IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO ___________________________________

WALTER STEPHEN JACKSON, et al.,

Plaintiffs,

vs.

No. CIV 87-839 JP/LCS

LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENT DISABILITIES, et al.,

Defendants,

and

THE ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, et al.,

Intervenors pro se.

MEMORANDUM OPINION AND ORDER This case is a class action brought by and on behalf of a group of developmentally disabled plaintiffs who lived at two institutions, Los Lunas Center for Persons with Developmental Disabilities (“Los Lunas”) and Fort Stanton Hospital and Training School (“Fort Stanton”), that were run by the State of New Mexico. After a lengthy non-jury trial held during 1989 and 1990, this court entered a Memorandum Opinion and Order on December 28, 1990 finding violations of the Plaintiffs’rights under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and under the substantive due process clause of the Fourteenth Amendment to the United States Constitution.

Jackson v. Fort Stanton, 757 F.Supp. 1243, 1298-99, 1305-13 (D.N.M. 1990), rev’d in part on other grounds, 964 F.2d 980 (10th Cir. 1992). The State of New Mexico made the decision to close Fort Stanton in 1995 and Los Lunas in 1997, opting to move their residents into community-based care facilities. The parties then filed their Joint Stipulation on Disengagement (“JSD”), which is designed to ensure that the Plaintiffs’rights are not violated in the community settings. After a fairness hearing regarding the JSD on November 20, 1997, I entered the “Order Approving Stipulation on Disengagement” on December 19, 1997.
Then, on April 2, 1999, Defendants filed their motion for relief from the December 19, 1997 Order (Doc. No. 1101). In essence, the Defendants argue that under the Supreme Court’s recent opinion in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028 (1997), the “exception” to Eleventh Amendment immunity contained in Ex parte Young, 209 U.S. 123 (1908), had been narrowed such that it is no longer applicable to Defendants in this case. Defendants request that the JSD be vacated and this case be dismissed.
Plaintiffs contend that the State of New Mexico has waived its Eleventh Amendment immunity, that there has been no change in law or fact sufficient to justify relief from the order approving the JSD, that the Ex parte Young doctrine still applies to this case after Coeur d’Alene Tribe, and that the statutes on which the Court’s orders and the JSD are based expressly abrogate the State’s Eleventh Amendment immunity.
I. Waiver of Eleventh Amendment Immunity Plaintiffs argue that Defendants have waived their sovereign immunity by waiting twelve
years after the commencement of this lawsuit to raise that defense, and by entering into the Joint
2

Stipulation on Disengagement. Plaintiffs also point out that representatives of the Defendants
have stated, on the record, their intention to fulfill the Defendants’obligations under the JSD and
argue that all of these actions amount to a waiver of sovereign immunity. I tend to agree.
However, I am bound by precedent to conclude that Defendants have not waived their
Eleventh Amendment immunity because they have not done so explicitly. In its recent opinion in
College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Board, 119 S.Ct. 2219
(1999), the Supreme Court clearly stated that waiver of Eleventh Amendment immunity must be
strictly construed:
We have long recognized that a State’s sovereign immunity is a personal privilege which it may waive at pleasure. The decision to waive that immunity, however, is altogether voluntary on the part of the sovereignty. Accordingly, our test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one. Generally, we will find a waiver either if the State voluntarily invokes our jurisdiction, or else if the State makes a clear declaration that it intends to submit itself to our jurisdiction. Thus, a State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation. Nor does it consent to suit in federal court merely by stating its intention to sue and be sued, or even by authorizing suits against it in any court of competent jurisdiction. We have even held that a State may, absent any contractual commitment to the contrary, alter the conditions of its waiver and apply those changes to a pending suit.
Id. at 2226 (internal citations and quotation omitted). The Supreme Court then rejected the
notion that the defendant had “impliedly” or “constructively” waived its immunity, noting that it
had decided a series of cases on the principle that a State’s express waive of sovereign immunity
must be unequivocal. Id. at 228. The court cited its opinion in Edelman v. Jordan, in which it
stated that “[c]onstructive consent is not a doctrine commonly associated with the surrender of
constitutional rights.” Id. at 229 (quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347
3

(1974). Finally, the court concluded that even voluntary conduct of the State, such as participation in economic activities for profit, Id. at 2230, or participation in a federal program, Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-247, 105 S.Ct. 3142, 3149-3150 (1985); Edelman v. Jordan, 415 U.S. at 673, 94 S.Ct. at 1360-1361, is insufficient to constitute constructive waiver of Eleventh Amendment immunity.
Thus, the Supreme Court’s opinion in College Savings Bank is consistent with its earlier rulings on waiver of state sovereign immunity. For example, the Court has said that the Eleventh Amendment bar may be asserted for the first time on appeal, so a State which is sued in federal court does not waive the Eleventh Amendment simply by appearing and defending on the merits. See Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 683, n.18, 102 S.Ct. 3304, 3314 n.18 (1982) (plurality opinion); see also Calderon v. Ashmus, 523 U.S. 740, ----, n.2, 118 S.Ct. 1694, 1697 n.2 (1998); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, n. 8, 104 S.Ct. 900, 907 n.8 (1984); Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363 (1974); Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459, 467, 65 S.Ct. 347 (1945). Moreover, the fact that a state defendant has entered into a settlement agreement with a plaintiff does not act as a waiver of the defendant’s constitutionally protected immunity unless the settlement agreement clearly expresses the State’s unequivocal intent to waive the immunity by the agreement. See Ellis v. University of Kansas Medical Center, 163 F.3d 1186, 1195 (10th Cir. 1998); Johns v. Stewart, 57 F.3d 1544, 1554 (10th Cir.1995).
In this case, the JSD constitutes an “agreement” between the parties. Paragraph 49 of the JSD provides, “The court retains the inherent authority to interpret, clarify, modify, or enforce this Stipulation.” (Joint Stipulation on Disengagement, attached to the December 19, 1997 Order
4

Approving Stipulation on Disengagement, Doc. No. 1064). The JSD makes no mention of the
Eleventh Amendment, of sovereign immunity, or of waiver of rights by the Defendants. In view
of the strict manner in which waiver and abrogation of Eleventh Amendment immunity have been
interpreted by the appellate courts, I cannot say that the JSD “clearly expresses the State’s
unequivocal intent” to waive its immunity.
Given the weight of this legal authority and the absence of any legal authority to the
contrary, I conclude that, despite their failure to raise the issue at an earlier stage of this case, the
Defendants have not expressly waived their Eleventh Amendment immunity.
II. Change in Law or Fact
Defendants contend that both the legal and the factual landscapes of this case have
changed1, thereby justifying a modification of the Order approving the JSD under Agostini v.
Felton, 521 U.S. 203, 214-17, 117 S.Ct. 1997, 2006-08 (1997) and Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 390-93, 112 S.Ct. 748, 763-64 (1992).
In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), the Supreme Court held
1 Defendants’brief does not clearly define the baseline from which this court should determine whether there has been a change in law or fact sufficient to modify the “judgment,” or even which “judgment” in the case (the December 28, 1990 Memorandum Opinion and Order or the December 19, 1997 JSD) should be modified. Defendants appear to contend that there have been significant changes in factual circumstances since this court entered its December 28, 1990 Memorandum Opinion and Order finding both constitutional and statutory violations by the Defendants. See, e.g., Defendants’Brief at 8 n.5-6. However, the reasoning of the Supreme Court in both Rufo and in Agostini v. Felton focused on changes of law and fact that had occurred since the entry of the consent judgments in those cases. In this case, the JSD— which is the functional equivalent of a consent judgment— controls the actions and responsibilities of the parties at this time. Consequently, logic dictates that the “judgment” from which the Defendants would request relief is the JSD, and I should therefore determine whether there have been significant changes in law or fact since the JSD was approved on December 19, 1997.
5

that a party seeking modification of an institutional reform consent decree bears the burden of establishing that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstances. Id. at 383; 112 S.Ct. at 760. The court also stated that modification may be warranted when changed factual conditions make compliance with the decree substantially more onerous, when the decree proves to be unworkable because of unforeseen obstacles, or when enforcement of the decree without modification would be detrimental to the public interest. Id. at 384; 112 S.Ct. at 760. Where a party relies upon events that actually were anticipated at the time it entered into a decree, modification should be granted only if the party satisfies the heavy burden of convincing the court that it agreed to the decree in good faith, made a reasonable effort to comply, and should be relieved of the undertaking under Rule 60(b). Id. at 385; 112 S.Ct. at 761.
Defendants identify no significant changes in factual circumstances since the JSD was entered on December 19, 1997. Instead, Defendants express dissatisfaction with the breadth of the JSD and the Plan of Action. Defendants’Brief at 17. However, these are the terms that Defendants agreed to abide by, and Defendants do not point to any changes in the facts which now make those terms unfair.
Defendants also argue that Coeur d’Alene Tribe and recent cases decided by the Tenth Circuit Court of Appeals under Coeur d’Alene Tribe constitute a change in the law warranting modification of the Order approving the JSD. Essentially, Defendants acknowledge that they did not have a colorable argument in support of their claim to Eleventh Amendment immunity under traditional Ex parte Young analysis. Instead, they contend that Coeur d’Alene Tribe and its progeny have created a right to immunity that did not exist before. It is difficult to imagine how
6

Defendants could make this argument with respect to Coeur d’Alene Tribe itself, which was decided on June 23, 1997, roughly six months before this court approved the JSD and five months before the November 20, 1997 fairness hearing at which Defendants urged the court to approve the JSD.
However, Defendants contend that they could not have known that Coeur d’Alene Tribe constituted a change in the law until the following year, when the Tenth Circuit decided ANR Pipeline Co. v. Lafaver, 150 F.3d 1178 (10th Cir. 1998) and interpreted Coeur d’Alene Tribe as “imposing an important new requirement on federal courts as part of the Ex parte Young analysis.” Id. at 1190. In ANR Pipeline, the Tenth Circuit stated that a court must consider whether relief being sought against a state official “implicates special sovereignty interests” and whether the relief sought is the “functional equivalent” to legal relief against the State. Id. See also Ellis, 163 F.3d at 1198. Defendant’s argue that this pronouncement constitutes a change in the law that, when applied to the facts of this case, shields Defendants from federal court jurisdiction under the Eleventh Amendment.
Even if we were to assume that ANR Pipeline and other Tenth Circuit interpretations of Coeur d’Alene Tribe have transformed Eleventh Amendment immunity jurisprudence, that change in the law would not alter the fact that Defendants do not have immunity in this case.
III. Ex parte Young Analysis Defendants have acknowledged that, under the traditional analysis of Ex parte Young, 209
U.S. 123, 28 S.Ct. 441 (1908), they are not entitled to sovereign immunity. See Defendants’ Brief at 3 n.1. Under that traditional analysis, where a plaintiff alleges on ongoing violation of
7

federal law and seeks prospective injunctive relief against state officials, Ex parte Young denies the state officials the protection of Eleventh Amendment immunity. Coeur d’Alene Tribe, 117 S.Ct. at 2040. Defendants argue that Ex parte Young has been narrowed by the Supreme Court and the Tenth Circuit Court of Appeals.
Recently, the Tenth Circuit repeated that an analysis of Eleventh Amendment immunity under Ex parte Young must now include a two part inquiry:
first, whether the relief being sought against a state official implicates special sovereignty interests; second, if the answer to the first question is in the affirmative, we then ask whether the requested relief is the functional equivalent to a form of legal relief against the state that would otherwise be barred by the Eleventh Amendment. Ellis v. University of Kansas Med. Center, 163 F.3d 1186, 1198 (10th Cir. 1998) (internal quotations omitted) (citing ANR Pipeline, 150 F.3d at 1190). Application of this two-part test does not alter the outcome. Defendants in this case still are not entitled to Eleventh Amendment immunity. A. The State’s Special Sovereignty Interest Those courts that have examined the issue of whether a state’s interest rises to the level of a “special sovereignty interest” have found such an interest only sparingly. In Idaho v. Coeur d’Alene Tribe, 117 S.Ct. 2028 (1997), the Supreme Court found that the State of Idaho had a special sovereignty interest in its control over lands underlying navigable waters, which have historically been considered uniquely “sovereign lands.” Id. at 2040-43. One year later, the Tenth Circuit Court of Appeals found that a state has a “special and fundamental interest in its tax collection system,” ANR Pipeline, 150 F.3d at 1193, which “has been a hallmark of the western legal tradition.” Id. at 1193 n.16. The court also noted that “it is impossible to imagine that state
8

government could continue to exist without the power to tax.” Id. at 1193. On the other hand, the Tenth Circuit Court of Appeals has declined to find a “special
sovereignty interest” in several other important state functions. In Buchwald v. University of New Mexico Sch. of Medicine, 159 F.3d 487, 495 (10th Cir. 1998), the Tenth Circuit refused to find that such an interest existed in the State’s admissions standards and policies for its only medical school. The court explained, “There is certainly no threat that the New Mexico government would cease to exist without UNMSM’s disputed policy. Moreover, most government policies do not affect core aspects of a state’s sovereignty.” Id. at 495 n.6. In Elephant Butte Irrigation District of New Mexico v. Department of the Interior, 160 F.3d 602 (10th Cir. 1998), the Tenth Circuit concluded that the state did not have a special sovereignty interest in the profits from the lease of recreational lands. Id. at 612. Finally, in Ellis v. University of Kansas Med. Center, 163 F.3d 1186 (10th Cir. 1998), the court declined to find that a state employee’s claims under 42 U.S.C. §§ 1981, 1983, and 1985 affected a special sovereignty interest. Id. at 1198.
In this case, the Defendants argue that the State of New Mexico has a special sovereignty interest in its right to manage its social services programs, particularly where the state must administer those programs with limited financial resources. See Defendants’Brief at 9-11. Defendants then make the broad generalization that “[i]nstitutional reform class actions by their nature are cases invading the state’s sovereign interests and, no matter how they are otherwise constituted, they can not qualify as an Ex Parte Young exception to the Eleventh Amendment.” Defendants’Brief at 4.
Although the State of New Mexico certainly does have a strong interest in the
9

administration of its social services programs, even Defendants would be hard-pressed to argue that the State might cease to exist without those programs, as it would without the power to tax. See ANR Pipeline, 150 F.3d at 1193. Similarly, social services programs, unlike the State’s interest in the land underlying its navigable waters, do not go to the core of state sovereignty. Coeur d’Alene Tribe, 117 S.Ct. at 2040-43.
Undoubtedly, this is the reason that the Supreme Court has not balked in permitting lawsuits in federal court, through the Ex parte Young doctrine, against state officials regarding other types of significant social programs, such as the administration and desegregation of public schools, Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749 (1977), the distribution of disability benefits, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347 (1974), the operation and administration of prison facilities, Pennsylvania Dep’t of Correction v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952 (1998), and the provision of adequate care to involuntarily confined disabled persons. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452 (1982).
To accept the Defendants’argument would require me to acknowledge that the Supreme Court, in essence, has overruled cases such as Milliken, Edelman, Yeskey, and Youngberg with its decision in Coeur d’Alene Tribe. I am not willing to so broadly interpret Coeur d’Alene Tribe— in which a majority of the court was unable to agree on the proper interpretation of Ex parte Young and the Eleventh Amendment.
B. The Form of Requested Relief If a defendant sufficiently identifies a special state sovereignty interest that is implicated by a plaintiff’s claim, the reviewing court must then ask whether the form of relief requested by the
10

plaintiff is barred by the Eleventh Amendment. ANR Pipeline, 150 F.3d at 1190; Ellis, 163 F.3d at 1198. Where the form of relief requested by a plaintiff is analogous or equivalent to a form of legal relief, the state officials who are defendants in a case are entitled to sovereign immunity. See Coeur d’Alene Tribe, 117 S.Ct. at 2040 (stating that plaintiffs’claim was the “functional equivalent” of a quiet title action regarding real property owned by the state).
In this case, Defendants argue that the relief requested by the Plaintiffs (which is, in fact, relief agreed to by the Defendants via the JSD), constitutes the “functional equivalent” of improper legal relief against the State of New Mexico. Defendants’Brief at 16-18. Defendants contend that the comprehensiveness and “intrusiveness” of the JSD, along with the fact that the services that must be performed for plaintiff class members cost money, support their assertion that the relief is the “functional equivalent” of legal relief.
Defendants’argument is unpersuasive. As the Tenth Circuit has made clear, “In many instances, even prospective relief will burden the state’s treasury to some degree. The overriding question is not whether the relief will require the payment of state funds, but whether the relief will remedy future rather than past wrongs.” Elephant Butte, 160 F.3d at 611 (internal citations and quotations omitted). An examination of the JSD in this case reveals that the agreement does not seek a remedy for past violations of Plaintiffs’constitutional and statutory rights, but rather seeks to prevent future harm. Thus, despite the fact that it may be costly for the State to comply with the provisions of the JSD, that fact “does not transform Plaintiffs’claim into an impermissible request for retrospective relief or damages.” Id. Nor will such a transformation take place merely because the relief sought burdens state officials’“discretionary acts.” Id.
Consequently, Defendants’motion for relief from the judgment should be denied because
11

the relief granted to the Plaintiffs in the JSD does not impinge upon a “special sovereignty
interest” and does not constitute the “functional equivalent” of retrospective legal relief.
IV. Express Statutory Abrogation of Eleventh Amendment Immunity
In support of their motion for relief from the judgment, Defendants argue that institutional
reform cases in which a federal court finds violations of a plaintiff’s due process2 rights under
Youngberg v. Romeo, 457 U.S. 307 (1982) always impinge upon a State’s “special sovereignty
interest” and therefore violate the Eleventh Amendment.
On the other hand, Plaintiffs urge me to find that, because Defendants’liability and
Plaintiffs’relief are based, at least in part, on the Rehabilitation Act and the Americans with
Disabilities Act (“ADA”)3, Defendants are not entitled to Eleventh Amendment immunity.
Plaintiffs argue that Congress has abrogated the Eleventh Amendment immunity of the States
under both of those statutes. However, the validity of Congress’abrogation of the Eleventh
2 Defendants erroneously assert that “[t]his Court’s factual findings and order granting relief were entirely based upon substantive due process claims under Youngberg.” Defendants’ Brief at 5.
Defendants overlook the fact that, in addition to finding various due process violations, I expressly found that Defendants’actions had violated Section 504 of the Rehabilitation Act in two ways. First, I stated that the Defendants had discriminated against severely handicapped individuals by refusing to allow them access to community programs that were reserved for their less severely handicapped peers. Jackson, 757 F.Supp. at 1298-99. Second, I found that Defendants had unlawfully segregated more handicapped individuals in contravention of Section 504. Id. at 1299. Consequently, the factual findings and the relief granted were based in large part on Section 504 of the Rehabilitation Act.
3 In 1994, several years after the trial of this case and the entry of findings of fact and conclusions of law, I permitted Plaintiffs to amend their complaint to include the Americans with Disabilities Act with respect to the relief afforded to Plaintiffs. See Order entered January 27, 1994.
12

Amendment under § 504 of the Rehabilitation Act and under the ADA is a matter of some dispute, particularly since the Supreme Court issued its opinion in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114 (1996).4 Although courts seem to be in accord that in the two statutes Congress expressed its unequivocal intent to abrogate Eleventh Amendment immunity, there is disagreement as to whether the statutes are valid exercises of Congress’power under the Fourteenth Amendment. Compare Bradley v. Arkansas Dept. of Education, No. 981010, 98-1830, 1999 WL 673228 at *8-11(8th Cir. Aug. 31, 1999) (finding that Rehabilitation Act did not properly waive the States’Eleventh Amendment immunity because the statute reaches beyond the scope of Congress’power under Section 5 of the Fourteenth Amendment) and Alsbrook v. City of Maumelle, No. 97-1825, 1999 WL 521709 at *6 (8th Cir. July 23, 1999) (en banc) (finding that the scope of the ADA exceeds the scope of Congress’power under Section 5, and therefore does not waive Eleventh Amendment immunity) with Amos v. Maryland Dept of Pub. Safety and Correctional Services, 178 F.3d 212, 215, 222-23 (4th Cir. 1999) (finding that ADA and Rehabilitation Act are valid exercises of Congress’enforcement powers under Section 5 of the Fourteenth Amendment) and Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481, 487 (7th Cir. 1997) (“[T]he Americans with Disabilities Act is an exercise of Congress’s power under section 5 of the Fourteenth Amendment”) and Clark v. California, 123 F.3d 1267, 1269-71 (9th Cir. 1997) (finding that the ADA and the Rehabilitation Act are valid under Section 5 of the Fourteenth Amendment), cert. denied, 118 S.Ct. 2340 (1998) and Coolbaugh v. Louisiana, 136
4 Seminole Tribe stated that “[i]n order to determine whether Congress has abrogated the States’sovereign immunity, we ask two questions: first, whether Congress has unequivocally expressed its intent to abrogate the immunity; ... and second, whether Congress has acted pursuant to a valid exercise of power.” Seminole Tribe of Florida v. Florida, 517 U.S. at 55, 116 S.Ct. 1114 (internal quotations and citations omitted).
13

F.3d 430 (5th Cir.) (stating that Congress had abrogated Eleventh Amendment immunity in the ADA, which was a constitutional exercise of its powers under Fourteenth Amendment), cert. denied, Wilson v. Armstrong, 119 S.Ct. 58 (1998).
Because I have already decided that the JSD does not invade a “special sovereignty interest” of the State and does not provide for a form of improper legal relief, I need not reach the constitutional issues of whether the Rehabilitation Act and the ADA constitute valid exercises of Congress’powers under the due process clause of the Fourteenth Amendment. A court should refrain from deciding constitutional issues whenever possible. It is a “fundamental and longstanding principle of judicial restraint” to avoid the premature and unnecessary resolution of constitutional issues. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 1323 (1988); United States v. Kelly, 1 F.3d 1137, 1139-40 (10th Cir.1993) (quoting Lyng), cert. denied, 513 U.S. 939, 115 S.Ct. 342 (1994).
V. Conclusion The court does not doubt that Defendants’motion for relief was made in good faith. Yet
the court is concerned that its filing may reflect a change in the State’s view of its obligations toward the Plaintiff class members. A measure of a state’s greatness is how it cares and provides for the most needy and vulnerable of its citizens. Over most of the course of the remedial stage of this action, after entry of the December 28, 1990 Memorandum Opinion and Order, the State of New Mexico has demonstrated a sincere regard for improvement of the class members’ circumstances and lives. The court trusts that this attitude will continue until the State has satisfied its responsibilities to which it agreed in the Joint Stipulation on Disengagement.
14

IT IS THEREFORE ORDERED that Defendants’motion for relief from the judgment (Doc. No. 1101) is DENIED.
____________________________________ UNITED STATES DISTRICT JUDGE
15

 
 .. .'

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO WALTER STEPHEN JACKSON, et al.,

05 ~1r\Y 20 AM 9: 4B

Plainti/Ts,

v.

CIV No. 87-0839-JP/LCS

LOS LUNAS HOSPITAL CENTER, ct al.,

Defendants.

and

THE ARC OF NEW MEXICO,

Intervenor,

And

MARY TERRAZAS, ct aI.,

Intervenors.

JOINT STIPULATION ON AGREED ACTIONS TO COMPLY WITH JOINT STIPULATION ON DISENGAGEMENT AND PLAN OF ACTION ANI) TO RESOLVE PENDING MOTIONS TO SHOW CAUSE ANI) TO RE-ENGAGE

The Parties stipulate and agree as follows:

I. PURPOSE

I. This Stipulation is intended to resolve the pending Motions to Show Cause filed by the

Plaintiffs and Intervenor Arc and the Plaintiffs' pending Motion to Re-engage Case Management.

2. This Stipulation is intended to obligate Defendants to take certain actions outside the Plan

of Action as more specifically outlined in Appendix A to this Stipulation. More specifically, the

actions identified in Appendix A are intended to facilitate compliance with the lSD, to promote

.,
completion of certain 1998 Audit Recommendations, to further address Case Management even though Plan of Action Desired Outcomes related to Case Management have been previously disengaged by an order of the Court and to address certain aspects of Vocational Rehabilitation.
3. Except as explicitly provided herein, nothing contained in this Stipulation is intended to change or modify the terms of the Joint Stipulation on Disengagement, (the "JSD"), and all provisions ofthe JSD remain in full force and effect. Nothing in this Stipulation is intended to bind Intervenor ARC to the terms of the 1SD to which Intervenor ARC has previously objected. The Partics further agree that nothing in this Stipulation, nor any of the actions undertaken by the Division of Vocational Rehabilitation, is intended to change the relationship to the Plan of Action or the 1998 Audit Recommendations ofthe Division of Vocational Rehabilitation, nor of any other defendant. II. AGREED ACTIONS TO BE TAKEN BY THE PARTIES.
4. The Defendants agree to implement all of the actions identified and listed in Appendix A to this Stipulation (the "Appendix A Actions") by the due date identified with respect to each such action in Appendix A.
5. The Parties understand and agree that some of the Appendix A Actions supplant or modify activities currently contained in the Plan of Action (as modified on May 31, 2000). Following entry of this Stipulation, the Parties will work together to identifY those Plan of Action Desired Outcome Activities that are supplanted or modified by the Appendix A actions, and will seek modification of the Plan of Action to delete or modifY all such jointly-identified activities in accordance with paragraph 13 of the 1SD.
2

6. The Parties further recognize, understand and agree that certain of the Appendix A Actions may have some relationship with certain Plan of Action Desired Outcomes. Notwithstanding any such relationship, the Parties understand and agree that all Appendix A Actions shall be deemed independent of the Plan of Action and that disengagement of any Plan of Action Desired Outcome shall not be contingent on Defendants' completion of any of the Appendix A Actions that may bear some relationship with that Plan of Action Desired Outcome.
7. The provisions of the JSD related to funding contained in Section VII of the .ISD shall apply to this Stipulation and the Appendix A Actions. III. ROLE OF MONITORS
8. The Partics will utilize the Internal and Community Monitors to informally assist in resolution of any conflicts that arise regarding the Appendix A Actions.
9. For the Appendix A Actions that require the development of plans with the input and/or approval ofthe Parties, which are designated by the Parties in Appendix A as actions subject to Joim Plan Development and Approval, the Parties agree to utilize the Internal and Community Monitors in that input and approval process.
10. In the event that an agreement cannot be reached by the Parties related to Joint Plan Development and Approval after consultation with the Internal and Community Monitors, or in the event that a dispute related to Appendix A Actions is not resolved by the Parties after consultation with the Internal and Community Monitors, any Party may submit the unresolved issue to the Court for de novo resolution.
3

,
IV. COMMUNICATION AND REPORTING. II. The Defendants will continue to provide their quarterly report to Plaintiffs and
Intcrvenors and will continue to meet with Plaintiffs and Intervenors in accordance with paragraph 41 of the lSD. At those meetings, the Parties will discuss progress on relevant Appendix A Actions
12. Defendants will also report to Plaintiffs and Intervenors in writing on significant issues related to their progress in implementing the Appendix A Actions as such issues may arise. The fonn of any such additional reports shall be in a fonn of Defendants' choosing and will be timed by Defendants to correspond or relate to the respective deadlines and time lines for the Appendix A Actions in advance of any meeting held pursuant to paragraph 41 of the lSD. V. MISCELLANEOUS.
13. This Stipulation binds the Parties and employees, agents, and any successors in interest of the defendant agencies and officials.
14. The Parties agree and represent to the Court that this Stipulation is fair and reasonable under the circumstances.
15. The Court has ordered that notice of this Stipulation be provided to Class members and may, in its discretion, schedule a fairness hearing pursuant to Federal Rule of Civil Procedure 23. If the Court detennines the Stipulation is fair and reasonablc, it shall approve it and enter it as an Order of the Court.
16. This Stipulation shall not be deemed final and binding until approved by the Court. 17. On entry of this StipUlation by the Court, Plaintiffs and Intervenor ARC shall withdraw their pending Motions to Show Cause and Motion to Re-Engage Case Management without prejudice. 18. Whenever the terms "Party" or "Parties" are used in this Stipulation, such terms are intended to refer to the Plaintiffs, Defendants, and Intervenors..
4

