incident.
22. The State shall impose appropriate disciplinary and/or corrective personnel action where a staff person is determined to have caused or been responsible for abuse and/or neglect, and against any staff person who fails to report a significant incident to supervisory or other appropriate personnel in a timely or accurate manner.
B. PLACEMENT IN THE MOST INTEGR.ATED SETTING
Principql Reguirement
23. In accordance with Title ll of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and implementing regulation 28 C.F.R. § 35.130(d), the State shall ensure that each BSDC resident is served in the most integrated setting appropriate to meet each person's individualized needs. To this end, the State shall actively pursue the appropriate discharge of BSDC residents from BSDC and provide them with adequate and appropriate protections, supports, and services, consistent with each person's individualized needs, in the most integrated setting in which they can be reasonably accommodated, and where the individual does not object. 4Jnuoprlflleness for Plqcement
24. It is the State's determinstion that all residents ofBSDC meet the essential eligibility requirements for placement and habilitation in integrated community settings. All residents can be served in integrated community settings when adequate protections, supports, and other necessary resources are identified as available by service coordination. The State shall ensure that this is clearly set forth in each resident's written interdisciplinary team recommendation contained within each individual's BSDC Personal Plan, or equivalent.
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Resident lnl'fliJIIUI!ent 1111d Choice 25. Throughout, each resident shall be involved in the team evaluation, decision-making, and planning process to the maximum extent practicable, using whatever communication method he or she prefers.
26. To foster each resident's self-determination and independence, the State shall use personcentered planning principles at evecy stage of the process. This shall facilitate the identification of the resident's specific interests, goals, likes and dislikes, abilities and strengths, as well as deficits and support needs.
27. Each resident shall be given the opportunity to express a choice regarding placement.
The State shall provide residents with choice counseling to help each resident make an informed choice; the State will provide enhanced counseling to those residents who have lived at BSDC for many years.
28. If any resident opposes placement, the State will document the steps taken to ensure that any individual objection is an informed one. The State shall set forth and implement individualized strategies to address concerns and objections to placement.
29. Throughout the process, the State shall regularly educate residents about the community and the various community options open to them. Any written materials or presentations shall be easy for residents to understand.
30. The State shall provide each resident with several viable placement alternatives to consider whenever possible. The State shall provide field trips to these viable community sites and facilitate overnight stays at certain of the community residences, where appropriate.
31. Where family members and/or guardians have reservations about community placement, the State shall provide ongoing educational opportunities to such family members and/or guardians with regard to placement and programming alternatives and options. These educational opportunities shall include infOrmation about how the individual may have viable options other than living with the family members and/or guardians once discharged from BSDC. The State shall identify and address the concerns of family members and/or guardians with regard to community placement. The State shall encourage family members and/or guardians to participate, whenever possible, in residents' on-site, community home field trips.
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TrqnptW., Plqns
32. The State shall set forth in reasonable detail a written transition plan specifYing the particular protections, supports, and services that each individual resident will or may need in order to safely and succesafully transition to and live in the community. Such a transition plan shall be prepared on or berore January l, 2009, for each resident regardless ofwhether or not a suitable community placement is currently available.
33. Each transition plan shall be developed using person-centered planning principles. Each transition plan shall specify with particularity the individualized protections, supports, and services needed to meet the needs and preferences of the resident in the alternative community setting, including their scope, frequency, and duration. Each transition plan shall include all individually-necessary protections, supports, and services, including but not limited to: housing and residential services; transportation; staffing; health care and other professional services; specialty health care services; therapy services; psychological, behavioral, and psychiatric services; communication and mobility supports; programming, vocational, and employment supports; and assistance with activities ofdaily living. Each plan shall include specific details about which particular community providers, including residential, health care, and program providers, can furnish needed protections, services, and supports.
34. The State will continue to' emphasize the placement of residents into smaller community homes.
35. In developing these plans, the State will avoid placing residents into nursing homes or other institutional settings whenever possible. The parties recognize that nursing homes are often not well-suited to provide needed habilitation to persons with developmental disabilities. The State will develop and implement a systemic plan to develop, through the Home and Community-Based Waiver or otherwise, integrated community alternatives to nursing homes for all residents with unique or more intense and complex health care needs.
36. Each transition plan shall identify the date the transition can occur, as well as timefi:ames for completion of needed steps to effect the transition. Each transition plan shall include the name of the person or entity responsible for: commencing transition planning; identifying community providers and other protections, supports, and services; connecting the resident with community providers; and assisting in transition activities as necessary. The responsible person or entity shall be experienced and capable of performing these functions.
37. Each transition plan shall be developed sufficiently prior to potential discharge so as to enable the careful development and implementation ofneeded actions to occur before, during,
1 The United States does not concede that the words "continue to" or "maintain" throughout this Settlement Agreement mean or imply that the State has already been meeting residents' needs in each area.
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and after the transition. This shall include identitying and overcoming, whenever possible, any barriers 10 transition. The State shall work closely with pertinent community agencies so that the protections, supports, and services that the resident needs are developed and in place at the alternate site prior 10 the resident's discharge.
38. The State shall update the transition plans as needed throughout the planning and transition process based on new information and/or developments.
39. In developing the transition plans, the State shall attempt to locate community alternatives in regions based upon the presence ofpersons significant 10 the resident, including parents, siblings, other relatives, or close friends, where such efforts are consistent with the individual's desires.
40. The State agrees to provide as many individual on-site and overnight visits to various proposed residential placement sites in the community as are appropriate and needed 10 ensure that the placement ultimately selected is, and will be, adequate and appropriate 10 meet the needs of each resident. The State shall modifY the transition plans, as needed, based on these community visits.
41. Each individual transition plan shall establish a schedule for moni10ring visits to the new residence 10 assess whether the ongoing needs of the individual are being met. Each plan shall specifY more regular visits in the days and weeks after any initial placement.
Implementation ofTrqnsitjon Plans
42. For those residents who do not oppose community placement, the State shall implement, in an expeditious manner, the transition plans that can be reasonably accommodated, by transferring each resident to an adequate and appropriate alternative community setting pursuant to the details set forth in each transition plan.
43. The State shall take effective steps to support and expand service and provider capacity in the community so as to better serve residents placed and to be placed in the community. This shall include, but not be limited 10, developing community capacity with regard to: housing and residential services; health care and other professional services; specialty health care services; therapy services; communication and mobility supports; and psychological, behavioral, and psychiatric services.
44. Based on data and information gleaned, in part, from the State's Outreach Treatment Services ("OTS") and Intensive Treatment Services ("ITS") programs, the State shall develop and implement a plan with effective steps to expand and improve expert heslth care and expert psychological, behavioral, and mental health services in the community for community residents with complex health care needs, and/or behavior problems and/or mental illness. The intent of
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the plan shall be to better meet residents' health care, behavioral, and mental health needs in the community, avoid crises marked by the escalation of health care and/or behavior problems, and to minimize or eliminate failed or troubled community placements due to poorly addressed resident behaviors and, thus, minimize or eliminate re-institutionalization.
45. To assist in this process, the State will develop and implement a plan on or before March I, 2009, to utilize and/or expand the State's existing electronic information system/tele-health network to better meet the needs of persons with developmental disabilities, especially those living in more rural areas of the State. The plan shall address how to provide more immediate and better access to records and expert professionals, transmit lab results and radiological reports between health care and other professionals, better track quality of care, improve communication with local hospitals and specialists, and generally provide better proactive care and treatment through a more seamless continuum of care to enhance resident outcomes. The plan shall address how to conduct video-conferences among various health care providers at scattered locations to save time and the expense of travel, and to encourage, wherever appropriate, the use of video-consults/clinics between local physicians and other professionals with specialists at distant locations. The plan shall also address how to incorporate timely tele-trauma services for residents in crisis. In developing and implementing this plan, the State shall ensure that the security and privacy of resident information is safeguarded.
46. The State shall significantly expand its OTS program to address unmet needs in the community that place individuals at risk of short-term or long-term institutionalization at BSDC. The OTS program shall continue to support positive behavioral change to keep individuals as independent as possible, and in familiar surroundings in their homes in the community, and away from more restrictive placements such as hospitals, nursing homes, psychiatric facilities, and institutions.
47. The State shall continue to support its ITS program, but shall strengthen its focus on returning individuals back to appropriate community homes promptly after a short-term stay. The State shall maintain more restrictive criteria for admitting a person long-term to a congregate or institutional setting after a stay in the ITS.
Monitoring ofCommunitv Placements and Oualitv Assurance Meqsures
48. The State shall develop and implement a system, including service coordination services, to effectively monitor community-based placements and programs to ensure that they are developed in accordance with the individualized transition plans set forth above, and that the individuals placed are provided with the protections, services, and supports they need. These and other monitoring and oversight mechanisms shall serve to help protect individuals from abuse, neglect, and mistreatment in their community residential and other programs. The State's oversight shall include regular inspections of community residential and program sites; regular face-to-face meetings with residents and staff; and in-depth reviews of treatment records, incident/injury data, key-indicator performance data, and other provider records.
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49, BSDC residents who are placed in the community shall be served by an adequate number of service coordinators to meet residents' needs. The State's service coordination program shall provide for various levels of follow-up and intervention, including more intensive service coordination for those residents leaving BSDC with more complex needs. To encourage frequent individual contact, residents leaving BSDC will be served by service coordinators that carry a caseload of no more than 25 individuals at a time. Service coordinators involved with individuals from BSDC with more complex and intensive needs will carry a caseload ofno more
than 20 individuals at a time. All service coordinators shall receive appropriate and adequate
supervision and competency-bnsed training.
50. The State shall provide prompt and effective support and intervention services postplacement to residents who present adjustment problems related to the transition process such that each resident may stay in his or her community residence when appropriate, or be placed in a different, adequate, and appropriate community setting as soon as possible. These services may include, but not be limited to: providing heightened and enhanced service coordination to the resident/home; providing professional consultation, expert assistance, training, or other technical assistance to the resident/home; providing short-term supplemental staffing and/or other assistance at the home as long as the problem exists; and developing and implementing other community residential alternative solutions for the resident.
51. The State commits to maintaining discharged residents in the most integrated community setting appropriate for their needs. Any admission or re-admission to BSDC will be considered short-term. If a resident is re-admitted to BSDC, the State shall document the basis for the readmission and then conduct a prompt assessment to identifY and resolve any factors necessitating the re-admission.
52. The State shall regularly collect, aggregate, and analyze data related to discharge and placement efforts, including but not limited to information related to both successful and unsuccessful placements, as well as the problems or barriers to placing and/or keeping residents in the most integrated and appropriate setting. On or before January l, 2009, the State shall also collect, aggregate, and analyze community data for at least the past five years frcm its OTS program and its ITS program, which may reveal systemic problems or barriers to meeting individual consumer needs in the coumumity. Such problems or barriers may include, but not be limited to insufficient or inadequate: housing, community resources, health care, behavior management and services, and meaningful day activities including supported employment. The State shall review this information on a regular basis and develop and implement prompt and effective strategies to overcome the problems and barriers identified.
53. The State shall regularly review various community providers and programs to identifY gaps and weaknesses, as well as areas of highest demand, to provide information for comprehensive planning, administration, resource-targeting, and implementing needed remedies. The State shall develop and implement effective strategies to any gaps or weaknesses or issues identified.
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C. TRAINING AND BEHAVIQRAL SERVICES. RESTRAINTS· AND
PSYCHIATRIC CARE
Traininr (ll!d BeJraviorql Services
Principal Requirement
54. The State shall provide adequate psychological and behavioral services, including skills training and positive behavioral support plans, to meet the individualized needs of each resident, especially those with challenging behaviom. These services shall be developed and implemented to ensure and protect residents' right to training sufficient to provide each resident a reasonable opportunity to enhance functioning, to grow and develop, to attain self-help and social skills needed to exercise as much autonomy or independence as possible, to prevent or decelerate both physical and psychological regression, loss of skills and functional status, and to ensure their reasonable safety, security and freedom from undue bodily restraint. To this end:
Individualized Assessments
55. The State has begun and will continue the process of conducting a new interdisciplinary evaluation ofeach resident to determine the specific areas in which each resident needs trsining. These interdisciplinary evaluations shall be completed for all residents on or before January 1, 2009, and shall be repeated for all residents at annual intervals, unless required more frequently by each resident's needs; residents with challenging behaviom will likely require interdisciplinary evaluations much more frequently than once a year.
56. This interdisciplinary evaluation shall include adequate behavioral assessments (including an individualized, formal functioual aualysis whenever appropriate) based on the input from the psychologists and an interdisciplinary team. A functional analysis is an assessment of an individual's behavior that includes: (1) a description of the behaviom(s); (2) the collection of empirical data; (3) an assessment of the behavioral intensity, frequency, duration, and severity; (4) an evaluation of the antecedents, consequences and function of the behavior(s); (5) an assessment of any medical, nllllling, mental health or other conditions related to the behavior(s) so as to determine the medical, behavioral, mental health, environmental and/or other factum that may be causing each resident's challenging behaviom; and (6) the development of skills training, behavior support, and other procedures hased upon the aualysis. The psychologist's assessment and functional aualysis shall be hased on a first-hand, in-depth, observational aualysis of each resident's behavior, and not primarily from data provided pUilluant to a screening tool.
Skills Training and Habilitation
57. Based on this evaluation, the State shall develop and implement a professionslly-based, individualized skills training and habilitation support plan for each resident and provide each resident with a minimum of five holllll. per day of off-residence skills training, in the community
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whenever appropriate, derived from the resident's skills training and habilitation support plan, to meet the individualized needs ofeach resident. The skills training and habilitation support plans shall include real-life variables, in the community whenever appropriate, with outcome measures that will be meaningful to residents with an emphasis on providing training in functional contexts. Plans shall be developed and implemented with a focus on proactive skills building and an emphasis on reducing the use of restrictive interventions. Residents' needs for meaningful training sball be continually met.
58. In developing and implementing the skills training and habilitation support plans, the State shall provide residents with these services in the most integrated setting appropriate for each individual resident. The State shall emphasize involvement in and with the community, away from the BSOC campus, as much as possible and appropriate, according to each resident's individualized needs.
59. The State shall develop and implement an initiative to significantly increase community integration activities and upportunities for residents day-to-day, including: (a) community supported employment; (b) community day programming; (c) community volunteer activities; and (d) community business and recreational outings, including but not limited to grocery stores, pharmacies, restaurants, theaters, and places of religious expression. This initiative sball ensure that staffing, transportation, and other resources are adequate to meet the residents' needs for community integration activities and opportunities.
60. The State shall develop and implement an initiative to better engage residents in meaningful trsining and activity throughout each day, according to their individualized needs, when the residents are on-campus and/or on their living units. This initiative shall make better use of on-campus recreational facilities, such as at the Carstens Center.
Positive Behavioral Support Plans
61. For residents with behaviors, the State shall ensure that psychologists develop and implement positive behavioral support plans that include: (I) a detailed definition and identification of the specific, measurable, and objective behavior(s) to increase and/or decrease; (2) a description and incorpomtion of the individualized functional analysis; (3) a comprehensive discussion of how medical and/or psychiatric disorders impact behavioral problems; (4) the procedures for staff to follow to decrease the occurrence of the problem behaviors; (5) the skills
and positive, adaptive behaviors (to include replacement behaviors) that will bC taught and the
procedures for teaching them; (6) environmental changes to promote the development of positive, adaptive behaviors; (7) individualized reinforcers and/or preferences as determined in accordance with the needs of each resident; (8) an individualized schedule of active treatment activities as documented in the resident's individualized plan that corresponds to the resident's treatment needs; and (9) an adequate data collection system that includes appropriate data collection procedures which, for residents with positive bebavioml support plans, shall measure information about maladaptive and adaptive behaviors and the conditions under which they
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occur, including, where appropriate, the frequency, intensity, severity, and duration of the behaviors.
62. In developing and implementing these positive behavioral support plans, the psychologists shall adequately document their clinical fmdings and the treatment hypotheses to be tested, and set forth how treatments are derived. The psychologists shall also document their mtionale for using specific behavioral interventions.
63. The State shall ensure that psychologists write concise and simple-to-use positive behavioral support plans at a level that can be easily understood and implemented by direct care staff.
64. The State shall improve implementation ofbehavioml plans at the direct care stafflevel. As part of this initiative, in conjunction with outside consultants, as appropriate, the State shall provide regular and ongoing competency-based training to direct care and supervisory staff on how to properly redirect residents' behaviors pursuant to each resident's plan, without resorting to the undue use of planned or unplanned mechanical, physical, or chemical restraints.
65. Both skills training and positive behavioral supports shall be developed and implemented as part of a resident's ovemll individualized plan. The State shall ensure that there is effective coordination and integmtion of services and treatment modalities, including psychology, psychiatry, neurology, nursing, medical and health care, and other needed services.
66. On or before January I, 2009, the State shall maintain an effective Behavior Intervention Committee review process for the development and implementation of positive behavioral support plans, with an emphasis on stringent review and approval of restrictive interventions.
Monitoring and Follow-Up
67. The State shall develop and implement an effective system to regularly monitor each resident's skills training and positive behavioml support plans. The monitoring of the skills training and positive behavioral support plans shall produce prompt and effective follow-up action to ensure that: (a) the direct care staff are effectively implementing the skills training and behavior support plans, (b) the skills training and behavior support plans are effective and producing training and treatment outcomes specified in each resident's plan, and (c) where the residents are not making progress, the skills training and behavior support plans are modified appropriately and whenever necessary, and implemented promptly thereafter.
68. This monitoring system shall include tracking of systemic and individual outcome measures, with variables including, but not limited to: the incidence of resident behaviors, the use of restraints, the use of emergency procedures, and the implementation and monitoring of behavior plans. The State shall promptly and effectively address any systemic or individual problems identified through monitoring.
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Priority Group
69. Based on the assessments and the monitoring, the State shall create a list of behavioral priority residents for heightened and enhanced attention and focus. This priority group shall consist, at least, of those residents who have already had a planned or unplanned mechanical, physical, or chemical restraint, those residents with a dual diagnosis of mental illness, those residents with significant or challenging behavior problems, as well as those residents who sustain or cause frequent injuries or are at risk of serious harm due to their behaviors.
70. In close consultation with outside consultants, as appropriate, the State shall prioritize these residents for the development and implementation of alternative and/or more tailored and intensive protections, supports, and services, where appropriate, through augmented and enhanced skills training and habilitation, positive behavioral supports, mental health care, and other interventions and treatment modalities, including an increased emphasis on community living and/or more structured,. meaningful, and integrated habilitative activities in the community. These protections, supports, and services shall meet the resident's individualized needs without relying on the use of restraints. The intent here is to minimize or eliminate the triggers for behaviors, minimize or eliminate the behaviors themselves, and minimize or eliminate the use of restraints.
71. The steps necessary to achieve such positive outcomes for the residents in this priority group may include: daily interdisciplinary team meetings, regular contact with outside consultants, as appropriate, close observation of the residents and their staff, daily competencybased training of staff with regard to how to properly implement needed interventions, regular revision of plans and approaches, changes in the living environment, more frequent contact with people in the community in normal settings, and more meaningful and engaging day activities in the community.
Restraints
72. The State shall ensure that all residents are free from unreasonable restraint. The State shall develop and implement effective measures to minimize significantly or eliminate entirely the use of mechanical, physical, and chemical restraints on BSDC residents. The State shall ensure that restraints are not used as punishment, in lieu of habilitation, skills training and behavior support plans, or for the convenience of staff. Any restraint used will be the least restrictive form of restraint.
73. Restraints shall not be a part of any positive behavioral support plan and restraints shall not be used as a learning-based contingency to reduce the frequency of a behavior. Restraints may only be used for medical reasons or when there is immediate risk of harm to self or others (i.e., to interrupt or terminate a seriously dangerous situation where injury could result). The State shall revise its policy definition of immediate risk of harm to self or others to ensure that the justified use of restraints is minimized. The State shall ensure that restraints labeled as
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"medical" restraints are not, in fact, used for behavioral purposes or control. The State shall continue to prohibit the use of all prone physical and mechanical restraints.
74. In order to minimize or eliminate the use of restraints generally, the State shall ensure that the staff are adequately and appropriately implementing all aspects of each resident's overall individualized plan, including aspects related to positive behavioral supports, skills training and habilitation, mental health care, and integrated community living and activities. The State shall ensure that the supervisory and professional staff are regularly monitoring the individualized plans and their implementation to ensure that the plans and their implementation are effective and producing the desired reduction or elimination in the use of restraints. Where plan modifications are needed to address a resident's restraint usage, the State shall ensure that appropriate plan revisions are promptly developed and implemented.
75. The resident's psychologist shall begin the regular practice of reviewing, by the next working day, each use of mechanical, physical, or chemical restraint (excluding planned medical restraints), so as to ascertain the circumstances under which such restraint was used. The psychologist will conduct an analysis ofwhat antecedents or circumstances may have prompted the behavioral escalation that led to the use of restraint. The psychologist shall analyze at least these variables: whether the behavior plan as written and/or implemented is effective in addressing the resident's behaviors; whether the living environment is overly restrictive and segregated; whether the living environment is overly crowded and/or fosters conflict with too much exposure to other residents prone to behaviors; whether there is adequate skills training, habilitation, and/or meaningful community activities throughout the day; and whether the resident is receiving adequate and appropriate treatment for his or her mental illness. The psychologist will then promptly develop, and the staffwill implement, individualized measures to minimize or eliminate such antecedents or circumstances.
76. If any resident is subjected to three or more restraints within a 30-day period, the State will convene a meeting of the resident's interdisciplinary team, including the psychologist, to conduct a comprehensive review ofthe effectiveness and appropriateness of the resident's existing protections, supports, and services. This team meeting shall take place on the first working day following the third restraint. The team meeting shall include the input and analysis of outside consultants whenever possible. The team shall promptly develop, whenever necessary, alternative and/or more tailored and intensive protections, supports, and services that meet the resident's individualized needs, but that do not rely on the use of restraints. The team shall make specific recommendations and shall document these recommendations in the resident's record, making changes in the resident's individualized plan whenever necessary. These recommendations in the revised plan shall be implemented promptly and properly to meet the resident's plan.
77. The parties anticipate that the use of mechanical, physical, and chemical restraints at BSDC will become a very rare occurrence. When utilized, however, staffshall take the following steps and precautions:
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a. provide immediate notification to an on-site supervisor upon the use of any restraints;
b. provide notification to and obtain the approval of a psychologist and/or nurse if any restraint is applied for longer than one hour, and upon each hour thereafter;
c. ensure that a nurse provides a timely assessment that the restraint is being safely applied and is reasonably tailored to the resident's behavior;
d. provide continuous monitoring of the resident while restrained to ensure safety; ensure that a nurse or senior supervisor monitors and documents the residents' vital signs, respiration, circulation, and mental status at least every hour the resident is restrained; release every restrained limb from restraint, examine it for bruising and skin tears, and allow exercise of the limb at least ten minutes every hour; provide the restrained resident with an opportwrity to eat, drink fluids, and toilet, as needed; provide every resident in restraint with continuous one-to-one supervision; and
e. release every restrained resident from restraint as soon as the resident is determined not to pose an immediate risk of harm to self or others.
78. The State shall ensure that staff are adequately trained on the proper use ofrestraints.
79. The State shall document each use ofmechanical, physical, and chemical restraint, including the date and time ofuse, the events leading to the restraint, the exact type of restraint or procedure used, as well as the length oftime it was used. Documentation ofeach use of restraint shall be kept in the resident's file and in a central location.
80. The State shall ensure that chemical restraints meet appropriate levels of approval and oversight by a psychiatrist, psychologist, and physician prior to their administration. Staff shall collect adequate data on the effects, as well as adverse side effects, of each individual administration of such medications. The psychiatrist, psychologist, and physician shall consider
the data collected when making future clinical intervention decisions. The State shall prohibit
the use ofstanding PRN or "stat" orders for chemical restraints.
Pucldqtric Cgre
81. The State shall provide adequate and appropriate routine and emergency psychiatric and mental health services to meet the individualized needs of each resident. These services shall be developed to ensure and protect residents' rights.
Adequate Psychiatry Hours
82. On or before October I, 2008, the State shall procure additional psychiatry hours to meet the mental health needs ofthe residents. The psychiatrist(s) shall be well-respected with a demonstrated history of effectively meeting the needs ofpersons with developmental disabilities
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and a dual diagnosis of mental illness. The State shall provide residents with enough psychiatry
hours to enable the psychiatrist(s) to conduct thorough and complete evaluations, develop carefully considered differential diagnoses, order appropriately tailored treatments, and provide regnlar and sufficient follow-up monitoring to determine whether ordered treatments are, in fact, working to address the residents' underlying mental illness. If such treatments are not working, the psychiatrist(s) shall have enough time to conduct new evaluations, pursue alternative diagnoses and treatments, and monitor and follow-up again. The psychiatrisl(s) shall have enough time to engage in this ongoing practice for all residents, including those residents with challenging behaviors associated with their mental illness. The psychiatrist(s) shall have sufficient time to see all residents frequently enough such that they are receiving effective treatment for their mental illness. The psychiatrist(&) shall have sufficient time such that no primary care physician, physician's assistant, or registered nurse is primarily responsible for providing psychiatric follow-up care.
Psychiatric Assessments and Diagnoses, and Mental Health Treatment
83. The State shall ensure that annually, or more often as needed, the psychiatrisl(s) conducta a comprehensive assessment ofeach resident receiving psychotropic medication and each
resident who has or may have a diagnosis of mental illness. The State shall ensure that for each
resident assessed as having mental illness, the psychiatrist(s) documents a clinically justifmble, differential diagnosis consistent with DSM-IV-TR criteria. No resident shall have a current mental health diagnosis that is not clinically justified in the record.
84. The State shall ensure that the psychiatrist(s) develops and implements an overall mental health treatment plan for each resident with a diagnosis of mental illness, and provides ongoing monitoring and revision of the treatment plan. Any treatment must comport with the mental health diagnosis. The psychiatrist(s) shall ensure that there is proper coordination and integration of psychiatric services with other services and treatment modalities, including those in psychology, neurology, nursing, medical and health care, and other ancillary services.
Psychotropic Medication
85. On or before January l, 2009, the State shall implement and maintain the following requirements with regard to the use of psychotropic medication:
a. Prior to developing and implementing an appropriate treatment plan, the psychiatrist(s) shall review the current medication regimen of each resident to determine
whether the type and dosage of the medication is appropriate and necessary, and then, if
necessary, make any changes in the medication regimen.
b. The psychiatrisl(s) shall use psychotropic medication only as an integral part of the resident's individualized skills training and positive behavioral support plans.
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c. The psychiatrist(s) shall carefully review the medication regimen ofresidents where current doses are above the generally accepted effective dose for any particular medication.
d. The psychiatrist(s) shall consult with the assigned psychologist and interdisciplinary team to determine whether the existing skills training and behavioral support plans are appropriate and whether different programs or interventions should be developed to address the resident's index behaviors and symptoms so as to reduce or eliminate the need for psychotropic medications.
e. The psychiatrist(s) shall consult with the resident's primary care physician, nurse, or other appropriate members of the resident's interdisciplinary team, to determine whether the harmful effects of the resident's mental illness clearly outweigh the possible harmful side effects of the psychotropic medication and whether reasonable alternate treatment strategies are likely to be less effective or potentially more dangerous than the medication.
f. The psychiatrist(s) shall ensure that the decision-making process for titrating medications up or down is clearly and fully set forth in each resident's record.
g. The psychiatrist(s) shall ensure that there is a clear and full justification for the nse of any typical or "first-generation" anti-psychotic medications.
h. The psychiatrist(s) shall take care to reduce or discontinue benzodiazepines and
anticholinergic medications that have been used for longer periods of time than are
justified by the resident's psychiatric diagnosis.
i. The use of intra-class polypharmacy shall be minimized, and whenever it is used, the psychiatrist(s) shall fully justifY its use in that resident's treatment plan.
86. The State shall better educate guardians about proper mental health care and address their concerns when medication changes are needed to meet residents' needs.
Monitoring and Follow-Up
87. The State shall develop and implement an effective system to ensure that the psychiatrist(s) regularly monitors the residents with mental illness whenever needed, and make changes, when warranted, in the residents' treatment plans. For those residents who receive psychotropic medication, this monitoring shall be face-to-face, and shall be conducted quarterly by the psychiatrist(s), or more often as necessary based on the residents' current status and/or changing mental health needs. The monitoring review shall include a review of any current psychotropic medication provided, as well as a review ofthe pertinent behavioral and other data. Whenever necessary, the psychiatrist(s) shall provide a psychiatric re-assessment and revision to the treatment plan, as appropriate, for each resident who: i) presents a significant adverse
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change in symptoms/index behaviors; ti) an increase in significant injuries or incidents related to symptoms/index behaviors; or iii) is subjected to an increase in repeated restraint due to a significant adverse change in symptoms/index behaviors.
88. The State shall maintain an adequate system for detecting, reporting, responding to, and documenting any drug-induced side e.ffucts of psychotropic medication. The State shall provide effective competency-based training for staff that complete side effects monitoring forms.
Chemical Restraint
89. Consistent with the restraint section above, when psychotropic medication is used on an emergency basis, a supervisor shall be notified immediately, there shall be continuous monitoring of the resident after administration of the medication, and a physician shall observe the effect of the medication by personally visiting the resident or directing supervision by a registered nurse. A psychiatrist shall review the use within 24 hours of the order being written if there are multiple administrations of the medication or if more than one order is written for different medications. The psychiatrist shall develop and implement measures to help prevent the emergency use of psychotropic medication in the future.
D. HEALTH CARE AND RELATED SERVICES
Prlnc/JHII Reqlfirement
90. The State shall provide residents with adequate, appropriate and timely preventive, routine, acute, and emergency health care, including neurological care, to meet the individualized needs of the residents. The State shall develop and implement policies to guide the delivery of general and preventative medical care to meet the needs of the residents and require appropriate physician participation in the interdisciplinary provision of services and the creation ofresidents' individualized plans.
Atlegllqte Heq/tb Cqre Staffing
91. The State shall maintain sufficient numbers of adequately trained health care staff, including physicians and nurses, on each shift to provide adequate protections, supports, and services to residents at all times. The State shall take effective steps to reduce reliance on temporary or floating health care staff, who may not be as familiar with the particular needs of individual residents. The State shall place a heightened focus on ensuring that new and temporary floating health care staffare properly trained on individualized resident needs before assignment to any particular unit.
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Medical Care
Health Care Assessments, Diagnoses, Treatments, and Follow-Up Monitoring
92. The State shall have a physician conduct comprehensive health care evaluations of all residents, and repeat at annual intervals unless required more frequently by each resident's condition. The assessments shall be sufficient to enable the physician to reach a reliable diagnosis, ifapplicable, for each resident. The State shall develop and implement a system to ensure that referrals and testing procedures are completed and results are placed in the residents' medical record in a timely manner. For each resident assessed as having a health care concern or concerns, a physician shall document a clinically justifiable health care diagnosis for each ofthe resident's conditions. Based on the comprehensive medical assessment, the State shall ensure
that a physician develops for each resident an integrated health care plan to address any health
care conditions revealed through the assessment process. The State shall ensure that each resident's health care plan is implemented properly, day-to-day, to meet each resident's individualized health care needs.
93. To assist implementation efforts, the State shall take effective steps to improve communication among disciplines and departments at BSDC to eliminate confusion and fragmentation of care. To assist with this, the State shall continue to require medical staff members, including physicians and nurses, to participate in interdisciplinary team meetings. In addition, the State shall take effective steps to simplify and streamline charting, documentation, and record-keeping, with a goal of enhancing interdisciplinary communication and coordination to enhance timely service-delivery and continuity of care.
94. The State shall have a physician determine what specialized health care services, including neurological services, are required for each resident and ensure that each resident receives such specialized health care services in a timely manner whenever necessazy to evaluate or treat each resident's health care problems.
95. The State shall develop and implement an effective system to regularly monitor each resident's health status and progress and develop and implement changes, whenever warranted, in each resident's health care plan. The State shall establish a health care quality assurance program that actively collects data relating to the quality of health care services, assesses these data for trends, initiates inquiries regarding problematic trends and individual issues, identifies and triggers corrective action, and provides ongoing monitoring to ensure that appropriate remedies are achieved.
96. The State shall develop and implement a plan to conduct regular internal chart audits with regard to the delivery of effective health care to residents. If any problems or concerns are identified as a result of any audit, the State shall promptly develop and implement corrective measures, both for individual and systemic issues.
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Priority Group
97. Based on the assessments and the monitoring, the State shall create a list ofhealth care priority residents for heightened and enhanced attention and focus. This priority group shall consist, at least, of those residents who have had a seizure or have a seizure disorder, have developed or are at risk of developing a bowel impaction or bowel obstruction, have aspirated or are at risk ofaspirating, have developed a decubitus ulcer or skin breakdown or are at risk of developing a decubitus ulcer or skin breakdown, and have suffered a fracture or are at risk of suffering a fracture, including those residents with osteoporosis. The State shall include in this priority group any other resident who is in an at-risk group or is at-risk of suffering an incident that would adversely impact his or her health.
98. In close consultation with outside consultants, as appropriate, the State shall prioritize these residents for the development and implementation of alteroative and/or more tailored and intensive protections, supports, and services, where appropriate, that meet the residents' individualized needs. The intent is that the State will develop and implement strategies to provide proactive health care such that resident seizures, bowel impactions and obstroctions, aspiration and aspiration pneumonia, decubitus ulcers and skin breakdown, fractures, and the adverse consequences ofother at-risk conditions will be minimized or eliminated.
99. The steps necessary to achieve such positive outcomes for the residents in this priority group may include daily interdisciplinary team meetings, regular contact with outside consultants, as appropriate, close observation of the residents and their staff, daily competencybased training of staff with regard to how to properly implement needed interventions, regular revision of plans and approaches, and changes in the living environment.
Seizure Disorders
100. The neurologist(s) shall identify all residents currently receiving anticonvulsant medication, residents with an existing diagnosis ofepilepsy, and residents who have had at least one seizure in the past two years, and provide them with a comprehensive evaluation using a detailed diagnostic work-up conducted by a neurologist, at least annually, or more frequently as required by each resident's condition.
101. The neurologist(s) shall ensure that those residents with refractory seizures, i.e., those having more than 10 seizures in one year, receive appropriate and effective neurological interventions.
102. The neurologist(s) shall document the rationale and need for anticonvulsant medication in all cases, with a special emphasis on those residents receiving anticonvulsant polypharmacy, and document whether the potential harmful effects of the anticonvulsant medication on a resident's quality of life outweigh the potential benefits of the use of the medication. The neurologist(s) shall ensure that it is still appropriate for each resident currently receiving anticonvulsant medication, but who has remained seizure-free fur the past two years, to continue
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to receive the anticonvulsant medication. For each resident receiving medications for both seizures and a mental health disorder, the psychiatrist(s), the neurologist(s), and the interdisciplinary team shall coordinate the appropriate and continued use ofsuch medications. The use of intra-class polypharmacy shall be minimized, and whenever it is used, the neurologist(s)/psychiatrist(s) shall fully justify its use in that resident's treatment plan.
103. The State shall develop and implement a system that ensures the accurate and timely recording of seizures for each resident including the following information: the date and time of the onset of the seizure; the duration ofthe seizure; a description of the seizure; an indication as to whether or not the resident is conscious or unconscious; if unconscious, the onset of the unconsciousness and the duration of the period(s) of unconsciousness; any medical or other steps taken to control the seizure; and the resident's response to the intervention. All staff, including nursing and direct care staff, shall be provided with competency-based training in recognizing a seizure, describing the seizure and length of time it lasts, and recording that information in the residenfs record.
I04. The State shall develop and implement an emergency protocol for the proper treatment of status epilepticus and provide competency-based training to the staff on how to implement it
Peer Review
105. On or before January 1, 2009, the State shall create a peer review system with regard to the provision of health care services to residents. The peer reviewers shall be iudependent and external to BSDC and shall include individuals who are not employees of the State Department of Health and Human Services. The peer reviewers shall be well-respected health care consultants who have a demonstrated history of effectively meeting the health care needs of persons with developmental disabilities. Peer review of the provision of health care shall take place at least once a year. The peer reviewers will review a limited sample ofplans from each physician or other primary health care provider. The review will include a targeted review of plans for residents in the health care priority group. Promptly after each peer review, the State will develop and implement measures to address all individual and systemic issues identified in the peer review process.
Mortality Review
106. On or before November I, 2008, the State shall create an independent and external mortality review committee, comprised of well-respected health care consultants who have a demonstrated history ofeffectively meeting the health care needs of persons with developmental disabilities. The members of the mortality review committee shall be independent and externsl to BSDC, and shall not be employees of the State Department of Health and Human Services. The consultants who serve on the mortality review committee rnsy also serve on the health care peer review committee. The purpose of the mortality reviews is to identify and promptly resolve any preventable causes of illness and death so that other similarly situated residents will not suffer preventable illness or death.
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I07. The mortality review committee sball meet promptly after each resident death to address individual and systemic issues related to each death. The committee sball have full and complete access to pertinent health care records and other documents, physicians and primary health care providers, and staff. The committee shall conduct appropriate interviews, and review and discuss any necessary supporting documentation related to the course ofcare leading up to each death, including: the death incident report, the completed death investigation, documents from the resident's chart, any autopsies that may have been performed, and reviews from all pertinent disciplines.
108. The committee sball identifY preventable causes of illness and/or death, if any, in each individual case. The committee sball make written recommendations fur remedial action, whenever appropriate, with regard to individual and systemic issues related to the death. The State shall ensure the prompt and effective implementation of all ofthe committee's recommendations. The mortality review committee shall continue to monitor all recommendations for remedial action until they are implemented.
National Health Care Organizations
109. The State shall take effective steps to encourage health care staff to become more actively involved in national health care organizations, especially those that focus on providing proactive health care to persons with developmental disabilities. The intent of this provision is that more involvement and engagement with national health care organizations may lead to better health care for residents.
Nursing Cqre
110. The State sball provide residents with adequate, appropriate and timely nursing care to meet the individualized needs of the residents. Nurses sball perform their responsibilities by adequately identifYing and assessing health care problems, developing and implementing appropriate interventions, monitoring and intervening to ameliorate such problems, evaluating the appropriate outcome for the problems, and keeping appropriate records of residents' health care status.
Ill. The State sball develop and implement policies to guide the delivery of nursing care to meet the residents' needs with regard to conducting assessments, frequency of follow-up, and documentation for changes in residents' health statns. The State shall develop and implement policies that require nursing participation in the interdisciplinary provision ofservices and the creation ofindividualized nursing care plans as part ofresidents' individualized plans. Nurses shall participate as core members ofthe interdisciplinary team. These policies shall include a formal communication system to alert all team members and health care providers to changes in a resident's health status, and documentation ofreasons for the discontinuation of any team recommendations.
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112. Nursing interventions shall be developed and implemented whenever needed, and especially for the following situations: (a) when a resident sustains an injury; (b) when a resident is restrained; (c) when medications are administered; (d) for the ongoing care ofa resident's tracheotomy tube; (e) when a resident has a skin care and/or positioning and/or nutritional and physical management plan; (t) when a resident has or is at risk of developing a decubitus ulcer; (g) when a resident is at risk of a bowel impaction or obstruction; (h) when a resident presents any other risk factor; (i) when a resident suffers a significant weight loss/gain or is at risk of significant weight loss/gain; and G) when a resident is enterally fed.
113. The State shall develop and implement an effective system to regularly monitur tbe residents' health care outcomes and make and implement changes in the residents' nursing care plans and interventions whenever warranted given the residents' needs.
114. The State shall provide nursing staffwith ongoing competency-based training with regard to the following: (a) appropriate documentation and description of a resident's status when the resident leaves the filcility and upon the resident's return; (b) role of the nurse in the interdisciplinary team process; (c) functional programming and habilitation; (d) proper development and implementation ofthe nursing care plans; (e) proper documentation and treatment of decubitus ulcers, including tbe description and the stage of the ulcer; and (t) proper documentation and treatment of significant events.
115. The State shall develop and implement a nursing Performance Management Process to monitor nursing assessments and documentation. Where problematic trends are identified, the State shall timely develop, implement and monitor a corrective action plan given the residents'
needs.
116. The State shall administer medications tc residents safely and effectively. When a medication error occurs, the State shall investigate the error, document it and take appropriate corrective action, including supervision and training.
117. The State shall ensure tbat nurses and other health care and direct care staff observe proper infection control procedures.
118. The State shall develop and implement a policy on the proper procedure for emergency tracheotcmy care and replacement tbat includes competency-based stafftraining. The State shall provide an adequate and appropriate replacement tube of correct size and length which is easily accessible to each resident with a tracheotomy.
119. The State shall develop and implement a protocol for documentation of caloric, protein, water, and/or fluid intake requirements to ensure tbat residents, including those who are enterally fed, are receiving the prescribed nutrition and fluid intake to meet their individualized needs.
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Nutritjo1Hli qntlllffsicqlSupports/Therqpeutic lntgventiom
120. The State shall provide each resident with effective, appropriate, and timely nutritional and physical supports to meet the individualized health care needs of each resident.
Interdisciplinary Nutritional and Physical Support Team
121. The State shall ensure that an interdisciplinary team qualified to address nutritional and physical support issues addresses residents' global nutritional and physical support needs. The State shall ensure that the team meets on a regular basis, and includes representation from various disciplines as required to meet the individualized needs of the residents including, nursing, a physician, nutrition, psychology, occupational therapy, speech therapy including a specialist in dysphagia, respiratory therapy, and physical therapy, as well as certain direct care workers from the particular resident's unit, and any other necessary specialists.
122. The team shall identify each resident who has a nutritional and physical support need, or nutritional support problem, including all residents who are at risk of choking and/or aspirating, have dysphagia, difficulty swallowing, chewing, or retaining, food or liquids, have had aspiration pneumonia or other recurrent pneumonias, all residents who cannot feed themselves, any resident who currently receives or is a candidate to receive a feeding tube, and any resident with other medical or health care problems related to nutritional and physical support.
123. After the team members contribute comprehensive assessment(s) of the resident's individualized needs to identify the causes for the nutritional and physical support problem(s), the team shall provide an analysis ofthe assessment(s) in a written comprehensive, coordinated nutritional and physical support action plan (hereinafter called "action plan") to meet the individualized needs of the residents and that adequately addresses the resident's positioning and nutritional support ueeds throughout the day. The analysis and action plan shall describe antecedents and interrelationships ofthe occurrence ofphysical and nutritional health risk
indicators. The action plan shall be implemented for each resident and shall address proper
mealtime/eating techniques and positioning ofthe residents during meals (including snacks), drinking, tooth brushing, dental exams, medication administtation, bathing, nighttime/bedtime, and other routine activities that are likely to provoke nutritional and physical support problems. The plan shall include support sttategies to anticipate, minimize, or remediate these concerns with written documentation of measurable, functional outcomes to be achieved.
High Risk Criteria, Oversight
124. The State shall develop and implement criteria by which residents at the highest nutritional and physical risk are identified and assessed by the interdisciplinary nutritional and physical support team with regard to nutritional and physical support needs on an ongoing basis. The State shall prioritize these residents for the development and implementation ofalternative and/or more tailored and intensive protections, supports, and services, where appropriate, that meet the residents' individualized needs.
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125. The State shall develop and implement a system to provide review and oversight of at-risk residents so that those identified as at highest risk may benefit promptly from comprehensive nutritional and physical supports. The system shall clearly defme and docmnent the oversight role with regard to ensuring the effectiveness of implementation strategies. The system shall develop and implement a methodology and clearly defined policies and procedures related to follow-up and docmnentation to ensure that individualized outcomes are achieved.
Meals, Eating, Drinking. Plan Monitoring
126. The State shall develop and implement a system to ensure that staffdo not engage residents in any mealtime/eating practice that poses an undue risk of harm to any resident, including assisting a resident to eat or drink who is improperly positioned or aligned, assisting a resident to eat or drink while the resident is coughing or exhibiting distress, assisting a resident to eat or drink with bites that are too large and/or faster than he or she can safely chew or swallow food and/or liquids. The State shall ensure that non-ambulatory residents shall be kept in proper alignment and shall not be laid flat on their backs during or after a meal until sufficient time has passed to allow digestion of food and/or liquids.
127. The State shall systematically and routinely monitor the implementation of the plans to
ensure that the direct care staff safely and appropriately assist residents to eat and position the residents, especially for those residents who are at risk of aspirating, and to ensure that residents' nutritional and physical support plans are working effectively to meet the individualized needs of the residents to ameliorate the residents' physical and nutritional difficulties. The State shall ensure that all stafffollow the instructions for each resident contained on the resident's nutritional and physical support plans.
128. The State shall develop and implement a system to ensure that staff assist residents with proper head alignment and other techniques during tooth-brushing, dental exams, and medication administration to minimize aspiration risk. The State shall ensure that there is proper coordination with dental and nursing personnel to accomplish this, and ensure that staff use proper infection control techniques during tooth-brushing to minimize risks of cross-contamination.
129. The State shall ensure that residents who use a feeding tube are fed through the tube only when medically necessary. The State shall evaluate and docmnent the continued appropriateness of the tubes on a regular basis, and, where appropriate, develop and implement plans tu return residents to oral eating and drinking. The State shall ensure that residents who take nutrition through a tube are provided with proper postural alignment and with adequate supervision to intervene whenever needed, especially if the resident is coughing during a tuhe feeding.
Therapy and Related Services
130. The State shall provide each resident with adequate, appropriate and timely occupational therapy, physical therapy, speech therapy, assistive technology support and physical assistance
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support services to meet the individualized needs of the residents, to enhance the capacity of the residents to function, and to help the residents live safely and as independently as possible.
Assessments
131. The State shall identify and provide a comprehensive assessment of all residents who are in need of occupational therapy, physical therapy, speech therapy, assistive technology and physical assistance supports. Such assessments shall address: diagnoses and/or description of significant health care issues; health risk indicators; orthopedic concerns; musculoskeletal status, posture' functional mobility; functional performance ofactivities ofdaily living; communication; impact of health care issues on performance and therapeutic intervention; description of current therapeutic supports, which include mealtime, positioning and alignment, and assistive technology; and shall include baseline measurements where appropriate. Comprehensive assessments shall include analysis of findings to provide a rationale for recommendation and intervention strategies.
132. The State shall conduct a comprehensive assessment of all residents who use mobility, alternative/ therapeutic positioning, or other assistive technology supports (hereinafter, in this section, called "supports"). These assessments shall be completed in an interdisciplinary manner, including appropriate therapy staff and other appropriate staff, as well as direct care staff persous who know the resident well. Such assessments shall occur as frequently as needed to meet the individualized needs of the residents.
Implementation
133. The State shall develop and implement occupational therapy, physical therapy, speech therapy, assistive technology and physical assistance supports for all residents in need of such services as an integral part ofthe residents' individualized service plans. These supports shall have functioual outcome goals and expectations that are measurable and which shall be implemented so as to document observable changes in a resident's function as a result of therapy intervention. The State shall conduct a comprehensive review of any existing occupatioual therapy, physical therapy, speech therapy, assistive technology or physical assistance supports for residents and determine whether these supports adequately meet the needs of the residents and are working as intended. The State shall develop and implement new or modified individualized service plans to meet the individualized needs of each resident identified in the assessments.
134. The State shall develop and implement the supports based on the comprehensive
assessments so as to ensure that the supports and positioning are promoting good body alignment and functional health status. The State shall ensure that for residents with physical and nutritional problems, the supports mitigate the occurrence of aspiration and support other therapy goals for each resident based on the individualized needs of each resident. Proper supports and positioning are to be integrated into the resident's activities throughout the day.
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Monitoring, Quality Assurance
135. The State shall systematically and routinely monitor the implementation of all of the aforementioned direct and indirect therapy supports to ensure that they are working effectively to achieve specific, measurable outcomes. The State shall develop and implement changes, whenever warranted, in the residents' supports and interventions to meet the individualized needs of the residents. The State shall adequately document direct therapy supports and interventions to justify initiation, continuation or discontinuation of such services to determine a resident's progress and the efficacy of treatment interventions. Direct therapy supports and interventions shall be documented and a monthly summary should identify the resident's status, progress and a comparative analysis of progress over time. Implementation of indirect therapy supports shall be documented at least quarterly per the individualized service plan.
Assistive Technology and Supports
136. The State shall develop and implement a quality assurance system for speech, occupational and physical therapy supports and services to self-monitor for quality improvement so as to achieve functional outcomes for residents.
137. Residents shall be provided with necessary identified assistive technology supports such as: (a) individualized, properly fitted seating systems that provide support and aligmnent for function that is optimal for that resident; (b) appropriate footwear while in such seating systems unless there is clearjustification documented in the resident's record; and (c) seatbelts on wheelchairs and other mobility devices are appropriately positioned and adequately secured whenever appropriate to meet the needs of the residents. All supports shall be maintained in good working order and shall be repaired whenever necessary.
Alternate Positioning, Lifts and Transfers
138. The State shall develop and implement effective alternative positioning options for residents.
139. The State shall develop and implement a system to ensure that staff utilize appropriate lifting and transfer techniques.
Speech Therapy and Communication
140. With regard to speech therapy and communication, the State shall ensure that, on or before March 1, 2009, a qualified speech language pathologist with expertise in augmentative and alternative communication conducts comprehensive assessments of residents who need speech therapy and/or communication supports, develops and implements plans based on these assessments and monitors the implementation of the plans on an ongoing basis to ensure that
they meet the individualized needs of the residents. The State shall ensure that such plans are
reviewed and revised, as needed, but at least annually. The State shall develop and implement a
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screening and evaluation tool and process designed to identifY residents who would benefit from the use of alternative and!or augmentative communication devices or systems.
I I I I I I I I I I I I I I
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8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 36 of 41 - Page ID # 63