~~6L::-A:~~~kw..­
Michelle Lujan Gris NM Department of!
~~~4---~ atherine Cr. ss Maple, PhD Assistant Secretary, NM Public Education Dcpartment for Division of Vocational Rehabilitation

rna Exccutiv Director Arc of New Mexico

~ .. ~ MllUfIlSa1lders Counsel for Arc of New Mexico

Peter Cubra Counsel for Plaintiffs

5

APPENDIX A AGREED ACTIONS TO ADDRESS CONTEMPT MOTIONS

All references are with regard to Jackson cJassmembers

Ref# Due CMI 18 mDnths

CM2 CDmplete CM3 6 I11Dnths

CM4 9 mDnths
CMS I year
CMG I year

CM7 CMS

As per initiative W/in 18 I11Dnths 6 mDnths

CM,) 6 mDnths

CMIO GmDnths CMII 7 mDnths
CMI2 12 mDnths
CMI3 Gmonths CMI4 GmDnths
CMI5 12 months
CMIG I year CMI7 6 mDnths
CM18 (, mDnths
CMI9 9 months

CASE MANAGEMENT Rcquiremcnt PrDvide respDnsive, eflcetive case management by improving the current case management system. The case management system will maintain independent case managcment. Establish wDrkgroups tD begin planning improvements in case managemcnt system. Draft a Case Management OperatiDns Manual with input from stakehDlders, including parties and mDnitDrs, which.cstablishes the missiDn. authDrity and duties Df case management. Present the draft Case Management OperatiDns Manual tD the mDnitDrs and parties fDr final review. Finalize the Case Management OperatiDns Manual. Based upDn the missiDn statement in the Case Management OperatiDns Manual, LDng Term Serl'iccs DivisiDn (LTSD) will del'elDp measurable DutcDme indicatDrs fDr improvement in thc case management system. CDmplete the current case management redesign initiative and implement the changes that result lrom that process.
Maintain and strengthen the case management unit and hire a qualified individual with the requisite skills tD administer case management, using a mutually agreed upDn jDb descriptiDn. Assess the quality Df Individual Service Plans OSPs) tD determine hDW tD improve their quality and usefulness. and whether standards and/or regulations need tD bc changed. CDmplete the pilot of the rel'ised ISPjJroeess and documentatiDn. Meet with parties and mDnitDrs tD review the DutcDme Dftl1e pilDt and tD establish revised ISP prDcesses and documentatiDn. Based upon the DutcDme Df the pilDt. determine whether standards and/or rcgulatiDns need tD be changed. Evaluate the utilizatiDn review process and how tD make regiDnal Dffices more effective monitors and Dverseers fDr develDpment Df quality ISPs. CDmplete analysis Df Annual Resource Allotment (ARA) system. Make allowable adjustments Dr changes as needed to promDte quality and cost effective services. PerfDrnl the rate study recommended by the cDmmunity monitDr in 1998. Implement the recDmmendatiDns made by the internal monitDr in her summer 2003 report regarding the ARA system. WDrk with the monitDrs to remcdy problems with the Omnicaid utilizatiDn review system. Establish a system fDr case managers tD have access tD infDrmatiDn regarding billing services.

APPENDIX A: Agreed Actions (11/30/2004)

Page I 01'7

---------_._-_.- -"..
. '

Rcf# QEI
QE2 QE3 QE4 QE5
QEG QE7 QE8

J)ue G months
G months I ycar
6 months
Per priority schcdule 18 months I year
I year
G months

QUALITY ENHANCEMENT Requirement Develop implementation plan for Division of Health Improvement (DHI) assumption of responsibility for corrective action follow-up. including resource requirements. Address each recommendation in the internal monitor's October 2003 report. Based upon the DOH staffing analysis, as reviewed by the monitors. DOH will determine how to bcst mcet resource needs relatcd to quality enhancement. DOH will work with the internal monitor to establish a plan to transfer responsibility for follow-up to Dl·II. Areas of concern listed in Dr. Willcox's report will be prioritized and addressed.
DOH will establish systematic capacity/competence to address medical and behavioral needs of persons served. DOH will establish an adequate process for follow-up after hospitalization to ensure that appropriate medical care is provided. Modify Internal Review Committee (lRC) procedures to improve its ability to identify deficiencies at provider agencies that require corrective action, for promptly establishing adequate correctivc action plans and for ensuring that corrective actions are completed in a timely manner.

Ref# J)ue IMI 3 months 1M2 I year 1M3 3 months IM4 3 months
IM5 Gmonths IM6 6 months IM7 I year
IM8 I year IM9 6 months
IMIO Gmonths 1M II (; months

INCIDENT MANAGEMENT Requirement DHI will be responsible for follow-up verification/closure resulting from incidents. DHI will have adequate resources to follow-up, verify, and close incidents requiring follow up. The Internal Monitor will review IRC use of trends data from incidents. Dl·n's intakc/triage process will appropriately assign incidents for investigation. especially emergency room visits. Improvc the process for evaluating incident rcporting during provider reviews. Establish and implement effective sanctions for under reporting. Sufficient numbers of investigators will be assigned to pcrform investigations and all investigators will demonstrate ability to perform professionally adequate invcstigations. Implement all recommendations regarding Mortality Review made by Dr. Willcox in his December 2003 report. Ensure that Dr. Willcox makes written recommendations regarding both individual and systemic corrective actions when he writes each death review report. and establish a reliable mechanism to ensure that those rec.ommcndations are promptly implemented. Establish an adequate process for improving the reporting of incidents to the Incident Management Bureau of DI·II. Establish adequate protocols for assessing whether a provider is reporting all reportable incidents and for properly sanctioning providers that fail to report.

APPENDIX A: Agreed Actions (11/30/2004)

Pag~ 2 of7

Ref # Duc 1\112 6 months
IMI3 3 months IMI4 3 months

INCIDENT MANAGEMENT Requiremcnt Ensure that after appropriate intakc of emergency room visit incidents mcdical technical assistancc is providcd. Improve the quality of investigations ofabusc. neglect. and exploitation. Implcment changes to the system for performing intake/triage of incidcnt reports. to cnsure that investigations are conducted of all incidents of suspected abuse. neglect. and exploitation.

Ref# BI B2 B3
B4 B5 B6
B7 88

nue Pcr contract As recmnd
6 months I year I year
I year 3 months

BEHAVIOR Requiremcnt Continue thc contract for the currcnt clinical consultant at least through June 2006. Through the Office of Behavioral Services (OBS) and the clinical consultant, complete the tasks. strategies, and products specified in the contract consistent with the time lines in the contract. Implemcnt the recommendations of the clinical consultant as contained in the reports produced pursuant to the contract to the extent that defendants agree with such recommendations. Such agreed-to recommendations will be implcmented within the time lines set out in the consultant's recommendation. Disagreements concerning implementation of recommendations arc subject to the dispute resolution process in paragraph 10 of the Stipulation. Develop new practice guidelines lor behavior therapists. DOH will review Behavior Support Plans (BSf') and ensure that behavior therapists comply with new and existing behavior practice guidelines. Beginning January 2005, participate in regularly scheduled annual team meetings for at least 20 of the class members with the most challenging behaviors and ensure the BSP is adequate. is integratcd into the lSf'. and is consistently implemented. Provide required training to regional offices. case managers. behavior therapists. and provider staff. Use the data collected during the 2003 annual review of BSPs to track performance by behavior therapists and to hold those behavior therapists accountable.

Ref# Duc

CI

Complete

C2

3 months

C3

Pcr plan

Within

18 months

CRISIS Requirement Present a proposal regarding crisis services to the Monitors and the parties by September 30, 2004. Jointly develop a "Plan for Crisis Services" with input from the monitors for providing Tier I, II, and III services statewide. This action is subject to Joint Plan Development and Approval, and disagreements conceming recommendations are subject to the dispute resolution process in the Stipulation. Implement the plan in accordance with the time lines specified in the plan.

APPENDIX A: Agreed Actions (11/30/2004)

Pagc 3 of7

Ref# nue C4 (, months

C5

(j months

C(,

6 months

C7

(j months

CRISIS RClluircmeut Establish an effective mechanism to finance crisis response services that require a cash expenditure. Work with plaintiffs to develop an adequate plan with time lines for establishing. regional capacity for crisis services. Hire a qualified individual with the requisite skills to administer crisis services provided by DOH. Establish an adequate plan to fill staffvacancics at the Los Lunas Community Program.

Rcf# nUl'

SI

(j months

S2

Per plan

Within

18 months

S3

6 months

S4

(, months

S5

Completed

S6

12 months

S7

18 months

S8

September

2005

S,)

18 months

SEXUALITY Requirement Jointly develop a Plan, with timelines, in collaboration with parties, monitors, OBS, ctc. to create a regional capacity with a choice of qualified providers to address sexuality needs of individuals. Ensure that the Plan offers a choice of qualified providers in each region. This action is subject to Joint Plan Development and Approval, and disagreements concerning recommendations are subject to the dispute resolution process in the Stipulation. Implement the Plan in accordance with the time lines specilied in the plan.
Retain mutually agreeable clinicians to conduct assessments. Work with plaintiffs to identify all class members who need specialized sexuality services. Retain a qualified consultant. Offer assessments to the 38 identified class members. Assessments will nieet criteria established by the Office of Behavioral Services. Offer assessments to other class mcmbers who meet needs criteria as established by the Office of Behavioral Services. Assessments will meet criteria estabiished by the Office of Behavioral Services. Arrange for an experienced clinician to promptly provide sexuality training to relevant persons. Such training will be provided at least annually. For identified class members with sexuality problems, develop individualized plans, based upon the assessments, with time lines to provide adequate treatment to such individuals

Rcf# nue SEI 6 months
SE2 As per contract

SUPPORTED EMPLOYMENT Requirement LTSD will retain new full time equivalent personnel to develop an employment" institute (center) and to initiate, support and provide technical assistance for job development and innovative employment practices including customized employment and micro-enterprises at the local level in conjunction with the Supported Em]lloyment consultants. Ensure that the consultants are used for job development at least to the same extent they were used inpast years.

APPENDIX A: Agreed Actions (11/30/2004)

Page 4 of7

Rcf# SE3

J)ue As per contract

SE4 6 months

SE5 (, months

SE6 8 months SE7 8 months
SE8 6 months SE9 6 months SElO 6 months

SEI I 8 months

SEI2 18 months

SEl3 SEI4 SEI5

8 months I vear 6 months

SEI6 6 months

SEI7 6 months

SUPPORTED EMPLOYJ\.H:NT Requirement Use the employment consultants at least to thc same extent that the previous administration did to providc quality supported employment services to more class members. Implement the "Plan of Action: Supported Employment Outcome B" (119) work plan.
Develop a plan with time lines to provide quality supported employment at the
minimum criteria to all priority class members who are determined to be appropriate for work. LTSD will develop indicators for supported employment improvement that are measurable. Analyze all policies and practices that arc inconsistent with "employment first" principles and make necessary changes. LTSD will clarify that "meaningful day" includes employment. LTSD will set and enforce standards that define expectations for all day services, including work. Develop consequences for case management agencies whose case managers do not carry out DOH policies regarding cmployment in line with employment first principles and as identified in individual comprchensivc personal profiles. Devclop criteria outlining competencics for staff involved in supported employment. LTSD will recruit employment providers in areas of the state where there are fewlno quality outcomes and innovative approachcs. Performance-based contracts will be developed, implemented, and enforced. Provide inccntives for innovation in cmployment. LTSD will revise the new comprehensivc personal profile to ensure that they fully cxplore employment potential and arc consistent with the Department's "employment first" principle. Develop guidelines. consistent with the Department's employment first principles. for case managers regarding the need for adcquate comprehensive personal profiles and implementation of career development plans. Work with plaintiffs. monitors, etc., to cstablish clear criteria for teams regarding what constitutes retirement from work.

Ref# DVRI
DVR2
DVR3

J)ue (j months
9 months
9 months

DIVISION OF VOCATIONAL REHABILITATION (DVR) Rc(tuircmcnt Annually, DVR will target outcomes. in conjunction with LTSD. for spccific Jackson class members who have work goals but who are not working and collaborate with LTSD to obtain employmcnt for them. OVR will takc referrals for certain Jackson class mcmbers and take the lead in gelling an employment profile done to establish a blue print for job development. OVR will assist in obtaining employment in conjunction with LTSD.
DVR and LTSO will use creative approaches to gcttingjohs for Jackson class members with significant disabilities and seek methods of providing incentives through innovation contracts.

APPENDIX A: Agreed Actions (11/30/2004)

Page 5 of?

..

Rcf# DVR4
DVR5 DVRG DVR? DVR8

Due 6 months
9 months (j months I year (, months

DIVISION OF VOCATIONAL REHABILITATION (DVR)

...

Requirement

OVR will participate in selected team meetings of the "119" individuals whosc

teams are not supportivc of work and assist individuals to consider other

providers if necessary. DVR will ideally he provided 8-10 weeks notice, but in

no event less than 4 weeks noticc, of these meetings.

DVR will take thc lead in developing and implementing quality vocational

profiles for Jackson class members who do not have an updated one...

OVR will ensure that all liaisons understand their role as facilitators of

employment for individuals with significant disabilities.

OVR will co-sponsor training for key stakcholders on quality employment

outcomes, innovative approaches, best jlfacticcs, employcr ncgotiations.

DVR will do case reviews at the 10callcvc1 and collaborate with LTSD to solve

individual and systemic issues.

Ref# Due OSI (j months OS2 (, months OS) I year OS4 9 months OSS (, months OS6 6 months
OS? (, months
OSS I year OS9 (j months OSlO 6 months OSII FY06

DAY SERVICES Requirement LTSD will implement the Rucker plan, as operationuli<Ged hy the meaningful day work group chaired by the community monitor. LTSD will work with plaintiffs, monitors, etc.. to establish a measurable dcfinition of a meaningful day. Establish criteria for teams as to what constitutes a meaningful day for retired individuals. Bascd upon the definition of meaningful day, LTSO will dcvelop measurable outcomc indicators for improvement. LTSO will dcvelop and implement consequences for case managers and their agencics for failurc to carry out OOH policies rcgarding meaningful day services. LTSD will retain a full time equivalent qualified cxpcrt(s) who will lead the meaningful day and employment initiatives. This person will also oversee the work of two filII time lead staff persons: onc in the area of meaningful day and onc in the area of supported employmcnt. LTSD will incrcase the full time equivalent (FTE) assigned to cach region (at least I FTE in each region and 2 in Metro) to work exclusively on meaningfill day. LTSO will increase the full time equivalent assigned to each region (at least I FTE in each region and 2 in Metro) to work exclusively on supportcd employment. LTSD will incrcase the expectations and demands for providers of day services other than work in line with the meaningful day definition and outcome indicators developed by the meaningful day work group. Develop criteria outlining compctencics for staff involved in meaningful day area. Oevelop rigorous performance expectations that are measurable for all staff and providers involved in meaningful day and en force them. Performance-based contracts will be developed, implcmentcd, and enforced.

APPEl'<DlX A: Agreed Actions (lli30/Z004)

Page 6 of?

. ,,~

Rcf# Due OS12 FY06

OS13 FY07

OSI4 OSI5 OS16

I year 6 months 6 1110nths

OS 17 'J months

DAY SERVICES RClluiremcnt LTSO will design and implement a pilot which will determine how to best tic reimbursement to accomplishments. Results of the pilot will be used to inform the rate methodology and sustain the practice of paymcnts being tied to accomplishments. Provide incentives for innovation. Givc teams/providers technical assistance when they request it. With assistance from the Internal Monitor identify an individual/organization with expertise to continue the work begun by Lyn Rucker to improve day services in linc with the meaningful day definition and outcome indicators developed by the meaningful day work group. Based upon the completed day services plan undertake the required evaluation of manpower and seek needed funds.

APPENDIX A: Agreed Actions (11/30/2004)

Page 7 of?

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

WALTER STEPHEN JACKSON, et al., Plaintiffs,
vs. LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, et al., and THE ARC OF NEW MEXICO, Intervenor, and MARY TERRAZAS, et al., Intervenors pro se.

Civ. No. 87-839 JP/LCS

MEMORANDUM OPINION AND ORDER On December 2, 2002 Defendants filed Motion No. 73 for Partial Disengagement. Although Plaintiffs agreed with Defendants that judicial oversight of the community services listed in Motion No. 73 should be terminated, intervenor ARC of New Mexico (ARC) objected to terminating oversight for “that portion of the motion related to paragraph 36, part (e) in the Southeast Region.” Doc. No. 1385 at 1. Paragraph 36, part (e) of the Joint Stipulation on Disengagement (JSD) addresses whether behavioral services have been integrated into an individual’s service plan. Termination of judicial oversight is warranted once Defendants have meet the continuous improvement requirements outlined in paragraphs 32 and 33 the JSD. As applied to the integration of behavioral services, paragraph 32 requires that Defendants increase their

compliance level by “15% for each of three years” beginning with the 1998 audit. Under

paragraph 33,

[i]f the level of improvement for a particular item in one region in a given year exceeds the level of required improvement for that item in that region for three years, the Department will have met the required continued improvement level for that item in that region. In that event, the Department will substantially maintain that level of compliance for an additional year. . . . The data generated by the community audit shall be conclusive evidence for determining the extent of future compliance and continued improvement for each of the items specified in ¶¶ 35-37 of this Stipulation.

The Community Monitor, Linda Glenn, generated the following compliance record for

Defendants’integration of behavioral services into individual service plans for the Southeast

Region.

1997 1998 1999 2000 2001 2002

10% 0% 60% 13% 80% 60%

Doc. No. 1380 at unnumbered page 7. In 1997, for example, 10% of the developmentally

disabled who needed behavioral therapy had it integrated into their individual service plan. ARC

acknowledges that Defendants surpassed the required improvements for this provision when it

achieved 80% compliance in 2001. However, ARC argues that under paragraph 33 of the JSD

Defendants did not substantially maintain that level of compliance for an additional year. Doc.

No. 1385 at 2. ARC contends that the 25% decrease in compliance between 2001 and 2002

represents a “significant, precipitous drop off in one year.” Id. at 4.

Defendants argue that this pattern of compliance is not remarkably different from the

compliance history for paragraph 35, (a) of the Southeast Region, which this Court held justified

2

disengagement. Doc. No. 1250 at 2. However, there are two reasons why Defendant’s comparison is flawed. First, when this Court reviewed Defendant’s Motion No. 65, Doc. No. 1231, the compliance level for paragraph 35 (a) had fallen from 80% in 1999 to 69% in 2000. There the drop in compliance was only 11 percentage points, representing a 14% decrease in compliance, compared to the reduction of 20 percentage points here, which represents a 25% dip in compliance. Second, this Court found that the Department had substantially maintained compliance since the 69% rate “significantly exceed[ed] the stated goal of 45 percent.” Here, however, the 2002 compliance level is just 5 percentage points above the stated goal of 55%. Given the larger drop in compliance and the much narrower gap between the stated goal and the current compliance level, comparing the compliance history of paragraph 35 (a) of the Southeast Region and paragraph 36 (e) of the Southeast Region is unjustified.
In addition the compliance history here shows significant fluctuations: from 0% to 60% between 1998 and 1999, back down to 13% in 2000, and then up again to 80% in 2001. Although the last downward turn from 80% to 60% in 2002 is not nearly as big as these former vacillations, the 60% compliance level does not have the stability other compliance histories have shown. Cf. Motion 68, Doc. No. 1234 at 8 (granting disengagement on paragraph 36 (c) for the Metro Region with a compliance history of 61%, 84%, 77%, and 77% from 1997 to 2000 and a stated goal of 80%). Hence the community audit figures do not show that the compliance level for behavioral services has been substantially maintained at this time.
Although Defendants have invited the Court to look behind the statistics underlying the Community Auditor’s report, under the JSD “the data generated by the community audit shall be conclusive evidence for determining the extent of future compliance and continued improvement
3

for each of the items specified in ¶¶ 35-37 of this Stipulation.” Nevertheless, should Defendants maintain a compliance level above the stated goal in the future, the Court will consider favorably such results.
IT IS THEREFORE ORDERED that the ARC of New Mexico’s objection to Motion No. 73 is sustained; although the Court has granted all of the uncontested provisions of Defendants’ Motion No. 73, Doc. No. 1384, Defendants’Motion No. 73 (Doc. No. 1380) is denied with respect to paragraph 36, part (e) as it applies to the Southeast Region.
______________________________________ CHIEF UNTIED STATES DISTRICT JUDGE
4

 
 ~....

.- '-,: "': -
-

IN THE UNITED STATES DISTRICT COURT

F i LED
UNITED STATeS U1ST:<:C;- !~(.iI)R"T
!::.. AL8U(~lJEP()UF, f-lr='..../ !.... I(~:=>

-
FOR THE DISTRICT OFNEW MEXICO

OCT 3 1 2003

W ALTF.R ,STF.PHF.N .IAq::S()!-.I, et al..

~77l~~

Plaintiffs,· , '

" ,

CLERK

\'S.

." .: I::Jo. CIV 87-839JI'/LCS

LOS LUNAS CET\TER FOR PERSONS

'. -:

WITH DF.VFLOi'MF.NTDISAI3ILITJES. et aI..

Defendants. , ,
and

THE ARC OF NEW MEXICO•
. "
Intervenor.

and

MARY TERRAZAS. et aI.. ;" . Intervenors pro se,' '

ORDER
.. :-.'
On October '27, '2003. Defendmlts liled Derendanis'M6tion to Vacate Joint Stipulation
on Disen'gageme.nt.'Purswmt to,R. ule 6. 0(b) . (Doc.. 'No.:14.04l., .r.ief~ndu.-n.ts' . Memorandum in
Support of Moiion to VacatcJoint Stipulation on Di;~'~gagemen~ (Doc. No. 1405). and
"',
to Defendants' Motion Stay Procet;dings Pel{ding the Lirijied:Statcs Supreme Court's Decision in

Frew v, Hawkins (Doc". No. 1406), At a status confcri:nceon qctobcr 29.'2003 allended by

numerous

cotlnsel .

repres,e. n. ting

all

of the

parties

andpro-sc

.

-'

Intervenor -,

Dr.

Charlcs

Woodhouse. .

"

,',

Defendants' motioilS were discussed with the Court: Th~ COllri was informed that the .Cnited

" ...., ..

States Supreille Court lieard oral arguments in Freli'i:, Hmi'kill.l' and that a ruling in the case by

. .:.:

.'-'--

the United States Supre'mc Court is anticipated within the nexi"few months. The ruling by the United States Supreme Court in Frell' v. Hawkins will be determinative of or will strongly influence resolution of Defendants' two motions filed October 27,2003. The Court determines that Defendants' requests for relief made in the motions areyremature at this poilll and ShllUld not be considered until alier the United States Supreme Court issues its ruling in /-i'CII' I'. Hawkins, Consequently, this Court detcrmincs that the Defendants' motions should be denied without prejudice to Defendants renewing the motions. if appropriate. alier the United Stmes Supreme Court issues its ruling in Frell' v. Hawkins,
IT IS THEREfORE ORDERED THAT Defendants' Motion to Vacate Joint Stipulation on Disengagement Pursuant to Rule 60(b) (Doc, No. 1404)and Defendants' Motion to Stay Proceedings Pending thc United States Supreme Court's Decision in Fi'ew l'. /i", ..kills (Dl1c, :-':ll, 1406) are denied as prematurely liled. without prejudice to Defendants rctiling the motions. if appropriate. aller the United States Supreme Court issues its ruling' Prewv. /ia\\'
2

 
 • F I L E D Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 1 of 15

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

UNITED STAT!S DISTRICT COURt ALBUQUeRQUE, NEW MEXiCO
JAN 27 1994

WALTER STEPHEN JACKSON, et al., Plaintiffs,
vs.

No. CIV 87-839 JP/DJS

FORT STANTON HOSPITAL AND TRAINING SCHOOL, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER The subjects of this Memorandum Opinion and Order are "Intervenors' Motion for an Order Requiring IDT Review of Individuals on the community Placement List" filed July 23, 1993, "Plaintiffs' Motion for Leave to Amend the Complaint by Interlineation" filed November 9, 1993 and "Plaintiffs' Motion to strike Intervenors' Response to Plaintiffs' Motion to Amend" filed December 17, 1993. After careful consideration of the applicable pleadings, law, and evidence, including testimony and exhibits presented at a hearing on December 20, 1993, I find that the intervenors' motion should be denied and that both of plaintiffs' motions should be granted.

1

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 2 of 15

I. "Intervenors' Motion for an Order Requiring lOT Review of Individuals on the Community Placement List'"

Pursuant to my orders of December 20, 1990 and April 19, 1991

and the Tenth Circuit's May 18, 1992 decision, the parties

developed a process for preparing individual program plans (IPPs)

and individual transition plans (ITPs) for residents of Fort

stanton Hospital and Training School (FSHTS) and Los Lunas Hospital

and Training School (LLHTS). The ITP process is initiated once a

resident's interdisciplinary team (lOT) has recommended planning

for community placement. 2

The transition planning process

involves an expanded interdisciplinary team which includes

1 I note at the outset that in deciding this motion I did not consider or rely on the affidavit of Dr. Sue Gant submitted by plaintiffs in connection with the December 20, 1993 hearing. Consequently, it will not be necessary for the parties to take her deposition.

2 For purposes of this motion, only planning and placement

decisions affecting those residents who were originally recommended

for placement pursuant to the September 27, 1991 "Notice of

Transition Planning and Placement Schedule", (original placement

list), are at issue. Intervenors' Reply Brief at 2. Since that

date additional residents have been added to the community

placement list. Intervenors refer to this as the "modified" or

"supplemental" community placement list.

I also note that it is not clear on whose behalf the

intervenors have standing to bring this motion. It is obvious that

intervenors have standing to bring this, or any motion, on behalf

of any residents who are named intervenors. However, I broadly

defined subclasses of plaintiffs and intervenors in a May 23, 1989

Memorandum Opinion and Order as "[p]laintiffs will represent the

subclass that seeks community placement.

Intervenors will

represent the subclass that opposes closure of the institutions and

community placement." Memorandum Opinion and Order at 7. At the

December 20, 1993 hearing and in subsequent correspondence to the

court the parties have indicated that there are problems with the

current subclass definitions and that they are working on the

"possibility of seeking a modification or clarification of [the May

23, 1989 order]." January 10, 1994 Letter from Steven J. Schwartz.

2

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 3 of 15
community clinicians and providers as well as selected institutional staff, the resident, the resident's parent or guardian and a representative of the Department of Health.
All parties also agreed to a Dispute Resolution Process CDRP) as a means of resolving disputes with respect to both IPPs and ITPs. However, of significance for purposes of resolving this motion, the DRP utilized in conjunction with an IPP is not available to residents who were on the original community placement list3 as a result of an earlier IDT decision that community placement was appropriate. Deposition of Toni Tobey at 135. The practical effect of this is that a resident on the original community placement list cannot use the ITP dispute resolution process to challenge the concept of planning for community placement of that resident. However, the DRP can be used to challenge the adequacy of a proposed community placement plan, and if available community resources are deemed inadequate to ensure the safety and well being of a resident, placement of that resident in a community setting will not occur.
The DRP allows either an individual resident, his or her parent or guardian, or the Department of Health to raise objections to all aspects of a transition plan before a resident is transferred from FSHTS or LLHTS into the community. The ITP dispute resolution process provides for three levels of review,
3 As noted above, the original community placement list is the placement list submitted to me in September 27, 1991. This list is comprised of 149 individuals who had received community placement recommendations from their IDTs prior to or shortly after my order of December 28, 1990.
3

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 4 of 15
each by a decisionmaker who is not a member of the resident's lOT.
The first level of review allows an informal conference with a
representative of the Department of Health. If problems or
concerns cannot be resolved at this meeting any party may request
a hearing before an administrative hearing officer. If any party
still has unresolved problems or concerns after a hearing before an
administrative hearing officer these problems and concerns can be
submitted to the court. Planning has now commenced or will soon be
initiated for those residents on the original placement list.
Although concerns about decisions that are made in the ITP
process affecting planning and placement can be raised in the ITP
dispute resolution process, the state established a separate,
preliminary administrative review mechanism to address the
rationale and justification for an lOT request to remove a resident
from the community placement list. state personnel from within the Jackson office4 performed this preliminary administrative review pursuant to Policy Memorandum #009. 5
4 The Jackson office is an office within the state of New Mexico Department of Health's Disabilities Division which was formed to coordinate discharge of the state's obligations in the ongoing Jackson litigation.
5 The review panel was comprised of at least three persons, with up to four persons serving at anyone time. Seven different individuals from the Jackson office were involved with panel reviews in the course of the 20 reviews; Toni Tobey, Nancy Pieters Albert Ericson, Erin Leff, Marilyn Price, Jennifer Thorn-Lehman and Philip Blackshear. The reviewers, perhaps with the exception of Toni Tobey, all had various levels of education, training and experience in working with the developmentally disabled including case management and direct care.
Policy #009 was rescinded on December 3, 1993 apparently because, due to its limited application to individuals on the 1991 placement list, it was no longer needed. Defendants' Exhibit 10.
4

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 5 of 15
Review under Policy #009 occurred when an lOT requested removal of a resident from the original placement list. 6 The review panel, following the dictates of Policy Memorandum # 009, automatically determined that planning for community placement, based on an initial lOT recommendation, should continue unless the lOT later requesting removal provided written documentation that (1) there ha [d] been an "[ e] xtraordinary change in the individual's condition which directly relates to the person's ability to live safely in the community": and (2) there [was] a "[ s] ubstantial likelihood that change in the individual's condition is long term." The administrative review panel reviewed 20 cases under Policy # 009 in which an lOT had recommended removal of a resident from the community placement planning process. The review panel rejected the lOT's recommendation for removal in 16 of the 20 cases.
Intervenors now request "an order prohibiting defendants from: (1) denying consideration by any lOT of availability of community services when making treatment decisions: (2) overriding, directly or indirectly, any lOT determination of appropriateness of institutional placement: (3) transferring any class member to a community placement when the lOT has determined institutional placement to be appropriate, including those instances where
However, I disagree with any suggestion by the plaintiffs that this renders the intervenors' motion moot. See Plaintiffs' Sur-reply at 6, n. 9.
6 As noted above, residents were placed on the original placement list upon recommendation of an lOT at a time prior to or soon after my Oecember 28, 1990 order. Removal from the list was requested in twenty cases by a different lOT convening on a later date.
5

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 6 of 15
availability of community services was a consideration." "Intervenors' Motion for an Order Requiring IDT Review of Individuals on the Community Placement List" at 1.
At base, the intervenors' motion seeks to prohibit defendants from reviewing the recommendation of an IDT to remove a resident's name from the community placement list. However, the intervenors' motion, albeit less clearly, also apparently challenges the ongoing community planning and placement process by proffering a belated argument that the original community placement list which was submitted to me in September of 1991 is invalid as to most or all of the individuals on the list. This argument is untimely and without a factual basis. In addition, as discussed above with respect to this motion as a whole, it is not clear on behalf of which residents, other than specifically named intervenors, the intervenors have standing to challenge the original list.
The intervenors also argue that in determining the appropriateness of community placement the IDTs are not properly considering the availability of resources as directed by the Tenth Circuit. See Jackson, 964 F.2d 980. This argument also lacks a factual basis. The intervenors presented no evidence, either with their briefs or at the December 20, 1993 hearing, to support this argument. In contrast, the defendants, through the testimony of Paula O'Connor, showed that IDTs are in fact taking into account the availability of community resources in making decisions about community placement. Moreover, the Tenth Circuit did not mandate that resources in the community always be considered - only that
6

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 7 of 15

teams could not be precluded from considering their availability.

Jackson, 964 F.2d at 992.

I also will deny the intervenors' requested relief that I

prohibit the defendants from "transferring any classmember to a

community placement when the lDT has determined institutional

placement to be appropriate." As defendants correctly note "an lDT

determination that continued institutional placement is

'appropriate' does not require institutional placement."

Defendants' Response Brief at 7.

A team need not find

institutional placement inappropriate before community placement is

a constitutionally acceptable alternative. Rather, as I emphasize

below, the state in deciding where it will provide care for a

developmentally disabled citizen can elect any option from the

"universe of constitutionally acceptable alternatives." Jackson,

964 F.2d at 992.

Ultimately, and most significantly, I find that the state's

use of an administrative review panel to evaluate an lDT

recommendation to remove a resident from the community placement

list does not violate, or even implicate, any constitutional rights

of the residents of FSHTS and LLHTS. Rather, the review and, in

most cases, rej ection of the recommendation to remove from the

community list, merely allows planning for placement to proceed.

Moreover, I find that the review panel exercised professional

judgment to which I must show deference.

Youngberg v. Romeo, 457 U.S. 307 (1982) established the right

of the developmentally disabled in state custody to (1) safe

7

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 8 of 15
conditions of confinement; (2) freedom from bodily restraints; and (3) training or rehabilitation. Consequently, under Youngberg a developmentally disabled person in state custody has sUbstantive due process rights relating to the conditions of his or her environment and the nature of care provided within that environment. Neither Youngberg nor any other authority of which I am aware established a sUbstantive due process right to be free from a state's planning for non-institutional placement. 7 The constitutional rights established by Youngberg are only implicated once the state has made a final decision to transfer a resident from an institution into the community. Only then can I evaluate whether the state has chosen a constitutionally acceptable alternative. The decision by the state of New Mexico, via the Jackson office review panel, to continue planning for community placement of persons it now holds in custody in institutions is simply an administrative function which does not implicate an individual's constitutional rights.
As noted above, the Tenth Circuit made clear that the state must be allowed to choose between constitutionally acceptable alternatives in caring for the developmentally disabled. Here in 16 cases a review panel has made an administrative decision to proceed with planning for community placement, contrary to the
7 While intervenors do not express it as such, their claim that the review process has violated their constitutional rights could arguably be a claim that residents subject to the Policy #009 review had their procedural due process rights violated. However, even if intervenors had expressly articulated such an argument, I would have rej ected it. The planning process and accompanying dispute resolution process afford adequate procedural protections.
8

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 9 of 15

recommendation of one of two or more lOTs which made conflicting recommendations regarding community placement. 8 During the course

of the planning process residents and their parents or guardians

may use the dispute resolution process to raise concerns about the

adequacy of a community setting. Because this established process

appears to afford protection against unprofessional placement

decisions, I agree with plaintiffs' and defendants' argument that

the intervenors' motion is premature.

The prematurity of

intervenors' request for relief is illustrated by their statement

that "[i]mproper placements, contrary to lOT recommendations, will

result in costly litigation

" Intervenors' Brief at 4.

There is currently no issue of "placement" before me. Rather, as

described above, what is at issue now is a decision to go forward

and plan for placement. Community placement is a constitutionally

acceptable alternative which the state can, in its discretion,

ultimately choose if providing care in a community setting for a

particular person conforms to the requirements of Youngberg. The

propriety of a community placement decision obviously must be

determined after a decision is made. Jackson, 964 F.2d at 992.

Moreover, the evidence presented at the December 20, 1993

hearing demonstrated the usefulness of the review of an lOT

recommendation to remove an individual's name from the community

8 I note that of the 20 individuals for whom a Policy #009 review was conducted only 8 were named intervenors. Of these 8 the review panel approved 2 of the requests for removal from the list and disapproved 6 of the requests. Again, I question on whose behalf the intervenors have standing to challenge Policy #009 reviews.
9

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 10 of 15
list. The evidence at the hearing showed that many of the decisions to remove from the community placement list were based on parental concerns about the ability of an individual to function in a community setting. However, as noted above, inclusion on the list is not a definitive decision to place an individual in the community. Rather, it is just a decision to commence planning for placement and, based on the availability of appropriate community resources, determining the feasibility of community placement. As the state articUlates, "no placements are made unless a team of professionals develops a plan and believes that the individual placement in the community is appropriate." Defendants' response brief at 7. The state's position is supported by the deposition testimony of Toni Tobey which was submitted as an exhibit by all the parties:
We have an obligation to plan for the transition of an individual. And our focus is on getting and meeting those obligations and planning to develop a plan. It does not mean that they are immediately placed [in the community] or that the obligation is necessarily to place [in the community]. I wish explicitly to note that I am deeply sympathetic with the concerns of the intervenor parents about the safety and welfare of their children. However, at this juncture I find that the process the state has chosen to follow is constitutionally acceptable. It would behoove the state, though, to ensure that parents remain an integral part of the planning and placement decision process and to make sure that their concerns are fairly considered. I am disconcerted with the following language the
10

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 11 of 15
state has used in communicating with parents regarding community placement; "The individual's move to a less restrictive, communitybased living arrangement is mandated by recent court action and is not negotiable." This language apparently is on the cover sheet of individual transition plans. The "mandate" in my December 28, 1990 order was not intended to make community placement "nonnegotiable. " Rather, community placement must be based on the implementation of a transition plan derived from the exercise of considered professional judgment throughout the ITP process. The ultimate decision to place in the community must be premised on a current assessment of a resident's ability to function in the community given the available community resources. The factors which should be considered in determining the appropriateness of community placement are obviously fluid, not static, and need up to date assessments to ensure constitutionally acceptable community placement decisions. The ITP process certainly should be open to negotiation. If a resident cannot be reasonably safe and receive adequate rehabilitation in a community setting, then that indiv idual should not be placed in the community. The very existence of the DRP belies the state's position that community placement is "non-negotiable." While the decision to plan for community placement may in some instances be "non-negotiable", in the sense that the state may consider various alternative places at which the state will offer services for its developmentally disabled citizens, the ultimate decision to place in the community should be the subj ect of much discussion among professionals,
11

. '

• Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 12 of 15

parents, guardians and the state. I also find that the Jackson office review panel exercised
professional judgment in reviewing an lOT's decision to remove an individual from the community placement list. A decision made by a professional is presumptively valid and "liability may be imposed only when the decision by the professional is such a SUbstantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such judgment." Youngberg, 457 U.S. at 323. It is within my purview to determine whether professional judgment has in fact been exercised. Youngberg, 457 U.S. 321. Several courts of appeal have held, at least implicitly, that professional judgment is properly utilized by supervisory and administrative officials where those officials are properly qualified by reason of training and experience to review decisions made by medical or other direct care professionals. Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1992); Houghton v. South, 965 F.2d 1532, 1533 (9th Cir. 1992); Shaw v. Strackhouse, 920 F.2d 1135, 1147 (3d Cir. 1990).
As discussed above, the panels which reviewed lOT requests to remove residents from the community placement list were selected from a pool of seven different individuals employed in the state's Jackson office. All of these persons, with the exception of Toni Tobey, had sufficient education, training and/or experience relating to the care of persons with developmental disabilities to enable them to properly conduct a professional review of lOT

12

. '

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 13 of 15

recommendations. Defendants' Exhibits 4 - 9; Deposition of Toni Tobey at 72-75, 131-132, 158-160. While I would have preferred that Toni Tobey not be an active member of the review panels, I find that her presence on the panels did not vitiate the panels' otherwise sound exercise of professional judgment. 9
II. "Plaintiffs' Motion for Leave to Amend the Complaint by Interlineation" I also will grant plaintiffs' motion to amend the
complaint to add by interlineation a claim under the Americans with Disabilities Act 42 U.S.C. § 12101 et ~ (ADA). At the time of trial the ADA was not yet effective and I denied on that basis a motion by plaintiffs to add an ADA claim noting that the motion was premature. The amendment is warranted at this juncture because final judgment has not been entered in this case as to remedial issues, because the addition of an ADA claim will not prejudice the defendants, and most importantly because I feel that plaintiffs are entitled to amend their complaint for injunctive relief to conform with the current state of the law.
This case is in a phase which involves determining appropriate remedies, following the entry of judgment on liability issues. Both "[p]ost-verdict or post-judgment amendments are [permissible except] where they may substantially prejudice the other party or are merely the result of a long and unreasonable delay, particularly if the movant was aware of the facts upon which the
9 As discussed above, individual review panels were comprised of at least three, and often four individuals. The panels made decisions based on consensus.
13

Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 14 of 15

amendment is predicated and could have raised the matter before

judgment

" Trinity Carton Co. v. Falstaff Brewing Corp.,

767 F.2d 184, 194 (5th Cir. 1985). Here, while defendants raise

the specter of additional discovery and a new trial, I find such

claims of prejudice to be unsupported. Plaintiffs assert that no

additional discovery is necessary. other than making general

allegations of burdensome discovery, defendants do not indicate

what discovery would be required or why a new trial would be

necessary.

The plaintiffs have not unreasonably delayed in requesting the

right to make this amendment. As noted above, plaintiffs sought

leave to amend at trial prior to the effective date of the ADA.

This I denied as premature. While plaintiffs clearly could have

renewed their motion to amend upon the effective date of the ADA,

July 26, 1992, formally renewing their motion during November 1993

has not caused any great surprise or prejudice to the defendants.

Plaintiffs readily admit that the addition of the ADA claim may

give rise to the need for some additional hearings, but the

prospect of further hearings should not preclude amending the

complaint to seek relief now available under the ADA to persons

with disabilities.

Plaintiffs' ADA claim parallels and reinforces their claim

under § 504 of the Rehabilitation Act. However, the ADA is not

simply repetitious of plaintiffs' § 504 claim. Unlike § 504 the

ADA applies to public entities regardless of whether the public

entity receives federal funds. I agree with the plaintiffs that

14

• Case 1:87-cv-00839-JAP-KBM Document 831 Filed 01/27/94 Page 15 of 15
"the measure of full relief in injunctive actions such as this is full compliance with the law. Compliance is measured in terms of the law as it exists [at] the time compliance is determined. Compliance in this case should be determined by measuring defendants' actions against the law as it exists today, including the ADA." Plaintiffs' Reply Brief at 5.
III. "Plaintiffs' Motion to strike Intervenors' Response to Plaintiffs' Motion to Amend" I will grant plaintiffs' motion to strike on the grounds
that intervenors' response was untimely and did not contain a certificate of service as required by Fed. R. civ. P. 5(d). IT IS THEREFORE ORDERED THAT:
1. "Intervenors' Motion for an Order Requiring lOT Review of Individuals on the Community Placement List" filed July 23, 1993 is DENIED.
2. "Plaintiffs' Motion for Leave to Amend the Complaint by Interlineation" filed November 9, 1993 is GRANTED.
3. "Plaintiffs' Motion to Strike Intervenors' Response to Plaintiffs' Motion to Amend" filed December 17, 1993 is GRANTED.
15

 
 Case 1:87-cv-00839-JAP-KBM Document 1198 Filed 06/13/00 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR TIlE DISTRICT OF NEW MEXICO

WALTER STEPHEN JACKSON. ct al..

Plaintitl's,

vs.

No. CIV 87-839JP/LCS

LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENT DISABILITIES. et aI.,
Defendants. and ARC OF NEW MEXICO,
Intervenor, and

FILED
UNITED STATES DISTRICT COURT ALBUQUERQUE, NEW MEXICO
JUN 1 3 2000
~?7J~~
CLERK

MARY TERRAZAS. et al..

Intervenors pro se.

ORDER

On March 6. 2000, Plaintitrtiled "Plaintiffs' Motion for Attorneys' Fees and Expenses;"

Defendants filed a response on April 18.2000; and Plaintiffs filed a reply on May 1,2000. The

Court entered an order permitting the filing of exhibits totaling 114 pages. Having considered the

motion, related briefs and exhibits. the Court concludes that the motion should be granted

substantially in its entirety, but that a small part of Plaintiffs' claim for attorneys' fees and costs

should be denied.

Defendants made no real objection to Plaintiffs' claim of$17,425.2! for attorneys' fees

based on what Plaintiffs categorize as "litigation-related set aside time." See Plaintiffs' Exhibit 1O.

Therefore, those attorneys' fees in the amount of$17,425.21 will be awarded in their entirety.

Case 1:87-cv-00839-JAP-KBM Document 1198 Filed 06/13/00 Page 2 of 3
Dctendants do mount a more substantial challenge to attorneys' fees and expenses totaling $19,326,97 related to a special negotiation session in Albuquerque during November, 1998 that had been requested by Defendants, In regard to that category of attorneys' fees and expenses, the Court finds that the special negotiation session in Albuquerque during November. 1998 was requested by the Defendants in an effort to avoid formalized notices of non-compliance that Plaintiffs had threatened to make, that the November. 1998 meeting was not a regular quarterly meeting, and that Plaintiffs' preparation for and attendance at the November, 1998 special meeting in effort to avoid formal disputes with attendant time-consuming and expensive briefing and hearings was entirely reasonable and not within the cap on attorneys' fees agreed to by the parties. The Court concludes that essentially all of the attorneys' fees and expenses related to the November. 1998 special negotiation session were reasonable and should be awarded.
However, the Court agrees with one of the Defendants' arguments which in Defendants' response was stated more by implication than by precision. That argument is that it was unnecessary for two attorneys to travel from Massachusetts to participate in the November, 1998 special negotiations. The Court agrees that it was necessary and reasonable for only one of the Massachusetts attorneys to travel to Albuquerque and attend the special November, 1998 negotiating session. On the other hand, the Court finds that it was appropriate for both attorneys in Massachusetts to prepare, in Massachusetts, for the negotiation session. They could have conferred in Massachusetts about the matters to be covered in Albuquerque at the November, 1998 meeting and one could have traveled to Albuquerque and handled all issues. Consequently, the Court will allow the time of both Massachusetts attorneys spent in Massachusetts preparing for the Albuquerque meeting, but will disallow the travel time of one attorney as well as the duplicative time of one attorney from Massachusetts attending the special negotiating session in Albuquerque in November, 1998.
2

Case 1:87-cv-00839-JAP-KBM Document 1198 Filed 06/13/00 Page 3 of 3

The Court finds that either Attorney Steven Schwartz or Attorney Cathy Costanzo could

have ably and competently represented the Plaintiffs at the special negotiating session in November.

1998. Hence. the Court will allow attorneys' fees based on the higher rate 01'$245.00 per hour for

Steven Schwartz for travel time, time spent in Albuquerque in regard to the special negotiation

session. and related expenses, but will disallow time of Cathy Costanzo based on a normal hourly

rate of $175.00 per hour for similar services. As indicated, this is not to suggest that Attorney Cathy

Costanzo could not have properly represented the Plaintiffs by herself. It is simply a matter of

allowing attorneys' fees based on the higher hourly rate of Steven Schwartz after determining that it

was not necessary for both Steven Schwartz and Cathy Costanzo to come to Albuquerque for the

special negotiating session.

Based on this ruling, counsel are asked to confer and to come to an agreement as to the

precise amount of attorneys' fees and expenses related to the special negotiating session in

November. 1998 that should be deducted from the total award.

IT IS THEREFORE ORDERED THAT Plaintiffs' Motion for Attorneys' Fees and Expenses

filed March 6, 2000 is granted as follows:

1.

Plaintiffs' "Iitigat~on-related set aside attorneys' fees" in the amount of $17,425.21

are awarded in their entirety; and

2. Plaintiffs' attorneys' fees and expenses related to the special negotiating session in

Albuquerque during November, 1998 in the amount of$19, 326.97 are awarded with

the sole exception of attorneys' fees and expenses of one Massachusetts attorney

incurred for travel to attend and attendance of the special negotiating session in

November, 1998, which are to b

3

 
 Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

WALTER STEPHEN JACKSON, et al.,

Plaintiffs,

vs.

Civ. No. 87-0839 JP/LCS

LOS LUNAS CENTER, et al.,

Defendants,

and

THE ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, et al.,

Intervenors.

MEMORANDUM OPINION AND ORDER

On December 8, 2006, Plaintiffs filed Plaintiff’sMotion for Attorneys’ Fees and Expenses

for July-September 2006 (Doc. No. 1534). More than two months later, on February 27, 2007,

Defendants filed a Motion for Leave to Amend Defendants’ Opposition to Plaintiffs’ Motion for

Attorneys’ Fees and Expenses and Defendants’ Request that the Court Impose Clear Guidelines

for the Payment of Attorneys’ Fees (Doc. No. 1561). Having reviewed the briefs, the various

exhibits, and the relevant law, the Court will: 1) grant Defendants’ motion for leave to amend

their opposition to the extent that the Court considers it in deciding Plaintiffs’ motion for

attorneys’ fees and expenses, 2) grant Plaintiffs’ motion for attorneys’ fees and expenses in full for

Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 2 of 18
a total award of $91,540.08 (including gross receipts taxes),1 and 3) deny Defendants’ request to impose guidelines for determining attorneys’ fees and expenses. A. Discussion
On July 19, 2006, Defendants notified Plaintiffs that they would not continue to negotiate on a monthly basis attorneys’ fees and expenses incurred by Plaintiffs, and that they would not agree to an increase in billing rates for Plaintiff’s attorneys. Consequently, Plaintiffs moved for an award of attorneys’ fees and expenses under 42 U.S.C. §1988(b) and 42 U.S.C. §12205 for July through September 2006. Both §§1988(b) and 12205 allow the Court, in its discretion, to award reasonable attorney's fees and expenses to a party who prevails under 42 U.S.C. §1983 or under the Americans with Disabilities Act. Plaintiffs contend that when a party prevails by obtaining a consent decree, that party’s attorney is entitled to reasonable attorney’s fees and expenses under §§1988(b) and 12205 for monitoring the implementation of the consent decree. Defendants contend: 1) Plaintiffs are not entitled to attorneys’ fees and expenses for post-judgment compliance proceedings which are prosecutorial in nature; 2) Plaintiffs are not entitled to attorneys’ fees and expenses for their attorneys’ monitoring activities; 3) Plaintiffs are not entitled to attorneys’ fees and expenses for their attorneys’ activities which go beyond monitoring; and 4) Defendants have particularized objections to the bills and expenses sought by Plaintiffs. Defendants also assert that the Court should establish guidelines for future determinations of attorneys’ fees and expenses incurred by Plaintiffs.
1In Defendants’ amended opposition to the motion for attorneys’ fees and expenses, Defendants argue that Plaintiffs are entitled to an award of only $30,660.31.
2

Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 3 of 18
1. Were Plaintiffs’ Attorneys’ Post-Judgment Actions During July Through September 2006 Prosecutorial in Nature? Defendants contend first that Plaintiffs’ attorneys’ post-judgment actions during July through September 2006 have not entailed monitoring the implementation of the consent decree but instead have consisted of prosecutorial actions. Defendants argue that Plaintiffs should not be paid for “prosecuting” the Defendants “[s]ince there has been no post-judgment compliance proceedings creating a change in legal relationship for the period of time Plaintiffs seek compensation....” Defendants’ Brief in Support of Their Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Expenses and Defendants’ Request that the Court Impose Clear Guidelines for the Payment of Attorney’s Fees (Response)(Doc. No. 1547) at 3, filed Dec. 22, 2006. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources , 532 U.S. 598, 605 (2001)(a party is “prevailing” and therefore entitled to reasonable attorneys’ fees only if there is a“judicially sanctioned change in the legal relationship of the parties”.). In other words, Defendants argue that Plaintiffs are not prevailing parties because Plaintiffs have not yet successfully prosecuted the Defendants with respect to post-judgment activities. Defendants base their contention that Plaintiffs’ attorneys’ actions are prosecutorial in nature on the following statement in Plaintiffs’ Memorandum Brief in Support of Plaintiffs’ Motion for Attorneys’ Fees and Expenses for July-September 2006 (Plaintiffs’ Memorandum Brief)(Doc. No. 1535) at 2: “The time and expenses for which plaintiffs seek compensation for their counsel were reasonably and necessarily incurred in the continued prosecution of this action in post-judgment compliance proceedings.” Furthermore, Defendants believe that Attorney Peter Cubra’s time talking to witnesses is not part of the monitoring process but rather is time attributed
3

Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 4 of 18
“to a ‘prefiling investigation’ as part of the ‘prosecution’ of the case.” Response at 7. In Plaintiffs’ Reply to Defendants’ Opposition to Motion for Attorneys’ Fees and Expenses (Reply)(Doc. No. 1554), filed January 8, 2007, Plaintiffs clarified that they are seeking compensation for reasonable monitoring of ongoing court judgments and are not engaged in a “continued prosecution” of Defendants. Moreover, Mr. Cubra explained in his supplemental affidavit at ¶17 (attached to Reply) that the “witnesses” he speaks with are persons who contact him or other Plaintiffs’ attorneys with information that may lead the Plaintiffs to discover monitoring problems. The Court finds that Plaintiffs’ activities for July through September 2006 were not prosecutorial in nature.
2. Are Monitoring Activities Compensable? Defendants further argue that Plaintiffs’ attorneys’ monitoring activities are simply not compensable even if Plaintiffs prevailed earlier by obtaining a consent decree. Defendants note that the Joint Stipulation on Disengagement (JSD) (Doc. No. 1064) at ¶45, filed December 19, 1997, is the only court document in which compensation of Plaintiffs for monitoring expenses is mentioned in this case. The JSD states: If the Court determines that the defendants have complied with the provision of this Stipulation, or appendix or desired outcome of the Plan, it shall terminate its oversight of, but not dismiss, that provision, appendix, or outcome. In such event, the defendants shall no longer be required to compensate the plaintiffs’ counsel for time spent monitoring such provision, appendix, or outcome. Defendants contend that since the JSD was adopted, the United Supreme Court issued an opinion in Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001) which precludes Plaintiffs from receiving compensation for monitoring activities. Buckhannon, however, is not on point with respect to post-judgment
4

Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 5 of 18
monitoring. See Grier v. Goetz, 421 F.Supp.2d 1061, 1071 (M.D. Tenn. 2006)( “Buckhannon does not discuss post-judgment or post-consent-decree litigation.”); Rolland v. Romney, 292 F.Supp.2d 268, 272 (D. Mass. 2003)(“Buckhannon did not directly address the compensability of post-settlement monitoring....”). The issue in Buckhannon was whether the term “prevailing party” “includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree but has, nonetheless, achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct[, the so-called catalyst theory].” Buckhannon, 532 U.S. at 600. The Tenth Circuit, on the other hand, has ruled directly on the issue of the availability of reasonable attorney’s fees for post-judgment monitoring of consent decrees and has held that reasonable attorney’s fees are available to previously prevailing parties for postjudgment monitoring of consent decrees. Joseph A. by Wolfe v. New Mexico Dept. of Human Services, 28 F.3d 1056, 1059 (10th Cir. 1994)(citing Diaz v. Romer, 961 F.2d 1508, 1511 (10th Cir. 1992)(citing Duran v. Carruthers, 885 F.2d 1492, 1495 (10th Cir. 1989)).
The Defendants also argue that under the JSD the job of monitoring is presently being performed by the community monitor so there is no need to compensate Plaintiffs for monitoring activities. Defendants cite to a Seventh Circuit case,Alliance to End Repression v. City of Chicago, 356 F.3d 767 (7th Cir. 2004), to support that argument. Defendants, however, ignore Duran in which the Tenth Circuit rejected defendants’ argument that plaintiffs’ monitoring was unnecessary and duplicative because of the presence of both a Special Master and defendant’s own internal monitor. 885 F.2d at 1495. The Tenth Circuit stated that to accept defendants’ argument “would mean that the plaintiffs must accept reports of the Special Master and the defendants’ own compliance officer at face value and they would be unable to make any real
5

Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 6 of 18
challenge, backed with facts established by monitoring, to such reports”. Id. Moreover, Plaintiffs note that continued monitoring by Plaintiffs’ attorneys is essential in this case because the community monitor does not evaluate 75% to 80% of the class members in any way during the annual audit since only 100 class members are evaluated yearly. Supplemental Affidavit of Peter Cubra at ¶15 (attached to Reply). “In fact, there are some class members today who have never been evaluated in an annual audit, even though the audits have been conducted for nine years”. Id. at ¶16. The community monitor, therefore, does not effectively monitor implementation of the consent decree as to all Plaintiffs. Consequently, Plaintiff’s attorneys are necessary to ensure effective and complete monitoring.
Finally, Defendants argue that the fact that they have acquiesced over the years to Plaintiffs’ requests for attorneys’ fees and expenses does not preclude Defendants from refusing to pay fees and expenses now. Defendants cite to Barcia v. Sitkin, 367 F.3d 87, 109 (2nd Cir. 2004) to support that argument. Barcia states:
We need not decide whether an obligation not unambiguously mandated by a consent decree can be imposed on a state entity on the basis of the parties' conduct, although we find the proposition doubtful, see Tourangeau, 101 F.3d at 307 (“[A] district court may not impose obligations on a party that are not unambiguously mandated by the decree itself.” (citation omitted)); King, 65 F.3d at 1058 (“[A] decree is the sole source of the parties' rights.”). Barcia is inapplicable to this case because the JSD in this case actually refers to attorney’s fees for monitoring, albeit, in an indirect manner. The Court concludes that Plaintiff’s attorneys’ monitoring activities are compensable.
6

Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 7 of 18
3. Did Plaintiffs’ Attorneys Engage in Activities that Went Beyond Monitoring? Defendants argue next that several of Plaintiffs’ attorneys’ activities during July through September 2006 went beyond monitoring and therefore, are not compensable. The activities Defendants refer to involved the termination of services provided by Desert States and ResCare2 and the subsequent replacement of case managers and relocation of 66 Plaintiffs from ResCare facilities to other appropriate care givers. The New Mexico State Department of Health (DOH) apparently contracted with an organization called“the Columbus Organization” to provide additional personnel to transition the 66 Plaintiffs and others from ResCare to other care givers3. According to Defendants, the transition was completed in a very short time through the work of the community system and DOH employees. Consequently, Defendants contend that“Plaintiffs should be paid nothing for their time in attempting to micromanage the Departmen’ts transitions from these providers.” Response at 5. Even so, Defendants admit that about twelve clients, presumably Plaintiffs, still need additional services to complete the transition and that minor problems occurred during the transition but were corrected. Plaintiffs argue that such a large upheaval of services required monitoring by Plaintiff’sattorneys to ensure the well-being of the Plaintiffs who were transitioned as well as the well-being of those Plaintiffs whose transitions have not yet been completed. The Court agrees with Plaintiffs and finds that Plaintiff’s attorneys’ activities regarding the transition of Plaintiffs following the termination of services provided by Desert States and ResCare constitute compensable monitoring activities.
2Desert States provided case management services to Plaintiffs and ResCare provided Plaintiffs with day and residential services.
3Elin Howe, the internal monitor for this case, belongs to the Columbus Organization. 7

Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 8 of 18
4. Defendants’ Particularized Objections to Bills and Expenses
(a) Can the Plaintiffs Unilaterally Increase the Hourly Rate of Attorneys’ Fees?
The attorney hourly rates sought by Plaintiffs reflect a 10% increase from previous hourly rates.4 Defendants argue that Plaintiffs’ attorneys’ fees cannot be increased unilaterally.
Defendants, however, do not provide any legal support for their argument. Defendants’ argument
that Plaintiffs cannot unilaterally increase their attorney’s fees is, therefore, without merit.
(b) Are the Hourly Rates Charged by Plaintiffs’ Attorneys Reasonable?
Next, Defendants assert that if monitoring activities are compensable only reasonable
hourly rates are compensable. Defendants contend that the hourly rates for Mr. Schwartz and
Ms. Costanzo, Plaintiffs’ out-of-state attorneys, are higher than the New Mexico attorneys and
that their travel expenses are excessive. To support this contention, Defendants attack Plaintiffs’
reference to Arnold v. Arizona Dept. of Health Services, Maricopa County AZ, No. C-432355 in
which Mr. Schwartz was paid $305.25 per hour, the same hourly rate Mr. Schwartz charged in
this case. Defendants note that the parties in that case had stipulated to this hourly rate and that
the total amount of attorneys’ fees in that case was much less than those sought in this case.
Defendants also cite to Rolland v. Romney, 292 F.Supp.2d 268 (D. Mass. 2003), another case in
4Plaintiffs’ attorneys seek the following hourly rates: 1. Protection & Advocacy (P&A):
Attorney Dennis Drucker, $175 per hour, Attorney Sandra Gomez, $137.50 per hour, and Paralegal Johanne Guyton, $85.00 per hour, 2. Attorney Peter Cubra: $211.75 per hour, 3. Center for Public Representation (Massachusetts): Attorney Steven Schwartz, $305.25 per hour, and Attorney Cathy Costanzo, $218.35 per hour, 4. Attorney Ann Sims: $187.00 per hour, and 5. Attorney Phil Davis: $224.40 per hour.
8

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which Mr. Schwartz was an attorney. In that case, the court did not award Mr. Schwartz all the attorney’s fees he had asked for. Finally, Defendants cite toLewis v. New Mexico Dept. of Health, Civ. No. 99-0021 MV/JHG, a §1988 case in which the Honorable Chief District Court Judge Martha Vazquez awarded attorneys’ fees in the amount of $299,202.70 for five years of litigation.
Plaintiffs argue that Defendants’ general objections to hourly rates and their references to other cases are insufficient evidence of the unreasonableness of the hourly rates Plaintiffs request, especially in light of the well-supported affidavits and declarations submitted by Plaintiffs to establish the reasonableness of the hourly rates sought. The Tenth Circuit stated inMartinez v. Roscoe, 100 F.3d 121, 124 (10th Cir. 1996) that “generalized objections to the amount of the fees awarded, without any ‘evidence challenging the accuracy and reasonableness of the hours charged’” constitutes a waiver of the objecting party’s “right to challenge the determination that the fees awarded were reasonable.” In this case, Defendants have not provided adequate, admissible evidence of market rates which contradict the hourly rates Plaintiffs propose. Plaintiffs, on the other hand, have provided substantial evidence in the form of affidavits that the hourly rates they seek are actually below the market rate. The Court finds that the hourly rates charged by Plaintiffs’ attorneys are reasonable.
(c) Were Monitoring Related Activities Reasonably Necessary? (1) Certain Monitoring Related Activities
Defendants further argue that the attorneys’ fees sought for certain monitoring related activities during July through September 2006 were unnecessary and therefore, unreasonable. Defendants argue first that Plaintiffs are not entitled to the full amount of requested attorneys’
9

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fees for reviewing mortality review documents because Plaintiffs have not returned mortality review documents to Defendants as requested by Defendants. The appropriate avenue for compelling the return of the mortality review documents is through motion practice, not by reducing otherwise legitimate attorneys’ fees. Hence, Defendants have failed to show that Plaintiffs are not entitled to attorneys’ fees associated with the review of mortality review documents.
Second, Defendants contend that Plaintiffs are not entitled to the full amount of requested attorneys’ fees for conferences Plaintiffs’ attorneys had with the community monitor when Plaintiffs did not subsequently share the community monito’rs advice with Defendants. Defendants did not provide the Court with any legal analysis as to why this failure to share the community monitor’s advice should lead to a reduction of legitimate attorneys’ fees. Defendants also did not present an affidavit or other evidence to verify their allegation that Plaintiffs did, in fact, not share the community monitor’s advice with them. Plaintiffs are, likewise, entitled to attorneys’ fees related to attorney conferences with the community monitor.
Third, Defendants assert that attorneys’ fees for developing protocols not given to Defendants should be denied, and if a protocol is released to Defendants, the amount of attorneys’ fees associated with the development of the protocol should be reduced. Again, Defendants did not provide any legal or factual support for their assertions that Plaintiffs are not entitled to attorneys’ fees for developing protocols not released to Defendants or that those fees should be reduced. Plaintiffs are entitled to attorneys’ fees incurred with respect to the development of protocols.
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Finally, Defendants contend that quarterly monitoring and report writing is excessive and is not even required by the JSD or by any other Court order. Nonetheless, Defendants suggest that monitoring and its accompanying report writing should be limited to once a year and should relate only to Jackson requirements that have not been disengaged as required by the JSD. The Court, however, finds that quarterly monitoring and report writing are necessary and reasonable to monitor the implementation of the consent decree, thereby making those compensable activities.
(2) Was There Unwarranted Duplication of Effort by Plaintiffs’ Attorneys? Defendants argue next that there is unwarranted and unreasonable duplication of effort and cost because there are simply too many attorneys working for Plaintiffs. For example, Defendants contend that they should not pay for more than one attorney from P & A. Also, Defendants contend that the fact that Mr. Schwartz and Mr. Cubra share responsibility for coordinating the activities of Plaintiffs’ attorneys has not actually reduced costs to Defendants. Defendants further argue that not all of Plaintiffs’ attorneys need to attend the quarterly meetings nor do they all need to participate in deciding the agendas for those meetings. Other examples of alleged duplication include the participation of all of Plaintiff’sattorneys in telephone conferences, the participation of three attorneys to review new DD waiver standards, and the participation of seven attorneys to draft a letter to the Honorable Magistrate Judge Leslie Smith. Plaintiffs assert that multiple attorneys are necessary in order to effectively divide the labor in this complicated case.
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The Court acknowledges the complexity of this case as well as the need to effectively represent this particularly vulnerable class. In a class action of this magnitude, multiple attorneys are often needed to ensure that there is proper monitoring of the implementation of the consent decree as to each individual class member. Having reviewed the various affidavits and declarations submitted by Plaintiffs, the Court does not find that there was unnecessary duplication of effort.5
(3) Are Out-Of-State Attorneys Mr. Schwartz and Ms. Costanzo Necessary? Moreover, Defendants object to paying for out-of-state attorneys who do not actually monitor anything. Defendants note that the New Mexico attorneys are experienced and capable attorneys who should not need the assistance of out-of-state attorneys. The Defendants have not persuaded the Court that there is any legally sufficient reason for excluding the assistance of outstate-attorneys who specialize in class action lawsuits like this one. Depriving Plaintiffs of the best attorneys they can retain would create an injustice. Hence, Plaintiffs are entitled to the reasonable attorneys’ fees and expenses billed by out-of-state attorneys Mr. Schwartz and Ms. Costanzo. (4) Are Plaintiffs Entitled to Attorneys’ Fees and Expenses Associated with Plaintiffs’ Motion to Compel Production of Documents Sought in Plaintiffs’ Eighth Request for Production of Documents to Defendants (Motion to Compel)(Doc. No. 1514), filed June 13, 2006? Defendants assert that attorneys’ fees and expenses incurred with respect to Plaintiffs’ Motion to Compel should not be compensable because Defendants won that motion. See
5Of course, Plaintiffs should be diligent in containing fees and expenses by, among other things, limiting attendance of attorneys to hearings when feasible and reducing travel expenses by using video conferencing, if possible.
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Memorandum Opinion and Order (Doc. No. 1526), filed Aug. 31, 2006 (denying Plaintiff’s Motion to Compel). Those attorneys’ fees and expenses included travel to Las Cruces on August 8, 2006 to attend a hearing on the Motion to Compel and a status conference held by Judge Smith. Plaintiffs counter this argument by noting that their attorneys, Mr. Cubra and Mr. Davis, did not charge for time expended on working on the Motion to Compel. After reviewing the time entries of Mr. Cubra and Mr. Davis, it appears that on July 26, 2006 Mr. Davis charged .2 hours for work on the Motion to Compel and fee issues and charged .8 hours for working on an outline for oral argument, presumably for the hearing on the Motion to Compel. Ex. 2, Aug. 22, 2006 invoice at 2 and Sept. 8, 2006 invoice at 1 (attached to Affidavit of Phillip B. Davis (Doc. No. 1538), filed Dec. 8, 2006). That total amount of time (1.0 hours), however, is accounted for in Mr. Davis’ August 2006 billing in which Mr. Davis did not charge for 2.4 hours of work on the Motion to Compel despite marking by an asterisk a“no charge” of only 1.3 hours for work on the Motion to Compel. With respect to Mr. Cubra’s billings, the Court notes that even though Mr. Cubra indicated “no charges” for work on the Motion to Compel on August 3, 2006 (.4 hours) and on August 7, 2006 (.7 hours), those hours apparently were not properly deducted from Mr. Cubra’s billing, thereby inappropriately adding 1.1 hours to Mr. Cubra’s billable hours for August 2006. Nonetheless, the Court observes that because Mr. Cubra’s hourly rate of $211.75 is well below the market hourly rate of $250-275 per hour, see Affidavit of Peter Cubra (Doc. No.1536) at ¶9-¶11, filed December 8, 2006, the additional charge for 1.1 hours is readily absorbed by the below market hourly rate Mr. Cubra charged. Discounting the above minor charges, I conclude that Mr. Cubra and Mr. Davis essentially did not charge for work on Plaintiffs’ Motion to Compel.
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Plaintiffs also note that “Defendants mistakenly attribute to the motion to compel Mr. Cubra’s time in fact spent not on that motion but rather traveling to Las Cruces and meeting with Judge Smith for the status conference portion of the [August 8, 2006] hearing held at the same time as the motion to compel.” Reply at 16 n.7. Mr. Cubra and Mr. Davis are entitled to attorneys’ fees and expenses for traveling to Las Cruces to attend a status conference held before Judge Smith.
(d) Should Mr. Davis Be Compensated for His Work as a Fee Attorney? Defendants object to paying Mr. Davis for his work as a fee attorney. Although Defendants admit that there is precedence for paying a fee attorney when attorneys’ fees are litigated, Defendants argue that Mr. Davis’ review of attorneys’ fees bills could be done by a paralegal at a much reduced hourly rate. Mr. Davis argues that his role as fee counsel included not just compiling bills but also included the review and editing of those bills to insure“that plaintiffs’ counsel have all exercised billing judgment in the preparation of their time and expense records and avoids duplication in billings”, and the negotiation and resolution of billing disputes. Reply at 15. Mr. Davis further notes that he also worked on the merits of the case. Since Mr. Davis’s activities as a fee attorney involved more expertise than could be expected of a paralegal, Mr. Davis should be compensated for his work as a fee attorney as well as for his work on the merits of this case.
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(e) Expenses (1) Are Overhead Expenses Compensable?
Additionally, Defendants argue without any legal citation that overhead expenses for postage, copies, and fax charges should not be allowed.6 Defendants also appear to contend that if copy and fax charges are permitted, Plaintiffs should be paid only for copying documents provided to Defendants and only for fax charges used to communicate with Defendants. Moreover, Defendants assert that copy and fax charges should be billed at CJA rates. Under 42 U.S.C. §1988, litigation expenses incurred in civil rights cases that are normally itemized and billed in addition to the attorney’s hourly rate may be awarded as part of attorneys’ fees. See Brown v. Gray, 227 F.3d 1278, 1297-98 (10th Cir. 2000)(citations omitted). Mr. Davis indicates in his affidavit at ¶35, that the expenses Plaintiffs seek are normally itemized and billed to clients. Also, the Court notes that it is important for coordination purposes that Plaintiffs’ attorneys are able to communicate with each other through the use of copying and faxing. Consequently, copy and fax charges should not be limited to communications with only the Defendants. The Court further notes that Defendants have not provided any legal support for their argument that CJA rates must be charged for copy and fax expenses. Hence, Plaintiffs’ expenses for postage, copies, and fax charges incurred during July through September 2006 are compensable.
6Defendants claim for the first time in their amended opposition to the motion for attorneys’ fees and expenses that Lexis services also constitute an overhead expense. Defendants then state that “[t]he court should require a justification of expenses.” Amended Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Expenses at 6. Defendants, however, do not explicitly argue that Lexis services are not compensable.
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(2) Other Expenses Defendants observe in their amended opposition to Plaintiffs’ motion for attorneys’ fees and expenses that travel time and other time should be separated if travel time is paid at half the hourly rate. Defendants cite to time entries made by Ms. Sims and Mr. Cubra as examples of combining travel time with time spent on other legal work. Interestingly, Defendants do not argue that those reported times should be reduced or eliminated.7 Nonetheless, it would be helpful in the future to separate travel time from time devoted to other services where travel time is charged at less than the full hourly rate. Moreover, Defendants argue that the Court should disallow expenses unrelated to a Jackson requirement. Although Defendants specify entries that supposedly reflect nonJ-ackson expenses, the Defendants do not explain why each of those entries is not related to monitoring activities which are compensable. Without such a detailed explanation, the Court will not disallow those expenses. In sum, Plaintiffs’ expenses for July through September 2006 appear to be reasonable and compensable. 5. Defendants’ Proposed Guidelines for Awarding Attorneys’ Fees and Expenses Defendants propose the following guidelines for determining future attorney’s fees and expenses: 1. Only one Plaintiffs’ attorney should attend meetings with Defendants’ counsel, 2. Field monitoring should be done by paralegals, not attorneys; 3. Plaintiffs’ attorneys should be paid half of their hourly rate for travel; 4. State per diem rates should apply for travel ($85.00 per day); 5. Defendants should not pay for overhead expenses like photocopying;
7Additionally, Defendants allege that Mr. Cubra’s expenses for travel to Santa Fe on August 29, 2006 should be denied because that meeting was actually held in Albuquerque. Defendants have not provided any factual support such as an affidavit to prove this allegation.
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6. Defendants should not pay for participation of out-of-state attorneys; 7. Defendants will pay for only one conference call a month for Plaintiff’scounsel; 8. Defendants will not pay for time spent preparing Plaintiff’s attorneys’ bills; 9. Only one attorney from P & A will be involved in this lawsuit; 10. Defendants will not pay for discussions between members of the same law firm; and 11. There will be a yearly cap of $200,000 (100 hours per month at about $200.00 per hour). Plaintiffs argue that the Court cannot adopt any these proposed guidelines in view of the wellestablished law requiring a lodestar determination of reasonable attorneys’ fees and costs. Plaintiffs also argue that ruling that a cap should apply would be the equivalent of issuing an advisory opinion without knowing what sort of attorneys’ fees and expenses will be incurred in the future. Plaintiffs are correct. Defendants’ proposed guidelines are simply not appropriate. B. Conclusion Plaintiffs are entitled to compensation for the monitoring activities of their attorneys for July through September 2006. The hourly rates and hours of Plaintiffs’ attorneys as presented in their detailed affidavits and declarations are reasonable. The expenses Plaintiffs incurred are, likewise, reasonable. Consequently, the Court will award Plaintiffs a total of $91,540.08 (including gross receipts tax) for July through September 2006. Furthermore, the Court rejects Defendants’ proposed guidelines for determining future attorneys’ fees and expenses. IT IS ORDERED that: 1. Defendants’ Motion for Leave to Amend Defendants’ Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Expenses and Defendants’ Request that the Court Impose Clear Guidelines for the Payment of Attorneys’ Fees (Doc. No. 1561) is granted to the extent that the Court considered it in deciding Plaintiffs’ Motion for Attorneys’ Fees and Expenses for JulySeptember 2006 (Doc. No. 1534);
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Case 1:87-cv-00839-JAP-KBM Document 1584 Filed 05/24/07 Page 18 of 18 2. Plaintiffs’ Motion for Attorneys’ Fees and Expenses for July-September 2006 (Doc.
No. 1534) is granted in its entirety; 3. Defendants must pay Plaintiffs $91,540.08 by July 1, 2006 for the reasonable
attorneys’ fees and expenses Plaintiffs incurred during July through September 2006; and 4. Defendants’ request to implement proposed guidelines for determining attorneys’ fees
and expenses is denied.
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
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 Case 1:87-cv-00839-JAP-KBM Document 1665 Filed 06/24/09 Page 1 of 1
Jackson Plan of Action Agreement to Modify Sexuality Outcomes

Pursuant to ~ 13 of the Stipulation on Disengagement, the Plaintiffs and Defendants agree that Outcomes C, D, E, F, G, I, and J and the corresponding Activities in the Plan of Action Appendix 9 (sexuality) that have not already been disengaged by the Court are replaced by the following Outcomes and Activities.

Outcome C:

The Division will provide a statewide program of socialization, education, training and

supports related to sexuality for all persons with developmental disabilities

Activity 1: The Division will adopt the Sexuality Services Plan, dated February 1, 2006, that describes in detail training programs for families and providers, sexuality education and socialization skills for all persons with developmental disabilities, sexuality supports for clients ofthe Division, and therapy services for victims of abuse.

Activity 2: The plan will be coordinated and monitored by the Office of Behavioral Services and its Clinical Consultant. Monitoring, as required by this Activity, is defined as the following: assessing the adequacy of implementation, taking action as needed, and identification and reporting of any modifications needed to the Sexuality Services Plan.

Activity 3: The plan will be implemented by December 1, 2006.

Activity 4: By October 1,2006, the Division will issue policies and procedures that incorporate all ofthe central provisions of the plan.

Outcome D:

The Division will provide an effective support system for individuals exhibiting

sexually inappropriate or sexually offending behaviors.

Activity 1: The Division will adopt the Sexuality Services Plan, dated February 1, 2006, that describes in detail the process for assessing risk, evaluating needs, and planning, delivering, and monitoring supports to persons with sexually inappropriate or sexually offending behavior.

Activity 2: The plan will be coordinated, managed and monitored by the Office of Behavioral Services and its Clinical Consultant. Monitoring, as required by this Activity, is defined as the following: assessing the adequacy of implementation, taking action as needed, identification and reporting of any modifications needed to the Sexuality Services Plan.

Activity 3: The plan will be implemented by December 1, 2006.

Activity 4: By October 1,2006, the Division will issue policies and procedures that incorporate all of the central provisions ofthe plan.

Date

 
 Case 1:87-cv-00839-JAP-KBM Document 1680 Filed 08/28/09 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

WALTER STEPHEN JACKSON, et al.,

Plaintiffs,

vs.

Civ. No. 87-0839 JP/KBM

LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, et al.,

Defendants,

and

THE ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, et al.,

Intervenors.

MEMORANDUM OPINION AND ORDER

On May 20, 2009, Plaintiff/Intervenor Marjorie M. Clingenpeel filed Plaintiff/Intervenor

Majorie [sic] M. Clingenpeel’s Motion to Withdraw as Class Member (Doc. No. 1661) (“Motion

to Withdraw”). Having reviewed the briefs, including supplemental briefs, the Court determines

that the Motion to Withdraw should be denied at this time in that Cindy Clingenpeel will remain

a member of the class. Because at this point Cindy Clingenpeel will remain in the class,

Marjorie Clingenpeel rescinds her request to withdraw as a Plaintiff/Intervenor.

A. Background

Plaintiff/Intervenor Marjorie Clingenpeel is the parent and legal guardian of class

member Cindy Clingenpeel. Marjorie Clingenpeel and Cindy Clingenpeel’s case manager,

Case 1:87-cv-00839-JAP-KBM Document 1680 Filed 08/28/09 Page 2 of 10
Beverly A. Glassman, believe that it is no longer in Cindy Clingenpeel’s best interest to remain a class member in this lawsuit because she is receiving and will continue to receive appropriate care. In fact, Ms. Glassman opined that “the additional monitoring and auditing requirements imposed by Jackson are excessive and disruptive as applied to Cindy.” Affidavit of Beverly A. Glassman, Ex. 2 at ¶10 (attached to Plaintiff/Intervenor Majorie [sic] M. Clingenpeel’s Motion to Withdraw as Class Member).
Marjorie Clingenpeel brought her Motion to Withdraw under Fed. R. Civ. P. 23(e) and 41(a)(2).1 She requested that the Court allow her to withdraw as a Plaintiff/Intervenor and allow Cindy Clingenpeel to withdraw from the class. If the Court decided that Cindy Clingeenpeel should remain in the class, Marjorie Clingenpeel asked that she continue as a Plaintiff/Intervenor to protect her daughter’s interests in this lawsuit. The Plaintiffs opposed the Motion to Withdraw arguing that Cindy Clingenpeel should remain in the class. Plaintiffs, on the other hand, did not oppose Marjorie Clingenpeel’s request to withdraw as a Plaintiff/Intervenor.
Subsequent to the completion of the initial briefing of the Motion to Withdraw, Defendants decided to revise their system of monitoring the class members, and a work group established by the Honorable United States Magistrate Judge Karen B. Molzen drafted rules to minimize the impact of monitoring on class members. Judge Molzen, consequently, permitted Marjorie Clingenpeel and Plaintiffs to file supplemental briefs, which they did, on the affect of
1In footnote 4 of Plaintiff/Intervenor Majorie [sic] M. Clingenpeel’s Reply in Support of Motion to Withdraw as Class Member (Doc. No. 1668) at 10, Marjorie Clingenpeel cited to Fed. R. Civ. P. 22 as another basis for withdrawing Cindy Clingenpeel from the class. The Court believes, however, that Marjorie Clingenpeel was actually referring to Fed. R. Civ. P. 21 because she quoted from Rule 21. Rule 21 refers to misjoinder and nonjoinder of parties. There is no evidence or argument in this case that Cindy Clingenpeel was somehow initially “misjoined” as a member of the class. Rule 21 does not provide a basis for withdrawing Cindy Clingenpeel from the class.
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these new developments on the Motion to Withdraw. Despite the changes to the monitoring system, Marjorie Clingenpeel still contends that the Court should allow Cindy Clingenpeel to withdraw from the class while Plaintiffs continue to argue against that contention. B. Discussion
1. Rule 23(e) One of the Federal Rules of Civil Procedure Marjorie Clingenpeel relies on to support her request to withdraw Cindy Clingenpeel from the class is Rule 23(e). Rule 23(e) provides for the voluntary dismissal, with court approval, of “claims, issues, or defenses of a certified class....”2 Emphasis added. Plaintiffs correctly argue that Marjorie Clingenpeel’s reliance on Rule 23(e) is misplaced. Rule 23(e) does not apply to the voluntary dismissal of individual class members’ claims; Rule 23(e) applies to the voluntary dismissal of an entire class action lawsuit. See, e.g., Eckert v. Equitable Life Assurance Society of U.S., 227 F.R.D. 60, 62 (E.D.N.Y. 2005). See also Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d §1797 at 75-77 (2005); 2003 Advisory Committee Notes to Rule 23(e)(1). Hence, Rule 23(e) does not support Marjorie Clingenpeel’s request to withdraw Cindy Clingenpeel from the class. 2. Rule 41(a)(2) Marjorie Clingenpeel further relies on Rule 41(a)(2) as a basis for her request to withdraw Cindy Clingenpeel from the class. “Rule 41(a)(2) requires a court to review a motion by a plaintiff to dismiss a complaint if the action has proceeded beyond service of an answer or of a motion for summary judgment, and there is not unanimous agreement among all parties supporting the dismissal.” County of Santa Fe, N.M. v. Public Service Co. of New Mexico, 311
2Moreover, Rule 23(e) provides that certain procedures apply to a voluntary dismissal like notice to class members and a hearing.
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F.3d 1031, 1047 (10th Cir. 2002). In addition, “[d]ismissal under Rule 41(a)(2) is within the sound discretion of the court. In exercising that discretion, the purposes of Rule 41(a)(2) must be taken into account. Rule 41(a)(2) is designed ‘primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.” Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993)(citations omitted). Plaintiffs assert that Marjorie Clingenpeel has failed to show that Rule 41(a)(2) applies to individual class members, like Cindy Clingenpeel, who belong to a class action certified under Fed. R. Civ. P. 23(b)(1) and (2), the class certification rules relevant to this lawsuit.3 Plaintiffs also correctly note that Rules 23(b)(1) and (2) do not give class members the right to opt-out of the class once they are a part of that class.4 See Rule 23(c)(2).
Marjorie Clingenpeel cites to four cases in support of her request to withdraw Cindy Clingenpeel from the class under Rule 41(a)(2): Brooks v. State Board of Elections, 173 F.R.D. 552 (S.D. Ga. 1997); Wimber by and through Wimber v. Department of Social and Rehabilitation Services, 156 F.R.D. 259 (D. Kan. 1994); Catherwood v. Portland General Corp., 1992 WL 226930 (D. Ore. 1992); and Beaver Assoc. v. Cannon, 59 F.R.D. 509 (S.D. N.Y.
3A Rule 23(b)(1) class action is maintained if “prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests....” A Rule 23(b)(2) class action is maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole....”
4Unlike class actions certified under Rules 23(b)(1) or (2), a class member belonging to a class action certified under Rule 23(b)(3) has a right to opt-out of the class. See Rules 23(c)(2)(B)(v), 23(c)(3)(B), and 23(e)(4).
4

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1973). In Brooks, the named plaintiffs moved to dismiss the class action complaint under Rule
41(a)(2) because the “case ha[d] become so drained of legal merit that to further advocate would only expose plaintiffs’ counsel to F.R.Civ.P. 11 sanctions.” 173 F.R.D. at 554. The district court noted that although Rule 41(a)(2) does not require the application of Rule 23(e) which governs voluntary dismissals of class actions, “[w]ith little analysis, several courts nevertheless have applied Rule 23(e) to Rule 41(a)(2) dismissals.”5 Id. at 553-54 (citing Wimber, 156 F.R.D. at 262-63; Catherwood, 1992 WL 226930 at *2; and Dixon v. Miller, 599 F.Supp. 395, 396 (N.D. Ill. 1984)). Having decided to grant the motion to dismiss, the district court in Brooks went on to determine that if Rule 23(e) applied, no Rule 23(e) notice was required prior to dismissing the case. In Wimber, like in Brooks, the named plaintiffs filed a Rule 41(a)(2) motion to dismiss the class action complaint and the district court decided that the notice and hearing requirements under Rule 23(e) were unnecessary. In Catherwood, the named plaintiffs likewise filed a motion to dismiss the class action complaint. The district court construed the motion to dismiss to have been brought under Rule 41(a)(2) and granted the motion. The district court also concluded that Rule 23(e) notification was not necessary. In Beaver Associates, the plaintiff also moved to dismiss the class action complaint under Rule 41(a)(2). The district court in that case struck the class action allegations because the plaintiff was not a proper representative for the class and dismissed the plaintiff’s individual claims (with the exception of a derivative claim). None of these cases indicated which class action certification rule applied in each respective
5The Court notes that if a plaintiff moves for a voluntary dismissal as a matter of right prior to the filing of an answer or motion for summary judgment, that motion is subject to Rule 23(e). See Rule 41(a)(1)(A).
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case.
Brooks, Wimber, and Catherwood can be distinguished from this lawsuit in several
important aspects. To begin with, those cases involved 1) named plaintiffs who filed motions to
dismiss the entire lawsuit, and 2) the application of Rule 23(e). In this case, Marjorie
Clingenpeel only seeks to withdraw Cindy Clingenpeel, a non-plaintiff class member, from the
lawsuit. Moreover, as already mentioned, Rule 23(e) does not apply here because Marjorie
Clingenpeel does not seek to dismiss the entire class action. Furthermore, Beaver Associates is
clearly distinguishable from this case based on the fact that the district court in Beaver applied
Rule 41(a)(2) to individual claims as opposed to class action claims like those raised in this
lawsuit. Finally, all of these cases failed to consider how Rule 41(a)(2) interacts with Rule
23(b)(1) and (2) class actions which do not give class members a right to opt-out of the class.6
Since the cited case law does not support Marjorie Clingenpeel’s position that Rule
41(a)(2) provides a basis for withdrawing Cindy Clingenpeel from the class, the Court next
6The Court discovered an interesting unpublished case from the Sixth Circuit which discusses to some extent the interplay between Rule 41(a)(2) and Rule 23(b)(2) certified class actions. In Austin v. Wilkinson, 83 Fed. Appx. 24 (6th Cir. 2003), a plaintiff class representative of a Rule 23(b)(2) class action moved under Rule 41(a)(2) to dismiss only himself from the class action lawsuit. The district court did not rule on the motion to dismiss but went ahead and certified a class settlement under Rule 23(e). The Sixth Circuit stated: “Rule 23(b)(2) class actions are mandatory class actions, in that class members are given no opportunity to opt out of the action. Thus, even if through Rule 41 [Plaintiff] could have been dismissed as a class representative, he would still be bound by the settlement, if proper, as part of the settlement class.” Id. at 25 (citations and footnote omitted). The Sixth Circuit affirmed the district court’s decision to approve the settlement. One could read Austin as suggesting that even if Cindy Clingenpeel was a named plaintiff who could move for dismissal under Rule 41(a)(2), as a member of the class she would still be subject to the consent decree’s monitoring and auditing requirements due to the mandatory nature of the Rule 23(b)(1) and (2) class actions. Although Austin is somewhat persuasive, as an “unpublished” case from another Circuit, it has no precedential value and its remarks regarding Rule 41(a)(2) are mere dicta since the Sixth Circuit did not rule on the motion to dismiss. See 10th Cir. R. 32.1(a)(“Unpublished decisions are not precedential, but may be cited for their persuasive value.”).
6

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examines how to reconcile the plain language of Rule 41(a)(2) which generally allows for voluntary dismissals and the more specific Federal Rules of Civil Procedure which do not give class members in a Rule 23(b)(1) and (2) class action a right to opt-out of the class. The Tenth Circuit recognizes that “a fundamental canon of statutory interpretation holds that, when there is an apparent conflict between a specific provision and a more general one, the more specific one governs, regardless of the priority of the provisions’ enactment.” United States v. Castro-Rocha, 323 F.3d 846, 851 (10th Cir. 2003), abrogated on other grounds by Lopez v. Gonzales, 549 U.S. 47 (2006)(citing California ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1013 (9th Cir. 2000)). Applying this canon of statutory interpretation to this case, it is clear that the more specific class action rules trump the more general rules on voluntary dismissals. Hence, the Court should look to the class action rules on opting-out to resolve this Motion to Withdraw. In the alternative, the Court could also simply exercise its discretion and deny the Rule 41(a)(2) Motion to Withdraw because granting a voluntary dismissal would unfairly affect the Plaintiffs by allowing individual class members to circumvent the class action and its accompanying rules. In sum, the Court concludes that it is appropriate to apply the rules regarding class actions to analyze Marjorie Clingenpeel’s request to withdraw Cindy Clingenpeel from the class, instead of the more general Rule 41(a)(2) for voluntary dismissals.
3. The Ability of a Class Member to Opt-Out of Rule 23(b)(1) and (2) Class Actions As a starting point, it is well-established that class “certification under Rules 23(b)(1) and (2) carries no right to opt-out.” Elliott Industries Ltd. Partnership v. BP America Production Co., 407 F.3d 1091, 1104 (10th Cir. 2005). Marjorie Clingenpeel, however, correctly observes in her reply that the district courts have, on occasion, exercised their discretion in allowing class
7

Case 1:87-cv-00839-JAP-KBM Document 1680 Filed 08/28/09 Page 8 of 10
members to opt-out of these types of class actions.7 The authority which permits class members to opt-out in Rule 23(b)(1) and (2) class actions arises under Rule 23(d)(1)(e). “Rule 23(d) provides district courts with the means to facilitate ‘the fair and efficient conduct of the action.’” Messier v. Southbury Training School, 183 F.R.D. 350, 354 (D. Conn. 1998)(citing County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1304 (2nd Cir. 1990) and quoting 1966 Advisory Committee Notes to Rule 23(d)).
The case law on when a district court can use its discretion to allow class members to opt-out of a Rule 23(b)(1) or (2) class action is, however, unsettled. See Eubanks v. Billington, 110 F.3d 87, 94-95 (D.C. Cir. 1997); 146 A.L.R. Fed. 563 at §2 (1998)(“courts have reached inconsistent results on whether members of classes certified under Rule 23(b)(1) or 23(b)(2) may opt out of the class.”). Nonetheless, several general principles have arisen from the cases with respect to this issue. For instance, “as a general matter, courts should not permit opt-outs when doing so would undermine the policies behind (b)(1) or (b)(2) certification....” Eubanks, 110 F.3d at 94-95. With respect to Rule 23(b)(2) class actions, “[t]he theory underlying the less stringent notice requirements is that in the Rule 23(b)(2) actions there is purportedly a higher degree of ‘cohesiveness or unity in the class’ than in Rule 23(b)(3) class actions, which reduces the need for notice and exclusion.” Rubenstein, Conte, and Newberg, 5 Newberg on Class Actions at §16:17 (4th ed.)(updated June 2009). “This cohesiveness is claimed to result from both the group nature of the harm alleged and the broad character of the relief sought.” Penson v. Terminal Transport Co., Inc., 634 F.2d 989, 994 (5th Cir. 1981). Moreover, “the broad unitary relief sought [in Rule 23(b)(2) class actions] would necessarily apply to all members of the class,
7Curiously, Plaintiffs did not respond to this observation in their surreply. 8

Case 1:87-cv-00839-JAP-KBM Document 1680 Filed 08/28/09 Page 9 of 10
even those opting out of the lawsuit.” 5 Newberg on Class Actions at §16:17. To summarize, courts have permitted opt-outs in Rule 24(b)(2) class actions as well as in Rule 24(b)(1) class actions to protect absent class members’ interests when those interests diverge from that of the class. Id. See also 32B Am. Jur.2d Federal Courts at §1797 (updated May 2009)(“a court may conclude that the claims of particular class members are unique or sufficiently distinct from the claims of the class as a whole, and that opt-outs should be permitted on a selective basis.”). On the other hand, allowing opt-outs “in Rule 23 (b)(1) or (b)(2) actions, which usually seek declaratory or injunctive relief, would be counterproductive. The fact that some class members may be satisfied with the challenged activity is irrelevant when relief would be beneficial to all members of the class.” 5 Newberg on Class Actions at §16:17.
When these principles are pieced together, in combination they suggest that a district court would abuse its discretion-in ensuring a “fair and efficient conduct” of a Rule 23(b)(1) and (2) class action-if it were to grant an opt-out for a particular class member when the class already adequately protects the interests of that class member. In other words, a class member seeking to opt-out must have an interest which is unique from the interests of the class so that the class would be unable to adequately protect that unique interest. Simply asserting that one is satisfied with the treatment received by a defendant would not constitute a unique interest which the class cannot adequately protect.
In this case, Marjorie Clingenpeel requested that Cindy Clingenpeel be withdrawn from the class because she is receiving appropriate care and will continue to receive appropriate care, and because Marjorie Clingenpeel was unhappy with the excessive and disruptive monitoring and auditing of Cindy Clingenpeel. As noted, satisfaction with the status quo is insufficient to justify a discretionary opt-out. Moreover, since Defendants have agreed to change their
9

Case 1:87-cv-00839-JAP-KBM Document 1680 Filed 08/28/09 Page 10 of 10
procedures to address the monitoring and auditing concerns expressed by Marjorie Clingenpeel, it appears that the class will adequately protect Cindy Clingenpeel’s interest in not being excessively monitored and audited. At this time there does not appear to be a unique reason why Cindy Clingenpeel should be permitted to opt-out of the class and otherwise disturb the unity and cohesiveness of this Rule 23(b)(1) and (2) class action. Accordingly, the Court declines to exercise its discretion to permit Cindy Clingenpeel to opt-out of the class now. However, this ruling will not prohibit Marjorie Clingenpeel from again requesting the same relief in the future if excessive monitoring and/or auditing were to recur. C. Conclusion
Cindy Clingenpeel will remain a member of the class. Since Cindy Clingenpeel will remain in the class, Marjorie Clingenpeel, per her request, will remain as a Plaintiff/Intervenor.
IT IS ORDERED that: 1. Plaintiff/Intervenor Majorie [sic] M. Clingenpeel’s Motion to Withdraw as Class Member (Doc. No. 1661) is denied in that Cindy Clingenpeel will remain a member of the class; and 2. Since Marjorie Clingenpeel rescinds her request to withdraw as a Plaintiff/Intervenor, she will remain a Plaintiff/Intervenor.
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
10

 
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Feb 1810 11:50Ca ase 1P:8at7ti-Pceva-0re0e839-JAP-KBM Document 1688 Filed 70821/-12589/-170181Page 1 of 2 p.2

11\ THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

\VALTER STEVEN JACKSON, et aI.,
Plainti rrs,

vs.

CIV-87-0839./P/LCS

LOS LUI\'AS CENTER. et al., Defendams,

and

THE ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, ct aI.,

Intervenor. Stipulated Agreement on Disengagement Process For 1998 Audit Recommendations and
Appendix A Area, The Plaintiffs and Derendants enter into this Agreement to clarify the process ror disengagement oflhose remaining obligations under the Order Adopting Joint Stipulation entered May 5,2005, (Appendix A) and obligations incurred as a result of the 1998 Audit Recommendations. Pursuant to this Agreement. those obligation will now be resolved in accordance with 'I~ 44-45 of the .Ioint Stipulation on Disengagement (.ISD) and adoption orthase procedures constitutes the preferred mechanism Cor disengagement oflhose obligalions by the parties.

Feb 1810 11 :5Oa

Patti Pearce

781-259-7181

p.3

Case 1:87-cv-00839-JAP-KBM Document 1688 Filed 02/18/10 Page 2 of 2

Consistent with the JSD, the defendants may seek to disengage a topic area in Appendix A (i.e. case management, quality enhancement, incident management, behavior, crisis, sexuality, supported employment. DVR. and day services) when they believe that all action steps in that IOpic area have been completed. Consistent with prior practices of the parties. the defendants may seek to disengage the 1998 audit recommendations when all recommendations lor that year have been completed.
Failure to implement a topic area in Appendix A will not prevent partial disengagement orthe Court's supervision. Plaintins may file a motion 10 reestablish Ihe Court's supervision over such provision if they believe the partially disengaged obligation has 110t been maintained.
WHEREFORE the parties seek Ihat all provisions oflhe Joint Slipulation on Disengagement be applied and applicable 10 tJ1Cse remaining obligations orthe Appendix A and 1998 AIJdil Recommendations.
Rcspecttully Submilled.
~.'''''.~J,\,r'r ~DeEfeSndqan-ls.-·~(~)/
(
Sleven J. Sci" ar12, Esq. Center for I' lie Representation 22 Green Strcel North Hampton, MA 01060 Al10mey for Plaintiffs

 
 Case 1:87-cv-00839-JAP-KBM Document 1798 Filed 01/27/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

WALTER STEPHEN JACKSON, et al.,

Plaintiffs,

v.

Civ. No. 87-0839 JP/KBM

LOS LUNAS HOSPITAL AND TRAINING SCHOOL, et al.,

Defendants,

and

THE ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, et al.,

Intervenors pro se.

ORDER

On July 15, 2010, Plaintiffs filed Plaintiffs’ Motion for Further Remedial Relief to

Remedy Noncompliance (Doc. No. 1731) (Motion for Relief), which is fully briefed. Having

reviewed the Motion for Relief, I decided that an evidentiary hearing on the Motion for Relief

would be necessary to decide the issues raised by Plaintiffs. That evidentiary hearing is

currently set for July 11, 2011. The parties are now preparing for the evidentiary hearing by

engaging in discovery, obtaining expert witnesses, and compiling facts that can be used at the

evidentiary hearing. Considering that the factual record will not be complete until after the

evidentiary hearing is concluded, it appears to the Court that the Motion for Relief, as originally

filed, will need to be rewritten to reflect that factual record. Consequently, for administrative

Case 1:87-cv-00839-JAP-KBM Document 1798 Filed 01/27/11 Page 2 of 2 purposes, I will deny the Motion for Relief without prejudice to the filing of a second motion for remedial relief which is supported by and cites to the evidence admitted at the evidentiary hearing. Also, the parties must in the Pretrial Order specify exactly what issues will be addressed at the evidentiary hearing.
IT IS ORDERED that: 1. Plaintiffs’ Motion for Further Remedial Relief to Remedy Noncompliance (Doc. No. 1731) is denied without prejudice to the filing of a second motion for remedial relief that incorporates the factual record established at the evidentiary hearing; and 2. the parties must specify in the Pretrial Order the exact issues which will be addressed at the evidentiary hearing.
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
2

 
 Case 1:87-cv-00839-JAP-KBM Document 1897 Filed 12/14/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

WALTER STEPHEN JACKSON, et al.,

Plaintiffs,

vs.

Civ. No. 87-0839 JP/KBM

LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, et al.,

Defendants,

and

ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, et al.,

Intervenors pro se.

MEMORANDUM OPINION AND ORDER

Defendants ask the Court to strike PLAINTIFFS’ MEMORANDUM OF LAW

REGARDING WHETHER ALL REMAINING OBLIGATIONS OF THE CASE SHOULD BE

TERMINATED (Doc. No. 1883) (Termination Brief), filed Nov. 2, 2011. See DEFENDANTS’

MOTION TO STRIKE PLAINTIFFS’ PLEADING ENTITLED PLAINTIFFS’

MEMORANDUM OF LAW REGARDING WHETHER ALL REMAINING OBLIGATIONS

OF THE CASE SHOULD BE TERMINATED [DOC. 1883] (Doc. No. 1890) (Motion to Strike),

filed Nov. 21, 2011. Having reviewed the briefs and relevant law, the Court determines that it

should not strike the Termination Brief.

Case 1:87-cv-00839-JAP-KBM Document 1897 Filed 12/14/11 Page 2 of 5
A. Background On April 26, 2011, Defendants filed DEFENDANTS’ RULE 60(b)(5) MOTION AND
SUPPORTING MEMORANDUM TO TERMINATE ALL REMAINING ORDERS IN JACKSON et al. v. FSH & TS et al. (Doc. No. 1830) (Defendants’ Rule 60(b)(5) Motion). At the pretrial conference on the following day, the Court held Defendants’ Rule 60(b)(5) Motion in abeyance until after the evidentiary hearing on Plaintiffs’ contentions that Defendants have been in noncompliance with Court orders, and that Defendants have violated federal law. Subsequent to the June 2011 evidentiary hearing, the Court sent a letter to counsel on August 19, 2011regarding what the Court expected in the proposed findings of fact and conclusions of law stemming from the evidentiary hearing. Because the Defendants’ Rule 60(b)(5) Motion was still pending, the Court advised counsel to include in the proposed findings of fact and conclusions of law “the issue of whether this case should be terminated.” Aug. 19, 2011 letter at 3.
Then, at a status conference held on October 25, 2011, Defendants stated that they planned to file a renewed Rule 60(b)(5) motion with additional arguments and evidence. The parties agreed that limited discovery would be needed with respect to a renewed Rule 60(b)(5) motion. The Court noted that it would make sense for Defendants to decide whether to file a renewed Rule 60(b)(5) motion after the Court had ruled on Plaintiffs’ noncompliance and federal law violation claims. Although the discussion at the status conference clarified how Defendants would proceed with Defendants’ pending Rule 60(b)(5) Motion, Plaintiffs, nonetheless, filed a Termination Brief on November 2, 2011 in response to that motion. As of November 2, 2011, the Court had not yet ruled on the noncompliance and federal law violation claims, Defendants had not yet filed a renewed Rule 60(b)(5) motion, and limited discovery on the Rule 60(b)(5) issues had not been conducted. In fact, Plaintiffs concede in their Termination Brief at 2-3 n. 3
2

Case 1:87-cv-00839-JAP-KBM Document 1897 Filed 12/14/11 Page 3 of 5
that “[i]n the event that the defendants re-file their motion, the plaintiffs will conduct the discovery needed to address the defendants’ factual assertions and then file a formal response to the re-filed motion.” B. Discussion
Fed. R. Civ. P. 12(f) states that a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A plain reading of Rule 12(f) clearly indicates that a motion to strike applies only to pleadings, not to briefs. See Fed. R. Civ. P. 7(a) (Pleadings only include a complaint; an answer to a complaint, counterclaim, crossclaim, or third-party complaint; a third-party complaint; and “if the court orders one, a reply to an answer.”). Courts have found that “[m]otions to strike are disfavored and infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” J & J Sports Productions, Inc. v. Luhn, 2011 WL 5040709 *1 (E.D. Cal.) (slip copy). Moreover, a motion to strike should be granted only if a party would be prejudiced if the subject of the motion to strike is not stricken. Id. Courts have, however, modified Rule 12(f) to include an exception which allows a court to “‘choose to strike a filing that is not allowed by local rule, such as a surreply filed without leave of court.’” Miller v. Monumental Life Ins. Co., 761 F.Supp.2d 1123, 1143 (D.N.M. 2009) (quoting Superior Prod. P’ship v. Gordon Auto Body Parts Co., 2008 WL 2230774 *1 (S.D. Ohio) (unpublished decision)). See also In re Hopkins, 1998 WL 704710 *3 n. 6 (10th Cir.) (unpublished decision) (“As all of Hopkins’ briefs were non-complying, ... it was well within the discretion of the district court to strike them.”); Cheek v. Garrett, 2011 WL 839861 *2 (D. Utah) (slip copy) (“Because this second memorandum is not in compliance with Utah Federal Court Rules for filing memorandum and because Plaintiffs did not seek the
3

Case 1:87-cv-00839-JAP-KBM Document 1897 Filed 12/14/11 Page 4 of 5
Court[’]s permission to avoid [non]compliance, Plaintiffs’ second memorandum will be stricken.”).
Although Plaintiffs should have realized at the October 25, 2011 status conference that the Court did not expect Plaintiffs to file a termination brief until after Defendants had decided to file a renewed Rule 60(b)(5) Motion and limited discovery was conducted on the termination issues, the Court recognizes that the Defendants’ Rule 60(b)(5) Motion is still pending, albeit in abeyance, and that the August 19, 2011 letter advised counsel to address the termination issue. Even so, the Termination Brief is simply premature. As Plaintiffs admit in their Termination Brief, if and when Defendants file a renewed Rule 60(b)(5) motion, the Plaintiffs will file a new response which will be based on new limited discovery and perhaps based on new arguments as well. The Court is, therefore, not inclined to consider the Termination Brief at this time since Plaintiffs will probably file a new termination brief at the appropriate time.
In addition, Rule 12(f) does not apply to briefs nor does the court-made exception to Rule 12(f) apply to the Termination Brief which Plaintiffs apparently filed to comply with the Court’s August 19, 2011 letter. Furthermore, none of the parties will be prejudiced if the Termination Brief is not stricken since the Court will not consider the Termination Brief at this time and the Plaintiffs will have a full and fair opportunity to respond to a renewed Rule 60(b)(5) motion. The Court will consider the Termination Brief, if necessary, only once a renewed Rule 60(b)(5) motion is filed. Because motions to strike are disfavored, especially if the matter to be stricken is relevant to the litigation, the Court will deny the Motion to Strike.
IT IS ORDERED that DEFENDANTS’ MOTION TO STRIKE PLAINTIFFS’ PLEADING ENTITLED PLAINTIFFS’ MEMORANDUM OF LAW REGARDING WHETHER ALL REMAINING OBLIGATIONS OF THE CASE SHOULD BE
4

Case 1:87-cv-00839-JAP-KBM Document 1897 Filed 12/14/11 Page 5 of 5 TERMINATED [DOC. 1883] (Doc. No. 1890) is denied.
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
5

 
 Case 1:87-cv-00839-JAP-KBM Document 1911 Filed 02/16/12 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

WALTER STEPHEN JACKSON, et al.,

Plaintiffs,

vs.

Civ. No. 87-0839 JP/KBM

LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, et al.,

Defendants,

and

ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, et al.,

Intervenors pro se.

MEMORANDUM OPINION AND ORDER

Plaintiffs contend that it is premature to respond to DEFENDANTS’ OPPOSED

MOTION FOR PARTIAL DISENGAGEMENT AND MEMORANDUM IN SUPPORT

REGARDING PLAN OF ACTION APPENDIX 15, ASHTON RECOMMENDATIONS (Doc.

No. 1898) (Motion for Partial Disengagement), filed December 15, 2011. See PLAINTIFFS’

OPPOSED MOTION FOR ADMINISTRATIVE DISMISSAL OF, OR IN THE

ALTERNATIVE FOR STAY OF BRIEFING ON, OR IN THE ALTERNATIVE FOR AN

EXTENSION OF TIME TO RESPOND TO DEFENDANTS’ OPPOSED MOTION FOR

PARTIAL DISENGAGEMENT AND MEMORANDUM IN SUPPORT REGARDING PLAN

OF ACTION APPENDIX 15, ASHTON RECOMMENDATIONS (Doc. No. 1905) (Motion to

Case 1:87-cv-00839-JAP-KBM Document 1911 Filed 02/16/12 Page 2 of 4
Delay Response), filed Jan. 6, 2012. Plaintiffs argue that the issue of whether Defendants have complied with Appendix 15 of the Plan of Action (POA), also known as the Ashton Recommendations, is already before the Court in PLAINTIFFS’ RENEWED MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NONCOMPLIANCE (Doc. No. 1888) (Renewed Noncompliance Motion), filed November 14, 2011. Consequently, Plaintiffs assert that it is premature to address the Motion for Partial Disengagement before the Court rules on the Renewed Noncompliance Motion. Plaintiffs request that the Court dismiss the Motion for Partial Disengagement without prejudice and grant Defendants leave to refile the Motion for Partial Disengagement after the Court rules on the Renewed Noncompliance Motion. In the alternative, Plaintiffs request that the Court stay briefing on the Motion for Partial Disengagement until 30 days after the Court rules on the Renewed Noncompliance Motion. Also, in the alternative, Plaintiffs request that the Court extend the time to respond to the Motion for Partial Disengagement until 14 days after Plaintiffs have deposed Jennifer Thorne-Lehman and Janet Simons, and received the transcripts of those depositions.
Defendants oppose the Motion to Delay Response for several reasons. First, Defendants contend that the issue of Defendants’ compliance with Appendix 15 of the POA is not before the Court in the Renewed Noncompliance Motion. Second, Defendants contend that there is no reason for Plaintiffs to depose Jennifer Thorne-Lehman and Janet Simons. Third, Defendants contend that Plaintiffs fail to cite legal authority for dismissing the Motion for Partial Disengagement without prejudice.
2

Case 1:87-cv-00839-JAP-KBM Document 1911 Filed 02/16/12 Page 3 of 4
Plaintiffs clearly raise the issue of Defendants’ compliance with Appendix 15 of the POA, i.e., the Ashton Recommendations, in the Renewed Noncompliance Motion at 18-19, 21.1 For example, Plaintiffs assert in the Renewed Noncompliance Motion at 21 that “Defendants’ persistent failure to implement the recommendations made by Ellen Ashton ... are having catastrophic effects on the health, and even lives, of class members.” In addition, PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (Doc. No. 1884) at 62-66, 191 raise the issue of Defendants’ compliance with the Ashton Recommendations.
Since compliance with Appendix 15 of the POA is an issue which is raised in the Renewed Noncompliance Motion and will necessarily be addressed when the Court rules on the Renewed Noncompliance Motion, the Court determines that it is premature at this time to brief the Motion for Partial Disengagement. The Court believes that the best course of action to take is to dismiss the Motion for Partial Disengagement without prejudice and to grant Defendants leave to refile that motion after the Court rules on the Renewed Noncompliance Motion. Moreover, Plaintiffs’ failure to cite to legal authority to support their request to dismiss the Motion for Partial Disengagement without prejudice is not fatal to that request. It is wellestablished that courts have an “inherent power to regulate [their] docket and promote judicial efficiency.” Air Conditioning, Heating and Refrigeration Institute v. City of Albuquerque, ___ F.Supp.2d ___, 2010 WL 8056412 *7 (D.N.M.) (unpublished decision) (citing Stafford v. United States, 208 F.3d 1177, 1179 (10th Cir. 2000)). Since the Court will dismiss the Motion for
1On page 18 of the Renewed Noncompliance Motion, Plaintiffs refer to Activity #5 of Appendix 12 (Desired Outcome A) of the POA which states that the “DD Division will implement the relevant recommendations of Ellen Ashton from her audits performed at Los Lunas.” POA at 128. On August 10, 2010, the parties stipulated to creating a new Appendix 15 of the POA which entails Activity #5 and its Ashton Recommendations. STIPULATION (Doc. No. 1744) at 2.
3

Case 1:87-cv-00839-JAP-KBM Document 1911 Filed 02/16/12 Page 4 of 4
Partial Disengagement without prejudice and will grant Defendants leave to refile that motion after the Court rules on the Renewed Noncompliance Motion, it is unnecessary at this time to address Defendants’ contention that Plaintiffs do not have an adequate justification for conducting further depositions in order respond to the Motion for Partial Disengagement.
IT IS ORDERED that 1. PLAINTIFFS’ OPPOSED MOTION FOR ADMINISTRATIVE DISMISSAL OF, OR IN THE ALTERNATIVE FOR STAY OF BRIEFING ON, OR IN THE ALTERNATIVE FOR AN EXTENSION OF TIME TO RESPOND TO DEFENDANTS’ OPPOSED MOTION FOR PARTIAL DISENGAGEMENT AND MEMORANDUM IN SUPPORT REGARDING PLAN OF ACTION APPENDIX 15, ASHTON RECOMMENDATIONS (Doc. No. 1905) is granted; 2. DEFENDANTS’ OPPOSED MOTION FOR PARTIAL DISENGAGEMENT AND MEMORANDUM IN SUPPORT REGARDING PLAN OF ACTION APPENDIX 15, ASHTON RECOMMENDATIONS (Doc. No. 1898) is dismissed without prejudice; and 3. Defendants are granted leave to refile DEFENDANTS’ OPPOSED MOTION FOR PARTIAL DISENGAGEMENT AND MEMORANDUM IN SUPPORT REGARDING PLAN OF ACTION APPENDIX 15, ASHTON RECOMMENDATIONS (Doc. No. 1898) after the Court rules on PLAINTIFFS’ RENEWED MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NONCOMPLIANCE (Doc. No. 1888).
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
4

 
 Case 1:87-cv-00839-JAP-KBM Document 1930 Filed 10/12/12 Page 1 of 206

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

WALTER STEPHEN JACKSON, et al.,

Plaintiffs,

vs.

Civ. No. 87-0839 JP/KBM

LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, et al.,

Defendants,

and

ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, et al.,

Intervenors pro se.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER

Case 1:87-cv-00839-JAP-KBM Document 1930 Filed 10/12/12 Page 2 of 206
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Pertinent Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The Court’s December 28, 1990 MEMORANDUM OPINION AND ORDER (Doc. No. 679).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Relevant Portions of the JSD and POA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. APPENDIX A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 D. Appointment of Sue Gant, Ph.D, as the Rule 706 Expert. . . . . . . . . . . . . 11
II. Recent Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
FINDINGS OF FACT AND CONCLUSIONS OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
I. Standard for Determining Substantial Compliance. . . . . . . . . . . . . . . . . . . . . . . . 16
II. Whether Defendants have Substantially Complied with General Directives and Whether Defendants have Attempted to Comply with Recommendations by the 706 Expert and by the Community Monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. Discussion of General Directives and Recommendations by the 706 Expert and by the Community Monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. JSD ¶ 31: Defendants to implement the systemic recommendations of the 1998 community audit or CPR. . . . . . . . . . . . . . . . . . . . . . 18 2. JSD ¶ 33: If Defendants do not meet the rate of continuous improvement required in the JSD, Defendants will develop regional corrective action plans approved by the Community Monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3. Communication guidelines require Defendants to report actions they have taken to implement individual audit or CPR recommendations every 30, 60, and 90 days. . . . . . . . . . . . . . . . . 19 4. Compliance with the 706 Expert’s Findings and Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 5. Compliance with the Community Monitor’s Findings and Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 B. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 C. Conclusions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
III. Whether Defendants have Substantially Complied with Their Obligations under the JSD, POA, and APPENDIX A to Provide Adequate Health Care to Class Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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A. Defendants’ Obligations under the JSD, POA, and APPENDIX A to Provide Adequate Health Care to Class Members.. . . . . . . . . . . . . . . . . . 31 1. Medical Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 2. Quality Enhancement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 3. Summary of Issues Affecting Defendants’ Ability to Comply with Health Care Obligations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
B. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 C. Conclusions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
IV. Whether Defendants have Substantially Complied with Their Obligations under the JSD, POA, and APPENDIX A to Provide a Reasonably Safe Environment to Class Members.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 A. Defendants’ Obligations under the JSD, POA, and APPENDIX A to Provide a Reasonably Safe Environment to Class Members. . . . . . . . . . . 86 1. Quality Enhancement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 2. Incident Management.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 3. Summary of Issues Affecting Defendants’ Ability to Comply with Safety Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 B. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 C. Conclusions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
V. Whether Defendants have Substantially Complied with Their Obligations under the JSD, POA, and APPENDIX A to Provide Supported Employment to Class Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 A. Defendants’ Obligations under the JSD, POA, and APPENDIX A to Provide Supported Employment to Class Members. . . . . . . . . . . . . . . . 122 1. JSD and POA Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 2. APPENDIX A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 3. JSD ¶¶ 32 and 33: Continuous Improvement of Supported Employment Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 4. Summary of Issues Affecting Defendants’ Ability to Comply with Supported Employment Obligations. . . . . . . . . . . . . . . . . . . . . . 150 B. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 C. Conclusions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
VI. Whether Defendants have Violated § 504 of the Rehabilitation Act and Title II of the ADA by Discriminating Against Severely Disabled Class Members with Respect to the Provision of Health Care Services and Supported Employment Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 A. Discussion of Rehabilitation Act and ADA Claims. . . . . . . . . . . . . . . . 159 1. Standards for Discrimination Based on Disability Under the Rehabilitation Act and the ADA. . . . . . . . . . . . . . . . . . . . . . . . . 160 2. Health Care Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 3. Supported Employment Services. . . . . . . . . . . . . . . . . . . . . . . . . 170 4. Summary of Rehabilitation Act and ADA Issues. . . . . . . . . . . . 176

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B. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 1. Health Care Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 2. Supported Employment Services. . . . . . . . . . . . . . . . . . . . . . . . . 179
C. Conclusions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 1. Health Care Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 2. Supported Employment Services. . . . . . . . . . . . . . . . . . . . . . . . . 181
VII. Remedies for Substantial Noncompliance with the JSD, POA, and APPENDIX A in the Areas of Health Care, Safety, and Supported Employment.. . . . . . . . . . . 182 A. Appointment of a Jackson Compliance Administrator. . . . . . . . . . . . . . 183 B. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 C. Final Comments on Plaintiffs’ Requests for Remedies. . . . . . . . . . . . . . 195 D. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 E. Conclusions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

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INTRODUCTION Plaintiffs contend that Defendants have not complied with the November 19, 1997 JOINT STIPULATION ON DISENGAGEMENT (JSD) and accompanying PLAN OF ACTION (POA)1 and with the 2005 APPENDIX A2 by failing to provide class members with (1) adequate health care, (2) a reasonably safe environment, and (3) supported employment services. See PLAINTIFFS’ RENEWED MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NONCOMPLIANCE (Doc. No. 1888) (Renewed Noncompliance Motion), filed Nov. 14, 2011. Plaintiffs also assert that Defendants’ failure to provide adequate health care to severely disabled class members and to afford those class members supported employment opportunities violates § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act) and the Americans with Disabilities Act (ADA) by discriminating against persons with severe disabilities. See id.; PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR FURTHER REMEDIAL RELIEF BASED UPON VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT AND THE AMERICANS WITH DISABILITIES ACT (Doc. No. 1896), filed Dec. 9, 2011. In response, Defendants proclaim they have substantially complied with the provisions of the JSD, POA, and APPENDIX A that are at issue here and that they have not violated the Rehabilitation Act or the ADA. See DEFENDANTS’ RESPONSE TO PLAINTIFFS’ RENEWED MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NONCOMPLIANCE AND PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR FURTHER
1The JSD and POA are both attached to the December 19, 1997 ORDER APPROVING STIPULATION ON DISENGAGEMENT (Doc. No. 1064))
2APPENDIX A is attached to the May 20, 2005 JOINT STIPULATION ON AGREED ACTIONS TO COMPLY WITH JOINT STIPULATION ON DISENGAGEMENT AND PLAN OF ACTION AND TO RESOLVE PENDING MOTIONS TO SHOW CAUSE AND TO REENGAGE (Doc. No. 1473), which the Court adopted on May 20, 2005.
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REMEDIAL RELIEF BASED UPON VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT AND THE AMERICANS WITH DISABILITIES ACT (Doc. No. 1899), filed Dec. 23, 2011.
Plaintiffs ask the Court to appoint a Jackson Compliance Administrator to ensure that Defendants fully comply with the JSD, POA, and APPENDIX A, if the Court determines that Defendants have not substantially complied with the JSD, POA, and APPENDIX A. See PROPOSED ORDER APPOINTING JACKSON COMPLIANCE ADMINISTRATOR (Doc. No. 1882-1), filed Nov. 2, 2011. See also PLAINTIFFS’ MEMORANDUM CONCERNING THE COURT’S AUTHORITY TO APPOINT A JACKSON COMPLIANCE ADMINISTRATOR (Doc. No. 1882), filed Nov. 2, 2011; DEFENDANTS’ MEMORANDUM REGARDING THE COURT’S AUTHORITY TO APPOINT A JACKSON COMPLIANCE ADMINISTRATOR (Doc. No. 1885), filed Nov. 2, 2011. In addition, Plaintiffs want the Court to order Defendants to fully implement the Community Monitor’s 2009-2010 health, safety, and supported employment recommendations and the Rule 706 Expert’s 2010 and 2011 health and safety recommendations. Plaintiffs also request an order requiring Defendants to identify promptly all deficiencies in nursing and medical care coordination at provider agencies which need corrective action. Moreover, Plaintiffs petition the Court to make Defendants complete, within 18 months, all of the outstanding outcomes and activities in the JSD and POA and the outstanding actions in APPENDIX A which relate to health, safety, and supported employment. These include the implementation of Ellen Ashton’s medical and nursing care recommendations3
3Ms. Ashton was a consultant for Defendants. 2

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and Elin Howe’s recommendations in her October 2003 report,4 and the resolution of the medical
“areas of concern” identified in the December 2003 report by Dr. James Willcox, a national expert on medical care for developmentally disabled persons who worked with Ms. Howe.5
Finally, Plaintiffs seek an award of reasonable attorneys’ fees and costs for litigating their
noncompliance issues.
BACKGROUND
I. Pertinent Orders.
A. The Court’s December 28, 1990 MEMORANDUM OPINION AND ORDER (Doc. No. 679).
In July 1987, the Supporters of Developmentally Disabled New Mexicans, Inc. and
twenty-one developmentally disabled persons filed this civil rights class action lawsuit to
challenge the institutionalization of developmentally disabled persons at the Fort Stanton
Hospital and Training School (FSH & TS) and at the Los Lunas Hospital and Training School (LLH & TS), facilities operated by the State of New Mexico.6 Plaintiffs sought “the expansion
of community services for the developmentally disabled and the transfer of the residents of LLH
& TS and FSH & TS to community residential settings.” Jackson, 757 F.Supp. at 1252. In June
4Defendants had retained Ms. Howe as the Internal Monitor. She resigned in 2007 from that position. Since then, the position of Internal Monitor has remained vacant.
5Dr. Willcox worked through the Columbus Organization and conducted death reviews for Plaintiffs until July 2010. Physicians from the University of New Mexico now conduct those death reviews.
6The Jackson class consists of all persons who were residents at FSH & TS and LLH & TS on the date of the filing of the complaint on July 8, 1987, all persons who became residents of those institutions during the pendency of the litigation, and “all persons who have been transferred from FSH &TS or LLH & TS to skilled nursing facilities, intermediate care facilities, homes for the aged and similar facilities, and whose services are funded in whole or in part by defendants.” Jackson by Jackson. v. Fort Stanton Hosp. and Training School, 757 F.Supp. 1243, 1257 (D.N.M. 1990), reversed in part by 964 F.2d 980 (10th Cir. 1992).
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1988, the Court allowed more than 125 parents and guardians of FSH & TS and LLH & TS residents to intervene in the lawsuit. The Court also permitted ARC of New Mexico to intervene. The intervenors sought “to require defendants to bring the institutions into compliance with constitutional and statutory mandates, but they oppose[d] plaintiffs’ efforts to close LLH & TS and FSH & TS and to force the transfer of residents of those institutions into community-based facilities.” Id. at 1255. On May 23, 1989, the Court certified the class and divided the class into two subclasses: (1) thirteen named Plaintiffs who sought to close LLH & TS and FSH & TS and to have residents transferred to community placements, and (2) intervenors who opposed the closure of LLH & TS and FSH & TS but sought to improve those institutions.
After a prolonged trial, the Court entered a MEMORANDUM OPINION AND ORDER on December 28, 1990. The Court determined that Defendants had violated both § 504 of the Rehabilitation Act and the substantive due process clause of the Fourteenth Amendment of the United States Constitution.7 Specifically, the Court ruled that Defendants violated the Rehabilitation Act by denying LLH & TS and FSH & TS residents “access to community programs on the basis of physical as well as mental handicaps” and by excluding certain LLH & TS and FSH & TS residents “from qualitatively different facilities which are being provided to their less severely handicapped peers, despite IDT (Interdisciplinary Team) determinations that particular severely handicapped residents can live in community settings if defendants make reasonable accommodations in those settings.” Jackson, 757 F.Supp. at 1297, 1299. The Court concluded that Defendants violated the substantive due process clause of the Fourteenth
7The Court later allowed Plaintiffs to amend their complaint to add by interlineation an ADA claim. MEMORANDUM OPINION AND ORDER (Doc. No. 831) at 13, filed Jan. 27, 1994. The ADA had not been in effect at the time of trial. Id.
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Amendment by failing to provide residents of LLH & TS and FSH & TS with minimally
adequate medical care, by failing “to provide reasonable conditions of safety for the residents of
LLH & TS and FSH & TS,” by physically restraining residents resulting from understaffing, by
failing to provide “minimally adequate training” to the residents of LLH & TS and FSH & TS,
and by failing to implement recommendations by the IDTs for community placement.8 Id. at
1306-1307, 1312.
The Court said that Defendants must address deficiencies in the following areas:
1. Individual program plans, 2. Medical records, 3. Discharge plans, 4. Data collection, 5. Qualified mental retardation professional services, 6. Behavior management, 7. Use of physical restraints, 8. Prevention of abuse of residents, 9. Reduction of accidents and injuries to residents, 10. Reports of abuse, accidents and injuries, 11. Staff supervision, 12. Preservice training of staff, 13. In-service training of staff, 14. Sufficiency of professional staff, 15. Adaptive equipment, 16. Functional and chronologically age appropriate programming, 17. Coordination between residential areas and training program areas, 18. Inadequate space in training program areas.
Id. at 1315-16. To correct these deficiencies, the Court ordered the parties to formulate, by
agreement, a plan of correction. The Court stated that the plan of correction should address, at a
8The Court also determined that Defendants violated the substantive due process clause of the Fourteenth Amendment by allowing IDT determinations regarding community placement to be based on the unavailability of community services. Consequently, the Court permanently enjoined Defendants “from permitting IDTs to take into account the availability or lack of availability of community services in reaching a recommendation as to whether a resident should be served in the community.” Id. at 1318. The Tenth Circuit Court of Appeals, however, reversed the Court’s decision to enter that permanent injunction. Jackson by Jackson v. Fort Stanton Hosp. and Training School, 964 F.2d 980 (10th Cir. 1992).
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minimum, the following:
1. Formulation of a detailed written policy to be adopted by and followed at each institution,
2. Designation of a representative or representatives of each institution who will be primarily responsible for assuring implementation of the policy,
3. A description of strategies to be adopted by each institution to achieve the goals of the correction plans,
4. A detailed timetable establishing deadlines by which specific components of the correction plan for each deficiency will be achieved[,]
5. Means of assuring continued compliance with appropriate standards after correction of the deficiencies has been achieved.
Id. at 1316. A detailed plan of correction was to be submitted to the Court by April 1, 1991 and
Defendants were to correct the deficiencies by September 10, 1991. The Court further set forth a
schedule for transferring certain residents of LLH & TS and FSH & TS to community settings.
B. Relevant Portions of the JSD and POA.
In response to subsequent compliance issues with the 1990 MEMORANDUM OPINION
AND ORDER, on December 19, 1997, the Court entered an ORDER APPROVING
STIPULATION ON DISENGAGEMENT (Doc. No. 1064) which approved what is known as
the JOINT STIPULATION ON DISENGAGEMENT or JSD. The JSD notes that in response to
the Court’s 1990 MEMORANDUM OPINION AND ORDER, Defendants had promulgated
various rules and “worked to develop a statewide capacity for responding to the medical,
behavioral, vocational, sexual and other special needs of classmembers in the community.” JSD
at ¶ 2. Defendants also had “established five regional offices to manage the community service
system and [had] conducted annual audits of the community service system for the past three years through the community monitor,9 using the data from this process to improve and expand
9Linda Glenn was the Community Monitor at that time. Ms. Glenn resigned as Community Monitor after completing the 2002 community audit or community practice review (CPR). Lyn Rucker replaced Ms. Glenn as Community Monitor.
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that system.” Id. The JSD further observes that in March 1995 Defendants closed the FSH & TS and in
July 1997 Defendants phased out residential services at the LLH & TS. The Court never ordered that FSH & TS or LLH & TS be closed. Rather, the State of New Mexico made the decision to close those institutions.
The JSD’s purpose is to “define[] the further actions and requirements which the defendants must complete and the services, supports, and benefits which must be provided to classmembers in order for the defendants to comply with their obligations to classmembers under the Court’s orders in this case.” Id. at ¶ 5. The JSD states that to fulfill this purpose the parties must develop a PLAN OF ACTION (POA) “which contains a narrative, desired outcomes, and specific activities for thirteen components of the Community Service System.” Id. at ¶ 12. The thirteen components or desired outcomes are referred to in the POA as the following appendices:
Appendix 1: Quality Enhancement, Appendix 2: Community Incident Management System, Appendix 3: Training Appendix 4: Management Information Systems, Appendix 5: Individual Service Planning, Appendix 6: Case Management, Appendix 7: Behavioral Services, Appendix 8: Crisis Response, Appendix 9: Sexuality, Appendix 10: Supported Employment,
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Appendix 11: Assistive Technology, Appendix 12: Medical Services, and Appendix 13: Regional Offices. POA at 2. The POA also includes an Appendix 14 which consists of recommendations from the 1996 community audit or CPR. The parties subsequently stipulated in August 2010 that Appendix 12, Desired Outcome A, Activity #5, “DD Division will implement the relevant recommendations of Ellen Ashton from her audits performed at Los Lunas,” will become Appendix 15 of the POA. UNOPPOSED MOTION FOR PARTIAL DISENGAGEMENT OF PLAN OF ACTION, APPENDIX 3, TRAINING AND TECHNICAL SERVICES DESIRED OUTCOME L, AND APPENDIX 12, AMENDED DESIRED OUTCOME A OF THE JOINT STIPULATION ON DISENGAGEMENT (Doc. No. 1754) at 3, filed Aug. 23, 2010. According to the JSD, desired outcomes can be modified only by agreement of the parties or by order of the Court. If Defendants wish to add, delete, or modify a specific activity for a desired outcome, Defendants must provide notice to Plaintiffs and to the Community Monitor. Plaintiffs then have three days to review the proposed modification and to comment on it. Proposed modifications of specific activities “must be approved by the community monitor, but may be implemented pending approval by the monitor.” JSD at ¶ 13. Defendants can in their “professional judgment” modify “[t]he timeliness, persons responsible, and measurements of the [POA]....” Id. The JSD indicates that Defendants retained Elin Howe as the Internal Monitor, Ruby Moore as a supported employment consultant, and Sheela Stuart as an assistive technology consultant. Moreover, Defendants were required, for the next four years, to conduct the “community audit in substantially the same form as done in 1994-1996, with the addition of
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specific components for evaluating behavior and supported employment services.” Id. at ¶ 30.
The JSD also requires Defendants to “demonstrate continued improvement by region” of
individual service planning and supports, behavior supports, and supported employment, “as
determined by the community audit.” Id. at ¶ 32. Continued improvement is defined as either:
(1) an increase in compliance of 15% for each of three years beginning with the 1998 audit with respect to those items which remain below 50% of full compliance; or
(2) an increase of 10% for each of three years with respect to those items which remain above 50% of full compliance. In no event shall the [Defendants] have to exceed 80% for any single item in any region.
Id. Moreover,
[i]f the level of improvement for a particular item in one region in a given year exceeds the level of required improvement for that item in that region for three years, the [Defendants] will have met the required continued improvement level for that item in that region. In that event, the [Defendants] will substantially maintain that level of compliance for an additional year. If the rate of improvement does not equal or exceed these percentages in a particular year, the [Defendants] will develop a corrective action plan for each region that is approved by the community monitor. The data generated by the community audit shall be conclusive evidence for determining the extent of future compliance and continued improvement [in the areas of individual service planning and supports, behavior supports, and supported employment].
Id. at ¶ 33.
In addition, the JSD includes a process for Defendants to disengage from their
obligations under the POA. The JSD contemplated that Defendants would complete all of the
POA activities by December 31, 2000 and established quarterly meetings among Defendants,
Plaintiffs, the Internal Monitor, and the Community Monitor to discuss Defendants’ progress in
completing POA outcomes and activities. The JSD provides that if a party challenges a systemic
recommendation under a community audit or CPR as unreasonable, the disagreement will be
submitted to a mediator. If mediation is unsuccessful, the mediator may recommend a decision.
The parties then have ten days to challenge the mediator’s recommendation before the Court. If
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no challenge is made, the recommended decision will be implemented. Defendants may appeal a mediator’s recommended decision to the Court for de novo review. Defendants may also file at any time a motion for partial or full disengagement with respect to compliance with a POA appendix or desired outcome, or a provision of the JSD. Plaintiffs, likewise, can file a motion for noncompliance as provided in ¶ 44 of the JSD. Finally, “[a]ny party may seek a modification of, or relief from, this [JSD] pursuant to Fed. R. Civ. Pro. 60.” Id. at ¶ 49.
C. APPENDIX A. As a result of further compliance issues raised by Plaintiffs, the parties on May 20, 2005 filed a JOINT STIPULATION ON AGREED ACTIONS TO COMPLY WITH JOINT STIPULATION ON DISENGAGEMENT AND PLAN OF ACTION AND TO RESOLVE PENDING MOTIONS TO SHOW CAUSE AND TO RE-ENGAGE (Doc. No. 1473) (Joint Stipulation). This Joint Stipulation was intended to obligate Defendants to take certain actions outside the Plan of Action as more specifically outlined in Appendix A to this Stipulation. More specifically, the actions identified in Appendix A are intended to facilitate compliance with the JSD, to promote completion of certain 1998 Audit Recommendations, to further address Case Management even though Plan of Action Desired Outcomes related to Case Management have been previously disengaged by an order of the Court and to address certain aspects of Vocational Rehabilitation. Id. at ¶ 2. APPENDIX A contains required actions in the following areas: case management, quality enhancement, incident management, behavior, crisis, sexuality, supported employment, vocational rehabilitation, and day services. Each action had a completion deadline with the last action to be completed by fiscal year 2007. APPENDIX A does not affect Defendants’ obligations under the JSD and POA. Under the Joint Stipulation, the Internal Monitor and the Community Monitor are to assist the parties in developing plans as required by certain APPENDIX A actions and to
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informally assist the parties in resolving any conflicts concerning APPENDIX A. The parties may also submit to the Court any unresolved disputes for de novo review. Additionally, the disengagement procedure under the JSD applies to APPENDIX A and the 1998 audit recommendations. STIPULATED AGREEMENT ON DISENGAGEMENT PROCESS FOR 1998 AUDIT RECOMMENDATIONS AND APPENDIX A AREAS (Doc. No. 1688), filed Feb. 18, 2010. APPENDIX A, along with the JSD and POA, comprise all of the Court orders with which Defendants are obligated to comply.
D. Appointment of Sue Gant, Ph.D, as the Rule 706 Expert. Because noncompliance issues continued to exist past the deadlines described in APPENDIX A, the Court on December 21, 2007 entered an ORDER APPOINTING RULE 706 EXPERT (Doc. No. 1610) in which the Court appointed Dr. Sue Gant as the 706 Expert. Dr. Gant’s role as the 706 Expert is “to substantially assist the Court in the determination of compliance with the orders of the Court, including the Joint Stipulation on Disengagement, the Plan of Action, the 1998 audit recommendations, and the May 21 [sic], 2005 Stipulation and Appendix A.” Id. at 1. The ORDER APPOINTING RULE 706 EXPERT outlines Dr. Gant’s duties, responsibilities, and authority. Since her appointment as the 706 Expert, Dr. Gant has issued reports in 2008, 2010, and 2011. The 2011 report includes an assessment by Dr. Gant’s medical consultant, Dr. Wayne Zwick, of the deaths of 17 class members. II. Recent Procedural History. On July 15, 2010, Plaintiffs filed PLAINTIFFS’ MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NONCOMPLIANCE (Doc. No. 1731) (Motion for Remedial Relief) in which Plaintiffs complain Defendants have not substantially complied with the JSD, POA, and APPENDIX A with respect to providing (1) adequate health care to class members, (2) safe
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environments for class members, and (3) adequate supported employment. Having reviewed the Motion for Remedial Relief and the accompanying briefs, the Court determined that an evidentiary hearing would be necessary to decide the issues raised by Plaintiffs. Hence, the Court set a pretrial conference on April 27, 2011 and an evidentiary hearing on June 13, 2011. The parties were allowed to engage in discovery to prepare for the evidentiary hearing. On February 9, 2011, the Court denied the Motion for Remedial Relief without prejudice because it was clear that the factual record would not be complete until after the evidentiary hearing and that the Motion for Remedial Relief would need to be rewritten to reflect that factual record. AMENDED ORDER (Doc. No. 1805), filed Feb. 9, 2011.
On April 26, 2011, the day before the pretrial conference, Defendants filed DEFENDANTS’ RULE 60(b)(5) MOTION AND SUPPORTING MEMORANDUM TO TERMINATE ALL REMAINING ORDERS IN JACKSON et al. v. FSH & TS et al. (Doc. No. 1830) (Defendants’ Rule 60(b)(5) Motion). The Court informed Defendants at the pretrial conference that the briefing on Defendants’ Rule 60(b)(5) Motion would be suspended until after the evidentiary hearing so that the briefing could cite to the evidence presented at the hearing. The Court subsequently entered a PRETRIAL ORDER (Doc. No. 1832) on April 28, 2011.
Prior to the evidentiary hearing which was held from June 13, 2011 through June 17, 2011, Plaintiffs filed on June 3, 2011 PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE THE 2010 AND 2011 REPORTS OF DAVIS DESCHAIES LLC (Doc. No. 1841) and PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE TESTIMONY AND REPORT OF RIC ZAHARIA, PH.D. (Doc. No. 1842). On June 6, 2011, Defendants filed DEFENDANTS’ MOTION TO EXCLUDE THE TESTIMONY OF PLAINTIFFS’ REMEDY EXPERT LEWIS H. SPENCE REGARDING REMEDY (Doc. No. 1843). The Court decided to defer ruling on these motions in limine until
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after hearing the testimony of Norman Davis, Dr. Zaharia, and Mr. Spence at the evidentiary hearing. Having now heard the testimony of these experts and having read their expert reports, the Court will, in making its findings of fact, consider only those portions of their testimony or reports that contain admissible evidence.
In addition to hearing the testimony of both expert and fact witnesses at the evidentiary hearing, the Court admitted into evidence numerous exhibits. The parties also submitted deposition designations and counter-designations. Moreover, Plaintiffs filed objections to various portions of Defendants’ deposition designations. See PLAINTIFFS’ OBJECTIONS AND COUNTER-DESIGNATIONS TO DEFENDANTS’ DEPOSITION DESIGNATIONS (Doc. No. 1846), filed June 9, 2011. If, in making a finding of fact, the Court relies on any part of a designated deposition to which Plaintiffs objected, the Court will address Plaintiffs’ objection in its discussion of that finding of fact. The parties further filed trial memoranda setting forth their positions on the compliance issues and alleged statutory violations.
At the June 2011 evidentiary hearing, Peter Cubra, Steven Schwartz, Cathy Costanzo, Philip Davis, Ann Sims, and J. Kate Girard represented Plaintiffs; Jerry Walz, Kathyleen Kunkel, and Anne Alexander represented Defendants. Also present at the evidentiary hearing were Maureen Sanders, counsel for intervenor ARC of New Mexico, and Eva Peets, a pro se intervenor.
Upon receiving the completed transcript of the evidentiary hearing, the Court sent to counsel a letter dated August 19, 2011 setting an October 3, 2011 deadline for filing proposed findings of fact and conclusions of law. The Court also advised counsel to organize the proposed findings of fact into three sections: health care, safety, and supported employment. The Court further indicated that 1) Plaintiffs’ counsel must “specify which POA outcomes and
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accompanying activities and which Appendix A actions they believe Defendants have failed to comply with”; 2) counsel could include updated evidence in the proposed findings of fact, if counsel stipulated to its admissibility; 3) counsel should brief the issue of whether the Court has the authority to appoint a Jackson Compliance Administrator; and 4) counsel should address the issue of termination of the case. Aug. 19, 2011 letter at 3. Finally, the Court advised counsel: “Should you have any questions, please state them in a letter. If you believe it would be helpful to discuss, in more detail, the format and content of the proposed findings of fact and conclusions of law, I could schedule a status conference for that purpose.” Id.
On August 30, 2011, the Court received a letter from Mr. Schwartz requesting that the health and safety sections of the proposed findings of fact be combined and that the parties refer only to the desired outcomes in the POA. Mr. Walz responded in a September 1, 2011 letter that he preferred the health and safety sections to be distinct and that the parties identify both the disputed desired outcomes and accompanying activities in the POA. In a September 9, 2011 letter to counsel, the Court determined that the health and safety sections should remain separate and that Plaintiffs should identify both the desired outcomes and accompanying activities in the POA with which Plaintiffs believed Defendants had not complied.
On September 20, 2011, Mr. Cubra wrote a letter to the Court regarding Defendants’ request to add evidence to the June 2011 evidentiary hearing record. Ms. Kunkel responded with a September 22, 2011 letter. As a result of this correspondence, the Court vacated the October 3, 2011 deadline for filing proposed findings of fact and conclusions of law and set a status conference which was held on October 25, 2011.10 Mr. Cubra and Ms. Sims represented
10Mr. Cubra submitted yet another letter, dated October 20, 2011, addressing the evidentiary issues raised in the previous correspondence.
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Plaintiffs at the status conference; Mr. Walz, Ms. Kunkel and Ms. Alexander represented Defendants. Also present at the status conference were Ms. Sanders, representing the ARC of New Mexico, Ms. Peets, and Ms. Gabrielle Sanchez-Sandoval, the representative for the New Mexico Department of Health. The Court denied Ms. Kunkel’s request to submit new evidence regarding United States Census employment data and allowed limited use of the Jackson Quarterly Report for the fourth quarter of fiscal year 2011. The Court said that, if warranted, Mr. Walz may file a renewed Rule 60(b) motion to terminate the lawsuit after the Court has resolved the compliance issues raised by Plaintiffs; and the Court observed that additional limited discovery would be necessary to fully brief a renewed Rule 60(b) motion. Furthermore, the Court rescheduled to November 2, 2011 the deadline for counsel to file proposed findings of fact and conclusions of law. Those proposed findings of fact and conclusions of law have now been filed.
In addition, on November 14, 2011, Plaintiffs filed PLAINTIFFS’ RENEWED MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NONCOMPLIANCE (Doc. No. 1888) (Renewed Noncompliance Motion). Defendants responded to the Renewed Noncompliance Motion on December 23, 2011.11 In a letter dated November 17, 2011, the Court instructed counsel to submit supplemental briefing on the effect of Cohon ex rel. Bass v. New Mexico Dept. of Health, 646 F.3d 717 (10th Cir. 2011) on Plaintiffs’ ADA and Rehabilitation Act claims;
11See DEFENDANTS’ RESPONSE TO PLAINTIFFS’ RENEWED MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NONCOMPLIANCE AND PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR FURTHER REMEDIAL RELIEF BASED UPON VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT AND THE AMERICANS WITH DISABILITIES ACT (Doc. No. 1899) (Response to Renewed Noncompliance Motion).
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counsel have now done so.12 FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Standard for Determining Substantial Compliance. The Court is mindful that [a]s public servants, the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities. A State, in the ordinary course, depends upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources. The basic obligations of federal law may remain the same, but the precise manner of their discharge may not.
Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 442 (2004). Nevertheless, consent decrees (like the JSD, POA, and APPENDIX A) are treated like contracts. See Joseph A. by Wolfe v. New Mexico Dept. of Human Services, 69 F.3d 1081, 1085 (10th Cir. 1995) (citing United States v. ITT Continental Baking Co., 420 U.S. 223, 236-38 (1975)). Contract law includes the doctrine of substantial compliance which “assist[s] the court in determining whether conduct should, in reality, be considered the equivalent of compliance under the contract.” Id. at 1086. “[T]he touchstone of the substantial compliance inquiry is whether Defendants frustrated the purpose of the consent decree--i.e. its essential requirements.” Id. In determining if Defendants have substantially complied with a consent decree, the Court should first consider “the essential purposes of the consent decree” and “then consider the specific steps set forth in the consent decree by which those purposes may be satisfied.” Id. at 1086. Next, “[t]o the extent that any stipulated criteria has not been met, the court must determine whether that failure is immaterial
12See PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR FURTHER REMEDIAL RELIEF BASED UPON VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT AND THE AMERICANS WITH DISABILITIES ACT (Doc. No. 1896) (Plaintiffs’ Memorandum on Rehabilitation Act and ADA) and Defendants’ Response to Renewed Noncompliance Motion.
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to the overall objectives or, on the other hand, whether it had a material adverse impact upon the overall” purpose of the consent decree. Id. “Because the consent decree sets forth specific criteria to be met, those criteria must be respected unless a deviation can be shown not to have a material effect upon the overall performance” of Defendants in attaining the goals of the consent decree. Id. Defendants carry the burden of showing by a preponderance of the evidence “that they had substantially complied with the requirements of the consent decrees, and that any deviation from literal compliance did not defeat the essential purposes of the decrees.” Jeff D. v. Otter, 643 F.3d 278, 284 (9th Cir. 2011). Factors that a court may consider in deciding if a defendant has complied with a consent decree include whether the defendant has made “sufficient progress” in complying with the goals of the consent decree and whether the defendant has a less than exemplary history of compliance with the consent decree. Id. at 288 II. Whether Defendants have Substantially Complied with General Directives and Whether
Defendants have Attempted to Comply with Recommendations by the 706 Expert and by the Community Monitor. A. Discussion of General Directives and Recommendations by the 706 Expert and by
the Community Monitor. Plaintiffs first complain that Defendants have failed to comply with the following general directives: (1) JSD ¶ 31, which states that Defendants must “implement the systemic recommendations of the ... 1998 community audit[], unless a specific recommendation is determined to be unreasonable in the mediation process or by the Court,” (2) JSD ¶ 33, which requires that if Defendants do not meet the rate of continuous improvement mandated by the JSD, Defendants “will develop a corrective action plan for each region that is approved by the community monitor,” and (3) the communication guidelines adopted by the Honorable United States Magistrate Judge Leslie Smith in 2007, which direct Defendants to report to the
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Community Monitor the actions Defendants have taken to implement individual audit or CPR recommendations every 30, 60, and 90 days. Moreover, Plaintiffs contend that Defendants’ frequent rejection of the findings and recommendations by the 706 Expert and by the Community Monitor demonstrate overall systemic noncompliance and irreparable harm to class members.
1. JSD ¶ 31: Defendants to implement the systemic recommendations of the 1998 community audit or CPR.
Defendants admit that only half of the 1998 community audit or CPR recommendations have been disengaged. See FIRST STIPULATION ON 1998 AUDIT RECOMMENDATIONS (Doc. No. 1387), filed Feb. 10, 2003. However, Defendants contend that they have sent a JSD ¶ 44 notification to Plaintiffs proposing to disengage the remaining 13 recommendations, although Defendants expect that Plaintiffs will not agree to disengage those recommendations.13 Response to Renewed Noncompliance Motion at 9. Because half of the 1998 audit or CPR recommendations have been disengaged and Defendants have initiated the process for disengaging the remaining 13 recommendations, the Court determines it is more efficient for the parties to proceed with the disengagement process and, if necessary, to later raise with the Court (with the exception of recommendation # 25 of the 1998 community audit) any compliance issues regarding the 1998 recommendations.
2. JSD ¶ 33: If Defendants do not meet the rate of continuous improvement required in the JSD, Defendants will develop regional corrective action plans approved by the Community Monitor.
Although regional corrective action plans were rarely submitted to the Community
13Plaintiffs specifically contend elsewhere in their Renewed Noncompliance Motion that Defendants have not substantially complied with recommendation # 25 of the 1998 community audit recommendations. Consequently, the Court will address separately recommendation # 25, infra.
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Monitor from 2004 to 2009, tDefendants and the Community Monitor have developed a new process for completing regional corrective action plans. That new process, however, is complicated and the timelines are short in view of the annual CPR schedule. Accordingly, it is difficult to get the regional corrective plans approved by the Community Monitor. Trial Transcript (TT) Vol. I, 82:14-23; TT Vol. IV, 754:23-756:21. Clearly, further refinement of the process for producing those plans for approval is necessary. Nonetheless, timely approved regional corrective action plans are central to ensure that continuous improvement requirements are met and that disengagement is ultimately reached in those areas.
3. Communication guidelines require Defendants to report actions they have taken to implement individual audit or CPR recommendations every 30, 60, and 90 days.
Defendants are trying to give the Community Monitor reports (via computer disk) following the 30-60-90 day schedule as Judge Smith directed. TT Vol. I, 121:11-25. The Community Monitor complains that she has not consistently received those reports and the reports have not been complete. Id. at 123:1-6. Nonetheless, the Community Monitor noted that she is “getting close to having a complete disk.” Id. at 123:4-6. Additionally, the Community Monitor and Defendants have agreed that the Community Monitor will direct any questions regarding the reports to the appropriate region. Id. at 155:22-24.
Although Defendants are attempting to comply with the requirement of reporting actions taken on individual audits or CPR recommendations every 30, 60, and 90 days, reports are being submitted incomplete or inconsistently. The Court acknowledges that Defendants are dealing with an immense amount of information and that this reporting requirement may need refinement. Even so, these reports are important in making sure that individual recommendations are addressed and do not fall through the cracks of the system.
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4. Compliance with the 706 Expert’s Findings and Recommendations. The 706 Expert made several recommendations in her August 2008 report, her first report. Although Defendants objected to some of those recommendations on October 22, 2008, see RESPONSE TO 706 REPORT TO THE COURT: JANUARY 2008-JUNE 2008 (Doc. No. 1637) at 6 and 10-11, Defendants, nonetheless, implemented the 706 Expert’s request to respond to aspiration deaths by establishing the Aspiration Clinical Team (ACT) in August 2008. The ACT assessed 281 class members identified as having a high risk of aspiration in approximately 18 months. TT Vol. II, 338:20-339:7, 342:22-343:3; TT Vol. IV, 737:7-11, 747:23-748:2; Dr. Antoinette Benton Deposition, 32:20-33:15, 36:23-37:20. Unfortunately, Defendants have not always followed the ACT recommendations. TT Vol. I, 68:3-6. Defendants also claim that they implemented the recommendation of the 706 Expert to organize three workgroups in 2008: the Money Management Workgroup, the Community Medical Issues Workgroup, and the Significant Events Workgroup. These workgroups evolved or began as the result of the June 2008 quarterly meeting in which the 706 Expert acted as facilitator, not necessarily as a direct result of a recommendation by the 706 Expert. Def. Ex. Vol. II, 0-02 (00347-000348); Def. Ex. Vol. X, X-10 (0003999-004003); Janet Simons Deposition, 37:20-38:11; TT Vol. II, 345:7-347:16. Even so, the record indicates that Defendants have accepted a recommendation by the 706 Expert to improve Incident Management Bureau (IMB) quarterly and monthly meetings as well as her recommendation to provide training to IMB investigators through Labor Relations Alternatives, Inc. Def. Ex. Vol. II, R-02 (000368); Alice Maes Deposition, 127:24-128:4,14
14Plaintiffs objected to this portion of Alice Maes’ deposition as irrelevant and cumulative. Alice Maes, the chief of the Incident Management Bureau (IMB), stated in her deposition that the Department of Health (DOH) offered training through Labor Relations
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138:24-139:6.
Defendants also note that they responded to the 706 Expert’s comment in her April 2010
report that there was “[n]o access to real time incident data,” Pl. Ex. 59 (001677), by initiating
in October 2010 an electronic, web-based system called Electronic Comprehensive Heath Care
Assessment Tool (ECHAT) to help eliminate health care coordination issues by updating and
incorporating data collected in real time. All Jackson class members should have been enrolled
in the ECHAT system by the end of 2011. TT Vol. IV, 758:23-759:1, 762:2-21; Dr. Ralph
Hansen Deposition, 182:7-183:8; Def. Ex. Vol. X, P-10 (003916-003924); Pl. Ex. 68 (002087-
002088). ECHAT will, among other things, incorporate the Significant Events reporting system
and track events that do not rise to the level of an incident report. TT Vol. IV, 763:2-10.
In addition, although the 706 Expert found in her April 2010 report that there were issues
related to Defendants’ follow-up on findings made by the Mortality Review Committee (MRC),
Pl. Ex. 59 (001671), Defendants had revised MRC policies and procedures on March 1, 2010.
The revisions were based on the essential national recommendations found in the United States
Government Accountability Office’s recommendations for Home and Community Based Waiver (HCBW)15 mortality review committees. Def. Ex. Vol. VI, L-06; Dr. Karen Armitage
Alternatives, Inc. because the 706 Expert recommended Labor Relations Alternatives, Inc., a company which focuses “more on the population of Developmental Disabilities Waiver.” Alice Maes Deposition, 128:3-4. The Developmental Disability (DD) waiver population consists of persons who are medically and financially qualified to receive state services which provide an “alternative to institutional care.” New Mexico DOH, Developmental Disabilities Supports Division (DDSD) Website, pgs. 5-6 at http//www.nmhealth.org/ddsd (updated March 24, 2010). This information is relevant to the issue of whether Defendants have complied with the 706 Expert’s recommendations and does not appear to be cumulative. Consequently, Plaintiffs’ objections to Alice Maes’ deposition at 127:24-128:4 are overruled.
15HCBW “is designed to provide services and supports that will allow eligible individuals with developmental disabilities to participate as active members of their communities.” New Mexico DOH, DDSD Website at http://nmhealth.org/ddsd/developmentaldisabilities/
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Deposition, 131:12-133:14.16 The 706 Expert had actually provided these national
recommendations to Defendants. Pl. Ex. 68 (002090).
Next, Defendants admit that they responded to the 706 Expert’s February 2011 report
with requests for clarifications and with objections based on duplicative efforts. Nonetheless,
Defendants agreed to implement at least one recommendation and agreed to review Dr. Zwick’s
recommendations. Pl. Ex. 68 (002089). Interestingly, Dr. Zwick found the MRC reviews to be
“excellent,” although he found other problems with the MRC process, including inadequate
minutes. TT Vol. III, 464:3-8.
Finally, Defendants are generally concerned that the 706 Expert is biased in favor of
Plaintiffs. Defendants note that the 706 Expert met with Plaintiffs’ counsel to prepare for her
testimony at the June 2011 evidentiary hearing. TT Vol. II, 328:4-329:3. The 706 Expert,
however, did not bill Defendants for her testimony preparation. Id. at 329:4-6.
Defendants have implemented some, but not all, of the 706 Expert’s recommendations.
Nowhere in the ORDER APPOINTING RULE 706 EXPERT (Doc. No. 1610) does the Court
explicitly require Defendants to implement the 706 Expert’s recommendations. The 706 Expert
programddwaiverpg1.htm (lasted visited Sept. 20, 2012). The DD waiver program is one of several waiver programs available under the HCBW. Id.
16Plaintiffs objected to this portion of Dr. Karen Armitage’s deposition because they believe it is irrelevant, speculative, cumulative, and narrative. Dr. Armitage was the interim chair of the MRC from March 2009 until October 2010 and continued to sit on the MRC until December 2010. Dr. Karen Armitage Deposition, 8:3-5, 8:21-25, 9:1-4. She testified at her deposition that the revised MRC policies and procedures were based on the United States Government Accountability Office’s recommendations. Her knowledge of the revised MRC policies and procedures is relevant to the issue of whether Defendants have complied with the 706 Expert’s recommendations regarding the MRC. Dr. Armitage’s deposition testimony is also not speculative because of her knowledge as the interim MRC chair prior to the March 2010 revision of MRC policies and procedures. In addition, there is no indication that this part of Dr. Armitage’s deposition is cumulative or “narrative.” The Court, therefore, overrules Plaintiffs’ objections to this portion of Dr. Armitage’s deposition testimony.
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is “to substantially assist the Court” in determining if Defendants have complied with the JSD, POA, and APPENDIX A. ORDER APPOINTING RULE 706 EXPERT (Doc. No. 1610) at 1. Consequently, Defendants’ failure to comply with the 706 Expert’s recommendations does not constitute per se noncompliance with the JSD, POA, and APPENDIX A. Whether and to what extent Defendants have deferred to the 706 Expert’s expertise is, however, a relevant factor in determining if Defendants have substantially complied with the JSD, POA, and APPENDIX A. The Court will, therefore, take into consideration the 706 Expert’s findings, recommendations, and testimony from the June 2011 evidentiary hearing, as well as Defendants’ actions in response to her findings and recommendations, in addressing the substantial compliance issues presented in the Renewed Noncompliance Motion. Furthermore, the fact that Plaintiffs’ counsel prepared the 706 Expert for testifying at the June 2011 evidentiary hearing does not necessarily make her unfairly biased against Defendants. In view of the content of her reports, the 706 Expert’s testimony obviously would have favored Plaintiffs more than Defendants.
5. Compliance with the Community Monitor’s Findings and Recommendations.
While Defendants have not always complied with the Community Monitor’s recommendations for various reasons, Defendants have actually complied with some of her recommendations or, at least, have taken steps to comply with the recommendations. For example, in 2005, Defendants established the Clinical Services Bureau (CSB) at the recommendation of the Community Monitor to oversee clinical services like physical therapy, occupational therapy, speech pathology, the seating clinic, assistive technology, and all aspiration initiatives. The CSB also provides clinical support to nurses in the regional offices and to all nurses in provider agencies. TT Vol. IV, 743:25-744:10, Def. Ex. Vol. VII, O-07
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(002428-002429); Pl. Ex. 6 (000282). The CSB, however, could be strengthened with more staff and resources. TT Vol. I, 98:1-14.
In 2009, Defendants compiled a Status Report on CPR Health, Wellness, and Assistive Technology Recommendations from 2004-2008. Def. Ex. X, N-10. Defendants noted in the Status Report the various actions they had taken to address most of the Community Monitor’s recommendations and explained their disagreement with a few of the recommendations. The Community Monitor’s chief objection to Defendants’ Status Report was that Defendants did not provide a means for measuring the effectiveness of their actions, even when some of those actions had been identified as effective according to CPR data. Def. Ex. X, Z-10 (004016).
Defendants responded to the 2009 CPR recommendations by describing things they had done to address most of the recommendations and by explaining why they disagreed with one of the recommendations. Def. Ex. Vol. III, J-04. An example of an action taken with respect to the 2009 CPR recommendations includes Defendants’ recent attempts to provide the Community Monitor with reports following the 30-60-90 day reporting requirement. Another example of an effort by Defendants was the formation in 2009 of the Jackson Continuous Improvement and Care Coordination Team (CICC) which provides, among other things, “consistent qualified and experienced reviewers” to address repeat recommendations from the 2004 CPR and subsequent CPRs. Def. Ex. Vol. III, E-04 (000871); TT Vol. IV, 666:17-667:11. Defendants also took actions regarding the 2009 CPR findings on immediate and special needs, including the preliminary conclusion of Comprehensive Aspiration Risk Management Plans (CARMPs) by Spring 2010. Def. Ex. Vol. III, F-04 and G-04; TT Vol. IV, 737:12-23, 752:16-753:3.
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Defendants additionally complain that the current Community Monitor, Lyn Rucker, has not complied with JSD ¶ 30 which requires that CPRs be in substantially the same form as they were in 1994-1996. For instance, Defendants have long disputed the way Ms. Rucker has changed the scoring method under the CPR. TT Vol. I, 51:25-52:8; TT Vol. IV, 867:22-869:2; Pl. Ex. 7 (000289-000290); Pl. Ex. 8 (000298); Def. Ex. Vol. I, L-02 (000329-000339). Under the CPR, a score of 2 reflects compliance with a recommendation, a score of 1 means partial compliance, and a score of 0 means no compliance. Ms. Rucker now gives a score of 1 or 0 when historically (presumably when Linda Glenn was Community Monitor) a score of 2 would have been given with a recommendation for further action. Pl. Ex. 7 (000289-000290). For example, scores of 1 or 0 are now given when guardians refuse medical treatments or services even though the IDTs are pursuing treatment options, whereas in the past, a score of 2 would have been given in that situation with a recommendation for follow-up. Pl. Ex. 7 (000290). The Community Monitor also does not give partial credit scores in continuous improvement areas. The Community Monitor agreed that if all of the partial credit scores, that had been awarded before Ms. Rucker changed the scoring, were included, the total would probably be over 80% compliance in all areas. TT Vol. I, 163:24-164:21.17 Moreover, in 2004, Ms. Rucker “linked” CPR assessment questions to Individual Service Plan (ISP) components of the CPR. Pl. Ex. 7 (000289-00290). According to Defendants, even if the ISP itself meets the needs of the class member, the CPR assessment questions unfairly influence the score for all ISP components. Id.
Also, the scope of the CPRs under Ms. Rucker has expanded. Unlike Ms. Glenn, Ms. Rucker includes findings in her CPRs on whether sample class members have unmet immediate
17The Court notes that there is an element of subjective or “professional” judgment in assigning scores. Pl. Ex. 8 (000297-000298).
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or special needs. As a consequence, issues with the definitions of immediate and special needs have arisen. Under Ms. Glenn, the CPR was a one week on-site review; it is now a one week paper review plus a one week on-site process involving 24-34 DOH employees, five of whom are solely dedicated to the CPR. TT Vol. IV, 796:19-797:22; Def. Ex. Vol. I, K-02 (000328). In 2000, Ms. Glenn audited 90 class members while the 2009 CPR conducted by Ms. Rucker audited 108 class members. Pl. Ex. 4 (000237); Def. Ex. Vol. XII, I-12 (004553). Defendants objected to the 2007 CPR which they claim Ms. Rucker expanded (1) by including substitution of the word “must” or “will” for “should;” (2) by requiring the Internal Review Committee (IRC) to report to the Community Monitor as well as to Plaintiffs, the 706 Expert, and intervenors; (3) by making Defendants use the consultant recommended by the Community Monitor for class members with vision/hearing limitations; and (4) by having Defendants convene a workgroup with Virginia Commonwealth University and others. Def. Ex. Vol. I, K02 (000325-000326). In all fairness to Ms. Rucker, it should be noted that she responded to the objections by acknowledging the expansion of the 2007 CPR and by making many of the adjustments requested by Defendants. Def. Vol. I, L-02 (000329-000332).
Defendants also contend that Ms. Rucker, like the 706 Expert, is not neutral and that the CPR process and methodology which Ms. Rucker employs, unlike the CPR process employed by Ms. Glenn, works unfairly against Defendants’ ability to comply with the JSD, POA, and APPENDIX A. Interestingly, the 2000 CPR conducted by Ms. Glenn was intended to be the final compliance review, and the approach and depth of the review was modified with the approval of the parties to guide Defendants with steps to ensure continuing compliance. Pl. Ex. 4 (000237-000238). The subsequent CPRs conducted by Ms. Rucker, on the other hand, do not reflect that a final compliance review is anywhere in sight.
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Finally, Defendants note that it is important to acknowledge that the Community Monitor agrees that Defendants get too many CPR recommendations to manage. TT Vol. III, 600:1-4. The Columbus Organization consultant, Janet Simons, stated that Defendants are simply overwhelmed by the individual recommendations in the CPRs.18 Janet Simons Deposition, 180:4-17.
As with the 706 Expert’s recommendations, Defendants have complied with some, but not all, of the Community Monitor’s recommendations. Also, Defendants have at various times acted on a Community Monitor’s recommendation, but the Community Monitor found Defendants’ actions insufficient. Considering the numerous recommendations, the Court acknowledges it would be unrealistic to expect Defendants to be able to implement all of the Community Monitor’s recommendations. This raises the question to what extent are Defendants required to fully implement the Community Monitor’s recommendations. Unfortunately, the JSD does not directly address this question. It is clear from the JSD that “data” generated from the CPR, not the Community Monitor’s recommendations, are “conclusive evidence for determining the extent of future compliance and continued improvement for” individual service planning and supports, behavior supports, and supported employment. JSD ¶ 33. Although the JSD provides a process for Defendants to challenge a systemic recommendation by the Community Monitor, JSD ¶ 43, the JSD does not address whether, in the absence of a formal challenge to the Community Monitor’s recommendations, Defendants are required to follow
18The Court notes that Defendants did not address Plaintiffs’ assertion that Defendants have also failed to comply with the Community Monitor’s recommendations regarding supported employment. On the other hand, Defendants challenged the Community Monitor’s CPR findings on repeat recommendations and on Defendants’ failure to provide routine medical assessments. These challenges are more appropriately addressed under the health care section of the FINDINGS OF FACT AND CONCLUSIONS OF LAW.
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those recommendations.19 This general silence on whether to require Defendants to implement recommendations is significant because the parties otherwise agreed in the JSD to require Defendants to implement “ the systemic recommendations of the 1997 and 1998 community audits, unless a specific recommendation is determined to be unreasonable in the mediation process or by the Court,” and to implement certain recommendations from the 1996 CPR attached as Appendix 14 to the JSD. JSD ¶ 31. The parties, therefore, made a conscious decision to mandate that Defendants implement specific recommendations from certain CPRs, but the parties did not make that same decision with respect to all CPR recommendations. Accordingly, the Court cannot find that any failure by Defendants to comply with the Community Monitor’s recommendations, in the absence of a formal challenge to those recommendations, constitutes, in itself, noncompliance with the JSD, POA, or APPENDIX A. Nevertheless, because the Community Monitor has extensive knowledge and experience with this case, the Court will give due consideration to her recommendations as well as to her testimony at the June 2011 evidentiary hearing in deciding whether Defendants have substantially complied with the JSD, POA, and APPENDIX A provisions at issue in the Renewed Noncompliance Motion.
Moreover, the Court agrees with Defendants that the scoring component of the CPR has changed in some respects, special and immediate needs findings have been added to the CPR, and the CPR review itself has grown. These changes reflect a different perspective by Ms. Rucker on how to approach a CPR, a perhaps more challenging approach, than Ms. Glenn had on the task of conducting a CPR. Even so, no evidence suggests that Ms. Glenn’s scoring in the