I, on behalf of the undersigned parties, hereby execute and consent to the entry of this Consent Judgment.
Respectfully submitted,
UNITED STATES OF AMERICA, Plaintiff

Date: June 26. 2008

By:

lsi Grace Chung Becker

GRACE CHUNG BECKER [D.C. Bar#447313]

Acting Assistant Attorney General

United States Department of Justice

Civil Rights DiVlsion

950 Pennsylvania Avenue, NW

Washington, DC 20530

Date: June 26. 2008

And:

lsi Shqne(tq Y. Cutlar SHANETTA Y. CUTLAR [Cal. Bar#l69849}
Chief, Special Litigation Section 950 Pennsylvania Avenue, NW
Washington, DC 20530

Date: June 26. 2008

And:

/s~n 0. Tqvloe. Jr.

BENJ

liTAYLOE, JR. [D.C. Bar#425691}

Special Counsel, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, DC 20530

Date: June 26. 2008

And:

Is/ RichqrdJ. Farano
RICHARD J. FARANO [D.C. Bar#424225] MARINA MAZOR [D.C. Bar#479952] Attorneys
United States Department ofJustice Civil Rights DiVlsion Special Litigation Section 950 Pennsylvania Avenue, NW PHB - Room 5020 W~on,DC 20530 Tel: (20~) 307-3116
Fax: (202) 514-0210
richard.farano@usdoj. gov

Date: June 30. 2008

And:

Is/ Joe W, Stecher
JOE W. STECHER, #17802 United States Attorney
District ofNebraska
1620 Dodge Street, Suite 1400 Omaha, NE 68102-1506 Tel: (402) 661-3700 Fax: (402) 661-3083 joe.stecber@usdoj.gov

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8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 37 of 41 - Page ID # 64

Date: June 30. 2008

uMo Date:

f"

THE STATE OF NEBRASKA, Defendant
JON BRUNING, #20351 Nebraska Attorney General State Capitol, Room 2115 Lincoln, NE 68509-8920

And:

Is/ Jodi M. Fennner

JODI M. FENNER, #22038

Special Assistant to the Attorney General

Nebraska Department of Health

and Human Services

P.O. Box 95026

Lincoln, NE 68509

(402) 471-8609

(402) 742-2314 (facsimile)

jodi.fenner@dhhs.ne.gov

And: DAVE HEINEMAN Governor State ofNebraska

And:

CHRIS

TERSON

Chief Execu ve Officer

Nebraska Department of Health

and Human Services

P.O. Box 95026

Lincoln, NE 68509

And:

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8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 38 of 41 - Page ID # 65

WHEREFORE, the parties to this action having agreed to the provisions in the Consent

!;t , . ... Judgment sec forth above, and the Court being advised i.n the premises, this Consent Judgment is

hereby entered as the Order and Judgment ofthis Court.

It• "-

It is so ordered, this~ day of "3"'

~ ..,/
2008, at O:rbo, Nebraska.

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8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 39 of 41 - Page ID # 66

John J. McGee, Ph.D. Independent Expert

BUDGET-FY 2008-2009

June 13, 2008

This budget outlines the financial resources needed to fulfill the range of duties of the Independent Expert (IE} In FY 2008-2009, pursuant to the Settlement
Agreement between the parties to be filed with the federal court. This budget will
be effective from July 1, 2008 through June 30, 2009. There may be a need for flexibility with regard to individual line items as some anticipated costs may end up being greater or less than that set forth below. The parties agree that the IE
- may-exceed-a partieular·line·item,-but·w111 not exceed-the overall budget-totaL
1. IE Peraonnel Independent Expert (IE}:
• 80 hours/month@ $150.00/hour = $12,000.00/month x 12 months
= $144,000.00 Assistant to the IE
• 80 hours/month @ $60.00Jhour = $4,800.00hnonth x 12 months= $57,800.00
= Quality Control Analyst
• 80 hours/month@ $25.001hour $2,000.00hnonth x 12 months=
$24,000.00
• Sub-Total $225,800.00
2. Automobile Transportation Related to IE Dutlea
• Automobile leasing@ $380.00hnonth x 12 months= $4,560.00 • Gas mileage@ $0.505 cents/mile (federal rate) x 250 miles/month
= = $126.25hnonth x 12/months $1,515.00
Sub-Total: $8,075.00
3. IE Lodging
• lnvoices'wlll be submitted for actual cost and every attempt will be made ·l:b.•Y in lodging with a state rate. I anticipate overnight
stays of 3 deys/month@ $80.00/day) x 12 months: • Sub-Total: $2,880.00
4. Meals Related to IE Duties
• 3 days/month x $39.00/day (federal rate} x 12 months
• Sub-Total: $1,4Q4.00

Budget ror r~ooe -2009
1

,

-

-

-

-

-

-

-

-8-:0-8---cv--0-0-2-7-1--RGK--D-LP-D-oc-#-10-F-ile-d:

-07/-02-/08-P-ag·e

40
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of 41
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- Page ID #
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67

!

I

I .

John J.McGee, Ph.D. Independent Expert

June 13, 2008
5. Suppliea Related to IE Duties • The IE requires monthly consumable supplies for the fulfillment of obligations pursuant to this position. The projected monthly cost is $100.00/month x 12 months • Sub-Total: $1 ,200.00
6. Communications Relat&d to IE Dutiea The IE requires copying of documents. overnight and regular mail to the parties and other relevant persons, a post office box, and faxing. • PO Box: $280.00/year (about $23.00/month) • Routine copying: $1,500,00/year(about$1-25.00/month} • Mailing: $750.00/year (about $62.00/month} • Cellular: $828.00/yr (about $69.00/month) • Sub-Total: $3,368.00
7. Consultants Relal8d to IE Dutiea
The IE requires the ability to contract with consultants to fulfill the duties of
the office as described In the Settlement Agreement Every effort will be made to acquire consultative services through Nebraska-basad experts in the particular disciplines necessary to fulfill the requirements of the Agreement. Consultations will be necessary in various disciplines, including, for example, pn:»ection from harm, behavioral services, madlclne, psychopharmacology, psychiatry, neurology, nursing, nutrition, physical therapy, occupational therapy, and speech-communication therapy. Every effort will be made to use qualified consultants with multi and cross-discipfinary expertise. This should result in abo~ consultants who will wot* with the IE to perform quarterly reviews pursuant to the Settlement Agreement.
The IE will work collaboratively with the parties to select the consultants.
These consultants will submit their reports to the IE for his review in
preparation of the quarterly report.
Although the number of consultants and the daily rate may vary, for purposes of this budget, I will assume that I will utilize five consultants at $1 ,200.00/day:
• 5 experts x 20 days/year@ $1,200/day = $120,000.00 • Sub-total: $120,000.00

Budget for IS-2008 -2009
2

8:08-cv-00271-RGK-DLP Doc # 10 Filed: 07/02/08 Page 41 of 41 - Page ID # 68
r I
I

John J. McGee, Ph.D.

r

Independent Expert

June13, 2008
8. Consulting Supports-Travel, Meals, Lodging, Transportation, Etc. Transportation: If the consultants are from wilhin Nebraska, the federal mileage rate of 50.5 cents/mile will apply. Assuming three vehicles make
four round trips to Beatrice from Omaha (adding local miles for travel in
Beablce) each quarter, the calculation is as follows:
• Car Mileage: 250 miles x $0.505/mile (federal rate)= $126.25
(round trip) x 4 quarters x 3 vehicles= $1,515.00
• Airfare will be required if it is necessary to go outside Nebraska to find consultants. Assuming 2 consultants need airfare at $750.00/each round trip per quarter, tha calculation Is as follows:
· -$150.00 x 2experts x4quarters= $6,QOO,OO ·· ·
Lodging: Invoices for experts will be submitted for actual cost and every effort will be made to stay in lodging wilh a special state rate.
• I anticipate 5 experts X 20 days @ $60.00/day = $6,000.00
= Meals: Reimbursement will be made at the federal rate of $39.00/day: • 100 days @ $39/day $3,900.00 Sub-total: $19,415.00

Jm.~
Independent Expert

Total; S379.932.00

Budget for IE-2008 ·2009
3

 
 U.S. Department of Justice Civil Rights Division
Assistant Attorney General 950 Pennsylvania Avenue, NW - RFK Washington, DC 20530
March 7, 2008
The Honorable Dave Heineman Governor of Nebraska Office of the Governor P.O. Box 94848 Lincoln, NE 68509-4848
Re: CRIPA Investigation of the Beatrice State Developmental Center, 
 Beatrice, Nebraska 

Dear Governor Heineman:
I am writing to report the findings of the Civil Rights Division’s investigation of conditions and practices at the Beatrice State Developmental Center (“BSDC”), in Beatrice, Nebraska. On May 29, 2007, we notified you that we were initiating an investigation of BSDC pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. CRIPA gives the Department of Justice authority to seek a remedy for a pattern and practice of conduct that violates the constitutional or federal statutory rights of persons with developmental disabilities who are served in public institutions.
On September 6, 2007, we conducted an initial walk-through of BSDC. From October 15-19, 2007, we conducted a more in-depth, on-site review of BSDC with expert consultants in the areas of protection from harm, training and behavioral services, psychiatry, health care, and nutritional and physical management.1 In conducting our on-site investigation, we interviewed administrators, professionals, staff, and residents. We observed residents in a variety of settings, including on their living units, at activity areas, and during meals. Before, during, and after our visit, we reviewed a wide range of documents, including policies, procedures, medical records, and other documents related to the care and treatment of dozens of BSDC residents. At the end of the tour, consistent with our pledge of transparency and to provide technical assistance where appropriate regarding our investigatory findings, we provided an exit presentation to convey our preliminary findings in each area to State counsel and to facility and State officials.
1 On October 14, 2007, we conducted a brief on-site inspection of the Bridges facility, a BSDC-affiliated program for about a dozen persons with developmental disabilities, located in Hastings, Nebraska.

- 2 -
We would like to express our appreciation to the BSDC administrators, professionals, and staff and to the State officials, especially Christine Peterson, Chief Executive Officer of the Nebraska Department of Health and Human Services, and John Wyvill, Director of the Department’s Division of Developmental Disabilities, for their assistance, cooperation, professionalism, and courtesy throughout our investigation. We hope to continue to work with the State and BSDC officials in the same cooperative manner going forward.
Consistent with our statutory obligations under CRIPA, I now write to advise you formally of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to remedy the deficiencies set forth below. 42 U.S.C. § 1997b(a). We have concluded that numerous conditions and practices at BSDC violate the constitutional and federal statutory rights of its residents. In particular, we find that BSDC fails to provide its residents with adequate: (A) protection from harm; (B) training and associated behavioral and mental health services; (C) health care, including nutritional and physical management; and (D) discharge planning and placement in the most integrated setting. See Youngberg v. Romeo, 457 U.S. 307 (1982); Title XIX of the Social Security Act, 42 U.S.C. § 1396; 42 C.F.R. Part 483, Subpart I (Medicaid Program Provisions); Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq.; 28 C.F.R. § 35.130(d); see also Olmstead v. L.C., 527 U.S. 581 (1999).
I. BACKGROUND
BSDC is a State-owned and -operated residential facility for persons with developmental disabilities such as mental retardation, cerebral palsy, and autism. At the time of our initial visit in September 2007, BSDC housed a total of 333 residents; the ages of the residents ranged from 14 to 85. There were 15 residents aged 22-years-old or younger; there were 26 residents aged 65-years-old or older.
BSDC residents live in approximately 25 living units spread across the facility’s campus. At the time of our visit, about six residents resided primarily in the BSDC acute care unit. In addition, there is an eight-bed residential program on campus called the Intensive Treatment Services (“ITS”) unit that admits, on a short-term basis, persons with developmental disabilities who are experiencing temporary difficulties in a home or other community placement. The ITS strives to provide specialized and dedicated treatment and supports for these individuals so that they may return to the community as soon as possible. At the time of our visit, eight persons resided in the ITS.
The Bridges facility is a BSDC-affiliated residential program, located on a separate campus in Hastings, Nebraska. This program treats persons with severe behavioral problems and/or a dual diagnosis of mental retardation and mental illness. The Bridges is a more restrictive residential facility because the individuals served there typically have been involved in serious incidents that led to the involvement of law enforcement. Although it has a bed capacity of 14, at the time of our visit, Bridges served 11 persons with developmental disabilities.

- 3 -
The intellectual abilities of the BSDC residents are varied. The diagnoses of BSDC residents with mental retardation range from mild to profound. The residents possess diverse abilities and functional levels. Some residents require more staffing supports to meet their daily needs, while others are much more independent and capable of meeting their own needs. Many of the residents have swallowing disorders, seizure disorders, ambulation issues, or other health care needs. A significant portion of the BSDC population is medically complex and requires assistance at mealtimes and other frequent monitoring.
There are a number of residents at the facility who have developed maladaptive behaviors, such as self-injurious behavior or aggression. Indeed, almost half of the residents exhibit physical aggression of some sort. At the time of our visit, the facility reported that over 175 BSDC residents had a behavior program and that these programs typically included some form of restrictive component, such as 4-point and 5-point restraints used on residents in beds. In the year prior to our visit, dozens of BSDC residents were subjected to highly restrictive interventions, often on multiple occasions, sometimes for prolonged periods of time. About half of the BSDC residents have been diagnosed as having mental illness, and all but a handful of these residents were receiving one or more psychotropic medications.
II. FINDINGS
A. PROTECTION FROM HARM
The Supreme Court has established that persons with developmental disabilities who reside in state institutions have a “constitutionally protected liberty interest in safety.” Youngberg v. Romeo, 457 U.S. at 318. The Court held that the state “has the unquestioned duty to provide reasonable safety for all residents” within the institution. Id. at 324. However, the state fails to protect BSDC residents from harm and risk of harm and to provide them with a reasonably safe living environment.2
2 Consistent with our findings here, the Centers for Medicare and Medicaid Services (“CMS”) within the United States Department of Health and Human Services has found a number of problems with regard to unsafe conditions and other deficient practices at BSDC in recent years. CMS is a federal agency that is independent from the Department of Justice. On September 29, 2006, CMS conducted a full federal survey of the facility and found numerous deficiencies, including three Immediate Jeopardy citations (the most serious), and seven out of eight conditions of Medicaid participation outstanding. A follow-up survey in April 2007 revealed ongoing deficiencies, including an Immediate Jeopardy citation for inadequate protection of residents, inadequate dental services, and failure to provide adequate food service equipment. A second follow-up survey from October 30 to November 7, 2007, produced an Immediate Jeopardy citation related to substantiated physical abuse allegations, as well as a string of other deficiencies. Ongoing deficiencies imperil the continued distribution of Medicaid funding to the State to provide services for BSDC residents.

- 4 
-
BSDC residents are subjected to abuse and neglect and suffer a high number of incidents that often result in injuries or other poor outcomes. We found consistent patterns of staff actions that often subjected residents to repeated preventable injury. Resolution of problems is hampered by concerns associated with BSDC’s incident reporting and investigation system.

1. Abuse and Neglect of Residents

Our safety consultant concluded that the nature of many abuse and neglect allegations, and the frequency with which they are made, suggests a “cultural undercurrent that betrays human decency at the most fundamental levels ... basic human dignities are violated with considerable regularity” at BSDC.

For the period between October 1, 2006 and October 16, 2007, the BSDC client abuse, neglect, and exploitation log reveals approximately 200 incidents at the facility that in some way involved an allegation of abuse and/or neglect of residents. Facility investigators substantiated the allegation of abuse or neglect, at least in part, in over half of these cases. Other BSDC documents reveal that in 2007 alone, through the end of September, there were approximately 141 allegations of abuse and/or neglect of residents, with 52 of these allegations substantiated by internal investigators. Last year, through the third quarter of 2007, the facility reported that 185 employees had been suspended due to substantiated abuse or neglect of residents; many of these employees later were either terminated or resigned.

We highlight below a few recent examples where internal BSDC investigations substantiated abuse or neglect allegations, demonstrating, in part, the facility’s failure to protect its residents from harm.

a. Abuse

•

BSDC investigators substantiated mental abuse of resident WC3 after concluding that

staff engaged WC in a “game” of what could be called “canine catch” in August 2007.

This involved staff tossing WC’s pop bottle across the room, instructing the resident to

retrieve or “fetch” the bottle, and then return it. After repeating this “game” at least

twice, a staffer was observed hiding the bottle behind her back while motioning WC

across the room to find the bottle. Not realizing that the staffer had the bottle, WC ran

around the room aimlessly searching for it.

•

BSDC investigators substantiated physical abuse where a direct care staff worker injured

resident VB at the gym. In June 2007, the staff worker pushed her foot down “with

force” on the forearm of the resident, who was touching an outlet. As a result of the

3 In order to protect the identity of residents, we use coded initials throughout this letter. We will transmit separately a schedule cross-referencing the coded initials with the actual names of the residents.

- 5 -

incident, VB suffered severe lacerations on his index finger and down the center of his middle finger through the flexor tendon. The resident had to be transferred to Lincoln for surgery to repair the lacerations. At the time of the investigation, it was unclear whether he would ever regain the full use of his middle finger.

•

BSDC investigators substantiated both mental and physical abuse of resident UA, who

requires enhanced staffing to meet his needs. In June 2007, a direct care staff worker

began to taunt and upset UA while playing a board game. After the resident reached out

in frustration, the staffer retaliated by shoving UA and knocking him to the floor, causing

a purple bruise to the resident’s right elbow.

• BSDC investigators substantiated both physical and mental abuse where, in April 2007, a male staff worker “slammed” resident TW into a wall for pretending to take a female staff worker’s lunch item. After the push, TW became sad, went to the bathroom, and cried. TW said the altercation “knocked the wind out” of him. BSDC confirmed three prior allegations of physical abuse of this resident by the same staff worker in the prior nine months.

•

BSDC investigators substantiated both verbal and physical abuse by a staff worker

against resident SV, who uses a wheelchair. In April 2007, the staff worker observed SV

start to spit out medicine she had given to him. The staff worker used demeaning names

to address the resident and then held the resident’s head against the headrest on his

wheelchair, forcing a spoon into his mouth; after that, she forcibly held a washcloth

across SV’s mouth, trying to make him swallow. According to an eyewitness, this

situation continued for 10 minutes.

•

BSDC investigators substantiated verbal abuse of resident RU by a staffer in June 2007.

While taking a resident’s blood sugar reading nearby, a nurse overheard a staffer talking

to RU in the adjacent bathroom. The nurse reported that the staff worker verbally abused

RU while he was bathing, saying: “God damn it, don’t you know how to take a bath?”

As the resident began to cry, the staffer then said: “So now you think you are going to

cry like a b__ch and that is not going to help you out one bit. Let’s get this done.”

•

BSDC investigators substantiated abuse of a 20-year-old female resident, QT, by a male

staff worker who was reported to be “obsessed” with her. In November 2006, the male

staffer shaved the pubic area of the young female resident. Other staff workers regarded

this as inappropriate, yet this incident was not reported for five days.

•

In February 2007, an internet website moderator alerted BSDC officials to a web journal,

published by a new staff member, that identified both staff and residents, described

unauthorized confinement of one resident in a tightly-wrapped comforter ostensibly to

prevent movement, and the stated desire of one staffer “to kill” a resident due to

frustration. The blogger also alleged that another staff worker sat on a resident “to calm

[the resident] . . . down,” and that a senior staffer told the journal writer that “you have to

- 6 -
be a “b__ch” to the clients for them to know you’re in charge.” BSDC investigators found that these acts and the publication of such information constituted abuse and neglect of the residents.4

In September 2007, resident PS suffered a spiral fracture of his lower leg. Spiral fractures are typically an indication of purposeful twisting and a marker for possible abuse. However, the facility did not list a cause of the injury or a possible witness to the injury. Indeed, the facility categorizes a large number of incidents/injuries among BSDC residents as of “unknown” origin. In general, a significant number of unknown injuries at an institution suggests an unsafe environment and one where supervision is inadequate to protect residents from harm; at worst, it reveals hidden abuse. At BSDC, internal documents reveal that, between January 1, 2007 and September 30, 2007, there were at least 1,126 incidents/injuries of unknown cause, representing over one-fourth of all incidents recorded during that period.

b. Neglect

•

BSDC investigators substantiated neglect by a direct care worker who, in August 2007,

failed to bathe, check, change diapers, or re-position six residents assigned to her care;

instead, BSDC investigators found that the staffer watched television and slept during her

work shift.

•

BSDC investigators substantiated neglect where, in August 2007, four staff workers in

one unit failed to check or change resident OR for four-and-a-half hours. During that

time, none of the staff re-positioned the resident, interacted with him, completed his

treatments, or conducted his programs. The staff of the next shift discovered OR to be

soiled and completely soaked in urine, through his clothes.

•

BSDC investigators substantiated neglect where, in July 2007, two staffers had placed

resident NQ in her bed for a nap and then left with four other residents for a trip to a

softball game. The resident, who should have been checked and changed every two

hours by staff on duty, was discovered five hours later still in her bed in the same attire as

before, with her clothes and bedding soaked in urine.

•

BSDC investigators substantiated neglect after a BSDC housekeeper discovered, in June

2007, that resident MP had been left in her bed, alone in the building for at least 30

minutes, while the unit staff and other residents were away at activities across campus.