19Plaintiffs do not allege that Defendants have not substantially complied with JSD ¶ 43. See Renewed Noncompliance Motion at 14 n. 16 (listing “Court ordered obligations with respect to the Community Monitor with which the defendants are in noncompliance....”).
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continued improvement areas differed from Ms. Rucker’s. Scoring of non-continued improvement areas is not conclusive evidence of compliance under the JSD. Additionally, the use of immediate and special needs findings and the expansion of the CPR have not substantially changed the form of the CPR; instead, those changes have merely refined the form of the CPR. If the form of the CPR has substantially changed as Defendants claim, it is curious that Defendants have not in previous years raised this issue with the Court. Finally, the Community Monitor is not unfairly biased; she is performing her duties to the best of her abilities and in conformance with her professional expertise.
B. Findings of Fact. 1. The essential purposes of the JSD, POA, and APPENDIX A are to provide class members with adequate health care, a reasonably safe environment, and supported employment opportunities. 2. Defendants have not shown by a preponderance of the evidence that they have complied fully with JSD ¶ 33 which requires Defendants to develop regional corrective action plans approved by the Community Monitor. 3. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with JSD ¶ 33 does not defeat the essential purpose of the JSD, i.e., to provide class members with adequate health care and a safe environment. 4. Defendants have not shown by a preponderance of the evidence that they have complied fully with the communication guidelines established by Judge Smith setting a 30-60-90 day reporting schedule regarding the implementation of individual audit or CPR recommendations.
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5. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with the communication guidelines established by Judge Smith setting a 30-60-90 day reporting schedule does not adversely affect the essential purpose of the reporting requirement, i.e., to ensure that individual recommendations are implemented in a timely fashion so that class members receive adequate health care and have a reasonably safe environment.
6. The 706 Expert is not unfairly biased against Defendants. 7. The Community Monitor is not unfairly biased against Defendants. C. Conclusions of Law. 1. Defendants have not substantially complied with JSD ¶ 33. 2. Defendants have not substantially complied with the current 30-60-90 day reporting requirement imposed by Judge Smith. 3. Noncompliance with the 706 Expert’s recommendations is not a basis for finding noncompliance with the JSD, POA, or APPENDIX A. 4. The 706 Expert’s recommendations, findings, and testimony from the June 2011 evidentiary hearing are factors in determining substantial compliance with the JSD, POA, or APPENDIX A. 5. Noncompliance with the Community Monitor’s recommendations alone is not a basis for finding noncompliance with the JSD, POA, or APPENDIX A. 6. The Community Monitor’s recommendations, findings, and testimony from the June 2011 evidentiary hearing are factors in determining substantial compliance with the JSD, POA, or APPENDIX A. 7. The data generated by the Community Monitor’s CPRs are conclusive evidence for determining future compliance and continued improvement in the areas of individual service
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planning and supports, behavior supports, and supported employment. III. Whether Defendants have Substantially Complied with Their Obligations under the JSD,
POA, and APPENDIX A to Provide Adequate Health Care to Class Members. A. Defendants’ Obligations under the JSD, POA, and APPENDIX A to Provide
Adequate Health Care to Class Members. Plaintiffs assert that Defendants have not substantially complied with requirements in the areas of medical services and quality enhancement to the detriment of the quality of class member health care. The goal of the POA with respect to medical services is to enhance the Continuum of Care Project (Continuum) which serves the medical needs of class members. “The emphasis is to improve the knowledge of medical practitioners, statewide, who serve individuals with developmental disabilities. This will be done by increasing the consultation and technical assistance capabilities through improved staffing, technology, and the availability of training and consultation support funds.” POA at 4-5. The POA states that Continuum’s Mission is to improve access to comprehensive medical services for people with developmental disabilities and chronic conditions in New Mexico. Continuum’s approach is to support enhancement of local resources and develop these where not available, rather than supply medical services directly by health professionals on Continuum’s staff. Such support most frequently takes the form of consultation, training and information dissemination. In addition, the results of many of its activities will be long-term in nature; for example, training being done with medical students should improve access once they graduate and go into practice several years from now. POA at 122. The purpose of quality enhancement under the POA is to develop “a structure which will sustain quality enhancement efforts at all levels of the service system. The approach is to develop and implement an organizational structure which is practical and which includes mechanisms to guide quality improvement now and in the future.” POA at 4.
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Plaintiffs specifically contend that Defendants have not substantially complied with the
following JSD, POA, and APPENDIX A provisions related to health care:
1. Medical Services
a. POA Appendix 12, Desired Outcome A, Activity # 5: The Developmental Disabilities (DD) “Division will implement the relevant recommendations of Ellen Ashton from her audits performed at Los Lunas” (this activity is now known as Appendix 15 of the POA). POA at 127.
b. POA Appendix 14, 1998 Audit Recommendation # 25.
2. Quality Enhancement
a. POA Appendix 1, Desired Outcome A, Activity # 2: “To continue to provide on-site reviews to providers in response to identified issues.” POA at 8.
b. APPENDIX A
(1) QE 1: “Develop implementation plan for Division of Health Improvement’s (DHI) assumption of responsibility for corrective action follow-up, including resource requirements.” APPENDIX A at 2.
(2) QE 2: “Address each recommendation in the internal monitor’s October 2003 report.” Id.
(3) QE 5: Prioritize and address areas of concern listed in Dr. Willcox’s report.
(4) QE 6: Department of Health (DOH) “will establish systematic capacity/competence to address medical and behavioral needs of persons served.” Id.
(5) QE 7: “DOH will establish an adequate process for followup after hospitalization to ensure that appropriate medical care is provided.” Id.
(6) QE 8: “Modify Internal Review Committee’s (IRC) procedures to improve its ability to identify deficiencies at provider agencies that require corrective action, for promptly establishing adequate corrective action plans and
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for ensuring that corrective actions are completed in a timely manner.” Id. 1. Medical Services. a. POA Appendix 12, Desired Outcome A, Activity # 5: Ashton Recommendations. POA Appendix 12 (Medical Services) was disengaged on August 24, 2010. AMENDED ORDER FOR PARTIAL DISENGAGEMENT OF PLAN OF ACTION APPENDIX 3 DESIRED OUTCOME L AND PLAN OF ACTION APPENDIX 12 AMENDED OUTCOME A OF THE JOINT STIPULATION ON DISENGAGEMENT (Doc. No. 1755). Moreover, Activity # 5, the Ashton Recommendations, no longer exists because it has since been designated as POA Appendix 15. Appendix 15 has not yet been disengaged. See Def. Ex. i(13) (004669). The Court assumes that Plaintiffs are arguing that Defendants have not substantially complied with the Ashton Recommendations which now appear as Appendix 15. On November 2, 2011, Defendants stated in DEFENDANTS’ POST-TRIAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NON-COMPLIANCE AND IN SUPPORT OF TERMINATION OF THE JACKSON CONSENT DECREE (Doc. No. 1886) at 4 that they have submitted a JSD ¶ 44 notification to Plaintiffs to disengage the Ashton Recommendations. Defendants also stated that they “are prepared to proffer the evidence of Defendants’ compliance if to do so would assist the Court in making a determination.” Id. Defendants then filed on December 15, 2011 DEFENDANTS’ OPPOSED MOTION FOR PARTIAL DISENGAGEMENT AND MEMORANDUM IN SUPPORT REGARDING PLAN OF ACTION APPENDIX 15, ASHTON RECOMMENDATIONS (Doc. No. 1898) (Motion for Partial Disengagement). In response, Plaintiffs filed PLAINTIFFS’ OPPOSED MOTION FOR ADMINISTRATIVE DISMISSAL
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OF, OR IN THE ALTERNATIVE FOR STAY OF BRIEFING ON, OR IN THE ALTERNATIVE FOR AN EXTENSION OF TIME TO RESPOND TO DEFENDANTS’ OPPOSED MOTION FOR PARTIAL DISENGAGEMENT AND MEMORANDUM IN SUPPORT REGARDING PLAN OF ACTION APPENDIX 15, ASHTON RECOMMENDATIONS (Doc. No. 1905) (Motion to Delay Response). The Court granted the Motion to Delay Response, dismissed without prejudice the Motion for Partial Disengagement, and granted Defendants leave to refile the Motion for Partial Disengagement after the Court rules on Plaintiffs’ Renewed Nomcompliance Motion which raises the issue of Defendants’ substantial compliance with the Ashton Recommendations. MEMORANDUM OPINION AND ORDER (Doc. No. 1911), filed Feb. 16, 2012. Consequently, the issue of whether Defendants have substantially complied with the Ashton Recommendations is now before the Court.
The Ashton Recommendations are: 1. Develop a “formal tracking mechanism for [medical] consultations.” Def. Ex.
Vol. X, I-10 (003757). 2. Develop an “[i]nternal forum for team to dispute doctor or recommendations.”
Id. 3. Address chronic medical needs in an Individual Program Plan (IPP). 4. Examine role of registered nurses. 5. “Review current infection control standards,” including staff training on infection
control. Id. 6. Improve infection control standards, including formalized training for staff. 7. Formalize “training of direct care staff and other members of the treatment team
in client diagnosis, medications, side effects, and signs and symptoms of illness.”
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Def. Ex. Vol. X, I-10 (003758).

8. Formalize “training of all staff in strict adherence to OSHA regulations....” Id.

9. Incorporate policy outlining the procedure to utilize medications when not

approved by the Physician’s Desk Reference (PDR) for the intended use.

10. Formalize staff training in the area of community placement.

11. Formalize “training in the IDT process for both medical and nursing

departments.”

Id.

12. “Update all medical and nursing policy and procedures manuals.” Id.

See Def. Ex. Vol. X, I-10 (003757-003758) for Ashton Recommendations. Ms. Ashton first

made these recommendations in 1994 for the Los Lunas Center for Persons with Developmental

Disabilities.

The development of the ECHAT program would probably meet recommendation # 1

which requires a formal tracking mechanism for consultations. Otherwise, the IDT considers

consultation recommendations; and if accepted, a consultation recommendation is placed in the

ISP and into an action plan. Progress notes, appointment documentation, and nurse’s quarterly

health summaries provided evidence of implementation of the consultation recommendation. An

IDT’s disagreement with a consultation recommendation is documented on a decision

consultation form and filed with the original recommendation. TT Vol. IV, 775:8:21.

The 1995 audit or CPR by Linda Glenn indicated a “positive compliance” with

recommendation # 2's requirement that Defendants provide an internal forum to dispute a doctor

or recommendations. Def. Ex. Vol. X, I-10 (003765).

Also, in the 1995 audit, a “positive compliance” was given to recommendation # 3 which

recommends that chronic medical needs be addressed in an IPP. Id. Defendants, however,

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acknowledge that “every single year since 2004, a majority of the individuals, in fact, more than 60 percent of the individuals in each year’s audit is found to have had their team determine that they needed an assessment, and at the time of the audit, the assessment had not been conducted[.]” TT Vol. IV, 776:10-15. Without appropriate medical assessments, Defendants cannot address class members’ chronic medical needs. Moreover, although Continuum provides telephonic consultations and has begun utilizing telemedicine programs, it is often difficult for persons with severe developmental disabilities to receive specialized care in rural towns like Farmington, Clovis, Las Cruces, and Alamogordo, and, therefore, to have their chronic medical needs addressed. Dr. Javier Aceves Deposition, 89:19-91:2; Dr. Antoinette Benton Deposition, 113:25-114:16, 115:13-18, 116:4-10; Dr. Alya Reeve Deposition, 97:16-98:24; TT Vol. V, 893:9-12, 902:16-24; Def. Ex. Vol. V, C-05 (001877- 001878); Def. Vol. XI, K-11 (004108004111).
With respect to recommendation # 4's requirement that Defendants examine the role of registered nurses, Dr. Carol Merovka, a former Chief Medical Officer for the Division of Health Improvement (DHI) and chair of the MRC until February 2009, testified at her deposition about a lack of clarity with respect to the role of nurses. Dr. Carol Merovka Deposition, 104:1-17. See also Paulette Archibeck Deposition, 116:2-6.
The need for staff and nurse training as required in recommendations #s 5, 6, 7, and 8 is also still an issue. For example, Dr. Merovka felt that as of February 2009 direct care staff had not received adequate training with respect to health care needs. Dr. Carol Merovka Deposition, 182:21-25. In addition, the Community Monitor’s finding in 2009 that recommended medications were not found in the class member’s home (although documentation indicated the medication had been given) demonstrates a failure to train staff on medications. Pl. Ex. 14
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(000378); TT Vol. I, 68:1-2. Lack of staff training is also reflected in the Community Monitor’s 2009 findings which include, for example, that (1) aspiration prevention plans were not in place; (2) correct positioning was not being done; (3) ACT recommendations were not being followed; (4) staff were not following mealtime plans; (5) adaptive equipment for safe meal plans were not present; (6) staff were not taking class members to doctor’s appointments as scheduled; and (7) staff were not following orders and guidelines. Pl. Ex. 14 (000378-000379); TT Vol. I, 68:3-12. In April 2010, the 706 Expert agreed with the Community Monitor that specialized meal programs were not being maintained. Pl. Ex. 59 (001679). Dr. Antoinette Benton, a Continuum physician, also agreed that nursing health care plans sometimes are inconsistent with mealtime plans. Dr. Antoinette Benton Deposition, 48:4-10. Then, in November 2010, the Community Monitor updated information on class members with immediate and special needs findings and determined that those findings concerned, among other things, issues regarding aspiration, meal time plans, positioning, and gastroesophageal reflux disease (GERD). Pl. Ex. 26 (000583). These aspiration-related problems arose from deficiencies in treatment planning, lack of staff knowledge, outstanding or disregarded assessments, and failure of staff to conduct aspiration reviews. Pl. Ex. 25 (000564-000565).
Lack of nursing training was also reflected in the 2009 findings by the Community Monitor involving missing nursing assessments, and nursing and crisis plans which were not reviewed or revised to show significant changes in health status. Pl. Ex. 14 (000379). The Community Monitor noted that these failures happened repeatedly. TT Vol. I, 68:23-25. Defendants identified these nursing deficiencies from 2009 to 2011 at certain providers: failure (1) to ensure agency nurse monitoring, (2) to provide adequate oversight of medication administration, (3) to conduct nursing assessments and preventive screenings in a timely manner,
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(4) to develop care plans in accordance with prudent nursing care practices, and (5) to conduct proper training and supervision of direct caregivers. Pl. Ex. 331 (004770-004771). Generally, the 706 Expert has concluded that the quality of service has decreased. TT Vol. II, 303:7-8. The 706 Expert noted that Defendants’ own data shows that providers fail to correct deficient practices as required by the Quality Management Bureau (QMB). TT Vol. II, 377:10-19.
With respect to recommendation # 11, the evidence shows ongoing problems regarding IDT training. For instance, IDTs are unsure about their responsibility to intervene when an inappropriate medical practice is taken or recommended. Pl. Ex. 5 (000249); TT Vol. I, 34:2435:2-9. Furthermore, the Community Monitor in her 2009 CPR found that the IDTs failed to adequately coordinate health care intervention and consultation. Pl. Ex. 14 (000378); TT Vol. I, 67:20-24. She also found that IDTs were not meeting to identify, manage, and attempt to lower aspiration risks. Pl. Ex. 14 (000379). Plaintiffs did not present evidence indicating that recommendations #s 9, 10, and 12 are still outstanding.
In summary, it appears that Defendants have complied with Ashton Recommendation # 1 (development of a formal tracking mechanism for medical consultations) and with recommendation # 2 (development of internal forum to dispute a doctor or recommendations). Issues remain, however, regarding recommendations #s 3, 4, 5, 6, 7, 8, and 11. Addressing chronic medical needs in class members’ plans still falls short as evidenced by the Community Monitor’s finding that a majority of class members do not have recommended assessments performed and by the fact that class members in more remote parts of the state have a difficult time receiving specialized care. In addition, the lack of clarity with respect to the role of registered nurses and lack of staff and nurse training continue to be problems as reflected in the Community Monitor’s findings and by comments from Dr. Merovka and Dr. Benton. Even
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Defendants identified nursing deficiencies from 2009 to 2011. IDT training has also fallen short,
according to the Community Monitor. Finally, Plaintiffs apparently concede that Defendants
have substantially complied with recommendation # 9 (incorporate policy outlining the
procedure to utilize medications when not approved by the PDR for the intended use),
recommendation # 10 (formalize staff training in community placement), and recommendation #
12 (update medical and nursing policy and procedures manuals) by their silence on those
recommendations.
b. POA Appendix 14, 1998 Community Audit Recommendation # 25.
POA Appendix 14, 1998 Community Audit Recommendation # 25 states:
1. The [Developmental Disabilities] Division should follow-up on its recently distributed policy manual on medical coordination with specific training by Continuum of Care for each case management agency. Specific persons served found in the audit to require such actions should be selected by Continuum of Care as examples for hands-on technical assistance and training to each case management agency. Continuum of Care should be assigned to assist the Regional Offices with any technical assistance needed in following up on both individual recommendations from the audit and systemic problems in medical coordination or identification of resources within that region.
2. As the resident population at Los Lunas declines and staff resources are made available, medical assessment and therapy capacity from Los Lunas should be assigned out to the Regions to fill in where there is not now existing specialities [sic] or natural supports for persons served.
POA at 135.
Recommendation # 25 further requires that the Developmental Disabilities (DD) system
insure that persons receive:
a. TD screening for persons on psychoactive medications; b. Blood level monitoring for specific medications; c. Participation of primary care physicians, psychiatrists, neurologists and
other appropriate health care professionals in team meetings, especially when health issues are critical in the life of the person served;
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d. Training for all staff relative to side effects of specific drugs; e. Identification of health care professionals with the skills and commitment
to provide medical services to persons with developmental disabilities; and f. Crisis intervention plans as an integral part of the ISP. Id. Defendants note in their Response to Renewed Noncompliance Motion at 22 that they began the disengagement process for Recommendation # 25 on August 24, 2010. Moreover, Defendants oppose the 1998 Audit Recommendations because they are mostly obsolete. Id. Even so, Defendants state they can show that they complied with those recommendations. For instance, the recommendation # 25 issue of medical care coordination has been problematic, but the new ECHAT program may resolve that issue. See Pl. Ex. 59 (001679); Dr. Alya Reeve Deposition, 134:10-139:17 (the current percentage of people in the DD system who get adequate and appropriate health care coordination is 40-45%). However, Dr. Javier Aceves, the primary investigator for Continuum stated that except for Continuum physicians, primary care physicians do not attend IDT meetings on a regular basis, a recommendation # 25 issue. Dr. Javier Aceves Deposition, 84:5-25. As noted above, staff training problems have arisen regarding medication administration. These problems indicate that staff have not received adequate training on medication side effects, another recommendation # 25 issue. Dr. Carol Merovka Deposition, 182:21-25. In addition, identifying health care professionals with certain specialized skills specific to class members is often difficult in rural areas of the state, and a nursing shortage could affect some class members. Dr. Alya Reeve Deposition, 24:19-25:15, 28:9-16; Dr. Antoinette Benton Deposition, 118:20-119:5. Defendants’ implementation of the ECHAT program may constitute compliance with the requirement in recommendation # 25 which directs Defendants to address medical coordination
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problems. On the other hand, Defendants have not met other portions of recommendation # 25 which, for example, require primary care physicians to attend IDT meetings. Additionally, since there have been problems with medication administration, it seems unlikely that Defendants have provided adequate staff training on medication side effects. Moreover, the undisputed difficulty in finding specialized health care providers in rural parts of the state and the acknowledged nursing shortage strongly suggest that Defendants have not met recommendation # 25's requirement that they identify health care professionals who specialize in caring for persons with developmental disabilities.
2. Quality Enhancement. a. POA Appendix 1, Desired Outcome A, Activity # 2: “To continue to provide on-site reviews to providers in response to identified issues.” POA at 8.
With respect to POA Appendix 1, Desired Outcome A, Activity # 2, the 706 Expert explained that on-site reviews do not always occur if the provider has a protracted history of substandard performance and that a significant lapse of time between on-site reviews usually results. Pl. Ex. 60 (001714). It appears from the January-March 2010 Jackson Quarterly Report (excluding the Southeast Region) that Defendants did not conduct any on-site reviews from July 2010 to December 2010. Pl. Ex. 326 (004682-004683). Although Defendants provide on-site reviews in response to identified issues, those on-site reviews do not appear to always be timely or consistent. Without timely or consistent on-site reviews, Defendants allow identified issues to remain unaddressed, putting the health of class members at risk.
b. APPENDIX A. (1) QE 1: “Develop implementation plan for [DHI’s] assumption of responsibility for corrective action followup, including resource requirements.” APPENDIX A at 2.
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The 706 Expert found in her April 2010 Report that with respect to quality enhancement (QE) “Defendants have established resources and protocols to measure quality of services but these processes do not ensure quality.” Pl. Ex. 59 (001679).20 The 706 Expert concluded that her findings in her April 2010 and February 2011 reports were consistent with the Court’s 1990 findings that Defendants lack control over the community providers and that there is “‘no mechanism for holding service providers accountable for delivering quality services with measurable outcomes that can be tracked through a management information system.’” Pl. Ex. 59 (001679) (quoting Jackson, 757 F.Supp. at 1295); Pl. Ex. 60 (001720) (quoting Jackson, 757 F.Supp. at 1295); TT Vol. II, 276:3-8, 280:21-23. Moreover, the 706 Expert noted in her February 2011 report that although Defendants intended to initiate activities to improve the quality of class members’ health and safety, no measurable outcomes supported the conclusion that the new activities actually improved the quality of health and safety. Pl. Ex. 60 (001721). In addition, the 706 Expert concluded in the 2011 report that “Defendant’s [sic] have not fully developed and implemented effective systems to protect class members from avoidable threats to their health and safety.” Id. at (001722). The 706 Expert testified at the June 2011 evidentiary hearing that Defendants “lack a sense of urgency” regarding health concerns and preventable harm, and that Defendants’ strategies to avoid preventable harm are ineffective. TT Vol. II, 286:15-19.
For example, the 706 Expert, in examining Defendants’ data, found that at one provider, Mosaic, 128 class members were victims of neglect 24 times. The 706 Expert concluded that
20The 706 Expert further found in her February 2011 report that Defendants have not complied with QE 2, QE 3, QE 4, QE 5, and QE 8. Pl. Ex. 60 (001724-001726). Plaintiffs argue, however, that Defendants have not substantially complied with QE 1, QE 2, QE 5, QE 6, QE 7, and QE 8. The Court will focus on the QE provisions with which Plaintiffs assert Defendants have not substantially complied.
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Mosaic had “a pattern of inadequate care, profound neglect, and a failure to identify and respond
to medical emergencies, potentially resulting in death.”21 Pl. Ex. 72 (002115); TT Vol. II,
288:24-289:3. Another provider, Dungarvin, had nine class members as clients who died within
two years. There were three aspiration related deaths, and at least one preventable death which
resulted from a nurse improperly inserting a gastrostomy tube (G-tube). TT Vol. II, 296:2-10.
The nurse who inserted the G-tube that led to the death was referred to the Board of Nursing by
the MRC. TT Vol. II, 335:25-336:8. There were other problems with G-tube management at
Dungarvin that did not result in death. Paulette Archibeck Deposition, 95:14-96:13. Numerous
other examples of neglect at Dungarvin arose from medication error, plans not being followed,
and serious injury. TT Vol. II, 296:11-16. Although Plaintiffs described certain class members
as having received less than satisfactory health care, Defendants presented other evidence
showing instances when the same class members received good health care.22
21Contrary to the 706 Expert’s testimony, one of the class members who died at Mosaic, RK, received a necessary breathing or nebulizer treatment, but that treatment was simply ineffective. TT Vol. II, 289:21-290:8; TT Vol. III, 455:5-9.
22HR had severe cerebral palsy which put him at significant risk for aspiration as well as for other health issues. Consequently, he received an ACT evaluation, received technical assistance from the CSB, was part of the Aspiration Demo Project, received a CARMP, and was recently seen by a Continuum consulting physician. Dr. Sheela Stuart also visited and counseled him on augmentative communication devices. TT Vol. IV, 739:17-743:18. MC had a “trach” and required rehabilitation at Kindred for a couple of months so he could breathe on his own. When he was discharged from rehabilitation, his provider did not believe it could meet MC’s complex needs, so MC was transferred to another provider. Defendants provided technical assistance to the new provider through the CSB and Dr. Stuart. MC also participated in the Aspiration Demo Project and had a CARPM developed for him. Id. at 731:21-735:24. JM, a deceased class member, was recently reviewed in a CPR and was noted in the CPR as suffering from sacral skin breakdown as well as being medically fragile. Pl. Ex. 193 (003085). JM was seen weekly at a wound clinic. Id. Interestingly, the 72-hour mortality investigation of JM does not mention any recommendation by the Community Monitor regarding the skin breakdown. Pl. Ex. 192. The 72-hour mortality investigation documented that the DDSD Regional Office Nurse stated that there were no other individuals at risk in the provider home and no issues with JM’s care. Id. (003082).
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Cathy Stevenson, Deputy Director of DDSD, is the co-chairperson of the Developmental Disabilities Steering Committee on Quality Improvement (DDSQI). She spends up to ten hours a month chairing the DDSQI and the time she devotes to implementing planning efforts or to follow-up from the DDSQI varies. TT Vol. IV, 702:4-703:17. Curiously, at the time of her deposition, Ms. Stevenson did not know whether a majority of providers failed their QMB compliance surveys in the past year. TT Vol. IV, 707:16-708:13. January 21, 2010 was the last time the QMB submitted a report to the DDSQI regarding provider surveys. Pl. Ex. 296 (004216-004224). The DDSQI sent that report back to QMB for additional work. The DDSQI has not yet received that formal QMB report although it does receive information from QMB. TT Vol. IV, 709:22-712:1. Nonetheless, in the third year of New Mexico’s current DD Waiver, 27% of provider surveys did not show compliance with DD Waiver requirements. Pl. Ex. 305 (004334).
Starting in 2005, DHI investigators took over managing and monitoring provider corrective actions resulting from DHI investigations of incidents. Carl Martinez Deposition, 12:3-14. A report in October 2008 issued by Janet Simons, a Columbus Organization consultant for Defendants, found that only 13% of incident investigation files she reviewed contained a copy of the provider’s corrective or preventive action documents. Janet Simons Deposition, 44:1-10, 45:24-46:13.
DHI also maintains an electronic database of information on direct service staff who, according to an IMB investigation, was found “to have engaged in a substantiated registryreferred incident of abuse, neglect and/or exploitation of a person receiving care or services from a provider.” Def. Ex. Vol. II, Z-02 (000426). The protocol for conducting investigations, filing reports, and conducting follow-up is outlined in Incident Management System Policies and
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Procedures (revised 5-29-06). Pl. Ex. 194 (003110-003123). Representatives from DHI, IMB, QMB, DDS, the Aging and Long Term Services Department, and Adult Protective Services have monthly and quarterly regional meetings to review patterns and trends in findings from the various entities, to develop corrective actions, and to determine whether or not a corrective action has resulted in “the desired effect.” TT Vol. II, 264:20-265:7; Pl. Ex. 194 (003135). IMB investigators are expected to attend these regional meetings as well. Pl. Ex. 194 (003135).
The evidence indicates that Defendants can and do identify provider-related problems that affect the health of class members. Defendants have several means of addressing these problems. For instance, providers can perform corrective actions and future harm can be averted through the electronic database identifying abusive direct service staff. Moreover, Defendants have a protocol for conducting investigations, filing reports, and following up on problems at provider facilities.
Although Defendants have taken steps to address provider accountability, they have not always been effective as demonstrated by the multiple serious problems which occurred over a significant period at providers like Mosaic and Dungarvin. The 706 Expert suggests that Defendants need to develop measurable outcomes from which they can determine the actual effectiveness of their actions in keeping providers accountable. Despite Defendants’ good intentions, the actual effectiveness of Defendants’ actions regarding follow-up on corrective actions is uncertain.
(2) QE 2: “Address each recommendation in the internal monitor’s October 2003 report.” APPENDIX A at 2.
Plaintiffs argue that Defendants have not substantially complied with QE 2 which contains 23 subparts. Plaintiffs, however, have not identified the problematic subparts. In
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general, QE 2 addresses provider performance and accountability, and ways to ensure that

provider services are not substandard and harmful to their clients. The 706 Expert concluded in

the February 2011 report that many (but not all) of the QE 2 subparts had not been met. Pl. Ex.

60 (001724-001725). Defendants contend that they have complied with all of the subparts. The

Court will focus on those QE 2 subparts which the 706 Expert found had not been met and will

discuss the subparts in a collective manner by considering the Community Monitor’s findings

and recommendations, the 706 Expert’s findings and recommendations, the QMB, the IMB, and

the MRC and DDSQI. The QE 2 subparts at issue are:

QE 2.1-IM:

“[E]stablish responsibility for the identification of patterns of incidents specific to a provider or individual.” TABLE OF ALL JACKSON COURT ORDERED OBLIGATIONS (Doc. No. 1884-1) at 9, filed Nov. 2, 2011.

QE 2.2-IM:

“[E]stablish responsibility for incorporating information on providers with serious patterns of incidents into other information on provider performance to assess level of substandard performance and determine appropriate administrative action/sanction.” Id.

QE 2.3-IM: “Require that risk assessments and preventive action plans be developed for individuals who experience multiple incidents and that IDTs review incidents in relation to the assessments and plans.” Id. at 10.

QE 2.4-IM: “Establish requirements including time frames for completion of corrective action on incidents where follow-up is requested.” Id.

QE 2.5-IM: “Formalize DHI’s [Incident Management Bureau (IMB)] role with Long
Term Services Division (LTSD)’s ROB in jointly determining acceptance of corrective action to incidents where follow-up is requested.”23 Id.

QE 2.6:

“Require providers to develop and implement approved Corrective Action Plans (CAP) with specified timeframes.” Id.

23LTSD is now known as the DDSD. The Court is unable to discern what “ROB” is. 46

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QE 2.8:
QE 2.9: QE 2.10: QE 2.11: QE 2.12:

“Establish levels of provider compliance with review requirements and tie into the frequency of provider review and/or length of provider contract.” Id.
“Resolve the functions of the Mortality Review Committee and the process for performing death investigations and mortality review.” Id.
“Reinstitute a tracking system for mortality reviews and the recommendations for follow up.” Id.
“Establish responsibility for assuring that provider and/or systemic corrective action has occurred.” Id.
“The definitions of substandard performance need greater specificity so that there is no confusion concerning which level of substandard performance applies to a provider. More examples may assist in reducing confusion.” Id.

QE 2.13: QE 2.14:

“Fix responsibility within LTSD or DHI unit to determine whether there is substandard performance and, if so, at what level. Require that unit to initiate action within DOH to establish the administrative action or sanction.” Id.
“Develop and implement ‘triggers’ for substandard performance that places consumers at imminent risk to their health and safety. These triggers would prompt immediate action to eliminate the risk.”24 Id.

QE 2.15: QE 2.18:

“Change the culture within LTSD and DHI from disbelief to belief that there are serious consequences to provider substandard performance.” Id.
“Establish responsibility for the collection of all performance information with one unit that is charged with its analysis.” Id.

24QE 2.14 appears to be the same as QE 2.22. 47

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QE 2.19:

“Utilize the information to modify LTS/Quality Management program.”25 Id.

QE 2.20:

“Expand the regional monthly meetings on trends analysis and incidents to include QMB and provider review performance.” Id. at 11.

QE 2.21:

“Develop and implement an integrated database for provider performance.” Id.

QE. 2.23:

“Establish authority for determining administrative actions/sanctions for substandard performance with the Director of DHI or with the Program Deputy Secretary.” Id.

(a) The Community Monitor’s Findings and Recommendations.

Unquestionably, Defendants have an organizational commitment to deliver quality

medical care to the class members that is at least at the same level as the care provided to the

non-developmentally disabled in New Mexico. Def. Ex. Vol. V, C-05 (001880). Nonetheless,

in 2004, the Community Monitor, out of concern for the health and safety of class members,

created and assigned the categories of “immediate” and “special” needs so that the more

vulnerable class members could receive prompt attention from the providers and Defendants.

Pl. Ex. 8 (000292). The 2004 CPR reported that 44% of the sample class members needed

immediate or special attention. Pl. Ex. 6 (000272). The Community Monitor, therefore,

recommended a health and safety screening of all class members to begin in 30 days. Id. As of

2011, the Community Monitor considers this recommendation unmet. Def. Ex. Vol. III, H-04

25Defendants did not submit evidence showing they met QE 2.19 and QE 2.23. Little or no evidence on those subjects was introduced at the June 2011 evidentiary hearing. If the Court finds it necessary to consider QE 2.19 and QE 2.23 in deciding the compliance issue, Defendants request an opportunity to proffer evidence that they have met their obligations under QE 2.19 and QE 2.23. Because the Court will examine compliance with the QE 2 subparts collectively, it is unnecessary at this time for Defendants to provide specific evidence regarding compliance with QE 2.19 and QE 2.23.

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(000887). Issues have arisen, and continue to persist, as to the definition of “immediate”and “special” needs. Defendants feel that having to address findings of immediate and special needs has “raised the bar” on their commitment to responding to the Community Monitor’s recommendations. TT Vol. I, 108:7-110:24, 111:2-113:24, 114:1-115:6; Pl. Ex. 7 (000288000289); Def. Ex. Vol. III, T-04 (001005).
The Community Monitor in her 2009 CPR found a dramatic increase in the number of class members with immediate and/or special needs. Pl. Ex. 14 (000377, 000385-000386). The Community Monitor also identified in the 2009 CPR the “[n]eed to assess, coordinate, plan for, and effectively address class members’ health and safety needs.” Id. (000378). She emphasized the importance of aggregating statewide data by percentages in order to demonstrate the nature and scope of these problems. Id. The Community Monitor reviewed 108 class members for the 2009 CPR and found that 74% of those class members were not having their health supports and needs adequately addressed; 37% of the IDTs lacked evidence that they had discussed the individual’s health needs; and 68% of the class members reviewed had IDT participants who could not describe the class members’ health needs. Id. (000378, 000390, 000397); TT Vol. I, 67:4-11.
More specifically, the Community Monitor concluded: (1) class members were found to be at high and increasing risk due to chronic, multiple, and complicated medical conditions, but their IDTs failed to adequately coordinate health care needs; (2) class members were not receiving recommended hydration, medication, or G-tube feedings; (3) recommended medications were not found in class members’ residences although documentation noted that the medications had been given; (4) class members at risk of aspiration lacked necessary aspiration prevention plans; (5) ACT recommendations were not being followed; (6) class members
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experienced multiple episodes of aspiration and aspiration symptoms, emergency care, and hospitalizations; (7) IDTs were not identifying, managing, and attempting to lower these aspiration risks; (8) class members were not being positioned correctly; (9) staff members were not following meal plans and adaptive equipment for safe meals were not present; (10) staff members were not administering medications consistent with doctors’ orders, were not taking class members to doctors’ appointments as scheduled, and were not following other medical orders and guidelines; and (11) lack of health care coordination resulted in missed nursing assessments, missed medical appointments, lack of hospital and emergency room documentation, and health care plans that failed to show significant changes in health status. Pl. Ex. 14 (000378-000379).
The Community Monitor testified that these kinds of problems were “found again and again.” TT Vol. I, 68:23-25. For instance, from 2000 to 2009, there were 114 repeat recommendations for 83 class members regarding health diagnosis, assessment, intervention, treatment, and follow-up issues. Pl. Ex. 25 (000565). The Community Monitor, therefore, renewed her recommendation that all class members receive ongoing health and safety assessments, that all class members receive individualized plans which include interventions and strategies to minimize risks, and that Defendants adopt a process to evaluate, review, and report the efficacy of those plans on a quarterly basis as well as to offer class members external consultations when necessary. Pl. Ex. 14 (000379). The Community Monitor’s June 2010 Quarterly Report documented the number of class members between 2004 and 2009 whose immediate and special needs findings related to swallowing, mealtime, and diet issues. Pl. Ex. 25 (000564-000565).
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Defendants and the Columbus Organization consultant, Janet Simons, studied the increase in immediate and special needs findings in the 2009 CPR, and concluded the reasoning for determining immediate or special needs was unclear. Def. Ex. Vol. III, F-04 (000873000878). In 2009, the Community Monitor had changed the definition of “immediate need” to add the word “effectively” which meant that the definition is applied on a case by case basis. TT Vol. I, 135:21-136:21. In 2010, needs the Community Monitor identified as “immediate” were referred to the IMB, which found no evidence of neglect under its definition of “neglect.” Def. Ex. Vol. I, F-02 (000304); Def. Ex. Vol. I, G-02 (000305).
Ms. Simons, the head of the CICC, questioned the Community Monitor’s definition of a “repeat” recommendation. Janet Simons Deposition, 183:20-184:15. Many of the repeat recommendations were only partially related to the original recommendation, and repeat recommendations sometimes occurred in non-consecutive years. Id. Moreover, it appears that when a guardian or parent refused a recommendation, the Community Monitor recorded that decision as a repeat recommendation. Def. Ex. Vol. III, U-04 (001008-001009).
In 2008, Defendants asked the Community Monitor to raise individual health and safety concerns in Regional Office Request for Regional Intervention (RORI) forms which are submitted to a regional committee charged with reviewing provider compliance issues. Use of the RORI, however, did not result in follow-up actions by Defendants and responses, when received, were untimely. Furthermore, initial information the Community Monitor received on three class members for whom she submitted RORI forms was not adequate to determine the status of those class members. Pl. Ex. 14 (0000378); Pl. Ex. 25 (000561-000562); TT Vol. I, 132:7-134:10.
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In 2009, the Community Monitor believed that Defendants had not taken full action on many recommendations from the 2004 to 2008 CPRs regarding health, wellness, and adaptive technology. Defendants, on the other hand, insist that they have adequately addressed most of those recommendations and rightly dispute a handful of the Community Monitor’s recommendations. For instance, in 2009, Defendants implemented the Health Assessment Tool (HAT) which an agency nurse conducts prior to the annual ISP meeting, or after a hospital discharge, or when there is a change in condition. TT Vol. I, 108:17-22. Defendants also implemented the Medication Administration Assessment Tool (MAAT) which is conducted at least annually to ensure accurate medication delivery. TT Vol. I, 108:22-25. In 2004, Defendants promulgated policies and procedures for, and began training on, aspiration risk management.26 TT Vol. IV, 750:9-12; TT Vol. V, 925:7-17. New aspiration risk policies and procedures were issued in August 2010. TT Vol. IV, 750:12-22. In 2008, Defendants instituted the ACT adopting the 706 Expert’s recommendation. In about 18 months, the ACT assessed 281 persons identified as having a high risk of aspiration. TT Vol. II, 338:20-339:7, 342:22-343:3; TT Vol. IV, 737:7-11, 747:23-748:2. In 2008, Defendants also revised the DDSD Aspiration Management Work Plan which relates to systemic aspiration issues. Def. Ex. Vol. II, N-02 (000344-000346). Defendants continue to measure the effectiveness of the ACT by tracking whether persons on the SARL have a current CARMP in place. TT Vol. IV, 781:1-13.
26Even earlier, during 1999, Defendants established the Supports and Assessment for Feeding and Eating Clinic (SAFE) to support teams in their treatment of aspiration. The SAFE program was developed in collaboration with the Center for Development and Disability through the University of New Mexico Health Sciences Center and Continuum. The SAFE clinic has a registered dietician, a physician, a physical therapist, and a speech pathologist on staff. TT Vol. IV, 748:3-25. Additionally, Continuum helped Defendants devise a screening tool to identify persons who had not yet been assessed for aspiration risk. This program is called the Statewide Aspiration Risk List (SARL). TT Vol. IV, 749:8-23.
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Also, in 2008, the Community Monitor questioned the ACT assessments but noted that, overall, Defendants’ aspiration materials were “very helpful.” Def. Ex. Vol. III, R-04 (000963, 000965-000966). Continuum physicians had developed the ACT assessment tool and Dr. Aceves had tested the tool. TT Vol. II, 340:15-24; TT Vol. V, 922:24-924:29. To determine whether the ACT and other aspiration initiatives were effective, Defendants in 2009 engaged the DOH Division of Epidemiology to survey and analyze the rates of hospitalization and deaths due to aspiration pneumonia in the HCBW population. TT Vol. II, 341:16-342:6; TT Vol. V, 1096:12-1097:17; Def. Ex. Vol. II, D-03 (000573-000574). This is an ongoing project. TT Vol. V, 1097:22-23; Def. Ex. Vol. II, D-03 (000573-000574).
Defendants also initiated the Aspiration Demo Project in 2009 at the recommendation of the Community Monitor. The Aspiration Demo Project identified 15 persons at high risk for aspiration and gave them extensive consultation. Although the Aspiration Demo Project concluded in the spring of 2010, the Aspiration Demo Project continued to evaluate the CARMPs for those 15 persons a year later in order to determine how well staff completed the next CARMPs. TT Vol. IV, 737:12-19, 752:16-753:3. The Aspiration Demo Project led to the more widespread use of CARMPs. TT Vol. IV, 737:13-21.
Finally, ECHAT was intended to replace HAT by the end of 2011 to help alleviate health care coordination issues. The ECHAT program should address many of the health care coordination issues raised by the Community Monitor. Def. Ex. Vol. III, G-04 (000880). This system should guide nurses as to when a health care plan is required. TT Vol. IV, 759:18-21. ECHAT also has an aspiration screening tool, a medication administration tool, and a health tracker to monitor medical appointments, lab results, weight, emergency room visits, allergies, hospitalizations, and seizure frequency. TT Vol. IV, 759:22-762:6. Significant events are also
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reported in the ECHAT program. All class members were to be enrolled in the ECHAT program by the end of 2011.
The Community Monitor’s main concern with Defendants’ various programs is the lack of measurable indicators to demonstrate the effectiveness of the programs. TT Vol. I, 74:2075:17. The Community Monitor observed in her testimony at the June 2011 evidentiary hearing that forms, policies, and even “great procedures” are ineffective if they do not protect people. For example, although the HATs appear to be a good idea, they still do not “trip the kind of preventative identification of health care issues that put people in jeopardy....” TT Vol. I, 113:424. This conclusion is borne out by the Community Monitor’s CPRs which have included 700 evaluations since 2004. TT Vol. I, 113:14-15. Moreover, the Community Monitor recommended in 2004 that the health and safety screening of class members be done within 30 days. The HAT was instituted five years later and is an annual tool, although it should also be used “upon any hospital discharge or change in condition.” TT Vol. I, 108:17-22. Implementation of the ECHAT tool had also been delayed; it should have been installed in 2007. TT Vol. I, 114:1-115:6. At the individual level, the Community Monitor would like to see health status outcomes established for each class member and identification of each class member’s risk factors in order to measure Defendants’ efforts to provide minimally adequate health care for each class member. TT Vol. I, 96:3-8.
Although Defendants dispute the definitions of immediate and special needs as well as the use of the term “repeat” recommendations, Defendants feel that addressing those needs and repeat recommendations are additional hurdles not included in the previous CPRs conducted by Ms. Glenn. The Court does not doubt that, in general, the concepts of immediate and special needs categories and repeat recommendations would be helpful in gauging how well providers
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are performing. However, those concepts could be better defined by the parties. In addition, the parties should re-evaluate the way the Community Monitor uses RORIs so as to ensure the most effective approach for addressing individual health and safety issues.
Defendants have responded to many of the Community Monitor’s recommendations by engaging in well-intentioned activities like implementing the HAT program, the MAAT program, ECHAT, and various aspiration programs including the ACT, the Aspiration Demo Project, and CARMPs. The effectiveness of these programs remains at issue, however.
(b) The 706 Expert’s Findings and Recommendations. The 706 Expert observed in her February 2011 report that although DDSD reported in 2009-2010 that it would initiate activities to improve class members’ health and safety, no measurable outcomes are available to document whether those activities had the intended effect. Pl. Ex. 60 (001721). The 706 Expert concluded that Defendants “have not fully developed and implemented effective systems” to prevent avoidable threats to the health and safety of class members. Id. (001722). In other words, according to the 706 Expert, the level of the quality of provider services has decreased. TT Vol. II, 303:7-8. The 706 Expert testified at the June 2011 evidentiary hearing that the mechanism for holding providers accountable must be changed because it is inadequate, as demonstrated by the “adverse outcomes and the protracted histories of some of these providers.” TT Vol. II, 307:412. As noted above, the 706 Expert went so far as to state in her 2010 and 2011 reports that her findings are consistent with Jackson, 757 F.Supp. at 1295, wherein the Court found in 1990 that “Defendants lack control over existing community providers,” and that there is “no mechanism for holding service providers accountable for delivering quality services with measurable outcomes that can be tracked through a management information system.” Pl. Ex. 59 (001679);
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Pl. Ex. 60 (001720). The troubling findings by both the Community Monitor and the 706 Expert demonstrate
that these programs are not necessarily achieving the desired outcomes. A lack of efficacy negatively affects the quality of the providers’ performance. As both the Community Monitor and the 706 Expert note, Defendants need to develop measurable indicators of the effectiveness of Defendants’ programs and to improve the delivery of the programs’ services.
(c) The QMB. DHI oversees the QMB, which is responsible for conducting routine surveys or reviews of providers in the DD system. TT Vol. II, 261:9-11. “QMB coordinates with other divisions of the DOH and state agencies to assure compliance with program, contractual and quality standards.” Def. Vol. II, Z-02 (000426). The QMB has three components: “(1) Program Monitoring and Evaluation, which involves on-site reviews and other quality improvement activities related to DOH funded or operated programs; (2) the Community System Quality Review (SQR), a client centered review of [DD] Waiver individuals in the community; and (3) Continuous Quality Improvement activities conducted in partnership with other state agencies and provider groups.” Id. The QMB is required to survey providers when they initially become providers; then, to conduct routine surveys every three years or sooner depending on the status of the provider with DOH; and to conduct focused reviews when there are specific issues or concerns. TT Vol. IV, 727:18-728:8; Def. Ex. Vol. II, Z-02 (000427). If deficiencies are identified in a survey, a corrective action plan is required, and the QMB must conduct a verification survey. TT Vol. II, 261:14-18; Pl. Ex. 32 (000760-000764); David Rodriguez Deposition, 67:10-23. The purpose of the survey is to ensure that providers are meeting “all applicable state and federal requirements
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and to evaluate compliance with DOH/ DDSD Service Standards.” Def. Ex. Vol. II, Z-02 (000427). QMB reviews or surveys can lead to the implementation of corrective actions to eliminate further risk to class members.
Between 2009 and the spring of 2011, the QMB generated a series of reports and letters regarding three large community residential providers (Los Lunas, Mosaic, and Dungarvin) and their failures to comply with federal and state standards concerning health, safety, and welfare of DD Waiver individuals. Pl. Ex. 41-56; TT Vol. II, 203:22-205:15. The QMB identified numerous nursing care deficiencies at those three providers. Pl. Ex. 331 (004770-004771). Consequently, the QMB directed them (1) to develop and implement policies and procedures for effective incident management systems as well as quality improvement processes, (2) to increase accountability in medication administration and storage, (3) to ensure implementation of individual crisis and health care plans, (4) to collaborate and communicate with external health care providers, and (5) to develop systems to ensure the health, safety, and welfare of individuals. Id. In addition, the QMB required the providers to ensure that all personnel are qualified, trained, and competent to deliver services effectively, and to arrange for the appropriate quantity and quality of nursing performance and oversight. Id. The Community Monitor explained at the June 2011 evidentiary hearing that “we need clear expectations regarding the involvement of nurses in an oversight and consultative and training role, and that that should be developed, implemented and enforced.” TT Vol. I, 61:11-15.
Over the course of 2010, the QMB re-visited Los Lunas, Mosaic, and Dungarvin, warned them about ongoing deficiencies, and required them to submit corrective action plans. In response to the warnings, Defendants only received “repeated submissions of non-responsive plans without evidence of necessary corrective measures.” Pl. Ex. 331 (004771). These
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providers were subsequently referred to the IRC for failure “to sustain corrective action and to develop quality assurance and quality management systems....” TT Vol. II, 204:25-205:6; Pl. Ex. 331 (004771).
In October 2010, the IRC recommended sanctions against Mosaic for the death of one of its clients. The sanctions committee, made up of the DHI division director and the DDSD division director, did not act on that recommendation because “it fell between the cracks.” TT Vol. IV, 855:21-857:8. As of the spring of 2011, all three providers continued to have significant problems with their provision of “health supports and services.” TT Vol. II, 205:915.
Another provider, Tresco, also had repeated incident reports concerning delays in providing medical treatment. TT Vol. II, 296:21-25. In 2009 at Tresco, 11 class members were victims of health-related neglect 13 times, one class member was abused, and two class members died. Id. at 297: 9-11. In the first quarter of 2011, six class members were victims of medicalrelated neglect seven times. Id. at 297:15-17.
In examining state fiscal years (FY) 2007-2009, Defendants found that “on average 1520% of providers [were] referred to the IRC for actions.” Pl. Ex. 70 (002100). Generally, the same 10-15% of providers were referred repeatedly to the IRC. Id. Defendants determined that the absence of the implementation of timely corrective actions or follow-up on corrective actions continued to be the largest issue with all providers in FY 2009; this was consistent with QMB findings intimating that providers have failed to implement adequate quality assurance and improvement systems. Id. Other QMB data showed that 75% of providers surveyed later in FY 2010 “had new and/or repeat deficiencies....” Pl. Ex. 74 (002131).
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Defendants established the QMB to timely review or survey providers in order to ensure compliance with DDSD Service Standards as well as state and federal requirements, and to ensure correction of those deficiencies in a timely manner. The QMB does indeed discover deficiencies at providers’ facilities and requires those providers to submit corrective action plans. Providers who submit non-responsive corrective action plans are referred to the IRC for sanctions and the IRC can, in turn, refer the matter of sanctions to the IRC sanctions committee. Although this process appears adequate to assure provider accountability, in certain situations, the time frame for reaching accountability amounts to years. In one case, the IRC sanctions committee simply did not act on a recommendation for sanctions when a death occurred. Despite the QMB’s established oversight process, a significant percentage of providers have new and/or repeat deficiencies and fail to furnish adequate care as required by the QMB.
(d) The IMB. The IMB “‘triages’ reports received for investigation, assigns an investigator, completes the investigation within 45 days” and reports findings and recommendations to the IMB manager. Def. Ex. Vol. II, Z-02 (000425). The IMB manager then reviews the findings and recommendations “to determine if a preponderance of the evidence supports” abuse, neglect, or exploitation. Id. “Findings are shared with the responsible provider and DDSD.” Id. The IMB subsequently determines whether a follow-up onsite review is necessary to decide if “appropriate and timely actions have been taken to protect the individual receiving services from a community-based provider.” Id. If a provider fails to take appropriate and timely action, the IMB can refer that provider to the IRC to determine what actions should be taken. Id. The IMB maintains a database to track incidents. Id. The IMB uses the database to analyze and trend incidents with respect to “individual consumers, specific providers, and for the
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system as a whole.” Id. The IMB generates quarterly and annual reports for the DD Waiver and general fund providers. Id.
Additionally, the IMB meets with various entities, including QMB, on a monthly and quarterly basis, by region, to discuss, among other things, individuals with patterns of multiple incidents (more than three incidents in a quarter). Id.; Pl. Ex. 194 (003135); Janet Simons Deposition, 133:11-19; Alice Maes Deposition, 137:16-21, 140:8-20. The groups at these meetings examine patterns and trends, develop corrective actions, and determine whether or not a corrective action “has had the desired effect.” TT Vol. II, 264:20-265:7. IMB investigators are expected to attend these regional meetings as well. Pl. Ex. 194 (003135).
The IMB also requires the IDT to meet when there is a confirmation of abuse, neglect, or exploitation. Alice Maes Deposition, 145:5-10. Moreover, the IMB requires the IDT to meet when there are three confirmed incidents in a quarter. Def. Ex. Vol. II, Z-02 (000425). The IDT then conducts a risk assessment and writes a prevention plan. Id. Compliance is tracked by IMB. Id.
Alice Maes, the IMB Chief since April 2008, sees data that tracks the kinds of events that most frequently trigger incident reports on a monthly and quarterly basis. Alice Maes Deposition, 12:10-11, 68:20-25. The IMB last created an annual report on the trends of events that trigger incident reports in 2008. Id. at 71:19-72:3. Ms. Maes has not issued any written reports comparing trend data from year to year. Id. at 72:8-11.
Most of the time, IMB field investigators refer cases for “follow-up” because a provider’s corrective action plan has not been timely submitted. Id. at 112:6-16. The IMB tracks how many cases go to follow-up and how many of those cases are referred to the IRC for having untimely corrective action plans or substantively unacceptable corrective action plans.
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Id. at 113:1-5. The IMB does not separate the untimely corrective action plans from the substantively unacceptable corrective action plans in its tracking; however, if necessary, that information can be separated for examination. Id. When a class member dies, the IMB participates in a teleconference held by Defendants’ contract Specialty Surveyor, Nurse Barbara Burr Sharp, to review the circumstances of the class member’s death. Id. at 114:12-115:12.
Most of the time, IMB field investigators obtain copies of provider corrective action plans and place them in the case file. Id. at 218:2-25. The IMB, however, has apparently not done a review to assess the percentage of corrective action plans actually obtained and placed in case files. Id. at 219:2:24. Moreover, the IMB, as of April 2011, had eight vacant investigator positions and a vacant manager position. Id. at 34:6-36:16.
Similar to the QMB, Defendants established the IMB to investigate provider abuse, neglect, or exploitation, and to ultimately protect individuals from abusive situations by placing copies of provider corrective action plans in case files and referring cases for follow-up or sanctions. Aside from its investigations and follow-up activities, the IMB fulfills its duties through various means including (1) maintaining a database to track incidents and compliance, (2) producing quarterly and annual reports, (3) attending monthly and quarterly meetings with various entities to discuss corrective actions and patterns of incidents, involving IDTs, and (4) participating in telephonic meetings with the Specialty Surveyor in the case of a death. Despite all this activity, the IMB does not always compile the information it gathers into meaningful reports by which provider performance could be better evaluated. Notably, the IMB is shortstaffed.
(e) The MRC and the DDSQI. As mentioned previously, MRC policies and procedures were revised March 1, 2010 and were based on the essential national recommendations found in the United States Government
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Accountability Office’s recommendations for HCBW mortality review committees. Interestingly, Dr. Willcox observed in 2003 that the Mortality Review Policy and Procedures “with a few minor changes, appear[] to be more than adequate to serve the Department's needs.” Def. Ex. Vol. VI, V-05 (002061). Even so, Defendants’ own expert, Dr. Ric Zaharias, recommended in his expert report on DDSD’s mortality review process that Defendants should follow the timelines laid out in their policy, involve “stakeholders in the actual mortality review process,” and more consistently present case closure documentation for each MRC reviewed death. Def. Ex. Vol. V, B-05 (001867).
Dr. Zwick, the 706 Expert’s consultant on mortality reviews, found that Defendants’ mortality reviews were “excellent,” had good recommendations, and were consistent. TT Vol. III, 464:3-7. Dr. Zwick’s complaint with the mortality reviews was that he could not determine from the documents he examined the extent to which the MRC’s recommendations were being implemented. Id. at 464:7-22. The 706 Expert, in her February 2011 report, noted that “[a]lthough process has improved in some areas, timeliness of getting cases to the MRC [for] review and use of information generated by investigators and reviewers is not used for systemic enhancements.” Pl. Ex. 60 (001721). In addition, the 706 Expert acknowledged that Defendants reported that during 2009-2010 they initiated various activities to improve the quality of class member health and safety, but the 706 Expert also stated that “there is an absence of measurable outcomes to support the activities have had the intended impact.” Id. Dr. Aveces recommended that Defendants work with Continuum to evaluate outcomes. TT Vol. V, 936:21-937:7.
Dr. Ralph Hansen, the DDSD Medical Director hired in the fall of 2010, receives three mortality reports: one from DHI, one from Continuum which began performing mortality reviews in 2009, and one from Ms. Sharp, the DOH contract Specialty Surveyor who began
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work in 2009. Dr. Ralph Hansen Deposition, 167:7-10; Def. Ex. Vol. VI, F-05; TT Vol. V, 915:17-22. The DHI report sets forth an informational background on the deceased while the Continuum report “does a good job at identifying and prioritizing important issues, important faults or criticisms of the care and recommendations based–recommendations for education or improvement of a systems problem.” Dr. Ralph Hansen Deposition, 167:15-168:14. Ms. Sharp’s mortality reports are “very effective and usually quite complete....” Id. at 166:7-10. In addition, Ms. Sharp reviews the DHI mortality reports and participates in telephone conferences with DHI and others to go over the reports and to discuss recommendations to improve client care. Barbara Burr Sharp Deposition at 70:13-71:20, 75:13-23. DHI is responsive to Ms. Sharp’s input in a timely way. Id. at 71:21-72:1.
While Continuum physicians give advice to providers and IDTs regarding medical care of class members, Continuum physicians also conduct mortality reviews of class members. To avoid a conflict of interest by giving advice for a class member and then performing a mortality review of that class member, Continuum excludes the physician who gave the advice from the mortality review and assigns a different person, preferably from another region of the state, to perform it. TT Vol. V, 914:11-17; Pl. Ex. 182. Furthermore, Dr. Aceves, a Continuum principal, contracts with the Columbus Organization to perform mortality reviews of persons with intellectual and developmental disabilities nationwide. TT Vol. V, 911:7-24.
Nevertheless, Dr. Hansen conceded in his deposition that the mortality review process could be improved (1) by his participation in the background review before the mortality review process is completed, (2) by focusing the mortality review to more clearly identify systemic problems, (3) by clearly documenting corrective action plans, (4) by identifying markers to track outcomes, and (5) by removing barriers between DHI and DDSD. Dr. Ralph Hansen
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Deposition, 5:13-17, 91:3-93:1. Dr. Hansen further agreed that monitoring systemic issues to determine if actions result in problem resolution would be good, but difficult to do. Id. at 158:22-159:3, 163:6-164:1. Dr. Hansen also noted that the DDSQI does not interact with the MRC, even though the DDSQI has been in operation for over a decade and includes representatives from DHI, the DD Division, DDSD, and Medicaid, and the purpose of DDSQI is to ensure “continuous improvement of services and supports” for the developmentally disabled as well as to take timely action when systemic problems arise. Id. at 151:6-18; TT Vol. IV, 666:3-16. Moreover, no one in DHI or DOH has provided Dr. Hansen with a copy of the quality improvement plan on mortality review issues developed by Dr. Merovka. Dr. Ralph Hansen Deposition at 157:17-158:6. Finally, DHI currently is not reporting on the status of implementation of recommendations at each MRC meeting. Id. at 164:17-24.
Generally, the substance of the MRC reviews is very good and the process has improved. As in other endeavors by Defendants, the issue of whether the MRC reviews are effective, i.e., whether recommendations in the MRC reviews are implemented by Defendants in a timely manner, remains a problem. In other words, the mortality review process can be further improved to identify and correct systemic issues. Monitoring implementation of MRC recommendations and developing measurable outcomes to determine the effectiveness of Defendants’ actions is necessary to have the MRC process improve the DD system. Moreover, the DDSQI should, theoretically, aid Defendants in making necessary systemic changes. The Court, however, is unsure whether the DDSQI is actually used or is just another layer of bureaucracy that may hinder rather than advance progress.
(f) General Observations Regarding QE 2. In sum, Defendants have generally done a great job of putting together processes and policies with the goals of overseeing and ensuring adequate provider performance. As explained
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above, implementing those processes and policies in a timely and effective manner to force providers to deliver adequate health care to class members remains a barrier to substantially complying with QE 2. The Court believes that Defendants need to take their actions a step beyond what they are already doing. For instance, Defendants should (1) cooperate with the Community Monitor to define special and immediate needs and repeat recommendations in a more meaningful way; (2) discuss with the Community Monitor the effective use of RORI forms; (3) develop measurable outcomes to determine the effectiveness of their various programs and procedures; (4) evaluate information they have already gathered in more meaningful and useful ways; and (5) look at ways to implement the lessons of the MRC process to make it an effective tool for positive change to the entire DD system.
(3) QE 5: Priortize and address areas of concern listed in Dr. Willcox’s Report.
Dr. Willcox’s quality enhancement areas of concern (a total of 60 areas) address issues regarding health care coordination and communication, nurse training and performance, aspiration risk management, and the purview of physicians’ practices. See Pl. Ex. 179. Defendants have over the years prioritized those QE areas of concern and developed action plans to address them. However, it appears from a March 25, 2009 DOH status report that many of the 60 areas of concern regarding quality enhancement have not been fully addressed. Def. Ex. Vol. X, K-10; Attachment 1 (Doc. No. 1884-1) at 11-13, filed Nov. 2, 2011. The latest action plan in the record, dated May 4, 2010, contains proposed activities to complete the remaining areas of concern. Pl. Ex. 179. Dr. Zwick agreed that many of the Willcox recommendations pertaining to quality enhancement needed to be addressed. Pl. Ex. 60 (001803-001805).
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(4) QE 6: “DOH will establish systematic capacity/competence to address medical and behavioral needs of persons served.” APPENDIX A at 2.
In addressing QE 6, the Court will focus on three areas relevant to the obligation described in QE 6: (1) quality of nursing and direct care staff, (2) recruitment of specialized health care professionals, and (3) repeat recommendations by the Community Monitor related to aspiration-caused deaths.
(a) Quality of Nursing and Direct Care Staff. Dr. Aceves said he believes that NM persons with developmental and intellectual disabilities have access to a health system of care that addresses their ongoing health needs. As any health system has its [sic] challenges and limitations. There is ongoing need for continuous training of future and present health professionals in this field to continue to enhance their skills and knowledge and strategically impact their professional and humanistic attitudes towards this population. However, there are well established system wide processes, programs and regulations to ensured [sic] a higher level of quality of care for current and future generations of persons with intellectual and developmental disabilities.
Def. Ex. Vol. V, C-05 (001880). Dr. Antoinette Benton, a former Continuum physician for nine years, agreed with Dr. Aceves and stated in her deposition that she “see[s] good care out there.” Dr. Antoinette Benton Deposition, 10:2-4, 86:3-16. In fact, Continuum concluded that deceased class members reviewed by the MRC received proper medical care within the system available to them. Dr. Alya Reeve Deposition, 60:8-22. That system of medical care necessarily includes differences in quality of medical care in different New Mexico communities, a difference in quality of medical care which all New Mexicans experience. TT Vol. V, 936:11-19. Nevertheless, DD clients still get care “superior” to the care an average person in New Mexico receives. Dr. Antoinette Benton Deposition, 124:14-125:1. Furthermore, it is important to recognize that class members are aging, so their mortality rates will naturally go up. Dr. Ralph
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Hansen Deposition, 147:22-148:1. Despite these assertions that class members receive at least adequate health care when
one takes into account the state of health care generally in New Mexico, Dr. Merovka stated that more than half the time the mortality reviews she saw prior to February 2009 revealed deficient medical records, problems with data collection practices, lack of adequate tracking of class members’ health care needs and services, and inadequate staff training regarding individuals’ health care needs. Dr. Carol Merovka Deposition, 181:1-24; 182: 21-25. She also noted that the insufficient amount of nursing care was a chronic problem for class members. Id. at 121:5-12, 126:19-23. Dr. Merovka generally felt, as of 2009, that New Mexico did not have a system for consistently training primary care physicians on medical issues affecting developmentally disabled persons. Id. at 79:13-18.
Dr. Alya Reeve, a psychiatrist and co-investigator at Continuum, testified in her March 2011 deposition that based on her work for hundreds of people in the developmental disabilities systems, only 40-45% of the current population get adequate and appropriate health care coordination. Dr. Alya Reeve Deposition, 139:12-17. Paulette Archibeck, a DHI nurse who was involved in mortality reviews for DOH from 2002 until April 2011, testified in her April 2011 deposition that in some areas nursing caseloads are so large that certain providers are unable to adequately serve class members, whereas other providers do not utilize nurses when they should. Paulette Archibeck Deposition, 15:1-6, 24:18-20, 115:23-116:6.
Some of these nursing care issues may arise from the fact that all state community programs struggle with training, skills, and expectations of direct care staff and nurses. Janet Simons Deposition, 124:3-10. Moreover, it is undisputed that there is a nursing shortage in New Mexico which could affect the level of nursing provided to class members, depending on the
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provider and location. TT Vol. II, 199:1-201:8; Dr. Antoinette Benton Deposition, 119:1-5; Paulette Archibeck Deposition, 237:2-3. Defendants’ nursing policies and standards, however, remain excellent and consistent with the standard of care in the United States. TT Vol. II, 179:21-180:11, 229:13-16.
To address the staffing concerns, the CSB established DD Waiver standards related to nursing and therapist expectations. TT Vol. IV, 744:13-15. The DD Waiver standards “unbundle” nursing, and this, along with a new intensive medical home, are intended to improve nursing services to all members of the DD Waiver system. Janet Simons Deposition, 217:1-14. The CSB also provides nurses at the regional offices, consults with providers, and conducts therapies training for the providers. TT Vol. IV, 744:1-10. In addition, the CSB has collaborated with Continuum to create a curriculum for nurses who care for developmentally disabled persons. TT Vol. IV, 745:19-747:1. Despite this good work by the CSB, the Community Monitor has pointed out the need to strengthen the CSB with additional staff and resources. TT Vol. I, 98:6-14.
To further improve nursing services, Defendants have also published a grid composed of nursing tasks and responsibilities, the level of nursing required for the performance of each task, a description of each nursing task, and a citation to the requirement in the DDSD standards. Def. Ex. Vol. X, Q-10 (003925-003930). Additionally, the Columbus Organization improved nursing services to the Los Lunas Community Program (Los Lunas) in 2007 by streamlining lines of communication and nursing responsibilities. Janet Simons Deposition, 97:7-98:4. The Columbus Organization does not believe that there is a lack of monitoring of care in individual homes or that staff training is inadequate. Id. at 124:21-125:3.
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Although Continuum’s July 2009 to August 2010 mortality reviews found many examples of “good and appropriate use of nursing judgment in a timely fashion,” Continuum was, nonetheless, concerned with communication, record keeping, infection control, policy implications, referrals, and emergencies. Def. Ex. Vol. VII, F-07 (002349-002350). Even so, members of the MRC found it surprising that class members, who are typically medically fragile, have lived as long as they have considering all of their medical issues. Paulette Archibeck Deposition, 108:20-109:8.
This positive assessment is undermined by Dr. Zwick who, in preparing for the 706 Expert’s February 2011 report, reviewed a sample of 17 deceased class members for FY 2009 and FY 2010, 65% of the deceased class members for those years. Pl. Ex. 60 (001700. Dr. Zwick found that six deceased class members had “probably or potentially preventable” deaths; three had received “poor or less than adequate care;” nine had “serious problems” with their care; and five were victims of confirmed neglect. Id. (001700, 001702). The 706 Expert noted in her February 2011 report that, according to DOH mortality reviewers and Dr. Zwick, use of emergency services and/or hospitalizations has resulted from the lack of staff training, “lack of nursing oversight and delays in seeking medical care....” Id. (001692). The 706 Expert further concluded in the February 2011 report that the DOH would have a “considerable positive impact” if it focused on the training, skills, and expectations of direct care staff and nurses. Id. (001719). Notably, Dr. Hansen agreed with the 706 Expert’s conclusion that there is no monitoring system to determine if Defendants’ actions have resulted in problem resolution or other actions. Dr. Ralph Hansen Deposition, 142:20-143:16.
In fact, Dr. Zwick and the 706 Expert’s conclusions are supported by Defendants’ own findings. Between 2009 and 2011, Defendants found the following nursing deficiencies at
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Mosaic, Dungarvin, and Los Lunas: failure to ensure provider nurse monitoring, failure to provide adequate oversight of medication administration, failure to conduct nursing assessments and preventative screenings in a timely manner, failure to develop plans of care in accordance with “prudent” nursing care, and the failure to conduct proper training and supervision of direct care staff. Pl. Ex. 331 (004770-004771).
The Court does not doubt that adequate health care can exist under the DD system when that system is operating as Defendants intended and that class members can potentially receive overall better health care under the DD system than is available to the average New Mexican. As already discussed, Defendants provide commendable programs, processes, and regulations to address the health care needs of class members. Problems arise, however, in the implementation of those services so that class members actually receive the optimal benefit from the DD health care system. For example, the record indicates that despite excellent nursing policies and standards as well as various initiatives to provide improved nursing skills and even reports of good nursing, nurses are many times simply overextended or not efficiently utilized and, therefore, cannot always provide adequate nursing care. The Court acknowledges that the provision of nursing care is not entirely Defendants’ fault because there is a widespread nursing shortage. The record also suggests that the training and skills of direct care staff often fall short, a problem experienced in all state community programs. Evidence in the record documents the harm suffered by class members due to poor nursing or direct staff care. Nonetheless, even with these problems, some medical professionals with Continuum are surprised at how long many class members have lived considering their medically fragile state.
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(b) Recruitment of Specialized Health Care Professionals.
As of November 2009, the Community Monitor still considered her 2004 recommendation to recruit and retain health care professionals in areas of the state where health care gaps exist to be unmet by Defendants. TT Vol. I, 115:23-116:9. Defendants promptly responded to the Community Monitor’s concern by providing a comprehensive list of therapists they had retained in 2010. TT Vol. I, 116:4-7; Def. Ex. Vol. X, N-10 (003898). The Specialty Services Reports used to determine therapist shortages did not indicate any further shortages at that time. Def. Ex. Vol. X, N-10 (003898). Nonetheless, the Community Monitor replied that Defendants had not met the recommendation to recruit and train therapists. Def. Ex. Vol. X, Z10 (004024-004025). Even Dr. Aceves admitted that it is sometimes difficult for persons with severe developmental disabilities to receive appropriate emergency room treatment in Farmington, Albuquerque, Clovis, and Las Cruces. Dr. Javier Aceves Deposition, 89:19-91:2. Additionally, Dr. Benton testified in February 2011 at a deposition that there were no physicians in Farmington, Clovis and Alamogordo with special expertise in treating people with complex developmental disabilities. Dr. Antoinette Benton Deposition, 113:25-114:16, 115:13-18, 116:410. Dr. Reeve also testified in a deposition in March 2011 that it is challenging to obtain certain specialized services in Clovis and Farmington. Dr. Alya Reeve Deposition, 24:19-25:15, 28:916.
Defendants cannot address medical and/or behavioral needs in a systematic and competent manner if there are no health care professionals who specialize in caring for and treating severely developmentally disabled persons. It is undisputed that receiving specialized care in the more rural parts of the state is difficult because of a lack of those kinds of health care
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professionals. Although Defendants retained several health care professionals in 2010 to fill in the rural health care gaps, some of those gaps still existed in 2011.
(c) Repeat Recommendations Related to Aspiration Caused Deaths.
Repeat findings by the Community Monitor include inadequate aspiration prevention plans, inadequate health care coordination, inadequate communication in areas concerning the “involvement of nurses in an oversight and consultative and training role” as well as inadequate nurse training. TT Vol. I, 60:1-62:6. In addition, QMB data for FY 2010 demonstrated that 75 % of providers had “new and/or repeat deficiencies....” Pl. Ex. 74 (02131). Defendants responded by creating the CICC to focus on repeat recommendations. As discussed previously, Defendants have concerns with the definition of repeat recommendations. No matter how repeat recommendations are defined, aspiration pneumonia deaths27 in the adult New Mexico developmentally disabled population appear to have trended upwards: in 2000 there was a crude death rate of 0.6 per 1,000 persons while in 2009 there was a crude death rate of 2.4 per 1,000 persons.28 Def. Ex. g(13) (004667); TT Vol. V, 1098:4-20, 1102:18-21. There is, however, no clear cause for the increase in the crude death rate. TT Vol. V, 1103:3-10. Causes could include
27The Court uses the broader definition of aspiration pneumonia death which occurs when a death certificate has either aspiration pneumonia as the underlying cause of death or any mention of both aspiration and pneumonia. Def. Ex. g(13) (004667).
28As of the Fall of 2011, crude death rates for 2010 were still preliminary and the crude death rates for 2011 were incomplete. Def. Ex. g(13) (004667). Defendants have also compiled preliminary information with respect to aspiration pneumonia hospital discharges beginning in 2009. Def. Ex. h(13) (004668).
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an aging population, “better case surveillance,” or inferior quality of care.29 Id. Aspiration risk is, nevertheless, acknowledged as a predominant potential cause of death
for class members. TT Vol. II, 337:2-8. The 706 Expert acknowledges that individuals with a high risk of aspiration can die from aspiration pneumonia and/or aspiration even if they are watched 24 hours a day. Id. at 337:22-338:3. Minimizing aspiration is simply “an ongoing unsolvable problem.” Dr. Ralph Hansen Deposition, 183:23-184:19. In some cases, aspiration symptoms can be reduced but not prevented completely. Dr. Antoinette Benton Deposition, 107:10-25.
The POA, the only Jackson court order concerning aspiration, requires Defendants to oversee 22 class members who were seen by the seating support clinic at the LLH & TS before it closed. TT Vol. IV, 747:14-23. Defendants now track over 200 class members who have since been identified to be at risk of aspiration. TT Vol. IV, 747:23-25. Furthermore, Defendants have developed a Health Passport system and a master medical diagnosis list to improve health care coordination; these projects are already underway. Janet Simons Deposition, 52:9-54:16, 216:7-23. Even so, as of April 2011, DOH had made no effort to determine if class members have a current and accurate medical problems list. Id. at 54:22-55:1.
Additionally, Defendants have not systematically tracked if class members have reached the targets set forth in the CARMPs nor do Defendants have a database which indicates whether
29The Secretary of DOH assigned Dr. C. Mack Sewell of the DOH Epidemiologist’s Office to conduct a study comparing New Mexico’s annual rate of aspiration deaths in the New Mexico DD system with that of other states. Def. Ex. Vol. V, D-05 (001909). Only two states would participate. Dr. Sewell admitted that selecting these two states to compare to New Mexico lacked any scientific methodology and that he did not know the particulars of the populations used as a basis for the aspiration rates of the other states. TT Vol. V, 1113:4-1114: 22; Def. Ex. Vol.V, D-05 (001909). Consequently, the Court will not consider Dr. Sewell’s comparison findings.
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the CARMPs are being implemented. TT Vol. IV, 781:1-782:6. Defendants also do not expect direct care staff to necessarily recognize the term “CARMP.” TT Vol. IV, 782:7-19. No one has, in fact, studied the efficacy of efforts by Continuum to reduce preventable aspiration. TT Vol. V, 963:12-24.
Repeat recommendations, whether defined broadly or narrowly, especially with respect to aspiration related deaths, can demonstrate a lack of systematic capacity/competence by Defendants to address the medical needs of class members. Defendants have made tremendous efforts to address preventable aspiration symptoms by instituting various programs, but as with Defendants’ other programs, Defendants have not developed systems to determine if those programs are being implemented and whether those programs actually help reduce the incidence of preventable aspiration.
(d) General Observations Regarding QE 6. Defendants have made great strides in establishing systematic capacity/competence to address the medical and behavioral needs of class members. Many services and programs are available to class members, but there is still a problem in actually providing those services and programs to benefit class members. For instance, Defendants have established resources and training for nurses but sufficient nursing services are nonetheless lacking, whether Defendants or a nursing shortage are to blame for that deficiency. Direct care staff, perhaps the most vital persons in a class member’s day-to-day life, are often unprepared for their duties. Another example of the gap between existing programs and class members actually benefitting from those programs is the difficulty in delivering or providing appropriate specialized services in rural parts of the state.
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One of the concerns Plaintiffs rightly have is the aspiration caused death rate of class members and how that reflects on Defendants’ systematic capacity/competence to address medical needs of class members. Although the Court notes that aspiration pneumonia-related deaths are trending upwards with the DD population as a whole, the cause for that trend has not been established. Moreover, the facts that class members are aging and that aspiration-related deaths are not always preventable in that population are certainly factors over which Defendants have no control. Even so, Defendants are obligated to develop a systematic capacity/competence to reduce aspiration symptoms when possible. Defendant have, to their credit, established several programs to specifically address aspiration. Defendants, however, have not gone so far as to initiate systems to determine if those programs are being implemented and whether those programs actually help reduce the incidence of preventable aspiration caused deaths.
(5) QE 7: “DOH will establish an adequate process for followup after hospitalization to ensure that appropriate medical care is provided.” APPENDIX A at 2.
In 2008, the 706 Expert acknowledged that Defendants provide post-hospitalization follow-up by regional nurses but suggested that this might need more study. Pl. Ex. 58 (001633001634). Defendants subsequently organized a Hospitalization Issues Workgroup in the summer of 2008. The workgroup required that regional managers “designate a lead staff that will triage each situation to assure appropriate DDSD support and or [sic] intervention ... throughout the post hospitalization period.” Def. Ex. Vol. II, O-02 (000347). The Community Monitor’s 2009 CPR noted, however, that lack of health care coordination resulted, among other things, in a lack of hospital documentation. Pl. Ex. 14 (000379). Nursing and direct care staff issues referred to above may also generally reflect an inadequate process for post-hospitalization follow-ups. Dr.
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Hansen noted concerns with “correct medication regimens” or “correct active health problem lists” not being shared between provider staff and physicians; providers not following physician’s orders; and problems with “responsiveness or timely evaluation of patients....” Dr. Ralph Hansen Deposition, 153:17-24, 154:13-155:3. These general concerns could relate to post-hospitalization follow-up as well as to regular medical care. Moreover, Dr. Benton had concerns with whether follow-up visits are being made, but she admitted that these concerns exist within the entire medical care system in New Mexico. Dr. Antoinette Benton Deposition, 44:18-45:7.
Defendants addressed QE 7 by establishing a process for post-hospitalization follow-up. Whether that process is successful, however, is unclear. Although issues, generally, with health care coordination, which necessarily include coordinating post-hospitalization treatments and concerns, have been a problem, the ECHAT program may eliminate some of those particular coordination issues. Nonetheless, issues with nursing and direct care staff certainly affect whether a post-hospitalization follow-up is adequately conducted. Admittedly, lack of follow-up care is a concern not only for the DD population, but also for all New Mexicans. QE 7, however, does not set a standard of care based on the standard of care for New Mexicans as a whole.
(6) QE 8: “Modify [IRC]procedures to improve its ability to identify deficiencies at provider agencies that require corrective action, to promptly establish adequate corrective action plans, and to ensure that corrective actions are completed in a timely manner.” APPENDIX A at 2.
The IRC is chaired by the QMB chief and composed of various bureau chiefs and representatives. TT Vol. II, 262:8-21. Providers are referred to the IRC for performance issues.
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Id. at 262:23-263:5. Remedies the IRC can impose include corrective actions (or directed improvement plans), fines, and other sanctions. Id. at 263:8-21. As noted above, the IRC refers sanctionable actions to its sanctions committee which is composed of the directors of DHI and DDSD. Id. at 263:17-21. When the MRC makes a referral to the IRC, the IRC is required to “communicate its actions and completion of sanctions or corrective actions to the Chairperson of the MRC;” and the IRC will “communicate its findings to the appropriate DDSD agency.” Def. Ex. Vol. VI, L-06 (002208). The IRC can also make recommendations on systemic issues to the DDSQI.
Additionally, the IRC is required to review consumer specific trend data on at least a quarterly basis. Pl. Ex. 194 (003123). The trend data comes “from incidents and follow-up issues not corrected by the provider.” Id. In 2009, the IRC made revisions to its “database to improve tracking and reporting of IRC actions,” and modified process and resource allocations to decrease the time to issue IRC actions. Pl. Ex. 325 (004670). DOH also has a policy regarding the implementation of corrective action plans or directed corrective action plans but those policies apparently have not been revised since the Court approved QE 8. TT Vol. IV, 716:4-22; Pl. Ex. 32 (000761-000762).
The 706 Expert testified at the June 2011 evidentiary hearing that from FY 2007 to FY 2009 the same 10-15% of providers were referred to the IRC. TT Vol. II, 305:12-14. She also found that the “biggest issue” is the untimely implementation of corrective actions or follow-up on corrective actions. Id. at 305:14-16. For example, Los Lunas, Dungarvin and Mosaic remained on the IRC log for multiple years due to serious health and safety violations. TT Vol. V, 1044:8-1045:15. The 706 Expert found in general that “Defendant’s [sic] have not fully developed and implemented effective systems,” including presumably the IRC process, “to
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protect class members from avoidable threats to their health and safety.” Pl. Ex. 60 (001722). There is no evidence in the record to indicate that IRC policies and procedures have been
significantly improved with respect to issues concerning corrective action plans. The Court acknowledges that in 2009 Defendants made improvements to the IRC database for tracking and reporting purposes and that Defendants modified processes and resource allocations to help speed up IRC actions. It is unclear from the record, however, if these changes have actually resulted in compliance with QE 8, particularly when Dungarvin, Mosaic, and Los Lunas continued to have deficiencies until as recently as 2011. Of course, if Defendants feel that there is other evidence, not in the record now before the Court, which supports disengagement of QE 8, Defendants are free to utilize the disengagement procedure to disengage QE 8.
3. Summary of Issues Affecting Defendants’ Ability to Comply with Health Care Obligations.
The CPRs conducted under Lyn Rucker, the current Community Monitor, are quite rigorous and are designed to give the class members maximum health care protection. Defendants have, in good faith, tried to comply with most of Ms. Rucker’s recommendations which even Ms. Rucker admits is a daunting task. The Court senses, however, that there is a fundamental underlying difference in philosophy between Defendants and Ms. Rucker. All the parties can agree that Defendants have over the years initiated numerous health care programs and procedures designed to improve the health care of class members. Because class members can only benefit from those programs in a community setting, the provision of health care is, unfortunately, subject to lower community standards which may not always live up to the more exacting standards advocated by the Community Monitor and the 706 Expert. For example, the choice to live in rural New Mexico necessarily limits the availability of some specialized health
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care, and simply living in a generally poor state like New Mexico means that prompt medical appointments are not always available and that nursing care will be affected by a shortage of nurses. On the other hand, the Community Monitor and the 706 Expert make the excellent point that Defendants have fallen short in the actual consistent implementation of their programs and processes so that class members can fully reap the benefits of the DD health care system. Plaintiffs further correctly argue that Defendants are bound to comply with their obligations in the JSD, POA, and APPENDIX A as those obligations are written.
Defendants, the Court believes, would recognize that there is generally room for improving the provision of health care to class members. Of course, Defendants reasonably argue that there must be an end point to the improvements which they must achieve especially considering budgetary issues like the cost of programs as well as the cost of this continued litigation. An obstacle facing Defendants in trying to substantially comply with the multiple health care provisions of the JSD, POA, and APPENDIX A is the question of what exactly is expected of Defendants in order to comply with the provisions. For instance, it is unclear what actions by Defendants will qualify as “addressing” Elin Howe’s recommendations and the areas of concern listed by Dr. Willcox. Another obstacle for Defendants, assuming that Defendants develop methodologies to evaluate the effectiveness of programs and procedures, is what constitutes “effective” for purposes of disengaging a provision.
Despite these vagaries and Defendants’ good faith attempts at compliance, Defendants must still meet their responsibilities as described in the JSD, POA, and APPENDIX A. In sum, Defendants’ lack of (1) evaluative methodologies to ensure effective implementation of programs and processes, (2) an effective and timely process for ensuring provider accountability, (3) sufficient nurses trained in their appropriate roles, and (4) properly trained direct care staff all
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make it next to impossible for Defendants to provide to class members the adequate consistent health care contemplated in the JSD, POA, and APPENDIX A.
B. Findings of Fact. 1. POA Appendix 15, Ashton Recommendations.
8. Defendants have shown by a preponderance of the evidence that they have complied with POA Appendix 15, Ashton Recommendation # 1.
9. Defendants have shown by a preponderance of the evidence that they have complied with POA Appendix 15, Ashton Recommendation # 2.
10. Defendants have shown by a preponderance of the evidence that they have complied with POA Appendix 15, Ashton Recommendation # 9.
11. Defendants have shown by a preponderance of the evidence that they have complied with POA Appendix 15, Ashton Recommendation # 10.
12. Defendants have shown by a preponderance of the evidence that they have complied with POA Appendix 15, Ashton Recommendation # 12.
13. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 15, Ashton Recommendation # 3.
14. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 15, Ashton Recommendation # 4.
15. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 15, Ashton Recommendation # 5.
16. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 15, Ashton Recommendation # 6.
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17. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 15, Ashton Recommendation # 7.
18. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 15, Ashton Recommendation # 8.
19. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 15, Ashton Recommendation # 11.
20. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 15, Ashton Recommendation # 3 does not defeat the essential purpose of the POA, i.e., to provide adequate health care to class members.
21. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 15, Ashton Recommendation # 4 does not defeat the essential purpose of the POA, i.e., to provide adequate health care to class members.
22. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 15, Ashton Recommendation # 5 does not defeat the essential purpose of the POA, i.e., to provide adequate health care to class members.
23. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 15, Ashton Recommendation # 6 does not defeat the essential purpose of the POA, i.e., to provide adequate health care to class members.
24. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 15, Ashton Recommendation # 7 does not defeat the essential purpose of the POA, i.e., to provide adequate health care to class members.
25. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 15, Ashton Recommendation # 8 does not defeat the essential
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purpose of the POA, i.e., to provide adequate health care to class members. 26. Defendants have not shown by a preponderance of the evidence that their failure to
comply fully with POA Appendix 15, Ashton Recommendation # 11 does not defeat the essential purpose of the POA, i.e., to provide adequate health care to class members.
2. POA Appendix 14, 1998 Audit Recommendation # 25. 27. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 14, 1998 Audit Recommendation # 25. 28. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 14, 1998 Audit Recommendation # 25 does not defeat the essential purpose of the POA, i.e., to provide adequate health care to class members.
3. POA Appendix 1, Desired Outcome A, Activity # 2. 29. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 1, Desired Outcome A, Activity # 2. 30. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 1, Desired Outcome A, Activity # 2 will not defeat the essential purpose of the POA, i.e., to provide adequate health care to class members.
4. APPENDIX A, QE 1. 31. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, QE 1. 32. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX, QE 1 will not defeat the essential purpose of APPENDIX A, i.e., to provide adequate health care to class members.
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5. APPENDIX A, QE 2. 33. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, QE 2. 34. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX QE 2 will not defeat the essential purpose of APPENDIX A, i.e., to provide adequate health care to class members.
6. APPENDIX A, QE 5. 35. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, QE 5. 36. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX QE 5 will not defeat the essential purpose of APPENDIX A, i.e., to provide adequate health care to class members.
7. APPENDIX A, QE 6. 37. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, QE 6. 38. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX QE 6 will not defeat the essential purpose of APPENDIX A, i.e., to provide adequate health care to class members.
8. APPENDIX A, QE 7. 39. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, QE 7. 40. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX QE 7 will not defeat the essential purpose of APPENDIX A, i.e.,
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to provide adequate health care to class members. 9. APPENDIX A, QE 8.
41. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, QE 8.
42. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX QE 8 will not defeat the essential purpose of APPENDIX A, i.e., to provide adequate health care to class members.
C. Conclusions of Law. 1. POA Appendix 15, Ashton Recommendations.
8. POA Appendix 15, Ashton Recommendation # 1 is subject to disengagement. 9. POA Appendix 15, Ashton Recommendation # 2 is subject to disengagement. 10. POA Appendix 15, Ashton Recommendation # 9 is subject to disengagement. 11. POA Appendix 15, Ashton Recommendation # 10 is subject to disengagement. 12. POA Appendix 15, Ashton Recommendation # 12 is subject to disengagement. 13. Since Defendants have not substantially complied with POA Appendix 15, Ashton Recommendation # 3, it is not subject to disengagement at this time. 14. Since Defendants have not substantially complied with POA Appendix 15, Ashton Recommendation # 4, it is not subject to disengagement at this time. 15. Since Defendants have not substantially complied with POA Appendix 15, Ashton Recommendation # 5, it is not subject to disengagement at this time. 16. Since Defendants have not substantially complied with POA Appendix 15, Ashton Recommendation # 6, it is not subject to disengagement at this time.
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17. Defendants have not substantially complied with POA Appendix 15, Ashton Recommendation # 7.
18. Since Defendants have not substantially complied with POA Appendix 15, Ashton Recommendation # 8, it is not subject to disengagement at this time.
19. Since Defendants have not substantially complied with POA Appendix 15, Ashton Recommendation # 11, it is not subject to disengagement at this time.
2. POA Appendix 14, 1998 Audit Recommendation # 25. 20. Since Defendants have not substantially complied with POA Appendix 14, 1998 Audit Recommendation # 25, it is not subject to disengagement at this time.
3. POA Appendix 1, Desired Outcome A, Activity # 2. 21. Since Defendants have not substantially complied with POA Appendix 1, Desired Outcome A, Activity # 2, it is not subject to disengagement at this time.
4. APPENDIX A, QE 1. 22. Since Defendants have not substantially complied with APPENDIX A, QE 1, it is not subject to disengagement at this time.
5. APPENDIX A, QE 2. 23. Since Defendants have not substantially complied with APPENDIX A, QE 2, it is not subject to disengagement at this time.
6. APPENDIX A, QE 5. 24. Since Defendants have not substantially complied with APPENDIX A, QE 5, it is not subject to disengagement at this time.
7. APPENDIX A, QE 6 25. Since Defendants have not substantially complied with APPENDIX A, QE 6, it is not subject to disengagement at this time.
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8. APPENDIX A, QE 7. 26. Since Defendants have not substantially complied with APPENDIX A, QE 7, it is not subject to disengagement at this time.
9. APPENDIX A, QE 8. 27. Since Defendants have not substantially complied with APPENDIX A, QE 8, it is not subject to disengagement at this time. IV. Whether Defendants have Substantially Complied with Their Obligations under the JSD, POA, and APPENDIX A to Provide a Reasonably Safe Environment to Class Members.
A. Defendants’ Obligations under the JSD, POA, and APPENDIX A to Provide a Reasonably Safe Environment to Class Members.
The POA states that “individuals have the right to live in a safe environment free from abuse, neglect and exploitation.” POA at 11. Goals under the POA to ensure a safe environment include prevention of serious incidents. Prevention “requires each agency serving individuals to develop and implement their own internal Incident Management System which review[s] complaints, including incidents, [and] takes responsibility and action to prevent incidents and injury.” Id. Next, the POA states that “it is critical that the individuals present when a serious incident occurs, including but not limited to abuse, neglect and exploitation, promptly and appropriately respond. Responding appropriately includes, but is not limited to, taking actions to ensure the safety of the individual, providing first aid, calling for assistance, making notifications and documenting the incident.” Id. Moreover, “agency staff who are expected to respond to incidents must have a working understanding of what is a serious incident and what constitutes abuse, neglect and exploitation.” Id. “[I]ndividuals with the most direct knowledge of a complaint/incident must have a clear understanding of who to notify, how to make the notifications, and when the notification is to be made.” Id. The POA provides that complaints
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will be investigated and that Incident Regional Management Investigators will share data trends in the DD Division Monthly and Quarterly Quality Management Meetings held in each region. On-site reviews will also be conducted “when DHI has reason to believe that serious incidents, death, abuse, neglect or exploitation are the result of possible systemic issues within an organization.” Id. at 12. Finally, “the Monthly and Quarterly Regional Quality Management Meetings may identify the need for an on-site review.” Id.
Plaintiffs specifically argue that Defendants have not substantially complied with the following safety-related provisions of the JSD, POA, and APPENDIX A:
1. Quality Enhancement a. JSD ¶14, POA Appendix 1, Desired Outcome A: “To establish resources and protocols to ensure quality of services.” POA at 8. b. APPENDIX A, QE 2: “Address each recommendation in the internal monitor’s October 2003 report.” APPENDIX A at 2.
2. Incident Management a. JSD and POA Provisions (1) JSD ¶ 15, POA Appendix 2, Desired Outcome F: “Follow-up System for Incident Management.” POA at 19. (2) JSD ¶ 15, POA Appendix 2, Desired Outcome F, Activity #3: “The DD Division Director and/or designated staff will implement follow-up with the Community Provider, as needed, based on the findings of the investigation.” POA at 19. (3) JSD ¶ 15, POA Appendix 2, Desired Outcome F, Activity # 4: “The DD Division will maintain a current log of investigative follow-up implemented by provider.” Id. (4) JSD ¶ 15, POA Appendix 2, Desired Outcome G: “Conduct timely and professional investigations of incidents of abuse, neglect or exploitation or of serious incidents.” POA at 20.
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(5) JSD ¶ 15, POA Appendix 2, Desired Outcome G, Activity # 1: “When conducting full investigations, DHI will utilize investigators trained in professionally accepted investigatory methods and techniques to conduct investigations of abuse, neglect, exploitation (where Children, Youth & Families has confirmed they will not be conducting an investigation) or of serious incidents. Each reported serious incident will be reviewed to verify that the appropriate notifications were made.” POA at 20.
(6) JSD ¶ 16, POA Appendix 3, Desired Outcome B: “Incidents of suspected abuse, neglect and exploitation will be reported and investigated according to the established protocol.” POA at 26.
b. APPENDIX A
(1) IM 2: “DHI will have adequate resources to follow-up, verify, and close incidents requiring follow-up.” APPENDIX A at 2.
(2) IM 4: “DHI’s intake/triage process will appropriately assign incidents for investigation, especially emergency room visits.” Id.
(3) IM 5: “Improve the process for evaluating incident reporting during provider reviews.” Id.
(4) IM 6: “Establish and implement effective sanctions for under reporting.” Id.
(5) IM 7: “Sufficient numbers of investigators will be assigned to perform investigations and all investigators will demonstrate ability to perform professionally adequate investigations.” Id.
(6) IM 8: “Implement all recommendations regarding Mortality Review made by Dr. Willcox in his December 2003 report.” Id.
(7) IM 9: “Ensure that Dr. Willcox makes written recommendations regarding both individual and systemic corrective actions when he writes each death review report, and establish a reliable mechanism to ensure that those recommendations are promptly implemented.” Id.
(8) IM 10: “Establish an adequate process for improving the reporting of incidents to the [IMB].” Id.
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(9) IM 11: “Establish adequate protocols for assessing whether a provider is reporting all reportable incidents and for properly sanctioning providers that fail to report.” Id.
(10) IM 12: “Ensure that after appropriate intake of emergency room visit incidents medical technical assistance is provided.” Id. at 3.
(11) IM 13: “Improve the quality of investigations of abuse, neglect, and exploitation.” Id.
(12) IM 14: “Implement changes to the system for performing intake/triage of incident reports, to ensure that investigations are conducted of all incidents of suspected abuse, neglect, and exploitation.” Id.
1. Quality Enhancement. a. JSD ¶14, POA Appendix 1, Desired Outcome A: “To establish resources and protocols to ensure quality of services.” POA at 8.
POA Appendix 1, Desired Outcome A contains eight activities designed to ensure enhancement of the quality of services. Plaintiffs observe that the quality enhancement obligations fall into two categories: (1) the obligation of the Community Monitor to conduct annual CPRs, and (2) Defendants’ obligation to conduct periodic on-site reviews of providers to maintain quality services. Plaintiffs argue that Defendants have, in fact, not met their obligation to conduct periodic on-site reviews and that the failure to meet that obligation has resulted in inadequate services which have harmed class members. The Court has already determined that Defendants have not substantially complied with POA Appendix 1, Desired Outcome A, Activity # 2 which requires Defendants “[t]o continue to provide on-site reviews to providers in response to identified issues.” POA at 8. Moreover, although QMB has a process in place for conducting provider surveys or reviews which will identify provider deficiencies and corrects them, Defendants still have problems with new and/or repeat deficiencies as well as with getting providers to correct deficiencies timely. These problems and the failure to comply with Activity # 2 adversely affect Defendants’ ability to afford class members a reasonably safe environment.
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b. APPENDIX A, QE 2: “Address each recommendation in the internal monitor’s October 2003 report.” APPENDIX A at 2.
Plaintiffs contend that Defendants’ failure to implement Ms. Howe’s October 2003 recommendations to improve provider performance has also resulted in harm to class members. In fact, the Court has determined that Defendants have failed to substantially comply with QE 2 to the detriment of class members’ health care. For the same reasons, Defendants’ failure to substantially comply with QE 2 is, likewise, detrimental to the safety of class members. Since the Court has already ruled on QE 2, it would be redundant to do so again. Hence, the Court will not rule on QE 2 in the context of the safety of class members.
2. Incident Management. a. JSD and POA Provisions. (1) JSD ¶ 15, POA Appendix 2, Desired Outcome F: “Followup System for Incident Management.” POA at 19.
POA Appendix 2, Desired Outcome F sets forth four activities. Plaintiffs generally argue that Defendants have not substantially complied with Desired Outcome F and Plaintiffs specifically argue that Defendants have not substantially complied with Activities # 3 and # 4 of Desired Outcome F. The Court instructed counsel in its August 19, 2011 letter at 3 that Plaintiffs’ counsel must “specify which POA outcomes and accompanying activities and which Appendix A actions they believe Defendants have failed to comply with.” Since Plaintiffs have only identified with specificity Activities #s 3 and 4 as the activities at issue under Desired Outcome F, the Court will not consider whether Defendants have, in general, substantially complied with Desired Outcome F. Instead, the Court will focus only on Activities # 3 and 4 and whether Defendants have substantially complied with those particular Activities.
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(2) JSD ¶ 15, POA Appendix 2, Desired Outcome F, Activity # 3: “The DD Division Director and/or designated staff will implement follow-up with the Community Provider, as needed, based on the findings of the investigation.” POA at 19.
Ms. Maes, the chief of the IMB, testified at her deposition that the IMB generates followup reports which are distributed during the regional monthly and quarterly incident meetings. Alice Maes Deposition, 61:9-19. Follow-up actions are developed at both the monthly and quarterly meetings, while trends are examined at the quarterly meetings. Id. at 142:18-143:6, 147:4-148:17.30 Ms. Maes further testified that the IMB requires that providers confirm that they implemented corrective action plans by submitting certain documents according to a timeline to the IMB for review. Id. at 150:11-21.31
Ms. Maes noted that it is the provider’s responsibility to develop a corrective action plan, not her staff’s. Id. at 109:19-110:1. Ms. Maes explained that after IMB personnel make a finding of abuse, neglect, or exploitation, the case can be forwarded to a higher DOH official for follow-up. Most cases are forwarded for follow-up because the provider did not submit a timely corrective action plan. Id. at 112:6-16. Ms. Maes has not determined how many of the cases identified for follow-up have substantive flaws with the corrective action plan or how many of those cases had simply untimely corrective action plans. Id. at 112:23-113:5. When a class member dies, the IMB participates in a teleconference with the Specialty Surveyor to discuss the
30Plaintiffs object to 147:4-148:17 of Ms. Maes’ deposition testimony as cumulative. The Court determines, however, that this portion of the deposition testimony is relevant and not prejudicial to Plaintiffs. Plaintiffs’ objection is, therefore, overruled.
31Plaintiffs, likewise, object to this part of Ms. Maes’ deposition testimony as cumulative. The Court overrules that objection because that part of the deposition testimony is both helpful to the Court and not prejudicial to Plaintiffs.
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death and whether the provider’s preventive or corrective action plan is acceptable. Id. at 114:18-115:12.
Despite the importance of the provider’s corrective action plan, a report issued by Janet Simons in October 2008 found that only 13% of the incident investigation files she reviewed contained a copy of the provider’s corrective or preventive action documents. Janet Simons Deposition at 44:1-10, 45:24-46:13. After February 2009, IMB investigators were required to have that documentation in their files as well as copies of the provider’s investigation and documentation of the actions the provider took to correct the problems. Id. at 47:11-48:18.
The 706 Expert found in her April 2010 report, among other things related to class member safety, that “[t]he follow up system for incident management is inadequate.” Pl. Ex. 59 (001679). In her February 2011 report, the 706 Expert made numerous findings relating to how class members continue to be at risk from unreasonable harm. Pl. Ex. 60 (001720-001722). For example, the 706 Expert specifically found that MRC reviews do not include individual and systemic corrective actions so that “[t]here is no reliable mechanism [to ensure that MRC] recommendations are promptly implemented. MRC does not review recommendations and then track until resolution.” Id. (001720).
Even Defendants found that the absence of the implementation of timely corrective actions and follow-up on corrective actions continued to be the largest issues with all providers in FY 2007-2009. Pl. Ex. 70 (002100). In one instance of neglect leading to a death at Dungarvin, Defendants took almost six months to send Dungarvin an IRC referral and sanction letter for failure to resolve outstanding corrective actions. Pl. Ex. 53.
The IMB and DOH clearly have a process in place to follow-up with providers who have submitted corrective action plans based on IMB investigations. However, according to both the
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706 Expert and Defendants, timely implementation of corrective actions or follow-up on corrective actions remains problematic. Furthermore, while the MRC could develop corrective action plans and implement its recommendations, it has not done so. There simply appears to be a disconnect between Defendants’ good intentions, as expressed in its processes and meetings, and the actual results achieved. This disconnect, unfortunately, adversely affects the safety of class members, which is what Activity # 3 is intended to protect.
(3) JSD ¶ 15, POA Appendix 2, Desired Outcome F, Activity # 4: “The DD Division will maintain a current log of investigative follow-up implemented by provider.” POA at19.
Defendants assert that little, if any evidence, was introduced at the June 2011 evidentiary hearing regarding Activity # 4. Consequently, Defendants have not addressed Activity # 4 in their proposed findings of fact. If the Court decides nonetheless to consider Activity # 4, Defendants request an opportunity to show that they have complied with that activity.
Contrary to Defendants’ representation that their proposed findings of fact do not address Activity # 4, Defendants’ proposed findings of fact #s 473 and 474 specifically concern an MRC tracking log and other of Defendants’ proposed findings of fact relate to the IMB and IRC. Since these proposed findings of facts address Defendants’ argument that they have complied with Activity # 4, the Court will consider whether Defendants have substantially complied with Activity # 4 without further argument or evidence from Defendants.
The MRC maintains a tracking log designed to document the MRC process through closure when it has been confirmed that MRC recommendations have been implemented. TT Vol. III, 465:16-25; Def. Ex. Vol. VII, N-08 (002718-002719); Def. Ex. Vol. VII, M-08 (002717-002718); Def. Ex. Vol. VI, J-06 (002190-002192); Def. Ex. Vol. XI, C-11 (004038-
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004044); Dr. Karen Armitage Deposition, 43:7-12; Dr. Ralph Hansen Deposition, 119:21-121:3. However, as the 706 Expert found, MRC recommendations are not tracked to resolution. Dr. Hansen agreed that there is no computerized database to track MRC concerns. Dr. Ralph Hansen Deposition, 133:25-134:12.
The IMB, on the other hand, generates follow-up reports (not a log) which are distributed at the regional monthly and quarterly meetings and follow-up actions are developed at those meetings, but there is no indication that there is an IMB “current log” which shows what providers have done to follow-up on incident investigations. The IMB, however, is required to track whether case managers convene IDTs to conduct risk assessment and to develop prevention plans when the IMB identifies that an individual has had three or more incidents in a quarter. Def. Ex. Vol. II, Z-02 (000425). Moreover, it is undisputed that the IRC keeps a log of deficient providers. Nevertheless, the fact that agencies like Dungarvin, Mosaic, and Los Lunas have remained on the IRC log for years undermines confidence in the quality of the system maintained by the IRC.32
Defendants have attempted to maintain at least a couple of “logs” to follow-up on provider’s corrective actions. Those logs have either not been sufficiently maintained or are not designed to prevent harm to class members. Although the IMB tracks whether an IDT meeting has been held when an individual has been subjected to more than three incidents in a quarter, there is no indication that the IMB tracks the outcome of those meetings. The fact that an IDT meeting is held under those circumstances is imperative, but tracking the outcome of that meeting is even more important to ensure that the individual is not again the subject of an incident report.
32The Court is aware that, on an annual average, 80 to 85% of the providers have not been referred to the IRC for actions. TT Vol. II, 305:9-12.
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(4) JSD ¶ 15, POA Appendix 2, Desired Outcome G: “Conduct timely and professional investigations of incidents of abuse, neglect or exploitation or of serious incidents.” POA at 20.
As it did with POA Appendix 2, Desired Outcome F, the Court will not consider
Plaintiffs’ general argument that Defendants have not substantially complied with POA
Appendix 2, Desired Outcome G because Plaintiffs have more specifically alleged that
Defendants have not substantially complied with POA Appendix 2, Desired Outcome G,
Activity # 1. The Court will, therefore, address only POA Appendix 2, Desired Outcome G,
Activity # 1.
(5) JSD ¶ 15, POA Appendix 2, Desired Outcome G, Activity # 1: “When conducting full investigations, DHI will utilize investigators trained in professionally accepted investigatory methods and techniques to conduct investigations of abuse, neglect, exploitation (where Children, Youth & Families has confirmed they will not be conducting an investigation) or of serious incidents. Each reported serious incident will be reviewed to verify that the appropriate notifications were made.”33 POA at 20.
The IMB has in place Incident Management System Policies and Procedures which
describe in some detail the investigation process. Pl. Ex. 194 (003110-003119). The Incident
Management System Policies and Procedures provide for notifications to appropriate entities
during the intake/triage phase of an incident investigation. Id. (003106-003107). In addition,
33Despite citing to several portions of the record in support their contention that they have met Activity # 1, Defendants assert that they did not think that Activity # 1 would be the subject of the June 2011 evidentiary hearing and request an opportunity to more fully address Activity # 1. Because Defendants did cite to the record to support their position, the Court is not inclined to allow further development of the record concerning Activity # 1. If, based on the current record, the Court determines that Defendants have not substantially complied with Activity # 1, Defendants are at liberty to use the disengagement process under the JSD to assert that Activity # 1 should be disengaged.
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IMB investigators participate in the National Certified Investigator/Inspector Training program as well as in the Labor Relations Alternatives, Inc. training. Pl. Ex. 187; Pl. Ex. 188. In fact, the 706 Expert had recommended that Defendants use Labor Relations Alternatives, Inc. for training investigators. Alice Maes Deposition, 127:24-128:4. Although IMB investigators are not trained medical professionals, they make assessments regarding whether an emergency room visit resulted from prior poor medical care. Id. at 214:23-215:15. To make that assessment, the IMB investigators have access to a nurse for consultations should they decide they need assistance. Id. at 215:16-19. It seems, however, that few IMB investigators consult with a nurse. Id. at 216:9-217:5.
Oddly, Ms. Maes, the IMB chief, did not have training or experience in conducting incident investigations when she began her position; however, she later received training. Id. at 25:23-26:2, 125:4-12. Ms. Maes, at her deposition, stated that she “truly believe[s]” that her staff follows the principle of incident investigation which requires that witnesses be questioned separately. Id. at 177:5-178:21. Ms. Maes was unsure how often IMB investigators conduct telephone interviews. Also, she did not know the extent that travel for IMB investigators had been reduced due to travel fund reductions. Id. at 184:2-22, 194:3-17.
The 706 Expert found in her April 2010 report that “[s]erious incidents, especially injuries and use of emergency services lack thorough investigation.” Pl. Ex. 59 (001678). The 706 Expert further found that “[i]ncidents of suspected abuse, neglect and exploitation are not reported and investigated according to the established protocol and the protocols are not consistent with accepted professional standards.” Id. (001679). Moreover, the 706 Expert found that “Emergency Services are not investigated and/or analyzed for the purpose of determining if the class member’s health care needs have been adequately addressed prior to the need for urgent
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care.” Id. Even so, the 706 Expert testified at the June 2011 evidentiary hearing that Defendants have conducted investigations of various types to substantiate claims of abuse, neglect, and exploitation and this is the standard of practice. TT Vol. II, 336:9-17.
Defendants clearly have policies and procedures regarding (1) investigations and notifications, (2) training of IMB investigators, and (3) access to a nurse for consultations. Although the 706 Expert conceded that Defendants conduct investigations as they should, she questioned the quality of the investigations in her reports. The Court is also unsure of the quality of investigations. For instance, considering that medical neglect can be a significant issue with class members, the Court wonders if IMB investigators should be medically trained. Moreover, it is questionable whether investigators consult with a nurse as often as they should and whether face-to-face interviews and on-site investigations happen as frequently as they should. Without assurance that the policies and procedures and the training produce adequate investigations, POA Appendix 1, Desired Outcome G, Activity # 1 becomes meaningless.
(6) JSD ¶ 16, POA Appendix 3, Desired Outcome B: “Incidents of suspected abuse, neglect and exploitation will be reported and investigated according to the established protocol.” POA at 26.
Although Plaintiffs complain generally that Defendants have not substantially complied with POA Appendix 3, Desired Outcome B, Plaintiffs do not specifically address each of the ten Desired Outcome B activities in either their Renewed Noncompliance Motion or their proposed findings of fact and conclusions of law. Without more specificity as well as references to the record, the Court cannot analyze whether Defendants have substantially complied with Desired Outcome B.
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b. APPENDIX A.
(1) IM 2: “DHI will have adequate resources to follow-up, verify, and close incidents requiring follow-up.”34 APPENDIX A at 2.
As noted above, Ms. Maes was unaware of the frequency that IMB investigators conduct
telephonic interviews as opposed to face-to-face interviews. Ms. Maes, nonetheless, testified at
her deposition that when IMB investigators need to travel outside their region to investigate
incidents, they use the telephone “more than they ordinarily do when they conduct investigations
in their own region.” Alice Maes Deposition, 193:3-14. Interestingly, Ms. Maes did not know if
IMB staff have chosen not to drive from one community to another due to a reduction in travel
funds nor did she know how much the travel fund had been reduced. Id. at 194:3-17.
Ms. Maes admitted that there is about a 40% vacancy rate in the IMB incident
investigation staff, but she claimed that the vacancy rate has not affected class members. Id. at
187:16-22. The vacancy rate is presumably the reason why the average caseload for each IMB investigator has risen from 17 to between 25 and 30. Id. at 201:4-15.35 Nevertheless, Ms. Maes
again stated that the increased caseload has not affected class members. Id. at 201:16-22. A case
34Although Defendants cite to the deposition testimony of Alice Maes to support their contention that they have met IM 2, they also contend that they did not think that IM 2 would be the subject of the June 2011 evidentiary hearing and request an opportunity to more fully address IM 2. Since Defendants were able to find evidence in the record to support their position on IM 2, the Court is not inclined, at this time, to allow further development of the record with respect to IM 2. If the Court determines that Defendants have not substantially complied with IM 2 based on the current record, Defendants can always move for the disengagement of IM 2 under the JSD and present, at that time, evidence to support a disengagement.
35Plaintiffs object to this portion of Ms. Maes’ deposition testimony as speculative, but they also cite to it in their proposed findings of fact (finding of fact # 505(o) at pg. 122). Since Plaintiffs are willing to cite to this information in support of their proposed findings of fact, the Court is unwilling to sustain Plaintiffs’ objection.
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could also be made that IMB investigators could better conduct investigations of medical neglect if they had some sort of medical training.
It appears from Ms. Maes’ deposition testimony that lack of resources has restricted the ability of investigators to conduct face-to-face interviews and to visit facilities where investigators have an opportunity to observe the care given to class members as well as the condition of the facility. Moreover, the Court finds it incredible that an almost 40% vacancy rate for IMB investigation staff and an increased caseload for IMB investigators would not affect class members adversely. Finally, the Court is aware that it is probably less expensive to hire investigators who do not have a medical background, but the resultant lack of medical knowledge could adversely affect the quality of the investigations of medical neglect, especially when investigators do not appear to consult very often with a nurse. Without sufficient resources to conduct adequate incident investigations as well as follow-up and verification that corrective actions have been taken by providers, the chances of harm to class members inevitably increases.
(2) IM 4: “DHI’s intake/triage process will appropriately assign incidents for investigation, especially emergency room visits.” APPENDIX A at 2.
The Incident Management System Policies and Procedures provide a detailed description of the intake/triage process. Pl. Ex. 194 (003102-003107). Essentially, “IMB reviews/screens ‘triages’ reports received for investigation, assigns an investigator, completes the investigation within 45 days and refers findings and recommendations to the IMB manager for review to determine if a preponderance of evidence supports confirmation of the abuse, neglect, exploitation reports.” Def. Ex. Vol. II, Z-02 (000425). Ms. Simons recommended that serious
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incidents other than abuse, neglect, and exploitation should be reported along with the other incidents in a single system. Janet Simons Deposition, 120:15-121:11.
Defendants have in place an intake/triage process that assigns incidents for investigation. This process is directed towards incidents of abuse, neglect, and exploitation. However, as Ms. Simons observed, other serious incidents should likewise be reported, triaged, and investigated by the IMB. The Court agrees that incidents subject to the intake/triage process should not be restricted to abuse, neglect, and exploitation. Any serious incident that harms a class member should be triaged and investigated to prevent future harm to class members.
(3) IM 5: “Improve the process for evaluating incident reporting during provider reviews.” APPENDIX A at 2.
As described above, representatives from the IMB, QMB, DDSD, Aging and Long Term Services Department, and Adult Protective Services meet monthly and quarterly to review patterns and trends of incidents, to develop corrective actions, and to determine if corrective actions have had a desired effect. IMB investigators are also expected to be present at these meetings.
In 2008, the average rate of either late provider incident reporting or provider failure to report incidents of abuse, neglect or exploitation was 38%. Alice Maes Deposition, 81:23-82:1. Then, in June 2009, Ms. Maes sent dozens of letters to providers in which she informed providers whether the percentage of incident reports in their programs that confirmed abuse, neglect or exploitation was higher than the state average. Id. at 73:11-74:8. However, Ms. Maes did not know if anyone from DOH took any action regarding any of the providers to which she sent those letters. Id. at 77:21-78:1. Moreover, at the time of her deposition in April 2011, Ms. Maes had not yet analyzed whether the number of late provider incident reports was higher or
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lower in 2010 when compared with 2009. Id. at 76:13-77:4. Additionally, Ms. Maes had not yet compared the number of failures to report incidents or of late reportings from state fiscal year 2008 to state fiscal year 2009. Id. at 210:15-19.
Some evaluation of incident reporting apparently occurs at the monthly and quarterly meetings attended by the IMB and others when they develop corrective action plans for providers and later analyze the impact of those plans. Providers should be interested in receiving information regarding how the percentage of confirmed incident reports in their programs compares to the state average. However, that information, without more, is at best an incomplete evaluation of a provider’s incident reporting. Furthermore, there are no yearly statistical comparisons, specific to a provider, that show whether there has been an improvement or a decline in incident reporting by that provider. In sum, the process for evaluating incident reporting by providers could be substantially improved.
(4) IM 6: “Establish and implement effective sanctions for under reporting.” APPENDIX A at 2.
Providers who are found to be deficient in reporting abuse, neglect, and exploitation and have not corrected those deficiencies can be referred to the IRC for appropriate actions, including sanctions. Nonetheless, the average rate of late reporting or failure to report abuse, neglect, or exploitation by providers was 38% in 2008. Alice Maes Deposition, 81:23-82:1. The 706 Expert observed in her April 2010 report that “[o]ne of the 5 most often cited deficiencies in the New Mexico [developmental disabilities] program is the failure to immediately report and investigate allegations of abuse and neglect.” Pl. Ex. 59 (001678). The 706 Expert further found that “[i]ncidents of suspected abuse, neglect and exploitation are not reported and investigated according to the established protocol and the protocols are not consistent with accepted professional standards.” Id. (001679).
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Although sanctions are available for under-reporting incidents, providers who underreport are not being effectively sanctioned. If effective sanctions had been imposed on underreporting providers, the failure to report abuse, neglect, or exploitation would not have been so high in 2008 and the 706 Expert would not have noted in 2010 that failure to report was one of the five most often cited provider deficiencies. Implementation of effective sanctions for underreporting is a matter that Defendants need to improve to ensure the adequate safety of class members.
(5) IM 7: “Sufficient numbers of investigators will be assigned to perform investigations and all investigators will demonstrate ability to perform professionally adequate investigations.” APPENDIX A at 2.
As already discussed, there is an almost 40% vacancy rate in the IMB investigation staff and a concomitant increase in caseloads. Surprisingly, Ms. Maes claimed that investigations of class members had not been affected by the vacancy rate and increase in caseloads.
Although the Incident Management System Policies and Procedures contain the protocol for conducting investigations and IMB investigators go through two training programs, including one recommended by the 706 Expert, the former DHI director, David Rodriguez, recognized that IMB investigators lack the medical experience needed to determine the extent of medical neglect. David Rodriguez Deposition, 48:20-23. In cases of medical neglect, IMB investigators also do not have sufficient training and experience to determine if a provider’s corrective action is acceptable. Id. at 50:19-25. As mentioned previously, the IMB investigators could contact a nurse for medical consultations, but the investigators apparently do not do so very often.
Moreover, as noted above, Ms. Maes was unsure of the frequency of the investigators’ use of telephone interviews and how reductions in travel funds have affected investigations. The
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706 Expert also found in her February 2011 report that “[i]nvestigation of emergency services use are not professionally adequate.” Pl. Ex. 60 (001702). Despite these problems with conducting adequate investigations, Ms. Archibeck testified at her deposition that several IMB investigators perform their jobs well. Paulette Archibeck Deposition, 58:4-60:13. On the other hand, Ms. Archibeck found that IMB investigators do not use “[a]ll sources of information about a class member death” in making their opinions. Id. (001714). Additionally, according to Ms. Simons, a more thorough investigative system would identify serious incidents other than abuse, neglect, and exploitation.
In addition to having IMB investigators conduct incident investigations, DHI hired a contract nurse called a Specialty Surveyor to conduct death investigations separate from the MRC review process. David Rodriguez Deposition, 136:20-137:10. Apparently, the Specialty Surveyor does not complete her reports in time for them to be incorporated into the incident investigations. Id. at 137:14-19.
First, the Court questions whether there are enough investigators considering the vacancy rate and increased caseloads. Second, the Court does not doubt that the investigators perform their work to the best of their abilities, but issues still remain as to the adequacy of the investigations. For example, although there are investigation protocols and the investigators receive training, the fact that the IMB investigators are not medically trained seems to limit their ability to perform adequate medical neglect investigations, especially when the investigators seldom take advantage of nurse consultations. Additionally, the Court questions the adequacy of the investigations when face-to-face interviews and travel to facilities appear limited. The scope of incident investigations should also be broadened to capture other serious incidents which affect the safety of class members. Third, the Court applauds Defendants’ use of a Specialty Surveyor; but for her expertise to be effective, her reports must be completed more timely.
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(6) IM 8: “Implement all recommendations regarding Mortality Review made by Dr. Willcox in his December 2003 report.” APPENDIX A at 2.
The mortality review recommendations by Dr. Willcox which Plaintiffs contend are at
issue are listed in Plaintiffs’ Table of All Jackson Court Ordered Obligations (Doc. No. 1884-1)
at 13-14. The first recommendation listed by Plaintiffs is Dr. Willcox’s recommendation for
Defendants to establish criteria that trigger when to conduct a death review. Def. Ex. Vol. VI,
V-05 (002061). The remaining recommendations are numbered in Dr. Willcox’s report and read
as follows:
1. If meeting monthly is felt to be too often, then meeting every two months or quarterly should suffice. The number of cases to be reviewed would determine the required frequency of meeting.
2. It would be helpful for the policy to expand the detail and be more specific about the DOH Mortality Review Committee's role in identifying system issues and problem resolution. This is the penultimate role of this committee and the only mechanism for effecting system change with the goal of improving the provision of care, reducing morbidity, and ensuring that, even though the outcome may be death, care is provided in a timely, competent, caring environment. It is important that all recommendations for improvement that arise from local/regional and external reviews be compiled and discussed at the state level. The format for meeting minutes should be identified and include information on the identification of system issues and areas for problem resolution.
3. The policy should specify those details of individual case information that should be collected. Attachment A includes suggestions for this data collection. This type of data collection can be used to assist in tracking trends among the reviewed cases and possible indicators of risk.
4. A procedure for monitoring systemic issues should be devised to determine whether actions taken have resulted in problem resolution or other actions are indicated. Attachment B gives a list of systemic issues that have been discovered during external mortality reviews completed for the NMDOH since August 2002 and may be helpful in formulating categories of system issues. A system for tracking these issues and the actions taken is needed.
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5. A procedure by which recommendations for system improvement/change are referred to the appropriate division within the NM DOH for further action should be developed. Recommendations requiring programmatic actions should be assigned to the appropriate program division, e.g. Long Term Services, Behavioral Services. Monitoring of the completion of these actions should be assigned to the Division of Health Improvement. The Division of Health Improvement would further be responsible for reporting on the status of implementation of the recommendations at each Mortality Review Committee meeting. Id. The 706 Expert found in her February 2011 report that Defendants have not met Dr. Willcox’s recommendations #s 2, 3, 4, and 5. Pl. Ex. 60 (001720-001721). Consequently, the Court will focus on those four recommendations. With respect to the quality of the MRC minutes, the Court notes that Plaintiffs’ counsel produced an example of an MRC summary (or minutes) at Dr. Hansen’s deposition which was abbreviated and did not even list the meeting’s participants. Dr. Hansen Deposition, 35:2-36:3. Dr. Zwick also criticized the quality of the MRC minutes. TT Vol. III, 464:7-18. Dr. Merovka noted in her deposition testimony that during her tenure with DOH, which ended in February 2009, she believed that more than half the time data collection practices were problematic and case managers were not adequately tracking class members’ health care needs and services. Dr. Carol Merovka Deposition, 181:7-24. Although the 706 Expert developed an electronic database containing medical topics, like how many times a class member went to the hospital before dying, DOH did not use that database because it was unwieldy, difficult, and inefficient to use. TT Vol. IV, 787:12-24. DOH does have its own electronic database, but it admits that this database is not as comprehensive as the 706 Expert’s database. Id. at 787:25788:8. In October 2007, Defendants maintained a catalog containing the kind of information that Dr. Zwick recommended DOH should keep, including the identification of issues that
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contributed to class members’ deaths. DOH, however, no longer keeps that kind of catalog and Jennifer Thorne-Lehman, Deputy Director of DDSD, did not know why that catalog was discontinued. Id. at 789:15-791:24. Nonetheless, similar information from the previous catalog is presented to the DDSQI steering committee. Id. at 790:20-791:5.
Dr. Hansen also believed that corrective measures identified by the MRC should be tracked to determine if those measures have been efficacious. Dr. Ralph Hansen Deposition, 199:14-25, 201:2-14. Dr. Hansen further agreed that it is a good idea to have a system for monitoring systemic issues to determine whether actions have resulted in problem resolution, but establishing that kind of system may be harder to do than it sounds. Id. at 163:6-164:1. Dr. Hansen was unaware if there is a formal tracking system to identify recommendations by consultants and to determine whether those recommendations have been implemented. Id. at 158:22-159:3. Moreover, Dr. Hansen noted that there is no computerized database to track concerns of the MRC over the prior months. Id. at 133:25-134:12. To his knowledge, DOH has not provided “a real breakdown statistical analysis of mortality rates over time.” Id. at 44:1-11. Also, DOH is not currently “reporting on the status of implementation of systemic recommendations at each” MRC meeting. Id. at 164:17-24. Dr. Hansen testified at his deposition that he was unaware of any direct involvement of the DDSQI with the MRC to address systemic issues concerning mortality. Id. at 151:6-18.
Dr. Hansen recommended improving the mortality review process in several ways. First, he wants to get involved in the mortality review process early on when there is a complicated and challenging review. Dr. Ralph Hansen Deposition, 91:1-92:4. Second, Dr. Hansen would like to have the focus of the mortality review process “be fleshed out and documented more clearly about identification of system problems.” Id. at 92:5-12. This would include clearly
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documenting corrective action plans. Id. at 92:13-19. Third, Dr. Hansen would like to improve the identification and tracking of sentinal markers to measure system performance. Id. at 92:2093:1. Finally, Dr. Hansen recommended removing some of the barriers between DHI and DDSD. Id. at 93:2-94:14. Even Dr. Ric Zaharias, Defendants’ expert, made recommendations on how to improve the mortality review process: follow timelines, involve stakeholders, and include case closure documentation more consistently. Def. Ex. Vol. V, B-05 (001867).
Ms. Maes further indicated that the IMB does not track data about what kinds of events most frequently trigger incident reports, although she sees tracked data at monthly and quarterly meetings. Alice Maes Deposition, 68:20-25. The IMB last produced an annual trend report in 2008, and the IMB no longer presents an Investigation Data Report Run at DDSQI meetings. Id. at 69:17-22, 71:19-72:3; Pl. Ex. 184 (003035). Ms. Maes did not know if Continuum issued an annual report on its death investigations. Alice Maes Deposition, 104:3-6.
The evidence clearly shows that MRC minutes need improvement in order to achieve meaningful systemic change. Although Defendants engage in data collection and tracking of various sorts of information, these activities can also be improved to meet Dr. Willcox’s recommendations more fully. Furthermore, as Dr. Hansen discussed at his deposition, and even as Dr. Zaharias recommended, the MRC and its mortality review process can be better focused and improved to ensure improvement in system performance. Overall, Defendants still have some work to do to meet IM 8.
(7) IM 9: “Ensure that Dr. Willcox makes written recommendations regarding both individual and systemic corrective actions when he writes each death review report, and establish a reliable mechanism to ensure that those recommendations are promptly implemented.” APPENDIX A at 2.
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Dr. Willcox no longer performs external mortality reviews. Defendants decided to have Continuum perform external mortality reviews because Dr. Willcox’s reviews were lengthy, overly detailed, dealt with issues outside the control of DOH, and were not useful to Defendants. TT Vol. V, 918:2-919:10; Paulette Archibeck Deposition, 192:13-194:8. Interestingly, Dr. Willcox testified at his deposition that no one in New Mexico complained about his mortality reviews. Dr. James Willcox Deposition, 28:18-29:21, 31:10-13, 98:20-25. Defendants claim that they asked Continuum to perform the external mortality reviews because Defendants wanted the external mortality reviews to be focused and to be performed by New Mexicans who know the systems of care and could provide clear and concise technical recommendations. Dr. Karen Armitage Deposition, 46:10-47:3. In conducting an external mortality review, Continuum determines the cause of death and whether the death was preventable by reviewing all available documents compiled six months before death or even as far back as to the time of institutionalization. Continuum determines if any problem was individual or systemic. TT Vol. V, 916:7-917:11. Nevertheless, the 706 Expert in her February 2011 report found that “[i]ndividual and systemic corrective action[s are] not included in external review. There is no reliable mechanism [to ensure] recommendations are promptly implemented. MRC does not review recommendations and then track until resolution.” Pl. Ex. 60 (001720).
Although Dr. Antoinette Benton, a physician with Continuum, performed a mortality review of a class member by using a Continuum template, no one had told her that there is a court order requiring the mortality reviews for class members to include systemic and individual recommendations. Dr. Antoinette Benton Deposition, 55:13-56:3, 57:10-15. Furthermore, when Dr. Benton performed that mortality review, she did not have the benefit of the Specialty Surveyor’s report or the DOH Mortality Review Investigator’s 72-hour report. Id. at 56:15-57:1.
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If Dr. Benton had known about other similar deaths at that particular provider, she might have taken other action regarding her concerns or made recommendations regarding patient care at that provider. Id. at 64:20-65:9.
Considering Dr. Benton’s experience with a mortality review, the Court is left with the impression that it is unclear if, and to what extent, Continuum external mortality reviews have written recommendations regarding both individual and systemic corrective actions. No evidence suggests that if Continuum physicians make recommendations for corrective actions that those recommendations are tracked and promptly implemented.
(8) IM 10: “Establish an adequate process for improving the reporting of incidents to the [IMB].” APPENDIX A at 2.
Undoubtedly, investigating allegations of abuse, neglect, and exploitation of individuals is a top priority for Defendants. Pl. Ex. 194 (003131). Moreover, Defendants have in place a fairly comprehensive Incident Management System Policies and Procedures, Pl. Ex. 194, as well as an Incident Management System Guide for Community Based Service Provider Agencies, Pl. Ex. 189., which explain the reporting process. Additionally, the Significant Events workgroup has undertaken to require providers to report to DOH significant events that implicate class member health and safety. Ms. Simons, the chair of the Significant Events workgroup found a 70% compliance rate for reporting significant events within 48 hours, up from less than 50%. Janet Simons Deposition, 69:20-70:2. These compliance rates are interesting since DOH has not mandated the reporting of significant events although DOH expects compliance by providers. Id. at 190:1-12.
The 706 Expert, however, found in her April 2010 report that “[t]here is under-reporting of serious incidents involving class members.” Pl. Ex. 59 (001678). She further found that
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“[d]elays in reporting and investigating allegations of abuse, neglect, and exploitation” perpetuate class members’ exposure to harm and threats to their health and safety. Id.; TT Vol. II, 275:10-15.
In June 2009, Ms. Maes sent out letters to providers informing them whether the percentage of incident reports in their programs that were confirmed as abuse, neglect or exploitation was higher than the state average. Alice Maes Deposition, 73:11-74:8. Ms. Maes testified at her deposition that she did not know if DOH took any action regarding any of the providers to which she sent the June 2009 letters. Id. at 77:21-78:1. Moreover, at the time of her April 2011 deposition, Ms. Maes had not yet done an analysis about whether the number of late incident reports was higher or lower in 2010 compared to 2009. Id. at 76:13-77:4. The average rate of either submitting late incident reports or failing to submit incident reports of abuse, neglect, or exploitation was 38% in 2008. Id. at 81:23-82:1. Ms. Maes also admitted that she has not done any kind of reporting comparing fiscal year 2008 and fiscal year 2009 with respect to late incident reports or failure to report incidents. Id. at 210:15-19. Ms. Maes, however, testified that she has compared, from year to year, the averages for confirmed abuse, neglect, and exploitation; for late reporting of incidents; and for failure to report incidents. Id. at 70:7-21.
As always, Defendants are diligent in developing polices and procedures which, in this instance, describe the incident reporting process and have even provided a guide for providers. Defendants further encourage, although unfortunately do not require, that providers report significant events. Ms. Maes’ June 2009 letters to providers indicating how providers confirmed abuse, neglect, or exploitation incidents compare to the state average were also a good start toward improving incident reporting but were not followed up. Better and more timely statistical reporting by the IMB would further aid in improving incident reporting. Defendants’ actions,
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although admirable, still fall short of providing an adequate process for improving the reporting of incidents.
(9) IM 11: “Establish adequate protocols for assessing whether a provider is reporting all reportable incidents and for properly sanctioning providers that fail to report.” APPENDIX A at 2.
Ms. Maes testified that she has compared, from year to year, the averages for confirmed incidents of abuse neglect, and exploitation; late reporting of incidents; and failure to report incidents. Alice Maes Deposition, 70:7-21. On the other hand, Ms. Maes admitted that she had not, at the time of her April 2011 deposition, compared late incident reports or failure to submit incident reports for fiscal years 2008 and 2009. Id. at 210:15-19. Nor had she analyzed whether the number of late incident reports was higher or lower in 2010 compared to 2009. Id. at 76:1377:4. As indicated earlier, the average rate of either submitting late incident reports or failing to submit incident reports of abuse, neglect, or exploitation was 38% in 2008. Id. at 81:23-82:1. Although Ms. Maes sent out letters in June 2009 to providers stating whether the percentage of incident reports in their programs that were confirmed as abuse, neglect or exploitation was higher than the state average, Ms. Maes testified at her deposition that the she did not know if DOH took any action regarding any of the providers to which she sent the June 2009 letters. Id. at 73:11-74:8, 77:21-78:1.
As Defendants point out, providers are subject to sanctions from the IRC if they do not correct identified problems, including problems with reporting incidents. However, the 706 Expert noted in her August 2008 report that “Defendants’ pattern of failure to comply with the corrective action process is a significant reason for the defendants’ protracted lack of compliance.” Pl. Ex. 58 (001642). The 706 Expert recommended in 2010 that generally “DOH
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needs to develop and implement strategies to monitor and provide technical assistance to reduce unreasonable threats to class members’ health and safety. The effectiveness of the remedial strategies will be determined by periodic evaluation of measurable outcomes.” Pl. Ex. 59 (001679-001680). Ms. Simons testified at her deposition that DDSD is struggling with how to study the outcome of its activities although DOH administrators have more recently and more frequently discussed the need to establish performance outcome measures. Janet Simons Deposition, 118:24-119:8.; 200:4-13.
The Court acknowledges that Defendants are trying to assess whether providers are reporting all reportable incidents as reflected in the IMB’s statistical reports. Those reports, however, could be more timely and subject to follow-up, including measurable outcomes. Although sanctions are available for failing to report incidents, imposition of those sanctions and determination of the effectiveness of the sanctions are still issues that Defendants need to address in order to provide class members with a reasonably safe environment.
(10) IM 12: “Ensure that after appropriate intake of emergency room visit incidents medical technical assistance is provided.” APPENDIX A at 3.
IM 12 appears to require that once there has been a emergency room visit, Defendants must provide the class member with medical technical assistance, presumably to prevent or lessen the chances of another emergency room visit. However, neither Plaintiffs’ nor Defendants’ proposed findings of fact concerning IM 12 are particularly relevant to a plain reading of IM 12. Plaintiffs’ Proposed Findings of Fact and Conclusions of Law at 195, ¶ 25; Defendants’ Proposed Findings of Fact and Conclusions of Law at 183, ¶ 856. Without relevant citations to the record, the Court is not in a position to determine whether or not Defendants have substantially complied with IM 12.
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(11) IM 13: “Improve the quality of investigations of abuse, neglect, and exploitation.” APPENDIX A at 3.
Defendants have in place Incident Management System Policies and Procedures which outline the investigative process. Pl. Ex. 194 (003110-003123). Although Ms. Maes, the chief of the IMB, had no training or experience in conducting incident investigations when she was hired as chief, newly hired IMB investigators are trained and mentored for at least 30 days prior to conducting investigations on their own. Alice Maes Deposition, 122:3-123:9.36 In addition to their regular training, they receive training through Labor Relations Alternatives, Inc., a company recommended by the 706 Expert.
IMB investigators, as mentioned before, are not medically trained and so do not have the expertise to determine the extent of medical neglect. Accordingly, IMB investigators do not have the training and experience to determine if a provider’s corrective action is sufficient in a medical neglect case. David Rodriguez Deposition, 50:19-25. The IMB investigators, however, have access to a nurse for medical consultations, but they apparently do not frequently take advantage of the nurse’s services. Nonetheless, Ms. Archibeck testified at her deposition that several of the IMB investigators do their jobs well. Paulette Archibeck Deposition, 58:4-60:13. In the case of death due to abuse, neglect, or exploitation, IMB investigators obtain a corrective action plan from the provider regarding the abuse, neglect, or exploitation, and refer the death itself to the IRC. David Rodriguez Deposition, 138:12-21.
36Plaintiffs object to this portion of Ms. Maes deposition testimony as irrelevant and cumulative. Training of IMB investigators, however, is relevant to the quality of investigations and the Court does not find the cumulative objection to be persuasive. Consequently, Plaintiffs’ objections to this part of Ms. Maes’ deposition testimony are overruled.
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However, questions arose at Ms Maes’ deposition regarding the frequency of telephone interviews by IMB investigators and the effect of reduction of travel fund reductions on the number of face-to-face interviews. Additionally, Ms. Maes claimed that IMB investigations have not suffered despite an increase in the investigators’ caseloads due to vacancies. In October 2008, Ms. Simons found that IMB investigation files lacked important documentation, but after February 2009, IMB investigators were required to have in their files a copy of a provider’s investigation of the incident, the provider’s corrective action plan, and documentation that the provider took actions to correct the issues surrounding the incident. Janet Simons Deposition, 47:11-48:18. Ms. Simons further recommended that the IMB investigate other types of serious incidents besides abuse, neglect, and exploitation.
Over the years, DHI has improved its database system and has hired a Specialty Surveyor, who is a nurse, to perform death investigations. David Rodriguez Deposition, 46:447:17. The Specialty Surveyor’s reports, however, were not completed in time to be incorporated into the IMB incident investigations. David Rodriguez Deposition, 137:14-19.
As described above, instances of neglect, many of which were health-related, were found numerous times at Mosaic, Dungarvin, Los Lunas, and Tresco. The 706 Expert rightly testified that the mechanisms to hold providers accountable “is not adequate as we can see from the adverse outcomes and the protracted histories of some of these providers. There is this tolerance of substandard performance that’s not acceptable.” TT Vol. II, 307:4-9. The 706 Expert also found in her February 2011 report that “IMB investigations are not conducted on all serious incidents” including deaths. Pl. Ex. 60 (001702).
There is no doubt that the IMB investigators are working hard and doing the best they can under the circumstances. Moreover, Defendants have investigation policies and procedures,
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conduct various investigator trainings, provide a nurse consultant to the investigators, have improved IMB databases, and have hired a Specialty Surveyor. Nonetheless, as discussed previously, there are still shortcomings regarding the quality of the investigations like underutilization of the nurse consultant; less use of face-to-face interviews; fewer actual visits to facilities; higher caseloads for the investigators; issues with documentation in investigation files; investigations that omit serious incidents (other than abuse, neglect, or exploitation); untimely Specialty Surveyor reports; and even a lack of investigation on all serious incidents. These shortcomings have undoubtedly increased the risk of harm to class members and have resulted in several instances of health-related neglect found at providers like Mosaic, Dungarvin, Los Lunas, and Tresco.
(12) IM 14: “Implement changes to the system for performing intake/triage of incident reports, to ensure that investigations are conducted of all incidents of suspected abuse, neglect, and exploitation.” APPENDIX A at 3.
As noted before, Defendants’ Incident Management System Policies and Procedures sets forth the intake/triage process for incident reports. Pl. Ex. 194 (003102-003107). This document was revised on May 29, 2006, about a year after APPENDIX A was filed with the Court. It is notable that Defendants have been able to identify various incidents of neglect at providers like Dungarvin, Mosaic, Tresco, and Los Lunas. Nonetheless, the 706 Expert found in her February 2011 report that the IMB does not investigate all serious incidents including some deaths. Pl. Ex. 60 (001702). Although Defendants have established an intake/triage process for investigations, the implementation of that process is not always effective if some serious incidents go uninvestigated.
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3. Summary of Issues Affecting Defendants’ Ability to Comply with Safety Obligations.
Defendants are to be commended for developing policies and procedures to address incident investigations as well as a providers’ guide for reporting incidents. Defendants are also to be commended for providing IMB investigators with two trainings, for holding monthly and quarterly regional meetings to discuss incident reports, for providing a nurse consultant for investigators, and for hiring a Speciality Surveyor to conduct death investigations. These activities have surely increased the chances that class members live in safe environments. Nevertheless, Defendants have failed on several accounts to take actions which would ensure that class members are reasonably safe and not subject to unreasonable harm.
Issues that have arisen include the need to timely follow-up on corrective action plans and the need for mortality reviews to focus on and develop corrective action plans or recommendations, on both individual and systemic levels, which will be tracked to resolution. Other issues include the need for more useful statistical incident reporting by the IMB, plus follow-up on that reporting for providers which are performing poorly. It is imperative for the safety of class members that late or under-reporting of incidents is recognized in a timely way and effectively sanctioned. In addition, the quality of IMB investigations cannot help but be affected by the apparent lack of resources to hire more investigators, to enable more face-to-face interviews, and to allow for more travel to facilities. Finally, because medical neglect of class members is a significant concern, the Court doubts whether IMB investigators should have discretion whether to consult with a nurse, and the Court believes class members might be better served if the investigators either were medically trained or were required to consult with a nurse on every case of neglect, abuse, or exploitation based on inadequate medical care. The Court is
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confident that Defendants can address these outstanding issues within a reasonable time and in so doing substantially comply with Defendants’ remaining obligations under the JSD, POA, and APPENDIX A to provide class members with a reasonably safe environment in which they can thrive.
B. Findings of Fact. 43. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 1, Desired Outcome A. 44. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 1, Desired Outcome A will not defeat an essential purpose of the POA, i.e., to provide class members with a reasonably safe environment. 45. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 2, Desired Outcome F, Activity # 3. 46. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 2, Desired Outcome F, Activity # 3 will not defeat an essential purpose of the POA, i.e., to provide class members with a reasonably safe environment. 47. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 2, Desired Outcome F, Activity # 4. 48. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 2, Desired Outcome F, Activity # 4 will not defeat an essential purpose of the POA, i.e., to provide class members with a reasonably safe environment. 49. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 2, Desired Outcome G, Activity # 1.
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50. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 2, Desired Outcome G, Activity # 1 will not defeat an essential purpose of the POA, i.e., to provide class members with a reasonably safe environment.
51. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 2.
52. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 2 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
53. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 4.
54. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 4 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
55. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 5.
56. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 5 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
57. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 6.
58. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 6 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
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59. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 7.
60. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 7 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
61. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 8.
62. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 8 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
63. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 9.
64. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 9 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
65. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 10.
66. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 10 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
67. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 11.
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68. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 11 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
69. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 13.
70. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 13 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
71. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, IM 14.
72. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, IM 14 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with a reasonably safe environment.
C. Conclusions of Law. 28. Since Defendants have not substantially complied with POA Appendix 1, Desired Outcome A, it is not subject to disengagement at this time. 29. Since Defendants have not substantially complied with POA Appendix 2, Desired Outcome F, Activity # 3, it is not subject to disengagement at this time. 30. Since Defendants have not substantially complied with POA Appendix 2, Desired Outcome F, Activity # 4, it is not subject to disengagement at this time. 31. Since Defendants have not substantially complied with POA Appendix 2, Desired Outcome G, Activity # 1, it is not subject to disengagement at this time.
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32. Since Defendants have not substantially complied with APPENDIX A, IM 2, it is not subject to disengagement at this time.
33. Since Defendants have not substantially complied with APPENDIX A, IM 4, it is not subject to disengagement at this time.
34. Since Defendants have not substantially complied with APPENDIX A, IM 5, it is not subject to disengagement at this time.
35. Since Defendants have not substantially complied with APPENDIX A, IM 6, it is not subject to disengagement at this time.
36. Since Defendants have not substantially complied with APPENDIX A, IM 7, it is not subject to disengagement at this time.
37. Since Defendants have not substantially complied with APPENDIX A, IM 8, it is not subject to disengagement at this time.
38. Since Defendants have not substantially complied with APPENDIX A, IM 9, it is not subject to disengagement at this time.
39. Since Defendants have not substantially complied with APPENDIX A, IM 10, it is not subject to disengagement at this time.
40. Since Defendants have not substantially complied with APPENDIX A, IM 11, it is not subject to disengagement at this time.
41. Since Defendants have not substantially complied with APPENDIX A, IM 13, it is not subject to disengagement at this time.
42. Since Defendants have not substantially complied with APPENDIX A, IM 14, it is not subject to disengagement at this time.
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V. Whether Defendants have Substantially Complied with Their Obligations under the JSD, POA, and APPENDIX A to Provide Supported Employment to Class Members. A. Defendants’ Obligations under the JSD, POA, and APPENDIX A to Provide Supported Employment to Class Members. The goal of supported employment, as described in the POA, is “to give access to
employment to all individuals with developmental disabilities who wish to work, and for whom employment will substantially improve their quality of life.” POA at 103. The POA “builds on the systems’s successes to date in developing employment opportunities for individuals with developmental disabilities, and gives concentrated attention to providing relevant employment opportunities, training, and supports to individuals who were previously institutionalized, in order to access and sustain meaningful jobs, and to continue their career development.” Id. The POA defines supported employment in accordance with the United States Department of Education regulations as follows:
[Supported employment is] paid employment, with Ongoing supports, in integrated settings for the maximum number of hours possible based on the unique strengths, resources, interests, concerns, abilities and capabilities of individuals with the most severe disabilities. Integrated settings are work places where most of the employees are not handicapped and where an individual interacts on a regular basis, in the performance of their job duties, with employees who are not handicapped.... Id. Defendants agreed that a goal of supported employment should be to work “at criteria.” Working at criteria means working ten hours a week at half of minimum wage in an integrated work setting. TT Vol. III, 520:5-9. Plaintiffs assert that Defendants have not substantially complied with the following supported employment provisions of the JSD, POA, and APPENDIX A: 1. JSD and POA Provisions
a. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome B: Activity # 2: “Recruit/orient and train existing provider and division staff who will be 122

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involved in the completion of vocational profiles and Career Development Plan (CDP) for individuals served in each region.” POA at 105.

b. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome B: Activity # 3: “Orient and train provider staff on competency-based [CDP].” Id.

c. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome B: Activity # 5: “Implement profiles and CDPs statewide for the identified 119 individuals based on a prioritization scale:

a. Persons who want to work and have an identified transition plan for supported employment but are not now working,

b. Persons receiving services that are inconsistent with the transition plan and ISP objectives that were recommended for supported employment assessments,

c. Persons receiving services consistent with the transitional plan whose employment/work services require enhancements as a safeguard for continued growth and opportunity, [and]

d. Persons employed consistent with the transition plan and who may

need new employment opportunities due to changes, layoffs, problems

with performance or newfound career interests.”

Id. at

106.

d. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome B: Activity # 6: “[CDPs] with action steps for employment will be in ISPs as evidence of career component individuals in each of the groups identified in [Activity] #5 above as: Group ‘a,’ Group ‘b,’ Group ‘c,’ [and] Group ‘d.’” POA at 107.

e. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome C: Activity # 1: “Case Managers, IDTs, individuals and guardians will be informed of the need to consider, at the time of the annual ISP meeting, whether an individual would benifit [sic] from a supported employment profile and/or a CDP.” POA at 108.

f. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome C: Activity # 2: “Increase employment opportunities for individuals who were previously institutionalized [as follows:]

a. Facilitate employment/access jobs for previously institutionalized individuals who want to work,

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b. Access employment for persons receiving services that are inconsistent with the transition plan and ISP objectives who were formerly institutionalized,
c. Sustain/improve job matches for persons who were formerly institutionalized and are currently working in jobs that are poor job matches or offer limited number of hours to work,
d. Sustain/improve employment for persons previously institutionalized who are working, [and]
e. Continue to increase the number of persons who gain access to employment based on CDP development.” Id.
g. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome C: Activity # 5: “Continue to improve the quality of supported employment [as follows:]
a. Provide technical assistance to individuals, programs, regional office staff on the development of vocational profiles and individual CDPs,
b. Provide technical assistance to individuals, programs, regional office staff on individual supports to persons with significant disabilities,
c. Provide technical assistance in addressing disincentives to employment,
d. Provide technical assistance on the use of natural supports, [and]
e. Provide technical assistance on accessing alternative funding for supported employment....” POA at 110.
2. APPENDIX A
a. SE 1: “LTSD [(Developmental Disabilities Supports Division, formerly known as Long Term Services Division)] will retain new full time equivalent personnel to develop an employment institute (center) and to initiate, support and provide technical assistance for job development and innovative employment practices including customized employment and micro-enterprises at the local level in conjunction with the Supported Employment consultants.” APPENDIX A at 4.
b. SE 2: “Ensure that the consultants are used for job development at least to the same extent they were used in past years.” Id.
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c. SE 3: “Use the employment consultants at least to the same extent that the previous administration did to provide quality supported employment services to more class members.” Id. at 5.
d. SE 4: Implement POA Appendix 10, Desired Outcome B, the 119 Work Plan.
e. SE 5: “Develop a plan with time lines to provide quality supported employment at the minimum criteria to all priority class members who are determined to be appropriate for work.” Id.
f. SE 7: “Analyze all policies and practices that are inconsistent with ‘employment first’ principles and make necessary changes.” Id.
g. SE 9: “LTSD will set and enforce standards that define expectations for all day services, including work.” Id.
h. SE 10: “Develop consequences for case management agencies whose case managers do not carry out DOH policies regarding employment in line with employment first principles and as identified in individual comprehensive personal profiles.” Id.
i. SE 11: “Develop criteria outlining competencies for staff involved in supported employment.” Id.
j. SE 12: “LTSD will recruit employment providers in areas of the state where there are few/no quality outcomes and innovative approaches.” Id.
k. SE 13: “Performance-based contracts will be developed, implemented, and enforced.” Id.
l. SE 16: “Develop guidelines, consistent with [DOH’s] employment first principles, for case managers regarding the need for adequate comprehensive personal profiles and implementation of [CDPs].” Id.
3. JSD ¶¶ 32 and 33: Continuous Improvement of Supported Employment Services.
1. JSD and POA Provisions.
Plaintiffs raise noncompliance issues with both Desired Outcomes B and C of POA
Appendix 10. Desired Outcome B applies to the 119 class members who are known as the 119
Priority Group. When the 119 Priority Group were still residents at either LLH & TS or FSH
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&TS, they had ISPs which indicated that they had work goals. Desired Outcome B of POA Appendix 10 requires that the 119 Priority Group have “a [vocational] profile and CDP, if indicated, addressed in their annual ISP.” POA at 105. Desired Outcome C of POA Appendix 10 provides that “[t]he New Mexico Developmental Disabilities Division will have improved and expanded capacity for quality supported employment. For individuals previously institutionalized (other than those 119 identified in “B”) whose ISP indicates employment, there will be a [vocational] profile and CDP, if indicated, addressed in their annual ISP.” Id. at 108.
Defendants note in their response to the Renewed Noncompliance Motion that on May 12, 2011, they initiated the disengagement process for both Desired Outcomes B and C. Plaintiffs, however, oppose the disengagement and have raised issues of noncompliance with the supported employment obligations at the June 2011 evidentiary hearing as well as in their Renewed Noncompliance Motion. Consequently, the issue of whether Defendants have substantially complied with Desired Outcomes B and C and their supporting activities is now before the Court. See JSD ¶ 45 (“If the motion [to disengage] is contested, the parties will request that the Court hold a hearing and enter its findings and conclusions.”). Since the Court has instructed Plaintiffs to identify with specificity the supporting activities Plaintiffs claim Defendants have not substantially complied with, the Court will not focus on the broader obligations set forth in Desired Outcomes B and C, but will instead concentrate on the specific activities supporting Desired Outcomes B and C identified by Plaintiffs as activities with which Defendants have not substantially complied.
a. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome B: Activity # 2: “Recruit/orient and train existing provider and division staff who will be involved in the completion of vocational profiles and Career Development Plan (CDP) for individuals served in each region.” POA at 105. 126

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It is significant that the number of supported employment providers has increased from 15 to 20 in 1994 to approximately 45 in 2011. TT Vol. III, 546:25-547:19. Defendants also contract with outside entities to provide vocational assessments, direct the New Mexico Employment Institute (NMEI) to conduct vocational assessments, and provide training statewide to build capacity to perform vocational assessments. TT Vol. IV, 687:18-25. In fact, Defendants developed vocational assessment profile (VAP) training with the assistance of their long-time supported employment consultant, Ruby Moore. Id. at 642:22-25. The Jackson quarterly report for October to December 2010 indicates that Activity # 2 is ongoing and that “follow-up mentoring to VAP training continued this quarter” for the southwest and southeast regions. Pl. Ex. 95 (002376). Training was also scheduled for the northeast region the following quarter. Id. The amount of training being offered to supported employment providers has increased over time as well. Robert Mazzola Deposition, 51:13-16. In addition, Defendants have created training for case managers to insure that they understand their role in providing supported employment opportunities and that they perform their roles appropriately. TT Vol. IV, 643:1-2.
Notwithstanding the progress Defendants have made in recruiting supported employment providers, increasing the number of VAP facilitators, and in providing training, according to Cathy Stevenson, the Deputy Director of DDSD, the state could still use more VAP facilitators. Id. at 717:2-12. For example, the QMB found that VAPs were provided properly only 27 % of the time in FY 2009 due, in part, to lack of qualified state staff who are approved to complete VAPs. Pl. Ex. 134 (002612). Clearly, Defendants need to recruit and train even more staff who can prepare adequate VAPs for the 119 Priority Group so that members of the group, who want to work, can attain supported employment at criteria. The Court will discuss the CDP training
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component of Activity # 2 in conjunction with Desired Outcome B, Activity # 3 which also requires CDP training.
b. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome B: Activity # 3: “Orient and train provider staff on competency-based [CDP].” POA at 105.
According to the Jackson quarterly report for October to December 2010, Activity # 3 is, likewise, ongoing. The quarterly report notes that with respect to Activity # 3, NMEI provided technical assistance concerning career development to several providers; Ms. Moore provided consultation on job development strategies; and Ruthie Beckwith, Ms. Moore’s associate, provided consultation on small business development strategies. Pl. Ex. 95 (002376). As stated above, supported employment providers have, over the years, received generally more training. In the early 1990s and more recently, Defendants have specifically conducted statewide CDP training as well. TT Vol. IV, 642:15-20. Even so, the CPRs show that CDPs lack requisite information or that the CDPs are not implemented. TT Vol. III, 561:13-24. As Ms. Moore observed in her testimony during the June 2011 evidentiary hearing, there are class members who are not working who could be working at good jobs and class members who are working who could do more and get paid more than they do. Id. at 522:2-5; 523:16-18. Ms. Moore further testified that Defendants have continued to contract with providers who have a “chronic inability to get people jobs and provide good quality supported employment services....” Id. at 535:2-9. Once more, despite technical assistance, consultations, and trainings, CDPs either often are not being produced or have been implemented properly. These problems with CDPs show that the current orientation and training of supported employment provider staff is simply inadequate. Without adequate orientation and training, not all members of the 119 Priority Group who desire to engage in supported employment will be able to do so, thereby defeating