4 During our on-site tour, one of our expert consultants observed an incident that later may have been substantiated as abuse by BSDC officials. Specifically, our consultant observed a staff member physically preventing a resident from independently moving his wheelchair; she also observed the staff member yelling at the resident to keep away from a table where other residents were eating. Our consultant immediately alerted BSDC officials of the incident.

- 7 -
The investigation describes a chaotic scene on the living unit where residents were counted and miscounted by staff unfamiliar with them.

•

BSDC investigators substantiated neglect where, in June 2007, a direct care staff worker

improperly cared for resident LO whose ileostomy bag5 had come open. The staffer,

untrained in this type of care, merely took the resident to the bathroom, placed him on the

toilet, and left him there alone. The nurse who came by 20-30 minutes later to replace

the bag noted that the direct care staff worker was watching television. She found LO

still on the toilet with feces on his body, his clothing, and on the bathroom floor.

•

BSDC investigators substantiated neglect where, in May 2007, resident KN, requiring

close 1:1 supervision within a distance of five feet, eloped from his BSDC living unit; he

was later found at an apartment complex away from the campus. Staff on the unit were

unaware that this particular resident required 1:1 staffing.

•

In April 2007, one staff worker was left alone on a living unit to care for 16 residents.

Resident YM, who requires supervision within visual range, eloped from the building and

was later found in a campus driveway with one of his wheelchair’s wheels caught on the

curb. BSDC’s investigation was unable to determine for how long YM had been outside

the building before staff noticed him. BSDC investigators substantiated that the assigned

staff worker had neglected the resident. The practice of leaving residents alone and

unsupervised was found in a number of other abuse and neglect investigations as well. In

addition to lapses in supervision, BSDC residents also sustained injuries due to staff

being unaware of residents’ support needs.

•

BSDC investigators substantiated neglect where, in April 2007, resident KN may have

sexually assaulted another resident who was to have been closely supervised. The

victim’s program required assigned facility staff to check on him at least once every 30

minutes. However, BSDC investigators determined that no such checks had been done,

concluding: “[h]ad the checks been done, [staff] would have interrupted the incident or

prevented it.”

•

In early March 2007, within a 24-hour period, a BSDC staff worker twice failed to report

that she saw resident IL chewing on pieces of his colostomy bag. In one of these

incidents, the resident had smeared feces on his face, body, and mouth. Although the

neglect charge was substantiated against this staff person, she remained employed at

BSDC and continued to be assigned responsibility for IL’s support and care. Less than

two months later, the same staff person was again found negligent in caring for IL.

5 An ileostomy bag is a plastic or latex bag attached to the body for collection of urine or fecal material after an ileostomy or cystoplasty.

- 8 
-
2. Incidents and Injuries
We found that BSDC’s risk management practices fail to identify residents’ risks and fail to implement preventive strategies necessary to keep residents from harm and risk of harm. Indeed, BSDC documents reveal that residents regularly experience harm and risk of harm in their day-to-day lives. Facility records indicate that for the period between September 1, 2006 and October 12, 2007, there were thousands of separate recorded incidents involving residents at BSDC. The facility produced a 240-page list of what we estimate to be over six thousand separate incidents during this period. Other BSDC documents reveal 4,328 separate resident incidents at BSDC in 2007 alone (through September).
While some of these incidents were relatively minor with no injury to residents, others were very serious and produced grave injuries. Through the end of September 2007, BSDC documented 3,306 incidents where there was at least a “minor” injury to residents. This works out to be an average of about 367 resident injuries per month, or about 85 resident injuries per week, or about 12 resident injuries per day at BSDC. During the period between September 1, 2006 and October 12, 2007, BSDC identified about 150 incidents as more serious or severe than a “minor” injury. Serious injuries include fractures, lacerations, bites, and choking incidents.
Some residents have been involved in multiple incidents. Through December 30, BSDC reported an average of 35 residents per quarter who were involved in 10 or more incidents/injuries last year. Residents GJ, FI, EH, and DG all averaged more than 20 incidents/injuries per quarter through September 2007.
a. Resident Aggression
A large number of resident-to-resident incidents at BSDC stem from resident aggression. From September 1, 2006 through October 15, 2007, BSDC identified over 100 different residents who were characterized as “aggressors” in well over 500 separate incidents. In 2007 alone, through September, BSDC identified resident aggression as the probable cause of 217 separate incidents that produced at least a “minor” injury. The injuries of aggression to victim residents, include lacerations, bite marks, scratches, scrapes, bruises, and abrasions.
Some of the incidents have been serious. For example, in September 2006, resident CF attacked her roommate, HK, with a four-inch steak knife. HK sustained a laceration to her left temple and upper arm, and a stab wound to her lower left back. After the attack, the victim was “crying and in near hysterics.” CF told staff that “voices” made her attack HK and that she wanted to kill her roommate and “everyone on the living unit.” On the Monday prior to this incident, CF’s mother reported that a knife of similar description was missing from her home after CF’s visit. The internal BSDC investigation does not indicate whether staff searched CF’s room for the knife after the home visit and prior to the stabbing incident. In spite of this, BSDC made no finding of neglect. In a separate incident a month later, resident BE alleged that his roommate, TO, had sexually assaulted him in the bathroom. BE suffered injuries to his neck and lip. However, no physical evidence of a sexual assault was found. The internal BSDC

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investigation did not reach a definitive conclusion as to what happened. BSDC made no findings as to abuse or neglect with regard to this incident.

BSDC records reveal that resident aggression incidents/injuries appear to be concentrated on certain units, such as 104K and 408S.6 Lack of adequate staff supervision, environmental and safety concerns, as well as a failure to provide adequate behavior and mental health supports all contribute to an increased risk of harm for many residents on a day-to-day basis.

b. Fractures and Falls

In the year before our visit, a number of BSDC residents suffered fractures, including fractures of the leg, hip, knee, ankle, toe, clavicle, shoulder, arm, hand, finger, and nose. Many of the fractures were quite serious, requiring the intervention of an orthopedic surgeon. It is of concern that about half the time, BSDC did not know how the fracture happened. We set forth below a few examples of residents who suffered fractures in the months prior to our visit.

•

In April 2007, staff noted a bruise on resident AD’s arm while preparing the resident for

a bath. Later it was determined that AD had suffered a fracture of the right humerus.

Although a physician concluded that the injury was the result of blunt force trauma, it

remains undetermined how and where the fracture occurred.

•

In March 2007, resident LA refused to bear weight on his left leg. The next day, staff

observed bruising to the resident’s ankle, but an x-ray showed no fracture. A subsequent

x-ray, done a week later, showed an oblique fracture through the left distal fibula. The

cause of the fracture is undetermined.

•

In January 2007, while attempting to transfer resident KZ from her wheelchair to her bed,

a BSDC staff worker was unable to lift the resident onto the bed, and instead lowered her

to the floor. The following day, other staff noticed a “pop and crackling” sound as they

tried to dress KZ. Subsequent medical examination identified a fracture to the resident’s

lower leg.

Resident fractures are often caused by falls. Indeed, there is a significant and serious pattern of resident falls at BSDC, numbering more that 1,000 since September 2006. The facility has documented repeated falls by a number of residents: GJ - 50 falls, FI - 45 falls, EH - 43 falls, ND - 25 falls, DG - 25 falls, OE - 24 falls, and PF - 23 falls. The high frequency of falls places these and other similarly situated residents at great risk of harm. Yet, too often, BSDC has failed to develop effective safeguards to reduce the frequency of resident falls. Some falls have resulted in significant harm to residents. For example:

6 Units 104K and 408S are just two of several units that house residents with developmental disabilities who also have behavioral problems and/or mental illness.

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•

In late July, 2007, staff noted a significant purple bruise to resident QG’s left shoulder

during bathing. Examination revealed a fracture of the left humerus. Although medical

staff felt the injury was caused “by blunt force trauma,” BSDC concluded that the injury

was accidental, possibly from an unwitnessed fall.

•

In July 2007, resident MC fell, suffering what appeared to be a fracture of his left

clavicle; staff noted significant purple bruising on his shoulder.

•

In June 2007, resident BF, known to have osteoporosis, fell while approaching the

bathroom, suffering a left hip fracture. In response to BF’s numerous falls, the BSDC

Incident Review Team often recommended “no further action necessary.” This response

is similar to that given to other residents who fall regularly or are at risk of falling.

Our investigation revealed a pattern in which numerous residents suffered multiple falls, yet were not identified as individuals at-risk for falling. As a result, the facility failed to provide adequate preventive interventions. For example:

•

Resident UL, admitted in August 2006, suffered injuries from falls three times within her

first month in residence at BSDC. Despite her recurring falls, she was not identified as

being at-risk for falls and protective measures were not implemented. Within 75 days of

her admission, she suffered her fifth fall, sustaining a fracture to her right thighbone

(femur). This fracture required surgery to implant a fixture pin. The investigation of this

fall failed to identify a pattern and UL continued to fall in subsequent months.

•

Resident PF fell at least 23 times between September 2006 and June 2007, but was not

identified as at-risk for falling by BSDC. One of his falls caused a laceration to his head

which required staples to close. In early 2007, PF suffered a fractured finger on his left

hand. As of mid-October 2007, BSDC had still failed to identify PF as at-risk for falls.

•

Resident DW, referenced above, began to fall with increasing frequency around October

2006. She fell about a dozen times from October 2006 to July 2007. Despite this, as of

mid-October 2007, BSDC had still failed to identify DW as at-risk for falls.

There are many other residents who have incurred serious injuries from falls, and yet, are not identified by BSDC as being at-risk of falling, including: QH, KZ, BF, RI, SJ, TK, and NQ. BSDC’s failure to identify individuals’ risks and implement preventive strategies places residents at significant and continuing risk of harm.

c. Lacerations

A large number of BSDC residents have suffered lacerations, many of which are deep and serious. The facility identified about four dozen residents who, during the year before our visit, had suffered a laceration that required sutures, staples, clips, or dermabond to close the injury. About 95 percent of the serious lacerations involved injury to the face or head. Some of

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the residents suffered multiple deep lacerations; for example, throughout the year, resident DG suffered separate deep injuries near her right eyebrow, her left eyebrow, the bridge of her nose, and her upper nose. Most of the resident injuries appear to occur due to inadequately addressed behaviors – sometimes from self-injury, and sometimes from the unchecked aggression of another resident. Other causes of lacerations include falls, environmental factors, and seizures.

d. Choking Risks

Many BSDC residents have medical conditions that seriously complicate the swallowing and digesting of their food and beverages. We uncovered several instances in which staff failed to adequately protect residents from consuming food or fluids that could cause them serious harm. For example:

•

Resident VM, fed via stomach tube, is assigned enhanced supervision due to her high risk

for aspiration. Despite this, in April 2007, VM’s staff left her alone in the dayroom,

where she drank a cup of liquid set out for another resident. This was the fifth time since

2004 that the resident has consumed an edible or liquid that placed her at serious risk of

harm. The subsequent review of this incident noted that, “[the resident’s] consumption of

food could cause serious airway blockage, anoxia, and death; her consumption of liquids

could lead to aspiration of the contents into her lungs. It is imperative that [she] receive

the proper supervision to guard against her ingestion of food or liquid.” Within weeks, in

July 2007, staff found the same resident in the dining area chewing corn chips. BSDC

found that an on-call staff worker in that instance neglected her by leaving his assignment

before arranging for her supervision. BSDC’s repeated failure to protect VM places her

at serious risk.

•

BSDC investigators confirmed neglect where, in July 2007, resident WN, also fed by a

stomach tube and not allowed food or drink due to the risk of aspiration, walked over to a

table in his living unit and drank tea left there. No specific staff had been assigned to

supervise this resident at the time despite his need for enhanced supervision. The

investigative report also noted a prior incident on May 6, 2007, where this resident drank

grape juice, which also placed him at serious risk for aspiration.

In addition, a couple of other residents have ingested inedible objects that posed great risk to the resident; resident OK swallowed a push-pin tack, and resident CF may have swallowed a “train” game piece.

3. Incident Reporting, Investigations, and Preventive Measures

a. Incidents

We identified a number of problems with the facility’s incident management system. BSDC’s policies and procedures related to reporting and categorizing incidents are disjointed, uncoordinated, and confusing. As a result, incidents are not consistently categorized at BSDC.

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During our visit, we learned that multiple databases at BSDC hold information about harm to residents. We learned from a variety of sources that all incidents are not tracked in the same database. For example, the Quality Indicator Report that should contain accurate information, and is to be reviewed quarterly, does not include hundreds of falls experienced by residents and documented elsewhere. We also found that important incident reports sometimes are not accounted for in the tracking system. We identified instances where staff failed to report incidents in a timely manner. This raises concerns about whether other important incidents are being reported on time or at all. As a result, we do not have confidence that the incident information recorded and reported at BSDC accurately reflects all of the reportable incidents that actually occur at the facility. Given these failures, the incident and injury numbers we set forth above may, in fact, under-represent the harm that has actually occurred at the facility. This also makes the tracking and trending of such incidents unreliable, which further impairs the facility’s ability to develop and implement individual or systemic remedial measures. It is essential that management staff have reliable data sources that will allow them to review trends and analyze and address the underlying causes of all injuries.
The BSDC Incident Review Team (IRT), chaired by the acting director of quality management, reviews all incidents that have occurred within the previous 24 hours. The intent behind this effort is commendable. However, there are some concerns. For example, the residents’ interdisciplinary team members are notably missing from this review process. Moreover, although the IRT serves the function of keeping facility management informed of sentinel events, this process actually delays the interdisciplinary teams’ response to events and shifts the accountability for resident safety from the QMRP and interdisciplinary team to the facility management staff. Since the IRT does not necessarily possess in-depth knowledge of the residents’ status, it is ultimately dependent on the team to determine intervention strategies to reduce risk.
The facility’s lack of effective risk management and incident management practices places residents at risk of serious harm. It is imperative that the facility establish both preventive and responsive processes that proactively work to reduce and eliminate harm.
b. Investigations
We found some positive aspects with regard to recently-begun remedial efforts in the area of internal investigations. BSDC has demonstrated its intent to broaden the scope of its investigative process. Based on the volume of investigations from 2006 to 2007, the facility has increased the number of incidents it formally investigates. In addition, BSDC’s investigative unit has made considerable improvements in identifying systemic and ancillary issues relevant to investigations. Systemic issues are more consistently identified with meaningful corrective actions assigned.
Nonetheless, the facility must continue to correct deficiencies and improve the quality of its investigations in order to reach minimally accepted standards of practice. We found that there were significant delays in reporting some allegations of abuse and neglect. Similarly, there were

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delays in providing relevant documents to the investigator in some cases. Investigators did not consistently secure evidentiary materials. Investigations often lack necessary components. For example, some investigations failed to: reconcile evidence appropriately, develop a chronology of the event, identify involved personnel, include interviews of all relevant staff and residents who may have information about the incident in question, and determine the cause of serious incidents. Many investigations fail to develop a reasoned analysis of what actually happened and who was responsible. In some instances, the investigative report does not discuss how information that was gathered was utilized to draw conclusions. We also found instances where investigations were filled with speculative commentary by both staff and investigators, apparently set forth to rationalize why a more thorough review of the allegation was not necessary. A speculative approach and lack of objectivity is a significant departure from minimally acceptable standards of practice.
Inadequate investigations make it difficult for the facility to identify, develop, and implement corrective measures to eliminate preventable risks to residents. BSDC documents reveal that many corrective measures that were supposed to be implemented post-investigation to prevent future incidents are not being implemented and monitored in a timely or adequate manner. Such failures place residents at ongoing risk of harm. Subsequent investigations indicate recurrent issues that have not been resolved. Our safety consultant concluded that BSDC is not monitoring the effectiveness of corrective actions with any regularity, and as a result, “recurring issues are illuminated through investigations though they rarely appear resolved.”
4. Staffing Concerns
Many of the deficiencies at BSDC with regard to safety are linked to staffing difficulties. Our safety consultant characterized the BSDC workforce as “wrought with exhaustion and discontent.” She reported that some employees pleaded for help in order to acquire adequate staffing assistance for the health and welfare of the residents. During our visit, BSDC staff expressed concerns about being assigned to work with residents without being trained on how to properly support and care for them. They also told us about their concerns related to unsafe working conditions due to severe staff shortages, employee exhaustion, lack of adequate training, and disgruntled co-workers.
The facility faces substantial and ongoing struggles in hiring and retaining competent staff, maintaining acceptable individual-to-employee staffing ratios, and providing adequate time off to full-time employees. During the week of our visit in October 2007, the facility had vacancies in 117 of 411 direct care staff positions. In addition to these, there were vacancies for a physician, six nurses, a nurse supervisor, a physical therapist, two team leaders, and two compliance specialists. Many of these positions had been unfilled for months.
Given the large number of staff vacancies, the facility has relied heavily on requiring current staff to work overtime. BSDC records reveal that direct care staff have been working overtime – sometimes on double shifts – for more than a year now. The facility used 10,219

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hours of overtime in September 2007, and 14,490 hours in August 2007. These levels are reduced from the January 2007 high of almost 20,000 overtime hours in the month. For the period September 2006 through September 2007, the facility spent $3.6 million on overtime reimbursement. Overtime is often mandatory for current BSDC staff. We spoke to numerous staff who related their concerns about having to work multiple double-shifts (16 consecutive hours) within a single week to provide care to residents. Many staff workers expressed their weariness at being “frozen,” or required to stay for additional shifts or risk disciplinary action for failure to fulfill overtime requirements.
Even with staff working so many additional hours, we learned that the use of overtime is often not enough to meet staffing needs. As a result, the facility maintains a roster of 180 Developmental Technician I employees who are described as “on-call” staff. These employees (including staff as young as 16 years of age) are assigned to work with residents across the campus as needed. However, many of these on-call staff are unfamiliar with the residents they are assigned to serve. Although all staff, including the on-call staff, are supposed to be familiar with the needs and individualized plans of the residents on their assigned units, we met staff workers who were unable to tell us that information, much less implement the plans.
In addition to the large number of staff vacancies, we found a lack of adequate oversight of staff. We uncovered several instances where staff were found asleep while on duty and where staff were found to be playing cards or watching television when they should have been providing services to residents. One supervisor told us that she was new to her area and did not know which staff were assigned to her area from day-to-day. The chaotic staff environment at BSDC fragments care to residents and places them at risk of additional harm.
Needless to say, the demands of current BSDC staffing practices place both emotional and physical stress on the staff that may lead to an environment that is more conducive to abuse, neglect, and mistreatment. At the very least, tired and over-worked staff will be less likely to take the initiative and responsibility necessary to provide residents with the programming, care, and treatment they need, especially if the residents have difficult behaviors or complex health care needs. BSDC needs to take deliberate action to improve this situation. Failure to do so will continue the current environment that is conducive to abuse, neglect, and inadequate care.
5. Documentation
Clinical records at BSDC do not consistently provide an accurate account of residents’ needs. Moreover, there is inconsistency among the tools utilized at BSDC to provide staff with information on the current intervention strategies to protect individuals from harm. We found that there was conflicting information on such tools as supervision cards, individualized program plans, and mental health treatment plans.
We also found that outcome data for interventions was often inaccurate. Record reviews at BSDC revealed significant discrepancies between unit and clinical data, as well as a general inconsistency in maintaining data. Because this data is to be used in clinical decision-making,

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the health and well-being of individuals is placed at significant risk when clinical records and data reports contain errors, discrepancies, and inconsistencies.
BSDC is currently making efforts to form committees to better analyze outcome data. While this is a worthwhile effort, it is only one element of a complete quality assurance system. Quality assurance needs to be more than a department at BSDC; it needs to be a deliberate and ongoing practice at the facility.
B. TRAINING AND BEHAVIORAL SERVICES, RESTRAINTS, AND PSYCHIATRIC CARE
The Supreme Court has concluded that for persons with developmental disabilities residing in state institutions, there is a constitutional right to “minimally adequate training.” Youngberg v. Romeo, 457 U.S. at 322. Specifically, “the minimally adequate training required by the Constitution is such training as may be reasonable in light of [the institutionalized person’s] liberty interests in safety and freedom from unreasonable restraints.” Id. and at 319 (“respondent’s liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint”).
1. Resident Behaviors and Behavior Programs
Dozens of residents at BSDC have behavior problems and need training and associated behavioral services. According to facility documents, as of August 31, 2007, there were 151 residents with physical aggression, 68 residents with verbal aggression, 41 residents with nonverbal/physical aggression, and 74 with self-injurious behavior. Some residents exhibit multiple behavior problems; 34 residents are listed with three of these behaviors and 15 residents are listed with all four behaviors.
As of September 4, 2007, the facility reports that approximately 187 BSDC residents (including the 11 Bridges residents) with behavior problems receive training and associated psychological and behavioral services through a formal behavior program. Generally accepted practice, as well as BSDC policy, mandates that behavior programs are to provide a consistent, individualized, and effective approach to reduce or eliminate inappropriate behaviors. In spite of this, BSDC fails to provide training and services that are adequate and appropriate to meet the needs of these residents. This deficiency contributes to poor resident outcomes, including poor progress in treating problem behaviors, increased risk for highly restrictive interventions, increased risk for injury and abuse, and decreased opportunities for placement in the most integrated setting. Inadequate training and psychological services are contributing factors to many of the incidents and injuries discussed above, which often stem from residents’ inadequately addressed problem behaviors, such as physical aggression, verbal aggression, selfinjurious behavior, or “pica” (ingesting inedible objects).
BSDC behavior programs are typically well-developed, often rather lengthy, and generally follow a consistent format. Nonetheless, the programs often do not effectively address

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residents’ often difficult behavior problems. With regard to behavioral assessments, BSDC relies too heavily on a brief questionnaire screening tool when a more extensive observational analysis of the behavior problem is often warranted to verify functional behavioral antecedents and lead to appropriate treatment options and follow-up services and supports. This is especially true in complex cases where subtleties may be missed and behavioral intervention may be misguided. Appropriate observational analysis is even more important, given that BSDC quality assurance documents reveal data collection problems associated with resident behaviors. Data is missing on some days, shifts, and hours, or is not recorded up to the current time or interval. Improper or incomplete data collection can negatively impact initial assessments and progress re-assessments, which can influence service delivery. It also does not appear that residents’ behavior programs are updated frequently enough to address changes in residents’ behaviors throughout the course of the year. As we discuss below, this is especially notable with regard to residents who are continually subjected to invasive restraints.
The overriding and primary problem at BSDC, however, is not so much with the paper programs as it is with the inadequate implementation of the paper. Consistent and correct implementation of adequate and appropriate behavior programs is required if progress is to be made on the behavior programs. Yet, staff at BSDC fail to properly implement the written behavior programs for the residents. This is a pervasive problem that implicates staff across all shifts and settings. Poor implementation of programming places BSDC residents with behavior problems at risk of continued harm, continued exposure to restrictive intervention procedures, and continued institutionalization.
There are many reasons for implementation deficiencies. Staff vacancies are a contributing factor. Our psychology consultant characterized the large number of staff vacancies at BSDC as a “huge gap in staff.” The loss of experienced staff and the high rate of staff turnover are also taking their toll. The behavior programs at BSDC involve multiple distinct steps or procedures. New staff, temporary staff, “on-call” staff, or staff pulled from other units are often unfamiliar with the particulars of the lengthy and detailed individual behavior programs. This leads to faulty implementation. Even with regular staff though, it is too often the case that they are not familiar enough with the programs to implement them correctly. Our psychology consultant concluded that “[l]ack of experienced trained staff to work with the difficult complex cases that I reviewed can have a devastating effect on the quality of behavior program implementation.” He added that “the presence of adequate staff was highly correlated with calmness of the [BSDC living] unit.”
When confronted with a resident behavior, generally accepted practice and BSDC policy require staff to systematically work through a progression of less restrictive techniques before applying more invasive measures. However, instead of methodically and properly implementing the written program, harried staff in a behavioral crisis too often and too quickly resort to reactive procedures. The facility staff often do not move systematically through the BSDC continuum of interventions from least restrictive intervention to more restrictive intervention as required by State policy. Fundamental program elements, such as modification of antecedents or attempts at prevention, including gently talking to the individuals or redirecting them from the

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environment, are not employed properly or as often as needed. Instead, facility records reveal a rather consistent reaction to behavioral problems, where staff quickly move from behavior response blocking to physical restraints to mechanical restraints.
As a result of the failure of behavioral training at BSDC, the residents with problem behaviors, as well as those in their proximity, have remained at risk of harm due to the consequences of the unchecked problem behaviors. The resident-to-resident aggression we referenced above is one example of this. Because the problem behaviors continue, these residents are then subjected to other means of control, such as the use of highly restrictive interventions, including emergency mechanical restraints.
2. Restraints
The Supreme Court has recognized that the right to be free from unreasonable bodily restraint is the “core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Youngberg v. Romeo, 457 U.S. at 316, 322 (citing Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 18).7 See also 42 C.F.R. § 483.13(a)(resident “has the right to be free from any physical or chemical restraints . . . not required to treat the resident’s medical symptoms.”). Consistent with generally accepted professional practices, restraints are to be used only when justified and only when there is evidence that less restrictive procedures have been proven ineffective or are unsafe.
The State subjects BSDC residents to undue restraints. From June 1, 2006 to August 31, 2007, the State reports that 79 BSDC residents, approximately 25 percent of the population, were restrained. Restraints at BSDC can range from a physical restraint where a staff member physically holds a resident’s head, limb(s), and/or body, all the way to a mechanical restraint (the most invasive form of restraint) where staff use cloth and leather straps to tie to a bed a resident’s four limbs and sometimes his or her chest. Commonly used behavior management procedures at BSDC are very restrictive and pose significant risk of injury to BSDC residents. These highly restrictive interventions include: mechanical restraint devices that involve 2-point or 3-point restraints (arms and/or legs), 4-point restraints (arms and legs), or 5-point restraints (arms and legs and the upper or lower body). These interventions may be used either on a programmatic or on an emergency basis. The facility staff also engage in the highly restrictive practice of physical holds that allow up to three staff members to lift and carry a resident against his or her will.
7 The Supreme Court has held that this interest is fully applicable to individuals with developmental disabilities who are confined to state institutions. See Youngberg, 457 U.S. at 316. The Court noted that the state is under a duty to provide an institutionalized person with a developmental disability with reasonable training “to ensure his safety and to facilitate his ability to function free from bodily restraints. It may well be unreasonable not to provide training when training could significantly reduce the need for restraints or the likelihood of violence.” Id. at 324.

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Our psychology consultant concluded that restraint usage at BSDC is high. Indeed, he labeled mechanical restraint usage at BSDC as “the highest in frequency and duration that I have seen in my experience.” Our safety consultant characterized as “alarming and disconcerting” the risks associated with the duration and frequency with which several residents are placed in restraints. The specific restraint numbers at BSDC are rather staggering:

•

During the period from June 1, 2006 to August 31, 2007, the State reports that there were

896 total restraint episodes; this represents an average of about 60 restraint episodes

every month at BSDC.

•

During this period, resident HK was restrained 104 times, resident OK was restrained 70

times, resident PL was restrained 49 times, resident CF was restrained 48 times, and

resident UL was restrained 43 times. There were 17 other residents who were restrained

a dozen or more times during this period.

•

The use of the most invasive form of restraint – mechanical restraints – is quite prevalent

at BSDC. During the 15-month period referenced above, BSDC staff placed residents in

emergency or programmatic mechanical restraints (i.e., those utilized pursuant to a

behavior program) for a total of 41,168 minutes, or over 686 hours. The use of

programmatic invasive restraints alone averaged about 44 hours per month.

•

Many of the individual restraint episodes have been very lengthy, with some lasting

several hours at a time. During this period, 24 residents were subjected to at least one

invasive mechanical restraint episode of two consecutive hours or more.

•

Resident RM was placed in mechanical restraints for two hours or more a total of 26

times during this period. Many other residents suffered through mechanical restraints for

two hours or more: resident PL, 22 times; resident OK, 21 times; resident HK, 15 times;

resident EH, 14 times; and residents CF and SN, 9 times each.

•

During this period, there were 65 separate instances where staff subjected residents to

mechanical restraints of three hours or more; of these, 22 separate instances lasted five or

more consecutive hours; of these, seven lasted seven or more consecutive hours.

•

In late October 2006, in response to what was characterized as “edgy” behavior where a

resident was hitting, kicking, scratching, and biting, staff placed the resident in four-point

restraints for a total of 23 hours and 41 minutes straight (with one ten-minute break just

before the 12-hour mark). Staff noted that this resident may have been craving additional

attention, which apparently was denied him other than in the context of a restraint

application.

•

During this period, resident RM was placed in invasive mechanical restraints for a total

of 8,618 minutes, or over 143 hours. Resident OK was placed in such restraints for about

85 hours; resident PL for over 75 hours; and resident HK for over 65 hours.

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•

Staff subjected seven BSDC residents to emergency mechanical restraints during this

time for over 1,000 total minutes. All but three of the individual restraint applications

lasted for an hour or more; resident TO was placed in emergency mechanical restraints

for five hours on one occasion and over three hours on another.

•

During this period, mechanical restraint usage prompted 49 separate facility critical

incident reviews involving over a dozen residents.

Our safety consultant concluded that injuries sustained during restraints are “increasing rapidly at BSDC and are indicative of a systemic problem at the facility.” She concluded that BSDC’s inability to protect residents from harm prior to and during the restraint application is a significant departure from minimally accepted standards of practice.

While the facility has a restraint review committee that meets regularly to review the use of restraints on certain individuals, it does not appear to be having much impact on the use of restraints at the facility, especially with regard to residents with difficult behavior problems. These timely meetings are characterized by a general sensitivity to the need to reduce restraints. However, this does not necessarily mean that insightful professional input is always presented at these meetings or that action steps are developed that will lead to more effective behavioral interventions for residents.

Separately, as we discuss below, several converging factors, in addition to behavioral service deficiencies, produce an environment where resident behaviors and restraints are likely to occur; these include: an overly restrictive segregated living environment characterized by crowded conditions with almost constant close exposure to other residents prone to behaviors; lack of adequate habilitation and meaningful community activities during the day; and issues related to the provision of psychiatric care for those with mental illness.

3. Overly Restrictive Environment

The overly restrictive physical environment of the BSDC institution limits behavioral treatment options. Crowding in some residential units causes tension and increases the likelihood that behavior problems will arise, especially where two or more aggressive residents are in close physical proximity to one another for virtually the entire day and night. Our psychology consultant informed us that none of the aggressive residents he talked to during the week said that they had a friend on their unit. He concluded that “confining people who are predisposed to aggression and who do not like one another in the close quarters of the living units of BSDC is a program for trouble.”

Moreover, the facility has not done enough to integrate residents into community settings, as discussed below. One consequence is that residents have limited opportunities to associate with people who may be role models for socially appropriate behavior. This is most

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easily accomplished through community placement and/or integrated and meaningful activities during the day, including supported employment and positive behavioral support activities.
Ironically, the facility’s overcrowded and confining environment and its failure to adequately address residents’ problem behaviors makes it more difficult for many of these residents to transition to more integrated community settings or to participate in more integrated day activities. The treatment plans of some residents reveal that interdisciplinary teams at BSDC at times appear reluctant to recommend a resident for placement or services in a more integrated community setting if the resident has significant problem behaviors. This is tragic because many residents were transferred to BSDC for the sole purpose of ameliorating their problem behaviors.
4. Habilitation, Vocational Activities, and Meaningful and Integrated Day Activities
Persons with developmental disabilities are to receive adequate habilitation training and related vocational and day program services and supports so that they may acquire new skills, grow and develop, and enhance their independence. Federal law requires that:
Each client must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services . . . that is directed toward – [t]he acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and . . . [t]he prevention or deceleration of regression or loss of current optimal functional status.
42 C.F.R. § 483.440(a). Indeed, both the BSDC habilitation and behavior program policies stress the need to help residents attain and increase skills in direct response to each individual’s needs and personal outcomes. However, BSDC fails to provide its residents with such adequate habilitation training and related services and supports.
Our psychology consultant noted that while “BSDC professes to be an active treatment facility, . . . some staff appear not to buy into that mission.” During our visit, we discovered a low level of staff interaction with the residents throughout the day. Too often, residents were not engaged, and the staff did not attempt to engage them in meaningful habilitation activities. We found several situations where nothing was happening with residents even though staff were present. This lack of meaningful training and activity not only denies residents an opportunity to learn and grow, but it can set the stage for the residents to engage in harmful behaviors.
Even at pleasant on-campus facilities, such as the Carstens Center, with a gym, a pool, a social center, and a game area, participation is rather limited. BSDC logs reveal that, on many days, only a handful of residents use the Carstens Center; “no-shows” for scheduled activities are common. Facility records reveal that, in June 2007, almost 20 percent of the residents were labeled as “no shows” for aquatic therapy. Quality assurance staff repeatedly labeled this a “big concern.” Throughout the week of our visit, certain BSDC staff revealed that they hardly ever take residents to the pool. It was not clear to staff why this was the case. Moreover, internal

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quality assurance documents reveal that many staff do not interact with the residents when in places of habilitation and training, such as the social center or the gym. Instead, staff sometimes “just sit and let the individuals run around hitting and throwing balls at each other.” At times, there are not enough age-appropriate materials for training purposes.
Persons with developmental disabilities are to receive habilitation services in integrated settings wherever possible. See the Americans with Disabilities Act, 42 U.S.C. § 12132, and the requirement that services be provided in the “most integrated setting.” However, the State has failed to provide adequate, meaningful, integrated activities in the community for BSDC residents. No resident attends school off campus and no resident receives programming off campus. Only one resident works significant hours in a competitive, supported employment setting in the community. Instead of emphasizing community involvement, BSDC has concentrated on providing work and programming to dozens of residents in various sheltered workshop settings on the segregated campus. Moreover, most of the work and programs on campus involve rote and repetitive tasks.
While BSDC recently appears to have been making a positive effort to increase occasional community outings for BSDC residents, such as to the grocery store or to the park, the number of residents who participate is limited, as are the number of days and hours per day they can go to the community at any given time. BSDC records reveal that, instead of going to the community each day for several hours or most of the day, residents are typically able to go to the community only a handful of times each month for just a couple of hours each time. By contrast, the ITS, which emphasizes the importance of individuals staying connected to the community, is able to take the individuals enrolled in its program off campus much more regularly than the typical BSDC resident is able to go off campus. We learned, for example, that each ITS resident goes off campus almost every day for several hours a day.
Thus, the State appears to recognize the importance of community integration, but it has not done enough to maximize residents’ day-to-day integration with the community at large beyond the BSDC campus. This is somewhat remarkable given that staff reported to us that residents generally enjoy community trips; that typically resident behaviors and their overall welfare and demeanor improve markedly when engaged in meaningful, integrated activities; and that community involvement enhances learning. Staff also informed us that restraint usage goes down markedly once residents are in the community. In any event, staffing, transportation, and the availability of other resources appear to be limiting factors. For example, even if every offcampus BSDC vehicle was utilized at one time, about half of the residents could not be accommodated on community trips. Moreover, BSDC has vehicle capacity only for fewer than two dozen residents who use wheelchairs.
5. Psychiatric Disorders and Treatment
As part of the interdisciplinary approach to addressing residents’ behavior problems, generally accepted practice requires that State-operated facilities like BSDC provide adequate psychiatric services for its residents with mental illness. Traditionally, persons with

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developmental disabilities, who also have a dual diagnosis of mental illness, have been underdiagnosed and over-medicated, especially if they lived in an institutional setting like BSDC. In the past, the inherent difficulty and complexity of identifying and treating the often subtle signs and symptoms of this population led to mistreatment or missed treatment; sometimes the need to gain control of problem behaviors led to clinically imposed chemical restraint. The ongoing dangers associated with certain behavioral and psychiatric treatments for this population demand continued vigilance to protect against inertia and/or abuses against vulnerable persons with developmental disabilities and mental illness.
As of September 13, 2007, the State reported that 167 BSDC residents had an Axis I disorder diagnosis.8 The vast majority of these individuals have mental illness. Several dozen residents have more than one mental health diagnosis. The State reports that 152 residents receive at least one psychotropic medication. Over 86 percent of all BSDC residents with a behavior program also receive psychotropic medication.
In spite of our overriding concerns, there are positive elements with regard to providing psychiatric care to BSDC residents: there is often frequent contact with residents by professionals responsible for providing mental health care; overall there is a thoughtful, multidisciplinary team approach to delivering mental health care; in conducting diagnostic assessments there is an effort to use objective information to guide clinical decision-making; and the facility uses accepted monitoring tools to screen for psychotropic side effects and movement disorders. Nonetheless, as we discuss below, too often, resident outcomes suffer because of outstanding deficiencies in this area.
The overriding deficiency is that there is currently not enough psychiatry time to provide adequate psychiatric care to meet the needs of BSDC residents with mental illness. This places BSDC residents at risk of harm. In the past, the BSDC residents were served by a psychiatrist with nearly 20 years experience treating persons with developmental disabilities who was at the facility on almost a full-time basis. Now, the consulting psychiatrist to BSDC visits residents at the facility on a limited and part-time basis, about two days per month. Individual evaluation appointments typically appear to be scheduled in a range from about five minutes to 15 minutes for each resident. (The team meetings conducted in the presence of our consultant psychiatrist lasted slightly longer.) Our psychology consultant concludes that this “simply is not enough examination time for a thorough DSM assessment or even follow-up examination. Much more time evaluating each client is needed.” Under his current contract, at most, the consulting psychiatrist can spend an average of about 69 minutes annually per resident with a current Axis I
8 Pursuant to the American Psychiatric Association’s diagnostic criteria manual, Axis I disorders are clinical disorders and/or other conditions that may be a focus of clinical attention. Typically, these clinical disorders include mental illness. Mental retardation and personality disorders are classified as falling under Axis II. The aggregate figure above does not include the 11 persons at Bridges, all of whom have issues with regard to mental health treatment.