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the overarching JSD and POA goals to provide supported employment at criteria to 119 Priority
Group members who want to work.
c. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome B: Activity # 5: “Implement profiles and CDPs statewide for the identified 119 individuals based on a prioritization scale:
a. Persons who want to work and have an identified transition plan for supported employment but are not now working,
b. Persons receiving services that are inconsistent with the transition plan and ISP objectives that were recommended for supported employment assessments,
c. Persons receiving services consistent with the transitional plan whose employment/work services require enhancements as a safeguard for continued growth and opportunity, [and]
d. Persons employed consistent with the transition plan and who may need new employment opportunities due to changes, layoffs, problems with performance or newfound career interests.” POA at 106.
Vocational assessment updates were completed for the 119 Priority Group in FY 2010.
Pl. Ex. 95 (002377). Nonetheless, five of the 119 Priority Group have never worked at criteria
while other 119 Priority Group members who previously had work goals no longer have them,
and others have outdated CDPs or CDPs that have not been implemented. TT Vol. III, 515:21-
516:1. While Defendants have made progress in updating VAPs for the 119 Priority Group, they
have had difficulty in updating CDPs for the 119 Priority Group as well as implementing the
CDPs for some members of the 119 Priority Group. Improvement of the CDP process is
necessary in order for Defendants to meet the JSD and POA goal of providing supported work
opportunities, especially at criteria, to those 119 Priority Group members who desire to work.
d. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome B: Activity # 6: “[CDPs] with action steps for employment will be in ISPs as evidence of career component individuals in each of the groups
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identified in [Activity] #5 above as: Group ‘a,’ Group ‘b,’ Group ‘c,’ [and] Group ‘d.’” POA at 107. The Jackson quarterly report for October to December 2010 states that Activity # 6 is both completed and ongoing. Pl. Ex. 95 (002378). The quarterly report notes that “[t]he vocational profile policy and procedure[s] available on the DDSD web site specify the role of the IDT.” Id. The quarterly report also documents that a total of 38 of the 119 Priority Group members were employed that quarter with 20 of them working at criteria. Id. The quarterly report explained that four of the 119 Priority Group members who had been employed were no longer employed: one class member retired and the other three class members had jobs that ended for various reasons including transitioning to a new provider, not wanting the job and having a guardian opposed to employment, and working conditions that were too loud for the class member. Id. Ms. Moore testified more generally at the June 2011 evidentiary hearing that many class members’ CDPs are outdated and those that are current are not being implemented. She also observed that CDPs are not being incorporated into ISPs; consequently, class members’ work goals are ignored. TT Vol. III, 574:2-18. Although Defendants have developed policies and procedures for IDTs in specifying their role with respect to VAPs and a handful of 119 Priority Group members are employed at criteria, problems remain regarding outdated CDPs, CDPs not being incorporated into ISPs, and unimplemented CDPs. Without updated CDPs incorporated into the ISPs, there is no chance that 119 Priority Group members who want to work at criteria can have their work goals realized. Defendants must, therefore, put more effort into complying with Activity # 6 in order to meet the supported employment goals of the JSD and POA.
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e. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome C: Activity # 1: “Case Managers, IDTs, individuals and guardians will be informed of the need to consider, at the time of the annual ISP meeting, whether an individual would benifit [sic] from a supported employment profile and/or a CDP.” POA at 108.
As mentioned before, policies and procedures are available to the IDTs regarding their role in producing VAPs. Pl. Ex. 95 (002379). In addition, every year at the ISP meeting, there is supposed to be “a conversation with the individual and the people who care about them, like their guardian, their team members, their friends, [and] their family” about “how work could improve this person’s life....” TT Vol. IV, 649:13-22. Supported employment is the preferred service for DD adults and should be the first piece of the ISP process. Id. at 649:10-13. In fact, the supported employment discussion at the annual ISP meeting must be documented and employment is a default choice. TT Vol. III, 554:11-20; Judy Stevens Deposition, 68:2-24; Pl. Ex. 32 (000790-000791). This preference for employment is commonly referred to as the Employment First principle. Class members who enroll in supported employment as a service in their ISP have work goals and expect to get a job, unless there is a medical situation that prevents employment. Dan Jackson Deposition, 53:25-55:3.
Although all written guidance by Defendants–their contracts, policies, and the definition of supported employment–describe employment as a default choice, “[i]n practice, that’s not necessarily what’s happening.” TT Vol. III, 554:18-21. Ms. Moore stated at the June 2011 evidentiary hearing that the fact that so few class members are actually working indicates that Desired Outcome C obligations, including presumably Activity # 1, are not being met by Defendants. TT Vol. III, 519:9-19. Ms. Moore did acknowledge, however, that the decrease in the number of class members working from 2002 to 2010 could be the result of illness, retirement, and deaths. Id. at 545:22-546:23; Def. Ex. Vol. VI, K-05 (001993-001994). She,
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nonetheless, noted that CDPs are not being incorporated into ISPs which means that those CDPs are not being implemented. TT Vol. III, 574:2-18.
Again, Defendants have in place policies and procedures to ensure that the appropriate persons in a class member’s life are informed of the importance of supported employment at the annual ISP meeting. Putting those policies and procedures into practice is where the problem seems to lie. Without consistent implementation of those policies and procedures, Defendants will necessarily fall short of affording reasonable opportunities for class members, who so desire, to engage in supported employment at criteria.
f. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome C: Activity # 2: “Increase employment opportunities for individuals who were previously institutionalized [as follows:] a. Facilitate employment/access jobs for previously institutionalized individuals who want to work, b. Access employment for persons receiving services that are inconsistent with the transition plan and ISP objectives who were formerly institutionalized, c. Sustain/improve job matches for persons who were formerly institutionalized and are currently working in jobs that are poor job matches or offer limited number of hours to work, d. Sustain/improve employment for persons previously institutionalized who are working, [and] e. Continue to increase the number of persons who gain access to employment based on CDP development.” POA at 108.
Defendants have taken a number of steps designed to increase employment opportunities for class members. For example, Defendants have developed more than one policy promoting employment and disseminated it; Defendants have more than doubled the number of supported employment providers since 1994; and Defendants created NMEI in 2007 to assist the state,
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providers, and individuals in having better employment outcomes. TT Vol. II, 406:22-407:2; TT Vol. IV, 640:7-15. Moreover, in 2009, Defendants obtained a federal Medicaid grant in excess of a million dollars to increase the funding for NMEI. TT Vol. III, 621:22-622:11. Ms. Moore also works closely with NMEI and state staff to ensure that they have the skills and capacity for job development. In addition, she also works with providers and she employs agents who work on her behalf, including Rick Toscano and Ruthie Beckwith. TT Vol. IV, 646:8-20. Defendants are further increasing training to build the capacity to perform vocational assessments, and Defendants have trained case managers regarding their role in providing supported employment. TT Vol. IV, 687:18-25. Additionally, Defendants have a total of six supported employment specialists who collect data on class members, attend IDT meetings, advocate on behalf of class members, work with providers, and work with NMEI. Id. at 638:23-639:10; 639:20-640:1. Defendants have also reached out to national experts to improve supported employment services. TT Vol. III, 565:3-19; Judith Stevens Deposition, 77:15-78:6, 99:4-100:19, 103:17-105:19. Defendants, moreover, produce a data elements report that contains current information on the status of VAPs and CDPs. TT Vol. IV, 714:10-715:8. Defendants have also redirected resources from segregated to integrated services and supports, as recommended by Ms. Moore. TT Vol. II, 407:24-408:2. Defendants have implemented an updated system for measuring the performance of supported employment providers which includes progressive technical assistance. TT Vol. IV, 699:15-20. Furthermore, the performance contracts for supported employment providers lists “deliverables” for each class member for each quarter, and supported employment staff monitor the “deliverables” every quarter. Id. at 647:19-648:5; Dan Jackson Deposition, 19:9-21. Defendants, in addition, have developed standards and requirements for supported employment providers. TT Vol. IV, 643:3-6. In 2011, New Mexico ranked ninth in
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the country in supported employment as measured by the United Cerebral Palsy Association’s publication, “The Case for Inclusion.” Id. at 655:12-656:7; Def. Ex. Vol. I, E-02 (000292).
Despite Defendants’ good faith effort to comply with Activity # 2, Ms. Moore reports that there are still class members working in supported employment positions that do not meet criteria and that “many” other class members who are capable of working at criteria are not working at all. TT Vol. III, 521:8-20. As mentioned previously, more VAP facilitators are needed and the VAPs could be updated more quickly. TT Vol. IV, 688:1-5. Although Defendants followed Ms. Moore’s recommendation to move resources from segregated programs to integrated programs, Ms. Moore believes that the resources are “not at the level [they] need[] to be.” TT Vol. II, 407:24-408:2. Ms. Moore noted at the June 2011 evidentiary hearing that five members of the 119 Priority Group have never worked at criteria; that other members of the 119 Priority Group who previously had work goals no longer have them; and that other members have outdated CDPs or CDPs that have not been implemented. Id. at 515:21-516:1.
Ms. Moore believes that the historic data illustrates that Defendants have “lost the momentum” to implement the supported employment reforms mandated by the JSD and that Defendants are not engaging in “adequate” efforts to increase supported employment opportunities for class members. Id. at 523:4-11. For instance, Ms. Moore testified at the June 2011 evidentiary hearing that the CPRs indicate that CDPs lack requisite information, CDPs are not being implemented, and that providers do not have adequate staffing. Id. at 561:13-24. Ms. Moore further testified that Defendants have not effectively addressed issues like low wages, segregation, the quality of alternatives to work, i.e., day programs, and relegation of class members who can work to day programs. TT Vol. II, 407:2-1l; Pl. Ex. 93 (002354). Finally,
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while acknowledging the existence of supported employment policies and procedures, Ms. Moore testified that there is a problem with Defendants’ ability to effectively implement those policies. TT Vol. II, 406:22-407:4; TT Vol. III, 626:22-627:5.
The Community Monitor, likewise, has concluded in each of her CPRs from 2005 through 2009 that Defendants have not provided class members with appropriate supported employment services. Pl. Ex. 10 (000323-000325); Def. Ex. Vol. XI, F-12 (004394-004397); Def. Ex. Vol. XI, G-12 (004456-004457); Def. Ex. XI, H-12 (004505-004506, 004524-004525); Def. Ex. Vol. XII, I-12 (004569-004570, 004580, 004597-004598). For example, the 2009 CPR reflects that a third of the sampled class members who were determined to need a VAP did not receive one and that two-thirds of the sample did not have CDPs. Def. Ex. Vol. XII, I-12 (004569-004570). Furthermore, class members who received a VAP dropped from 100% in 2000 to 70% in 2009 while employment assessments that conformed to DOH regulations fell from 89% in 2000 to 39% in 2009. Id. (004597). The Community Monitor also concluded in the 2009 CPR that half of the class members who should have been engaged in supported employment were not working at all in 2009 due to Defendants’ planning and implementation failures, and that only 30% of the jobs provided in 2009 met criteria. Id. (004580). The Community Monitor stated in the 2009 CPR that the 2009 data reflected “systemic failure and more important, life-wasting for class members who are not receiving needed supports.” Id. (004597). The Community Monitor testified at the June 2011 evidentiary hearing that the providers which are paid six hours a day, five days a week to provide meaningful and purposeful activities are not doing their jobs. TT Vol. III, 603:23-604:3. The Community Monitor further testified that there are still class members who are on the available-to-work lists who do not have work outcomes, and that there is no evidence that the Employment First policy is being
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implemented at all levels, how it is being implemented, or how it is being evaluated and measured. TT Vol. III, 601:25-602:6.
More recent statistics show that as of April 15, 2011, only 36 class members were working at least ten hours a week. TT Vol. III, 534:4-10; TT Vol. IV, 687:1-6. As of May 2010, 57 members of the 119 Priority Group were available to work but only 43 had any type of employment. Pl. Ex. 130 (002595-002597). Furthermore, 20 of the 119 Priority Group members had work at criteria by December 2010 while 18 worked below criteria. Pl. Ex. 95 (002378). In FY 2010, 75 class members were enrolled in supported employment services. Pl. Ex. 100 (002444); TT Vol. III, 517:14-20. This number has remained fairly steady from 2001 to 2010. Id. However, fewer class members were actually working in 2010 than in 2001. TT Vol. III, 517:22-24. DDSD Deputy Director, Cathy Stevenson, is aware of class members who have a work goal, but do not have a job, and of class members whose desire to work is not shown in their ISPs. TT Vol IV, 683:13-22, 685:9-12.
The Court commends Defendants for obtaining more supported employment providers, developing policies and procedures to encourage supported employment, providing statewide staff including the NMEI to help develop supported employment, obtaining grant money to implement supported employment, providing training, working with experts on supported employment including Ms. Moore, collecting data, moving away from segregated employment environments, improving provider performance contracts, and establishing provider standards. These efforts are reflected in New Mexico’s relatively high national ranking on providing supported employment. Unfortunately for Defendants, the parties did not establish national rankings as an indicator of compliance with Activity # 2. The record demonstrates, on the other hand, that several problems persist in increasing adequate supported employment opportunities
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for class members. These problems include the need (1) to provide timely VAPs, (2) to employ more VAP facilitators, (3) to direct more resources to integrated employment settings, (4) to update CDPs, (5) to effectively implement CDPs, (6) to ensure better supported employment provider staffing, (7) to implement policies and procedures, and (8) to offer more work at criteria. The Court understands, of course, that employment numbers for class members will naturally decrease as the class ages and class members retire, die, or develop more health issues. Additionally, the Court realizes that some guardians may not want a class member to work, especially in an integrated setting where a class member might face challenges which the guardian believes the class member should not experience. Nevertheless, Defendants are still responsible under the JSD and POA for increasing employment opportunities, especially at criteria.
g. JSD ¶¶ 24, 37, POA Appendix 10, Desired Outcome C: Activity # 5: “Continue to improve the quality of supported employment [as follows:] a. Provide technical assistance to individuals, programs, regional office staff on the development of vocational profiles and individual CDPs, b. Provide technical assistance to individuals, programs, regional office staff on individual supports to persons with significant disabilities, c. Provide technical assistance in addressing disincentives to employment, d. Provide technical assistance on the use of natural supports, [and] e. Provide technical assistance on accessing alternative funding for supported employment....” POA at 110.
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Defendants have established the NMEI to provide technical assistance to the state, providers, and individuals. Defendants have also contracted with Ms. Moore and her associates to afford technical assistance to NMEI, state staff, and providers. In addition, Defendants have brought in national experts to work on improving supported employment services. State supported employment coordinators offer technical assistance as well. See, e.g., Pl. Ex. 95 (002385). All of these actions are meant to improve the quality of supported employment.
However, the fact that many working class members are not working at criteria while other class members who are capable of working at criteria are not working at all demonstrates that Defendants are not providing the various kinds of technical assistance required by Activity # 5. In fact, both Ms. Moore and the Community Monitor perceive an “overt resistance” from state leaders and providers to more fully implement the Employment First policy and give class members access to meaningful employment. Pl. Ex. 83 (002240-002241); TT Vol. III, 599:6-19.
Obviously, Defendants are attempting to give technical assistance to the various stakeholders by various means. Nevertheless, because of the deficiencies noted above, it appears that the technical assistance that Defendants now offer is not effective enough to ensure that class members are receiving the quality supported employment services to which they are entitled under the JSD and POA. Defendants must, therefore, do more to address the requirements listed under Activity # 5.
2. APPENDIX A. Defendants note that they have initiated the disengagement process with respect to APPENDIX A, Supported Employment, but that Plaintiffs oppose the disengagement. The parties, however, presented evidence at the June 2011 hearing on the supported employment provisions of APPENDIX A which are currently contested in the Renewed Noncompliance
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Motion. The Court will, therefore, address those provisions at this time. See JSD ¶ 45 (“If the motion [to disengage] is contested, the parties will request that the Court hold a hearing and enter its findings and conclusions.”).
a. SE 1: “LTSD [(now known as the DDSD)] will retain new full time equivalent personnel to develop an employment institute (center) and to initiate, support and provide technical assistance for job development and innovative employment practices including customized employment and micro-enterprises at the local level in conjunction with the Supported Employment consultants.” APPENDIX A at 4.
To address SE 1, Defendants established the NMEI in 2007 to provide technical assistance to the State, providers, and individuals. NMEI’s phased-in implementation goals from 2006 called for the recruitment of a director, four to five employment support staff, an administrative staff, a consultant, and technical support staff. Pl. Ex. 125 (002569). NMEI, however, has never had a director and at most has only had three staff. Robert Mazzola Deposition, 64:5-16, 66:9-67:4.
In 2010, NMEI had a calendar year budget of over $300,000 and employed two full-time employees who are directly involved in assisting class members. TT Vol. IV, 640:22-641:10. The 2010 budget for NMEI apparently was funded by a federal Medicaid grant in excess of a million dollars that Defendants obtained in 2009 to be used over the next three years. TT Vol. III, 621:22-622:21; Judith Stevens Deposition, 100:9-11. NMEI normally has a $150,000 state general fund contract which serves as its base budget. Judith Stevens Deposition, 128:17-129:4, 155:2-4. Ms. Moore had recommended that NMEI be funded at $200,000 to $250,000 a year. TT Vol. III, 622:15-16. Apparently, NMEI cannot fund the director’s position through the state general fund contract. Robert Mazzola Deposition, 64:18-21. Even with Medicaid funding, the Community Monitor believes that the NMEI is still underfunded and criticizes the effectiveness
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of the NMEI because it lacks a director. TT Vol. III, 622:10-12. Ms. Moore concurs that without sufficient funds to recruit and hire a director, NMEI cannot be as effective as it was intended to be. TT Vol. III, 525:13-23. Even Judith Stevens, head of DOH’s Community Inclusion Team which focuses on meaningful day and supported employment services, agreed that NMEI would benefit from having a director. Judith Stevens Deposition, 15:17-20, 155:1416.
Although Defendants, in fact, created an employment institute as required by SE 1 and have recently been successful in increasing its funding, NMEI is not being used to its fullest potential. Without full staffing and a director, NMEI will be hard-pressed to adequately perform the functions described in SE 1 so that class members who want to work can access supported employment opportunities at criteria.
b. SE 2: “Ensure that the consultants are used for job development at least to the same extent they were used in past years.” APPENDIX A at 4.
Defendants continue to contract with Ms. Moore, their supported employment consultant, and her associates to address supported employment issues. TT Vol. IV, 644:6-10. Defendants continue to use the same funding for Ms. Moore’s contract. Id. at 646:8-9. However, it is notable that Ms. Moore and her associates worked 852 hours in 2004, 940 hours in 2005, and 1,064 hours in 2006 before a reduction to only 394 hours in 2009 and 262 hours for the first half of 2010. Pl. Ex. 105 (002473-002474). Currently, Ms. Moore interacts with Dan Jackson, the State Lead for supported employment, from two or three times a month to as often as six to eight times a month with emails exchanged at a rate of at least two or three times a month. Dan Jackson Deposition, 35:4-16.
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The reduction of hours worked per year by Ms. Moore and her associates demonstrates that Defendants are not using Ms. Moore and her associates “to the same extent they were used in past years.” APPENDIX A, SE 2. The frequency of Ms. Moore’s contacts with Mr. Jackson supports this observation as well. To meet SE 2 in a meaningful way, Defendants need to more fully take advantage of the expertise offered by Ms. Moore and her associates.
c. SE 3: “Use the employment consultants at least to the same extent that the previous administration did to provide quality supported employment services to more class members.” APPENDIX A at 5.
Referring to the discussion of SE 2, the Court notes that the record shows that Ms. Moore and her associates are not working under their contract to the extent they had in the past. Consequently, it would be a stretch to conclude that Defendants are using “the employment consultants at least to the same extent that the previous administration did to provide quality supported employment services to more class members.” APPENDIX A, SE 3.
d. SE 4: Implement POA Appendix 10, Desired Outcome B, the 119 Work Plan.
The Court has already discussed, supra, the activities under POA Appendix 10, Desired Outcome B with which Plaintiffs allege Defendants have not substantially complied. Having found that those activities pose concerns which Defendants must still address, the Court finds similarly with respect to SE 4.
e. SE 5: “Develop a plan with time lines to provide quality supported employment at the minimum criteria to all priority class members who are determined to be appropriate for work.” APPENDIX A at 5.
By December 2010, just 20 of the 119 Priority Group members were working at criteria. Pl. Ex. 95 (002378). At least five of the 119 Priority Group members have never worked at criteria; other 119 Priority Group members had work goals, but now they no longer have them;
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and other 119 Priority Group members have outdated CDPs or CDPs that have not been implemented. Considering these statistics and the fact that Defendants did not direct the Court to any evidence in the record which shows the existence of “a plan with time lines to provide quality supported employment at the minimum criteria to all priority class members who are determined to be appropriate for work,” (emphasis added), the Court is left with no choice but to find that Defendants must still develop a plan as required by SE 5.
f. SE 7: “Analyze all policies and practices that are inconsistent with ‘employment first’ principles and make necessary changes.” APPENDIX A at 5.
It is undisputed that Defendants have developed policies promoting Employment First principles. TT Vol. II, 406:22-407:2; Judith Stevens Deposition, 18:9-22. Defendants have established the NMEI, engaged more supported employment providers and VAP facilitators, created a supported employment database, provided training, contracted with supported employment experts, implemented performance-based contracts with supported employment providers, and developed the ISP process to implement the Employment First policies. However, in 2008, Ms. Moore reported that “[o]verall, there is a failure, and in some cases overt resistance, on the part of state leadership and many providers to make good on promises to the Jackson Class Members, to more fully implement the Employment First Policy, and to continue to open doors for people with developmental disabilities in New Mexico to access meaningful employment.” Pl. Ex. 83 (002240-002241). See also TT Vol. II, 407:2-4; TT Vol. III, 554:1821. This report was based on interviews and contacts with DDSD employment coordinators, meaningful day” staff, the Community Monitor, Jackson parties, Division of Vocational Rehabilitation personnel, NMEI consultants, community reviewers, advocates, family members, and people with disabilities. Pl. Ex. 83 (002227). Ms. Moore observed in her June 2011
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testimony that functional impairments are listed in the ISPs as reasons “for why not to move forward with supporting the person to access employment.” TT Vol. III, 514:21-515:4. The Community Monitor, likewise, testified at the June 2011 hearing that there is no evidence whether the Employment First principle is being implemented at all levels, or how it is being evaluated and measured. TT Vol. III, 602:1-6.
In FY 2009, the QMB found that 27% of the time VAPs were not properly provided. Pl. Ex. 134 (002612). As mentioned previously, there are not as many approved VAP facilitators as Ms. Stevenson would like, VAPs should be more current, and some class members who want a VAP who have not received one. TT Vol. IV, 687:18-688:5, 713:6-8, 716:23-717:5. Moreover, it is possible that a day services provider (who does not also provide supported employment services and who is on the IDT) might reject or refuse a recommendation for supported employment services because the day services provider has a vested interest in not losing that class member to a supported employment provider. Judith Stevens Deposition, 76:10-77:14. In addition, in 2009, two-thirds of the class members did not have CDPs and half of those who should have been working were not working. Def. Ex. Vol. XII, I-12 (004570, 004580). With regards to the 119 Priority Group, as stated previously, five of the group members have never worked at criteria while some who had work goals no longer have those goals, and others had outdated CDPs or CDPs that were not implemented at all.
Additionally, Ms. Moore stated at the June 2011 evidentiary hearing that, despite more supported employment provider training, supported employment providers are not necessarily experienced in providing supported employment services. TT Vol. III, 533:21-534:10; 535:2-9. Unlike other states, New Mexico has performance-based contracts for supported employment providers that do not include qualitative criteria for employment like job placement deadlines, a
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minimum of hours worked per week, and at least a minimum wage. Pl. Ex. 112 (002519002520); Robert Mazzola Deposition, 114:23-115:9. Including qualitative criteria in the contracts would help to force supported employment providers to implement the Employment First principle as well as to provide quality supported employment at criteria.
Enforcement of the performance-based contracts seems problematic as well. For instance, even if a supported employment provider fails to meet its obligations, it still gets paid unless the provider “violated a Medicaid fraud type of thing....” Judith Stevens Deposition, 81:19-82:5. When a supported employment provider fails to fulfill its obligations under its contract, Defendants “counsel” it. When a supported employment provider meets less than 50% of its contract obligations, Defendants send it a letter informing it of deficient performances. Dan Jackson Deposition, 63:8-11; TT Vol. IV, 698:23-699:3. Defendants use progressive technical assistance in addressing issues arising from the performance of supported employment providers. TT Vol. IV, 699:15-20; Judith Stevens Deposition, 78:8-17. Although referral to the IRC is a possibility for failure to meet the performance-based contracts, DDSD Deputy Director Cathy Stevenson testified at the June 2011 evidentiary hearing that the most severe sanction for performance failings has been “interaction” with state officials and orders to write corrective actions plans. TT Vol. IV, 700:6-17. See also TT Vol. IV, 648:19-22; Judith Stevens Deposition, 79:22-80:23.
Defendants have in place sufficient Employment First policies which they believe to be an essential component of successful supported employment. Defendants have tried to implement the Employment First policy through various means such as (1) establishing the NMEI, (2) enlarging the number of supported employment providers and VAP facilitators in the state, (3) collecting information via a database, (4) training, (5) contracting with experts and
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consultants, (6) integrating Employment First ideals in the ISP process, and (7) using performance-based contracts. The issue, however, is that other problems (e.g., untimely VAPs, possible conflicts of interest, inexperienced supported employment providers, CDPs that need updating and implementing, and performance-based contracts that could be better written and enforced) prevent Defendants from effectively implementing the Employment First principle as SE 7 intends.
g. SE 9: “LTSD will set and enforce standards that define expectations for all day services, including work.” APPENDIX A at 5.
Defendants have, in fact, developed standards and requirements for providers of supported employment services that convey Defendants’ expectations. TT Vol. IV, 643:3-6; Pl. Ex. 32 (000803-000833). The Court assumes that the use and enforcement of performancebased contracts are designed to ensure that the supported employment providers meet those standards and requirements. Specifically, the performance-based contracts are intended to set performance outcomes for supported employment providers as well as to establish growth targets for individuals. Judith Stevens Deposition, 72:16-73:15. Laudable as these intentions may be, the performance-based contracts lack some basic qualitative criteria such as job placement deadlines, minimum work week hours, and minimum wage amounts. Defendants can impose serious sanctions on supported employment providers who do not fulfill their contracts. However, to date the harshest sanctions imposed on noncompliant supported employment providers have been referring the failures to the IRC, counseling, sending letters, and requiring corrective action plans. It seems obvious that the standards and requirements are not being enforced because there continues to be a lack of supported employment opportunities at criteria. TT Vol. II, 406:19-407:4. Stricter performance-based contracts and meaningful enforcement of
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those contracts would result in greater compliance with supported employment provider standards and requirements. Without effective enforcement of supported employment provider standards and requirement, class members who desire to work may not receive supported employment at criteria, a clear violation of the goals of the JSD, POA, and APPENDIX A.
h. SE 10: “Develop consequences for case management agencies whose case managers do not carry out DOH policies regarding employment in line with employment first principles and as identified in individual comprehensive personal profiles.” APPENDIX A at 5.
Ms. Moore testified at the June 2011 evidentiary hearing that Defendants’ contracts with case management agencies include specific penalty steps for failing to demonstrate progress in obtaining jobs for class members, but Defendants have never enforced those penalty steps. Ms. Moore also observed that Defendants have not taken any action against case management agencies that publically state that “supported employment is a waste of time and a waste of money....” TT Vol. III, 526:16-23. Defendants obviously need to penalize case management agencies that employ case managers who do not help class members pursue employment goals as required by the JSD, POA, and APPENDIX A, and who do not promote the Employment First principle.
i. SE 11: “Develop criteria outlining competencies for staff involved in supported employment.” APPENDIX A at 5.
NMEI provides technical assistance to staff; Defendants train VAP facilitators, case managers, and supported employment providers; supported employment providers have standards which they should meet; Ms. Moore and her associates work with staff on supported employment; and other supported employment experts also work with Defendants. Consequently, training, standards, and resources are available to staff so that they can develop
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competencies necessary to provide supported employment opportunities at criteria to class members. However, whether staff actually take advantage of the training, standards, and resources is questionable. For instance, according to Ms. Moore, supported employment providers still lack “the skills to do the job that they are getting paid to do.” TT Vol. III, 533:21534:10. Additionally, Ms. Moore and her associates are consulted less often than they used to be. Also, lack of better written and better enforced performance-based contracts for supported employment providers naturally leads to a more lackadaisical effort to ensure competent staff. Ms. Moore concluded at the June 2011 evidentiary hearing that Defendants have continued to contract with supported employment providers with a “chronic inability to get people jobs and provide good quality supported employment services....” TT Vol. III, 535:2-9. Furthermore, the Court is simply unsure whether there are specific “criteria” applicable to staff competencies related to supported employment. Finally, even if there are criteria outlining staff competencies, they do not appear to be applied successfully as demonstrated by the continuing problems class members encounter in obtaining supported employment at criteria. Without that success, Defendants cannot meet the supported employment goals of the JSD, POA, and APPENDIX A.
j. SE 12: “LTSD will recruit employment providers in areas of the state where there are few/no quality outcomes and innovative approaches.” APPENDIX A at 5.
Defendants have increased the number of supported employment providers, statewide, from between 15 and 20 in 1994 to about 45 in 2011. In fact, Ms. Moore does not complain about the number of supported employment providers; she complains about the quality of the supported employment services. TT Vol. III, 547:23-24. Ms. Moore testified at the June 2011 evidentiary hearing that if the supported employment providers “are actually providing supported employment,” then the increase in supported employment providers would actually be
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beneficial to class members. The Court believes that Defendants would agree that recruitment of supported employment providers who actually offer supported employment services would fulfill Defendants’ obligation not only under SE 12, but would more generally fulfill Defendants’ supported employment obligations under the JSD, POA, and APPENDIX A. However, since there are issues regarding the extent to which supported employment services are being rendered, Defendants must remain diligent and proactive in recruiting sufficient supported employment providers who will actually provide supported employment at criteria to those class members who desire to work.
k. SE 13: “Performance-based contracts will be developed, implemented, and enforced.” APPENDIX A at 5.
Defendants have developed and implemented performance-based contracts, but, as noted above, there are concerns about what should be performed under the contracts in order to ensure that the class members have adequate supported employment opportunities at criteria. Also, there are problems with enforcement of those contracts and a need for imposing more serious consequences for the breach of those contracts to ensure accountability and full compliance. Without requiring more qualitative actions on the part of the providers to achieve the goal of supported employment at criteria along with more accountability through tougher mechanisms to enforce the contracts, the Court cannot, in good conscience, uphold Defendants’ superficial compliance with SE 13 to the detriment of class members whose employment goals are not reached due to ineffectual contracting.
l. SE 16: “Develop guidelines, consistent with [DOH’s] employment first principles, for case managers regarding the need for adequate comprehensive personal profiles and implementation of [CDPs].” APPENDIX A at 5.
Supported employment policies have been disseminated to various persons including case managers. TT Vol. II, 406:22-407:2. Presumably, case managers are required to attend the
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annual ISP meetings when employment is discussed and are required to refer individuals for VAPs. TT Vol. IV 687:18-688:5. Case managers can receive technical assistance from NMEI or Ms. Moore and her associates. In the early 1990s and more recently, Defendants have conducted statewide training regarding CDPs. Id. at 642:15-20. Defendants also have specifically trained case managers to understand their role in supported employment so they can perform that role appropriately. TT Vol. IV, 643:1-2; Dan Jackson Deposition, 52:4-16. Nonetheless, Ms. Moore testified at the June 2011 evidentiary hearing that although case managers are being trained, structural obstacles within the ISP process are causing class members to lose their work goals. TT Vol. III, 574:2-18. Structural obstacles include outdated CDPs, unimplemented CDPs, and CDPs not being integrated into ISPs. Id.
Even if case managers have policies at their disposal, interact with IDT members during IDT meetings, are required to refer class members for VAPs, and have several resources available to them including training, it is unclear whether there are specific “guidelines” for case managers regarding VAPs and CDPs. If there are guidelines on VAPs and CDPs, it appears case managers may be violating those guidelines by being involved, to some degree, in the structural obstacles outlined by Ms. Moore. Guidelines that are not followed are ineffective and fail to fulfill their purpose which, in the case of SE 16, is to develop VAPs and implement CDPs so that class members can attain their employment goals.
3. JSD ¶¶ 32 and 33: Continuous Improvement of Supported Employment Services.
JSD ¶ 32 describes what constitutes continuous improvement while JSD ¶ 33 requires that Defendants must develop regional corrective action plans approved by the Community Monitor if continuous improvement is not occurring. Although Plaintiffs admit that Defendants
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issued the required corrective action plan regarding the 2009 CPR, Plaintiffs assert that Defendants have not demonstrated continuous improvement in the area of supported employment and that Defendants have failed to develop regional corrective action plans on supported employment, approved by the Community Monitor, for the years 2004 to 2008. See JSD ¶¶ 32 and 33; Renewed Noncompliance Motion at 34. Defendants do not specifically address or deny these assertions in their response to the Renewed Noncompliance Motion. The Court, therefore, concludes that Defendants concede that they have not substantially complied with either JSD ¶ 32 or ¶ 33 as they relate to supported employment. See D.N.M. LR-Cv 7.1 (b) (failure to respond to a motion “constitutes consent to grant the motion.”); D.N.M. LR-Cv 7.3 (a) (“A ... response ... must cite authority in support of the legal positions advanced.”). Furthermore, the Court has already found that Defendants have generally not substantially complied with JSD ¶ 33.
4. Summary of Issues Affecting Defendants’ Ability to Comply with Supported Employment Obligations.
As with the areas of class member health and safety, Defendants have made great strides toward meeting their supported employment obligations. Defendants contracted with more supported employment providers, provided more training for those providers and case managers, increased the number of VAP facilitators, updated VAPs, established Employment First policies, created a supported employment database, employed supported employment consultants like Ms. Moore and others, increased funding for NMEI, and redirected segregated employment funds to integrated employment programs. Unfortunately, these efforts fall short of providing class members with the kind of supported employment opportunities contemplated in the JSD, POA, and APPENDIX A. Although the Court is well aware that a poor economy currently adversely
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affects the job market, the Court believes that more class members, especially 119 Priority Group members, who express a desire to work, should be working at criteria. Several concerns with the “system” support this conclusion. For example, some supported employment providers appear to lack experience in supported employment and are inadequately staffed. In addition, there are other problems: (1) NMEI is understaffed and without a director; (2) the state needs even more VAP facilitators; (3) VAPs should be prepared more timely and properly; (4) CDPs lack information, are not implemented, are not incorporated into ISPs, and need updating; (5) more segregated employment funds should be redirected to integrated employment programs; (6) Ms. Moore and her associates should be used as they had been in the past; and (7) performancebased contracts should be better drafted to require accountability and should be enforced vigorously. Until Defendants address these concerns, which were raised by their own supported employment consultant, Ms. Moore, as well as by the Community Monitor, class members will not obtain the full benefit of the supported employment goals and obligations outlined in the JSD, POA, and APPENDIX A.
B. Findings of Fact. 73. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 10, Desired Outcome B, Activity # 2. 74. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 10, Desired Outcome B, Activity # 2 will not defeat an essential purpose of the POA, i.e., to provide the 119 Priority Group of class members with the opportunity to engage in supported employment at criteria. 75. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 10, Desired Outcome B, Activity # 3.
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76. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 10, Desired Outcome B, Activity # 3 will not defeat an essential purpose of the POA, i.e., to provide the 119 Priority Group of class members with the opportunity to engage in supported employment at criteria.
77. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 10, Desired Outcome B, Activity # 5.
78. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 10, Desired Outcome B, Activity # 5 will not defeat an essential purpose of the POA, i.e., to provide the 119 Priority Group of class members with the opportunity to engage in supported employment at criteria.
79. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 10, Desired Outcome B, Activity # 6.
80. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 10, Desired Outcome B, Activity # 6 will not defeat an essential purpose of the POA, i.e., to provide the 119 Priority Group of class members with the opportunity to engage in supported employment at criteria.
81. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 10, Desired Outcome C, Activity # 1.
82. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 10, Desired Outcome C, Activity # 1 will not defeat an essential purpose of the POA, i.e., to provide all class members with the opportunity to engage in supported employment at criteria.
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83. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 10, Desired Outcome C, Activity # 2.
84. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 10, Desired Outcome C, Activity # 2 will not defeat an essential purpose of the POA, i.e., to provide all class members with the opportunity to engage in supported employment at criteria.
85. Defendants have not shown by a preponderance of the evidence that they have complied fully with POA Appendix 10, Desired Outcome C, Activity # 5.
86. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with POA Appendix 10, Desired Outcome C, Activity # 5 will not defeat an essential purpose of the POA, i.e., to provide all class members with the opportunity to engage in supported employment at criteria.
87. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 1.
88. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 1 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
89. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 2.
90. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 2 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at
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criteria. 91. Defendants have not shown by a preponderance of the evidence that they have
complied fully with APPENDIX A, SE 3. 92. Defendants have not shown by a preponderance of the evidence that their failure to
comply fully with APPENDIX A, SE 3 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
93. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 4.
94. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 4 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
95. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 5.
96. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 5 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
97. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 7.
98. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 7 will not defeat an essential purpose of APPENDIX A,
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i.e., to provide class members with the opportunity to engage in supported employment at criteria.
99. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 9.
100. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 9 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
101. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 10.
102. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 10 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
103. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 11.
104. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 11 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
105. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 12.
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106. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 12 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
107. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 13.
108. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 13 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
109. Defendants have not shown by a preponderance of the evidence that they have complied fully with APPENDIX A, SE 16.
110. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with APPENDIX A, SE 16 will not defeat an essential purpose of APPENDIX A, i.e., to provide class members with the opportunity to engage in supported employment at criteria.
111. Defendants have not shown by a preponderance of the evidence that they have complied fully with JSD ¶ 32 as it applies to the area of supported employment.
112. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with JSD ¶ 32 will not defeat an essential purpose of the JSD, i.e., to ensure continuous improvement in the provision of supported employment opportunities to class members at criteria.
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113. Defendants have not shown by a preponderance of the evidence that they have complied fully with JSD ¶ 33 as it relates to the area of supported employment.
114. Defendants have not shown by a preponderance of the evidence that their failure to comply fully with JSD ¶ 33 will not defeat an essential purpose of the JSD, i.e., to ensure continuous improvement in the provision of supported employment opportunities to class members at criteria.
C. Conclusions of Law. 43. Since Defendants have not substantially complied with POA Appendix 10, Desired Outcome B, Activity # 2, it is not subject to disengagement at this time. 44. Since Defendants have not substantially complied with POA Appendix 10, Desired Outcome B, Activity # 3, it is not subject to disengagement at this time. 45. Since Defendants have not substantially complied with POA Appendix 10, Desired Outcome B, Activity # 5, it is not subject to disengagement at this time. 46. Since Defendants have not substantially complied with POA Appendix 10, Desired Outcome B, Activity # 6, it is not subject to disengagement at this time. 47. Since Defendants have not substantially complied with POA Appendix 10, Desired Outcome C, Activity # 1, it is not subject to disengagement at this time. 48. Since Defendants have not substantially complied with POA Appendix 10, Desired Outcome C, Activity # 2, it is not subject to disengagement at this time. 49. Since Defendants have not substantially complied with POA Appendix 10, Desired Outcome C, Activity # 5, it is not subject to disengagement at this time. 50. Since Defendants have not substantially complied with APPENDIX A, SE 1, it is not subject to disengagement at this time.
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51. Since Defendants have not substantially complied with APPENDIX A, SE 2, it is not subject to disengagement at this time.
52. Since Defendants have not substantially complied with APPENDIX A, SE 3, it is not subject to disengagement at this time.
53. Since Defendants have not substantially complied with APPENDIX A, SE 4, it is not subject to disengagement at this time.
54. Since Defendants have not substantially complied with APPENDIX A, SE 5, it is not subject to disengagement at this time.
55. Since Defendants have not substantially complied with APPENDIX A, SE 7, it is not subject to disengagement at this time.
56. Since Defendants have not substantially complied with APPENDIX A, SE 9, it is not subject to disengagement at this time.
57. Since Defendants have not substantially complied with APPENDIX A, SE 10, it is not subject to disengagement at this time.
58. Since Defendants have not substantially complied with APPENDIX A, SE 11, it is not subject to disengagement at this time.
59. Since Defendants have not substantially complied with APPENDIX A, SE 12, it is not subject to disengagement at this time.
60. Since Defendants have not substantially complied with APPENDIX A, SE 13, it is not subject to disengagement at this time.
61. Since Defendants have not substantially complied with APPENDIX A, SE 16, it is not subject to disengagement at this time.
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62. Since Defendants have not substantially complied with JSD ¶ 32, it is not subject to disengagement at this time.
63. Since Defendants have not substantially complied with JSD ¶ 33, it is not subject to disengagement at this time. VI. Whether Defendants have Violated § 504 of the Rehabilitation Act and Title II of the
ADA by Discriminating Against Severely Disabled Class Members with Respect to the Provision of Health Care Services and Supported Employment Services. A. Discussion of Rehabilitation Act and ADA Claims. Plaintiffs argue that Defendants have violated the provisions of § 504 of the Rehabilitation Act and Title II of the ADA (collectively, the Acts) prohibiting discrimination based on disability. Plaintiffs specifically assert that this alleged discrimination has occurred in the areas of health care services and supported employment services. First, Plaintiffs contend that Defendants have violated these Acts by (1) denying “access to hospitals, nursing care, medical specialists and other healthcare services due to the severity of their disabilities,” (2) contracting with providers who “do not reasonably accommodate the severe disabilities of class members with respect to the health care services” they provide, and (3) furnishing nursing services and health care coordination which are “not as effective as the services provided to other people whose disabilities are not severe.” Renewed Noncompliance Motion at 22. Second, Plaintiffs contend that Defendants have violated the Acts by (1) “depriving [severely disabled class members] of supported employment services equivalent to the employment services provided to similarly-situated persons who do not have severe disabilities,” and (2) “largely consign[ing]” severely disabled class members “to segregated, congregate day services,
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while their less disabled peers are commonly able to obtain supported employment.”37 Id. at 29. 1. Standards for Discrimination Based on Disability Under the Rehabilitation Act and the ADA.
Because the anti-discrimination provisions of § 504 of the Rehabilitation Act and Title II of the ADA are analogous, the analyses of the Rehabilitation Act and the ADA claims will be addressed together. Cohon ex rel. Bass v. New Mexico Dept. of Health, 646 F.3d 717, 725-76 (10th Cir. 2011). See also Rhodes v. Langston University, 2011 WL 4867552 *6 (10th Cir.) (slip copy). Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), states that “[n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” To maintain a § 504 claim, a plaintiff must prove by a preponderance of the evidence “(1) that he is a ‘handicapped individual’ under the Act, (2) that he is ‘otherwise qualified’ for the [benefit] sought, (3) that he was [discriminated against] solely by reason of his handicap, and (4) that the program or activity in question receives federal financial assistance.” Cohon, 646 F.3d at 725 (quoting Johnson by Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir. 1992) (quotation marks and citations omitted)). See also, e.g., Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2nd Cir. 2006) (plaintiff has burden of proving by a preponderance of the evidence discrimination based on disability).
37Plaintiffs have rephrased and arguably modified their Rehabilitation Act and ADA claims in Plaintiffs’ Memorandum on Rehabilitation Act and ADA. In the interest of fair play, the Court will address the claims only as they are set forth in the Renewed Noncompliance Motion and will rely on the characterizations of those claims in Plaintiffs’ Memorandum on Rehabilitation Act and ADA only to the extent they clarify Plaintiffs’ initial claims.
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Title II of the ADA, 42 U.S.C. § 12132, similar to § 504 of the Rehabilitation Act, provides that “[s]ubject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” To maintain a Title II claim, a plaintiff must show by a preponderance of the evidence that “‘(1) [s]he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.’” Cohon, 646 F.3d at 725 (quoting Robertson v. Las Animas County Sheriff’s Dept., 500 F.3d 1185, 1193 (10th Cir. 2007)). See also Sista, 445 F.3d at 169.
It is well-established that the Rehabilitation Act and ADA require “that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.” Alexander v. Choate, 469 U.S. 287, 301 (1985). A grantee, however, may be required to make reasonable accommodations so that the individual can actually access a benefit or program in a meaningful way. Robertson, 500 F.3d at 1195. A grantee effectively denies meaningful access when it places an “obstacle” which blocks access to an existing government program. American Council of the Blind v. Paulson, 525 F.3d 1256, 1267-68 (D.C. Cir. 2008). On the other hand, where plaintiffs seek to fundamentally alter an existing program to provide new substantive benefits, they have not been denied meaningful access. Id. In other words, states do not have an affirmative obligation to furnish services. Jackson, 757 F.Supp. at 1297. Additionally, the Rehabilitation Act and ADA do not guarantee “equal results” for disabled individuals. Cohon, 646 F.3d at 729. In fact, in Choate, 459 U.S. at 303, the United States Supreme Court “held that ‘adequate health care’ was too ‘amorphous’ a concept to define the
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government service or benefit to which disabled persons may assert a statutory right of access and accommodation.” Quoted in Wright v. Giuliani, 230 F.3d 543, 548 (2nd Cir. 2000).
Defendants agree with Plaintiffs that discrimination based on the severity of a person’s disability violates the Rehabilitation Act and the ADA. Response to Renewed Noncompliance Motion at 44. See Jackson, 757 F.Supp. at 1299 (“The severity of plaintiffs’ handicaps is itself a handicap which, under § 504, cannot be the sole reason for denying plaintiffs access to community programs.”). Nonetheless, Defendants cite to language from Traynor v. Turnage, 485 U.S. 535, 548 (1988) in which the United States Supreme Court stated that “the central purpose of § 504 ... is to assure that handicapped individuals receive ‘evenhanded treatment’ in relation to nonhandicapped individuals.” The United States Supreme Court went on to declare that “[t]here is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons.” Id. at 549. One could reasonably read Traynor to disallow Rehabilitation Act and ADA claims, like those raised by Plaintiffs, alleging that severely disabled persons have been denied meaningful access to benefits which less severely disabled persons receive.
The Court, however, distinguished Traynor from this case in 1990 because the severely disabled Plaintiff class members could not be faulted for their conditions, whereas the veterans in Traynor suffered from alcoholism (a disability) resulting from willful misconduct. Jackson, 757 F.Supp. at 1299 n.36. Moreover, the United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 n.10 (1999) later rejected “as a matter of precedent and logic” the idea that discrimination due to disability cannot encompass disparate treatment among the disabled.
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Interestingly, in Cohon, filed more than ten years after Olmstead, the Tenth Circuit Court of Appeals continued to cite Traynor for the proposition that states can discriminate between categories of individuals with disabilities and even questioned this Court’s distinction between Traynor and this case. Cohon, 646 F.3d at 727-78, 728 n.2. The Tenth Circuit simply ignored Olmstead’s expanded view of discrimination in its discussion of Cohon’s argument that she was treated differently than less severely disabled persons. Although the District Court is normally required to follow Tenth Circuit precedent, the Court read Olmstead, a United States Supreme Court case, to control the situation in this case and to trump Cohon. Olmstead provides a more than adequate ground for concluding that Plaintiffs can sue under the Rehabilitation Act and the ADA for discrimination claims based on severely disabled persons being treated differently than less severely disabled persons.38
Unlawful differential treatment claims can be brought under two legal theories: disparate treatment or disparate impact. A claim of disparate treatment involves proving intentional discrimination through either direct proof of intent or circumstantial evidence of intent. Cinnamon Hills Youth Crisis Center, Inc. v. Saint George City, ___ F.3d ___, 2012 WL 2561883 *1 (10th Cir.) (describing intentional discrimination in the context of the Rehabilitation Act and the ADA). “Direct evidence of [intentional] discrimination is evidence which, if believed, proves that the decision in the case at hand was discriminatory–and does so without depending on any further inference or presumption.” Id. Circumstantial evidence of [intentional]
38Regulations promulgated under the Rehabilitation Act and the ADA also prohibit discrimination based on the severity of a disability. See, e.g., Messier v. Southbury Training School, 916 F.Supp. 133, 140-41 (D. Conn. 1996).
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discrimination is shown through the use of the McDonnell Douglas burden shifting scheme.39 Id. A claim of disparate impact, on the other hand, does not require proof of an intent to discriminate, but, instead, mandates a showing that a policy caused a disparate effect. Id. at *4.
In addition to discrimination predicated on the denial of meaningful access to benefits, discrimination against disabled persons can also occur when there is unnecessary segregation of those persons. Regulations promulgated under the Acts, like 28 C.F.R. § 35.130(d) and 28 C.F.R. § 41.51(d), require that public entities or recipients of federal assistance administer their services, programs, and activities “in the most integrated setting appropriate to the needs of qualified” disabled persons. To maintain a claim of unnecessary segregation, a disabled person must show that the program at issue “would result in ... unjustified isolation or premature institutionalization.” Cohon, 646 F.3d at 729. In the context of denial of supported employment services, unnecessary segregation occurs when disabled persons who are eligible for supported employment services are denied those services “with the result of unnecessarily segregating them in sheltered workshops” or elsewhere. See Lane v. Kitzhaber, 841 F.Supp. 2d 1199, 1208 (D. Or. 2012).
2. Health Care Services. Plaintiffs argue that Defendants have denied class members access to health care services due to their severe disabilities and that Defendants have failed to make providers accommodate
39The McDonnell Douglas burden shifting scheme consists of three steps. First, “a plaintiff must carry the initial burden of establishing a prima facie case of discrimination. Once a prima facie case of discrimination is made out, the burden of production shifts to the defendant to articulate some legitimate nondiscriminatory reason for its action. If the defendant does so, the plaintiff must be given the opportunity to show by a preponderance of the evidence that the reason offered by the defendant is mere pretext.” Ramsey v. City and County of Denver, 907 F.2d 1004, 1007 (10th Cir. 1990), cert. denied, 506 U.S. 907 (1992) (citations omitted).
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class members with severe disabilities so that they have meaningful access to the same health
care and nursing services that Defendants provide to those with less severe disabilities. Plaintiffs
also argue that the health care and nursing services Defendants offer to severely disabled class
members are not as effective as those provided to people with less severe disabilities. The Court
construes this last argument as a disparate treatment claim. See Plaintiffs’ Memorandum on
Rehabilitation Act and ADA at 13 (Plaintiffs broadly invoke the theory of disparate treatment).
Before addressing these health care claims as they relate to severely disabled class members, in
general, the Court will first address these claims as they relate to severely disabled class
members living in rural New Mexico.40
a. Health Care Services in Rural New Mexico.
Plaintiffs complain that severely disabled class members who live in rural areas of New
Mexico like Clovis, Alamogordo, and Farmington are denied meaningful access to health care
services. Defendants acknowledge that it is difficult to offer specialized care in rural areas.
Similarly, class members and their guardians who choose to live in those areas must realize this
limitation. Dr. Aceves admitted at the June 2011 evidentiary hearing that the quality of medical
40Plaintiffs do not specifically assert in the Renewed Noncompliance Motion or in Plaintiffs’ Memorandum on Rehabilitation Act and ADA that Defendants have violated the Rehabilitation Act and ADA with respect to the provision of health care services in rural New Mexico. Plaintiffs’ proposed findings of fact and conclusions of law on the alleged Rehabilitation Act and ADA violations, however, cite to facts in the record concerning the health care services rural class members receive. See Plaintiffs’ proposed conclusion of law # 56 and its references to the proposed findings of fact. Consequently, the Court construes those citations to the record as forming the basis for a contention that Defendants violated the Rehabilitation Act and ADA by not providing severely disabled class members who live in rural New Mexico with meaningful access to health care services, by not accommodating those severely disabled class members so they can have meaningful access to health care services, and by offering health care services to rural class members which are not as effective as health care services provided to less severely disabled persons living in rural New Mexico. The Court will treat the last contention as a disparate treatment claim.
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care received by all New Mexicans varies among the different communities throughout the state. TT Vol. V, 936:11-19. Timeliness of care and follow-up care are problems for all New Mexicans, not just DD Waiver participants.41 Dr. Antoinette Benton Deposition, 44:18-45:22; Dr. Alya Reeve Deposition, 60:18-61:5.
Nevertheless, Defendants, through Continuum, frequently operate specialty clinics in rural parts of the state, offer consultations and trainings to health care providers around the state, and are developing as well as implementing a long-distance telemedicine program to the benefit of rural class members. Whether Continuum’s work so far actually produces “equal results” is different from the question of whether Defendants have afforded meaningful access. The Court construes Continuum’s work in the rural areas of New Mexico as a reasonable accommodation allowing rural class members with severe disabilities to access health care services in a meaningful manner. In other words, Plaintiffs have not shown by a preponderance of the evidence that Defendants have placed “obstacles” that prevent severely disabled class members in rural New Mexico from obtaining meaningful access to health care services.
Next, the Court addresses whether Plaintiffs have proven that disparate treatment of severely disabled class members exists in the provision of rural health care services, i.e., whether rural severely disabled class members receive health care services which are not as effective as the health care services which less severely disabled persons receive.42 First, Plaintiffs failed to produce any direct proof of discriminatory intent by Defendants in their provision of health care
41Compared to the average New Mexican, class members actually get “superior” health care. Dr. Antoinette Benton Deposition, 124:20-22.
42Although Plaintiffs generally couch their Rehabilitation Act and ADA claims as disparate treatment claims in Plaintiffs’ Memorandum on Rehabilitation Act and ADA at 13, they do not engage in any disparate treatment analyses.
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services in rural New Mexico. On the contrary, Defendants, through Continuum, have made a determined effort to make health care services available to severely disabled class members who live in rural areas. Second, Plaintiffs did not present a McDonnell Douglas analysis which would demonstrate intentional discrimination through circumstantial evidence. Even so, the Court is doubtful that Plaintiffs could have met their initial burden under McDonnell Douglas of showing a prima facie case of discrimination. See Cinnamon Hills, 2012 WL 2561883 at *2. To demonstrate a prima facie case of discrimination, Plaintiffs would have to produce evidence that similarly situated individuals, i.e., persons with less severe disabilities living in rural New Mexico, receive better or more effective health care services than rural severely disabled class members receive. See id. Unfortunately for Plaintiffs, the Court was unable to find any evidence in the record which shows that less severely disabled persons in rural New Mexico fare any better with respect to health care services than severely disabled persons who, likewise, live in rural New Mexico.
b. Health Care Services in New Mexico Generally. Plaintiffs also contend that Defendants have violated the Rehabilitation Act and ADA by providing all severely disabled class members who reside anywhere in New Mexico with generally inferior health care due to their severe disabilities. While the Court has found that Defendants have in many instances not substantially complied with their obligations under the JSD, POA, and APPENDIX A to perform certain activities designed to provide adequate health care to class members, the issue of substantial compliance with those orders is not the same as the issue of meaningful access to health care services and programs through reasonable accommodation, or the issue of disparate treatment between severely disabled class members and less severely disabled persons. Overall, the evidence shows that Defendants have initiated
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various health care programs to improve the health of severely disabled class members, but there are problems with the quality of health care those class members ultimately receive. There is, however, no indication that severely disabled class members are being denied access to health care services based on their disabilities, i.e., that Defendants are placing “obstacles” to prevent severely disabled class members from accessing health care services. Rather, the evidence shows that the quality of health care services severely disabled class members receive could be improved. As mentioned above, a request for something as amorphous as “adequate health care,” or a demand for equal results from health care services does not reference the applicable standard, which is whether there has been a denial of meaningful access to health care services.
Plaintiffs further argue that access to health care services is not meaningful because the providers do not reasonably accommodate class members with severe disabilities. The Court assumes that a reasonable accommodation would include, for instance, providers hiring a sufficient number of highly trained nursing and direct care staff who specialize in caring for severely disabled persons.43 The Court notes that the intent of Defendants’ policies and procedures, provider staff training, oversight and monitoring of providers, and follow-up of providers, although imperfectly implemented, is to make providers capable of adequately caring for severely disabled class members. In other words, these processes and activities are in place to reasonably accommodate the severe disabilities that certain class members have. Although many providers, through these processes and activities, accommodate severely disabled class members so that they have meaningful access to health care services, other providers have failed
43The Court assumes that Plaintiffs are not asking Defendants to fundamentally alter preexisting provider services by adding even more specially trained staff. If Plaintiffs are making that request, then they would be seeking a remedy beyond the scope of the Rehabilitation Act and ADA.
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to make those accommodations. Hence, reasonable accommodation is still a problem for at least some class members.
Even so, reasonable accommodation is not always required under the Rehabilitation Act and ADA. Plaintiffs seem to be arguing that providers are required under the Rehabilitation Act and ADA to reasonably accommodate severely disabled class members, e.g., hire staff specializing in severe disabilities, so that severely disabled class members receive at least “adequate” health care services that others with less severe disabilities presumably receive. As previously mentioned, the Rehabilitation Act and ADA do not require reasonable accommodations for the provision of “adequate health care” because that is “too ‘amorphous’ a concept to define the government service or benefit to which disabled persons may assert a statutory right of access and accommodation.” Choate, 459 U.S. at 303.
Finally, the Court addresses whether Defendants have subjected severely disabled class members to disparate treatment by offering persons with less severe disabilities access to better or more effective health care. Plaintiffs have not presented direct proof that shows, by a preponderance of the evidence, that Defendants intend to discriminate against severely disabled class members in Defendants’ provision of health care services, generally. Instead, the record contains evidence of various activities Defendants have pursued over the years to improve the health care of severely disabled class members.
As for a circumstantial evidence case, the Court is hard-pressed to determine that Plaintiffs could meet their initial burden, under McDonnell Douglas, of showing a prima facie case of discrimination in which similarly situated persons, i.e., less severely disabled persons, receive more effective health care services than more severely disabled class members. In addition to general evidence that severely disabled class members receive less than adequate
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health care, Plaintiffs point to information from the 706 Expert. Ms. Gant, the 706 Expert, found in her April 2010 report that “Jackson class members are victims of abuse, neglect, and exploitation at a rate greater than other New Mexicans with developmental disabilities receiving Medicaid funded Home and Community Based Waiver services [] (HCBW);” and that “Jackson class members use Emergency Services more often than their peers in the New Mexico HCBW program.” Pl. Ex. 59 (001678). These findings do not indicate whether the HCBW peers are less severely disabled than the class members who are severely disabled. In fact, Dr. Benton testified at her deposition that “[i]n [her] experience, the bulk of the nursing care goes to the Jackson class members, sometimes at the expense of the non-Jackson class members.” Dr. Antoinette Benton Deposition, 118:17-19. Even Plaintiffs’ counsel responded to Dr. Benton by admitting that: “You and I agree that Jackson class members get superior attention and other kinds of benefits.” Id. at 118:20-22. Dr. Aceves also testified at the June 2011 evidentiary hearing that class members receive “some added benefits” that non-class members in the DD Waiver program do not receive. TT Vol. V, 969:13-16. Plaintiffs have failed to show that the quality of health care services severely disabled class members receive is inferior to the quality of health care services less severely disabled persons receive.
3. Supported Employment Services. Plaintiffs assert that Defendants have violated the Rehabilitation Act and ADA with respect to supported employment services in two ways: (1) Plaintiffs allege in their Renewed Noncompliance Motion at 29 that class members do not receive supported employment services equivalent to the supported employment services which less severely disabled persons receive; and (2) Plaintiffs allege that “[c]lass members are largely consigned to segregated, congregate day services” while less severely disabled persons engage in supported employment. The Court
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construes both of these claims as disparate treatment claims. See Plaintiffs’ Memorandum on Rehabilitation Act and ADA at 23 (alleging disparate treatment, generally).
a. Equivalent Supported Employment Services. First, the Court examines evidence which might be relevant to whether there is direct proof of discriminatory intent by Defendants to deny severely disabled class members supported employment services equivalent to those services received by less disabled persons. It is notable that Defendants’ own supported employment consultant, Ms. Moore, wrote in her 2008 report that “in some cases” there was “overt resistance” by state leaders “to make good on promises to the Jackson Class Members, to more fully implement the Employment First Policy, and to continue to open doors for people with developmental disabilities in New Mexico to access meaningful employment.” Pl. Ex. 83 (002240-002241). The Community Monitor explained at the June 2011 evidentiary hearing that although Defendants have supported employment policies and procedures, “resistance” to change is still an issue. TT Vol. III, 599:6-19. Moreover, Ms. Moore noted that Defendants did not take any action against a case management agency which “publicly [stated that] supported employment is a waste of time and a waste of money....” TT Vol. III, 526:20-23. In 2006, the Community Monitor found that persons with less challenging disabilities were more likely to have employment than those with more severe or significant disabilities, who either were not employed or waited a long time for employment. The Community Monitor testified at the June 2011 evidentiary hearing that to a “large extent” this is still happening. TT Vol. III, 596:22-597:12. Ms. Moore also testified at the June 2011 evidentiary hearing that Defendants have failed to ensure that class members with significant disabilities have access to employment equal to the access their less disabled peers have. TT Vol. III, 535:10-22.
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These assessments and observations by Ms. Moore and the Community Monitor, although insightful, are not direct proof of discriminatory intent. Plaintiffs would have the Court infer from those assessments and observations that resistance to change is motivated solely by discriminatory intent. However, there may, in fact, be other reasons for a perceived resistance to change like lack of resources. In addition, Defendants’ failure to take action against one case management agency for its anti-supported employment stance is not direct proof of Defendants’ discriminatory intent regarding severely disabled class members, because that agency’s statement seemed to be directed at supported employment for all disabled persons, regardless of the severity of their disabilities. Furthermore, the Community Monitor and Ms. Moore’s observations that less severely disabled persons are more likely to be employed than severely disabled persons, while conceivably true, would require an inference that this disparity was caused by discriminatory intent by Defendants as opposed to other factors like lack of suitable jobs for severely disabled persons, a lackluster economy, or a shortage of resources available to Defendants to develop supported employment opportunities for more severely disabled persons. Finally, there is considerable evidence contradicting a finding of direct proof that Defendants intend to discriminate against severely disabled class members by not providing them with supported employment services equivalent to those received by persons with less severe disabilities. This evidence includes: (1) Defendants pursuing and obtaining a grant for NMEI worth over a million dollars; (2) Defendants increasing the number of supported employment providers; (3) Defendants continuing to contract with Ms. Moore (albeit she is consulted less often); (4) Ms. Moore’s statement in 2008 that “[t]here are examples of good work being done relative to advancing employment opportunities for Jackson Class Members and other individuals with developmental disabilities in New Mexico,” Pl. Ex. 83 (002240); and (5) Ms.
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Moore’s testimony at the June 2011 evidentiary hearing that New Mexico has “talented people” and “effective organizations” related to supported employment, TT Vol. III, 577:9-12.
With respect to a possible McDonnell Douglas disparate treatment claim based on circumstantial evidence, Plaintiffs must first demonstrate a prima facie case of discrimination by showing that Defendants provided similarly situated persons, i.e., less severely disabled persons who want to work, with supported employment opportunities while denying severely disabled class members who also want to work with those same opportunities. Both the Community Monitor and Ms. Moore have said that exactly that kind of differential treatment exists in the provision of supported employment services to severely disabled class members. The statements by the Community Monitor and Ms. Moore may be enough to support Plaintiffs’ prima facie case of discrimination. However, since Plaintiffs did not analyze their disparate treatment claim under McDonnell Douglas, Defendants did not address any of the steps of the McDonnell Douglas burden shifting scheme. The Court believes that it would be premature and unfair for the Court to attempt to analyze any further this hypothetical disparate treatment claim under McDonnell Douglas without giving Defendants an opportunity to respond. If Plaintiffs wish to pursue this particular disparate treatment claim, the Court will permit Plaintiffs to file a motion with full briefing of the McDonnell Douglas burden shifting scheme and citations to the record.
b. Segregation. As with the other disparate treatment claims, the Court first examines whether the record contains direct proof that Defendants intended to discriminate against severely disabled class members by consigning them to segregated, congregate day services instead of affording them supported employment opportunities like those available to less severely disabled persons. Ms. Moore testified at the June 2011 evidentiary hearing that there are still issues of segregation and
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low wages. TT Vol. II, 407:4-8. For instance, she found that class members with significant impairments were excluded from “decent employment opportunities” and, instead, were “primarily in segregated services.” Pl. Ex. 93 (002346-002347); TT Vol. II, 404:11-18. Ms. Moore further testified that class members are still in congregate settings due to the perception that those class members need somewhere to go during the day. TT Vol. II, 407:12-20. Defendants and Ms. Moore agree that production worker programs are not “real jobs,” provide low wages, and are considered segregated.44 Judith Stevens Deposition, 95:9-18; TT Vol. III, 551:13-16. As of the first quarter of FY 2010, 13 class members were production workers.45 Pl. Ex. 119 (002548-002549). The Community Monitor noted that nothing in the needs of the class members requires that they be placed in segregated, congregate settings. TT Vol. III, 595:5-18. Surprisingly, at the June 2011 evidentiary hearing, Ms. Moore expressed her view that “congregate segregated services are growing at least as rapidly as the employment services are growing in New Mexico.” TT Vol. II, 408:2-4. Moreover, although Defendants are redirecting resources from segregated to integrated services, in Ms. Moore’s opinion, it is not “at the level it needs to be.” TT Vol. II, 407:24-408:2.
Clearly, the above evidence shows that some severely disabled class members are in segregated, congregate settings rather than engaged in supported employment. That evidence,
44 Even Defendants’ expert, Norm Davis, found Adelante’s production work program “substandard.” TT Vol. V, 1021:5-7. Mr. Davis also visited some day programs and observed that the larger ones had too many people and too many big rooms while another one resembled a sheltered workshop. Id. at 1019:19-1020:4, 1065:5-8. He further observed that the staff in these large programs “were basically trying to maintain control and order, which [he] found alarming.” Id. at 1019:22-23.
45 Of those 13 workers, eight workers made between $.32 and $.89 an hour, three made between $1.02 and $1.65 an hour, one made $3.70 an hour, and one made $7.50 an hour but worked only one hour a week. Pl. Ex. 119 (002548-002549).
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however, does not provide direct proof that Defendants intend to discriminate against severely disabled class members by denying them supported employment when those class members desire to work and then “consigning” them to segregated, congregate settings, whether those settings provide production work or some other day services. First, as discussed above, there are factors other than an intent to discriminate against severely disabled class members that could be responsible for severely disabled class members not engaging in appropriate supported employment. Those factors include the lack of suitable supported employment positions for severely disabled persons, a poor economy, and a lack of resources. Second, there is no direct proof that Defendants intend to somehow “consign” severely disabled class members to segregated, congregate settings against their wills. Class members, through their IDTs, have the freedom to choose a day services provider, including supported employment providers or even a segregated, congregate setting if the class member or guardian believes that a more sheltered environment would be less threatening and intimidating for the class member. TT Vol. IV, 724:16-20; Judith Stevens Deposition, 146:22-147:6; Pl. Ex. 32 (000790-000791). Even if choices of day providers might be limited, Defendants do not place class members in day programs without their consent or the consent of their guardians. Judith Stevens Deposition, 90:5-19; TT Vol. III, 620:23-621:10. Defendants cannot actually control the choices of class members or their guardians. TT Vol. IV, 650:6-9. In addition, DD Waiver standards require that providers document that disabled persons spend 50% of their time in the community and that any deviation from this 50% requirement must be justified to Defendants. Id. at 650:19-22. The purpose of the Defendants’ DD Waiver standards is to make sure class members spend a substantial amount of time in the community, a purpose which runs counter to an argument that Defendants intend to unlawfully “consign” severely disabled class members to segregated,
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congregate settings without their consent or the consent of their guardians. Furthermore, 70% of class members work in community-integrated employment at some level. Id. at 679:17-20, 684:13-19, 685:1-8. This relatively high level of community integrated-employment suggests that Defendants do not intend to unlawfully “consign” severely disabled class members to segregated, congregate settings against their wills.
Although the evidence does not contain direct proof of an intent to discriminate, Plaintiffs can still show disparate treatment through circumstantial evidence under the McDonnell Douglas burden shifting scheme. To do so, Plaintiffs must first make out a prima facie case of discrimination by proving by a preponderance of the evidence that similarly situated persons, i.e., less severely disabled persons who want to work, receive supported employment while severely disabled class members who want to work are deprived of similar opportunities and, instead, are “consigned” to segregated, congregate settings. Although there is evidence that less severely disabled persons engage in supported employment more often than those with severe disabilities, the evidence does not show that those severely disabled persons who do not engage in supported employment are necessarily placed in segregated, congregate settings without having made the choice to go there. Messier, 562 F.Supp.2d at 323 (“There is no ‘federal requirement that community-based treatment be imposed on patients who do not desire it.’”) (quoting Olmstead, 527 U.S. at 602 (citing 28 C.F.R. § 35.130(e)(1))). At this point, the Court is uncomfortable concluding that Plaintiffs have carried their burden of making a prima facie case of discrimination under McDonnell Douglas.
4. Summary of Rehabilitation Act and ADA Issues. Since the Court entered the JSD, POA, and APPENDIX A, Defendants have been creating and enhancing various health care services for the benefit of severely disabled class
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members. Although those health care services have not always been implemented effectively or adequately, Defendants cannot be faulted with blocking access to those services. Plaintiffs’ attempt to imply through their disparate treatment claims that Defendants intend to discriminate against severely disabled class members with respect to the provision of health care services appears to be disingenuous. There is simply no direct proof of discriminatory intent or proof that severely disabled class members are treated differently than less severely disabled persons in receiving health care services. In fact, it appears that severely disabled class members receive better health care services than developmentally disabled non-class members do.
With regard to supported employment, the evidence shows that over the years Defendants made progress in providing supported employment opportunities to class members, but then Defendants seemingly lost traction in this area. While there is no direct proof that Defendants have intended to discriminate against severely disabled class members seeking supported employment equivalent to that enjoyed by less severely disabled persons, the Court is concerned that the Community Monitor and Ms. Moore both believe that severely disabled class members are less likely than others to receive supported employment. Since Plaintiffs failed to analyze that particular disparate treatment claim under McDonnell Douglas, the Court cannot at this time address that claim.
The Court, however, is more confident in finding that there is no discriminatory intent with respect to Plaintiffs’ claim that Defendants “consign” severely disabled class members to segregated, congregate settings while other less disabled persons obtain supported employment. It is clear that factors other than discriminatory intent can affect the availability of supported employment for severely disabled class members. Those factors include the number of suitable jobs, the economy, and resources available to Defendants for developing supported employment
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opportunities. Moreover, the Court is troubled by Plaintiffs’ assertion that Defendants are “consigning” severely disabled class members to segregated, congregate settings. Defendants cannot forcibly “place” those class members in segregated, congregate settings; the class member or guardian chooses the type of day services in which the class member will participate. The Court is also unclear about exactly how many severely disabled class members are actually in segregated, congregate settings. Since the DD Waiver standards typically require that 50% of a person’s time be spent in the community and since 70% of class members actually work in community-integrated settings, it appears unlikely that a large number of persons are in segregated, congregate settings.
B. Findings of Fact. 1. Health Care Services.
115. Specialized health care services are not readily available to New Mexicans, including severely disabled class members, who live in rural areas of New Mexico,.
116. Continuum, however, provides additional health care services to rural class members with severe disabilities.
117. Defendants reasonably accommodate severely disabled class members who live in rural New Mexico so that they have meaningful access to health care services.
118. Defendants do not place obstacles to block severely disabled class members from meaningful access to health care services.
119. Defendants do not intend to discriminate against severely disabled class members by providing them with health care services that are not as effective as the health care services
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provided to persons with less severe disabilities.46 120. Since Defendants do not intend to discriminate against severely disabled class
members by providing them with health care services that are not as effective as the health care services provided to persons with less severe disabilities, Defendants have not engaged in disparate treatment of those severely disabled class members.
121. Because Defendants have not engaged in disparate treatment of severely disabled class members by providing them with health care services that are not as effective as the health care services provided to persons with less severe disabilities, Defendants have not discriminated against those severely disabled class members.47