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diagnosis. Our psychiatry consultant concludes that this “would be considered insufficient for even the most stable patient in complete clinical remission.”

The lack of sufficient psychiatry hours produces infrequent evaluation and assessment of residents and less frequent follow-up than is needed. It also makes it more difficult to change treatments that would be likely to require additional psychiatry time in the future than is available under the current contract. We understand that the consulting psychiatrist is often not able to see every resident who has been referred to him that day for consultation. As a result of all this, the BSDC primary care doctors, a physician assistant, and a registered nurse are now responsible for providing a sizable volume of psychiatric follow-up care. As our psychiatry consultant concludes, “[o]ther clinicians can provide some mental health care and assessment for short periods of time, but cannot substitute for psychiatric expertise for long term treatment.”

In looking at outcomes for residents, our psychology consultant, who is also a nationally recognized expert in psychopharmacology, concludes that many residents at BSDC are “grossly over-medicated.” He concludes that psychotropic medication usage at BSDC is high and that the percentage of residents subjected to psychotropic polypharmacy is high. With regard to individual doses, he concludes that “[d]oses used are higher than any I have seen in many other facilities across the country, as well as the one I worked at for ten years in the 1970s.” He added that the effective doses of several medications are half those used at BSDC. He also found that the decision-making process for titrating drugs up or down after review of their effects on behavior is often not clear in the records; the psychiatric consult reports in the medical records are very brief, containing minimal information; and the coordination of psychological and psychiatric evaluations is not clearly evident in the individual charts.

Our consultant psychiatrist listed a host of concerns as well with regard to the delivery of psychiatric care to dually diagnosed BSDC residents, including:

•

Moderate-to-high doses of typical or “first-generation” anti-psychotic medications are

too often used without sufficient clinical justification. These residents face the potential

harm of excessive exposure to the long-term risks of these medications, including tardive

dyskinesia and Parkinsonism.

•

In too many cases at BSDC, there is general therapeutic inertia where teams are often

content to maintain the status quo, sometimes even in the face of the possibility of

medication side effects or other negative consequences of psychotropics. This includes

failure to reduce or discontinue medications in light of clinically significant intervals

with no symptoms, and failure to change treatment in spite of new and significant

symptoms. Given outside opposition to some medication changes, the facility is not

doing enough to educate and address the concerns of parents and guardians when

medication changes are needed to provide the resident with acceptable psychiatric care.

•

There is some diagnostic-therapeutic disconnect, where the resident’s diagnosis does not

obviously explain the psychotropic regimen in place. When this happens, typically there

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is insufficient explanation or justification in the individual records for the clinical decision-making. In these cases, the potential to harm the resident is two-fold – the person may be treated with inappropriate and/or unnecessary medications and, at the same time, will not be receiving proper treatment for his or her underlying mental illness.

•

For certain BSDC residents with anxiety and/or insomnia, there is chronic use of low-to-

moderately high doses of benzodiazepines, which does not reflect good practice in

persons with intellectual disabilities because this class of medications diminishes

cognition. Too often, benzodiazepine are used at excessive doses and/or for longer

periods of time than appeared justified by the individual’s psychiatric diagnosis. Such

use places these individuals at risk for psychological dependence, tolerance, excessive

side effects, and a loss of inhibition with regard to certain behaviors.

•

Some intra-class polypharmacy is used without sufficient clinical justification. Exposing

persons to intra-class psychotropic polypharmacy is generally considered to be poor

practice. Risks include unnecessary and additional side effects and potential drug-to-

drug interactions that would not be present if only one agent was used.

•

BSDC needs better and close coordination among behavioral, psychiatric, and neurologic

treatments, as several mood stabilizing drugs used to treat psychiatric disorders are also

effective in treating seizure disorders. Moreover, most current anticonvulsant

medications are psychoactive and can have behavioral side effects. Without close

coordination, the potential for harm associated with drug-to-drug interactions may go

unrecognized. BSDC sometimes draws an artificial distinction between whether a

medication is being used for seizure disorders, psychiatric disorders, or behavioral

management. In some cases, an anticonvulsant used for seizure disorders is not discussed

at all in psychiatric notes even though it is clearly psychotropic.

•

The long-term use of anticholinergic medications for the treatment of side effects should

be avoided. However, too often at BSDC, residents receive these medications for long

periods of time without discussion of either the ongoing need or attempts to reduce the

dosage. This exposes residents to the needless exposure to the side effects of these

medications.

BSDC utilizes the DISCUS9 for monitoring side effects. The DISCUS is commonly used among mental health practitioners for this purpose. However, our psychology consultant concludes that certain questionable DISCUS scores at BSDC revealed that the staff is not using the DISCUS properly, calling into question whether or not the staff are adequately trained. In any event, more information from side effects and movement disorder monitoring should be

9 DISCUS is the acronym, widely recognized among mental health professionals, for the “Dyskinesia Identification System: Condensed User Scale.”

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included in psychiatric progress notes to document that the clinician is aware of and utilizing this information in decision-making. If risks are not identified, harm to the resident could result.
C. HEALTH CARE AND RELATED SERVICES
The Supreme Court has determined that institutionalized persons with developmental disabilities are entitled to adequate medical care. Youngberg v. Romeo, 457 U.S. at 324. The Court labeled this as one of the “essentials of care that the State must provide.” Id. The Court specifically referenced persons with degrees or training in medicine, nursing, and physical therapy as some of the health care professionals covered by its decision. Id. at 323 n.30.
1. Medical and Nursing Care
In a number of respects, BSDC too often fails to provide residents with adequate health care. The facility fails to develop and implement individualized plans for preventive care consistent with generally accepted practice. Overall, the health care at BSDC is more reactive than proactive, where the residents, especially those with complex and high-risk conditions, often do not receive adequate preventive health care; the facility does not do enough to identify, assess, treat, and monitor these high-risk residents.
In general, the facility does not provide good interdisciplinary care. There is often inadequate collaboration and coordination between and among the various health care disciplines, especially with regard to complicated resident cases. Separate disciplines often fail to work together well, which leads to fragmented silos of health care activity that occur on largely parallel tracks. The multiplicity of charts for the same individual hampers communication among professionals and staff and impedes coordination of efforts. The charts often do not reflect adequately the health care decision-making process. The charts also do not reveal clearly what is happening with residents. Current and future plans for care are difficult to discern from the charts, placing residents at risk of harm because of poor communication and lack of coordination about their care and treatment.
All this has great implications for residents at risk for, among other things, bowel impactions and obstructions, pneumonia and aspiration pneumonia, skin breakdown, seizures, and fractures due to osteoporosis.
Bowel impactions and bowel obstructions are typically preventable conditions, that can lead to discomfort, perforations, and even death, if left unaddressed. Generally accepted practice dictates that care givers must be vigilant and take extra steps to prevent impactions or obstructions, especially among persons with developmental disabilities who are non-ambulatory and face other contributing risk factors. This is a significant concern at BSDC, as the facility identified over two dozen residents who are at “high risk” for impaction or bowel obstruction. This list apparently does not include all those who are truly at risk though. For example, a handful of residents visited or were admitted to a hospital for abdominal issues in the year before our visit, but were not even included on the facility list of those at “high risk.” This includes

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resident VQ (hospitalized in June 2006 for fecal retention with impaction) and resident UP (hospitalized in March 2007 for abdominal pain). It is troubling that from June 1, 2006 to August 31, 2007, the facility listed over a dozen instances where residents had to be transferred to off-campus acute care facilities or emergency rooms to get treatment for impaction, obstruction, or abdominal pain, abdominal distension, or other related conditions. Resident AR (age 37) died on September 12, 2007, after a year of serious abdominal issues, including hospital visits or admissions for abdominal pain in December 2006, intense abdominal pain and a retracted ileostomy in March 2007, abdominal pain and distention in April 2007, and an ileus treatment in May 2007.
Aspiration pneumonia is typically a preventable condition that results from the accumulation of foreign materials (usually food, liquid, or vomit) in the lungs. BSDC lists only ten residents as at “high risk” of aspiration or choking, yet several residents were hospitalized for aspiration- or choking-related events who do not appear on the facility’s high risk list, including resident BS (hospitalized in September 2006 for possible aspiration pneumonia), resident CT (hospitalized that same month for an airway obstruction), resident DU (hospitalized in December 2006 and January 2007 for vomiting blood and respiratory distress), resident EV (hospitalized in March 2007 for aspiration pneumonia), and resident FW (taken to the emergency room in August 2007 for upper air congestion). This calls into question whether or not BSDC is adequately identifying and treating all those residents at risk of aspirating or choking. Resident ZA died in January 2007, with aspiration pneumonia listed as her cause of death. Several other residents are listed as having died or been hospitalized, at least in part, due to pneumonia, although it is not clear if these pneumonia events were caused by aspiration.
A decubitus ulcer or skin breakdown is another entirely preventable condition given appropriate proactive care. As with other conditions, BSDC is failing to identify all those residents truly at risk and this hampers or eliminates the possibility of providing proper preventative services and supports. For example, in 2007, through October 16, the facility reported that nine different residents suffered a skin breakdown. However, BSDC only listed a total of seven residents as at “high risk” for skin breakdown. Moreover, it is troubling that seven of the nine residents who actually suffered from skin breakdown did not appear on the facility’s high risk list. This speaks, in part, to poor communication and coordination between and among various health care disciplines. Although one health care professional might identify a resident as being at high risk for skin breakdown, this information may be buried in a progress note or a consult form, and often does not reach other health care staff critical to the resident’s care. Resident AD suffered numerous skin breakdowns in the year before our visit and there were notations about this in his chart, but he was not on the facility’s list of residents at risk of skin breakdown or on the list of those who had actually suffered skin breakdown. On October 12, 2007, occupational therapy staff evaluated AD and found no problems. Several hours later though, a member of the nursing staff noticed that AD, in fact, was suffering from a stage-two pressure ulcer. The nurse requested that the therapists return promptly to conduct a reevaluation, but this was not done. Instead, three days after the nurse noted the ulcer and made the request, a member of the therapy staff wrote the following note in the file: “The seating system was evaluated by OT on 10/12/07. The seating system continues to be adequate for [AD]

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with no pressure areas noted.” We found other residents who were not included on the risk list even though they had therapist notations that they were at high risk. These examples call into question whether or not BSDC is identifying and properly treating all those who are truly at risk.
At the time of our visit, BSDC listed 193 residents as having a seizure diagnosis of some sort. About 80 percent of these individuals are listed as having active seizures. There are 30 residents who had two dozen or more seizure episodes during the period from June 1, 2006 to August 31, 2007. A number of residents appear to have complex cases characterized by very frequent, poorly-controlled seizures. For example, during this period, resident FI had 210 seizures, resident GX had 100 seizures, resident XY had 128 seizures, resident RF had 106 seizures, and resident HY had 170 seizures. During this period, several residents had to be taken to area hospitals to treat seizures or to address a change in neurological status. Similar to the arrangement with the consultant psychiatrist, the consultant neurologist visits BSDC to see residents about two days per month. This is not enough time to adequately meet the needs of the dozens of residents with often complex seizure disorders at BSDC.
In the year before our visit, 15 BSDC residents died. While two residents had lived into their nineties, three residents died in their thirties – one from aspiration pneumonia, which is typically a preventable condition. Indeed, pneumonia was listed as the cause of death for other BSDC residents. It was troubling to learn that the cause of death for at least two residents was colon cancer; apparently, in these cases, the cancer had progressed and then spread to other parts of the body. These cancer victims were relatively young, aged 44 and 50. It is unclear whether or not the facility took adequate preventive steps to detect the cancer at an early enough stage.
In a facility like BSDC, it is very important to identify whether or not each death was preventable. Given that persons with developmental disabilities may not be able to communicate signs and symptoms well or at all, it may be more difficult for care givers to determine if the course of treatment selected is or was actually working. Effective and in-depth mortality reviews can enhance this incomplete knowledge about the adequacy of care by identifying weaknesses and deficiencies in health care delivery. This can then prompt the development and implementation of remedial measure that will eliminate preventable illness and death for other similarly situated residents. Unfortunately, this is not done well presently at BSDC. The mortality review process at BSDC is inadequate. Rather than conducting a critical and meaningful review of the adequacy of the course of care in the weeks and months leading up to each death at the facility, the mortality review process at BSDC appears to be designed primarily to excuse from further scrutiny the BSDC health care provider(s) involved in the care of the deceased resident. Indeed, our health care consultant looked at two dozen death reviews spanning nearly two years prior to our visit; none contained recommendations about what steps could or should be developed and implemented to eradicate preventable causes in the future.
Infection control at BSDC is often deficient. Although the facility reports the number and types of infections, it fails to follow its own procedures, which also require reporting on whether an infection is caused by a caregiver. Such infections, which are always preventable, may occur, for example, where a caregiver fails to wash his or her hands or use the proper sterile

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procedures. Unfortunately, hand-cleansing facilities are not consistently accessible on all the BSDC units. This is of great concern because proper hand cleansing is critical in the prevention of infectious illnesses and is particularly important in a facility like BSDC, which houses a number of medically fragile residents.
From mid-2006 to mid-2007, BSDC averaged about 125 medication errors per quarter. While there were 158 medication errors in the fourth quarter of 2006, the number had declined to 108 errors in the third quarter of 2007. Although the facility reports no deaths or permanent harm associated with any medication error, nonetheless, some of the medication errors are serious and place residents at risk of harm, sometimes necessitating increased monitoring, and in a handful of cases, observation in a hospital setting. While the facility reports a very low error rate when measured as a percentage of total doses administered, nonetheless, on average, there is more than one medication error every single day at BSDC.
While the health care and other staff are dedicated, it is clear that staffing shortages have compromised care and helped contribute to service delivery problems. There are not enough registered and other nurses at BSDC to meet the needs of the residents. At times, there is inconsistent nursing coverage. Moreover, on-call staff and pulled staff at times contribute to medication errors. Staffing concerns also unnecessarily increase the workload of the nursing and other health care staff.
The BSDC professional health care staff has become unnecessarily isolated from professional organizations or societies related to providing health care and other services for persons with developmental disabilities. Membership and active participation in such entities may provide professional staff with access to up-to-date information and resources in this specialized area and help them provide more effective health care to BSDC residents. The failures in this area may be a consequence of the overworked BSDC staff not having time to tend to professional development.
2. Nutritional and Physical Management
Nutritional and physical management services are a significant aspect of adequate health care services for persons with developmental disabilities. These supports can minimize risks associated with swallowing difficulties, digestion problems, misalignment, and skin breakdown, so as to avoid preventable hospitalizations associated with aspiration pneumonia, gastrointestinal problems, and decubitus ulcers. Unfortunately, residents do not receive adequate nutritional or physical supports at BSDC. In this area especially, vulnerable at-risk residents need proactive care to get ahead of problems that can lead to illness and hospitalization. Current care at BSDC, however, is too reactionary; evaluations are conducted only when a problem arises.
Although BSDC has a dysphagia committee, the committee’s scope is too limited and narrow; it does not proactively and comprehensively address the wide-ranging needs of the very vulnerable population. In fact, the committee does little more than merely address global issues, such as the need for thickening agents for liquids for residents who have difficulty swallowing.

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The committee fails to address the individualized needs and concerns of the highest risk residents at BSDC.
The facility as a whole needs to better identify and address the needs of those residents who are most at risk. Simply having a limited dysphagia team is not enough. More needs to be done to minimize residents’ risk and maximize their skill acquisition. Overall, there needs to be more of a proactive, cooperative, collaborative, systemic team approach to addressing nutritional and physical support issues. Otherwise, the risk of aspiration pneumonia and other gastrointestinal problems and hospitalizations will remain unnecessarily high for certain BSDC residents. Indeed, the lack of such adequate services and supports can be fatal, as it was for IZ, a resident who was fed by g-tube. Several months prior to her death, the dysphagia team reevaluated IZ because she had been having several episodes of increased coughing associated with oral feedings. Instead of discontinuing all oral intake, the facility continued to provide IZ with both g-tube and oral feedings. IZ died shortly thereafter, with the cause of death listed as pneumonia bacteremia, a lung infection that turns into a blood infection. In reviewing the course of IZ’s care, our consultant determined that there was a significant likelihood that aspiration contributed to IZ’s death and that stopping oral intake may have removed a contributing factor to her death. This is potentially a larger issue, as at the time of our visit, there were about 71 BSDC residents who use a feeding tube.
It is positive that the facility has implemented family-style dining for residents. Nonetheless, the facility needs to do more to ensure that individual diets are maintained in the context of family-style meals, especially for those on low-sodium and/or low-calorie diets.
Almost every resident has or is supposed to have an evaluation by physical and occupational therapy staff. Most residents need services and supports from one or both disciplines, with some needing more intensive care. For example, there are 81 residents with a 24-hour re-positioning program and there are 18 residents listed as at “high risk” of developing contractures. Unfortunately, physical and occupational therapy services at BSDC are not adequate. As a result, residents face an increased risk of contractures and deformity, resulting in a loss of independence and functional skills. The implemented plans are rote, not functional, and rather meaningless. To be meaningful, therapy needs to be generalized to all settings, and not just occur in a vacuum at the therapy clinic. At BSDC, however, the therapy provided is too often not integrated back to the residents’ lives. For example, merely lifting a leg weight at the clinic may not easily translate to a resident’s increased function in a real-life setting outside the clinic. Moreover, too often, goals for residents are set at levels the person has already achieved – and written plans are essentially identical year after year. In short, it appears that the mindset at BSDC is that maintenance is acceptable. None of this helps the residents learn or acquire skills so that they can gain functional independence in their current setting and later, in the community. To the contrary, BSDC’s current system allows for regression, and may even play a role in helping to prevent certain residents from being placed back in the community.
It is critical that facilities like BSDC design and implement plans that meet the individual needs of each resident, instructing staff how to perform activities like positioning the resident in

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a wheelchair or applying braces or orthotics. Nonetheless, BSDC fails to implement any such plans. Although instructions for the use of assistive devices like wheelchairs and braces generally are located on the units, these are broad blanket directions, and do not take into account residents’ particular needs. Further, the facility fails to monitor residents’ progress in a timely manner, and instead, simply conducts re-evaluations in the normal course, and not always when changed circumstances dictate.
On the positive side, while at the facility, we observed an excellent hands-on training session given by two of the therapists. We are unclear, however, as to whether this is representative of all the therapy training offered, and whether the trainers go on-site to check on the continued competence of the staff.
Assistive technology is also a critical component of providing adequate communication and other supports to persons with developmental disabilities. There are about 117 residents with some form of speech or communication program, 37 residents with a communication device, and 17 residents with adaptive equipment for hearing assistance (6 residents elect not to use the devices). Unfortunately, BSDC’s approach to assistive technology is fragmented and not team-oriented. BSDC lacks sufficient coordination and collaboration between and among the various disciplines, especially with regard to the need for proper communication devices on wheelchairs. For example, communication goals and expected outcomes for communication should be part of any assessment for assistive technology, such as seating or other mobility devices. The therapists involved in the assessment and selection of assistive technology must work closely together to meet each resident’s individualized needs. At BSDC, however, individual therapists conduct unilateral assessments for each aspect of the assistive technology, with no documentary evidence in the charts or elsewhere that they collaborate with one another. As a result, particular pieces of assistive equipment too often do not meet the comprehensive needs of the resident for whom they are intended.
In addition, the facility fails to provide sufficient assistive communication systems to all residents who would benefit from such supports. Although it is positive that the high-tech assistive communication devices we observed at the facility were all operational, the facility does not provide sufficient low-tech systems, which may benefit many other residents who require assistive technology supports for independent communication.
Finally, as is true in other areas, staffing concerns exist within the disciplines that provide health care and nutritional and physical supports to BSDC residents. Currently, BSDC does not have enough clinicians to provide adequate physical therapy, occupational therapy, or speech therapy to meet the needs of residents who require these services. For example, despite the fact that communication is a basic need of all residents, the facility has only two speech therapists; a third speech therapy position was frozen at the time of our visit. Two speech therapists are not enough to meet the needs of BSDC residents.

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D. SERVING PERSONS IN THE MOST INTEGRATED SETTING APPROPRIATE TO THEIR INDIVIDUAL NEEDS
In addition to providing residents with adequate safety, training and behavioral services, freedom from undue restraints, psychiatric care, health care, and other related supports and services, federal law requires that the State actively pursue the timely discharge of institutionalized residents to the most integrated, appropriate setting that is consistent with the residents’ needs.
In construing the anti-discrimination provision contained within the public services portion (Title II) of the Americans with Disabilities Act (“ADA”), the Supreme Court held that “[u]njustified [institutional] isolation . . . is properly regarded as discrimination based on disability.” Olmstead v. L.C., 527 U.S. 581, 597, 600 (1999). Specifically, the Court established that states are required to provide community-based services and supports for persons with developmental disabilities when the state’s treatment professionals have determined that community placement is appropriate, provided that the transfer is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities. Id. at 602, 607.
The regulations promulgated pursuant to the ADA provide: “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (the integration regulation). The preamble to the regulations defines “the most integrated setting” to mean a setting “that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A at 450.
Further, with the New Freedom Initiative, President George W. Bush announced that it was a high priority for his Administration to tear down barriers to equality and to expand opportunities available to Americans living with disabilities. As one step in implementing the New Freedom Initiative, on June 18, 2001, the President signed Executive Order No. 13217, entitled “Community-Based Alternatives for Individuals with Disabilities.” Specifically, the President emphasized that unjustified isolation or segregation of qualified individuals with disabilities in institutions is a form of prohibited discrimination, that the United States is committed to community-based alternatives for individuals with disabilities, and that the United States seeks to ensure that America’s community-based programs effectively foster independence and participation in the community for Americans with disabilities. Exec. Order No. 13217, §§ 1(a)-(c), 66 Fed. Reg. 33155 (June 18, 2001). The President directed the Attorney General to “fully enforce” Title II of the ADA, especially for the victims of unjustified institutionalization. Id. at § 2(c).
Where community transition does occur, the state is responsible for providing adequate follow-along services. See Armstead v. Coler, 914 F.2d 1464, 1467 (11th Cir. 1990); Thomas S. v. Brooks, 902 F.2d 250, 254-55 (4th Cir. 1990); Halderman v. Pennhurst State Sch. and Hosp., 834 F. Supp. 757, 766 (E.D. Pa. 1993). These follow-along services should include face-to-face

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visits with the transitioned resident; interviews with staff, family, and guardians; and careful review of the transitioned resident’s records. Accordingly, the State should utilize measurable criteria by which to ensure that transitions from BSDC are implemented as planned and that individuals transitioned are safe and healthy in their new environments.
As set forth below, the State is failing to comply with the ADA with regard to placing persons now living in BSDC in the most integrated setting appropriate to their needs.
1. Community Placements from BSDC
In general, there appears to be a sensitivity within the State to the importance of serving persons with developmental disabilities in the most integrated community setting according to their individualized needs. We understand that the State’s position is that almost all BSDC residents could be served in the community with adequate and appropriate protections, supports, and services. Indeed, the Nebraska Health and Human Services Department system manual emphasizes that the State strives to offer a community system of supports and services intended to allow individuals with developmental disabilities “to maximize their independence as they live, work, recreate, and participate in their communities.” It is notable that the State’s policy is that all placements at the BSDC institution are considered to be temporary. A separate State policy provides that all individuals residing at BSDC are eligible for referral for placement from BSDC and for transition to a community provider. Indeed, throughout our visit, BSDC staff acknowledged that persons with developmental disabilities generally can benefit from community placement. In spite of this, the State has not yet developed a written “Olmstead Plan,” which most states have developed to foster placement of persons with developmental disabilities to more integrated community settings.
As of August 31, 2007, the State reported that 296 current BSDC residents – over 90 percent of the overall census – had an interdisciplinary team recommendation for community placement. The team recommendations are contained in individual BSDC Personal Plans. Invariably, the BSDC team determines that a referral for placement “should be continued.” It is positive that there are written individual team determinations with regard to placement in the most integrated setting.
In spite of all this, the number of residents discharged from BSDC to integrated community placements has been very low and has stagnated over recent years. As of midOctober, BSDC had placed only two residents into integrated community settings in 2007. In the previous five years, BSDC placed a total of only 14 residents into the community – an average of less than three per year. Not a single resident was placed into the community in all of calendar year 2005. In the last 10 years, BSDC has never placed more than six residents in any given year into integrated, non-institutional settings. As a result, it is clear that team recommendations are not being implemented and that many BSDC residents who have been assessed as appropriate for community placement remain in the segregated institution.

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The census at BSDC has slowly but steadily decreased in the past 10 years. In 1997, BSDC served 401 residents; as of mid-October 2007, BSDC served 322 persons. However, the number of residents has decreased not because of increased community placements, but, especially in recent years, almost exclusively due to resident deaths and facility transfers to other restrictive settings such as nursing homes or other institutions. Thus far in 2007, 11 residents have died and 15 residents were transferred to other restrictive settings; this accounted for over 95 percent of the changed census number from 2006. A very similar situation existed the previous year. There were 11 resident deaths and 10 discharges to other institutional settings; this accounted for over 90 percent of the changed census number from 2005. The emphasis on transferring residents to other restrictive settings is a relatively new phenomenon. For example, from 1997-2004, only three residents had been transferred to another restrictive setting; since then, 31 residents have been referred to nursing homes or other institutions.
The small number of community placements is troublesome because not all BSDC residents are difficult to place. While it may be true that some of those who live at BSDC may have unique care considerations and face more barriers to placement than others, this does not mean that they cannot be placed with appropriate protections, services, and supports.10
2. Barriers and Impediments to Community Placement
It appears that the opposition of certain parents and guardians is a significant barrier at times to effecting placement determinations. As of March 2007, the facility estimated that about 76 percent of BSDC guardians were not willing to consider community placement options. We learned that if a family member or guardian expresses opposition or lack of interest in community placement, the resident’s Personal Plan invariably concludes that continued stay at BSDC is appropriate at this time, regardless of the team’s separate determination on the appropriateness of community placement. This is true for a wide variety of BSDC residents, including those who enjoy community visits, are stable, are very capable, and have team goals to be more independent.
It appears that few meaningful activities are undertaken to help support placement efforts from BSDC as long as a parent or guardian is not in agreement. This is unfortunate, especially in those cases where BSDC residents have expressed an eagerness to leave the facility to live in the community, but cannot leave because of outside opposition. The State has recognized that BSDC guardians sometimes make decisions that do not support a resident’s choices and goals, which often include community placement.
10 Shortly after our on-site visit, the State announced its intent to “right-size” the facility to serve fewer people at BSDC by determining if additional persons could be served in the community. There were no details as to how many residents might be impacted or when or where placements might occur.

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Much of the opposition appears to be driven by unfounded fears or a lack of knowledge about community alternatives that are or could be developed. The State has not done enough to work with parents and guardians to better educate them about community options so as to better ensure that their decisions about placement are truly informed ones. Indeed, BSDC staff informed us that it was their belief that parents and guardians would be more open to community placement if the State could provide them with more information and tangible assurances of safety. The State has not done enough to create forums where family members and guardians can ask questions, share information, and exchange transition success stories and how to overcome placement challenges. The State has not done enough to facilitate on-site visits to successful community homes. Moreover, the State has not done enough to alert families and guardians about new community provider home openings as they become available.
Another significant barrier is the lack and/or perceived lack of available community resources, including inadequate community provider expertise and capacity. This is especially significant for persons with involved health care needs and/or mental health/behavioral concerns. For example, the State does not appear to have developed viable integrated community alternatives to congregate nursing homes for persons with involved health care needs. Moreover, other than the few individuals impacted each year by the OTS program, which is discussed below, the State appears to provide inadequate expertise and support to placed individuals and to their providers when behavioral and mental health concerns and crises emerge. Especially in more rural parts of the State, there are relatively few psychiatrists with expertise in treating persons with developmental disabilities; local doctors may not have the experience to provide the psychiatric care needed for this often challenging population.
The community resources barrier appears to be having a tangible impact on whether appropriate BSDC residents must remain institutionalized indefinitely or whether they can move into more integrated community settings. Inadequate community resources, including inadequate community provider expertise and capacity, may slow transition efforts or render community placement unrealistic in some cases. Moreover, inadequate community resources, whether real or perceived, may chill families, guardians, and even BSDC teams from pursuing needed and worthwhile community alternatives for BSDC residents.
It is not clear that the State has done enough to identify and eliminate inadequate resource and capacity issues to meet the needs of BSDC residents who are appropriate for community placement. It appears that State efforts are not proactive, exhaustive, or in-depth in certain individual cases, especially when it is known that there is family or guardian opposition. For example, right now, BSDC appears to do nothing more than make a routine overture to the pertinent Regional Service Area11 to determine whether adequate community resources exist or can be created to accommodate the resident in question. However, community providers
11 The State of Nebraska’s Health and Human Services System is administratively divided into five regions or Service Areas: Northern, Eastern (Omaha metropolitan area), Southeast, Central, and Western.

- 35 -

typically do not create community homes and community resources, or even respond to State community service referral requests when the providers know that a parent or guardian is opposed to placement. Often, BSDC teams proceed with annual meetings without having received clear guidance from the Service Area on community resources or capacity. In this rather passive framework, it is unlikely that placement settings will be created for those BSDC residents who need or want to live in the community.
As a result of all this, an unfortunate cycle has been created: community resources are not developed because parents and guardians oppose and the parents and guardians oppose because sufficient community resources have not been developed. The State has not done enough to break this cycle by creating sufficient incentives for community providers to respond to service referral requests and to develop homes and resources to meet the placement needs of BSDC residents.
In the handful of instances each year where a BSDC resident is to be transitioned to the community, it appears that the transition and placement process is a considered and thoughtful one. The State reports that, in a series of transition meetings, there is an attempt to tailor the setting for the individual, address accessibility issues, and find a proper mix of clients for each home. The State reports that the transitioning individual makes a couple of pre-placement visits to the home to better ensure that it will be a good fit. The State reports little post-placement recidivism of discharged residents back to BSDC or to another institutional setting. This is one marker that the transitions have been successful, at least in the short-term. The State appears to place an appropriate emphasis on serving clients in smaller settings. For example, in the Southeast Service Area, over 95 percent of the clients with developmental disabilities live in homes of five or fewer persons; the average number of persons in one setting is about two to three per home.
The individuals in these homes are supported by service coordinators who are to oversee the care and services they receive in the community. The richest average ratio is one service coordinator for every 23 clients in the Western Service Area; the poorest average ratio is in the Eastern Service Area at 1:30. There are no separate intensive service coordinator services with even richer ratios for persons with more involved and complex needs. It may be that vast geographical coverage areas, lack of community expertise and infrastructure, or other variables may necessitate richer ratios in order to meet the needs of the clients placed in the community. This is especially true for persons with behavioral issues and/or mental illness. Our psychology consultant noted that service coordinators are dispersed around the state and have limited time to advocate for the placement of a particular BSDC resident in the community and to support his or her retention there.
Problems with service-delivery and monitoring in the community appear to be having a direct, negative impact on the health and welfare of a number of clients with developmental disabilities who live in the Nebraska community system. During our visit, for example, we learned that a number of community clients have experienced significant problems associated with their inadequately addressed behaviors and/or inadequately treated mental illness. We

- 36 -

learned that, in response to the rise or escalation of a new or ongoing behavior problem, too often clients are subjected to the administration of a large number of (often inappropriate) psychotropic or other medications. There is an issue as to whether particular community professional and other staff have the expertise needed to adequately treat persons with developmental disabilities who may have behavior problems or a dual diagnosis of mental illness. It seems clear that the State has not done enough to ensure that adequate behavioral supports and psychiatric care are provided to clients in the community. In particular, the State has not done enough to provide technical assistance or expert guidance to community teams, guardians, or providers to ensure that a solid professional is providing adequate input or actual direct professional services to placed individuals with problem behaviors or mental illness.
As referenced above, problems in the community like this have a negative impact on current BSDC residents as well. If the State does not identify and resolve such community problems, certain BSDC residents, who are entitled to adequate and integrated community placements, will not have a viable alternative to ongoing, unduly restrictive care at the BSDC institution. For example, BSDC teams may not recommend or take meaningful steps toward community placement if the teams suspect that needed protections, supports, and services are not in place in the community. Parents and guardians, influenced by anecdotes of poor community care, may not support or take affirmative steps to help implement team recommendations for placement. Finally, community providers may not accept certain BSDC residents with difficult behaviors or mental illness simply because the State has not provided the providers with the needed expertise, guidance, and support to meet the individualized needs of the person.
The State currently underutilizes expertise and resources at the various local and State colleges and universities that maintain programs related to providing protections, supports, and services to persons with developmental disabilities. Our psychology consultant observed that, during his on-site tour of BSDC, he met no students, which he found unusual. He noted that academic ties typically bring expertise, energy, as well as new and helpful research and practices to State programs and activities. Strengthening ties to such university programs would enable the State to tap into local expertise to help solve ongoing and outstanding problems, especially with regard to serving and supporting clients in the community, offering integrated habilitation and other community activities, treating behavior problems, reducing the use of restraints, providing psychiatric care and services, and providing proactive health care.
There does not appear to be any fiscal impediment to transferring BSDC residents to the community. On average, the cost to serve a person with developmental disabilities at BSDC is about twice the cost in the community. In fiscal year 2008, the annualized per diem cost to serve a resident at BSDC is over $142,000.00; last year’s support costs for persons on the State’s comprehensive waiver (receiving both day and residential services, including service

- 37 -

coordination, specialized services, room and board, and medical costs) was only about $71,000.00.12
In spite of this, there is an ongoing concern that competition for limited community funds between BSDC residents and persons on the State’s waitlist could pose a barrier or a yearly limit to placements from BSDC. As of September 21, 2007, Nebraska served a total of 3,499 persons with developmental disabilities in community services. In addition, there are 2,665 other persons with developmental disabilities on the State’s waitlist for community services: 1,319 persons who receive limited community services and service coordination, and 1,346 persons who receive only service coordination.
3. Outreach and Intensive Treatment Services Program
The State has a small but worthwhile program at BSDC that helps keep persons with developmental disabilities from being institutionalized long-term. The State’s Outreach and Intensive Treatment Services program is headquartered at BSDC and consists of two branches: the Outreach Treatment Services (“OTS”) program and the Intensive Treatment Services (“ITS”) program. The OTS program provides intensive consultation services on-site in natural community settings throughout the entire State of Nebraska for persons with developmental disabilities who are experiencing behavioral difficulties such as physical aggression, property destruction, and verbal aggression. About 80 percent of OTS-consulted individuals have had a dual diagnosis of mental retardation and mental illness. Over the course of several days, the OTS professionals identify the function and the context of challenging behaviors and then develop tailored and individualized recommendations, with specific interaction guidelines, intervention methods, and environmental modifications, for community teams to implement. OTS then provides limited follow-up contact for a short time thereafter.
The laudable goal at OTS is to support positive behavioral change to keep individuals as independent as possible, and in familiar surroundings in their homes in the community – away from more restrictive placements such as hospitals, nursing homes, psychiatric facilities, and other institutions like BSDC. OTS reports a high degree of success with good outcomes. OTS reports that the vast majority of local teams fully implement OTS behavioral and other recommendations. Most importantly, OTS reports that the individuals are typically able to maintain their community placement and other services, thus avoiding institutionalization. Such successes are very positive.
The ITS program provides short-term, in-patient behavioral treatment services for persons with developmental disabilities on a small, eight-bed unit on the BSDC campus. Invariably, all eight beds are full at any given time. The individuals served in the ITS often have
12 The Federal Government, through the Medicaid Program, pays for over half (about 58 percent) of the costs of institutional care at BSDC, as well as the costs of community care through the Medicaid Waiver program.

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been involved in serious behavioral incidents including physical aggression, verbal aggression, property destruction, self-injurious behavior, refusal to perform essential tasks, and elopement. ITS professionals try to stabilize individuals, identify the function and context of their challenging behaviors, and then develop and implement tailored and individualized recommendations to reduce these behaviors. We learned that it is common for the ITS to have to reduce and/or eliminate the use of certain inappropriate psychotropic medications that had been prescribed in the community. For example, in 2005, the ITS effected 144 psychotropic medication changes; in 2003, the number was 266. Typically, there are issues related to polypharmacy, dosage, and appropriateness of the medications. Ultimately, the ITS seeks to transport the person back to the community within about three to four months with a better individualized support/behavior plan supported by a proper mix of psychotropic medications, if necessary. The ITS assists with the transition so as to better ensure success in the community. The ITS then provides limited follow-up contact for a short time thereafter.
While overall this is a worthwhile initiative, there is a lingering concern that too many individuals do not return to the community after admission to the ITS, even though the State tries to avoid this. In 2005, 10 of 16 individuals discharged from the ITS were admitted to BSDC long-term; from 1997-2004, almost one-third of ITS admissions ended up at BSDC or another institutional setting. The ITS reports that some of these individuals had engaged in what would be considered criminal activity, and that this made them difficult to place. This may also account for the rather lengthy stays at the ITS; in 2005, the average length of stay was about six months, with one stay extending for 419 days. This undercuts ITS’s role as a “short-term” program.
Both the OTS and the ITS are creative programs that appear to be having a positive impact on preventing certain individuals with developmental disabilities from being institutionalized long-term. If anything, these programs should be strengthened and expanded so that they reach more people. Indeed, since 1997, the ITS has involved an average of only 14 persons per year; as of mid-October, the ITS was on a pace to serve only 10 persons in 2007. OTS personnel have averaged only about three dozen community visits per year since 2000, and the number of client outcomes achieved has been rather modest – the OTS closed 44 cases in 2006 and only 19 cases in 2005. Moreover, neither of these programs appears to be large enough now to meet current needs. For example, as of October 15, 2007, there were 21 individuals identified as waiting to get into the ITS; several persons have been waiting for over a year. Many other persons could receive OTS services each year if the program had a larger capacity.
The State does not make enough of a concerted effort to identify systemic issues from the individual cases arising under the OTS and the ITS that may cause community placements to fail and place individuals at risk of institutionalization. The ad hoc approach adopted thus far to address individual community problems has not led to the identification and development of systemic solutions to prevent these problems from recurring for a much larger group of similarly situated persons with developmental disabilities. Such an approach could address outstanding concerns associated with community health care, behavioral and mental health issues, individual

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crises, provider frustration and failures, and resource limitations especially with regard to service delivery in rural areas.
4. Bridges
As referenced above, at any given time, about a dozen persons with developmental disabilities live at the newly-created Bridges unit in Hastings, Nebraska. The Bridges facility is a BSDC-affiliated program, but it receives no federal funds to operate. This program treats persons with severe behavioral problems and/or a dual diagnosis of mental retardation and mental illness. The Bridges is a more restrictive and confining facility, located on a rather isolated campus, and its residential unit is locked. Each resident has his or her own room on this unit. The State informs us that it has taken more restrictive measures here because the individuals served at Bridges typically have been involved in serious incidents, including alleged sexual assault, that led to the involvement of law enforcement. Indeed, we understand that a few residents at Bridges would be prosecuted if released from the program. It was clear that most of the residents of the Bridges facility likely would be in jail if not for this program.
In spite of this, facility staff have taken efforts to keep residents involved somewhat in the community. Staff informed us that each resident goes to the community about four times per month for an hour or two at a time. Typically, the residents are provided with 2:1 staffing. Staff acknowledged that lack of staff can sometimes pose a barrier to community visits. Apparently, the residents do well on the community trips and restraints are never needed. We understand that in the community, the residents are happier, less bored, and exhibit fewer problem behaviors. Staff informed us that they continue to pursue community alternatives for the residents, albeit with plans for heightened supervision and protections.
In order to help pave the way for possible placement, facility staff engage the residents throughout each day in various programs, including individual therapy, coping strategy exercises, and social appropriateness programs. Vocational activities occur on a separate floor from the residential unit in the same building. There is a restraint room on the residential unit where residents are subjected, at times, to multi-point mechanical restraints during behavioral episodes. Given limited time and the logistics of conducting a full team review so far from Beatrice, we did not engage in an in-depth analysis of the adequacy of these programs and whether or not facility staff were adequately addressing the often very difficult problem behaviors that led to the residents’ placement at Bridges. Nonetheless, it appeared that the staff knew the residents very well and were working diligently toward helping the residents to meet their needs.
III. MINIMUM REMEDIAL MEASURES
To remedy the identified deficiencies and protect the constitutional and statutory rights of BSDC residents, the State should implement promptly, at a minimum, the remedial measures set forth below:

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A. Protection from Harm
1. Procure adequate direct care staff and other staff hours to meet the needs of the residents.
2. Ensure that residents are supervised adequately by trained staff and that residents are kept reasonably safe and protected from harm and risk of harm.
3. Develop and implement adequate policies and procedures regarding timely and complete incident reporting and the conduct of investigations of serious incidents. Train staff and investigators fully on how to implement these policies and procedures. Centrally track and analyze trends of incidents and injuries, especially fractures, lacerations, and injuries of unknown origin, so as to develop and implement remedial measures that will prevent future events. Include systemic recommendations in investigation reports and ensure the prompt implementation of remedial measures to prevent future occurrence of incidents and injuries.
B. Training, Habilitation, Behavioral Services, Restraints, and Psychiatric Services
1. Provide residents with adequate training, including behavioral and habilitative services, needed to meet the residents’ ongoing needs. These services should be developed by qualified professionals consistent with accepted professional standards to reduce or eliminate risks to personal safety, to reduce or eliminate unreasonable use of bodily restraints, to prevent regression, and to facilitate the growth, development, and independence of every resident. To this end, the facility should take the following steps:
(A) Ensure that all residents receive meaningful habilitation daily. Ensure that there is a comprehensive, interdisciplinary habilitative plan for each resident for the provision of such training, services and supports, formulated by a qualified interdisciplinary team that identifies individuals’ strengths, needs, preferences, and interests. Ensure that the plans address the residents’ needs, preferences, and interests in an integrated fashion that utilizes the individuals’ existing strengths. Ensure that staff are trained in how to implement the written plans and that the plans are implemented properly.
(B) Provide an assessment of all residents and develop and implement plans based on these assessments to ensure that residents are receiving vocational and/or day programming services in the most integrated setting appropriate to meet their needs. Ensure that there is sufficient staffing and transportation to enable residents to work off campus or attend off-campus programming or activities when necessary.
(C) Provide residents who have behavior problems with an adequate functional assessment so as to determine the appropriate treatments and interventions for each person. Ensure that this assessment is interdisciplinary and incorporates

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medical and other unaddressed conditions that may contribute to a resident’s behavior.
(D) Develop and implement comprehensive, individualized behavior programs for the residents who need them. Through competency-based training, train the appropriate staff how to implement the behavior programs and ensure that they are implemented consistently and effectively. Record appropriate behavioral data and notes with regard to the resident’s progress on the programs.
(E) Monitor adequately the residents’ progress on the programs and revise the programs when necessary to ensure that residents’ behavioral needs are being met. Provide ongoing training for staff whenever a revision is required.
2. Ensure that highly restrictive interventions or restraints are never used as punishment, in lieu of training programs, or for the convenience of staff. To this end, the facility should take the following steps:
(A) Develop and implement a protocol that places appropriate limits on the use of all restraints, especially the use of physical holds and one-point, two-point, threepoint, four-point, and five-point restraints, as well as the routine use of emergency chemical restraints. Ensure that only the least restrictive restraint techniques necessary are utilized, and, that restraint use is minimized.
(B) Ensure that ineffective behavior programs that may contribute to the use of restraints are modified or replaced in a timely manner. For those individuals subjected to chronic use of restraint associated with difficult behavior problems, obtain outside expertise to help the facility address the persons’ behavior problems in an attempt to reduce both the behaviors and the use of restraint.
3. Provide adequate psychiatric services consistent with accepted professional standards to residents who need such services. To this end, the facility should take these steps:
(A) Procure adequate psychiatry hours to meet the needs of the residents.
(B) Ensure that each resident with mental illness is provided with a comprehensive psychiatric assessment, a DSM-IV diagnosis, appropriate psychiatric treatment including appropriate medication at the minimum effective dose that fits the diagnosis, and regular and ongoing monitoring of the psychiatric treatment to ensure that it is meeting the needs of each person. Ensure that the psychiatrist(s) provide new assessments and/or revisions to any aspect of the treatment regimen whenever appropriate. Ensure that psychiatric services are developed and implemented in collaboration with facility psychologists and other disciplines such, as neurology, when warranted, to provide coordinated behavioral care.

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(C) Ensure that psychotropic medication is only used in accordance with accepted professional standards and that it is not used as punishment, in lieu of a training program, for behavior control, in lieu of a psychiatric or neuropsychiatric diagnosis, or for the convenience of staff. Ensure that no resident receives psychotropic medication without an accompanying behavior program.
C. Health Care and Clinical Services
1. Provide adequate medical care, nursing, and therapy services consistent with accepted professional standards to residents who need such services. To this end, the facility should take these steps:
(A) Procure adequate medical care, nursing, and therapy hours to meet the needs of the residents.
(B) Provide each resident with proactive, coordinated, and collaborative health care and therapy planning and treatment based on his or her individualized needs.
(C) Establish a formalized mechanism for identifying each resident with nutritional and physical support needs, including but not limited to persons who are at risk of choking/aspirating, have swallowing difficulties, require assistance to eat or drink, or receive enteral feedings or are a candidate to do so.
(D) Ensure that a specialized and qualified interdisciplinary team proactively addresses nutritional and physical support needs for those residents who require them. The team should meet regularly for review and should include, at a minimum, representatives from the disciplines of medical care, nursing, nutrition, dysphagia, and physical, occupational, speech, and respiratory therapy.
(E) Develop and provide a comprehensive individualized assessment of each resident who is in need of occupational therapy, physical therapy, speech therapy, assistive technology, and mealtime and physical assistance supports. Ensure that therapists’ assessments identify individualized functional outcomes for therapy supports and services.
(F) Ensure that all residents with therapy needs identified through the assessment process receive appropriate supports and services according to generally accepted professional standards.
D. Serving Persons in the Most Integrated Setting
1. Provide services to individuals with developmental disabilities in the most integrated setting appropriate to their needs. To this end, the facility should take these steps:

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(A) Conduct and update reasonable interdisciplinary assessments of each resident to determine whether the resident is in the most integrated setting appropriate to his/her needs. Ensure that those performing these assessments have adequate information regarding community-based options for placements, programs, and improvement.

(B) If it is determined that a more integrated setting would appropriately meet the individual's needs and the individual does not oppose community placement, promptly develop and implement a transition plan that specifies actions necessary to ensure safe, successful transition from the facility to a more integrated setting, the names and positions of those responsible for these actions, and corresponding time frames.

(C) Develop and implement an initiative to address barriers to placement, including capacity and expertise issues in the community, especially related to providing integrated services to persons with behavioral and/or mental health concerns.

(D) Monitor community-based programs to ensure program adequacy and the full implementation of each individual's habilitation and service plan.

(E) Strengthen and augment OTS and ITS efforts to prevent long-term
 institutionalization of persons with developmental disabilities. 


IV. CONCLUSION

* * * * * * *

The collaborative approach the parties have taken thus far has been productive. We hope to continue working with the State in an amicable and cooperative manner to resolve our outstanding concerns with regard to BSDC.

Please note that this findings letter is a public document. It will be posted on the website of the Civil Rights Division. While we will provide a copy of this letter to any individual or entity upon request, as a matter of courtesy, we will not post this letter on our website until 10 calendar days from the date of this letter.

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

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

John Wyvill Director, Division of Developmental Disabilities Nebraska Department of Health and Human Services
Ron Stegemann Chief Executive Officer Beatrice State Developmental Center
Joe W. Stecher
 United States Attorney
 District of Nebraska


 
 8:08-cv-00271-RGK-DLP Doc # 114 Filed: 07/22/15 Page 1 of 4 - Page ID # 1269

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF NEBRASKA, et al.,

)

)

Defendants.

)

)

___________________________________ )

8:08-CV-271 (RGK)

PARTIES’ JOINT MOTION TO DISMISS For the reasons set forth in their accompanying memorandum in support, the parties, by and through their undersigned counsel, hereby jointly move the Court to terminate the Settlement Agreement (ECF No. 10, July 2, 2008) in this case and to dismiss the case with prejudice on the grounds that Defendants have implemented and maintained implementation of the provisions of the Agreement. In support of this motion, the parties direct the Court’s attention to the accompanying memorandum and the index and attached evidentiary materials filed contemporaneously with this motion. /

/

/

8:08-cv-00271-RGK-DLP Doc # 114 Filed: 07/22/15 Page 2 of 4 - Page ID # 1270 2

Date: July 22, 2015

Respectfully submitted,
FOR THE UNITED STATES, PLAINTIFF:
VANITA GUPTA Principal Deputy Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General
JUDITH C. PRESTON Acting Chief Special Litigation Section
BENJAMIN O. TAYLOE, JR. Deputy Chief Special Litigation Section
/s/ Richard J. Farano RICHARD J. FARANO [DC Bar #424225] Senior Trial Attorney United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 5020 Washington, DC 20530 Telephone: (202) 307-3116 Fax: (202) 514-0210 richard.farano@usdoj.gov

8:08-cv-00271-RGK-DLP Doc # 114 Filed: 07/22/15 Page 3 of 4 - Page ID # 1271 3

Date: July 22, 2015

FOR THE STATE OF NEBRASKA DEFENDANTS:
/s/ Gregory J. Walklin GREGORY J. WALKLIN [NE Bar #24210] Special Assistant Attorney General Nebraska Dep’t of Health and Human Services Legal Services 301 Centennial Mall South P.O. Box 95026 Lincoln, NE 68509 Telephone: (402) 471-3520 Fax: (402) 471-9518 gregory.walklin@nebraska.gov

8:08-cv-00271-RGK-DLP Doc # 114 Filed: 07/22/15 Page 4 of 4 - Page ID # 1272 4
CERTIFICATE OF SERVICE
I hereby certify that on July 22, 2015, I electronically filed the parties’ joint motion to
dismiss with the Clerk of the Court using the Court’s electronic case filing system, which will
serve copies of the document on all parties of record.
Respectfully submitted,
/s/ Richard J. Farano RICHARD J. FARANO [DC Bar #424225] Senior Trial Attorney United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 5020 Washington, DC 20530 Telephone: (202) 307-3116 Fax: (202) 514-0210 richard.farano@usdoj.gov

 
 8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 1 of 50 - Page ID # 1273

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF NEBRASKA, et al.,

)

)

Defendants.

)

)

___________________________________ )

8:08-CV-271 (RGK)

MEMORANDUM IN SUPPORT OF THE PARTIES’ JOINT MOTION TO DISMISS

For the reasons set forth below, the parties jointly move the Court to dismiss this case

with prejudice given the State’s sustained compliance with the terms of the remedial Settlement

Agreement in this case. This memorandum outlines a success story, where the State has

implemented reforms that have transformed its service-delivery system for people with

developmental disabilities (“DD”), greatly expanded/enhanced community capacity, minimized

reliance on institutional services, and generally improved outcomes for people with DD.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Notice of Investigation, Investigation, Findings Letter

On May 29, 2007, the United States notified then-Governor Dave Heineman, that it

would be investigating the State’s largest DD institution – the Beatrice State Developmental

Center (“BSDC”). From October 15-19, 2007, the United States conducted an onsite review of

BSDC with a team of expert consultants. Through BSDC, the State also operated “Bridges” – an

isolated, highly-secure, and restricted residential facility – on a separate campus. The United

States conducted an onsite review at Bridges contemporaneous with the visit to BSDC. BSDC

and Bridges were the only State-run institutions for persons with DD in Nebraska.

8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 2 of 50 - Page ID # 1274 2
A primary focus of the investigation was determining whether the State was complying with the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134 (Part A), as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999), requiring that individuals with disabilities receive services and supports in the most integrated setting appropriate to their needs.
On March 7, 2008, the United States issued findings detailing systemic conditions and practices that it found violated the constitutional and statutory rights of individuals with DD in the State’s system. The United States found that: BSDC and Bridges residents frequently experienced abuse, neglect, harmful restraints, and avoidable serious injuries; residents’ serious behaviors were inadequately addressed; residents’ health care needs were often unmet; and residents did not receive services in the most integrated setting as required by the ADA and Olmstead, with significant barriers to community placement.
B. Court-Ordered Settlement Agreement Shortly after the United States issued its findings, the parties reached agreement on a
remedial consent decree, entitled “Settlement Agreement,” which was filed with the Court on June 30, 2008. On July 2, 2008, the Court entered the Agreement as an order of the Court.
The Agreement addressed all of the deficient areas set forth in the United States’ findings letter. It required the State to remedy health, safety, and welfare issues at BSDC and Bridges, and to significantly expand and enhance community capacity to ensure positive individual outcomes in integrated settings. The Agreement emphasized the need to transition institutionalized people to the community.
The Agreement specified a soft target of four years for Nebraska to fully implement all requirements, but specified that the Court was to retain jurisdiction until the State implemented all Agreement provisions and maintained implementation for one year.

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C. Scope of the Impact of the Settlement Agreement The Agreement’s target population includes anyone who resides or resided at BSDC or
Bridges on or after the United States’ onsite investigation in October 2007, a total of 353 people.1 However, the overall impact of the Agreement was not limited to this group. The Agreement addresses both community services and reforms in the institutions. Early on, the parties agreed that the State would not create a bifurcated DD system, where reforms and enhanced community capacity would only reach those hundreds who were or had been institutionalized. Instead, the State agreed to expand community services to benefit everyone in its DD system, regardless of whether they had ever lived at a State-run institution. As a result, the reach of the Agreement has extended far beyond the institutions, and instead, has positively impacted the almost 5,000 individuals served by community providers throughout Nebraska.
D. Independent Court Monitor The Agreement provides for independent oversight and compliance reporting by a court
monitor, called the “Independent Expert.” Maria E. Laurence has served in this role since December 2009. Ms. Laurence, along with a team of experts, has conducted regular, in-depth reviews of the State’s DD system, including onsite reviews at BSDC, Bridges, and various community sites. On December 3, 2014, Ms. Laurence issued her latest compliance report (hereinafter “IE Rep.”), which is attached as Appendix A to the parties’ index of evidentiary materials, filed contemporaneously with the instant motion and supporting memorandum. All “Appendix” designations in this memorandum refer to attachments to the accompanying index of evidentiary materials.
1 On the last day of the investigation, there were 325 residents at BSDC and 12 residents at Bridges. Since then, the State admitted 12 more people to BSDC and four people to Bridges.

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II. INTEGRATED COMMUNITY SERVICES A. Placement/Services in the Most Integrated Setting
The principal requirement regarding community services is that people with DD are to be “served in the most integrated setting appropriate to meet each person’s individualized needs.” Agreement ¶ III.B.23. The State agreed that “all residents of BSDC meet the essential eligibility requirements for placement and habilitation in integrated community settings.” Id. ¶ III.B.24 (emphasis added). More particularly, the Agreement requires the State to:
• provide individuals with adequate and appropriate protections, supports, and services in the community to meet their individualized needs; and
• implement an effective community monitoring system to ensure individuals are provided with the protections, supports, and services they need to succeed in the community.
Id. ¶¶ III.B.25-42, 48-53. The Agreement requires the State to place individuals into smaller community homes and
to avoid placing individuals into nursing homes or other institutional settings, recognizing that nursing homes are “not well-suited” to meet the needs of persons with DD. Id. ¶¶ III.B.34-35.
The Agreement requires Nebraska to expand community capacity to better serve people, especially those with complex issues. Id. ¶¶ III.B.43-44. It stresses the need to “avoid crises marked by the escalation of health care and/or behavior problems, and to minimize or eliminate failed or troubled community placements due to poorly addressed resident behaviors and, thus, minimize or eliminate re-institutionalization.” Id. ¶ III.B.44. It requires an expanded community outreach program to address unmet needs that place people at risk of institutionalization; the program is to “keep individuals as independent as possible, and in familiar surroundings in their homes in the community, and away from more restrictive placements such as hospitals, nursing homes, psychiatric facilities, and institutions.” Id. ¶ III.B.46.

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B. Minimized Reliance on Institutional Services and Decreased Institutional Census 1. Overall Decline in Institutional Numbers at BSDC and Bridges
In its 2007 findings letter, the United States concluded that the number of community placements from BSDC had been very low and had stagnated: in the previous decade, the State had never placed more than six residents in any year in the community and the overall BSDC census typically declined only as a result of deaths or transfers to other institutional settings.
Entry of the Agreement effectively “closed the front door” to State-run institutional DD services in Nebraska; the last admission to BSDC was on June 9, 2009. Since entry of the Agreement, the State has placed 148 individuals from BSDC and Bridges into integrated community settings – 42 percent of the total “institutional” sub-group of 353 people. As of July 21, 2015, there were only 116 residents still living at BSDC, a 64 percent reduction in the census from the time of the investigation.2 As we discuss in greater detail below, by June 2013, the State placed all of the residents of the Bridges institution into community settings and then closed the institution altogether. As a result, there is now only one, greatly minimized, State-run DD institution left in Nebraska.3 For a comparison that shows the declining DD population in State-run institutions with the increasing community DD population, see the graphs in Appendix B-1, attached to the accompanying index of evidentiary materials.
2 Thirty-five BSDC residents have died over the past eight years. 3 To make permanent the shrinking of BSDC, the State has taken the extraordinary step of physically demolishing at least three large buildings on campus.

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Consistent with Agreement goals, the State continues to de-emphasize use of homes of four or more, preferring instead to serve people in smaller settings. Almost 4,000 of the 4,988 people served through community waivers4 live in community homes of three or fewer people.
As was the case with admissions to BSDC, entry of the Agreement effectively shut the front door to other institutional settings, such as nursing homes or private DD institutions, for people in the sub-group.5 There are only 16 individuals from the sub-group who are now living in other institutions. The last transfer to a private nursing home from BSDC occurred on December 22, 2009; the last transfer to a private institution was on May 11, 2010.
2. Closure of the Bridges Institution In 2005, the State created the BSDC-affiliated Bridges institution to serve individuals
with DD who posed significant risks to themselves or the community; nearly all of its residents had previous contact with law enforcement and/or the judicial system. Bridges was established as a locked, highly-restrictive institution akin to a forensic mental health facility. Although Bridges had close administrative ties with BSDC, it was physically located far from Beatrice, on the closed campus of a former mental health facility in a rural setting in central Nebraska.
While at Bridges, the residents were regularly subjected to a high number of restraints – including multi-point mechanical restraints, as well as physical and chemical restraints. The residents left campus only rarely and they were allowed outside for only an hour or two each day in a small fenced area that was smaller than the yard death-row inmates are provided at the state penitentiary. The Bridges residents frequently suffered injuries in confinement. 4 “Waiver” is a regulatory term describing the primary funding mechanism for community services and supports for people with DD. 5 In addition to State-run BSDC, there are two private DD institutions in Nebraska, each housing a little over 100 individuals. Mosaic, a private non-profit organization, operates both facilities.

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Prompted by the Agreement, the State developed a community re-location program for the Bridges residents. In 2011, the legislature approved $1.5 million to construct three fourbedroom homes in nearby Hastings that would enable them to live in integrated settings. In June 2013, the State moved all of the residents to the newly-constructed community homes and then closed the Bridges institution altogether.
Since the relocation process began in 2011: none of the individuals have had contact with a psychiatric hospital; the use of mechanical and programmatic physical restraints has been completely eliminated; emergency safety interventions are rarely needed; there are far fewer incidents and injuries; and the use of psychotropic medications has been significantly reduced.
Since moving out of the institution, the former Bridges residents have been participating fully in community life. All but two are involved in paid work in integrated community settings; community jobs include working at a restaurant, detailing cars, performing janitorial work and lawn maintenance, caring for pets/animals, and growing vegetables for sale. One man was hired recently over other candidates who did not have any disabilities.
In April 2014, the monitor and her team, along with the parties, visited the former Bridges residents in their new community homes. In her report, the monitor concluded:
• “In stark contrast to … the Bridges program, the new homes were lovely and the individuals living there appeared to be benefitting from the transition to residences that allowed for more opportunities to learn and practice more independent living skills.”
• The transitions have “substantially increased their integration into the community, while being ever-cognizant of the need to do so safely.”
• The homes highlighted the “positive results arising from the State’s firm commitment, sustained advocacy, thoughtful planning, and careful allocation of resources.”
• “Particularly within the confines of a state government structure, it was no easy feat to build these homes from the ground up, and put all of the necessary pieces in place to

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allow the men to move … All of the staff involved should be commended for their work on this project, as should the men who played an integral role in the process.” IE Rep. at 8, 71. 3. Transition Process from Institutional Settings The State has taken effective steps to comply with the transition planning requirements of the Agreement in order to help reduce the institutional census and to ensure successful placement in the community. The State’s program planning begins early and is premised on the notion that each person in an institution can live in the community with adequate services. Transition plans, in conjunction with the annual Individual Personal Plan (“IPP”), detail each person’s needs and preferences and ensure that only community providers who can meet an individual’s particular needs will be selected. The transition process is carefully organized and includes pre-transition visits to receiving community programs and close coordination with community providers. The monitor concluded that the State’s transition planning demonstrated “significant progress.” Id. at 9. She reported that revised transition procedures have resulted in “much smoother transitions” for individuals, largely due to better information-sharing and better transition plans that “fairly comprehensively” identified individualized needs for protections, supports, and services. Id. at 9-10. She found that it was “clear that there was a commitment to provide prompt and effective support and intervention for individuals to ensure the success of their transition to the community for individuals moving from BSDC.” Id. at 138-39. Overall, the monitor found that the State has taken many steps to “increase community capacity, and improve its oversight of the community system to ensure that individuals the Settlement Agreement covers are provided the protections, supports, and services they require.” Id. at 5. She reported that the State built “much-needed infrastructure for the community

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system,” which was important, as “[m]any of the pieces necessary for a healthy community system had either been missing or were not operating in a fashion necessary to meet the goals and the requirements of the Settlement Agreement.” Id. She noted that “important changes” had been made to improve access to community services for people in need, “particularly individuals with complex medical and behavioral needs.” Id.
The monitor concluded that reforms have produced positive outcomes for people, noting that many “spoke with gratitude” about the State’s efforts to transition them to, and support them in, community settings. Id. at 6. She reported that the sister of a man transitioned to the community said: “Our family never thought his life would be this full.” Id. at 7.
4. Promoting Community Placement In its 2007 findings letter, the United States found that guardian opposition was a barrier
to placement and concluded the State did little to promote placement once a guardian expressed reservations, even when teams concluded that residents could benefit from community living.
Since entry of the Agreement, the State has implemented effective measures to continually engage guardians about community alternatives even where opposition has been expressed. The State now repeatedly re-offers community-based alternatives to institutional care; this stands in stark contrast to the passive practice in place prior to the Agreement.
Due to the diligent efforts of its personnel, the State has succeeded in helping previously resistant guardians to consider, and then embrace, community transition, especially for people who had been living in nursing homes. Nebraska has also taken important steps in recent years to challenge some guardians who were negligent or not acting in the best interests of their wards. The State’s actions in this regard directly resulted in a number of individuals being able to move from an institution to a community home.

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The monitor concluded that the State had undertaken “significant efforts” to educate individuals and guardians about community alternatives. Id. at 67. She reported that “it was clear that [State personnel] were making regular contact with family members/guardians, and offering information regarding community options.” Id. at 63. She found it “positive” that the State revised guidelines to prompt teams to “address actions that could be helpful in individuals and guardians learning more about community options that could meet their needs.” Id.
C. Significantly Increased Community Capacity In its findings letter, the United States concluded that Nebraska lacked sufficient capacity
in the community, particularly for people with complex health or behavioral needs. 1. Continuous and Significant Budget Increases for Community DD Services Since entry of the Agreement, the State has made a concerted and sustained effort to
expand community DD services throughout Nebraska in order to ensure that adequate service capacity exists to meet outstanding needs. At the recommendation of the State’s DD agency, the Governor consistently sought, and the legislature consistently provided, significant new funding to expand the scope and availability of community DD services. This funding allows the State to serve more people well, in integrated settings, than in congregate settings like BSDC.
Annual State expenditures on community DD services and supports basically doubled during the life of the Agreement – from $72.9 million to $145.5 million – representing an additional $72 million dollars per year for community-only initiatives than was available before entry of the Agreement. These are state-only dollars. In addition, Nebraska receives about a 50 percent federal match through the Medicaid program, so the overall increase in community funding is about twice the state-budgeted amount. For a table and graph showing annual community service budget amounts during the life of the Agreement, see Appendix B-2.

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The increased spending in the community is cost-effective. In 2014, the average annual cost per person at the BSDC institution was $393,470; given the ever-declining BSDC census, this cost figure has increased markedly since 2007. By contrast, the 2014 average annual per person cost of services through the comprehensive community DD waiver was just over $58,000; this figure has decreased since 2007. See Appendix B-3. Thus, today, it costs about six times more on average to serve someone at BSDC than in the community on the comprehensive DD waiver. 6 This is a “win-win” situation where Nebraska is now serving more people in better, more integrated settings that comply with the ADA and Olmstead for less money on average per person than if the State had continued with or pursued more institutional alternatives.
In general, the increased funding has expanded community services, improved their quality, and provided more effective oversight of service-delivery. More specifically, the funding increases ensured that BSDC/Bridges residents could move to the community when they chose, increased reimbursement rates for community services to better meet individual needs, removed a significant number of people from the State’s DD waitlist, helped ensure that high school graduates with DD receive day services, and enabled the State to implement its pilot ward permanency project to meet the needs of at-risk DD youth and to avoid institutionalization.
The additional community appropriations today make a positive impact in the lives of about 5,000 people with DD who need integrated services (4,988 on average in 2014). Since the United States’ investigation, the number of people who are on the comprehensive DD waiver and also get residential services has increased by 45 percent (from 2,391 in 2007 to 3,472 today), and
6 This is necessarily an estimate as the waiver cost does not include certain expenses for health care which are included in the cost figures for BSDC.

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the number of people on (or about to be on) the day waiver has increased 31 percent (from 748 in 2007 to 979 today).
2. Revised Waiver Rate Methodology Implemented with Significant Additional Funding An important aspect of expanding and enhancing capacity in the community is ensuring
that rates within the waiver – the primary funding mechanism for community services for people with DD – are adequate to meet individual needs and preferences. This addresses immediate needs and better ensures sustainability going forward. On July 1, 2014, the State implemented a new rate methodology with the additional funding referenced above, that, for the first time, effectively provides those on the waiver with adequate services to meet individual needs. The monitor concluded this was a “substantial effort” to address outstanding issues. IE Rep. at 6.
The State also changed set amounts to individualized service budgets that now enhance flexibility and facilitate access to needed services and supports. In essence, individuals now get an individualized budget amount and can spend it flexibly on the services they need and prefer.
3. Community DD Waitlist For the period July 1, 2009 through December 31, 2012, the State expanded funding to
serve people with DD on the waitlist, enabling the State to offer DD services to 2,470 people on the waitlist, approximately 1,680 of whom accepted services. The State has also been taking more aggressive and expansive steps to identify people earlier, extend eligibility to more people, and add people to the waitlist before they need services.
4. Waiver Enhancements – Expanded Community Options and Improved Oversight In 2011, the State revised its waivers to expand the services available to individuals in the
community. The State included provisions to add flexibility, to add non-specialized services,

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and to provide more person-centered practices to allow people with DD to work and participate in their communities as fully as possible.
In 2010, as part of an overall effort to centralize oversight, the State began to revise its fragmented regulatory structure to create a comprehensive set of community DD waiver regulations with more of a focus on outcomes; in doing so, it incorporated the input of stakeholders, emerging trends in service delivery, a focus on person-centered outcomes, as well as the requirements from the Agreement. While the regulations were under consideration, over four dozen national and international DD professionals praised them for embodying standards of care that would eliminate restraints and provide meaningful days. On July 16, 2011, the State issued its new regulations.
The monitor reported that the new regulations provide the State with a “wide array of actions to assist or compel providers to comply” with the regulations and to ensure that providers immediately address issues related to individuals’ health and safety. Id. at 142.
During the current year, the State has worked on drafting regulatory changes to conform to the new home and community-based services rule from the Centers for Medicare and Medicaid Services (“CMS”), which imposes stricter requirements on jurisdictions with regard to what constitutes a community setting. On December 1, 2014, the State submitted its transition plan to CMS. In implementing the plan, the State commits to minimize or eliminate residential community settings serving four or more people, as well as sheltered workshop settings.
5. Expanded Number of Community Providers To meet the terms of the Agreement and the increased demand for community DD
services throughout Nebraska, the State has made significant efforts to expand DD provider capacity in the community. Community-based “specialized” providers deliver the majority of

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community services to individuals with DD. Prior to 2009, there were 25 specialized providers certified in Nebraska. Since then, the State has certified an additional 35 such providers – well over a 100 percent increase – who operate a total of 87 certified community programs.
The State has also implemented measures to enhance “non-specialized” services and supports to promote better access to services and opportunities in the community, obtain or maintain employment in truly integrated community settings, assist individuals to develop selfadvocacy skills, assist individuals to identify and sustain a personal support network in the community, and help with household activities necessary to maintain independence at home.
In her report, the monitor concluded that a sufficient “array of providers was available that had the capacity to provide housing and residential services to individuals with varied needs,” that there was an “appropriate range of [community] alternatives” allowing providers to serve individuals with a “wide range of support needs,” that “the range of community living alternatives appeared to continue to expand, offering a variety of available levels of support to match the needs of individuals,” and that the homes she visited were “integrated into neighborhoods, providing the opportunity for individuals to be members of communities, as well as to participate in household activities.” Id. at 66, 70, 71.
6. Expanded Community Capacity to Address Complex Health Conditions To improve community capacity in health care to better meet individualized needs and to
comply with the terms of the Agreement, Nebraska has taken a number of important steps. a. New Accessible Community Homes In March 2009, the State contracted with a provider to build and operate 11 community
homes across Nebraska to serve dozens of people with both DD and complex health care issues; the State’s community system previously lacked sufficient capacity to address such needs.