2. Supported Employment Services. 122. There is no direct proof that Defendants intend to discriminate against severely disabled class members by depriving those class members of supported employment services equivalent to the supported employment services provided to persons with less severe disabilities. 123. Since there is no direct proof that Defendants intend to discriminate against severely disabled class members by depriving those class members of supported employment services equivalent to the supported employment services provided to persons with less severe disabilities, Defendants have not engaged in disparate treatment of those class members under a
46See, e.g., Lynch v. Freeman, 817 F.2d 380, 382 (6th Cir. 1987) (“A trial court’s finding on the issue of intent to discriminate is a pure question of fact....”).
47A finding of whether a grantee discriminated against a person on the basis of disability is a factual question. See, e.g., Tuttle v. Henry J. Kaiser Co., 921 F.2d 183, 186 (8th Cir. 1990) (in Title VII context, issue of discrimination based on race is the “‘ultimate factual issue.’” (citations omitted)).
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disparate treatment analysis based on direct proof of intent to discriminate. 124. Because Defendants have not engaged in disparate treatment by depriving severely
disabled class members of supported employment services equivalent to the supported employment services provided to persons with less severe disabilities, Defendants have not discriminated against those severely disabled class members under a disparate treatment analysis based on direct proof of intent to discriminate.
125. Defendants do not intend to discriminate against severely disabled class members by “consigning” them to segregated, congregate settings while less severely disabled persons engage in supported employment.
126. Since there is no intent to discriminate against severely disabled class members by “consigning” them to segregated, congregate settings while less severely disabled persons engage in supported employment, Defendants have not engaged in disparate treatment of those severely disabled class members.
127. Because Defendants have not engaged in disparate treatment of severely disabled class members by “consigning” those class members to segregated, congregate settings while less severely disabled persons engage in supported employment, Defendants have not discriminated against those class members.
C. Conclusions of Law. 1. Health Care Services.
64. Since Defendants have not discriminated against class members based on the severity of their disabilities by denying those class members meaningful access to health care services or by providing those class members with health care services inferior to services received by less disabled persons, Defendants have not violated § 504 of the Rehabilitation Act,
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29 U.S.C. § 794(a). 65. Since Defendants have not discriminated against class members based on the severity
of their disabilities by denying those class members meaningful access to health care services or by providing those class members with health care services inferior to services received by less disabled persons, Defendants have not violated Title II of the ADA, 42 U.S.C. § 12132.
2. Supported Employment Services. 66. There is no direct proof of Defendants’ intent to discriminate against class members based on the severity of their disabilities by not providing those class members with supported employment services equivalent to services received by less disabled persons; consequently, Defendants have not violated § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), under a disparate treatment analysis based on direct proof of intent to discriminate. 67. There is no direct proof of Defendants’ intent to discriminate against class members based on the severity of their disabilities by not providing those class members with supported employment services equivalent to services received by less disabled persons; consequently, Defendants have not violated Title II of the ADA, 42 U.S.C. § 12132, under a disparate treatment analysis based on direct proof of intent to discriminate. 68. Since Defendants have not discriminated against class members based on their severe disabilities by “consigning” those class members to segregated, congregate settings while less disabled persons engage in supported employment, Defendants have not violated § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). 69. Since Defendants have not discriminated against class members based on their severe disabilities by “consigning” those class members to segregated, congregate settings while less disabled persons engage in supported employment, Defendants have not violated Title II of the ADA, 42 U.S.C. § 12132.
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70. Plaintiffs should be given an opportunity to file a motion seeking relief under McDonnell Douglas on Plaintiffs’ disparate treatment claim that Defendants provided similarly situated persons, i.e., less severely disabled persons who want to work, with supported employment opportunities while denying more severely disabled class members who also want to work with those same supported employment opportunities. VII. Remedies for Substantial Noncompliance with the JSD, POA, and APPENDIX A in the
Areas of Health Care, Safety, and Supported Employment. The Plaintiffs request the following remedies: 1. appointment of a Jackson Compliance Administrator to ensure that Defendants fully comply with the JSD, POA, and APPENDIX A; 2. full implementation of the Community Monitor’s 2009-2010 health, safety, and supported employment recommendations; 3. implementation of the 706 Expert’s 2010 and 2011 health and safety recommendations; 4. prompt identification of deficiencies in nursing and medical care coordination at provider agencies that need corrective action; 5. completion, within 18 months, of all of Defendants’ outstanding obligations under the JSD, POA, and APPENDIX A relating to health, safety, and supported employment, including the implementation of Ellen Ashton’s medical and nursing care recommendations, the implementation of Elin Howe’s recommendations in her October 2003 report, and the resolution of the medical “areas of concern” identified in the December 2003 report by Dr. James Willcox; and 6. an award of Plaintiffs reasonable attorneys’ fees and costs for litigating the noncompliance issues.
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A. Appointment of a Jackson Compliance Administrator. Plaintiffs suggest that the Court appoint Lyn Rucker, the current Community Monitor, as the Jackson Compliance Administrator. Plaintiffs recommend that, if the Court appoints a Jackson Compliance Administrator, the Court vacate the positions of 706 Expert, Internal Monitor, employment consultant (except that the employment consultant would continue to participate in the annual CPR), and assistive technology consultant. PROPOSED ORDER APPOINTING JACKSON COMPLIANCE ADMINISTRATOR (Doc. No. 1882-1) at 1-2. Defendants oppose the appointment of a Jackson Compliance Administrator and would rather have the Honorable Chief United States Magistrate Judge Karen B. Molzen appointed as a special master to streamline the disengagement process and to determine when Defendants have disengaged from their obligations under the JSD, POA, and APPENDIX A. Plaintiffs’ PROPOSED ORDER APPOINTING JACKSON COMPLIANCE ADMINISTRATOR describes the kind of authority, responsibilities and duties the Jackson Compliance Administrator should have and the activities in which Plaintiffs believe the Jackson Compliance Administrator should engage. Primarily, the Jackson Compliance Administrator would “have the authority necessary to facilitate and achieve compliance with all of the Court’s outstanding orders and plans in this case.” Id. at 1. To meet the goal of compliance, the Jackson Compliance Administrator would have the authority to a. “[a]ccess, at reasonable times, the Defendants’ offices, all agencies or entities
serving or proposed to serve class members, including unrestricted access to all records, files, reports, memoranda, correspondence, plans, notices, budgets, compliance reviews and other documents relevant to the Jackson Compliance Administrator’s duties,”48 id. at 5;
48“The auditors and/or consultants for the Jackson Compliance Administrator shall have the same access to staff, records, person[s], ... facilities, or sites of services that the Jackson Compliance Administrator has and that the Jackson Compliance Administrator determines is necessary to fulfill the auditor expert or consultant role.” Id. at 8.
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b. “[c]onduct, at reasonable times and places, confidential interviews with persons who she believes have information that will assist her in performing her duties, including the Defendants’ employees, agents and staff; staff of their provider agencies and contractors; counsel for the parties; class members; and parents, guardians, and advocates of class members. The Defendants will use their best efforts to encourage the full cooperation of such persons,” id. at 5-6;
c. “[a]ttend any formal meetings and other proceedings not protected by attorney work product or attorney client privilege that are conducted by the Defendants regarding subject matters relevant to her duties,” id. at 6;
d. “[r]equest written reports from any of the Defendants’ employees, agents, staff or attorneys with respect to compliance with the orders of the Court,” id.;
e. “[c]onfer and conduct working sessions informally and on an ex parte basis with the parties on matters affecting compliance,” id.;
f. “[r]eview and comment on documents, plans, policies and procedures prepared by the Defendants to implement the orders of the Court, prior to their execution or formal submission by the Defendants,” id.;
g. “[m]ake informal suggestions to the parties in whatever form the Jackson Compliance Administrator deems appropriate in order to facilitate compliance with the orders of the Court,” id.; and
h. “[c]onduct discussions with this Court without prior notice to or consultation with the parties.” Id.
The Jackson Compliance Administrator would also be “solely responsible and
accountable to the Court, and function[] as an agent of the Court. The Jackson Compliance
Administrator [would] serve for as long as necessary to achieve compliance with all of the
Court’s outstanding orders and plans in this case.” Id. at 1. To further aid in achieving the goal
of compliance, the Jackson Compliance Administrator would be able to
a. “[o]versee the development of the community service system for persons with developmental disabilities in New Mexico, including the timely implementation of all remedial plans, procedures, and activities related to the Court’s orders in this case,” id. at 2;
b. “[o]versee the activities of the Defendants in order to ensure that the service system provides services and supports to class members that comply with all
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requirements of federal law, are consistent with professional standards and are at least equivalent to the quality of services provided to people who do not have severe disabilities,” id.;
c. “[a]ssist the Defendants to ensure that their contractors, providers, and agents who are responsible for services to class members comply with all requirements of federal law, professional standards, and Court-ordered obligations,” id.;
d. “[c]oordinate the activities of the Defendant state agencies that are responsible for implementation of the Court’s orders,” id.;
e. “[i]dentify improvements in data collection, management information, performance standards, provider review, and quality improvement systems that are necessary to ensure the health, safety, and welfare of class members,” id.;
f. “[m]onitor compliance with all orders of the Court,” id. at 3;
g. “[f]acilitate efforts of the parties to achieve compliance with the orders at the earliest feasible time,” id.;
h. “[e]valuate the status of compliance with any court order, remedial plan or other obligation,” id.;
i. “[e]valuate the performance of any contractor, provider, or agency funded by the Defendants to provide services to class members,” id.;
j. “[e]valuate the adequacy of current remedies, remedial strategies, and remedial plans,” id.;
k. “[r]eport periodically, and at least semi-annually, to the Court regarding the Defendants’ compliance with the orders of the Court, and to recommend to the Court such modifications and alterations in the remedial orders or plans as appear necessary and proper,” id.;
l. “[c]ommunicate regularly with the parties,” id.;
m. “[a]dvise the Defendants and their agencies and officials regarding implementation activities,” id.;
n. “[a]ssist the Defendants and their agencies to develop and implement plans to achieve compliance, overcome obstacles to compliance, and ensure that class members receive mandated protections, procedures and services,” id.;
o. “[e]stablish outcome measures for determining the efficacy of such plans,” id.;
p. “[e]stablish systems for periodically evaluating the extent to which outcome measures are being met,” id.;
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q. “[a]ssist the Defendants and their agencies to develop needed modifications to such plans,” id. at 4;
r. “[a]ssist the Defendants and their agencies to establish internal processes that can carry out [various activities] after the Jackson Compliance Administrator position is eliminated,” id.;
s. select a person to conduct the annual CPR in substantially the same form as it had been conducted in the past, id.;
t. “[m]ake recommendations to the parties and the Court regarding actions that could be taken to more rapidly achieve compliance, including the need for any further orders of the Court,” id.; and
u. “[m]ake specific assessments of compliance or noncompliance with the provisions of the Court’s orders or remedial plans....” Id.
If the Jackson Compliance Administrator determines that there is noncompliance with
any order, plan, or obligation, and if the Jackson Compliance Administrator “determines that any
current remedial strategies, or remedial plans are not reasonably calculated to result in
compliance in a timely manner, the Jackson Compliance Administrator [would] develop a
recommended remedial strategy or plan, using such input from consultants, experts, the parties
and others as the Jackson Compliance Administrator deems appropriate, in order to ensure
timely compliance with such orders, plans, or obligations....” Id. at 4-5. “In developing a
recommended remedial plan, the Jackson Compliance Administrator [would], to the extent
possible:
(a) develop specific and measurable standards of compliance for those areas in which there is or may be dispute regarding compliance; (b) encourage and allow the Defendants in the first instance to propose remedies and standards of compliance, should the Defendants desire to do so; and (c) include ‘disengagement criteria,’ namely, criteria the satisfaction of which will enable the Court to end its active oversight of a remedial plan or other obligation....”
Id. at 5. The Jackson Compliance Administrator would “[s]upervise implementation by the
Defendants of the orders of the Court and of any supplemental remedial plans or orders.” Id.
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Moreover, the Jackson Compliance Administrator would make written recommendations to resolve disputes following a procedure in which the Court has the final word on whether to implement the recommendations. Id. at 6-7.
Finally, “[a]ll authority to require remedial activities remains with the Court. All actions of the Jackson Compliance Administrator, experts and consultants [would] be under the direct control and supervision of this Court. The exclusive power to direct compliance activities, to sanction parties for noncompliance, and to enter further remedial orders [would] remain[] with this Court, although the Jackson Compliance Administrator may make such recommendations as she deems necessary to facilitate compliance or remedy noncompliance.” Id. “At such point as the Court determines that the Jackson Compliance Administrator duties are completed,” the Court would be able to terminate that position. Id. at 8.
It is well-established that when a federal court “invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution[, the court] has the continuing duty and responsibility to assess the efficacy and consequences of its order.” Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1945 (2011). In other words, a federal court is “not reduced to issuing injunctions against [public officials] and hoping for compliance. Once issued, an injunction may be enforced.” Hutto v. Finney, 437 U.S. 678, 690 (1978). To ensure enforcement of an injunction or consent decree, the Court, in “the most compelling circumstances,” is justified in substituting its “authority for that of elected and appointed officials....” Morgan v. McDonough, 540 F.2d 527, 535 (1st Cir. 1976). As a district court in Ohio explained:
Following a finding of liability, it is common in institutional reform litigation for courts to appoint parajudicial officers to assist in conducting and overseeing actual implementation of the remedies. These officials have been given various names:
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masters, special masters, examiners, experts, monitors, referees, commissioners, administrators, observers, committees, panels, etc. Because these officials inevitably and necessarily displace certain functions and responsibilities that otherwise would rest with those who control the institution, they have been classified as a group as “neoreceivers.” Reed v. Rhodes, 500 F.Supp. 363, 397 (D.C. Ohio 1980), decision clarified in 642 F.2d 186 (6th Cir. 1981) (citations omitted). See also Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir. 1982), amended in part, vacated in part on other grounds by 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983) (court-appointed agents “to supervise the implementation of its decrees” have been called “a confusing plethora of titles: ‘receiver,’ ‘Master,’ ‘Special Master,’ ‘master hearing officer,’ ‘monitor,’ ‘human rights committee,’ ‘Ombudsman,’” and others. The function is clear, whatever the title.”) (citations and internal quotation marks omitted). Such parajudicial officers are particularly necessary when the Court lacks expertise in the field and lacks time to devote to oversight of a remedial action. Reed, 500 F.Supp. at 397 n. 22 (quoting Perez v. Boston Housing Authority, 379 Mass. 703, 400 N.E.2d 1231, 1250 n. 29 (1980)). Hence, courts have not hesitated to appoint compliance administrators to oversee and supervise compliance with consent decrees. See, e.g., Local 28 of Sheet Metal Workers’ Intern. Ass’n v. E.E.O.C., 478 U.S. 421, 481-82 (1986); Reed v. Rhodes, 635 F.2d 556, 558-59 (6th Cir. 1980); Petties v. District of Columbia, 268 F.Supp.2d 38, 39-40 (D.D.C. 2003); Gary W. v. State of La., 1990 WL 17536 *1 (E.D. La.); Glover v. Johnson, 721 F. Supp. 808, 849-50 (E.D. Mich. 1989), affirmed in part and reversed in part on other grounds by 934 F.2d 703 (6th Cir. 1991); United States v. City of Detroit, 476 F.Supp. 512, 520 (D.C. Mich. 1979). Although states have argued that the appointment of a compliance administrator with broad powers unjustifiably interferes with a state’s right to self-governance, courts have rejected that argument so long as the compliance administrator’s powers “are confined to implementation
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of the district court’s remedial orders,” last no longer than necessary, and are the least intrusive effective remedy. See Reed, 635 F.2d at 558; Morgan, 540 F.2d at 533; Glover, 721 F. Supp. at 850. See also Local 28 of Sheet Metal Workers’ Intern. Ass’n, 478 U.S. at 481-82; City of Detroit, 476 F.Supp. at 520 (“Whenever a federal court is involved in the affairs of local government and a remedy is sought which may interfere with traditional notions of separation of powers, great care must be taken to reach a balance that does not summarily deny to such local government the full exercise of its authority over its affairs.”). Even when state officials made progress in complying with some areas of a consent decree, at least one court held that if the “factual findings show the urgent need for a new, more fundamental approach to change,” it is appropriate for the court to appoint a receiver. LaShawn A. v. Kelly, 887 F.Supp. 297, 315 (D.D.C. 1995). To decide whether to appoint a compliance administrator, the Court should utilize a “reasonableness under the circumstances” test. Morgan, 540 F.2d at 533. See also Shaw v. Allen, 771 F. Supp. 760, 762 (S.D. W.Va. 1990) (citing to Morgan and applying “reasonableness under the circumstances” test in deciding whether to appoint a receiver while recognizing that the appointment of a receiver “is an intrusive remedy which should only be resorted to in extreme cases.”); Reed, 500 F.Supp. at 397 (citing to Morgan) (“Though we approved the appointment of an Administrator of Desegregation with broad authority to implement specified remedial orders of the district court, we did not purport to remove or displace the Cleveland Board of Education.”).
Defendants concede that “[t]he power of a federal court to appoint an agent to supervise the implementation of its decrees has long been established.” DEFENDANTS’ MEMORANDUM REGARDING THE COURT’S AUTHORITY TO APPOINT A JACKSON COMPLIANCE ADMINISTRATOR (Doc. No. 1885) at 6. Defendants, however, contend that
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Ms. Rucker should not be appointed the Jackson Compliance Administrator because her purported bias in favor of Plaintiffs violates 28 U.S.C. § 455. Section 455(a) and (b) describe circumstances under which a “justice, judge, or magistrate judge of the United States” must disqualify him or herself from a case. Those circumstances include when “impartiality might reasonably be questioned,” when the justice or judge “has a personal bias or prejudice concerning a party, or personal knowledge of the disputed evidentiary facts concerning the proceeding,” when the justice or judge has “an interest that could be substantially affected by the outcome of the proceeding,” and when the justice or judge is “likely to be a material witness in the proceeding.” 28 U.S.C. § 455(a), (b)(1), (b)(5)(iii), and (b)(5)(iv). Defendants argue that § 455 would apply to a Jackson Compliance Administrator like Ms. Rucker by virtue of Fed. R. Civ. P. 53. Rule 53 governs the appointment of special masters and states that
[a] master must not have a relationship to the parties, attorneys, action, or court that would require disqualification of a judge under 28 U.S.C. § 455, unless the parties, with the court’s approval, consent to the appointment after the master discloses any potential grounds for disqualification. Rule 53(a)(2). Both § 455 and Rule 53 do not on their faces apply to “compliance administrators,” but, instead, apply to justices and judges. Moreover, “[R]ule 53 does not terminate or modify the district court’s inherent equitable power to appoint a person, whatever be his title, to assist it in administering a remedy.” Ruiz, 679 F.2d at 1161. The issue then is whether the Jackson Compliance Administrator is the functional equivalent of a “special master” under Rule 53 so that § 455 applies. A special master may, unless a statute states otherwise, be appointed to “perform duties consented to by the parties;” under certain circumstances, to “hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury;”
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and to “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Rule 53(a)(1). Rule 53(c) outlines the special master’s authority which, “[u]nless the appointing order directs otherwise,” includes the ability to “regulate all proceedings,” to “exercise the appointing court’s power to compel, take, and record evidence” if conducting an evidentiary hearing, to impose noncontempt sanctions as provided in Fed. R. Civ. P. 37 or 45, and to recommend contempt sanctions. Moreover, a special master issues reports that must be filed and served on the parties, unless otherwise ordered, and which are either adopted, modified, or rejected by the court. Rule 53(e) and (f). In other words, a special master exercises quasi-judicial powers. Benjamin v. Fraser, 343 F.3d 35, 45 (2nd Cir. 2003), abrogated in part on other grounds by Caiozzo v. Koreman, 581 F.3d 63, 70-72 (2nd Cir. 2009). See also La Buy v. Howes Leather Company, 352 U.S. 249, 256 (1957) (a court utilizes a special master to perform “‘specific judicial duties’” (quoting Ex parte Peterson, 253 U.S. 300, 312 (1920)).
In contrast to a special master whose “‘role is broad[]: to report to the court and, if required, make findings of facts and conclusions of law,’” a court monitor or compliance administrator’s primary role is limited to ensuring or monitoring compliance with a court’s orders. United States v. Tennessee, 2010 WL 1212076 *12-*13 (W.D. Tenn.) (unpublished decision) (quoting Cobell v. Norton, 392 F.3d 461, 476 (D.C. Cir. 2004) (internal quotations and brackets omitted)). See also Plata v. Schwarzenegger, 603 F.3d 1088, 1094, 1096 (9th Cir. 2010) (a receiver, like a court monitor, is not a special master); Handberry v. Thompson, 446 F.3d 335, 352 (2nd Cir. 2006) (compliance monitor not a special master); Benjamin, 343 F.3d at 44-45 (commission’s monitoring function did not make it a special master). In determining if a court-appointed agent is a special master, the court must be guided by the agent’s function. Benjamin, 343 F.3d at 47.
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Here, the proposed Jackson Compliance Administrator would not have the authority to conduct trials, decide pre- or post-trial matters, “regulate all proceedings,” “compel, take, and record evidence,” impose noncontempt sanctions, or recommend contempt sanctions. Although the proposed Jackson Compliance Administrator would have authority to conduct implementation activities, to conduct compliance assessment activities, to access persons and documents, to attend some formal meetings and proceedings, to request written reports, to report to the Court periodically on compliance, and to make recommendations to the Court on compliance disputes, that authority is not quasi-judicial in nature. Rather, the Jackson Compliance Administrator’s function is better characterized as being a compliance or monitoring function. Consequently, the proposed Jackson Compliance Administrator would not be a “special master” under Rule 53 subject to § 455's disqualification provision and Ms. Rucker’s purported unfair bias would not necessarily disqualify her from being appointed the Jackson Compliance Administrator. In fact, the role of a court monitor or administrator, by its very nature, involves protection of the rights of the class members which “may appear to be adversarial to the State....” See Tennesee, 2010 WL 1212076 at *13. The overlap of a court monitor or administrator’s duties with the interests of the class members does not comprise impermissible bias as long as the court monitor or administrator is fulfilling his or her duties. Id.
The Court believes that Ms. Rucker has served admirably and diligently as the Community Monitor. On the other hand, the Court understands Defendants’ concerns and fears about Ms. Rucker’s impartiality. Defendants’ somewhat hostile attitude toward Ms. Rucker likely would impede Ms. Rucker from effectively fulfilling her duties as the Jackson Compliance Administrator. Ms. Rucker’s appointment as the Jackson Compliance Administrator would, therefore, simply be problematic and ultimately unworkable.
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Defendants, in the alternative, suggest that the Court appoint Judge Molzen as a special master. Although the Court does not doubt that Judge Molzen would do her utmost as special master to move this case towards termination, Judge Molzen is not an expert in providing services to severely disabled persons and she does not have the enormous amount of time necessary to ensure substantial compliance. The circumstances in this case, including the need for expertise in the area of severely disabled persons, the need to devote substantial time to this case, the slow pace of compliance, and the increased medical and safety concerns associated with aging class members, all reasonably justify the extreme measure of appointing a Jackson Compliance Administrator to implement the JSD, POA, and APPENDIX A. Because appointing Ms. Rucker as the Jackson Compliance Administrator is untenable, the Court will give the parties 30 days from the filing date of these FINDINGS OF FACT AND CONCLUSIONS OF LAW to mutually decide who should be appointed Jackson Compliance Administrator and to submit a stipulated order appointing the Jackson Compliance Administrator. If the parties cannot agree on who to appoint as the Jackson Compliance Administrator and/or on an order appointing the Jackson Compliance Administrator, the parties must inform the Court in writing and the Court will schedule a hearing.
B. Other Remedies. In addition to the appointment of a Jackson Compliance Administrator, Plaintiffs ask for several other remedies. Those remedies include that Defendants fully implement the Community Monitor’s 2009-2010 health, safety, and supported employment recommendations; that Defendants fully implement the 706 Expert’s 2010 and 2011 health and safety recommendations; that Defendants identify promptly deficiencies in nursing and medical care coordination at provider agencies which need corrective action; and that Defendants complete,
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within 18 months, all of the outstanding outcomes and activities in the JSD and POA and the outstanding actions in APPENDIX A which relate to health, safety, and supported employment, including the implementation of Ellen Ashton’s medical and nursing care recommendations, the implementation of Elin Howe’s recommendations in her October 2003 report, and the resolution of the medical “areas of concern” identified in the December 2003 report by Dr. James Willcox. Plaintiffs also seek an award of reasonable attorneys’ fees and costs for litigating the noncompliance issues.
Although the current Community Monitor and 706 Expert have made recommendations in the best interests of the class members, Defendants are only legally bound to substantially comply with the obligations set forth in the JSD, POA, and APPENDIX A or in any other Court order. As noted before, JSD ¶ 43 provides a process by which Defendants can challenge a systemic recommendation by the Community Monitor. The fact that there is a process suggests that if Defendants make no formal challenge to the Community Monitor’s recommendations, then Defendants will be expected to follow the recommendations. The JSD, however, does not clearly state that Defendants are generally required to follow the recommendations when Defendants fail to make a formal challenge. The absence of explicit language in the JSD that would require implementation of recommendations is notable because the parties have otherwise agreed in the JSD that Defendants must implement certain specific CPR recommendations.49 Plaintiffs also do not argue in the Renewed Noncompliance Motion that Defendants have not
49The JSD specifically addresses only the 1996, 1997 and 1998 CPR recommendations: “[t]he Department will implement the systemic recommendations of the 1997 and 1998 community audits, unless a specific recommendation is determined to be unreasonable in the mediation process or by the Court,” and Defendants will implement certain recommendations from the 1996 CPR attached as Appendix 14 of the POA. JSD ¶ 31.
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complied with JSD ¶ 43. Additionally, the ORDER APPOINTING RULE 706 EXPERT does not require Defendants to follow recommendations by the 706 Expert. Finally, Plaintiffs’ request that Defendants promptly identify deficiencies in nursing and medical care coordination at provider agencies which need corrective action is already covered by the various JSD, POA, and APPENDIX A provisions which the Court has reviewed. It would be superfluous to order Defendants to engage in activities that are already addressed in the JSD, POA, and APPENDIX A.
On the other hand, a deadline to substantially comply with outstanding obligations under the JSD, POA, and APPENDIX A should help in terminating this lawsuit in an expedient manner, especially if there is a Jackson Compliance Administrator to ensure that Defendants are diligently making progress towards that end. The fact that Plaintiffs think that 18 months is a realistic deadline underscores the Court’s belief that Defendants are close to substantially complying with their outstanding obligations. The Court further believes that if the parties are required to file with the Court a joint report every six months on Defendants’ compliance progress, the Court will be able to keep abreast of any emerging problems or issues and the Court will, therefore, be able to intervene quickly to resolve those problems or issues.
Finally, Plaintiffs’ request for an award of reasonable attorneys’ fees and costs for litigating this matter is premature. As with any request for an award of attorneys’ fees and costs, Plaintiffs must follow the motion practice procedure under D.N.M. LR-Civ. 7 so that Plaintiffs’ request for attorneys’ fees is thoroughly briefed by the parties and the Court can properly rule on the motion with the benefit of relevant supporting documentation.
C. Final Comments on Plaintiffs’ Requests for Remedies. The Court believes that a Jackson Compliance Administrator will be invaluable in moving this case towards termination. Although Ms. Rucker would not be disqualified under
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§ 455 if the Court were to appoint her as the Jackson Compliance Administrator, Defendants’ perception that Ms. Rucker is unfairly biased would impede her ability to adequately perform her duties as the Jackson Compliance Administrator. The Court will, therefore, not appoint Ms. Rucker as the Jackson Compliance Administrator, despite her vast institutional knowledge of this case and her expertise. In addition, Judge Molzen is not in a position to function as a special master. In fact, a Jackson Compliance Administrator not previously involved with the case, agreed to by the parties, with expertise in providing health care, safety, and supported employment to severely disabled persons, would be in the best position to objectively determine what Defendants need to accomplish to substantially comply with Defendants’ remaining obligations under the JSD, POA, and APPENDIX A. To accelerate the rate of substantial compliance with Defendant’s outstanding obligations, a deadline of 18 months following the appointment of a Jackson Compliance Administrator should be ordered and six month joint progress reports should be required. Finally, the Court cannot, at this time, rule on Plaintiffs’ request for an award of reasonable attorneys’ fees and costs without that request being presented in the proper manner.
D. Findings of Fact. 128. Defendants contractually agreed to substantially comply with the remaining JSD, POA, and APPENDIX A obligations in the areas of health care, safety, and supported employment. 129. A Jackson Compliance Administrator would not engage in quasi-judicial activities. 130. Defendants perceive that Ms. Rucker is unfairly biased against them. 131. Ms. Rucker would be unable to effectively or adequately fulfill the duties associated with being the Jackson Compliance Administrator because of Defendants’ strong belief that she is unfairly biased against them.
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132. Judge Molzen has neither the time nor the expertise to ensure substantial compliance with the JSD, POA, and APPENDIX A in the capacity of a special master.
133. Considering the many years which have elapsed since the Court entered the JSD, POA, and APPENDIX A, and the increasing medical and safety needs of aging class members, it is urgent that Defendants substantially comply with their outstanding obligations regarding health care, safety, and supported employment in an expedient manner.
134. A Jackson Compliance Administrator should have substantial time to devote to this case.
135. A Jackson Compliance Administrator should have expertise in providing health care, safety, and supported employment services to severely disabled persons.
136. A Jackson Compliance Administrator’s authority should be confined to the implementation of the JSD, POA, and APPENDIX A.
137. A Jackson Compliance Administrator’s authority should last no longer than necessary to accomplish termination of the case.
138. Appointment of a Jackson Compliance Administrator would be the least intrusive means to ensure compliance with the JSD, POA, and APPENDIX A.
139. Defendants should be able to substantially comply with their outstanding health care, safety, and supported employment obligations within 18 months.
140. Plaintiffs have not presented their request for an award of reasonable attorneys’ fees and costs in a proper manner.
E. Conclusions of Law. 71. Since the Jackson Compliance Administrator would not engage in quasi-judicial activities, the Jackson Compliance Administrator would not be considered a special master under Rule 53.
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72. Since the Jackson Compliance Administrator would not be a special master under Rule 53, 28 U.S.C. § 455's disqualification provision does not apply to the Jackson Compliance Administrator.
73. Even if Ms. Rucker is considered biased, she could be appointed the Jackson Compliance Administrator because § 455's disqualification provision would not apply to her.
74. Since Defendants perceive that Ms. Rucker is unfairly biased and that perception likely would interfere with Ms. Rucker’s ability to perform the duties of the Jackson Compliance Administrator, the Court should not appoint Ms. Rucker as the Jackson Compliance Administrator.
75. Since Judge Molzen has neither the time nor the expertise needed to be a special master in this case, she should not be appointed a special master.
76. It is reasonable under the circumstances to appoint a Jackson Compliance Administrator.
77. It is premature to rule on Plaintiffs’ request for an award of reasonable attorneys’ fees and costs.
CONCLUSION The Court applauds Defendants for the innovations and progress they have made in providing class members with various health care, safety, and supported employment services. Defendants are correct to observe that the class members’ quality of life has vastly improved since the filing of this lawsuit in 1987. Notwithstanding these positive changes for class members, Defendants still have not substantially complied with all of their health care, safety, and supported employment obligations under the JSD, POA, and APPENDIX A. The Court believes, however, that Defendants are close to substantially complying with those obligations.
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In reviewing Plaintiffs’ Renewed Noncompliance Motion, the Court has observed several reasons why Defendants have not been able to substantially comply with those obligations despite the ample time Defendants have had to do so. First, it appears that priorities change with changes in the administration of DOH. This seems to be an inherent problem when politics dictate who is in charge of state departments and upper level management. Second, available funding for services fluctuates depending on reasons like the strength of the economy as well as shifting priorities in state government. Sufficient and dependable funding is also an inherent problem when state government is responsible for paying for services. Third, the health care, safety, and supported employment obligations themselves, as agreed to by the parties, are often redundant and sometimes do not provide quantifiable criteria that Defendants can easily grasp and attain. The Court does not doubt the parties’ good intentions in agreeing to these obligations, but many of the obligations are described in language that is more aspirational in nature than operational. The Court suggests that the parties reconsider the descriptions of the more broadly stated obligations and restate them in language that makes the obligations achievable. Otherwise, Defendants must substantially comply with those outstanding obligations, as broadly and loosely written, because this is the contractual language to which Defendants originally agreed.
Although there are certainly issues regarding substantial compliance with the JSD, POA, and APPENDIX A in the areas of health care, safety, and supported employment, the Court is unable to conclude that Defendants have violated the Rehabilitation Act and ADA. To start with, the Court could not conclude that Defendants have discriminated against severely disabled class members with respect to the provision of health care services. In fact, the Court commends Defendants for accommodating those severely disabled class members who live in rural New
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Mexico by providing them meaningful access to health care services through Continuum and for developing more and better health care services directed to severely disabled persons. There is, however, a question as to whether Defendants violated the Rehabilitation Act and ADA by intentionally denying severely disabled class members supported employment services equivalent to those received by less severely disabled persons. Unfortunately, that question of disparate treatment cannot be analyzed at this time, but must be further briefed. On the other hand, the Court was unable to find a violation of the Rehabilitation Act and ADA when severely disabled class members choose to participate in segregated, congregate day services while less severely disabled persons more often chose to engage in supported employment.
Having concluded that Defendants have not substantially complied with many outstanding health care, safety, and supported employment obligations under the JSD, POA, and APPENDIX A and having found that aging class members have more medical and safety issues because this case has been pending for a long time, the Court determines that it is reasonable under the circumstances to appoint a Jackson Compliance Administrator who has both the appropriate expertise and availability to prod Defendants into final substantial compliance. That Jackson Compliance Administrator would not be a special master, but simply an administrator chosen by the consent of the parties and with agreed upon authority. Of course, if the parties cannot agree upon a Jackson Compliance Administrator or the authority of a Jackson Compliance Administrator, the Court will meet with the parties to work out a resolution. The Court expects that with the help of a Jackson Compliance Administrator Defendants should be able to substantially comply with the remaining health care, safety, and supported employment obligations under the JSD, POA, and APPENDIX A within 18 months of the appointment of the Jackson Compliance Administrator. The parties must keep the Court advised of the progress of
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Defendants’ compliance by filing joint reports every six months, with the first report due six months from the appointment date of the Jackson Compliance Administrator. Finally, the Court will consider Plaintiffs’ request for reasonable attorneys’ fees and costs once they are presented in an appropriate motion.
IT IS ORDERED that: 1. Plaintiffs’ Renewed Noncompliance Motion is granted in part as described supra; 2. PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE THE 2010 AND 2011 REPORTS OF DAVIS DESCHAIES LLC (Doc. No. 1841) is granted in part in that the Court considered only those portions of the reports which contained admissible evidence; 3. PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE TESTIMONY AND REPORT OF RIC ZAHARIA, PH.D. (Doc. No. 1842) is granted in part in that the Court considered only those portions of the testimony and report which contained admissible evidence; 4. DEFENDANTS’ MOTION TO EXCLUDE THE TESTIMONY OF PLAINTIFFS’ REMEDY EXPERT LEWIS H. SPENCE REGARDING REMEDY (Doc. No. 1843) is granted in part in that the Court considered only those portions of the testimony which contained admissible evidence; 5. Plaintiffs may, by November 15, 2012, file a motion seeking relief under McDonnell Douglas on Plaintiffs’ disparate treatment claim that Defendants provided similarly situated persons, i.e., less severely disabled persons who want to work, with supported employment opportunities while denying more severely disabled class members who also want to work with those same supported employment opportunities; 6. The parties have until November 15, 2012 to mutually decide who should be appointed Jackson Compliance Administrator and to submit a stipulated order appointing the Jackson Compliance Administrator;
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and/or on an order appointing the Jackson Compliance Administrator, the parties must inform the Court of the nonagreement in writing so that the Court can schedule a hearing;
8. Within 18 months from the time a Jackson Compliance Administrator is appointed, Defendants must substantially comply with their outstanding health care, safety, and supported employment obligations under the JSD, POA, and APPENDIX A;
9. The parties must file a joint progress report every six months after a Jackson Compliance Administrator is appointed; and
10. Plaintiffs may, by November 15, 2012, file a motion for an award of reasonable attorneys’ fees and costs incurred in litigating the noncompliance issues.
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
202

 
 757 F.Supp. 1243 (1990)
Walter Stephen JACKSON, by his parents and next friends, Walter and Helen JACKSON, et al., Plaintiffs, v.
FORT STANTON HOSPITAL AND TRAINING SCHOOL, et al., Defendants, and
John E. and Iris Young, legal guardians and parents of Rita Kay Young, et al., Intervenors.
Civ. No. 87-839 JP.
United States District Court, D. New Mexico.
December 28, 1990.
124456 *1244 *1245 *1246 Paul L. Biderman, Santa Fe, N.M., Philip B. Davis, Robert Levy, Levy and Geer, P.A., Daniel W. Shapiro, Nancy Koenigsberg, Protection and Advocacy System, Albuquerque, N.M., for plaintiffs.
Vernon W. Salvador, Albuquerque, N.M., for intervenors.
Jerry A. Dickinson, Beth W. Schaefer, Patricia E. Bustamante, Sp. Asst. Attys. Gen., Hal Stratton, Atty. Gen., Chris Coppin, Santa Fe, N.M., Joel I. Klein, Paul M. Smith and Rebecca L. Brown, Onek, Klein & Farr, Washington, D.C., for State defendants.
Timothy M. Cook, Judith A. Gran, Frank Laski, The Public Interest Law Center of Philadelphia, Philadelphia, Pa.
Peter Cubra, Marlene Foster, Protection and Advocacy System for New Mexicans With Developmental Disabilities, Protection & Advocacy System, Albuquerque, N.M.
Ann Tilford Sims, Williams, Conroy & Sims, Belen, N.M.
Barbara Bergman, UNM School of Law, University of New Mexico, Albuquerque, N.M., Guardian Ad Litem, for Felicia Botello.
Kent Winchester, Albuquerque, N.M. (Roberta Beyer, Albuquerque, N.M., of counsel), for applicants-inintervention plaintiffs.
TABLE OF CONTENTS
Pages Introduction ......................................................................... 1249
I. Institutionalization and Community Services in New Mexico ...................... 1250
1247 *1247 Pages
II. History of Litigation .......................................................... 1251 III. The Parties
A. Plaintiffs .................................................................. 1252 1. Walter Stephen Jackson .................................................. 1253 2. Mildred Tsosie .......................................................... 1253 3. Clinton Heath ........................................................... 1253 4. Shawn Heath ............................................................. 1253 5. Steven Nunez ............................................................ 1253 6. Mary Katherine Nowak .................................................... 1253

7. Andra Martinez .......................................................... 1254 8. Lillian Willmon ......................................................... 1254 9. Joseph Gonzales ......................................................... 1254 10. Alfred Shirley .......................................................... 1254 11. James Fritche ........................................................... 1254 12. Sean McHenry ............................................................ 1254 13. Betty Young ............................................................. 1254 B. Intervenors ................................................................. 1254 C. Defendants .................................................................. 1254 D. The Class ................................................................... 1257 IV. ICF/ MR Surveys and Department of Justice Lawsuit ............................... 1258 V. Findings of Fact ............................................................... 1259 A. Food ........................................................................ 1259 1. Nutritional Management ................................................... 1259 2. Food Temperatures ........................................................ 1259 3. Food Handling Practices .................................................. 1260 B. Clothing .................................................................... 1260 C. Environmental Conditions .................................................... 1260 1. Living Areas ............................................................. 1260 2. Asbestos ................................................................. 1260 3. Pest Control ............................................................. 1261 4. Lighting and Ventilation ................................................. 1261 5. Fixtures ................................................................. 1261 6. Sanitation Practices ..................................................... 1261 7. Fire Safety .............................................................. 1261 D. Medical Care ................................................................ 1261 1. Medical Staff ............................................................ 1261 2. Infectious Diseases and Mortality Rates .................................. 1263 3. Medications .............................................................. 1263 4. Dental Care .............................................................. 1263 5. Medical Records .......................................................... 1263 E. Habilitation/ Active Treatment ............................................... 1265 1. Assessments .............................................................. 1265 2. Interdisciplinary Team ("IDT") ........................................... 1266 3. Individual Program Plan ("IPP") .......................................... 1266 4. Longterm View ........................................................... 1267 5. Discharge Plan ........................................................... 1267 6. Data Collection .......................................................... 1268 7. Qualified Mental Retardation ............................................. 1268
Professional ("QMRP") 8. Active Treatment ......................................................... 1269
a. LLH & TS .............................................................. 1269 b. FSH & TS .............................................................. 1270 9. Behavior Management ...................................................... 1271 a. LLH & TS .............................................................. 1271 b. FSH & TS .............................................................. 1272 F. Restraints .................................................................. 1272 1. Chemical Restraints ...................................................... 1272 2. Physical Restraints ...................................................... 1273 G. Regression .................................................................. 1274 H. Safety and Physical Harm .................................................... 1275

1248 *1248 Pages
1. Abuse .................................................................... 1275 2. Accident and Injury ...................................................... 1275 3. Reports .................................................................. 1276 I. Direct Care Staff ........................................................... 1276 1. Insufficient Staff and Inadequate Supervision ............................ 1277 2. Staff Training ........................................................... 1277
a. Preservice Training ................................................... 1277 b. InService Training ................................................... 1278 J. Professional Staff .......................................................... 1279 1. Insufficient Staff ....................................................... 1279 2. Professional Staff Training .............................................. 1280 3. Rehabilitation Services .................................................. 1280 a. Physical Therapy ("PT") ............................................... 1282
i. Staffing .......................................................... 1282 ii. Adequacy of Physical Therapy Services ............................. 1282 b. Occupational Therapy ("OT") ........................................... 1283 c. Assessments ........................................................... 1284 4. Speech and Language Services ("SPL") ..................................... 1285 5. Adaptive Equipment ....................................................... 1285 K. Education ................................................................... 1286 1. SchoolAge Programs ...................................................... 1286 a. Public Schools ........................................................ 1286 b. Special Education Program at LLH & TS ................................. 1287 2. Adult Services Programs .................................................. 1287 3. Adequacy of the Facilities' Programs ..................................... 1288 a. Functional and Chronologically Age Appropriate Programs ............... 1288 b. Coordination between Cottage and Education Programs ................... 1289 c. Space ................................................................. 1290 L. Choice, Privacy, Access to Personal Property ................................ 1290 1. Choice ................................................................... 1290 2. Privacy .................................................................. 1290 3. Access to Personal Property .............................................. 1290 4. Respect .................................................................. 1290 5. Access to the Community .................................................. 1290 M. Placements .................................................................. 1291 1. LLH & TS ................................................................. 1291 2. FSH & TS ................................................................. 1291 3. Commitment Process ....................................................... 1292 N. Implementation of Recommendations for Community Placement ................... 1292 1. IDT Recommendations ...................................................... 1292 2. Recommendations Based on Availability .................................... 1293 3. State Court Orders for Community Placement ............................... 1294 4. Lack of Available Alternatives to Institutionalization ................... 1294 VI. Conclusions of Law ............................................................. 1296 A. Statutory Claims ............................................................ 1296 1. Rehabilitation Act ....................................................... 1296 a. Discrimination ........................................................ 1298 b. Segregation ........................................................... 1299

2. Social Security Act ...................................................... 1299 a. Deficiencies .......................................................... 1300 b. Application of Title XIX .............................................. 1301
3. Education of the Handicapped Act ......................................... 1302 a. Exhaustion of Remedies ................................................ 1303 b. LLH & TS .............................................................. 1304 c. FSH & TS .............................................................. 1304
B. Constitutional Claims ....................................................... 1304 1. Substantive Due Process .................................................. 1305 a. Food, Shelter & Clothing .............................................. 1305 b. Medical Care .......................................................... 1306 c. Reasonable Conditions of Safety ....................................... 1306 i. Abuse ............................................................ 1306
1249 *1249 Pages
ii. Accident and Injury .............................................. 1306 d. Freedom from Unreasonable Restraints .................................. 1307
i. Chemical Restraints .............................................. 1307 ii. Physical Restraints .............................................. 1307 e. Minimally Adequate Training ........................................... 1307 i. IDT Process ...................................................... 1307 ii. IPPs ............................................................. 1308 iii. Training Programs ................................................ 1308 iv. Implementation of IPPs ........................................... 1308 v. Rehabilitation Services .......................................... 1308 vi. Professional Staff ............................................... 1309 vii. Behavior Management .............................................. 1309 f. Regression ............................................................ 1309 g. Community Placement ................................................... 1310 i. IDT Recommendations for Community Placement ...................... 1310 ii. IDT Determinations Based on Unavailability of Community
Services ....................................................... 1312 iii. No IDT Recommendation for Community Placement .................... 1312 2. Procedural Due Process ................................................... 1313 3. Equal Protection Clause .................................................. 1314 C. Claims for Attorneys' Fees .................................................. 1314 VII. Relief ......................................................................... 1315
MEMORANDUM OPINION AND ORDER
PARKER, District Judge.
This is a civil rights action challenging the institutionalization of developmentally disabled[1] persons at Fort Stanton Hospital and Training School ("FSH & TS") and Los Lunas Hospital and Training School ("LLH & TS"), two state-supported institutions for the developmentally disabled in New Mexico. This litigation centers on the area of developing law concerning the rights of the developmentally disabled. It also concerns the constitutional powers of and constraints on federal courts that are asked to grant relief when political branches of state government are perceived as moving too slowly to improve the welfare of the developmentally disabled.

Plaintiffs seek declaratory and injunctive relief. The substantive relief sought arises in the context of the Constitution of the United States[2] and certain federal statutes, including the Rehabilitation Act of 1973, the Education of the Handicapped Act and the Social Security Act.[3]
1250 *1250 In a trial of numerous weeks duration spread over two and one half years, which included several evidentiary hearings on plaintiffs' requests for expedited, extraordinary relief, plaintiffs challenged the conditions at the institutions. They adduced evidence on a number of specific programs and practices, and seriously called into question the validity of institutional life itself. To that end, plaintiffs offered the testimony of numerous experts on the issue of whether an individual's habilitation can ever be provided, in a constitutionally permissible manner, in the traditional institutional setting as opposed to a community setting.
The relief that plaintiffs ultimately seek is a determination that their right to habilitation necessarily requires their receiving habilitation in integrated community settings, because effective habilitation cannot be provided to persons with developmental disabilities unless they are permitted to live in the community with nondisabled persons. While the vast changes plaintiffs seek to make in the lives of the developmentally disabled in New Mexico are highly commendable, some of the relief sought is beyond this court's constitutional power to order and is being requested from the wrong branch of government.
This court has reviewed the volumes of depositions, exhibits and other evidence in an effort to arrive at a just resolution of the plaintiffs' claims. Institutional reform cases of this nature require courts to venture into areas foreign to their traditional expertise 0907 including the fields of medicine, psychiatry and education 0907 an excursion which this court takes with some trepidation.

I. Institutionalization and Community Services in New Mexico

The rate of institutionalization in New Mexico is within the national norm. In 1977, an average of 67.42 persons per one hundred thousand resided in large state institutions for the developmentally disabled in the United States. By 1988, the national average was 37.2 individuals per one hundred thousand. By comparison, in 1977, the rate of institutionalization in New Mexico was 48 individuals per one hundred thousand. The rate of institutionalization decreased to 32.7 per hundred thousand in 1988. Tr. 4/10/90 at 59-61 (Sandler); Def. Exh. VVV.

The number of persons with developmental disabilities residing in state-operated institutional facilities across the nation has declined. Between 1984 and 1988, there was a 16.6% decrease in the population of state institutions nationwide. The national census of institutionalized developmentally disabled persons in 1987 dropped below 100,000 to 95,600 for the first time since 1940. In New Mexico, however, the institutional population increased by 1.6% during the same period. Pl.Exh. 365 at 13.

In 1984, New Mexico enacted legislation for the establishment of a system for community care of the developmentally disabled, the "Developmental Disabilities Community Services Act." § 28-16-1 et seq. NMSA 1978 (1987 Repl.). The Act contains a separate section which defines the legislative purpose for its enactment as follows:

1251

It is the purpose of the legislature in enacting the Developmental Disabilities Community Services Act ... to authorize the health and environment department to plan and coordinate developmental disabilities community services in the state and to declare that priority shall be given to the development and implementation of community-based services for developmentally disabled minors and adults, which will enable and encourage such individuals to achieve their greatest potential for independent and productive living, which will enable them to live in their own homes and apartments or in facilities located within their own communities and which will assist clients to be diverted or be removed from unnecessary institutional placement. *1251 § 28-16-2 NMSA 1978 (1987 Repl.) (emphasis added).

The Developmental Disabilities Bureau of the New Mexico Health and Environment Department is the primary funding source for community programs serving persons with developmental disabilities. Def.Exh. CCC at 3. It contracts with approximately thirty-one private agencies to provide community based services to persons with developmental disabilities. Def. Exh. CCC at 4. During the 1989-90 fiscal year the state of New Mexico served approximately 480 persons in group homes, companion homes, and supported living environments. Id.
In each of the last several years, New Mexico has increased funding for community programs. Tr. 4/11/90 at 278 (Bergman). In fiscal year 1989, the Developmental Disabilities Bureau received approximately $11 million dollars in funds for community programs. Tr. 4/2/90 at 146 (Foley); Def.Exh. CCC at 68. This figure represents an increase by the legislature of thirty percent from the previous budget. Tr. 4/2/90 at 146 (Foley). Approximately, twenty five percent of the budget is earmarked for residential services. Def.Exh. CCC at 68. Id.
The funding for the two state institutions has also increased, although the rate of increase has been greater for community programs. Tr. 4/11/90 at 278 (Bergman).
The State of New Mexico continues to provide care in institutional settings for 345 residents of LLH & TS and 149 residents of FSH & TS notwithstanding the preference for community based care expressed by the legislature six years ago.
II. History of Litigation
On July 8, 1987 twenty-one individual developmentally disabled citizens of New Mexico, on behalf of themselves and other similarly situated individuals, and the Supporters of Developmentally Disabled New Mexicans, Inc. commenced this lawsuit "to redress the unconstitutional and illegal conditions" at Fort Stanton Hospital and Training School and Los Lunas Hospital and Training School. Jackson, et al. v. Fort Stanton, et al., No 87-839, complaint at 1-2 (D.N.M. July 8, 1987).
On December 10, 1987, plaintiff Ronald Fuller applied for a temporary restraining order seeking to restrain defendants LLH & TS, Health and Environment Department, Department of Education, and various state officials from preventing plaintiff's enrollment in Los Lunas Public Schools and directing Los Lunas Public Schools to enroll plaintiff and immediately to devise an appropriate individual education program for him. I held hearings on the application for temporary restraining order on December 11, and December 28, 1987. I entered a restraining order on January 15, 1988 requiring that LLH & TS conduct a comprehensive evaluation and individual assessment of Mr. Fuller by qualified independent evaluators and that Los Lunas Public School District convene an Educational Appraisal and Review Committee meeting to consider whether and to what extent enrollment of Ronald Fuller in the Los Lunas Public Schools could be satisfactorily achieved. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. at 15-16 (D.N.M. Jan. 15, 1988).
On February 4, 1988, the Los Lunas Public School District agreed by stipulation to integrate Ronald Fuller into the public school environment. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. at 15-16 (D.N.M. Feb. 4, 1988). Ronald Fuller has since been discharged from LLH & TS and currently resides with his family in Hobbs, New Mexico. Motions for attorneys fees and costs relating to Ronald Fuller's quest for a public school education remain pending for later determination by this court.
On August 5, 1988, plaintiffs moved to amend the complaint to add the claims of twenty-three individuals who at the time were residents of Las Vegas Medical Center ("LVMC"), a state psychiatric institution. Those twenty-three plaintiffs alleged that they were both developmentally disabled and mentally ill and that LVMC provided for their 1252 mental illnesses, but did not provide habilitation and training services *1252 for their developmental disabilities. I granted the motion and the names of the twenty-three individuals were added to the complaint. These plaintiffs are: Virgil Addison, Roberto Atilano, Felicia Botello, Joseph Baca, Melinda Conway, Daniel Garcia, Viola Gurule, Thomas Harkins, Robert Hynes, Damon Keeswood, Sharon Koons, Garry Martinez, Jose Martinez, Robert McHenry, Marcelino Moya, Ted Nichols, Margaret Romero, Loriann Strickland, Beth Thomas, Albert Vasquez, Edwin Vasquez, Benito Arguello, and Benjamin Romero.

Subsequently, plaintiffs applied for a temporary restraining order on behalf of those plaintiffs who were still housed at LVMC. Hearings were held on the plaintiffs' application for a TRO on August 8, 9, 10, 12, 13, and 15, 1988, and culminated in the entry of a preliminary injunction on September 23, 1988 requiring defendants within 30 days to perform assessments of all plaintiffs residing at LVMC and within 60 days to prepare individualized treatment plans for every plaintiff determined to be developmentally disabled. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. at 15-16 (D.N.M. Sept. 23, 1988).
On November 11, 1988, plaintiffs filed a Motion for an Order to Show Cause and for Further Extraordinary Relief claiming that defendants had failed to comply with the order that had been entered September 23, 1988. After holding evidentiary hearings on December 22, 1988, January 16, 1989, and March 27 and 28, 1989, I denied the motion. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. (D.N.M. May 23, 1989). Many of the twenty-three LVMC plaintiffs had been transferred to the New Mexico institutions or to out-ofstate facilities for treatment under contractual arrangements with the state of New Mexico. Of the twenty-three plaintiffs who were residing at LVMC in August 1988, twelve have been transferred or otherwise discharged, one is deceased, and the remaining ten continue to reside at LVMC.[4] However, the ten remaining at LVMC have presented no further evidence nor have they requested further relief at subsequent hearings.
On October 16, 1989, the main trial on the merits commenced. The main trial was held over an eight week period and proceeded in trial segments as follows: October 16, 1989 0907 October 19, 1989; October 30, 1989 0907 November 3, 1989; November 13, 1989 0907 November 16, 1989; December 12, 1989 0907 December 15, 1989; January 2, 1990 0907 January 5, 1990; April 2, 1990 0907 April 27, 1990. In the course of the trial, numerous witnesses testified and over eight hundred exhibits were admitted as evidence. Over 10,000 pages of transcripts were recorded.
Following the trial, I toured LLH & TS and FSH & TS for the second time, from April 30, 1990 through May 4, 1990, with the court-appointed expert. I had visited the facilities for the first time in the early part of August 1989. In June 1990, I also visited and inspected a community program in Durango, Colorado, and a sheltered workshop and a specialized community behavior management program in Albuquerque, New Mexico.
III. The Parties
A. Plaintiffs
Plaintiffs seek the expansion of community services for the developmentally disabled and the transfer of the residents of LLH & TS and FSH & TS to community residential settings. Evidence was presented on thirteen named plaintiffs who reside at LLH & TS and FSH & TS.[5] These thirteen named plaintiffs will be the representatives of the subclass certified on May 23, 1989 that seeks community placement. The backgrounds of the thirteen named plaintiffs are briefly summarized below.
1253 *1253 1. Walter Stephen Jackson
Walter Stephen Jackson, age 29, is profoundly retarded, has a seizure disorder, and suffers from spastic choreoathetoid quadriparesis. Pl.Exh. 18 at 1-2. Mr. Jackson receives anti-convulsant and anti-seizure medications. Id. at 2. Mr. Jackson was admitted to LLH & TS in 1967, at the age of 6, due to his mother's poor health and a lack of financial resources. Tr. 4/2/90 at 36. He currently resides in Cottage 2. Pl.Exh. at 1. Mr. Jackson's family would like for him to live in a community setting. Tr. 4/2/90 at 45-46 (Jackson). The interdisciplinary team,[6] however, has advised Mr. Jackson's family that because no suitable alternative exists, it has recommended that he remain at LLH & TS. Tr. 4/2/90 at 78-79 (Jackson).

2. Mildred Tsosie
Mildred Tsosie, age 25, is profoundly retarded, microcephalic, blind and nonambulatory. She has cerebral palsy, seizures, contractures, and a severe scoliosis with a windswept deformity of her legs and a severe supination of her forearms. Also, she does not speak and she has a moderate hearing loss. Ms. Tsosie is fed by a gastrostomy tube. Pl.Exh. 21 at 1, 2, 4, 8; Pl.Exh. 96 at 9-10. She was admitted to LLH & TS in 1973 and currently resides in the Chavez West Building. Id. at 1. The interdisciplinary team has recommended that other placement be explored for Ms. Tsosie that will meet her overall developmental and medical needs. Pl.Exh. 21 at 10.
3. Clinton Heath
Clinton Heath, age 28, was admitted to LLH & TS in 1971. He is profoundly retarded and nonambulatory, and he has Coffin-Lowry Syndrome[7] and a severe, fixed kyphoscoliosis of the spine. Pl.Exh. 16 at 1, 2, 4, 8, 10. Clinton Heath resides in Cottage 2. Id. at 2. His interdisciplinary team has not recommended Clinton Heath for community placement. The team determined that Clinton Heath "requires an ICF/MR facility that can meet his medical, self-care and active treatment needs and one that accepts clients who are in wheelchairs and are profoundly retarded." However, "there are no facilities available in New Mexico to meet his needs. If and when one should become available, Clinton would be considered for referral." Pl.Exh. 16, IPP of 1/5/89 at 16.
4. Shawn Heath
Shawn Heath, age 27, is Clinton Heath's brother. He is profoundly retarded and nonambulatory. Like his brother, Shawn Heath was diagnosed as having Coffin-Lowry Syndrome. He also suffers from recurrent conjunctivitis and chronic constipation. Pl.Exh. 17 at 1, 2, 4, 6, 10. Shawn Heath was admitted to LLH & TS with his brother in 1971 because his family was no longer able to care for the boys at home and the cost of outside care placed a financial strain on the family. Id. at 1. Shawn Heath also resides in Cottage 2. His interdisciplinary team has not recommended community placement. Pl.Exh. at 16.
5. Steven Nunez
Steven Nunez, age 25, was admitted to LLH & TS in 1973. He is profoundly retarded, and has spastic quadriparesis. In 1987, Mr. Nunez had orthopedic surgery to increase his potential for ambulation and he now ambulates with leg braces and a stride walker. He occasionally experiences problems with rumination, which is addressed in his programming. Pl.Exh. 19 at 1-2, 6-7, 9-10. Mr. Nunez resides in Cottage 2. He has been referred by his interdisciplinary team for community placement. Id. at 1, 18.
6. Mary Katherine Nowak
Mary Katherine Nowak, age 34, was first admitted to LLH & TS in 1964 at age
1254 *1254 7. She was subsequently transferred to the Las Vegas Medical Center, a state mental hospital, where she remained until age 22 when she was readmitted to LLH & TS. She currently resides in Cottage 4. Ms. Nowak is moderately retarded with a psychiatric diagnosis of atypical psychosis. Pl. Exh. 20 at 1, 6, 7, 8. Her interdisciplinary team determined that Ms. Nowak is capable of doing very well in a group home. Pl.Exh. 20, IPP 7/24/89 at 12.
7. Andra Martinez
Andra Martinez, age 37, resided at the Las Vegas Medical Center from age eleven until her admission to LLH & TS in 1979. She currently resides in Cottage 6. Ms. Martinez is profoundly retarded, has autistic traits, and has a

seizure disorder. Pl. Exh. 27 at 1, 2, 8. She has been referred by her interdisciplinary team to community residential programs "for possible future opportunity to live in a less restrictive environment as her skills improve." Id. at 8.
8. Lillian Willmon
Lillian Willmon, age 71, was admitted to LLH & TS in 1939. She is profoundly retarded and nonambulatory and she has spastic quadriplegia, kyphosis, arthritis and contractures of all extremities and trunk. Ms. Willmon is considered to be nonverbal although she can vocalize some words. Pl. Exh. 22 at 1, 2, 4, 6-10. She currently resides in Seligman Cottage. Id. at 1. The interdisciplinary team reviewed Ms. Willmon's current placement at LLH & TS and found it to be "the most appropriate available at this time." Pl.Exh. 22, IPP 7/12/89 at 17.
9. Joseph Gonzales
Joseph Gonzales, age 47, was admitted to FSH & TS in 1985. He was transferred from a group home in Roswell, New Mexico as a result of behavior problems. He is severely retarded and he has an atrophied left arm, cerebral palsy, foot arthrosis and infrequent uncooperative or aggressive reactions. Pl.Exh. 24 at 2. He currently resides in Sierra I Cottage. Id. Mr. Gonzales has been referred by his interdisciplinary team for community placement. Id. at 3d.
10. Alfred Shirley
Alfred Shirley, age 38, was admitted to FSH & TS in 1981. He is profoundly retarded and is nonambulatory. He has cerebral palsy and Bulbar palsy, a seizure condition. In addition he has a right hemiplegia which requires a leg brace. He is unable to feed himself and is not toilet trained. Pl.Exh. 26 at 2-3c. Mr. Shirley currently resides in Sierra I Cottage. Id. at 2. The interdisciplinary team determined that FSH & TS can best meet the conditions for his treatment and habilitation. However, Mr. Shirley has been referred to two community residential programs in accordance with the terms of a state court order. Pl.Exh. 26 at 7.
11. James Fritche
James Fritche, age 37, was admitted to FSH & TS in 1968. He is profoundly retarded and has cerebral palsy, enuresis, and a club foot. He is not toilet trained. His expressive language skills are nonfunctional. Pl.Exh. 23 at 1, 2, 2b, 2c. He is able to feed and dress himself independently. Id. at 2. Mr. Fritche currently resides in Eddy Cottage. Id. at 1. His interdisciplinary team has not recommended him for community placement. Id. at 6.
12. Sean McHenry
Sean McHenry, age 21, was admitted to FSH & TS in 1984 from Taos Residential Center. He is profoundly retarded and autistic. He has Hodgkins disease, a seizure disorder, and occasional incidents of fevers and elevated white blood cell count of undetermined origin. Pl.Exh. 25 at 1, 2a, 2c, 2d. His expressive language skills are nonfunctional. Id. at 2c. Mr. McHenry attends the Capitan Public Schools. Tr. 11/3/89 at 89-90 (Aldaz). He currently resides in Sierra I Cottage. Id. at 1. The interdisciplinary team determined that FSH & TS can best meet 1255 the conditions for his treatment and habilitation. Mr. McHenry has not been referred to any community residential *1255 program outside FSH & TS. Pl.Exh. 25 at 6.
13. Betty Young
Betty Young, age 33, was admitted to FSH & TS in 1980. She was transferred from LLH & TS and had previously been a patient at LVMC. She is moderately retarded and has organic brain syndrome with hallucinosis and encephalopathy. She is hearing impaired and her expressive language skills are nonfunctional except for some

basic sign language. Pl.Exh. 28 at 1, 2, 2a-2e. Ms. Young currently resides at Socorro Cottage. Id. at 1. The interdisciplinary team determined that FSH & TS best meets the conditions for her treatment and habilitation. However, she has been referred for placement in community residential programs in accordance with a state court order, but has not yet been placed. Pl.Exh. 28 at 6.
B. Intervenors
Intervenors are parents and guardians of some of the residents of LLH & TS and FSH & TS. The parents and guardians intervened in the lawsuit seeking to require defendants to bring the institutions into compliance with constitutional and statutory mandates, but they oppose plaintiffs' efforts to close LLH & TS and FSH & TS and to force the transfer of residents of those institutions into community-based facilities. On June 27, 1988, I granted intervenors leave to intervene in this action. They filed their Complaint in Intervention on July 6, 1988.
C. Defendants
Defendants Fort Stanton Hospital and Training School and Los Lunas Hospital and Training School are the only two state operated institutions which are classified as Intermediate Care Facilities for the Mentally Retarded ("ICFs/MR") under Title XIX of the Social Security Act, and receive federal funds under the act in New Mexico.
LLH & TS was established by act of the New Mexico Legislature on March 20, 1925 as a public residential facility for "any person mentally underdeveloped or faultily developed" who "requires supervision, care and control for his own welfare, or for the welfare of others, or for the welfare of the community." The institution was named "The Home and Training School for Mental Defectives." 1925 New Mexico Laws 254, Ch. 133, §§ 1, 2. LLH & TS is located in Los Lunas, New Mexico and currently serves 345 residents. Of those, 193 are in wheelchairs, 226 have a seizure disorder, 77 have a hearing impairment, 109 have a vision impairment, 40 have both a vision and hearing impairment and 72 are on psychoactive medication in conjunction with a behavioral problem. Approximately seventy-two percent (72%) of the population of LLH & TS are profoundly retarded and twenty-one percent (21%) are severely retarded. Tr. 4/27/90 at 17-18 (LaCourt).
FSH & TS is located in rural Lincoln County, New Mexico. It was originally established as a fort for the United States Cavalry in 1855. Some of the original buildings are still standing on the grounds of the institution. Near the end of the nineteenth century the United States Merchant Marines began using the facility as a hospital for the treatment of tuberculosis. Later it was converted to a state public health hospital which continued in the treatment of tuberculosis. In 1966, the facility began to serve the mentally retarded. FSH & TS currently serves 149 residents. Tr. 4/24/90 at 92 (Miller). The majority of the residents admitted to FSH & TS have behavior problems. Tr. 11/3/89 at 95, 129 (Aldaz); Pl.Exh. 327 at 98 (Aldaz). Residents are also admitted at FSH & TS through the criminal justice system. Pl.Exh. 327 at 60-61, 63-65. In 1987, approximately sixty-six percent (66%) of the population were severely and profoundly retarded. The remaining thirty-four percent (34%) of the population were moderately or mildly retarded or of borderline intellectual ability. Pl.Exh. 335 at 11.
In 1983, the New Mexico Health and Environment Department decided to phase out FSH & TS as a facility for persons with developmental disabilities and to transfer most of the residents to community-based programs. The 1256 Department imposed a *1256 freeze on admissions to FSH & TS during the fall of 1983 and by 1984 the population of the facility was reduced to 111. Tr. 11/3/89 at 139 (Aldaz); Pl.Exh. 335 at 1-2. In 1984 the New Mexico legislature made the entire Health and Environment Department budget contingent upon full utilization of FSH & TS as a facility for persons with developmental disabilities. This decision by the legislature led to a reversal of the earlier announced decision to close FSH & TS. Tr. 11/3/89 at 141-142 (Aldaz); Pl. Exh. 335 at 1, 4.
Following the legislature's action in 1984, the Health and Environment Department appointed a task force consisting of parents, advocates, state legislators, and state agency personnel to examine the role and function of FSH & TS. The task force concluded that most of the residents at FSH & TS did not need to be there to receive the services that they required, and recommended the immediate development of a plan by the Health and Environment Department to facilitate the movement of residents of FSH & TS into community placements. The department did not implement the recommendations. Tr. 4/12/90 at 29 (Jackson).

In 1986, the governor of the state of New Mexico appointed the Developmental Disabilities Planning Council pursuant to the Developmental Disabilities Community Services Act.[8] The council commissioned a study of residential service needs in New Mexico for people with developmental disabilities and held public hearings throughout the state. The council recommended a phase out of FSH & TS, a reduction in the developmentally disabled population at LLH & TS, and a serious commitment to expansion of community-based residential options for persons with developmental disabilities. The plan has not been implemented. Tr. 4/12/90 at 29-30 (Jackson).
Defendant David LaCourt is the administrator of LLH & TS.[9] Defendant Ervin Aldaz is the administrator of FSH & TS.[10] They are responsible for the operation, administration and supervision of the facilities, including the custody, care and treatment of all residents admitted, and for insuring compliance by the staff with applicable state and federal laws and regulations. They also have oversight responsibility for the process by which residents are discharged to community-based placements.
Defendant New Mexico Health and Environment Department ("HED") is the primary executive agency in New Mexico charged with the care and treatment of developmentally disabled persons in New Mexico. It is responsible for the administration, operation and oversight of LLH & TS and FSH & TS, and it contracts with private agencies to provide residential and other services to developmentally disabled persons in communitybased settings. HED is also responsible for insuring that LLH & TS and FSH & TS comply with federal ICFs/MR regulations governing those facilities.
Defendant Dennis Boyd is the Secretary of the Health and Environment Department. He is responsible for insuring that LLH & TS and FSH & TS are operated in compliance with federal law, for monitoring and evaluating the professional and administrative activities of FSH & TS and LLH & TS, and for consulting with the administrators of those facilities. He has the responsibility of preparing, for submission to the legislature, budget 1257 requests sufficient to allow the facilities to carry out their functions in accordance with statutory and constitutional *1257 mandates and sufficient to support community-based services.
Defendant New Mexico Department of Human Services is the state agency designated to be responsible for the receipt and appropriate disbursement of funds under Title XIX of the Social Security Act and for the enforcement of the provisions of that Act in New Mexico. The New Mexico Department of Human Services is also responsible for the administration and oversight of all programs to which the waiver of certain Medicaid requirements has been granted by the federal government, and for insuring that such programs comply with federal requirements and with the service plans submitted by the state.
Defendant Alex Valdez is the Secretary of the New Mexico Department of Human Services and as such is responsible for insuring that the department fulfills its obligations under Title XIX of the Social Security Act.
Defendant New Mexico Department of Education is responsible for maximizing the use of community resources in the provision of vocational rehabilitation services, as stipulated by the parties.[11]
Defendants New Mexico State Board of Education and its individual members are responsible for the formulation and adoption of curricula for the adequate education of all students in the public schools and for establishing and enforcing standards for the identification, evaluation, placement, and service programs of all handicapped children served in all public schools and state supported institutions. Additionally, the board is responsible for carrying out the provisions of the Education of the Handicapped Act within the state of New Mexico including assuring that handicapped students are educated with non-handicapped students to the maximum extent appropriate, as stipulated by the parties.[12]
Defendant Alan Morgan is the New Mexico Superintendent of Public Instruction and is responsible for assuring that the policies of the State Board of Education are implemented, applied and carried out. He is also responsible for supervising the Director of the Special Education Unit.
Defendant Jim Newby is the Director of the Special Education Unit within the State Department of Education. He is responsible for regularly monitoring all local public school districts and state supported schools in order to

assure that their procedures, programs, and services are in compliance with standards set by the State Board of Education and with the requirements of the federal Education of the Handicapped Act. He is also responsible, with the advice of the State Advisory Panel, for the development and implementation of the state's plan for participation under the Education of the Handicapped Act.
D. The Class
Following extensive briefing by the parties on the issue of class certification, on May 23, 1989 I certified a class consisting of all persons who are presently residing at FSH & TS or LLH & TS and have been residents since the date of the filing of the complaint in this action on July 8, 1987; all persons who became or will become residents of the institutions during the pendency of the action; and all persons who have been transferred from FSH & TS or LLH & TS to skilled nursing facilities, intermediate care facilities, homes for the aged and similar facilities, and 1258 whose services are funded in whole or in part by defendants.[13]*1258 Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. at 8 (D.N.M. May 23, 1989).
Pursuant to Federal Rule of Civil Procedure 23(c)(4)(B), the class was divided into two subclasses to reflect the different relief sought by plaintiffs and intervenors. Accordingly, the thirteen named plaintiffs, whose profiles have been set out above, represent the subclass that seeks community placement and closure of LLH & TS and FSH & TS. Intervenors represent the subclass that opposes closure of the institutions but seeks to upgrade the institutions. Id. at 7.
IV. ICF/MR Surveys and Department of Justice Lawsuit
Since LLH & TS and FSH & TS receive federal funds under Title XIX of the Social Security Act, both are regularly surveyed by the Health Care Financing Administration ("HCFA") to determine whether federal funding should continue. See e.g. Pl. Exh. 5, 15; Def.Exh. F, EE. The purpose of the ICF/MR standards is to ensure minimally adequate services for residents. Tr. 4/3/90 at 199 (Franczak). The regulations consist of eight "conditions of participation" which cover such major areas as staffing, active treatment and health care services. The surveyors identify deficiencies under the eight "conditions of participation." Tr. 10/17/89 at 153-159 (Rowe). Each condition of participation has standards which the surveyors use to determine whether there is substantial compliance with the condition of participation. Id.[14] There are almost 500 standards. Whether a condition of participation is met depends on the severity of the standard-level deficiencies. Tr. 4/16/90 at 72 (Dalessandri). If the facility fails to comply with one or more of the eight conditions of participation, the facility is given a deadline by which to come into compliance before funding is terminated. Tr. 4/16/90 at 72 (Dalessandri). HCFA has the power to terminate a facility's funding immediately if HCFA finds that the health and safety of the residents are in jeopardy. Tr. 10/17/89 at 158-159 (Rowe). After every survey, the facility drafts a plan of correction which is a statement of the action that the facility intends to undertake to correct the deficiencies. Tr. 10/17/89 at 163 (Rowe); Tr. 10/30/89 at 30 (Nunn).
Neither LLH & TS nor FSH & TS has been decertified. Pl.Exh. 15; Def.Exh. F, EE, EEE, FFF. However, surveys of LLH & TS in the spring of 1989 determined the facility to be ineligible for continued certification as an ICF/MR. The surveyors found numerous standard-level deficiencies and two condition-level deficiencies 0907 in facility staffing and in active treatment. Def.Exh. F. HCFA set a funding cut-off date of June 15, 1989. Def.Exh. F at 3. Prior to that date the facility was evaluated again. Def.Exh. F at 1-2. LLH & TS was allowed to continue correcting existing deficiencies and developing new plans of correction outlining further steps toward full compliance, after findings by the surveyors that the facility had made progress in these areas and that the residents of the facility were not in imminent danger and their health and safety were not jeopardized. Id. HCFA extended the deadline for termination of the facility's funding to December 31, 1989. Id; Tr. 10/30/89 at 31 (Nunn). The surveyors returned to LLH & TS in December 1989 and found the facility had come into compliance with the conditions of participation. The funding cut-off date was revoked. Tr. 12/12/89 at 261 (Brownstein). The facility was again 1259 surveyed *1259 in March 1990 and found to be in compliance with all conditions of participation. Def.Exh. FFF. Surveys of FSH & TS have also found deficiencies in the past. However, the FSH & TS has never been recommended for decertification. Tr. 10/17/89 at 157 (Rowe); Pl.Exh. 14, 93, 94.

On October 27, 1989, the United States Department of Justice instituted a suit against the State of New Mexico, LLH & TS and various other state defendants for violation of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. United States of America v. State of New Mexico, et al., No. 89-1165, complaint (D.N.M. Oct. 27, 1989). The parties entered into a Settlement Agreement, filed on February 2, 1990, which requires that LLH & TS conduct adequate evaluations and training for the residents; that seclusion and bodily restraints be administered only pursuant to the judgment of qualified professionals; that residents be provided medical care; that LLH & TS employ a sufficient number of physicians, registered nurses, licensed practical nurses, psychologists, physical therapists, occupational therapists, and direct care workers; that psychotropic medications be administered only pursuant to the exercise of professional judgment; that the staff be appropriately trained; and that the institution maintain an adequate recordkeeping system. USA v. State of New Mexico, No. 89-1165, Settlement Agreement (D.N.M. Feb. 2, 1989). The agreement contemplates that the state will implement all provisions of the agreement on or before December 31, 1990. Id. at 17.
As a result of this lawsuit and the ICF/MR survey inspections and the action instituted by the Department of Justice, LLH & TS has experienced significant changes. These substantial ongoing changes in the institution have made the decision-making process in this case difficult in that evidence presented over a protracted period has, to some extent, become outdated.
V. Findings of Fact
A. Food
The quality of the food served and the quantity provided to the residents of LLH & TS and FSH & TS are adequate.[15] Plaintiffs challenged, however, the adequacy of nutritional management, the appropriateness of food temperatures and food handling practices.
1. Nutritional Management
Each resident's food or fluid intake is monitored. The dietician or the nurse is advised of any resident who consistently fails to eat all of his or her food. Pl.Exh. 308 at 27 (Cordova); Pl.Exh. 320 at 18 (Kearns); Pl.Exh. 318 at 27 (Chavez). In addition, the dietician at FSH & TS continuously circulates during meals to monitor the residents' diets and to get feedback on how residents are eating. Pl.Exh. 320 at 18. The dietician at LLH & TS observes meals in the cottages and classrooms to monitor feeding programs for the various residents. Tr. 4/18/90 at 99 (Gailbraith).