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b. Health High-Risk Screening Tool Since entry of the Agreement, the State has implemented a health high-risk screening tool
with a prioritization matrix to identify individuals with DD in the community who have significant medical issues. This tool helps the community teams to identify areas of risk so that they can better address outstanding needs, obtain additional health services and supports, and/or obtain expert consultation.
In 2011, the State screened all individuals with DD in the community who were receiving State services and began screening all individuals who enter the State’s DD system, as well as all individuals who experience a change in health status. After screening, the State disseminates to community providers information related to individuals’ needs.
c. Traveling Clinical Review Team In April 2012, the State created a community medical/clinical review team of two health
professionals to assess at-risk individuals in the community to determine whether they were getting adequate health care. This team made onsite visits, reviewed services, made recommendations for modified treatment, and established a follow-up system to address the implementation of recommendations.
The team found that the majority of individuals in the community received appropriate primary health care, but that there were gaps and inconsistencies in illness prevention, early recognition practices, follow-up on laboratory testing, and timely referral to specialists. The team also found some training deficits. The team report called for enhanced training, standardization of health support practices and guidelines, allocation of funding for health support based on individualized needs, regular monitoring, and continuous quality improvement.

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The team’s mandate was originally the group of individuals placed from BSDC, but has expanded to include a larger group of people with DD in the community. Individuals are prioritized based on hospital contacts, other health outcome criteria, and the results of the health risk screens, with those with the highest risk scores addressed first.
The team provides consultation and technical assistance to community provider agencies to improve health care services. They generate written findings on medical, nursing, and clinical care, and recommend changes in care when necessary. Their reports address individual needs and help build awareness of critical systemic issues, unmet needs, and what actions should be taken to address these needs. The State’s chief DD medical officer reviews all reports, ensuring that the system and leadership know the most pressing health care issues, as well as the people most at risk. The State sends the reports to the individuals’ community teams. The team then follows up to determine if the teams have any questions or need additional technical assistance.
The monitor reviewed several team reports and found them to be “very comprehensive and individualized to meet each individual’s specific health needs.” Id. at 92. She confirmed the recommendations were tracked and implemented, and noted they often produced “positive outcomes.” Id. She found that this process provided a “quality check” and that it expanded “community capacity for providing health care to individuals with complex medical needs.” Id.
The monitor concluded that the knowledge and skill of the team professionals were “welcome additions” to the State’s DD system and that State community personnel were “seeking and using their expertise.” Id. at 95. She reported that the team provides a “resource” to assist State personnel and community providers implement systems to provide consistent and thorough health care oversight and that it was “evident” that the State’s team had given community providers “significant assistance and information” that contributed to improved

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outcomes. Id. at 81, 95. She concluded that continued use of the team will be “invaluable in ensuring appropriate health supports are provided” to those in need in the community. Id. at 95.
d. Specialized Training and Services for Physical and Nutritional Support Needs For years, the State struggled to provide adequate physical and nutritional supports
(“PNS”) to individuals in the community; the monitor had called this a “significant concern.” Id. at 13. By 2014, she reported that the State was starting to take “effective steps” to expand the capacity and expertise of community providers and clinicians through the planning and provision of PNS community-based training and clinical instruction. Id. at 83.
The monitor concluded that, although more needed to be done, the statewide PNS training will enhance the knowledge base of community providers and clinicians to better support individuals living in the community or preparing to move to the community. She described proposed PNS training initiatives as “impressive.” Id. She concluded that the training “move[s] the State forward in expanding the capacity of community providers and clinicians in their knowledge of PNS and implementation of appropriate PNS plans for individuals.” Id. at 85-86. She reported that although more work was needed, community providers had now begun to implement individual-specific procedures to provide direct care staff with written instructions in providing supports for people during mealtimes, bathing, transfers, medication administration, and oral care. Id.
e. Health Care Curriculum and Training for Community Providers In 2012, the State developed a video-based health supports curriculum to help community
staff meet the health care needs of people with DD in the State’s system, especially those with complex conditions. The State has made the full curriculum available to all community providers in Nebraska at no cost. The training materials are comprehensive, specific for people

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with DD, and easy to read for non-clinical staff. The State has provided training to over 260 community staff on how to identify and respond to individual health conditions and emergencies. The monitor concluded that the curriculum was a “valuable resource.” Id. at 82.
f. Other Community Health Care Initiatives The State is expanding a tele-health network for underserved areas. Community staff can
access the network at many local hospitals and the regional public health clinics across Nebraska. The network is used mainly for psychiatry and neurology consultations.
7. Expanded Community Capacity to Address Complex Behavioral Conditions a. Intensive Mobile Community Behavioral Services
In its findings letter, the United States reported that the State operated a limited community outreach program out of offices on the BSDC campus, to help keep people with behavior problems or mental health issues in the community and away from long-term institutionalization. The United States recognized that this mobile program played a positive role in helping to maintain community tenure, but also noted that the demonstrated capacity of the program was very small, helping only a couple dozen people per year across Nebraska.
The State gradually replaced the BSDC-based outreach program with six mobile behavioral consultation teams in the community – three in Omaha, two in Lincoln, and one in Kearney (the geographic middle of the state) – targeting individuals across Nebraska who have DD and complex behavioral/mental health issues. These mobile teams work closely with individual teams onsite at community programs to tailor remedial steps to meet individuals’ needs. They provide prompt response to individual behavioral situations with greater flexibility to better meet the needs of each person and situation. A primary goal of the mobile service is to reduce contact with psychiatric hospitals, local hospital emergency departments, and other

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restrictive settings. The six teams provide effective statewide coverage; teams can get to almost all individuals in need within one hour.
The monitor concluded that the mobile team service “appeared to assist individuals to maintain their services in community settings, while assisting community providers to improve the services they provided.” Id. at 14. She applauded the State for the teams’ focus on efforts to “build providers’ capacity for behavioral treatment planning and implementation.” Id. She found that the team was “providing valuable input that was beneficial to individuals and community providers” and that mobile services yielded “positive” results. Id. at 72, 88.
b. Community-Based Short-Stay Crisis Home In its findings letter, the United States reported that the State operated a small crisis
center – the Intensive Treatment Services unit – on the BSDC campus for individuals living in the community who were experiencing acute behavioral or mental health episodes.
A few years after entering into the Agreement, the State closed the crisis unit on the BSDC campus. In its place, the State opened a small, dedicated, short-stay crisis stabilization program in a community home. As with the mobile teams, this home exists to prevent individuals with DD in crisis from having contact with hospital emergency rooms, psychiatric hospitals, and other restrictive settings.
This home is intentionally small – it serves only three individuals at any given time. As was intended, individuals placed in this home generally stay only a short time before being returned to permanent community homes.
The monitor concluded that this crisis home “was meeting the need for this type of support” and that the State was prepared to create additional capacity if needed. Id. at 97.

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c. Other State Initiatives for People with Complex Behaviors/Mental Illness The State has undertaken other initiatives to better address the needs of those with DD
and complex behavior issues and/or mental illness in the community, such as providing intensive face-to-face, hands-on training for community providers at various locations across Nebraska to assist them to conduct adequate functional assessments and develop effective behavior plans.
As a result, the monitor concluded that functional assessments and behavior plans in the community have continuously improved. She found that safety plans for individuals were “generally improved,” and were often “extensive and detailed.” Id. at 76. She encouraged the State to continue to provide training and technical assistance to community providers to resolve outstanding behavioral issues. Id. at 14, 76, 243. The State pledges to do this going forward.
d. Psychiatric Care The State has taken a number of steps to expand community capacity to meet the needs of
those with DD and mental illness. The State sent its clinical team to review and re-assess highrisk individuals to address lingering concerns associated with polypharmacy or high doses of psychotropic medication. The monitor noted that the team’s suggestions were “helpful” to delivery of appropriate psychiatric care to meet mental health needs. Id. at 78-80. The State has since engaged in additional outreach to community providers to offer more technical assistance.
Managed Care - The State recently transferred behavioral/mental health services to a managed care entity for individuals receiving Medicaid. The shift to managed care has the potential to provide better oversight of, and to improve services delivered by, community mental health clinicians. Through the managed care organization, the State is developing measures to impose comprehensive reforms throughout the community through adoption of treatment protocols endorsed by the American Psychiatric Association that would prompt better treatment

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and improved outcomes. The State pledges to continue to work closely with the managed care entity to impose more stringent requirements on community mental health clinicians, especially in those cases where individuals are receiving multiple psychotropic medications. The monitor concluded that this initiative has the potential to improve coordination of care, provide better oversight of the use of psychotropic medication, prompt additional opportunities for training, and improve the ability to use data effectively. Id. at 78, 80.
8. Community Incidents and Investigations of Serious Incidents Incident Reporting – In recent years, the State recognized that community providers
completed incident reports inconsistently and with variable quality. This limited the State’s ability to develop and implement reforms. To address this, the State developed an electronic incident reporting system with a limited roll out in April 2011, and full implementation on January 1, 2014. The electronic system is straightforward and easy to use; it enables staff to record incidents more quickly, more accurately, and more consistently than was possible before with paper reporting. The electronic system provides more quality information more quickly to State leadership and staff, thereby enabling the State to take more prompt and more tailored remedial measures to address outstanding concerns.
The monitor characterized the new electronic system as a “notable improvement.” Id. at 126. She concluded that this system now provides the State with a tool to “collect information in a timely manner [and] to aggregate information, and generate reports that would assist in the analysis of incident and other data”; it also provided “easier access to and use of incident data by a number of audiences, including State staff … as well as community providers.” Id. at 126-27.
The State has improved its follow up regarding critical incidents, now taking appropriate steps in a timely manner. The monitor found that although more needed to be done, it was

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“positive” that the State’s technical assistance staff had begun to use incident data to identify individuals with high numbers of behavior-related incidents over a 60-day period. Id. at 129. For individuals with over 10 incidents, the State completes additional analysis to determine if the person needs a specialty consultation; the monitor labeled this a “good use of incident data.” Id.
Investigations – There were recurring problems with timeliness and follow-through associated with community investigations of serious incidents. The State was not sufficiently notifying community providers in a timely manner so they could take necessary action to protect individuals while the investigation was being completed, including removing the alleged perpetrator from direct contact with individuals; in addition, the State was not giving providers the results of the investigations so that the providers could implement remedial measures. As a threshold matter, existing definitions of abuse, neglect, and exploitation failed to include important events where there was no physical injury; as a result, the State was not investigating many allegations.
Prompted by the Agreement, the State began to implement a series of training and other internal reforms that caused it to investigate certain matters it would have not investigated in the past. The monitor reported that these efforts also produced investigations of better quality; she encouraged the State to take additional steps, such as improving methodologies and properly reconciling evidence to support findings. Id. at 15-16, 136. At the time of the monitor’s most recent visit, the State was in the final stages of implementing an on-call system to more promptly notify community providers of allegations and direct them to remove alleged perpetrators from direct contact with individuals pending the outcome of the investigation. The State is also now starting to initiate investigations the first day, and to notify providers of the results of

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investigations. The State is also implementing a quality review of investigations that should prompt further improvements.
Incidents – Even though the State is facilitating receipt of more types of incidents than before the Agreement and investigating serious incidents more thoroughly, incidents in the community are appropriately low among formerly institutionalized individuals. In this subgroup, for over a year now, there have been no recorded instances of seclusion, mechanical or chemical restraint, or physical restraint outside the context of an approved safety plan, and there has been minimal use of physical restraint or separation. During this period, there were no incidents of attempted theft or larceny, and only a handful of incidents per month involving alleged exploitation, property damage, or peer-to-peer aggression. Only 13 individuals last year from the sub-group had contact with law enforcement and there were no arrests; almost half of the contacts were initiated by the person claiming to be upset, not prompted by staff improprieties. Looking at the broader context, in 2013, at all licensed community sites, the State reported a total of 323 serious incident allegations, with only 35 substantiated for the entire year.
9. Enhanced Community Services to Prevent Contact with Correctional Facilities In January 2010, the State created the Nebraska Family Help Line to establish a single
point of contact to make it easier for families to obtain assistance when they are having a family crisis. This 24/7 line is a collaborative effort within state government and it includes the active participation of the State’s DD agency. Last year, about a dozen children with DD were referred through the help line.
The State has developed and implemented a robust plan to divert from jail or prison, individuals with DD who come into contact with the judicial system. In recent years, the State’s DD agency has done extensive outreach to county attorneys across Nebraska to educate them

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about DD issues. As a result, it is common for these attorneys to contact the DD agency to intervene when someone suspected of having DD is implicated in a criminal matter. If the person is willing to accept DD services, the DD agency then assumes responsibility going forward and, typically, further judicial action/incarceration is avoided.
When individuals decline to accept DD services, the State proceeds pursuant to the state Developmental Disabilities Court-Ordered Custody Act (“DDCOCA”), first operationalized a year after entry of the Agreement. In this circumstance, when an individual has been adjudicated as a person “in need of court-ordered custody and treatment” under the Act, the State Department of Health and Human Services is required to evaluate the individual and develop a plan for custody and treatment in the “least restrictive alternative.”
In FY14, the State diverted almost a dozen individuals with DD from correctional facilities and transitioned two individuals out of correctional facilities and into community homes. Since the inception of the program in 2009, the State has spent over $4.2 million on this initiative and has diverted about two dozen people with DD. Not only has the State prevented incarceration for an extended or indefinite stay, it has succeeded in providing these people, almost without exception, with community homes and services. This is a better outcome for people with DD and it eliminates the cost of incarceration.
The State’s targeted caseload team, first operationalized in 2014, supports individuals with significant health care and/or behavioral/mental health needs, some of whom are involved in court proceedings. It is the team’s responsibility to ensure that all individuals adjudicated under the DDCOCA receive appropriate services and supports in the community to ensure their health and safety so that unnecessary institutionalization does not occur.

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10. Enhanced Community Capacity to Provide Meaningful Integrated Day Activities Including Supported Employment The Agreement requires the State to significantly increase daily community integration
activities, including supported employment, community volunteer activities, and community business and recreational outings. Agreement ¶ III.C.59. The Agreement emphasizes that day skills training and related activities are to be provided in the community whenever appropriate: “[t]he State shall emphasize involvement in and with the community, away from the BSDC campus, as much as possible and appropriate, according to each resident’s individualized needs.” Id. ¶¶ III.C.57, 58.
Integrated Community Employment - Prompted by the Agreement, Nebraska is now committed to integrated employment for people with DD. Since its entry, the State has enhanced employment service options, activities, and job experiences with a focus on paid employment in integrated community settings in the general workforce; funded more job training and job coaching to enable individuals to gain skills and to become more independent in integrated settings; changed services and supports to better reflect individualized goals; and provided high school graduates with more options to live and work in their community.
The State’s 2015 Employment First policy emphasizes that “employment in integrated settings within the community should be the priority service option.” The policy starts with a presumption of employability for all and elevates the level of priority of the “career” section of the person’s individual plan.
In January 2011, the State revised its two adult waivers to provide greater opportunities for individuals with DD to explore integrated employment. The State now offers vocational planning focused on career planning, job exploration, and job skill development to better enable

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individuals with DD to have a normal and successful job search experience. Once employment is obtained, the State offers integrated community employment services to provide job coaching and other supports.
In March 2013, the State surveyed its community personnel, asking them to compare the services people living in the community received in 2007, the year of the United States’ findings letter, to the services and supports they were receiving now. Survey results revealed notable improvements with regard to employment, volunteer, and recreational activities in integrated community settings.
The State has significantly increased the number of people with DD who are employed in integrated settings, as well as the number of hours they are working there. From 2007 to 2013, the total number of people with DD who worked in integrated settings increased by over 61 percent from 651 people to 1,050 people. See Appendix B-4. As of 2013, the State estimated that over 23 percent of all eligible people with DD in its system were working in an integrated setting. From 2007 to 2013, the number of people working over 10 hours per week in integrated settings increased by 70 percent, and the number of people working over 20 hours per week increased by 77 percent.
This is true employment where people with DD are earning minimum wage or above and are being paid directly by the business in an integrated setting – not in sheltered workshops. The State defined “integrated setting” as a setting in which persons with disabilities interact with persons without disabilities who are not paid to provide services and the interactions are to the same extent that people without disabilities have in comparable situations.
Integrated Community Volunteer Activities - The State has made significant strides in involving people with DD in integrated volunteer activities that enable them to explore and

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experience their community, learn skills that may be transferable to future employment, contribute meaningfully to their community, and build self-esteem. From 2007 to 2013, the total number of people with DD who volunteered in integrated settings increased by 185 percent from 380 people to 1,082 people. See Appendix B-4. During this period, the number volunteering over 10 hours and over 20 hours per week each increased by over 600 percent.
Integrated Community Recreational Activities - There has been similar progress with regard to participation in integrated recreational activities. From 2007 to 2013, the total number of people with DD who were engaged in recreational activities in integrated settings increased by over 96 percent from 1,510 individuals to almost 3,000 individuals. See Appendix B-4. The number involved in over 10 hours of community recreation per week increased by over 160 percent and the number involved in over 20 hours of community recreation per week increased by over 223 percent.
Initiatives to Decrease Reliance on Sheltered Workshops - On January 16, 2014, CMS published regulations strengthening the definition of home and community-based services that would qualify for federal waiver funding; the new regulations became effective on March 17, 2014. On February 26, 2014, several weeks before the new CMS rule became final, the State alerted community providers that the State was raising expectations in alignment with the letter and spirit of the new rule, stating that it “will directly impact any workshop where individuals are not routinely participating in integrated activities,” and that sheltered workshops “will be required to be phased out” (emphasis added). The State instructed the providers to plan now for transition to more integrated day services.
On July 1, 2014, the State added “day habilitation” to its two adult waivers to provide more flexibility to offer facility-free services to individuals in integrated settings. The State

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implemented other revisions that prompt day providers to move away from sheltered workshop services and towards more meaningful day activities in integrated settings.
With regard to integrated day, the monitor concluded: “[S]ince the inception of the Settlement Agreement, the State had worked to expand the community options available to individuals, including both residential and day/vocational opportunities. This had occurred through the expansion of the options available through Waiver-funded services … the expansion of the community provider-base in the State, as well as work with providers interested in changing their service delivery models (e.g., from a work center or day treatment model to programs offering vocational as well as other integrated options for activities).” IE Rep. at 6, 71. She concluded the State’s efforts to expand community options for integrated employment and vocational opportunities “clearly had paid off in terms of improved services and opportunities.” Id. at 88. She reported that she saw “a number of examples of innovative vocational and day opportunities for individuals … progress has certainly been made.” Id. at 9. She found that “outcomes for individuals across the system appeared to be improving.” Id. at 8, 86.
BSDC - In its findings letter, the United States noted that Nebraska failed to provide residents with adequate, meaningful, integrated community activities. The United States found that: no resident received programming off campus, only one resident worked significant hours in the community, the State focused on day services at sheltered workshops on the segregated campus, the number of residents who participated in community outings was very limited as were the number of days and hours per day, and residents were typically able to go to the community only a handful of times per month, for just a couple of hours each time.
Since entry of the Agreement, the State has taken significant steps to better integrate BSDC residents into the community during the day. In 2014 and the first half of 2015, the State

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reported that over 90 percent of BSDC residents participated in off-campus activities at least once per week; this is up from 73 percent in early 2013. Integrated activities include paid work, volunteer work, social and recreational activities, or general activities like shopping.
The number and percentage of BSDC residents working in the community continues to increase from year to year. The percentage of eligible residents who work off campus has increased significantly from less than one percent (one person) at the time of the United States’ findings letter, to seven percent in 2010, to about 24 percent in 2011, to about 35 percent in 2012, and to around 60 percent starting in 2013 through to today. See Appendix B-5. In the first quarter of 2015, the State reported that 53 BSDC residents were employed in the community, 62 residents were employed on campus, and a total of 88 residents were employed (some work both on and off campus); the State reported that only one eligible resident was not working at all.7
BSDC residents work in a variety of community settings – some do custodial work at the Beatrice Police Department, the local chamber of commerce, and AseraCare (an organization that provides palliative care), while others package items at Exmark (a manufacturer of professional turf care equipment). Other residents are involved in various forms of off-campus self-employment, such as lawn mowing, and delivering newspapers on a paper route.
The State is continuing to take important steps at BSDC to further improve outcomes in this area, including assigning an additional manager to the vocational team to increase the focus on integrated employment and career development, implementing new practices to include more thorough consideration of eligibility for employment, developing a better database to track interests and skills that will facilitate job development and placement, increasing collaboration with the local chamber of commerce, a private staffing company, and community employers, and
7 The State determined that 89 of 120 total residents were eligible for employment (not retired).

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providing enhanced job coaching. The State provides onsite job coaches, as well as ongoing training and other supports, for BSDC residents with jobs in integrated settings to ensure they succeed in their community jobs and advance in their careers. To encourage contact with the community, the State also revised position descriptions for BSDC vocational support workers to give them flexibility to follow people into community vocational services.
A significant number of BSDC residents now engage in volunteer activities in the community. Each month, more than 20 residents help deliver food to the needy through the Meals on Wheels program. Residents are active with other community groups including the Humane Society, the Red Hat Society, Grow Big Red (Beatrice beautification project), Nature Abounds, the Salvation Army, recycling entities, as well as various churches and local clubs.
At the time of the United States’ investigation, a significant number of individuals never left their rooms or living units. The State has now taken meaningful steps to get all residents off their residences to other locations, including the community. In the second quarter of 2014, the State reported that just about everyone at BSDC engaged in five or more hours per day of skills training away from their home residence. The State reported that only one resident did not meet this criteria because he was on hospice and could not tolerate the hours away from his residence.
The monitor concluded that State efforts to increase vocational opportunities at BSDC to better meet individualized needs in integrated settings have “yielded positive results.” IE Rep. at 156. She reported the State had effected a “conceptual shift” regarding the role of the on-campus home rooms, “de-emphasizing them as primary habilitation sites in favor of community-based vocational and other opportunities.” Id. at 159. She found that neither transportation nor staffing issues were a barrier to community integration activities. Id. at 158.

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11. Internal DD Agency Actions to Enhance Community Services The State has taken a number of other important internal steps to expand and enhance
community capacity so as to better meet the needs of people with DD in the community and to minimize the risk of institutionalization.
Service Coordination – After entry of the Agreement, the State transformed its old “case management” system into a DD “service coordination” system where personnel now actively advocate for each individual. The State maintains small caseloads for service coordinators of no more than 25 individuals per service coordinator. The monitor reported that service coordinators “clearly knew the individuals and their provider staff” and were therefore better able to address their individualized needs. Id. at 137.
Serving Individuals with Complex Needs – In addition to the State’s mobile teams, in 2010, the State created an internal technical assistance team to provide expert input and guidance to community providers. The team provides technical assistance by phone, email, in person, and in formal meetings and training opportunities. Since its creation, the team has handled hundreds of requests for information or assistance from community providers.
III. INSTITUTIONAL REFORMS IMPLEMENTED AT BSDC A. Safety and Protection from Harm 1. Settlement Agreement Requirements The principal requirement of this section of the Agreement is that the State will “provide
residents with a reasonably safe and humane living environment, which includes that the State shall: (1) protect residents from abuse and neglect; and (2) take effective steps to minimize or eliminate resident injuries and other significant incidents that may negatively impact their health, safety, and welfare.” Agreement ¶ III.A.1. Specific provisions require the State to:

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• ensure that individuals are free from abuse and neglect in a “zero-tolerance” environment;
• minimize incidents that may adversely impact the health, safety, and welfare of individuals, especially those incidents that result in serious injury; and
• implement prompt and effective measures to address all issues and recommendations associated with investigations to ensure that individual outcomes are achieved.
Id. ¶¶ III.A.2, 10, 14, 16, 18. 2. Overall Incident Numbers at BSDC In its 2007 findings letter, the United States reported that BSDC was an unsafe
environment, where serious incidents and injuries were common. Incidents/Serious Incidents – Since then, the State has implemented effective reforms to
heighten safety. There has been a downward trend of serious incidents over time. In 2013, there were 26 serious incidents reported with only four injuries of unknown origin and just one elopement; the 2013 serious incident numbers represent a 50 percent reduction from as recent as 2011. Progress has been sustained: in the first two quarters of 2015, there were only13 serious incidents, two injuries of unknown origin, and just one elopement – all figures at the same or improved annual rates as in 2013. See Appendix B-6.
Overall, the monitor found that the State has implemented effective measures to identify, discuss, and address systemic safety issues; she also noted that the State has implemented action plans to address outstanding issues. IE Rep. at 17-19, 41-42, 45. She reported that the State had implemented effective measures to identify root causes and whether or not incidents were preventable. Id. She attributed success here, in part, to better staff training and improved behavior plans and implementation. Id.

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Peer-to-Peer Aggression - In its findings letter, the United States found that peer-to-peer aggression was rampant at BSDC; in the year before its onsite visit, the United States found that there were over 100 different residents who were characterized as aggressors in well over 500 separate incidents, many of which caused an injury to a resident.
Since that time, the State has undertaken significant efforts to reduce incidents of aggression between peers. In 2013, there were only 42 incidents of peer-to-peer aggression; this represents a 91 percent reduction from the time of the findings letter. No incident of peer aggression in 2013 resulted in significant physical harm. The number of peer-to-peer incidents and injuries has continued to stay low. In 2014, there were only 21 peer-to-peer incidents and no incident resulted in significant physical harm. In the first half of 2015, there have been 23 such incidents, but only one minor injury and again no significant injuries. See Appendix B-6.
The monitor reported that the State has made and sustained progress in addressing outstanding issues associated with peer-to-peer incidents. IE Rep. at 17, 46. She found that there were decreasing trends with regard to the number of incidents, numbers of victims, and number of aggressors. She wrote that she “commends Facility staff for their commitment to and active pursuit of reducing risk in relation to peer-to-peer incidents of aggression. These efforts clearly have resulted in improved quality of life for individuals the Facility serves.” Id.
3. Abuse and Neglect at BSDC In its 2007 findings letter, the United States concluded that the nature and frequency of abuse and neglect at BSDC suggested a “cultural undercurrent that betrays human decency at the most fundamental levels … basic human dignities are violated with considerable regularity.” In the year before the United States completed its onsite review, there were over 200 incidents at BSDC that involved an allegation of abuse or neglect, with over half of these later substantiated.

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The United States’ findings letter contained numerous individual examples of substantiated physical abuse and neglect of residents, often resulting in a serious injury to the individual.
Per the Agreement, the State now maintains a “zero tolerance” policy for abuse and neglect. The State developed broad definitions of abuse and neglect that include verbal abuse and exploitation. The monitor found these definitional revisions were “important changes” that supported the State’s commitment to zero tolerance for abuse and neglect. IE Rep. at 27.
State policies at BSDC require staff to promptly attend to any residents involved in an abuse/neglect incident and ensure they are safe. Per the Agreement, the monitor concluded that the State was now removing alleged perpetrators from direct resident contact whenever there was an allegation of abuse or neglect. She also concluded that the State was imposing appropriate discipline, including termination, whenever allegations were substantiated.
The State’s zero tolerance policy stresses that any substantiated act of abuse, neglect, or mistreatment may result in termination of the employee, as would failure to report witnessed acts of abuse or neglect. Since at least 2012, the State has fired every single employee who was found to have committed substantiated abuse or serious neglect. The State even fires employees who fail to report suspected abuse or neglect in a timely manner.8
Substantiated abuse incidents at BSDC have continued a steady path of decline: at the time of the United States’ findings letter, there were over 100 reported instances; in 2011, there were 11 reported instances; in 2012, there were five such instances; in 2013, there were three
8 On November 10, 2014, in Essman v. Nebraska Dep’t of Health and Human Servs., Civ. No. A13-840, the Nebraska Court of Appeals affirmed a decision of the district court of Lancaster County that upheld the termination of a BSDC employee who failed to promptly report an abuse allegation. The court referenced the State’s “zero tolerance” policy, imposed per the Agreement. This action and decision have had a positive and chilling effect on any would-be abusers; it sent a strong message to all that abuse and neglect will not be tolerated.

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such instances; in 2014, there were only two instances, and there was no reported substantiated abuse in the first two quarters of 2015. The same downward trend is present with regard to neglect at BSDC. In 2014, the State reported a total of eight instances of substantiated neglect, with only one instance in the first half of 2015. See Appendix B-7. Combined abuse/neglect figures thus far in 2015 project to an annual total of only two substantiated instances of abuse and neglect at BSDC.
In 2011, it emerged that there had been very troubling staff abuse of some residents at BSDC that was hidden from State leadership. After a close examination, the United States determined that these incidents were isolated and not reflective of conditions and practices throughout BSDC. Given the serious nature of the abuse, we discuss the circumstances in more detail in Appendix C, attached to the accompanying index of evidentiary materials.
4. Improved Internal Processes to Minimize Risk of Harm at BSDC In its findings letter, the United States found problems related to the facility’s incident management system that contributed to further risk of harm. The United States also found a number of problems with the investigation of serious incidents at the facility, as well as with the implementation of needed corrective measures associated with investigation recommendations. Incidents and Investigations - Today at BSDC, there is an adequate incident management policy in place with appropriate reporting requirements and follow-up procedures. The State maintains a database on incident data, analyzes the data, and determines whether or not incidents were preventable. The State has instituted daily incident meetings to review incidents that occurred the previous business day, make recommendations on how to address any outstanding issues, and track implementation of the recommendations. As a result, the monitor concluded: “Since the beginning of the implementation of the Settlement Agreement, improvement had

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occurred with regard to the analysis of incidents and allegations.” IE Rep. at 17, 41-42. She also praised the State for working to “ensure that if analyses showed problems or trends related to incidents and allegations, action plans were developed to address them.” Id. at 17, 42.
The monitor concluded that the State has also complied with requirements related to investigations, including their timely initiation and completion, thoroughness, reconciliation of evidence, and providing an adequate basis for findings. Id. at 17, 48. Investigations now commence at least by the next working day of the incident being reported and they are completed within 30 days. Id. at 47. The monitor concluded that the investigations at BSDC were thorough, provided an adequate basis for findings, and showed “improvement over time.” Id. at 48. She found there was ongoing improvement with regard to the quality, thoroughness, and the measurability of action plans. Id. at 17, 35, 41.
For several years now, the State has been forwarding to the local county attorney and appropriate law enforcement officials pertinent information associated with certain investigations that might lead to a criminal case. The monitor applauded this and concluded that there was clear collaboration with law enforcement. Id. at 49.
Quality Assurance - There is now an adequate quality assurance system in place at BSDC on multiple levels and this has had a positive impact on incidents and overall risk of harm. The State’s quality improvement structure identifies problematic trends, analyzes their causes, implements measures to address suspected causes, and evaluates their effectiveness. The State has developed indicators addressing important aspects of service quality and of critical outcomes, including health, well-being, and independence. The monitor concluded that quality improvement activities are ongoing and deepening and that they produce action plans that are implemented, and typically produce “improvements” for individuals. Id. at 18-19, 45-46.

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B. Behavioral Services, Restraints, and Psychiatric Care 1. Settlement Agreement Requirements The principal requirement is that the State will provide adequate behavioral services to meet the needs of each person to provide a reasonable opportunity to “enhance functioning, to grow and develop, to attain self-help and social skills needed to exercise as much autonomy or independence as possible, to prevent or decelerate both physical and psychological regression, loss of skills and functional status, and to ensure their reasonable safety, security and freedom from undue bodily restraint.” Agreement ¶ III.C.54. The Agreement requires that “all residents [be] free from unreasonable restraint,” to remove restraint as an acceptable form of planned behavioral intervention, and to develop steps such that the use of restraints will become “a very rare occurrence.” Id. ¶¶ III.C.72-73, 77. 2. Improved Behavioral Services In its findings letter, the United States concluded that the State failed to provide adequate behavioral services for dozens of BSDC residents with behavior problems. The United States reported that this deficiency contributed to poor outcomes, including injury, abuse, the use of highly restrictive interventions, and decreased opportunities for placement in community settings. BSDC behavior plans typically included some form of restraint element, such as multipoint restraints where people were tied to beds with cloth and leather straps with buckles. Functional assessments and behavior plans at BSDC now include all required components, including procedures to decrease problem behaviors, developing and strengthening replacement behaviors, active skill acquisition techniques, individualized reinforcers, environmental elements, and data collection systems. The State now implements the behavior plans in a timely manner. The monitor concluded that “the practice of functional behavior

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assessment at BSDC appeared to be generally in line with expectations described in the Settlement Agreement.” IE Rep. at 152. She found that BSDC behavior plans generally meet the requirements of the Agreement and that revised plans showed “significant improvement” in areas previously found problematic. Id. at 160-63. The monitor found the State has “made good progress” implementing quality behavior plans. Id. at 161, 163.
3. Drastic Reduction in the Use of Restraints In its 2007 findings letter, the United States concluded that the State subjected BSDC residents to undue restraint. The United States characterized injuries and incidents associated with restraint usage at BSDC as “alarming and disconcerting.” The United States reported that BSDC routinely utilized physical restraints, as well as invasive multi-point mechanical restraints, often tying down a person’s two arms, two legs, and upper torso with straps, and the facility used physical and mechanical restraints on both an emergency basis and as a planned intervention. Mechanical Restraints – At the time of its investigation, the United States’ psychology consultant concluded that mechanical restraint usage at BSDC was “the highest in frequency and duration that I have seen in my experience.” The United States found that dozens of residents were subjected to tens of thousands of minutes of planned mechanical restraint. One of the most significant accomplishments of the Agreement is the complete eradication of mechanical restraint usage in the Nebraska DD system – at BSDC, at Bridges, and in the community. This is a direct result of reforms implemented per the Agreement. In January 2011, the last mechanical restraint was used at Bridges; in December 2011, the last mechanical restraint was used at BSDC; and mechanical restraints have not been used at all in the community since the entry of the Agreement.

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Physical Restraints - In 2008, about 21 percent of BSDC residents – about six dozen individuals – were subjected to physical restraints. There were 539 instances of physical restraint that totaled 2,660 minutes. In the first half of 2015, there were only 19 instances of physical restraint for a total of 106 minutes; this represents more than a 90 percent reduction in the annual use of physical restraints at BSDC from the first year of the Agreement. See Appendix B-8. In the second quarter of 2015, only three individuals (about two percent of the BSDC census) were subjected to physical restraint, a total of 10 times, for a total of 59 minutes.
The reduction is due directly to changes implemented per the Agreement – programmatic physical restraints are no longer permitted, physical restraints may only be utilized as emergency safety interventions, and the State constantly works towards zero use of physical restraint. State policies on restraints are now consistent with requirements of the Agreement.
Overall, the monitor reported that data showed “significant declines in the use of restraint.” IE Rep. at 20. She found that use of restraints has become a “rare occurrence.” Id. at 174. She concluded that the State is to be “commended for marked positive changes in attitudes and practices with respect to responding to behavioral crisis situations.” Id. at 20. She reported that injuries related to restraints are “low,” and that in 2013, there were only two minor injuries related to a physical hold. Id. at 170.
The State was able to significantly reduce physical restraints and completely eliminate mechanical restraints at BSDC without increasing the use of psychotropic medications; indeed, the percentage of residents prescribed psychotropic medications has decreased in recent years.
4. Improved Mental Health Services In its findings letter, the United States concluded that the State failed to provide adequate psychiatric services to individuals with co-occurring mental illness. The United States found that

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psychotropic medication usage at BSDC was very high, that the incidence of psychotropic polypharmacy was high, and that some individuals were “grossly overmedicated.”
The State is now providing BSDC residents with adequate routine and emergency psychiatric services. There are sufficient psychiatry hours now to meet the mental health needs of those at BSDC, including enough time to complete thorough evaluations, develop carefully considered differential diagnoses, order appropriate treatments, and provide needed follow up. The monitor found that if needed, residents could be seen “quite frequently.” Id. at 178.
The monitor concluded that psychiatric care at BSDC was an area in which “significant improvement had been achieved over time.” Id. at 21. Positive areas include development and implementation of proper psychiatric treatment plans, incorporation of behavioral data into the decision-making process, and better coordination between psychiatrists and other professionals. The State conducted a review to bring all psychiatric diagnoses in line with current DSM criteria; there is now adequate justification for psychiatric diagnoses at BSDC. The monitor found that psychiatrists were “paying close attention to the diagnostic criteria when making diagnoses, which potentially was also having a positive impact on treatment.” Id. at 21-22, 180.
The monitor reported that there were “ongoing attempts to manage individuals on the lowest necessary dose of [psychotropic] medications, and to minimize the number of medications the individuals were prescribed.” Id. at 181. Psychiatrists regularly review the current medication regimen of each individual to determine whether or not the types and dosages of medication are appropriate and necessary, and then make changes when needed.
At the outset of this case, there were over 150 BSDC residents taking at least one psychotropic medication; today, that number has been cut by more than half. This decrease is due in part to the reduction of the overall census, but it is also the product of a concerted effort to

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minimize the use of these medications. Reduced reliance on psychotropic medications decreases the risk of adverse consequences associated with medication side effects.
The number of residents who are subjected to psychotropic polypharmacy has been decreasing. For the past year, there have been only six residents who were taking two or more psychotropics; this yields a polypharmacy rate of under 15 percent among those taking psychotropic medication, and a rate of around five percent of the total BSDC census.
In 2014, there were only eight instances of emergency use of psychotropic medication at BSDC, even though there were over 90 behavioral crisis episodes. During the first two quarters of 2015, there were 36 behavioral crisis episodes, with only a handful involving emergency use of medication. This is a testament to the State using less onerous practices to deal with crises. The monitor reported that it was “impressive” that psychiatrists have refrained from increasing reliance on medications when behaviors escalated. Id. at 180.
The monitor reported that the State does a “good job” monitoring side effects and related health markers. Id. at 181. She also concluded that the State has adequately addressed concerns raised in earlier monitoring reports with regard to providing guardians with sufficient information to make fully informed decisions with regard to mental health care. Id. at 21.
C. Health Care and Related Services 1. Settlement Agreement Requirements This section of the Agreement requires the State to provide individuals with adequate, appropriate, and timely preventive, routine, acute, and emergency health care to meet the individualized needs of each person. Agreement ¶ III.D.90. The Agreement includes provisions on medical care, neurological care, nursing services, nutritional and physical supports, and various therapeutic interventions. Id. ¶¶ III.D.92-140. The Agreement establishes a priority

8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 42 of 50 - Page ID # 1314 42
group for “heightened and enhanced attention and focus”; this includes those with a seizure disorder and those at risk of suffering a bowel obstruction, an aspiration event, a decubitus ulcer, a fracture, or an event associated with other at-risk conditions. Id. ¶ III.D.97.
2. Improved Health Care In its findings letter, the United States found that the State failed to provide BSDC residents with adequate health care. The United States found that health care was more reactive than proactive, especially with regard to individuals with complex, high-risk conditions. Improved Clinical Practices – Since entry of the Agreement, the State has implemented a host of improved health care practices to better meet the needs of BSDC residents, including those with more involved health conditions:
• The State is now providing BSDC residents with timely health care evaluations. The State has implemented an electronic system to ensure that referrals and testing procedures are completed and results are available in a timely manner.
• The State makes prompt referrals to specialists when needed. The State has also addressed issues associated with providing critical health care information to them.
• The State has begun to implement an electronic health record that facilitates the delivery of care and services, improves clinical work flow and communication, enhances implementation of quality assurance measures, and helps achieve positive outcomes.
• The State properly utilizes a health care screening tool to better ensure provision of routine and preventive health care based on individual needs. The State is appropriately identifying a priority group of individuals with high health risks. Individuals in this group receive individualized and appropriate health care that produces desired outcomes. Quality Assurance - The State has expanded its quality assurance system at BSDC to
better ensure that it is taking an individualized and comprehensive approach to meet each person’s needs and it has integrated health quality assurance processes with the larger quality assurance system. The monitor concluded that “[a]ttention to closing the loop between medical audits and necessary corrective actions was apparent.” IE Rep. at 194.

8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 43 of 50 - Page ID # 1315 43
Nursing - Nursing services at BSDC have improved since the entry of the Agreement. In
general, properly trained staff now provide appropriate nursing services to meet individualized
needs. Nurses utilize appropriate nursing assessment tools, flow sheets, and tracking records and
make timely changes to care plans whenever issues arise. The monitor has endorsed the
following nursing reforms and improved practices:
• The State has implemented a comprehensive, workable system to ensure that nurses are documenting accurately; the monitor concluded that these efforts have a “positive impact” on delivery of quality care.
• The monitor concluded that there was “significant improvement” in nursing plans and that they were “individualized and provided an understanding of needed daily care elements.” The primary nurse or supervisor makes changes to individual nursing plans as needed and then the health care coordinators communicate the changes to other team members; the monitor concluded that this system was “functioning well.”
Id. at 205, 206.
Outcomes - Since entry of the Agreement, the health care reforms implemented at BSDC
have produced positive outcomes. Here are some examples:
• In 2009, BSDC residents made 260 visits to a hospital emergency room or were admitted to a hospital for serious health care issues. Since then, the number of hospital contacts has decreased steadily to only 76 contacts in all of 2013; this is a reduced rate even accounting for the census drop. In the first two quarters of 2015, there has been a further reduction with only 33 individuals having such hospital contacts.
• There is an overall downward trend in the incidence of pressure ulcers at BSDC. In 2014, the average number of residents with new pressure ulcers per the overall census was only 0.8 percent; there was only one pressure ulcer recorded per quarter. In the first two quarters of 2015, no BSDC resident had a pressure ulcer.
• The medication error rate at BSDC is very low, and since 2013, no medication error has produced a harmful outcome for involved individuals.
Seizure Disorders - The State now provides BSDC residents with seizure disorders with
appropriate neurological care. Clinicians provide a proper documented rationale for treatment
and engage in active efforts to reduce anticonvulsant polypharmacy. There is now sensitivity to

8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 44 of 50 - Page ID # 1316 44
the need to manage medication to minimize adverse side effects. The State compiles and uses appropriate seizure data throughout treatment. The monitor reported that the State has developed “seizure needs” plans and has trained staff on how to implement them; these plans include information on how to properly address status epilepticus. Id. at 199. All disciplines communicate well to provide coordinated care, the State provides specialty consultations when needed, and uses seizure data as a part of service delivery.
3. Improved Physical and Nutritional Supports, Therapies, and Communication Services In its findings letter, the United States found that residents did not receive adequate PNS at BSDC. The United States found that the facility did not provide adequate occupational therapy, physical therapy, or speech therapy, and that assistive technology resources were inadequate to meet the needs of the individuals. Physical and Nutritional Supports - Since entry of the Agreement, the monitor reported that the State had made “significant progress” in providing PNS to meet individualized needs at BSDC. Id. at 22. The monitor concluded that the State “continued to develop, revise, and implement a sustainable system for the provision of physical and nutritional supports for individuals with identified needs.” Id. at 221. The monitor concluded that the State had made “significant improvements” in this area. Id. at 217-20. In April 2010, the State created a PNS team to provide proactive care and services to people with dysphagia and those who aspirate or are at risk of aspiration to minimize risks associated with choking, aspiration, pneumonia, skin breakdown, and nutritional decline. The State works to ensure implementation of proper mealtime and positioning strategies throughout the day for at-risk individuals, as well as enhanced nursing oversight and monitoring of signs and symptoms. The State has taken a number of important steps:

8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 45 of 50 - Page ID # 1317 45
• The State has developed reasonable methodologies for identifying individuals in need of supports, through multiple pathways including screening tools and change of status data.
• The State now conducts regular “status change” meetings to alert team members of residents who might be in the early stages of experiencing a change in status. The monitor applauded this new practice, as it produced more proactive service-delivery.
• The monitor reported that the State now performs individualized positioning evaluations to reduce the risk of aspiration and concluded this was very positive.
Id. at 23. The monitor concluded that team interventions over the years have “significantly
improved outcomes for individuals.” Id. at 22. She found that the State had “successfully transitioned to intervening more proactively with individuals and providing timely PNS services and supports.” Id. at 23, 232. As a result, choking incidents are down in recent years and the incidence of pneumonias, including aspiration pneumonias, has decreased.
Therapies - The State now complies with Agreement requirements with regard to physical and occupational therapy assessments. The monitor concluded that the State has “adequate templates, including guiding questions, and policies [and that] OT/PT assessments were comprehensive and addressed the assessment components as outlined” in the Agreement. Id. at 227. She reported that the State had “developed and implemented a number of processes aimed at improving outcomes for individuals.” Id. at 233. She concluded the State “continued to be committed to expanding the number of individuals who received therapeutic positioning in multiple environments … to minimize and/or reduce their risk factors.” Id. at 235.
The State created a specialty multi-disciplinary neuromuscular spine and gait services clinic to address the needs of those with physical disabilities. The State also improved practices associated with fabrication, modification, and repair of wheelchairs and other adaptive

8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 46 of 50 - Page ID # 1318 46
equipment. The monitor concluded that the improved processes were sustainable and “significantly improved outcomes for individuals” at BSDC. Id. at 22.
Communication - The State is now providing direct speech and language therapy to an increased number of individuals. The monitor noted the State was now integrating individualized communication assessments and strategies into annual plans and implementing measures to provide enhanced communication services/supports in multiple environments. Id. at 24-25. The monitor concluded that the State had implemented “major positive revisions to the [] assessment format, especially in the area of [communication] assessment … Competency-based training also had been provided to ensure staff knew how to use and assist individuals with the devices.” Id. at 24-25, 240-41.
4. Mortalities In its findings letter, the United States found that some individuals with DD in the State’s system appeared to have suffered preventable deaths. The United States noted that there was no in-depth root cause analysis of each death to determine if the course of care in the weeks prior to the death was inadequate. Independent Mortality Investigations – The Agreement requires the State to create an independent and external mortality review committee to conduct in-depth death reviews and to issue written reports to identify preventable causes so that similarly situated individuals would not suffer preventable illness or death. Agreement ¶ III.D.106. The State is to then ensure prompt and effective implementation of the committee’s recommendations. Id. ¶ III.D.108. The State contracted with the Columbus Organization to conduct the independent mortality investigations for individuals in the institutional sub-group. Typically, a doctor and a nurse with DD experience conduct the reviews. This process has been positive and rigorous;

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Columbus has produced in-depth, independent reviews to expose weaknesses in the State’s service-delivery system. The reports are well-written and contain findings, more exact and accurate causes of death, concerns associated with the death (if any), and individual and systemic recommendations to help avoid preventable illness and death going forward. The State provides a copy of the Columbus reports to the community providers to prompt needed remedies. The State also provides a copy to the regional DD office and the Division of Public Health, for systemic follow up.
Community – In May of this year, the State issued its second annual report on deaths for the thousands of people with DD in the State’s system. The State reported that 65 individuals died in integrated community settings in Nebraska in 2014. Almost one-third of the people who died in 2014 were on hospice care. Mortality rates for the past two years in Nebraska are favorable, and reflect positively on the State’s DD system as a whole. The State commits to making the annual mortality report a public document this year and going forward.
BSDC – In 2009, the first full year under the Agreement, 25 individuals from the institutional sub-group died; this was largely due to the trauma associated with an unexpected emergency evacuation order from the State Department of Public Health in February 2009, that mandated the removal of about four dozen medically fragile individuals from BSDC because BSDC was not able to deliver effective health care services to individuals with complex health needs. Within a year of that emergency order, a dozen displaced individuals had died. We discuss this evacuation order and the individuals impacted by it in greater depth in Appendix D, attached to the accompanying index of evidentiary materials.
Community capacity started to expand and meaningful reforms took root for the first time in 2010. From January 1, 2010 through April 2015, a total of 59 individuals with DD from the

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sub-group have died, averaging less than a dozen deaths per year; almost two-thirds of those died
while residing in an institutional setting, such as BSDC or a nursing home.
IV. CONCLUSION
For the reasons set forth above, the parties jointly ask the Court to find that the
information contained in this memorandum in support is sufficient to enable the Court to dismiss
this case with prejudice given the State’s sustained compliance with the terms of the remedial
Settlement Agreement in this case.
Respectfully submitted,
FOR THE UNITED STATES, PLAINTIFF:
VANITA GUPTA Principal Deputy Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General
JUDITH C. PRESTON Acting Chief Special Litigation Section
BENJAMIN O. TAYLOE, JR. Deputy Chief Special Litigation Section

Date: July 22, 2015

/s/ Richard J. Farano RICHARD J. FARANO [DC Bar #424225] Senior Trial Attorney United States Department of Justice Civil Rights Division - Special Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 5020 Washington, DC 20530 Telephone: (202) 307-3116 Fax: (202) 514-0210 richard.farano@usdoj.gov

8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 49 of 50 - Page ID # 1321 49

Date: July 22, 2015

FOR THE STATE OF NEBRASKA DEFENDANTS:
/s/ Gregory J. Walklin GREGORY J. WALKLIN [NE Bar #24210] Special Assistant Attorney General Nebraska Dep’t of Health and Human Services Legal Services 301 Centennial Mall South P.O. Box 95026 Lincoln, NE 68509 Telephone: (402) 471-3520 Fax: (402) 471-9518 gregory.walklin@nebraska.gov

8:08-cv-00271-RGK-DLP Doc # 115 Filed: 07/22/15 Page 50 of 50 - Page ID # 1322 50
CERTIFICATE OF SERVICE
I hereby certify that on July 22, 2015, I electronically filed the memorandum in support
of the parties’ joint motion to dismiss with the Clerk of the Court using the Court’s electronic
case filing system, which will serve copies of the document on all parties of record.
Respectfully submitted,
/s/ Richard J. Farano RICHARD J. FARANO [DC Bar #424225] Senior Trial Attorney United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 5020 Washington, DC 20530 Telephone: (202) 307-3116 Fax: (202) 514-0210 richard.farano@usdoj.gov

 
 8:08-cv-00271-RGK-DLP Doc # 121 Filed: 08/03/15 Page 1 of 1 - Page ID # 1607

IN THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF NEBRASKA


UNITED STATES OF AMERICA, )


)


Plaintiff,

)


)


v.

)


)


STATE OF NEBRASKA, et al.,

)


)


Defendants.

)

)

8:08CV271 JUDGMENT

Pursuant to the order entered this date pursuant to Fed. R. Civ. P. 60(b)(5) terminating the parties’ settlement agreement, which constituted a judgment in this case (filings 9 & 10), and granting the parties’ Joint Motion to Dismiss (filing 114), this matter is dismissed with prejudice.
DATED this 3rd day of August, 2015.
BY THE COURT:
s/ Richard G. Kopf
Richard GSenior United States District Judge

8:08-cv-00271-RGK-DLP Doc # 120 Filed: 08/03/15 Page 1 of 3 - Page ID # 1604

IN THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF NEBRASKA


UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

)

)

STATE OF NEBRASKA, et al.,

)


)


Defendants.

)


)


8:08CV271 ORDER

Final judgment in this case was entered on July 2, 2008, pursuant to a settlement agreement between the parties (filing 10). An order related to the settlement agreement specifically stated that “the settlement agreement . . . shall constitute a final judgment the entry of which shall be deemed for all purposes to have occurred when the same is recorded on the Court’s CM/ECF system” and “the undersigned retains continuing jurisdiction over this case and the parties to construe and enforce the settlement agreement.” (Filing 9.)
Seven years later, and after all parties have agreed that the defendants have satisfactorily complied with the terms of the settlement agreement, the parties have filed a Joint Motion to Dismiss (filing 114), supporting brief (filing 115), and appendices (filing 116) seeking “to terminate the Settlement Agreement (ECF No. 10, July 2, 2008) in this case and to dismiss the case with prejudice.” (Filing 114.) I construe the parties’ request to be a motion for relief from this court’s July 2, 2008, judgment (which consisted of the settlement agreement) because “applying [the judgment/settlement agreement] prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5).1
1“The one-year limit applicable to some of the grounds for relief in Rule 60(b) does not apply to Rule 60(b)(5). All that is required is that the motion be made in a ‘reasonable time.’” 11 Charles Alan Wright & Arthur R. Miller, et al., Federal Practice and Procedure § 2863 (3d ed. Westlaw 2015) (footnotes omitted).

8:08-cv-00271-RGK-DLP Doc # 120 Filed: 08/03/15 Page 2 of 3 - Page ID # 1605
Rule 60(b)(5) allows “relief if it is no longer equitable for the judgment to be applied prospectively.” The rule “applies to any judgment that has prospective effect,” and it “refers to some change in conditions that makes continued enforcement inequitable.” A motion made pursuant to Rule 60(b)(5) “is addressed to the sound discretion of the court,” and “on an adequate showing the courts will provide relief if it no longer is equitable that the judgment be enforced, whether because of subsequent legislation, a change in the decisional law, or a change in the operative facts.” Federal Practice and Procedure § 2863 (footnotes omitted).
The “critical question” in a Rule 60(b)(5) analysis is whether the objective of the judgment, consent decree, declaratory judgment order, injunction, or the like “has been achieved. If a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper.” Horne v. Flores, 557 U.S. 433, 448, 450­ 51 (2009) (noting that Rule 60(b)(5) is especially useful in “institutional reform litigation,” and the rule contemplates “a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied”).
The parties have submitted thorough documentation establishing that the State of Nebraska has fully complied with the settlement agreement. Therefore, continued enforcement of this court’s original judgment (filing 10), which incorporated the settlement agreement, is inequitable within the meaning of Rule 60(b)(5), and relief from that original judgment is warranted. Accordingly, I shall grant the parties’ Joint Motion to Dismiss (filing 114), terminate the settlement agreement (filing 10), dismiss this case with prejudice, and enter judgment by separate document.
IT IS ORDERED:
1. The parties’ settlement agreement, which constituted a judgment in this case (filings 9 & 10), is terminated pursuant to Fed. R. Civ. P. 60(b)(5);
2. The parties’ Joint Motion to Dismiss (filing 114) is granted;
2


8:08-cv-00271-RGK-DLP Doc # 120 Filed: 08/03/15 Page 3 of 3 - Page ID # 1606
3. This case is dismissed with prejudice; and 4. Judgment shall be entered by separate document. DATED this 3rd day of August, 2015.
BY THE COURT:
s/ Richard G. Kopf
Richard GSenior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
3


8:08-cv-00271-RGK-DLP Doc # 119 Filed: 08/03/15 Page 1 of 3 - Page ID # 1601

THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF NEBRASKA


UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

vs.

)

)

THE STATE OF NEBRASKA, et al., )


)


Defendants.

)


8:08CV271
MEMORANDUM AND ORDER

This case was closed after judgment was entered pursuant to a settlement agreement between the parties (filing 10). An order related to the settlement agreement states that “the undersigned retains continuing jurisdiction over this case and the parties to construe and enforce the settlement agreement.” (Filing 9, at 2.)

The parties’ settlement agreement (filing 10) provides for the appointment of an independent expert “to monitor the State’s implementation of this Settlement Agreement.” The parties originally appointed John J. McGee, Ph.D., as the independent expert, and Dr. McGee served in that capacity from July 2008 to December 2009. However, on December 22, 2009, the parties filed with the court a joint notice of the resignation of Dr. McGee, effective December 31, 2009. The notice stated that the parties “have jointly selected Maria E. Laurence to assume the role of the Independent Expert in this case once Dr. McGee’s term ends.” (Filing 48.)

The settlement agreement requires the expert to “submit monthly statements to the Court . . . detailing all expenses the Independent Expert incurred during the prior month.” (Filing 10, at 4-5.) The agreement permits payment to consultants who assist the independent expert1 and allows parties seven business days from receipt of the
1“The cost of the Independent Expert, including the cost of any consultant to assist the Independent Expert, shall be borne by the State in this action. All reasonable expenses incurred by . . . any consultant, in the course of the performance of the duties of the Independent Expert . . . shall be reimbursed by the State.” (Filing 10, at 5.)

8:08-cv-00271-RGK-DLP Doc # 119 Filed: 08/03/15 Page 2 of 3 - Page ID # 1602
independent expert’s monthly statements to file any comments or objections regarding the statements. (Filing 10, at 6.) After such comments or objections are submitted, the court is to review the matter and “order the clerk to make the appropriate payments” to the independent expert.
On July 24, 2015, independent expert Maria Laurence filed a final motion for reimbursement for professional services in the amount of $2,396.88 for services provided from January 1, 2015, to July 22, 2015. (Filing 117.) Pursuant to the parties’ Joint Motion on the Independent Expert’s Reimbursement Motion and Disposition of the Court Account (filing 118), I shall order that payment be made to Maria Laurence for professional services in the amount requested.
Accordingly,
IT IS ORDERED:
1. The motion for reimbursement (filing 117) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services of independent expert Maria Laurence in the amount of $2,396.88 for services provided from January 1, 2015, to July 22, 2015.
2. Such funds shall be paid from the interest-bearing account set up by the Clerk of Court pursuant to this court’s prior order (filing 9).
3. The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest-bearing account has been sufficiently replenished by the defendants to allow payment of the full amount.
4. As provided in this court’s prior order (filing 9), the “Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned
2


8:08-cv-00271-RGK-DLP Doc # 119 Filed: 08/03/15 Page 3 of 3 - Page ID # 1603

each time funds are disbursed.”

5. The parties’ Joint Motion on the Independent Expert’s Reimbursement Motion and Disposition of the Court Account (filing 118) is granted. Because this is the final disbursement to be made to independent expert Maria E. Laurence, after such final payment is made, the Clerk of Court shall return to the State of Nebraska any residual amount remaining in the court’s interest-bearing account to which the State of Nebraska is entitled and shall then close the account.

DATED this 3rd day of August, 2015.

BY THE COURT:

s/Richard G. Kopf

Richard G. Kopf

Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
3


 
 Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 1 of 18
CLOSED,NEBRASKA−DEFENDANT,NEBRASKADOCKET,TRIAL−OMAHA,USAPLAINTIFF
U.S. District Court District of Nebraska (8 Omaha) CIVIL DOCKET FOR CASE #: 8:08−cv−00271−RGK−DLP

United States of America v. State of Nebraska et al Assigned to: Senior Judge Richard G. Kopf Referred to: Magistrate Judge David L. Piester Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 06/30/2008 Date Terminated: 08/03/2015 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Benjamin O. Tayloe U.S. DEPARTMENT OF JUSTICE − CIVIL RIGHTS DIVISION 950 Pennsylvania Avenue, N.W.−PHB Washington, DC 20530 (202) 514−8103 Fax: (202) 514−0212 Email: benjamin.tayloe@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Grace Chung Becker U.S. DEPARTMENT OF JUSTICE − CIVIL RIGHTS DIVISION 950 Pennsylvania Avenue, N.W.−PHB Washington, DC 20530 (202) 353−0742 Fax: (202) 514−0293 Email: grace.becker@usdoj.gov TERMINATED: 05/20/2009

Joe W. Stecher SKAVDAHL, EDMUND LAW FIRM P.O. Box 156 Harrison, NE 69346 (308) 668−2466 Fax: (308) 668−2467 Email: selaw@qwestoffice.net TERMINATED: 10/15/2009

Marina Mazor U.S. DEPARTMENT OF JUSTICE − CIVIL RIGHTS DIVISION 950 Pennsylvania Avenue, N.W.−PHB Washington, DC 20530 (202) 305−3347 Fax: (202) 514−0212 Email: marina.mazor@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Richard J. Farano U.S. DEPARTMENT OF JUSTICE − CIVIL RIGHTS DIVISION 950 Pennsylvania Avenue, N.W.−PHB Washington, DC 20530 (202) 307−3116 Fax: (202) 514−0212 Email: richard.farano@usdoj.gov PRO HAC VICE

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 2 of 18
ATTORNEY TO BE NOTICED
Robert L. Homan U.S. ATTORNEY'S OFFICE − OMAHA 1620 Dodge Street Suite 1400 Omaha, NE 68102−1506 (402) 661−3700 Fax: (402) 661−3081 Email: robert.homan@usdoj.gov ATTORNEY TO BE NOTICED
Shanetta Y. Brown Cutlar U.S. DEPARTMENT OF JUSTICE − CIVIL RIGHTS DIVISION 950 Pennsylvania Avenue, N.W.−PHB Washington, DC 20530 (202) 514−0195 Fax: (202) 514−0212 Email: shanetta.brown.cutlar2@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
State of Nebraska The

represented by Bradley Gianakos NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES − LINCOLN P.O. Box 95026 Lincoln, NE 68509−5026 (402) 471−4068 Fax: (402) 471−9518 Email: brad.gianakos@dhhs.ne.gov TERMINATED: 03/07/2011
Gregory J. Walklin ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−3840 Fax: (402) 471−2957 Email: gregory.walklin@nebraska.gov ATTORNEY TO BE NOTICED
Jodi M. Fenner NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES − LINCOLN P.O. Box 95026 Lincoln, NE 68509−5026 (402) 471−8609 Fax: (402) 471−9518 Email: jodi.fenner@dhhs.ne.gov TERMINATED: 08/17/2009
Mark A. Ludwig NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES − LINCOLN 301 Centennial Mall South

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 3 of 18

3rd Floor Lincoln, NE 68509−5026 (402) 471−4374 Fax: (402) 471−9518 Email: mark.ludwig@nebraska.gov TERMINATED: 08/17/2009

Matthew J. Effken NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES − LINCOLN 301 Centennial Mall South 3rd Floor Lincoln, NE 68509−5026 (402) 471−3520 Fax: (402) 471−9518 Email: matthew.effken@nebraska.gov TERMINATED: 02/19/2013

Susan A. Knabe NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES − LINCOLN P.O. Box 95026 Lincoln, NE 68509−5026 (402) 471−4049 Fax: (402) 471−9518 Email: susan.knabe@nebraska.gov ATTORNEY TO BE NOTICED

Defendant
Dave Heineman Governor of the State of Nebraska, in his official capacity only

represented by Bradley Gianakos (See above for address) TERMINATED: 03/07/2011

Gregory J. Walklin (See above for address) ATTORNEY TO BE NOTICED

Jodi M. Fenner (See above for address) TERMINATED: 08/17/2009

Mark A. Ludwig (See above for address) TERMINATED: 08/17/2009

Matthew J. Effken (See above for address) TERMINATED: 02/19/2013

Susan A. Knabe (See above for address) ATTORNEY TO BE NOTICED

Defendant
Christine Peterson Chief Executive Officer, Nebraska Department of Health and Human Services, in her official capacity only

represented by Bradley Gianakos (See above for address) TERMINATED: 03/07/2011
Gregory J. Walklin (See above for address) ATTORNEY TO BE NOTICED

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 4 of 18

Jodi M. Fenner (See above for address) TERMINATED: 08/17/2009

Mark A. Ludwig (See above for address) TERMINATED: 08/17/2009

Matthew J. Effken (See above for address) TERMINATED: 02/19/2013

Susan A. Knabe (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Wyvill Director, Division of Developmental Disabilities, Nebraska Department of Health and Human Services, in his official capacity only

represented by Bradley Gianakos (See above for address) TERMINATED: 03/07/2011
Gregory J. Walklin (See above for address) ATTORNEY TO BE NOTICED

Jodi M. Fenner (See above for address) TERMINATED: 08/17/2009

Mark A. Ludwig (See above for address) TERMINATED: 08/17/2009

Matthew J. Effken (See above for address) TERMINATED: 02/19/2013

Susan A. Knabe (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ron Stegemann Chief Executive Officer, Beatrice State Developmental Center, in his official capacity only

represented by Bradley Gianakos (See above for address) TERMINATED: 03/07/2011
Gregory J. Walklin (See above for address) ATTORNEY TO BE NOTICED

Jodi M. Fenner (See above for address) TERMINATED: 08/17/2009

Mark A. Ludwig (See above for address) TERMINATED: 08/17/2009

Matthew J. Effken (See above for address) TERMINATED: 02/19/2013

Susan A. Knabe (See above for address)

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 5 of 18 ATTORNEY TO BE NOTICED

Date Filed 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 07/02/2008
07/02/2008 08/18/2008 08/20/2008 08/20/2008 09/04/2008

# Docket Text
1 COMPLAINT against John Wyvill, Ron Stegemann, State of Nebraska, Dave Heineman and Christine Peterson. No Summons issued by Attorney Grace Chung Becker on behalf of United States of America.(MKR) (Entered: 06/30/2008)
2 APPLICATION/ORDER admitting pro hac vice Attorney Marina Mazor for Plaintiff United States of America. Ordered by Deputy Clerk. (Copies given at the counter) (MKR) (Entered: 06/30/2008)
3 APPLICATION/ORDER admitting pro hac vice Attorney Richard J. Farano for Plaintiff United States of America. Ordered by Deputy Clerk. (Copies given at the counter) (MKR) (Entered: 06/30/2008)
4 APPLICATION/ORDER admitting pro hac vice Attorney Benjamin O. Tayloe for Plaintiff United States of America. Ordered by Deputy Clerk. (Copies given at the counter) (MKR) (Entered: 06/30/2008)
5 APPLICATION/ORDER admitting pro hac vice Attorney Shanetta Y. Brown Cutlar for Plaintiff United States of America. Ordered by Deputy Clerk. (Copies given at the counter) (MKR) (Entered: 06/30/2008)
6 APPLICATION/ORDER admitting pro hac vice Attorney Grace Chung Becker for Plaintiff United States of America. Ordered by Deputy Clerk. (Copies given at the counter) (MKR) (Entered: 06/30/2008)
7 Joint MOTION that the Court Enter the Parties' Negotiated Settlement Agreement by Attorney Joe W. Stecher on behalf of Plaintiff United States of America.(Stecher, Joe) (Entered: 06/30/2008)
8 BRIEF in support of Joint MOTION that the Court Enter the Parties' Negotiated Settlement Agreement 7 by Attorney Joe W. Stecher on behalf of Plaintiff United States of America.(Stecher, Joe) (Entered: 06/30/2008)
9 MEMORANDUM AND ORDER − After consultation by telephone with Richard Farano, counsel for the United States, and Jodi Fenner, counsel for the defendants, and with their agreement, IT IS ORDERED that: 1. No evidentiary hearing or other hearing is required or is necessary prior to the approval of the settlement agreement by the undersigned. 2. In accordance with Federal Rules of Civil Procedure 58 and 79, the settlement agreement, with the approval of the undersigned at page 38, shall constitute a final judgment the entry of which shall be deemed for all purposes to have occurred when the same is recorded on the Court's CM/ECF system. Notwithstanding this provision, the undersigned retains continuing jurisdiction over this case and the parties to construe and enforce the settlement agreement. Ordered by Judge Richard G. Kopf. (Copy to Financial)(JAB) (Entered: 07/02/2008)
10 JUDGMENT with Settlement Agreement regarding Memorandum and Order, 9 . Ordered by Judge Richard G. Kopf. (JAB) (Entered: 07/02/2008)
11 LETTER − Activities and Expense Report of Independent Expert John J. McGee. (JAB) (Entered: 08/18/2008)
TEXT RECEIPT number 4−2417, in the amount of $ 12,000.00 by Defendant State of Nebraska pursuant to Order 12 . (JAB) (Entered: 03/24/2009)
TEXT RECEIPT number CQ08464700389, in the amount of $100,000.00 paid by Defendant State of Nebraska pursuant to Judgment with Settlement Agreement 10 . (JAB) (Entered: 03/27/2009)
12 MEMORANDUM AND ORDER regarding Memorandum and Order 9 , and Judgment 10 . Within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall pay to independent expert John J. McGee, Ph.D., $12,000.00 for services rendered in July 2008 in the above−captioned case. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). Within 45 days of the date of this order, the defendants shall replenish the above described interest−bearing account with

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 6 of 18

09/19/2008 09/24/2008 10/02/2008
10/15/2008 10/27/2008
10/29/2008
10/29/2008 02/18/2009 02/18/2009 02/18/2009 02/26/2009 03/06/2009

the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to Finance)(JAB) (Entered: 09/04/2008)
13 LETTER − Activities and expense report of independent expert John J. McGee. (LKL) (Entered: 09/19/2008)
TEXT RECEIPT number 4−2511, in the amount of $ 12,000.00 by Defendant State of Nebraska pursuant to Order 14 . (JAB) (Entered: 03/24/2009)
14 MEMORANDUM AND ORDER regarding Letter 13 . Within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall pay to independent expert John J. McGee, Ph.D., $12,000.00 for services rendered in August 2008 in the abovecaptioned case. As provided in the parties settlement agreement (filing 10 , at 6), andwithin 45 days of the date of this order, the defendants shall replenish the above described interest−bearing account with the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to Finance) (JAB) (Entered: 10/02/2008)
15 LETTER − Activities and expense report for September, of independent expert John J. McGee.(JAB) (Entered: 10/15/2008)
16 STRICKEN − MEMORANDUM AND ORDER regarding Letter 15 . Within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall pay to independent expert John J. McGee, Ph.D., $12,000.00 for professional services rendered in September 2008 and $1,475.45 in mileage and meal expenses incurred in July, August, and September 2008. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to finance)(JAB) Modified on 10/29/2008 to add "sricken" text pursuant to Order 17 . (JAB) (Entered: 10/27/2008)
17 AMENDED MEMORANDUM AND ORDER regarding Memorandum and Order, 16 . Within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall pay to independent expert John J. McGee, Ph.D., $15,310.17 for professional services, meal expenses, hotel costs, and copying expenses. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). Within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., in order to restore the account's total to $100,000.00. The court's prior order entered on October 27, 2008 (filing 16 ), shall be stricken. Ordered by Judge Richard G. Kopf. (Copy to Finance)(JAB) (Entered: 10/29/2008)
TEXT RECEIPT number 4−2582, in the amount of $ 15,310.17 by Defendant State of Nebraska pursuant to Order 17 . (JAB) (Entered: 03/24/2009)
18 LETTER − Activities and expense report of independent expert John J. McGee for November, 2008.(JAB) (Entered: 02/18/2009)
19 LETTER − Activities and expense report of independent expert John J. McGee for December, 2008.(JAB) (Entered: 02/18/2009)
20 LETTER − Activities and expense report of independent expert John J. McGee for January, 2009.(JAB) (Entered: 02/18/2009)
21 MOTION for fees for consultants Macomb−Oakland Regional Center, John Williams, and Life Project Consulting (from September, 2008 − December, 2008) filed by Independent Expert John J. McGee. (JAB) (Entered: 02/26/2009)
22 MEMORANDUM AND ORDER regarding: Letters 18 , 19 and 20 . Within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall pay to independent expert John J. McGee, Ph.D., $37,207.86 for

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 7 of 18

03/10/2009 03/16/2009 03/17/2009 03/18/2009 03/23/2009 03/24/2009
05/15/2009 05/19/2009 05/19/2009 05/20/2009
05/20/2009 07/20/2009 07/20/2009 07/20/2009 07/20/2009 07/23/2009

professional services and gasoline and auto−related expenses for the months of November 2008, December 2008, and January 2009. The defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to finance)(JAB) (Entered: 03/06/2009)
23 MOTION for Fees − Activities and expense report of independent expert John J. McGee for February, 2009. (JAB) (Entered: 03/10/2009)
TEXT RECEIPT number 4−2926, in the amount of $ 22,417.09 by Defendant State of Nebraska pursuant to Order 22 . (JAB) (Entered: 03/24/2009)
TEXT RECEIPT number 4−2929, in the amount of $ 14,790.77 by Defendant State of Nebraska pursuant to Order 22 . (JAB) (Entered: 03/24/2009)
TEXT RECEIPT number 4−2930, in the amount of $ 16,285.76 by Defendant State of Nebraska pursuant to Order 24 . (JAB) (Entered: 03/24/2009)
TEXT RECEIPT number 4−2933, in the amount of $ 12,877.83 by Defendant State of Nebraska pursuant to Order 24 . (JAB) (Entered: 03/24/2009)
24 MEMORANDUM AND ORDER granting Motions for Reimbursement 21 and 23 . Within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of the Macomb−Oakland Regional Center in the amount of $40,492.86; John Williams in the amount of $9,600.00; and Life Project Consulting, LLC, in the amount of $16,285.76. Further, the Clerk of Court shall disburse to independent expert John J. McGee, Ph.D., the amount of $12,877.83 for professional services and expenses for February 2009. The defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., and other consultants in order to restore the accounts total to $100,000.00. Ordered by Judge Richard G. Kopf. (JAB) (Entered: 03/24/2009)
TEXT RECEIPT number 4−3048, in the amount of $ 50,092.86 by Defendant State of Nebraska pursuant to Order 24 . (SDA, ) (Entered: 05/15/2009)
25 Mail Returned as Undeliverable addressed to grace.becker@usdoj.gov regarding Receipt (Monetary). E−mail not resent. Attorney no longer works in the office. Motion to withdraw coming. (JAB) (Entered: 05/19/2009)
26 MOTION to Withdraw as Attorney (Grace Chung Becker) by Attorney Marina Mazor on behalf of Plaintiff United States of America. (Attachments: # 1 Text of Proposed Order Proposed Order)(Mazor, Marina) (Entered: 05/19/2009)
27 TEXT NOTICE REGARDING PROPOSED ORDER attached to motion withdraw as attorney 26 by Deputy Clerk. Pursuant to NECivR 7.2, a moving party shall submit a proposed order to the judge. Electronically submitted proposed orders may not be combined with the motion into one document. The proposed order should be e−mailed in a word−processing format to the assigned judge. This notice is for your information for future filings. (SED) (Entered: 05/20/2009)
28 ORDER granting 26 United States' Motion to Withdraw as Attorney (Grace Chung Becker). Ordered by Magistrate Judge David L. Piester. (JAB) (Entered: 05/20/2009)
29 LETTER − Activities and Expense Report of Independent Expert John J. McGee for March 2009. (JAB) (Entered: 07/20/2009)
30 LETTER − Activities and Expense Report of Independent Expert John J. McGee for April 2009. (JAB) (Entered: 07/20/2009)
31 LETTER − Activities and Expense Report of Independent Expert John J. McGee for May 2009. (JAB) (Entered: 07/20/2009)
32 LETTER − Activities and Expense Report of Independent Expert John J. McGee for June 2009. (JAB) (Entered: 07/20/2009)
33 MOTION to Appoint Counsel by Attorney Mark A. Ludwig on behalf of Defendants John Wyvill, Ron Stegemann, State of Nebraska, Dave Heineman, Christine

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 8 of 18

07/24/2009 08/05/2009
08/05/2009 08/07/2009 08/14/2009 08/14/2009 08/14/2009 08/17/2009
08/17/2009 08/19/2009 09/29/2009 09/29/2009 09/29/2009 10/15/2009

Peterson.(Ludwig, Mark) (Entered: 07/23/2009)
34 TEXT NOTICE OF INCORRECT EVENT used when filing the Motion to Appoint Counsel 33 by Deputy Clerk. In the future, use the event Notice of Appearance found under "Notices".(JAB) (Entered: 07/24/2009)
35 MEMORANDUM AND ORDER − The motions for reimbursement (filings 29 , 30 , 31 , 32 ) are granted, and within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert John J. McGee, Ph.D., the amounts of $5,405.00 for March 2009; $10,580.00 for April 2009; $9,425.00 for May 2009; and $13,250.00 for June 2009. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6 ), and within 45 days of the date of this order, the defendants shall replenish the above−described interest−bearing account with the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (GJG)(Copy to Financial) (Entered: 08/05/2009)
TEXT RECEIPT number 4−3195, in the amount of $ 14,830.00 by Defendant State of Nebraska pursuant to Order 35 . (SDA) (Entered: 08/05/2009)
TEXT RECEIPT number 4−3198, in the amount of $ 10,580.00 by Defendant State of Nebraska pursuant to Order 35 . (SDA) (Entered: 08/07/2009)
36 NOTICE of Appearance by Attorney Bradley Gianakos on behalf of Defendants John Wyvill, Ron Stegemann, State of Nebraska, Dave Heineman, Christine Peterson (Gianakos, Bradley) (Entered: 08/14/2009)
37 MOTION to Withdraw as Attorney by Attorney Bradley Gianakos on behalf of Defendants John Wyvill, Ron Stegemann, State of Nebraska, Dave Heineman, Christine Peterson.(Gianakos, Bradley) (Entered: 08/14/2009)
38 MOTION to Withdraw as Attorney by Attorney Bradley Gianakos on behalf of Defendants John Wyvill, Ron Stegemann, State of Nebraska, Dave Heineman, Christine Peterson.(Gianakos, Bradley) (Entered: 08/14/2009)
39 TEXT NOTICE REGARDING ELECTRONIC SIGNATURE re certificates of services to Motion to Withdraw as Attorney 37 , Motion to Withdraw as Attorney 38 and Notice of Appearance 36 by Deputy Clerk. This document does not comply with NECivR 11.1(a) regarding signatures as to the certificates of service. This notice is for your information for future filings.(SED) (Entered: 08/17/2009)
40 ORDER − The motions to withdraw Jodi M. Fenner, (filing no. 37 ), and Mark A. Ludwig, (filing no. 38 ), as counsel of record for the defendants, are granted. Ordered by Judge Richard G. Kopf. (JAB) (Entered: 08/17/2009)
TEXT RECEIPT number 4−3210, in the amount of $ 13,250.00 by Defendant State of Nebraska pursuant to Order 35 . (JAB) (Entered: 08/19/2009)
41 INDEPENDENT EXPERT REPORT Quarter 2, 2009 filed by John J. McGee, PhD. (JAB) (Entered: 09/29/2009)
42 MOTION for Fees of Independent Expert John J. McGee, PhD., for July, 2009. (JAB) (Entered: 09/29/2009)
43 MOTION for Fees of Independent Expert John J. McGee, PhD for August, 2009. (JAB) (Entered: 09/29/2009)
44 MEMORANDUM AND ORDER granting motions for reimbursement 42 and 43 . Within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert John J. McGee, Ph.D., the amounts of $12,012.22 for July 2009 (filing 42 ) and $12,029.58 for August 2009 (filing 43 ). Within 45 days of the date of this order, the defendants shall replenish the above−described

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 9 of 18

12/02/2009 12/02/2009 12/16/2009
12/22/2009 01/21/2010 03/24/2010
03/24/2010 03/24/2010
03/24/2010 03/24/2010 03/24/2010

interest−bearing account with the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to Finance) (JAB) (Entered: 10/15/2009)
45 MOTION for Fees of Independent Expert John J. McGee, PhD for September, 2009. (JAB) (Entered: 12/02/2009)
46 MOTION for Fees of Independent Expert John J. McGee, PhD for October, 2009(JAB) (Entered: 12/02/2009)
47 MEMORANDUM AND ORDER granting 45 and 46 motions for reimbursement. Within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert John J. McGee, Ph.D., in the amounts of $12,539.07 for September 2009 (filing 45 ) and $12,380.00 for October 2009 (filing 46 ). Within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert John J. McGee, Ph.D., in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to Financial)(JAB) (Entered: 12/16/2009)
48 NOTICE OF RESIGNATION AND REPLACEMENT OF INDEPENDENT EXPERT by Attorney Bradley Gianakos on behalf of Defendants Dave Heineman, Christine Peterson, State of Nebraska, Ron Stegemann, John Wyvill, Plaintiff United States of America (Gianakos, Bradley) (Entered: 12/22/2009)
TEXT RECEIPT number 4−3575, in the amount of $ 48,960.87 by Defendant State of Nebraska pursuant to Order 44 and 47 . (AOA) (Entered: 01/21/2010)
49 MOTION for Fees of Consultant John Williams from January − May, 2009 filed by Independent Expert John J. McGee, PhD. (Attachments: # 1 Cover letter) (CD Attachment [AT49] Maintained in Clerk's Office) ACCESS TO THE COVER LETTER IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT.(JAB) (Entered: 03/26/2010)
50 MOTION for Fees of Consultant John Williams from June − July, 2009 filed by Independent Expert John J. McGee, PhD. (Attachments: # 1 Cover letter) ACCESS TO THE COVER LETTER IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT.(JAB) (Entered: 03/26/2010)
51 MOTION for Fees of Consultant Marge Brown of Life Project Consulting from January − May, 2009 filed by Independent Expert John J. McGee, PhD. (Attachments: # 1 Cover letter) (CD Attachment [AT51] Maintained in Clerk's Office) ACCESS TO THE COVER LETTER IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT.(JAB) (Entered: 03/26/2010)
52 MOTION for Fees of Consultant Marge Brown of Life Project Consulting from June−July, 2009 filed by Independent Expert John J. McGee, PhD. (Attachments: # 1 Cover letter) ACCESS TO THE PDF DOCUMENT IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT.(JAB) (Entered: 03/26/2010)
53 MOTION for Fees of Consultants from Macomb−Oakland Regional Center from January − May, 2009 filed by Independent Expert John J. McGee, PhD. (Attachments: # 1 Cover letter) ACCESS TO THE COVER LETTER IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT.(JAB) (Entered: 03/26/2010)
54 MOTION for Fees of Consultants from Macomb−Oakland Regional Center from June−July, 2009 filed by Independent Expert John J. McGee, PhD. (Attachments: # 1 Cover letter) ACCESS TO THE COVER LETTER IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT. (JAB) (Entered: 03/26/2010)

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 10 of 18

04/02/2010 04/13/2010 04/13/2010 04/14/2010
05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/06/2010
05/14/2010

55 OBJECTION to Motion for Attorney Fees, 53 , Motion for Attorney Fees, 51 , Motion for Attorney Fees, 54 , Motion for Attorney Fees, 50 , Motion for Attorney Fees, 52 , Motion for Attorney Fees, 49 Objection to Fees by Attorney Bradley Gianakos on behalf of Defendant State of Nebraska.(Gianakos, Bradley) (Entered: 04/02/2010)
56 MEMORANDUM AND ORDER that by 4/28/2010, independent expert John J. McGee, Ph.D., shall file with the court additional documentation supporting his requests for reimbursement. The motions for reimbursement 49 , 50 , 51 , 52 , 53 and 54 filed by independent expert John J. McGee, Ph.D., shall be held in abeyance until 4/29/2010, at which time the motions shall be deemed submitted for disposition. Ordered by Judge Richard G. Kopf. (JSF) (Entered: 04/13/2010)
57 LETTER from John J. McGee, Ph.D. regarding submission of receipts. (JSF) (Entered: 04/13/2010)
58 MEMORANDUM AND ORDER that on or before May 4, 2010, independent expert John J. McGee, Ph.D., shall file with the court additional documentation supporting his requests for reimbursement; specifically, Dr.McGee should file the documentation characterized as insufficient in the State's objection to Dr.McGee's reimbursement requests, if such documentation is available 55 ; the motions for reimbursement 49 , 50 , 51 , 52 , 53 , 54 filed by independent expert John J. McGee, Ph.D., shall be held in abeyance until May 4,2010, at which time the motions shall be deemed submitted for disposition; the Clerk of Court shall ensure that John J. McGee, Ph.D., receives a copy of this memorandum and order, as well as the court's memorandum and order dated April 13, 2010 56 . Ordered by Judge Richard G. Kopf. (copies mailed as directed)(CJP) (Entered: 04/14/2010)
59 LETTER from John J. McGee, Ph.D. regarding submission of receipts.(CJP) (Entered: 05/04/2010)
60 INFORMATIVE MOTION reimbursement of services rendered by consultant Marge Brown for the independent expert. (Attachments: # 1 Transmittal Letter)(CJP) ACCESS TO THE PDF DOCUMENT IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT. (Entered: 05/04/2010)
61 INFORMATIVE MOTION reimbursement of services rendered by the Macomb−Oakland Regional Center Consultants for the independent expert. (Attachments: # 1 Transmittal Letter)(CJP) ACCESS TO THE PDF DOCUMENT IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT. (Entered: 05/04/2010)
62 INFORMATIVE MOTION reimbursement of services rendered by consultant John Williams for the independent expert (Attachments: # 1 Transmittal Letter)(CJP) ACCESS TO THE PDF DOCUMENT IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT. (Entered: 05/04/2010)
63 MEMORANDUM AND ORDER that the motions for reimbursement 49 , 50 , 51 , 52 , 53 , 54 filed by independent expert John J. McGee, Ph.D., shall be denied as moot for the reason that the independent expert has filed amended motions for reimbursement 60 , 61 , 62 ; however, the supporting documentation that was submitted with the now−moot motions 49 , 50 , 51 , 52 , 53 , 54 shall be considered in the court's review of the independent expert's amended motions for reimbursement 60 , 61 , 62 ; the State of Nebraska shall file any desired comments or objections to the independent expert's amended motions for reimbursement 60 , 61 , 62 on or before May 14, 2010, after which the pending motions shall be deemed submitted for decision. Ordered by Judge Richard G. Kopf. (Copy mailed to independent expert John J. McGee, PH.D.)(CJP) (Entered: 05/06/2010)
64 OBJECTION to Motion for Miscellaneous Relief, 61 , Motion for Miscellaneous Relief, 62 , Motion for Miscellaneous Relief, 60 by Attorney Bradley Gianakos on behalf of Defendants Dave Heineman, Christine Peterson, State of Nebraska, Ron Stegemann, John Wyvill.(Gianakos, Bradley) (Entered: 05/14/2010)

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 11 of 18

05/17/2010 05/20/2010 05/26/2010
06/22/2010
06/29/2010 07/06/2010 08/31/2010 09/13/2010
10/12/2010

65 MOTION for request for payment of services by independant expert, Maria E. Laurence. (Attachments: # 1 Submission From Sender) ACCESS TO THE ATTACHMENT IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT. (SED) (Entered: 05/17/2010)
66 RESPONSE regarding OBJECTION 64 by John McGee. (ADB, ) (Entered: 05/20/2010)
67 MEMORANDUM AND ORDER that the amended motions for reimbursement 60 , 61 , 62 are granted in part, and within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of Marge Brown of Life Project Consulting, LLC, in the amount of $30,273.37; Macomb−Oakland Regional Center, Inc., in the amount of $26,685.65; and consultant John Williams in the amount of $7,200.00; such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order 9 ; as provided in this court's prior order 9 , the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed"; as provided in the parties' settlement agreement ( 10 at 6), and within 45 days of the date of this order, the defendants shall replenish the above−described interestbearing account with the full amount paid by the Clerk of Court to the above−named consultants in order to restore the account's total to $100,000.00; the objections filed by the State of Nebraska 55 64 are granted to the extent that Dr. McGee's original reimbursement requests 49 , 50 , 51 , 52 , 53 , 54 , 60 , 61 , 62 were not granted in the full amount requested; such objections 55 , 64 are otherwise denied. Ordered by Judge Richard G. Kopf. (copy to financial) (CJP) (Entered: 05/26/2010)
68 MEMORANDUM AND ORDER granting 65 Motion for reimbursement, and within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $60,525.55 for services provided from January 1, 2010, to April 30, 2010. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order 9 . As provided in this court's prior order 9 , the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement ( 10 at 6), and within 45 days of the date of this order, the defendants shall replenish the above−described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to Financial) (JSF) (Entered: 06/22/2010)
TEXT RECEIPT number 4−3924, in the amount of $ 68,054.05 by Defendant State of Nebraska pursuant to order 67 . (AOA) (Entered: 07/01/2010)
TEXT RECEIPT number 4−3930, in the amount of $ 60,525.55 by Defendant State of Nebraska pursuant to order 68 . (AOA) (Entered: 07/07/2010)
69 MOTION for Fees of Independent Expert, Maria Laurence, for May 1, 2010 through July 31, 2010. (Attachments: # 1 Cover letter)(JAB) (Entered: 08/31/2010)
70 MEMORANDUM AND ORDER − The motion for reimbursement (filing 69 ) is granted, and within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $75,112.23 for services provided from May 1, 2010, to July 31, 2010. Within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to Financial)(JAB) (Entered: 09/13/2010)
71 MOTION for Fees of Independent Expert, Maria Laurence, for August 1 through August 31, 2010. (TCL ) (Entered: 10/12/2010)

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 12 of 18

10/25/2010
11/08/2010 11/08/2010 11/19/2010 12/09/2010
12/14/2010 03/01/2011
03/02/2011 03/02/2011 03/04/2011 03/07/2011 03/24/2011

72 MEMORANDUM AND ORDER − The motion for reimbursement (filing 71 ) is granted, and within 10 days of the date of this order, the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $44,068.50 for services provided from August 1, 2010, to August 31, 2010. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the above−described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy TO Finance)(TCL ) (Entered: 10/25/2010)
TEXT RECEIPT number 4−4239, in the amount of $ 75,112.23 by Defendant State of Nebraska pursuant to order 70 . (TEL) (Entered: 12/14/2010)
TEXT RECEIPT number 4−4238, in the amount of $ 44,068.50 by Defendant State of Nebraska pursuant to order 72 . (TEL) (Entered: 12/14/2010)
73 MOTION for Fees of Independent Expert, Maria Laurence, for September 1 through October 31, 2010. (JAB) (Entered: 11/19/2010)
74 MEMORANDUM AND ORDER − The motion for reimbursement (filing 73 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $44,306.25 for services provided from September 1, 2010, to October 31, 2010. Within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (JAB) (Entered: 12/09/2010)
TEXT RECEIPT number 4−4305, in the amount of $ 40,602.33 by Defendant State of Nebraska pursuant to order 74 . (TEL) (Entered: 12/14/2010)
75 MEMORANDUM AND ORDER − On March 1, 2011, my law clerk took a telephone call from independent expert Maria Laurence, the substance of which is summarized in the attached memorandum. The Clerk of Court shall file this order and the attached memorandum and treat them as restricted documents only available to counsel; and The court will take no further action. Ordered by Judge Richard G. Kopf. (ACCESS TO THE PDF DOCUMENT IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT) (Attachments: # 1 Memorandum)(JAB) (Entered: 03/01/2011)
76 MOTION to Withdraw as Attorney by Attorney Bradley Gianakos on behalf of Defendants Dave Heineman, Christine Peterson, State of Nebraska, Ron Stegemann, John Wyvill.(Gianakos, Bradley) (Entered: 03/02/2011)
77 NOTICE of Appearance by Attorney Matthew J. Effken on behalf of Defendants Dave Heineman, Christine Peterson, State of Nebraska, Ron Stegemann, John Wyvill (Effken, Matthew) (Entered: 03/02/2011)
78 MOTION for Fees of Independent Expert, Maria Laurence, from November 1, 2010 to December 31, 2010. (TEL) (Entered: 03/04/2011)
79 TEXT ORDER granting 76 Defendant's Motion to Withdraw as Attorney. Attorney Bradley Gianakos is allowed to withdraw from this case. Ordered by Judge Richard G. Kopf. (JAB) (Entered: 03/07/2011)
80 MEMORANDUM AND ORDER granting Motion for Reimbursement 78 . IT IS ORDERED: The motion for reimbursement (filing 78 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $74,287.22 for services provided from November 1, 2010, to December 31, 2010.Such funds shall be paid from the interest−bearing account set up by the Clerk of

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 13 of 18

05/05/2011 05/24/2011
07/25/2011 08/12/2011 08/17/2011
09/15/2011 10/04/2011

Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed. As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the above described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. DATED this 24th day of March, 2011. Ordered by Judge Richard G. Kopf. (TEL) (Entered: 03/24/2011)
81 MOTION for Fees of Independent Expert, Maria Laurence, from January 1, 2011 through March 31, 2011. (TEL) (Entered: 05/05/2011)
82 MEMORANDUM AND ORDER granting Motion for Reimbursement 81 . IT IS ORDERED: The motion for reimbursement (filing 81 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $79,930.05 for services provided from January 1, 2011, to March 31, 2011. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the above described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (TEL) (Entered: 05/24/2011)
83 MOTION for Fees of Independent Expert, Maria Laurence, from April 1, 2011 through June 30, 2011. (TEL) (Entered: 07/25/2011)
TEXT RECEIPT number 4−4837, in the amount of $ 79,930.05 by Defendant State of Nebraska pursuant to order 82 . (AOA) (Entered: 08/12/2011)
84 MEMORANDUM AND ORDER granting 83 Motion for Fees of Independent Expert, Maria Laurence, from April 1, 2011 through June 30, 2011. The Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $88,533.71 for services provided from April 1, 2011, to June 30, 2011. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). Within 45 days of the date of this order, the defendants shall replenish the above−described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to Finance)(JAB) (Entered: 08/17/2011)
85 MOTION for Fees of Independent Expert, Maria Laurence, from July 1, 2011 through August 31, 2011. (TEL) (Entered: 09/15/2011)
86 MEMORANDUM AND ORDER granting 85 Motion for Fees of Independent Expert, Maria Laurence. The Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $45,434.30 for services provided from July 1, 2011, to August 31, 2011. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). Within 45 days of the date of this order, the defendants shall replenish the above−described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Judge Richard G. Kopf. (Copy to Finance)(JAB) (Entered: 10/04/2011)

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 14 of 18

10/25/2011
10/25/2011 11/28/2011 12/07/2011 12/14/2011
02/02/2012
04/02/2012 04/18/2012
04/20/2012 07/23/2012 08/13/2012

87 TEXT MINUTE ENTRY for proceedings held before Judge Richard G. Kopf on 10/25/11 in Lincoln. Independent expert Maria Laurence sought advice from Judge Kopf regarding potential meeting with Nebraska Senator Lathrop. With agreement of counsel, Judge Kopf advised independent expert to request that senator's office provide, in writing, reason for meeting and questions to be asked. Counsel for the United States and the State of Nebraska should be given opportunity to attend meeting. If counsel do not object to questions and independent expert is comfortable, Judge Kopf advised that independent expert could meet with the senator if desired. Appearance for Plaintiff: Richard J. Farano; for Defendants: Matthew Effken; Courtroom Deputy: Colleen Beran; Court Reporter: Digital. Time Start: 3:02 p.m.; Time Stop: 3:20 p.m.; Time in Court: 18 Minutes. (CCB) (Entered: 10/25/2011)
88 AUDIO FILE. Court Date & Time [ 10/25/2011 2:52:57 PM ]. File Size [ 4497 KB ]. Run Time [ 00:18:44 ]. (In court hearing). (auto−docket). (Entered: 10/25/2011)
89 MOTION for Fees of Independent Expert, Maria Laurence, from September 1, 2011 through October 31, 2011. (TEL) (Entered: 11/29/2011)
TEXT RECEIPT number 4−5070, in the amount of $ 45,434.30 by Defendant State of Nebraska pursuant to Order 86 . (AOA) (Entered: 12/07/2011)
90 MEMORANDUM AND ORDER granting 89 Motion for Fees of Independent Expert, Maria Laurence. The Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $79,287.37 for services provided from September 1, 2011, to October 31, 2011. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). Within 45 days of the date of this order, the defendants shall replenish the above−described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Senior Judge Richard G. Kopf. (Copy to Finance)(JAB) (Entered: 12/14/2011)
91 NOTICE regarding Order on Motion 9 : Please be advised that pursuant to General Order 2011−15, the United States District Court for the District of Nebraska will transfer all registry funds from the Court On−Line Banking system to the Court Registry Investment System (CRIS) on Monday, February 6, 2012. Registry funds will not be available for disbursement until Thursday, February 9, 2012. Registry funds are disbursed only once a week and only upon order of the court. (MTB) (Entered: 02/02/2012)
92 MOTION for Fees of Independent Expert, Maria Laurence, from November 1, 2011 through February 29, 2012. (TEL) (Entered: 04/03/2012)
93 MEMORANDUM AND ORDER granting 92 Motion for Fees of Independent Expert, Maria Laurence. The Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $87,274.05 for services provided from November 1, 2011, to February 29, 2012. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9). The Clerk of Court shall disburse such funds as soon as practicable and the Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed. As provided in the parties' settlement agreement (filing 10, at 6), and within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the accounts total to $100,000.00. Ordered by Senior Judge Richard G. Kopf. (E−mailed to Financial Specialist)(ADB) (Entered: 04/18/2012)
TEXT RECEIPT number 4−5359, in the amount of $79,287.37 by Defendant State of Nebraska pursuant to Order 90 . (TEL) (Entered: 04/20/2012)
94 MOTION for Fees of Independent Expert, Maria Laurence, from March 1, 2012 through May 31, 2012. (TEL) (Entered: 07/23/2012)
95 MEMORANDUM AND ORDER − IT IS ORDERED: The motion for reimbursement( filing 94 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 15 of 18

08/15/2012 09/24/2012 10/17/2012
10/19/2012 10/24/2012 11/15/2012
02/05/2013

independent expert Maria Laurence in the amount of $113,131.78 for services provided from March 1, 2012, to May 31, 2012. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the accounts total to $100,000.00. Ordered by Senior Judge Richard G. Kopf. (E−mailed to Financial Specialist)(TCL ) (Entered: 08/13/2012)
TEXT RECEIPT number 4−5591, in the amount of $ 113,131.78 by Defendant State of Nebraska pursuant to Order 95 . (JAB) (Entered: 02/21/2013)
96 INDEPENDENT EXPERT'S MOTION for Payment of Invoice submitted by Maria E. Laurence. (GJG) (Entered: 09/25/2012)
97 MEMORANDUM AND ORDER − The motion for reimbursement (filing 96 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $19,265.90 for services provided from June 1, 2012, to August 31, 2012. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the above described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00.Ordered by Senior Judge Richard G. Kopf. (GJG) (Copy to Financial) (Entered: 10/17/2012)
TEXT RECEIPT number 4−5654, in the amount of $ 87,082.84 by Defendant State of Nebraska pursuant to Order 93 . (AOA) Modified on 2/21/2013 to reflect payment was received pursuant to Order 93 . (JAB) (Entered: 10/30/2012)
98 INDEPENDENT EXPERT'S MOTION for Payment of Invoice submitted by Maria E. Laurence. (GJG) (Entered: 10/24/2012)
99 MEMORANDUM AND ORDER − IT IS ORDERED: The motion for reimbursement( filing 98 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $32,051.73 for services provided from September 1, 2012, to September 30, 2012. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the "Clerk is authorizedto deduct from any monies deposited with the Clerk a fee of 10% of the interest earnedeach time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the accounts total to $100,000.00. Ordered by Senior Judge Richard G. Kopf. (E−mailed to Finance)(TCL ) (Entered: 11/15/2012)
100 INDEPENDENT EXPERT'S MOTION for Payment of Invoice filed by Maria E. Laurence. (Attachments: # 1 Expense documents)(GJG) (Entered: 02/05/2013)

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 16 of 18

02/14/2013 02/14/2013 02/14/2013 02/19/2013 02/21/2013 03/01/2013 03/11/2013
09/16/2013 09/30/2013
10/29/2013 10/06/2014 10/15/2014

101 MEMORANDUM AND ORDER − The motion for reimbursement (filing 100 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $46,310.73 for services provided from October 1, 2012, to December 31, 2012. Ordered by Senior Judge Richard G. Kopf. (E−mailed to Financial )(GJG) (Entered: 02/14/2013)
102 MOTION to Withdraw as Attorney by Attorney Bradley Gianakos on behalf of Defendant State of Nebraska.(Gianakos, Bradley) (Entered: 02/14/2013)
103 NOTICE of Appearance by Attorney Bradley Gianakos on behalf of Defendant State of Nebraska (Gianakos, Bradley) (Entered: 02/14/2013)
104 TEXT ORDER granting Filing 102 , Motion to Withdraw as Attorney. Ordered by Senior Judge Richard G. Kopf. (TCL ) (Entered: 02/19/2013)
TEXT RECEIPT number 24999, in the amount of $ 97,628.36 by Defendant State of Nebraska pursuant to Orders 97 , 99 , and 101 . (JAB) (Entered: 02/21/2013)
105 MOTION for Independent Expert's Payment of Invoice. (GJG ) (Entered: 03/01/2013)
106 MEMORANDUM AND ORDER − The motion for reimbursement (filing 105 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $40,432.17 for services provided from January 1, 2013, to February 1, 2013. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the abovedescribed interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Senior Judge Richard G. Kopf. (E−mailed to Finance) (AOA) (Entered: 03/11/2013)
107 INDEPENDENT EXPERT'S MOTION for payment of invoice. (Attachments: # 1 Documents in Support of)(GJG) (Entered: 09/16/2013)
108 MEMORANDUM AND ORDER − The motion for reimbursement (filing 107 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $115,111.02 for services provided from February 2, 2013, to August 31, 2013. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the above described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the accounts total to $100,000.00. Ordered by Senior Judge Richard G. Kopf. (E−mailed to Finance) (GJG) (Entered: 09/30/2013)
TEXT RECEIPT number 4006004, in the amount of $155,543.19 by Defendant State of Nebraska pursuant to Orders 106 and 108 . (JAB) (Entered: 10/29/2013)
109 MEMORANDUM AND ORDER − On or before October 20, 2014, counsel for the parties shall file a joint status report regarding the status of this matter, particularly the necessity of retaining the interest−bearing account maintained by the Clerk of Court. Ordered by Senior Judge Richard G. Kopf. (GJG) (Entered: 10/06/2014)
110 NOTICE of Appearance by Attorney Gregory J. Walklin on behalf of Defendants Dave Heineman, Christine Peterson, State of Nebraska, Ron Stegemann, John Wyvill

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 17 of 18

10/17/2014 01/13/2015 01/26/2015
01/27/2015 07/22/2015 07/22/2015 07/22/2015
07/24/2015 07/29/2015 08/03/2015

(Walklin, Gregory) (Entered: 10/15/2014)
111 STATUS REPORT JOINT by Attorney Richard J. Farano on behalf of Plaintiff United States of America.(Farano, Richard) (Entered: 10/17/2014)
112 MOTION for Fees of Independent Expert, Maria Laurence, from January 1, 2014 through December 31, 2014. (JAB) (Entered: 01/13/2015)
113 ORDER granting 112 Motion for Attorney Fees and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services and expenses of independent expert Maria Laurence in the amount of $100,632.35 for services provided from January 1, 2014, to December 31, 2014. Such funds shall be paid from the interest− bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." As provided in the parties' settlement agreement (filing 10 , at 6), and within 45 days of the date of this order, the defendants shall replenish the above−described interest−bearing account with the full amount paid by the Clerk of Court to independent expert Maria Laurence in order to restore the account's total to $100,000.00. Ordered by Senior Judge Richard G. Kopf. (KMG) Modified on 1/26/2015 to reflect copy to Finance. (JAB) (Entered: 01/26/2015)
TEXT RECEIPT number 4−6355, in the amount of $ 100632.35 by Defendant State of Nebraska pursuant to Order 113 . (NMW) (Entered: 01/27/2015)
114 JOINT MOTION to Dismiss by Attorney Richard J. Farano on behalf of Plaintiff United States of America.(Farano, Richard) (Entered: 07/22/2015)
115 BRIEF in Support of MOTION to Dismiss Memorandum in Support by Attorney Richard J. Farano on behalf of Plaintiff United States of America.(Farano, Richard) Modified on 7/27/2015 to correct event (CS). (Entered: 07/22/2015)
116 INDEX in support of Motion to Dismiss by Attorney Richard J. Farano on behalf of Plaintiff United States of America. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D)(Farano, Richard) (Entered: 07/22/2015)
117 MOTION for Fees of Independent Expert, Maria E. Laurence from January 1, 2015 through July 22, 2015. (GJG) (Entered: 07/29/2015)
118 JOINT MOTION Approve Payment to Independent Expert by Attorney Richard J. Farano on behalf of Plaintiff United States of America.(Farano, Richard) (Entered: 07/29/2015)
119 MEMORANDUM AND ORDER − The motion for reimbursement (filing 117 ) is granted, and the Clerk of the United States District Court for the District of Nebraska shall disburse funds for the consulting services of independent expert Maria Laurence in the amount of $2,396.88 for services provided from January 1, 2015, to July 22, 2015. Such funds shall be paid from the interest−bearing account set up by the Clerk of Court pursuant to this court's prior order (filing 9 ). The Clerk of Court shall disburse such funds as soon as practicable; that is, on the date that the interest−bearing account has been sufficiently replenished by the defendants to allow payment of the full amount. As provided in this court's prior order (filing 9 ), the "Clerk is authorized to deduct from any monies deposited with the Clerk a fee of 10% of the interest earned each time funds are disbursed." The parties' Joint Motion on the Independent Expert's Reimbursement Motion and Disposition of the Court Account (filing 118 ) is granted. Because this is the final disbursement to be made to independent expert Maria E. Laurence, after such final payment is made, the Clerk of Court shall return to the State of Nebraska any residual amount remaining in the court's interest−bearing account to which the State of Nebraska is entitled and shall then close the account. Ordered by Senior Judge Richard G. Kopf. (GJG)(Copy to Finance and Maria E. Laurence) (Entered: 08/03/2015)

Case: 8:08-cv-271 As of: 10/31/2017 12:49 PM CDT 18 of 18

08/03/2015 08/03/2015

120 ORDER − The parties' settlement agreement, which constituted a judgment in this case (filings 9 & 10 ), is terminated pursuant to Fed. R. Civ. P. 60(b)(5). The parties' Joint Motion to Dismiss (filing 114 is granted. This case is dismissed with prejudice. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (GJG) (Entered: 08/03/2015)
121 JUDGMENT − Pursuant to the order entered this date pursuant to Fed. R. Civ. P. 60(b)(5) terminating the parties' settlement agreement, which constituted a judgment in this case (filings 9 & 10 ), and granting the parties' Joint Motion to Dismiss (filing 114 ), this matter is dismissed with prejudice. Ordered by Senior Judge Richard G. Kopf. (GJG) (Entered: 08/03/2015)