2. Food Temperatures
Plaintiffs' environmental expert, Mr. Duel, identified problems in maintaining appropriate food temperatures, particularly at LLH & TS. Specifically, both Mr. Duel and the HCFA surveyors noted a failure to maintain food temperatures at levels sufficient to prevent the growth of harmful micro-organisms. Tr. 4/10/90 at 197-198 (Duel); Pl.Exh. 245 at 8. The dietician at LLH & TS had identified the same problem prior to Mr. Duel's survey and had already requested the purchase of new equipment to correct it. Tr. 4/10/90 at 198 (Duel). The new equipment has been installed and the quality assurance program confirms that the appropriate food temperatures are now being maintained. Tr. 4/18/90 at 96 (Gailbraith).
Plaintiffs' expert, Mr. Duel, also reported a failure to maintain refrigeration and freezer units at sufficiently low 1260 temperatures *1260 to safeguard food against spoilage. In addition, Mr. Duel noted a failure to ensure the
presence of accurate procedures and equipment to measure those temperatures, particularly at the LLH & TS satellite feeding stations. Tr. 4/10/90 at 199-202 (Duel). The refrigeration units at LLH & TS have an inside thermometer and an outside thermometer gauge that is part of the unit itself. The temperatures are logged from the inside thermometer. Tr. 4/18/90 at 97 (Gailbraith). At the time of Mr. Duel's survey, the LLH & TS dietician had

previously requested the purchase of air cooling equipment for the storage room and it has since been installed. Tr. 4/11/90 at 102 (Duel); Tr. 4/18/90 at 98 (Gailbraith). Mr. Duel found that the temperatures of refrigerators and freezers at FSH & TS were within the ranges recommended by the food service regulations and did not present a health hazard. Tr. 4/11/90 at 67-68 (Duel).
3. Food Handling Practices
The dietician at LLH & TS provides in-service training to the staff on infection control and handwashing practices relating to food service and food preparation. Tr. 4/18/90 at 98 (Gailbraith). The dietician also oversees a quality assurance program which involves randomly visiting the cottages and classrooms to observe meals. Approximately twenty meals are reviewed per week. Tr. 4/18/90 at 99-100 (Gailbraith).
B. Clothing
The clothing provided to the residents of LLH & TS and FSH & TS is adequate. The clothing is clean, individualized, well-fitting and is not issued from a general clothing store. During my visits to LLH & TS and FSH & TS in May 1990, I observed that the clothing was varied, not uniform. I also observed several residents wearing new high top brand name athletic footwear. All parties also agreed that the residents of both facilities are wellgroomed. Tr. 10/31/89 at 203-204 (Haywood); Tr. 4/17/90 at 37, 212 (Peets, Woodhouse); Tr. 4/4/90 at 169 (Crocker); Tr. 10/17/89 at 139 (Rowe).
C. Environmental Conditions
Experts on all sides, who toured the facilities, agreed that both LLH & TS and FSH & TS are generally clean and well-maintained. Tr. 4/4/90 at 169-170 (Crocker); Tr. 10/17/89 at 94 (Rowe). Plaintiffs challenged, however, some specific aspects of the physical environments at both facilities.
1. Living Areas
LLH & TS and FSH & TS are licensed by the New Mexico Health and Environment Department to house the number of residents who reside at both facilities. Def. Exh. AP, AQ. The licenses state how many beds are allowed in each cottage area. Neither LLH & TS nor FSH & TS has exceeded the licensed capacity. Tr. 4/18/90 at 32-33 (Blount).
The bedroom size at LLH & TS and FSH & TS is adequate with each bedroom having four or fewer beds, some with individual beds and many with two beds per room. Tr. 10/17/89 at 140 (Rowe); Tr. 10/30/89 at 125 (Nunn). However, each unit for the medically fragile at LLH & TS 0907 Chavez West, Chavez East and Bashein East 0907 houses more than four residents. LLH & TS has received a waiver for the medically fragile units from the Title XIX authorities on the basis of medical need. Tr. 10/30/89 at 125 (Nunn).
The living areas at LLH & TS and FSH & TS are personalized. LLH & TS has a policy of allowing residents to maintain personal possessions in their living areas. Tr. 10/30/89 at 124 (Nunn). Residents have in their rooms personal possessions such as pictures, mirrors, televisions, and grooming items. Tr. 11/2/89 at 152-53 (Donovan). Residents at FSH & TS also have personal belongings in their rooms, including pictures, prints, rugs and mirrors. Tr. 10/31/89 at 161 (Haywood). The bedding is individualized. Tr. 10/17/89 at 140 (Rowe). Personal items are frequently replaced if damaged or destroyed by the residents. Tr. 10/31/89 at 162 (Haywood).
2. Asbestos
1261 Some items stored at FSH & TS were previously thought to contain asbestos. *1261 Further investigation proved, however, that most of those items did not in fact contain asbestos. The remaining items that contained asbestos were "abated." Tr. 11/3/89 at 154 (Aldaz).

3. Pest Control
Plaintiffs' expert, Mr. Duel, found evidence of vermin, mouse droppings and flies in food service areas at LLH & TS. Tr. 4/10/90 at 207-210 (Duel). He also found dead insects and mouse droppings in food service areas at FSH & TS. The presence of insects in the food service areas raises serious health concerns. Id. However, in the opinion of a defense expert witness, the pest control at LLH & TS and FSH & TS is adequate. Tr. 4/18/90 at 27-30 (Blount). LLH & TS and FSH & TS provide pest control services on a bimonthly basis in the food service areas. Def.Exh. AN, AO. LLH & TS also has an infection control committee which meets regularly. Tr. 4/11/90 at 103 (Duel). In addition, state inspection reports for the last two years at both facilities do not cite pest or vermin problems in the food service areas. Tr. 4/18/90 at 31 (Blount).
4. Lighting and Ventilation
Lighting in the food service areas, living areas and offices at both FSH & TS and LLH & TS is adequate. Tr. 4/18/90 at 25-27 (Blount). LLH & TS and FSH & TS comply with federal regulations on ventilation systems. Tr. 4/18/90 at 19-24 (Blount).
5. Fixtures
The system of providing and monitoring hot water at LLH & TS and FSH & TS is adequate. Both LLH & TS and FSH & TS supply and monitor hot water through systems of mixing valves, which mix hot and cold water to provide water of a certain temperature at the exit end. The valves are inspected on a regular basis. Tr. 4/18/90 at 54-56 (Blount).
6. Sanitation Practices
The waste disposal facilities at LLH & TS and FSH & TS are adequate. Tr. 4/18/90 at 30-31 (Blount). The garbage collection bin located near Hidalgo Cottage at FSH & TS is appropriate. Tr. 4/18/90 at 73-75 (Blount). FSH & TS's sewage treatment system meets federal requirements regarding the discharge of treated matter and poses no immediate threat to the health and safety of the residents. Tr. 4/11/90 at 47-53 (Duel).
A state agency regularly samples the water supply at FSH & TS for appropriate chlorine levels and has found it to be in compliance with applicable standards. Tr. 4/11/90 at 46-47 (Duel). The laundry facilities at LLH & TS and FSH & TS use a sanitizing soap that appropriately disinfects clothes. Tr. 4/18/90 at 36-37 (Blount); Def.Exh. AS.
7. Fire Safety
LLH & TS and FSH & TS are in compliance with the applicable fire safety standards. Tr. 4/18/90 at 42-54 (Blount). FSH & TS is equipped with both a sprinkler system and smoke detectors, although only one is required by fire safety regulations. Tr. 4/18/90 at 82 (Blount). The fire alarm system at FSH & TS is maintained on a regular basis by a contractor. Tr. 4/18/90 at 82 (Blount). Although many doors at both LLH & TS and FSH & TS have panic bars, panic bars are not required. Tr. 4/18/90 at 87-89, 93-94 (Blount).
D. Medical Care
1. Medical Staff
LLH & TS currently employs four full-time physicians. Tr. 4/23/90 at 15 (Brown).[16] There is regular interaction between the LLH & TS medical staff and the University of New Mexico Medical School. Three out of the four staff

1262 physicians at *1262 LLH & TS currently hold appointments at the University of New Mexico Medical School. Dr. Ball has an appointment in the family practice department and Drs. Brown and Witemeyer have appointments in the pediatric department. The fourth physician was recently hired and is expected to receive an appointment to the pediatric department. Tr. 4/23/90 at 29-31 (Brown). Plaintiffs' expert found the physicians to be generally competent. Tr. 4/4/90 at 169 (Crocker). All four physicians are on-call on a rotating basis so that there is a physician on call 24 hours a day, every day of the week. Tr. 4/23/90 at 15 (Brown). Three of the four physicians reside on the LLH & TS campus while they are on call. The fourth resides in Los Lunas, approximately five minutes from the facility. Tr. 4/23/90 at 17 (Brown). There are also five nursing stations on site at LLH & TS. Tr. 4/23/90 at 17 (Brown). Each resident of LLH & TS receives a physical examination at least every six months. Tr. 4/23/90 at 16 (Brown); Tr. 12/15/89 at 8 (Witemeyer).
Dr. Witemeyer is the staff physician responsible for the medically fragile residents at LLH & TS. Dr. Witemeyer visits her patients virtually daily. Tr. 12/15/89 at 8-9 (Witemeyer). In addition, a nurse is present during mealtimes in the medically fragile unit at LLH & TS because of the risk of aspiration. Tr. 12/15/89 at 87 (Witemeyer).
LLH & TS also makes regular use of medical consultants including specialists in the areas of orthopedics, pulmonary disease, ophthalmology, psychiatry, neurology, dermatology, and gynecology. Tr. 4/23/90 at 22-26 (Brown). LLH & TS contracts with three psychiatrists for approximately 20 hours per week of psychiatric consultation. Tr. 4/23/90 at 22 (Brown). The contract neurologist provides regular on-site neurological consultations as well as off-site evaluations where appropriate, particularly of residents with intractable seizure disorders. Tr. 4/23/90 at 22, 24-25 (Brown). The orthopedist holds an orthopedic clinic at LLH & TS on a monthly basis. Patients are referred to the orthopedist by members of the medical or therapeutic staff. Approximately ten to fourteen cases are presented at each clinic session. 12/15/89 at 106-107 (Sherman). The orthopedist also sees LLH & TS residents regularly on an outpatient basis either to treat fractures or injuries or to perform evaluations, or as inpatients to perform various surgical procedures. 12/15/89 at 108 (Sherman); 4/23/90 at 24 (Brown). Every new resident at LLH & TS who is medically fragile or multiple-handicapped is referred to the Orthopedic Clinic, Neurology Clinic, Eye Clinic, Rehabilitation Services and the Speech, Language and Hearing Departments. Tr. 12/15/89 at 7-8 (Witemeyer).
LLH & TS also provides a number of services on site including x-rays, laboratory tests, electrocardiograms and a pharmacy. Tr. 4/23/90 at 18-21. The laboratory employs two full-time technicians who perform microbiology cultures, hematologic studies, and other procedures. A consulting pathologist supervises the lab and promotes quality assurance. Tr. 4/23/90 at 19 (Brown).
The pharmacy is staffed by two full-time pharmacists. The pharmacists review and fill prescriptions, and monitor medication side effects. Tr. 4/23/90 at 19-21 (Brown). In addition, the pharmacists prepare quarterly reports on medication which advise the interdisciplinary teams of all medications prescribed and indicate possible side effects of the medication. The reports are included in the Individual Program Plans ("IPP"). Tr. 4/23/90 at 19-21.
Plaintiffs' medical expert testified generally that the medical and health services provided at LLH & TS are in accordance with professional standards. Tr. 4/4/90 at 172-73 (Crocker).
FSH & TS employs two full-time resident physicians, who plaintiffs' expert found to be generally competent. Tr. 4/4/90 at 169 (Crocker). FSH & TS also has regularly scheduled consultations in both psychiatry and neurology. Other medical consultants are available as needed. Def.Exh. P at 4. In addition, FSH & TS provides a number of 1263 services at the facility including x-rays, laboratory tests, EKG testing and a pharmacy. *1263 Tr. 4/4/90 at 172-173 (Crocker). The nursing services at FSH & TS comport with professional standards. Tr. 4/4/90 at 171 (Crocker).
2. Infectious Diseases and Mortality Rates
Although plaintiffs' presented evidence of a lack of general medical care in the past, plaintiffs' medical expert found that the incidence of infectious diseases at LLH & TS and FSH & TS falls within generally accepted ranges, Tr. 4/4/90 at 176-77 (Crocker), and that the mortality rates at both institutions are also within the expected general range for the populations they serve. Tr. 4/4/90 at 176 (Crocker).

3. Medications
Residents of LLH & TS are regularly monitored for neuromotor side effects of psychoactive medication. Tr. 4/23/90 at 56-58 (Brown). The nurses perform monthly evaluations using a tardive dyskinesia monitoring scale. These evaluations are performed weekly when the client is first introduced to the medication. Tr. 4/23/90 at 57 (Brown). In addition, the nursing staff performs a quarterly physical examination to screen for possible side effects. Tr. 4/23/90 at 58 (Brown). Plaintiffs' expert reviewed the thirteen named plaintiffs and found no evidence of tardive dyskinesia or other neuroleptic related movement disorders. Tr. 4/4/90 at 175 (Crocker).
Nationwide, thorazine is a commonly used psychoactive medication. Tr. 4/24/90 at 80 (Brown). Thorazine can cause hyperpigmentation, a slate-gray darkening of skin color, and corneal deposits. Tr. 4/24/90 at 43, 59 (Brown). Defendants' expert testified that hyperpigmentation is reversible once the medication is discontinued. Tr. 4/24/90 at 45 (Brown). For many years, a number of residents of LLH & TS had been prescribed thorazine, and many developed hyperpigmentation and corneal deposits. Tr. 4/24/90 at 44, 79-80 (Brown). The medical staff at LLH & TS had discussed the appropriateness of the thorazine and had accepted the recommendation for its continued use made by a consulting psychiatrist who believed that the risks associated with changing the medication outweighed the possible benefit of reversing the hyperpigmentation. Tr. 4/24/90 at 46-47 (Brown); Tr. 4/23/90 at 114 (Brown). It was only after a different consultant, Dr. Gualtieri, later recommended that thorazine be discontinued that the residents' thorazine medication was changed to another psychoactive medication that had the same behavioral effects but did not have the side effect of hyperpigmentation. Tr. 4/24/90 at 45-46 (Brown); Tr. 4/23/90 at 114 (Brown). At the end of trial in April 1990, the hyperpigmentation among residents had not completely reversed although there had been improvement. Tr. 4/24/90 at 45 (Brown).
A limited number of residents at FSH & TS are receiving psychoactive medication. Both the staff physicians and the consulting psychiatrist regularly review medication decisions. There appears to be a policy to use such medication at the lowest effective dose. Def.Exh. P at 5. A number of residents at FSH & TS are also receiving seizure medication. Dosages are lowered and even discontinued after a specified period during which no seizures are observed. Def.Exh. P at 5.
4. Dental Care
The dental services at LLH & TS and FSH & TS are more than adequate. Tr. 4/4/90 at 172 (Crocker). LLH & TS employs a full-time dentist, Dr. Ray Lyons. Tr. 4/24/90 at 258. Generally, Dr. Lyons conducts clinical examinations, including cleanings, for each resident every six months at LLH & TS. Tr. 4/26/90 at 272 (Lyons). Oral hygiene is assessed on a monthly basis in the cottage living areas. Tr. 4/26/90 at 271; Def.Exh. FO at 12-13. Also, Dr. Lyons has performed an oral function assessment on each named plaintiff at LLH & TS. Def.Exh. FO at 8.
5. Medical Records
Plaintiffs' medical expert found that the medical records at FSH & TS and LLH & TS are inadequate. The medical 1264 records *1264 are sparse and nonanalytical; they tend to deal with the more immediate or obvious elements. Tr.
4/4/90 at 93 (Crocker). The records lack a broad description of clinical status. Id. at 93-95. They often reflect "automatic thinking", i.e. medical entries are made without investigation or reflection, and contain repetitive listings which suggest insufficient analysis. Id. at 95-96. These matters affect residents' health and their longrange outlook. Id. at 95.
The following are examples of inadequate medical analysis. Plaintiff Walter Stephen Jackson's IPP of August 8, 1989 indicates that his last seizure occurred in March 1987. Pl.Exh. 180; Tr. 4/4/90 at 118 (Crocker). Plaintiffs' medical expert noted, however, that Mr. Jackson was on multiple anti-convulsant medications. Tr. 4/4/90 at 119 (Crocker). Subsequently, a consulting neurologist recommended a gradual reduction followed by discontinuation of the medication. Tr. 4/4/90 at 120; Pl.Exh. 181.

Plaintiffs Clinton and Shawn Heath were diagnosed as having Coffin-Lowry Syndrome. Their medical records, however, lack any discussion of or supporting data for the diagnoses. Tr. 4/4/90 at 98-102 (Crocker).[17] The medical records of Clinton Heath for December 1986, January 1987, June 1987, December 1987 and June 1989 also contained a diagnosis of spastic quadriparesis, a central nervous system disorder. Tr. 4/4/90 at 102-110 (Crocker); Pl. Exh. 176. In October 1989, however, shortly after plaintiffs' medical expert had questioned the accuracy of this diagnosis in a deposition, the physician's progress notes indicated that no spasticity was noted and that the diagnosis of spastic quadriparesis would be removed. Pl.Exh. 176 at 7; Tr. 4/4/90 at 109 (Crocker).
Clinton Heath was also diagnosed as having spina bifida, an incomplete fusion of portions of a bone spine. Tr. 4/4/90 at 110 (Crocker); Pl.Exh. 176. Plaintiffs' medical expert questioned the diagnosis after reviewing a normal x-ray report of his spine. Id. at 111, 113; Pl.Exh. 177. A radiology report of December 1989 identifies spina bifida occulta, a minor variation in the integrity of the formation of the spinal arch, which carries an insinuation of low importance. Tr. 4/4/90 at 114-115 (Crocker); Pl.Exh. 178.
The medical records of plaintiff Mildred Tsosie show a progressive loss of movement between 1973 and 1987. Plaintiffs' medical expert found that the documentation was inadequate in that it lacked discussion, explanation or analysis of the condition by the medical staff. Tr. 4/4/90 at 122-127 (Crocker); Pl.Exh. 183. The medical records of plaintiff Lillian Willmon also document a loss of movement. In 1980, Ms. Willmon walked fairly well with her walker. Tr. 4/4/90 at 127 (Crocker). Between 1980 and 1989, Ms. Willmon developed progressively worsening contractures which impaired her walking ability and ranges of motion in her joints. Ultimately, Ms. Willmon lost the ability to walk. Tr. 4/4/90 at 127-135 (Crocker). Plaintiffs' medical expert again found that the records failed to adequately discuss or analyze Ms. Willmon's condition. Tr. 4/4/90 Id. Plaintiff Alfred Shirley's medical records also reflect the loss of his ability to walk at some undefined point between 1981, when he was admitted, and 1988. The cause for the regression is unknown. Tr. 4/4/90 at 138-144 (Crocker); Pl.Exh. 188, 189.
The HCFA surveyors found that the individual resident records were not functionally accurate representations of a resident's current status. The LLH & TS' plan of correction indicates that the facility will be taking a number of steps to assure a recordkeeping system that results in a functionally accurate representation of each resident's current status, including more frequent audits of the resident's records and an eleven month schedule for chart and quality assurance reviews. Id.
1265 *1265 E. Habilitation/Active Treatment
Habilitation or active treatment generally refers to programs for the mentally retarded which focus primarily on training and the development of needed skills. Youngberg v. Romeo, 457 U.S. 307, 309 n. 1, 102 S.Ct. 2452, 2454 n. 1, 73 L.Ed.2d 28 (1982). ICF/MR regulations require, as a condition of participation, that "each [resident] 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 the acquisition of the behaviors necessary for the [resident] to function with as much self-determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status." 42 C.F.R. § 483.440(a); Pl.Exh. 15, Tag # 196.
Each resident must have an individual program plan ("IPP") developed by an interdisciplinary team ("IDT") based on an assessment of the individual needs of the resident. 42 C.F.R. § 483.440(c)(3). The plan must identify the specific objectives necessary to meet the resident's needs and a planned sequence for dealing with the objectives, and must be implemented by all staff who work with the resident. 42 C.F.R. § 483.440(c)(4), (d)(3).
1. Assessments
The ICF/MR standards require that the facility conduct a comprehensive functional assessment of the resident's abilities across many areas of the resident's life and in the appropriate environment. Pl.Exh. 15, Tag ## 211-225, 249. Defendants testified that prior to the annual interdisciplinary team meeting, the appropriate professionals at each facility assess the residents in the following areas: health and nutritional status; physical development;

affective development; auditory functioning; sensory and motor development; communication; cognitive development; social skills; recreational skills; vocational skills; self-care skills; and other independent living skills. Tr. 10/30/89 at 36-40 (Nunn); Tr. 4/3/90 at 195-197 (Franczak).
Every resident of LLH & TS is evaluated using the Comprehensive Functional Assessment ("CFA"). Tr. 10/30/89 at 34-35 (Nunn); Def.Exh. G. The CFA's individual sections are completed by all appropriate professionals as well as by direct care staff. Tr. 10/30/89 at 37-39 (Nunn); Tr. 4/26/90 at 187 (Nunn). Plaintiffs' expert testified that if the CFA were competently and accurately performed, the CFA would meet professional standards. Tr. 10/17/89 at 226-227 (Rowe).
However, at LLH & TS in May 1989 the surveyors reviewed seventeen charts and found that comprehensive functional assessments contained only reports of scores of functional age levels and lacked descriptions of specific developmental strengths and needs. Seven of the seventeen charts reviewed stated that some assessments were "not available at this time." Four records lacked assessments of physical development and health. Five of the comprehensive functional assessments lacked nutritional status, and two of the remaining twelve lacked up-to-date assessments to reflect the residents' current needs. Eight comprehensive assessments lacked assessments of sensory motor development. All seventeen records lacked developmental assessments and an assessment in vocational skills. Pl.Exh. 5 at 29-32.
In June 1989 the surveyors found that the "comprehensive assessments lack salient information in all areas and did not reflect how all pieces relate or build on each other." They do not identify all of the residents' specific developmental strengths. In accordance with the plan of correction, LLH & TS completed comprehensive functional assessments for all residents on August 25, 1989. Def.Exh. F at 34-36; Tr. 10/30/89 at 40 (Nunn). See also McAllister Depos. at 10-11.
FSH & TS uses different assessment tools to evaluate residents, including the Functional Skill Screening Inventory. Pl. Exh. 310 at 48-49.
1266 *1266 2. Interdisciplinary Team ("IDT")
Adequate habilitation requires interdisciplinary team planning of the overall services provided to persons with developmental disabilities. ICF/MR standards require that an IDT represent the professions, disciplines or services relevant to identifying the residents' needs and to designing programs that meet those needs. Pl.Exh. 15, Tag # 206. Accordingly, the professional program staff must participate as members of the IDT in relevant aspects of the active treatment process. Pl.Exh. 15, Tag # 168. The appropriate facility staff must also participate in the IDT meetings. Pl.Exh. 15, Tag # 207. However, "[t]here is no correct number of individuals who comprise the interdisciplinary team." Pl.Exh. 15, Tag # 206, Guidelines. Participation by the resident and the resident's parent or guardian is required unless the participation is unobtainable or inappropriate. Pl.Exh. 15, Tag # 209.
LLH & TS and FSH & TS use an interdisciplinary team approach to program planning. Tr. 11/3/89 at 90-91 (Aldaz); Tr. 10/30/89 at 36-40 (Nunn). Physicians are members of the IDT. They, together with the nurse and pharmacist, provide health care information at the IDT meetings. Tr. 4/23/90 at 33 (Brown); Def.Exh. P at 4-5. The physicians generally attend IDT meetings unless a medical emergency or other circumstance prevents their attendance. Physicians at LLH & TS attend IDT meetings approximately 90 to 95% of the time. Tr. 4/23/90 at 32-33 (Brown). Other professional staff, including teachers, therapists and nurses participate in the IDT meetings. Def.Exh. P at 12; Tr. 12/14/89 at 48 (Attermeier).
Residents and their families and/or guardians are encouraged to attend the team meetings and to participate in the IDT process. Tr. 4/3/90 at 187 (Nunn); Tr. 4/3/90 at 236 (Franczak); Tr. 10/17/89 at 141 (Rowe). See e.g. Tr. 4/13/90 at 188-189 (Downey). In addition, each resident is represented at the team meeting by the resident's qualified mental retardation professional ("QMRP"). Tr. 4/26/90 at 187-188 (Nunn); Tr. 10/17/89 at 141 (Rowe).

3. Individual Program Plan ("IPP")
ICF/MR standards require that the IDT prepare for each resident an individual program plan within 30 days after admission. Pl.Exh. 15, Tag # 226. The IPP must set forth measurable objectives for habilitation necessary to meet the resident's needs as identified by the comprehensive assessment and a planned sequence of interventions for meeting those objectives. Pl.Exh. 15 at 227-228; Tr. 4/4/90 at 72 (Crocker). The objectives must be expressed in behavioral terms that provide measurable indices of performance and must be assigned a projected completion date. The "projected date of completion" for an IPP objective should not be the same as the annual review date. Pl.Exh. 15, Tag # 230, 231, Guidelines.
The members of the IDT review the assessments of a resident and derive from them a list of the resident's particular strengths and needs. From the strengths and needs, the team determines the resident's prioritized goals and an IPP is developed. Tr. 10/30/89 at 34 (Nunn); Tr. 4/26/90 at 186 (Nunn); Tr. 4/3/90 at 196 (Franczak). Each resident's IDT reviews the IPP at least annually. The plan is revised as needed, for example, if there is an indication that the plan is not working, or if the client has had a change in his or her status. Tr. 10/30/89 at 120 (Nunn); Tr. 11/3/89 at 90-91 (Aldaz); Tr. 4/3/90 at 288-289 (Franczak). In addition, LLH & TS uses a quality assurance audit system to review each IPP for appropriateness. Tr. 10/30/89 at 41, 46, 97; Def.Exh. J.
In 1989, the surveyors found that the IPPs at LLH & TS failed to specify the interventions needed to support the person toward independence; to provide training in personal skills; to identify the mechanical supports needed to achieve proper body position, balance or alignment as well as the reasons for each support; and also failed to include opportunities for resident choice and self-management. Def.Exh. F at 51-55; Pl.Exh. 5 at 31-32; Tr. 1267 10/16/89 *1267 at 178 (Rowe). In reviewing forty-two IPPs, the surveyors found that the stated completion date for objectives was "within one year," or "by the next annual review." Pl.Exh. 5 at 32; Tr. 10/16/89 at 225-226 (Rowe). See e.g. Pl.Exh. 293, IPP 7/27/89 at 14.
In addition, the surveyors also observed that the "IPPs had a predictable sameness about them." Pl.Exh. 14 at 14. IPP objectives for residents of LLH & TS are not individualized. For example, many of the residents in Cottage 9 have the same objective and written training program for recreation and leisure skills. Pl.Exh. 293, IPP 7/27/89, Objective # 5; Pl.Exh. 296, IPP 8/11/89, Objective # 5; Pl.Exh. 297, IPP 8/25/89, Objective # 5; Pl.Exh. 298, IPP 8/1/89, Objective # 4; Pl.Exh. 299, IPP 2/7/90, Objective # 7, IPP 8/23/89, Objective # 7; Tr. 4/16/90 at 147, 151, 154 (Thompson).[18]
LLH & TS' plan of correction indicated that new individual program plans would be developed and implemented for all residents of the facility, which would include relevant interventions to support the individual toward independent functioning, and appropriate objectives in personal skills development, and would identify any needed mechanical supports and specify the situations in which those supports are to be applied. Def.Exh. F at 51-54. In addition, new policies and procedures were implemented to address the support of individual resident interventions toward independence and to provide for resident choice and self-management. Def.Exh. F at 55. In accordance with the plan of correction, new IPPs were formulated for all residents of LLH & TS by September 30, 1989. Def. Exh. F at 49; Tr. 10/30/89 at 97 (Nunn).
4. Long-term View
ICF/MR regulations require that the program plan objectives "[b]e organized to reflect a developmental progression appropriate to the individual." The guidelines to surveyors provide that the facility "consider the outcome it projects the individual will be able to accomplish in the longterm." Pl.Exh. 15, Tag # 232. The ICF/MR regulations do not define "longterm." Tr. 4/5/90 at 187 (Foster). The program plans are developed for a twelve month period. Tr. 4/5/90 at 187 (Foster).
Plaintiffs' experts found that there is no explicit long-term view of what would be achieved for the residents of FSH & TS and LLH & TS in the next three to five years. Tr. 10/17/89 at 6 (Rowe); Tr. 4/6/90 at 35 (Franczak).

However, plaintiffs' experts also recognized that the ICF/MR regulations do not require that the residents' IPPs have a three to five year view. Tr. 4/3/90 at 198 (Franczak).[19]
5. Discharge Plan
The program plans developed at LLH & TS in the summer of 1989 do not have a discharge plan. The IPPs lack a projected discharge date and there are no established criteria for discharge. A new IPP format was developed in the fall of 1989 which includes a discharge transfer plan, with a projected date of discharge. Tr. 10/30/89 at 136-138 (Nunn).
A formal discharge plan format exists for residents of FSH & TS. However, a typical discharge plan requires that the resident meet numerous goals in the IPP, including such goals as increasing attention span, before the resident can move to another setting. See Pl.Exh. 24, IPP 1/31/89 at 7; Pl.Exh. 25, IPP 6/30/89 at 6; Pl.Exh. 26, IPP 11/17/88 at 7. For example, plaintiff James Fritche's IDT determined that "[t]he criteria for [Mr. Fritche's] release to a less restrictive setting for treatment or habilitation is that [he] meet his goals for improving ADL skills, 1268 fine motor skills, pre-academics, socialization skills, RLS, and *1268 improving attention span, receptive language skills, reducing tactile defensiveness and drooling, increasing range of motion, balance, and coordination, the guardian approve of the placement, and the program meets the needs listed above." Pl.Exh. 23, IPP 5/30/89 at 6.
Despite the lengthy criteria, however, a representative of FSH & TS testified that the residents of FSH & TS are not required to meet all of their programmatic goals listed in the discharge plans before the interdisciplinary teams at FSH & TS will recommend placement in an alternative setting. The criteria are merely "suggested" criteria. Tr. 4/25/90 at 142 (Dooley).
6. Data Collection
Proper habilitation requires the collection of data adequate to measure an individual's progress toward the stated objectives. ICF/MR standards require collection of data with sufficient frequency and content to measure appropriately a resident's progress toward the targeted IPP objective. Pl.Exh. 15, Tag # 237, Guidelines. Data showing progress, regression or no change are vital and necessary information for staff to be responsive to the changing needs of individuals with developmental disabilities. Pl.Exh. 15, Tag # 111, Guidelines.
Direct care staff at both facilities take data on the resident's goals. Staff receive training on how to collect and chart data at the new employee orientation program as well as during in-service training. Then qualified mental retardation professionals review the data to determine whether changes in the IPPs should be recommended. Pl.Exh. 318 at 42-43; Pl.Exh. 315 at 29-31, 88-91; Pl.Exh. 320 at 66-67, 74.
In May 1989 the surveyors found that although LLH & TS had data collection methods in place, there was no assurance that the data was collected. During interviews the direct care staff indicated that they were unsure of how to collect the data. Pl.Exh. 5 at 32. In June 1989, the surveyors concluded that the IPPs at LLH & TS did not contain objectives expressed in behavioral terms that provide measurable indices of performance, and did not specify the type of data and frequency of data collection necessary to assess progress toward the desired objectives. Def.Exh. F at 49-50. See also Tr. 11/13/89 at 174 (Cox).
The plan of correction for LLH & TS indicates that the residents' objectives would be expressed in behavioral terms that provide measurable indices of performance, and that living unit personnel and other program staff would receive training in writing objectives. In addition, staff training was implemented to ensure that all staff gather data with sufficient frequency and content to measure progress towards each objective. Def.Exh. F at 49-50.
At FSH & TS the assessment data varies with the person gathering the data. Pl. Exh. 320 at 70-72. In addition, plaintiffs presented testimony that the occupational therapist at FSH & TS does not collect baseline data, without which progress, regression or change cannot be monitored. Tr. 11/16/89, Vol. I at 93 (Spencer).

7. Qualified Mental Retardation Professional ("QMRP")
ICF/MR standards require that each resident's active treatment program must be integrated, coordinated and monitored by a qualified mental retardation professional. Pl.Exh. 15, Tag # 159. In June 1989, the surveyors found that QMRPs were not monitoring the delivery of services to residents of LLH & TS. For example, a resident was fed breakfast by the staff in less than four minutes. Another resident who was "to eat slowly and put his spoon down after bites," ate his breakfast in 2.5 minutes. Methods to achieve objectives for the residents of Woolston adult services were not provided to the staff. A resident was observed outside without his communication board. The communication board was in the office area of the cottage. Def.Exh. F at 11-14.
In December 1989, the surveyors found that the QMRP notes in one resident's records indicated that the resident 1269 had achieved a 75% to 100% level of success on *1269 each objective, indicating successful completion of all
her objectives. However, the record lacked recommendations that the plan be continued, discontinued or changed, or that new objectives be developed. Def. Exh. EEE at 4 ¶ 2.
The plan of correction for LLH & TS indicates that the facility had revised the functions of the QMRP by placing new emphasis on the role of the QMRP in integrating, coordinating and monitoring each resident's active treatment program. In addition, QMRPs received training in the IDT process, CFAs, behavioral objectives and the implementation of active treatment. Def.Exh. F at 11; Tr. 10/30/89 at 53 (Nunn).
At FSH & TS, serving as a QMRP is not a primary duty assignment. Pl.Exh. 228 at 169.
8. Active Treatment
Adequate habilitation requires that the programs, plans and professional recommendations developed for a person actually be implemented. ICF/MR standards require that as soon as the IDT has formulated a resident's IPP, the resident must receive a continuous active treatment program consisting of needed interventions and services in sufficient number and with appropriate frequency to support the achievement of the objectives identified in the IPP. Pl.Exh. 15, Tag # 249.
The reports of the state surveyors show that LLH & TS and FSH & TS have failed to provide continuous active treatment programs.
a. LLH & TS
Surveys of LLH & TS in February, May and June 1989 found the facility ineligible for certification as an ICF/MR because the surveyors found, among other things, a condition-level deficiency in active treatment. Def.Exh. F at 3; Pl.Exh. 5.
Residents spend long periods of time self-stimulating (typically rocking or finger-tapping), waiting to go from one activity to another, or simply doing nothing. Staff fail to interact with residents and to administer active treatment. On February 8, 1989, the surveyors observed no interaction between staff and residents for a thirty-five minute period. Again on February 14, 1989 the surveyors observed, for twenty-five minutes, eleven residents in wheelchairs in a room. One resident was in a bed. One staff member was on the phone. She stated that she was on the switch board during break. One staff member was in the kitchen, and one staff member was in the laundry room. There was no interaction with residents. Pl.Exh. 5 at 23 ¶¶ B, C; See also Pl.Exh. 5 at 23 ¶ A, 24 ¶ D, 26 ¶ 1, 27 ¶¶ 4, 6.
IPPs are not implemented. In reviewing a psychology assessment for one resident, the surveyors noted that he needed improved socialization capability. On February 8, 1989 the resident was observed in his cottage rocking back and forth. The following day he was observed in the gym, sitting alone and rocking back and forth. On both occasions there was no interaction with staff. Pl.Exh. 5 at 21 ¶ E; See also Pl.Exh. 5 at 23 ¶¶ F, G, H, 25 ¶¶ D, F.

In May 1989, the surveyors found that one resident's IPP dated 4/5/89 had not been implemented in adult services as of 5/5/89. Pl.Exh. 5 at 27 ¶ 5. Another resident in Cottage 5 who had an IPP dated 4/5/89 had an objective to sort laundry and to prepare Sunday breakfast, but the program had not begun as of 5/5/89. The IDT had also recommended a vision exam, but none was scheduled. The same resident was to receive active treatment for socialization at supper, but none was observed. Pl.Exh. 5 at 26 ¶ 2. A resident in Cottage 8 had no schedule of daily activities. His staffing summary specified a low bed with a mat beside it, but no mat was observed. His diet included six teaspoons of polyglucose with meals, but this was not provided until the surveyor inquired about it. Pl.Exh. 5 at 26 ¶ 3. A certain resident's IDT strongly recommended individual speech therapy; however, the resident was receiving therapy only in a group setting. Pl.Exh. 5 at 14 ¶ A. Another resident's IDT recommended that the speech language therapist administer diagnostic therapy for a three to six month period; 1270 but the surveyors found no documentation *1270 that this was being done. This client's record indicated a one year regression in her communication skills. The IDT stated that a specific communication goal was not recommended because the resident's daily routine would focus on strongly reinforcing appropriate speech. It was observed throughout the survey, however, that this resident did not receive speech reinforcement according to her IPP. Pl.Exh. 5 at 14 ¶ B.
On May 4, 1989, the surveyors observed ten residents in adult services with two staff from 9:45 a.m. to 10:30 a.m. The residents were running around the room, self-stimulating, screaming, and hitting each other. One blind resident sat on the floor the entire time self-stimulating. Pl. Exh. 5 at 27 ¶ 6.
In June 1989, the surveyors observed one blind resident sitting at a table while the other residents were playing bingo. There was no staff intervention or contact with the resident for over 20 minutes, and he was offered no alternative activity. The same blind resident was observed the following evening. He sat outside for 25 minutes at a picnic table while the other residents and staff were playing baseball. The staff did not interact with the resident or provide active treatment. Def.Exh. F at 28-29 ¶ 1; See also Def.Exh. F at 8, 11, 14, 29 ¶¶ 2, 3, 4, 5. HCFA surveyors also observed a female resident in adult services standing and leaning over the back of a wheelchair for fourteen minutes. The staff stated that the program plan was gross motor skills and then went on to say that in this instance the resident was engaged in an extra leisure skill of standing. In fact, the program plan objective was walking. Def.Exh. F at 30, ¶ 8; See also Def.Exh. F at 30 ¶¶ 6, 7, 31 ¶ 11.
In December 1989, the surveyors reviewed a resident's record which indicated that the resident was to receive individual speech therapy beginning in May 1989. There was no documentation in the record indicating that the resident had received speech therapy since the time it was recommended. Def.Exh. EEE at 4. A resident was observed flicking his fingers and rocking back and forth. Staff did not redirect the resident as indicated by the IPP. Def. Exh. EEE at 12 ¶ 2. See also Def.Exh. EEE at 11, 12, 13.
The LLH & TS dietician recommended as part of a resident's nutritional assessment that he be fed smaller meals more frequently, i.e. that he be given half of his regular portion at mealtime, the remainder two hours later, and a supplement two hours after that. The resident has a gastric reflux problem. As of January 1990, the recommendation had not been implemented and the resident was still being fed his entire meal at the regular mealtime. Ogle Depos. at 10-13 and Ogle Depos.Exh. 2; Def.Exh. AW, IPP 7/25/89 at 6.
In March 1990, the surveyors found that the deficiency for program implementation continued. They observed five residents and two staff members in a day room. One resident was engaged in a project on the sofa and two residents were being attended by the staff on a floor mat. One resident stood on one side of the room, rocking back and forth and flicking his fingers. Six other residents and two staff members returned from an activity away from the cottage, and then interacted with the other residents except for the resident who was rocking back and forth. The self-stimulating resident did not receive the attention and interventions appropriate to address his needs. Def.Exh. FFF at 11.
b. FSH & TS
Similarly, at FSH & TS the surveyors have found deficiencies in active treatment at least since 1984 and 1985, although the HCFA surveyors have never recommended FSH & TS for decertification. Tr. 11/3/89 at 123-126

(Aldaz); Pl.Exh. 14, 93, 94. The surveyors found throughout FSH & TS, both in the living units and day programs, that consistent and continuous provision of functional activities and competent interactions was not taking place. Specifically, surveyors found groups of residents sitting in the living units with no staff attending them. Pl.Exh. 14 at 11 ¶ A. In another instance, residents sat without any competent, consistent interaction with others and/or staff. 1271 When the staff was asked *1271 about this, they indicated that it was not active treatment time. Pl.Exh. 14 at 13 ¶ G. During mealtimes, the surveyors noted that there "was no observable active treatment taking place." Pl.Exh. 14 at 8 ¶ B, 11 ¶ A(2), 42 ¶ A(2). Quite to the contrary, the surveyors observed that staff did not demonstrate skills and techniques to promote socialization; residents were not encouraged, permitted and reinforced to be independent during meals; residents were rushed through meals; and the eating programs were not being implemented. Pl. Exh. 14 at 24, ¶¶ A, B, C, D. Plaintiffs' and defendants' experts also observed almost no training during meals. Tr. 10/18/89 at 109-110 (Brown); Tr. 4/20/90 at 47 (Reid). The surveyors also tracked fifteen residents and found that the tasks being done during the scheduled active treatment time did not follow the residents' IPPs. Pl.Exh. 14 at 12 ¶ B. The staff could not identify the objective for any activity as it related to a certain resident's IPP. Pl.Exh. 14 at 32.
9. Behavior Management
a. LLH & TS
Every resident of LLH & TS receives an annual psychological assessment. In addition, psychological evaluations [20] are conducted every three years on residents under the age of 18, and every five years on residents age 18 or older. Tr. 4/27/90 at 28-30 (LaCourt). Behavior management programs at LLH & TS focus on the reduction of maladaptive behavior through a positive intervention approach such as positive reinforcement, rather than punitive or aversive intervention. Tr. 4/20/90 at 78, 90-92 (Reid).
ICF/MR standards require that staff be able to demonstrate the skills and techniques necessary to administer interventions to manage the inappropriate behavior of residents. Pl.Exh. 15, Tag # 193. Psychologists train direct care staff at LLH & TS and FSH & TS in the implementation of individual behavior management programs. Pl.Exh. 310 at 140; Tr. 10/30/89 at 77-78 (Nunn).
However, in March 1988, defendants' expert, Dr. Haywood, found that the behaviorist system at LLH & TS "needed review and fine tuning." Dr. Haywood testified that the behavioral data charts he reviewed at LLH & TS were not instructive because the categories of behavior reported in the charts were quite gross. For example, the chart for one resident merely described high frequencies of "inappropriate behavior" during February and March. Defendants' expert testified that staff efforts to apply behavioral programs to such generally described behaviors would be ineffective because so many different acts can be included in this broad category. Def.Exh. P at 13. In April 1990, another defense expert testified that a resident's behavior program indicated that data should be collected without further detail or specification. Tr. 4/26/90 at 11 (Reid).
Defendants' expert, Dr. Haywood, also found that staff relied on "contingent reinforcement" techniques of behavior management. Although the techniques are immediately effective, Dr. Haywood saw little effort expended toward generalizing the immediate effects of reward or punishment. The pressing situation was met but staff members did not seem to be concerned with or to know how to accomplish a longer-term and nonsituational generalization of acceptable and appropriate behavior. Def.Exh. P at 16.
Defendants' expert also testified that there seemed to be a reluctance to change behavioral programs once they were established. He recommended that an attitude be fostered of constant monitoring and revision where necessary and useful. Dr. Haywood further testified that often behavioral programs are established on an empirical basis, which to be successful require staff members to be willing and able to change the programs 1272 when they are not yielding the results they were intended to *1272 achieve. Def.Exh. P at 15. Plaintiffs' expert, Dr. Franczak, also found that behavioral programs are not changed as conditions require. Tr. 4/2/90 at 258 (Franczak).

In March 1990, the administrator of LLH & TS testified that his observations were consistent with those of the surveyors in that direct care staff did not consistently and effectively intervene in instances of inappropriate behavior. Tr. 4/27/90 at 157-158 (LaCourt).
In April 1990, Dr. LaCourt testified that LLH & TS is progressing in a continuum toward implementation of behavior management plans in a consistent manner. Tr. 4/27/90 at 158-159 (LaCourt). However, Dr. LaCourt had observed only one instance of a behavior management plan being implemented from beginning to end. Tr. 4/27/90 at 159-160 (LaCourt).
b. FSH & TS
Behavior modification programs at FSH & TS are developed through the IDT process. Pl.Exh. 310 at 139-140. Before designing a behavior modification program, the psychology staff at FSH & TS reviews the type of behavior, frequency of behavior, duration and intensity of behavior, as well as any relevant environmental factors. Pl.Exh. 315 at 76. The psychologists work together with the consulting psychiatrist at FSH & TS to evaluate, plan and implement appropriate behavior modification plans and to discuss, recommend and prescribe appropriate medications. Pl.Exh. 315 at 92-93. In the fall of 1989, FSH & TS began a peer review system for behavior management plans. Pl.Exh. 315 at 70, 72. As part of the peer review, the staff psychologists meet once a month to review three to five behavior plans. Pl.Exh. 315 at 74.
Defendants' expert, Dr. Haywood, testified that the behavior management programs at FSH & TS contain the requisite components for effective behavior management programming. These basic components include investigating the etiology of residents' behavior problems, collecting data to evaluate the occurrence or nonoccurrence of the problem and the intervention, and intervening in a manner that does not rely heavily on aversive procedures. Behavior management programs at FSH & TS rely a positive intervention approach. Tr. 4/20/90 at 89-91 (Reid).
However, defendants' expert, Dr. Reid, found that although the basic components of a behavior management program were in place, the facility needed considerable improvement to bring behavior management programs up to state of the art. Tr. 4/20/90 at 91 (Reid).
F. Restraints
1. Chemical Restraints
Chemical restraints generally refer to the administration of medication solely for the purpose of tranquilizing or rendering an individual more manageable. Tr. 4/23/90 at 38-39 (Brown). Psychoactive medication is medication prescribed and administered for the purpose of affecting behavior, or alleviating symptoms of psychiatric illness. Def.Exh. BX at 1.
There are seventy-two residents at LLH & TS on psychoactive medication. Tr. 4/27/90 at 31. Defendants' expert testified that the medication is prescribed pursuant to consultation with a psychiatrist, Tr. 4/23/90 at 23 (Brown), that each resident on psychoactive medication has a psychiatric diagnosis, Tr. 4/23/90 at 41 (Brown), and that each resident on psychoactive medication has a behavior management plan. Id.
LLH & TS has written and implemented policies and procedures pertaining to the use of psychoactive medication which proscribe the use of such medication for punishment, or for the convenience of staff, or as a substitute for habilitative programs. Def.Exh. BX at 1. LLH & TS policy also requires that the informed consent of the resident's guardian be obtained prior to the administration of psychoactive medication. Def.Exh. BX at 3, 6-7.
The review mechanism in place at LLH & TS for the use of psychoactive medication is twofold. First, the IDT of 1273 each resident reviews the use of psychoactive medication at least annually. Tr. 4/23/90 at 44-45 *1273 (Brown).
Part of the IDT, described as "the core", which includes the Qualified Mental Retardation Professional ("QMRP"),

a psychologist, a nurse, and a physician, reviews the psychoactive medication regime at least quarterly. Tr. 4/23/90 at 45 (Brown). At these quarterly reviews, the psychologist provides data summaries of selected targeted behaviors over the preceding three months and the QMRP provides an overview of the client's progress and behavior. Tr. 4/23/90 at 46 (Brown). Reduction of psychoactive medication is regularly considered on an individualized basis in consultation with the psychiatrist, the primary physician and other observers. Tr. 4/23/90 at 53-54 (Brown); Def.Exh. BX at 3.
There are additional reviews by two review boards; the Technical Review Board ("TRB") and the Institutional Review Board ("IRB"). Def.Exh. BX at 2; Def. Exh. BY. The TRB consists of representatives of each of the pertinent disciplines, including a social worker, psychologist, cottage supervisor, QMRP, nurse, special education teacher, chaplain and physician. The TRB reviews aversive behavior programs and the use of psychoactive medication at least every six months. Tr. 4/23/90 at 48-49 (Brown).
The IRB members include an attorney, the head of the parents committee, a clinical psychologist, a chaplain and the medical director. Tr. 4/23/90 at 50 (Brown). The IRB reviews any proposed treatment program involving the use of psychoactive medications, physical restraints or time out procedures. Tr. 4/23/90 at 50 (Brown); Def.Exh. BY at 6. The IRB reviews are conducted prior to the implementation of the program and at least every six months thereafter. Def.Exh. BY at 6.
At FSH & TS, the Behavioral Review Committee, which consists of the psychology staff, medical staff and consulting psychiatrist, reviews the use of psychoactive medications and behavior modification programs. Pl.Exh. 315 at 70-75. In addition, all behavior modification programs at FSH & TS are reviewed by the Human Rights Committee, whose members include an attorney, a diagnostician and a priest. Pl. Exh. 327 at 95.
As a general matter, plaintiffs' medical expert did not find any inappropriate chemical restraints at either FSH & TS or LLH & TS. Tr. 4/4/90 at 174 (Crocker). He found the use of psychoactive medication at the facilities to be strikingly low for the population served. He did not find any evidence of inappropriate polypharmacy being practiced in regard to the thirteen named plaintiffs. Tr. 4/4/90 at 173-174 (Crocker); Pl.Exh. 168 at 2.
2. Physical Restraints
Aversive programming is the use of unpleasant stimuli to decrease behavior that is undesirable. Tr. 10/31/89 at 190-191 (Haywood). In May 1988, 39 residents at LLH & TS were on a list of those receiving aversive programming. Def.Exh. P at 17. Of the 39 residents so listed, only two actually received aversive stimulation: one was exposed to ammonia odor and the other was exposed to water mist. Def.Exh. P at 17. The other 37 residents on the list were subject to the use of mechanical restraining devices, including the papoose board, exclusionary time out, the camisole or straight jacket, the Mandt hold, a wheelchair, and certain protective devices such as mittens and helmets. Def.Exh. P at 17.
The most frequently used restraint in May 1988 was the papoose board. This is a restraining device that consists of a flat board with velcro-closing fabric "arms" on which residents are placed with their extremities immobilized. Def.Exh. P at 17. The use of a restraint for a long period of time results in an imbalance of muscle development. Tr. 4/27/90 at 58 (LaCourt). Defendants' expert, Dr. Haywood, found that time out was used as punishment rather than as a training mechanism, and that papoose boards were an unnecessary restraint. Tr. 10/31/89 at 190 (Haywood).
In March 1990, LLH & TS dismantled all time out rooms. Tr. 4/27/90 at 33 (LaCourt). LLH & TS has also eliminated the use of aversive stimuli, Tr. 10/30/89 at 201 (Haywood), and there are no residents at LLH & TS 1274 who have four- or five-point *1274 restraint as part of their behavioral programs. Only one resident at LLH & TS has the use of a camisole or straight jacket as part of his program. Tr. 4/27/90 at 33-34 (LaCourt). The use of the camisole with this resident has been reviewed and a professional determination made that it is appropriate. Tr. 4/27/90 at 34 (LaCourt).
LLH & TS has also eliminated papoose boards as a component of behavioral programming. However, papoose boards continue to be used in connection with dental treatment. Tr. 10/31/89 at 201 (Haywood). ICF/MR

standards require that facilities "employ physical restraint only as a health-related protection prescribed by a physician, but only if absolutely necessary during the conduct of a specific medical or surgical procedure, or only if absolutely necessary for client protection during the time that a medical condition exists." Pl. Exh. 15, Tag # 297. The dentist at LLH & TS, Dr. Lyons, testified that the papoose board is employed pursuant to an individual determination that a restraint is the least restrictive means available to ensure the safety of the client. The dentist's recommendation concerning the use of the papoose board is reviewed by the IDT and is present in the IPP of a resident when it is required. Tr. 4/26/90 at 260 (Lyons); Tr. 4/3/90 at 43-44 (Franczak).[21]
Plaintiffs' expert in behavioral psychology testified that the use of a papoose board for dental care is unnecessarily restrictive and violates ICF/MR standards. Tr. 4/3/90 at 43 (Franczak). Plaintiffs' expert conceded, however, that he is not an expert in dental techniques, that he did not speak with any dentists at the facility, and that he had no knowledge of desensitization techniques employed by the dental staff. Tr. 4/4/90 at 8-9 (Franczak).
Evidence was presented concerning the use of restraints which are not part of a resident's IPP. A report of uncorrected deficiencies noted that on February 17, 1989, the HCFA surveyors observed five residents of LLH & TS seat-belted (restrained) to toilets. This was not part of toilet training programs set forth in their IPPs. Pl.Exh. 5 at 5. On May 3, 1989, the surveyors again observed residents of LLH & TS seat-belted to toilets because only one staff member was available to assist six residents.[22]Id.
FSH & TS has never used physical restraints as part of a behavioral program and has used them less than five times on an emergency basis. Tr. 4/24/90 at 153 (Miller); Tr. 4/20/90 at 143 (Reid). There has never been a time out room at FSH & TS. Tr. 4/24/90 at 151 (Miller); Tr. 4/20/90 at 143 (Reid). There is no evidence of the use of aversive programming at FSH & TS.
G. Regression
Plaintiffs' medical expert, Dr. Crocker, found the residents whose records he reviewed to be medically stable, with no notable deterioration in their conditions. Although Dr. Crocker believed that more analysis should have been given to the cases of plaintiffs such as Ms. Willmon, Ms. Tsosie and Mr. Shirley, he testified that he could not say that the therapeutic outcome would have been different. Tr. 4/4/90 at 209-210 (Crocker); see also Tr. 12/14/89 at 74-75 (Attermeier). Inadequate documentation and the absence of baseline data make it impossible in many instances to determine whether residents of LLH & TS and FSH & TS have progressed, regressed or experienced no change. Tr. 11/16/89, Vol. I at 93, 96-97, Vol. II at 128-129 (Spencer); Tr. 12/12/89 at 139 (Beckman); Tr. 11/13/89 at 157 (Cox); Tr. 12/14/89 at 170-174 (Attermeier).
1275 *1275 H. Safety and Physical Harm
ICF/MR regulations require a facility to ensure that residents are not subjected to physical, verbal, sexual or psychological abuse. Pl.Exh. 15, Tag # 127. Plaintiffs' experts determined that there are no life threatening conditions or situations at either LLH & TS or FSH & TS. Tr. 4/4/90 at 168 (Crocker); Tr. 10/17/89 at 107 (Rowe); Def.Exh. F at 1-3. However, a record review shows that residents of both facilities have been victims of abuse and injury.
1. Abuse
The threat of abuse for the residents of LLH & TS and FSH & TS as compared to other segments of society is increased to the extent that there are a large number of people in those institutions with dependent needs. Tr. 4/20/90 at 53 (Reid). In 1986, four residents of Bashein Cottage at LLH & TS suffered abrasions and puncture wounds to the head. Another resident was sexually assaulted and died two days later. These acts of abuse and/ or neglect were unexplained and unaccounted for by the institution. Pl.Exh. 85. More recently, an employee of LLH & TS, who abused a resident by repeatedly kicking him, was merely suspended, although staff are frequently dismissed for excessive absenteeism. Pl.Exh. 328 at 187-191 (Brownstein).

2. Accident and Injury
It is not uncommon for persons with developmental disabilities, such as those at FSH & TS and LLH & TS, to sustain injuries. Many of the residents' injuries result from seizures which cause them to fall and injure themselves. Physical disabilities that diminish motor skills often cause residents to fall and stumble. In addition, in congregate care settings such as LLH & TS and FSH & TS residents with maladaptive behavior will injure other residents. Tr. 4/20/90 at 53-56 (Reid). Defendants' expert found 57 residents of FSH & TS with at least a moderately serious propensity for hurting others. Tr. 11/1/89 at 103 (Haywood).
The records show that residents of LLH & TS and FSH & TS have sustained injuries. On October 5, 1985, plaintiffs Clinton Heath and Walter Stephen Jackson ingested oven cleaner from a juice cup and each suffered severe burns of his esophagus. Tr. 4/4/90 at 117 (Crocker); Pl.Exh. 179. The medical records for Clinton Heath document approximately one half-dozen lacerations per year between 1984 and 1987. Tr. 4/4/90 at 116 (Crocker). The medical records also indicate that plaintiff Walter Stephen Jackson's left arm was fractured in 1976 and again in 1980, the last fracture requiring internal fixation with a plate. Tr. 4/4/90 at 120-122; Pl. Exh. 182.
More recently, at LLH & TS plaintiffs' expert found that thirty injuries 0907 many from human bites 0907 were reported for a single resident "R" between 12/4/88 and 2/27/90. Forty injuries were reported for resident John from 7/10/89 to 2/2/90. Sixty-five accidents were reported for resident George for the period of 2/16/89 to 2/10/90. Tr. 4/2/90 at 253-254 (Franczak). See also Tr. 4/16/90 at 132 (Sullivan); Pl. Exh. 332.[23] Over the three month period from September to November 1989, George's behavioral episodes escalated and included hitting, kicking, slapping, property destruction, noncompliance and inappropriate sexual behavior. In December 1989, George committed two rapes. The administrator of LLH & TS testified that George's behavior demonstrated a need for additional intervention. In January 1990, a staff person was assigned to George on a one-to-one basis. Tr. 4/27/90 at 144-145 (LaCourt).
At FSH & TS, 47 incident reports were filed relating to 20 individuals who lived in Socorro Cottage between July and December 1989. Of those incident reports, 33 were filed between October 9 and November 1, 1989. One 1276 resident inflicted 747 batteries in a six month period. Tr. 4/2/90 *1276 at 254 (Franczak). The medical staff at FSH & TS treats residents for lacerations, human bites, bruises, wounds requiring sutures, and broken bones. In 1989, Patricia L. had the following visits to the infirmary: two for self-abusive behavior; nine for human bites; three for battery by others; two for mashed fingers; and one admission overnight because another resident had sprayed deodorant in her eyes. Pl.Exh. 332.
Plaintiffs presented no evidence that the rate of injury at either LLH & TS or FSH & TS is excessive for the population they serve or that the residents experience a higher rate of injuries and accidents than do persons who reside at other facilities or in non-institutional environments. Tr. 4/3/90 at 245-247 (Franczak); Tr. 4/4/90 at 205-206 (Crocker). The question, however, is not whether other facilities or noninstitutional environments would be safer, but whether the state facilities in this case have unsafe conditions. Plaintiffs' expert testified that there are a number of injuries occurring repeatedly with no attempt by the IDTs to make any changes in the plans to prevent further injuries. Descriptions of the causes of injuries are confusing. Most were described as being "witnessed by staff" but of "unknown cause." Generally, descriptions of the incidents were vague, not identifying the individuals involved or the places the incidents occurred. Even when specific information is available there is no attempted pattern analysis. Tr. 4/2/90 at 255-256 (Franzcak).
For at least the last three years, the Director of Nursing at LLH & TS collected the information and looked for trends or unusual constellations of injuries associated with a particular time, place or resident. Tr. 4/23/90 at 60-62 (Brown); Tr. 4/27/90 at 138 (LaCourt). This was a hand-generated system in which the Director of Nursing entered the information on a graph which was kept on a legal-size piece of paper. Tr. 4/27/90 at 138 (LaCourt). A computerized system of pattern analysis was not instituted at LLH & TS until April 1990. Tr. 4/27/90 at 137-139 (LaCourt).

3. Reports
The ICF/MR standards require facilities to ensure that all allegations of mistreatment, neglect, abuse and injuries of unknown sources are reported immediately to the administrator and are thoroughly investigated; and that investigation results are reported to the proper authorities within five working days of the incident. Pl.Exh. 15, Tag ## 153, 154, 156.
LLH & TS has established policies and procedures for documenting all injuries suffered by residents. Tr. 4/23/90 at 60-61 (Brown); Def.Exh. BZ. Direct care staff investigate the circumstances of an injury. All injuries are then reported to the nurse assigned to the cottage in which the resident lives and also to the resident's physician. Tr. 4/23/90 at 60-62 (Brown).
The staff at FSH & TS complete incident/accident reports and abuse, neglect and mistreatment reports and maintain behavioral summaries of all behavioral incidents. Tr. 4/24/90 at 102-103 (Miller); Tr. 4/20/90 at 69-70 (Reid); Def.Exh. BU, EO, EP. In addition, all allegations or suspected incidents of abuse or neglect at FSH & TS are reported to the New Mexico Human Rights Service Department. Pl.Exh. 327 at 97-98.[24]
I. Direct Care Staff
The ICF/MR standards require that each staff member be trained in, and able to demonstrate the competencies, skills and techniques necessary to implement the IPPs of the residents for whom that member is responsible. 1277 Pl.Exh. 15, Tag *1277 # 189-194. The evidence presented showed that there is not enough direct care personnel, that staff supervision is inadequate, and that existing staff members lack sufficient training.
The experts agreed that the staff members at LLH & TS and FSH & TS are caring, dedicated and sincere in their efforts to provide the best care possible under the circumstances that exist at the institutions. Tr. 4/4/90 at 168 (Crocker); Tr. 10/17/89 at 135, 137 (Rowe); Tr. 4/3/90 at 235 (Franczak); Tr. 4/17/90 at 166-167 (Romero). However, even the most well-meaning care providers cannot be expected to perform adequately when they are insufficient in number, poorly trained and supervised, and unfamiliar with the plans developed for the residents.
1. Insufficient Staff and Inadequate Supervision
The HCFA surveyors found there were insufficient numbers of direct care staff and inadequate staff supervision of FSH & TS and LLH & TS residents.
Defendants' expert, Dr. Haywood, recommended the addition of direct care staff at FSH & TS. Tr. 10/31/89 at 164 (Haywood). The surveyors have found numerous deficiencies in facility staffing at FSH & TS, although the HCFA surveyors have never recommended FSH & TS for decertification. Pl.Exh. 14, 93, 94. Most recently, the surveyors found the number of staff too few to provide the assistance and training that the residents require, particularly residents who are severely and profoundly retarded. Also, the staff was too small to manage and supervise residents in accordance with their IPPs; to afford the residents choices during their recreation; to provide supervision, individualized assistance and personal care training in privacy; or to implement successfully the program plans in the living units for the severely and profoundly retarded residents. Def. Exh. EE at 3-5, 18; see also Pl.Exh. 14 at 8, 10; Tr. 10/17/89 at 71 (Rowe); Def.Exh. EEE at 6.
FSH & TS has added sixteen direct care staff positions and was authorized to add four more. Tr. 10/31/89 at 164-165 (Haywood). In addition, the defendants' plan of correction indicates that the residential service director will hire ten additional staff and that the administrator of the facility will present to the Health and Environment Department a request for additional staff to be hired in phases. Def.Exh. EE at 4.
Surveys of LLH & TS in February, May and June 1989 found the facility ineligible for certification as an ICF/MR in part because of insufficient staffing. Def.Exh. F at 3; Pl.Exh. 5. Specifically, the surveyors found that staff in the cottages and in adult services did not adequately provide supervision, assistance and training to the residents.

The surveyors observed residents seat-belted to toilets because only one staff member was available to assist six residents. Some residents urinated and defecated in their pants while waiting their turn. At the gym the surveyors observed two female staff members sitting at a table talking to each other for ten minutes while five other staff members attended to thirty-six residents in various activities. In adult services, surveyors saw residents self-stimulating, running around the room, screaming and hitting each other, when there were ten residents but only two staff members present. Pl.Exh. 5 at 5, 11, 27. By the time of trial, LLH & TS had added eighty-eight positions for direct care staff and sixty-one additional support personnel since the HCFA surveys found deficiencies. Tr. 10/30/89 at 51-52, 213 (Nunn).
2. Staff Training
a. Preservice Training
A significant number of direct care staff presently employed at LLH & TS and FSH & TS received only two days of preservice training. Tr. 10/30/89 at 83 (Nunn); Tr. 10/16/89 at 179-180 (Rowe); Tr. 4/4/90 at 275-276 1278 (Beauregard).[25] As of April 1989, *1278 newly hired direct care staff personnel LLH & TS received two weeks of employee orientation. Tr. 4/4/90 at 274-275 (Beauregard). However, in mid-1989 employee orientation was reduced from two weeks to two days to accommodate the increase in new hires. Id. at 276. Over two hundred employees received the two day training session between May 1989 and January 1990. Id. at 282.
The staff development director at LLH & TS testified that in the course of the two-day orientation, new employees underwent training in behavior management techniques, restraint practices, data collection procedures, active treatment, the individual program plan process, physical management and positioning of residents, handling residents with seizure disorders, feeding residents who need assistance, infection control, fire safety, and incident reporting. They also received an introduction to developmental disabilities. In addition they received information concerning employee insurance benefits, parking at the facility, personnel rules and institutional policies and procedures. Tr. 4/4/90 at 276-278 (Beauregard). Direct care staff are not provided instruction in first aid, CPR, or mandt training.[26] Tr. 4/4/90 at 278-279 (Beauregard). Plaintiffs' expert, Dr. Rowe, testified that the two-day training is inadequate, particularly for individuals without prior training or experience in developing services for and providing services to people who are developmentally disabled. Tr. 10/16/89 at 180 (Rowe).
At the conclusion of the two-day training session, the employees were tested. If an employee did poorly in a particular area, that person would receive additional training in that area, after beginning work. Tr. 4/4/90 at 281-282 (Beauregard). The staff development director could not recall any instance where an individual who had received the two days of training did so poorly on the test that LLH & TS refused employment. Tr. 4/4/90 at 282 (Beauregard).
b. In-Service Training
Staff at LLH & TS and FSH & TS receive ongoing training. Tr. 10/30/89 at 60-63 (Nunn); Def.Exh. K; Pl.Exh. 310 at 38; Tr. 4/19/90 at 243 (Reid). Defendants testified that the professional staff at LLH & TS train the direct care staff on implementation of the program plans. Tr. 10/30/89 at 52, 77, 85 (Nunn). However, direct care staff are not adequately trained to implement the residents' individual program plans.
Staff are assigned to work with residents who have complex needs prior to receiving training in the residents' programs. Plaintiffs presented the testimony of a direct care staff member at LLH & TS who had been employed at the facility for a year and a half. She was transferred from Chavez East to Cottage 2, where she had been working for eleven days at the time she testified. The residents of Cottage 2 were a new group of residents. Tr. 4/13/90 at 214 (Gutierrez). The staff member testified that she participated in the feeding of the residents of Cottage 2 and that some of the residents experienced difficulty swallowing and keeping down food. She said, however, that she was waiting for a supervisor to begin her in-service training on feeding the residents of that cottage. Tr. 4/13/90 at 216-217 (Gutierrez).

Direct care staff at LLH & TS are not familiar with the residents' IPPs. In February 1989, after observing various activities throughout the facility, the surveyors found that the staff could not identify the objective for a particular activity as it related to each individual's IPP. Pl.Exh. 14 at 14. The surveyors interviewed two staff members who were responsible for sixteen residents. When the staff members were asked about the residents' IPPs, a staff member responded "Don't ask me, I don't know." One staff member indicated that she had been employed for 1279 two weeks; the other staff member had been employed for approximately two months. Pl.Exh. 5 at *1279 21, ¶ C. The surveyors also observed staff placing a resident on a papoose board. That resident's behavior modification program required staff to ignore the resident's tantrums, but the staff was unaware that this was part of the program. Pl.Exh. 5 at 20, ¶ A. In another instance, a resident's physician instructed that the resident wear a cap due to the side effects of a medication. This instruction was not followed. Pl.Exh. 5 at 20, ¶ B. See also Tr. 4/13/90 at 196 (Baca).
The Adult Service Program Specialist at LLH & TS testified that she routinely teaches sign language classes at the training school in a formal manner. Tr. 11/2/89 at 20 (Donovan). However, in June 1989, the surveyors observed two residents in adult services who had a verbal and signing program that had not been implemented because the staff did not know sign language and was not familiar with this IPP objective. In another instance, staff members stated that they were not familiar with the residents' IPP objectives and methods. Def.Exh. F at 15, 17. A resident was observed merely sitting in a chair for fifteen minutes in front of a wooden stand from which bells were hanging on three different colored strings. The resident's IPP stated that in this exercise she was to choose an item presented to her within five seconds. Not only was this not occurring, when asked what the resident was supposed to be doing, the staff gave a nonsensical explanation that the resident was working on expressive language. Def.Exh. F at 31 ¶ 8; See also Def.Exh. F at 31 ¶ 10, 32 ¶ 12.
In November 1989, the surveyors observed a resident who had turned away from leisure time activity and was chewing on the back of her chair. A staff member was asked what objective was being worked on for this resident and the staff member responded "I don't know." The staff member continued to work with other residents without redirecting the resident. Def.Exh. EEE at 8.
In March 1990, the surveyors found that the deficiencies in staff training continued. They observed a resident, in a group of six residents and two staff members, who had removed the shoelace from one of his shoes and was repeatedly putting the shoelace entirely into his mouth, chewing on it, removing it and chewing it again. Staff did not redirect the resident from this behavior, nor did they appear even to notice the resident's behavior. Def.Exh. FFF at 7. See also Def.Exh. EEE at 8-9.
Direct care providers at LLH & TS testified regarding their training and interaction with residents. One staff member testified that she had been trained on a resident's behavior modification program by the psychologist technician. She was not aware, however, that the resident's IPP asked that environmental conditions be assessed to determine if they contributed to the resident's inappropriate behavior. Tr. 4/16/90 at 145-146 (Thompson); Pl.Exh. 299, IPP 3/14/90 at 27. See also Tr. 4/16/90 at 152 (Thompson).
J. Professional Staff
A foundation of competent professional knowledge is necessary to provide adequate habilitation. ICF/MR standards require that each resident receive the professional program services needed to implement the active treatment program defined by the resident's IPP. Pl.Exh. 15, Tag # 164, Guidelines. A facility must have available enough qualified professional staff to carry out and monitor the various professional interventions in accordance with the stated goals and objectives of every IPP. Pl.Exh. 15, Tag # 167.
1. Insufficient Staff
Since May 1988, FSH & TS has added two master level psychologists and has begun the recruiting process for an additional Ph.D. psychologist. Tr. 10/31/89 at 163-164 (Haywood). FSH & TS also employs a full-time chief

psychologist, Dr. Ortega. Pl.Exh. 315 at 2. Defendants' expert, Dr. Reid, concluded the number of psychologists on staff at FSH & TS is appropriate to provide professionally adequate services. Tr. 4/20/90 at 151 (Reid).
1280 However, at LLH & TS there were a number of professional staff vacancies at *1280 the time of trial. In 1988, defendants' expert, Dr. Haywood, recommended that LLH & TS add a clinical psychologist as chief psychologist to supervise and train the existing staff in assessment and treatment strategies. Def.Exh. P at 16. The chief psychologist position was also required by the Settlement Agreement with the Department of Justice. The position, however, is still vacant. The administrator of the facility is serving as chief psychologist until the position is filled. There are a number of additional vacancies in psychological services. In April 1990, 3 out of the 10 psychology positions at LLH & TS remained vacant. Tr. 10/30/89 at 54, 213 (Nunn); Tr. 4/27/90 at 21, 37 (LaCourt).
In addition, defendant's expert, Dr. Haywood, found that LLH & TS did not have a "psychologist capable of the most up-to-date and sophisticated psychoeducational and behavioral pediatric assessments" and that there were "no psychologists who [were] competent in psychological treatment modes beyond behaviorism such as cognitive and/or psychodynamic approaches to treatment of the psychological problems of retarded persons." Tr. 10/31/89 at 187-188 (Haywood); Def.Exh. P at 16.
2. Professional Staff Training
ICF/MR standards require that professional staff work directly with residents and with paraprofessional, nonprofessional and other professional staff who work with residents. Pl.Exh. 15, Tag # 165, 166. The surveyors found that the professional staff at LLH & TS fail to work with paraprofessional and nonprofessional staff to implement each resident's active treatment program. Def.Exh. F at 15, 17. See also Pl.Exh. 318 at 44 (Chavez).
As part of the plan of correction, LLH & TS requires that psychologists, social workers and speech pathologists provide direct services to residents and direct care staff in the living units and program areas for fifty percent of their work time. Professional staff are also required to provide on-site training and demonstration for direct service workers in the implementation of the programs and the collection of data. Def.Exh. F at 15, 17; Tr. 10/30/89 at 52, 205 (Nunn).
3. Rehabilitation Services
A person with a severe developmental disability, who does not have the opportunity to move, may become worse without intervention. Tr. 12/14/89 at 135-136 (Attermeier). The inability to move normally associated with developmental disability can cause risks to health and development, including osteoporosis, contractures, kidney stones, digestive difficulties, circulatory problems, respiratory problems and lack of normal function, growth, and sensory development. Tr. 12/14/89 at 131-136 (Attermeier); Tr. 11/3/89 at 13 (Cox); Tr. 12/15/89 at 55 (Witemeyer). The influence of gravity on an immobile body can also cause deformities. Tr. 11/3/89 at 17 (Cox); Tr. 12/14/89 at 142 (Attermeier). Developmentally disabled persons need physical therapy and the need is even greater for persons who are severely retarded. Tr. 4/4/90 at 222-223 (Crocker); Pl.Exh. 319 at 33; Tr. 11/3/89 at 20 (Cox).
For almost three of the last six years, no physical therapists were employed at LLH & TS. In November and December 1988, LLH & TS provided only 39 hours of physical therapy time under contract. No physical therapy treatment was being conducted. The 39 hours were spent performing evaluations and paperwork. Tr. 12/15/89 at 55-56 (Witemeyer); Tr. 11/13/89 at 42 (Cox). In addition, LLH & TS had no physical therapy aides. Tr. 11/13/89 at 17 (Cox).
In September 1989, only seven residents of LLH & TS were receiving direct physical therapy treatment. Direct care staff were providing indirect therapy services such as positioning and ambulation programs. Tr. 12/14/89 at 15-16 (Attermeier). The therapists were spending most of their time performing evaluations, doing in-services for the staff and working on wheelchair adaptations. Tr. 12/14/89 at 149-151 (Attermeier); Tr. 11/13/89 at 118-121

1281 (Cox); Tr. 12/12/89 at 212 (Brownstein). In August 1989, there were two occupational therapists *1281 at LLH & TS. Tr. 11/16/89, Vol. II at 105-106.
There are currently over five full-time equivalent ("FTE") physical therapists[27] and five full-time equivalent occupational therapists. Tr. 12/12/89 at 213 (Brownstein); Tr. 11/13/89 at 116 (Cox); Pl.Exh. 313 at 7; Tr. 12/13/89 at 144 (Hacker). LLH & TS has been authorized to employ five OT/PT aides, three of whom have been hired. Tr. 12/12/89 at 214 (Brownstein). Maintenance of wheelchairs is performed by the adaptive equipment specialist, a full-time staff position at LLH & TS. Pl.Exh. 316 at 33.
LLH & TS now assigns every resident of the facility a physical therapist and an occupational therapist. Each cottage has a physical therapist or an occupational therapist assigned to it as the primary therapist. If the cottage has a physical therapist as the primary therapist, the occupational therapist serves as the secondary therapist, and vice versa, but the physical therapist still addresses the physical therapy needs for each resident and the occupational therapist addresses the occupational therapy needs. Tr. 12/12/89 at 209 (Brownstein); Tr. 12/13/89 at 144-45 (Hacker); Pl.Exh. 313 at 7-8.
Since May 1989, LLH & TS has required that all occupational and physical therapists spend at least fifty percent of their time working directly with the residents or training staff to perform indirect rehabilitation services. The therapists at LLH & TS are also required to perform assessments, to make recommendations for rehabilitation services to every resident's IDT, and to develop a written plan to address those recommendations. The therapists are then required to train staff on the written training plan. Tr. 12/12/89 at 209-210 (Brownstein); Pl.Exh. 313 at 8. In addition, therapists monitor the rehabilitation programs by observing at least monthly the staff responsible for carrying out the plan. Pl.Exh. 313 at 8-9, 22.
LLH & TS provides ambulation programs and positioning programs for those residents who need them. As a general rule, residents including those positioned in foam inserts, are repositioned at least once every two hours. Tr. 12/15/89 at 9, 14 (Witemeyer); Pl.Exh. 313 at 10; Pl.Exh. 319 at 30-31; Pl.Exh. 316 at 91-93. When a physician writes an order for 24-hour positioning, the rehabilitation staff will provide in-service training to the direct care staff on the program plan. Pl.Exh. 313 at 9. Direct care staff are also trained to recognize skin breakdown in residents resulting from improper positioning. Pl.Exh. 308 at 80-81.
LLH & TS also operates an orthopedic clinic and a wheelchair clinic. Tr. 12/12/89 at 216 (Brownstein); Tr. 11/13/89 at 157-158 (Cox). The orthopedic consultant at LLH & TS regularly prescribes physical therapy services to selected residents of LLH & TS, including range of motion, seating devices, orthotics, ambulation, and gait training. Tr. 12/15/89 at 108 (Sherman). The rehabilitation staff consults with the orthopedic surgeon on an asneeded basis concerning the use of foam inserts for the wheelchairs. Pl.Exh. 316 at 91.
In addition to the rehabilitation department, LLH & TS has various other means of addressing gross motor needs of the residents. Many residents have an adaptive physical education program which includes aquatics and whirlpool; the recreation and education departments offer gross motor activities such as swimming and dancing. Tr. 12/15/89 at 9 (Witemeyer).
FSH & TS currently employs one physical therapist and was in the process of hiring a therapy aide in July 1989. Pl.Exh. 314 at 8. The physical therapist has been trained in the physical therapy needs of the developmentally disabled and has experience working with the developmentally disabled outside FSH & TS. Pl.Exh. 314 at 5-6. She also conducts in-service training for the staff. Pl.Exh. 314 at 10.
1282 *1282 In August 1989, FSH & TS had one part-time occupational therapist on staff. Def.Exh. QQ. The occupational therapist was working only 16 hours a week. Tr. 12/13/89 at 155 (Hacker). There were no occupational therapy aides. Pl.Exh. 317 at 15.
a. Physical Therapy ("PT")

i. Staffing
Plaintiffs' experts presented conflicting testimony on the number of physical therapists needed to adequately serve the residents at LLH & TS. Plaintiffs' expert, Eileen Cox, expressed her opinion that the number of FTE physical therapists is inadequate to serve the population. She testified that the professionally accepted ratio of physical therapists to nonambulatory persons is 1 to 24. Applying this ratio to the population of approximately 250 wheelchair users at LLH & TS would indicate that at least ten physical therapists are required. She also opined that at present physical therapy caseloads are unacceptably large. Tr. 11/13/89 at 115-117, 155 (Cox). Plaintiffs' expert, also testified that a ratio of one physical therapist to two physical therapy aides is appropriate for the severely disabled, and she believed approximately sixteen physical therapy aides are needed for the LLH & TS residents who use wheelchairs. Tr. 11/13/89 at 117-118 (Cox).
Plaintiffs' expert, Allen Crocker, testified that in order to provide adequate physical therapy services at the institutions, there should be a ratio of one to one-and-a-half physical therapists per one hundred individuals. Based on a population of 350 individuals, this suggests that LLH & TS should have a staff of at least five or six physical therapists. Dr. Crocker thought that additional support staff such as adaptive physical education and physical therapy aides are also needed. Tr. 4/4/90 at 179 (Crocker).
Defendants' experts found that the number of rehabilitation professionals at LLH & TS, including OTs, PTs and OT/PT aides is adequate to provide professionally acceptable services. Tr. 12/13/89 at 149 (Hacker); Tr. 12/14/89 at 38-39 (Attermeier).
ii. Adequacy of Physical Therapy Services
Plaintiffs' and defendants' experts also presented conflicting testimony concerning the adequacy of physical therapy services at the institutions. Plaintiffs' physical therapy expert, Eileen Cox, testified that the physical therapy services at LLH & TS are inadequate. She found, among other things, that there is little individualized positioning equipment available for residents of LLH & TS, that residents are not appropriately positioned in wheelchairs, and that foam inserts hold residents in deformed positions. Tr. 11/13/89 at 44-49, 81-82, 129, 138-139 (Cox).
She also testified that persons with physical disabilities will regress without active intervention to help them use the skills they have and that everyone, regardless of the level of disability, can make progress. Tr. 11/13/89 at 20, 28-29 (Cox). She stated, for example, that wheelchair inserts and other therapeutic equipment should be used to correct spinal deformities. Tr. 11/13/89 at 22-23 (Cox). However, plaintiffs' experts recognized that there are some conditions which are progressive and will result in a loss of function which is not necessarily attributable to a deficiency in the care the resident receives. Tr. 11/14/89 at 81-82 (Cox); Tr. 1/5/90 at 163 (Klein).
Defendants' expert, Dr. Attermeier, determined that the physical therapy services provided at LLH & TS conform to professionally acceptable standards and are adequate to prevent regression or deterioration insofar as it is possible to do so. Tr. 12/14/89 at 20-22 (Attermeier). She believed that the supply of positioning equipment at LLH & TS, including sidelyers, wedges, walkers, crutches, foam inserts and wheelchairs is adequate. Tr. 12/14/89 at 48-49 (Attermeier). She testified that she did not see anyone who she thought was "really poorly positioned" in a wheelchair. Tr. 12/14/89 at 50 (Attermeier).
1283 Defendants' experts further testified that physical deformities, such as a fixed *1283 scoliosis, are not amenable to correction by physical therapy and that the use of adaptive equipment to correct deformities is not only ineffectual but could be potentially dangerous. Tr. 12/15/89 at 11-12 (Witemeyer); Tr. 12/15/89 at 113 (Sherman).
With respect to FSH & TS, plaintiffs' physical therapy expert testified that she did not see enough of the facility to form a general opinion about the quality of physical therapy services at FSH & TS. Tr. 11/14/89 at 53 (Cox). However, she found that Alfred Shirley, Joe Gonzales and James Fritche are not receiving enough physical therapy to meet the objectives set forth in their IPPs. Pl.Exh. 96 at 12-13, 14, 15.

Defendants' expert concluded that the physical therapy services at FSH & TS are adequate and appropriate. FSH & TS does not have many residents with very serious neuro-medical problems. Tr. 12/14/89 at 121-123 (Attermeier). Alfred Shirley, Joe Gonzales and James Fritche have been evaluated by a physical therapist and they receive direct physical therapy services recommended by that therapist. Pl.Exh. 314 at 19, 24-28, 30-31, 37-38, 40-41.
b. Occupational Therapy ("OT")
Occupational therapy encompasses a therapeutic approach to improving function or skill through activity. Occupational therapists assist people with disabilities to master the functional activities of everyday living and to meet the demands of their environment. The three major role areas that concern occupational therapists are work or school, recreation and leisure, and self-care. Tr. 11/16/89, Vol. I at 55-56; Tr. 12/13/89 at 106-107 (Hacker).
For the developmentally disabled population, there is considerable overlap between the rehabilitation services provided by the occupational therapists and the physical therapists, Tr. 12/14/89 at 30-31 (Attermeier); Tr. 11/16/89, Vol. I at 55-56, Vol. II at 61-62 (Spencer). This is particularly so at LLH & TS where many of the residents are nonambulatory and have significant physical impairments. Defendants' experts felt that the overlap of occupational and physical therapy services at LLH & TS is appropriate. Tr. 12/14/89 at 31 (Attermeier); Tr. 12/13/89 155-156 (Hacker).
Plaintiffs' expert, Karen Spencer, concluded that the occupational therapists at LLH & TS were competent. Tr. 11/16/89, Vol. II at 105 (Spencer). The occupational therapists have educational backgrounds and experience in the delivery of occupational therapy services to the developmentally disabled. Pl.Exh. 319 at 3-4. The occupational therapists perform evaluations, implement IPPs, fill wheelchair prescriptions and adaptations, and give in-service training to staff. Pl.Exh. 309 at 14-15.
Defendants' expert, Bonnie Hacker, testified that in 1988, LLH & TS was not providing minimally acceptable professional OT services to the residents. There were only two occupational therapists on staff. Tr. 12/13/89 at 250 (Hacker). The occupational therapists were not involved in helping residents with their daily living skills or providing vocational training. Tr. 12/13/89 at 251-252 (Hacker). They were not sufficiently involved in the feeding program or the augmentative communication field. Tr. 12/13/89 at 253 (Hacker).
Prior to August 1989, LLH & TS had begun to fill some of the staff needs by hiring contract staff. In August 1989, the therapists were spending most of their time completing comprehensive functional assessments for all of the residents, which defendants' expert found to be an appropriate use of their time and a way to lay a foundation for intervention. Tr. 12/13/89 at 248 (Hacker).
At the time of trial, defendants' expert testified that the OT services provided at LLH & TS were more than adequate. Tr. 12/13/89 at 251, 254 (Hacker). The comprehensive functional assessments met basic standards of adequacy. Tr. 12/13/89 at 203 (Hacker).
In the summer of 1989, defendants' expert found that the OT services at FSH & TS did not rise to acceptable 1284 levels. Tr. 12/13/89 at 246 (Hacker). The residents at FSH & TS were receiving training in selfhelp *1284 skills
and vocational training. Tr. 12/13/89 at 245-46 (Hacker). The occupational therapist was evaluating all residents, providing direct therapy services, training staff, and monitoring all programs. Pl.Exh. 17 at 15, 25-26. She also worked with residents on feeding programs and ordered adaptive equipment as appropriate. Pl.Exh. 317 at 23-25; Pl.Exh. 320 at 60, 64, 65, 75-76.
However, defendants' expert concluded that the range of OT services at FSH & TS was limited and she made several recommendations for improvement. Tr. 12/13/89 at 246 (Hacker).
First, defendants' OT expert recommended that the occupational therapy staff be increased to at least one fulltime occupational therapist and one full-time certified occupational therapy assistant to enhance and expand the services of the occupational therapist. Tr. 12/13/89 at 155-156 (Hacker). HED has authorized one full-time

occupational therapist and one fulltime certified occupational therapist assistant for FSH & TS. At the time of trial, FSH & TS had begun the recruiting process to fill these positions. Tr. 12/13/89 at 156-157 (Hacker); Def.Exh. QQ.
Second, defendants' expert expressed concerns about the vibration programs at FSH & TS and suggested that they be carefully reevaluated. The occupational therapist at FSH & TS began the vibration therapy program in June 1989. Pl.Exh. 317 at 18. Plaintiffs' expert believed the use of vibration therapy to be extremely unprofessional. Plaintiffs' expert testified that it appeared to be applied randomly and globally to the residents of FSH & TS. The persons who administered the therapy did not have the ability to evaluate it, or to monitor the residents' responses to it or to determine whether it was making any difference. Tr. 11/16/89, Vol. I at 60-61 (Spencer). Subsequently, the vibration therapy was canceled for all residents. In the future, if a resident is to receive vibration therapy, the therapy will be administered only after the resident has been reevaluated and will only be administered by an occupational therapist or certified occupational therapist assistant. Def.Exh. QQ; Tr. 12/13/89 at 156 (Hacker).
Third, defendants' expert recommended that the records more carefully reflect the reasons for selecting and instituting programs for certain residents, the manner by which residents had been evaluated and the purpose of the programs. This is now being done at FSH & TS. Tr. 12/13/89 at 156 (Hacker).
Finally, defendants' expert recommended that FSH & TS use interdisciplinary clinics, particularly in the areas of feeding and oral motor skills, and augmentative communication. These are existing needs that should be addressed. Tr. 12/13/89 at 157 (Hacker).
These recommendations have been accepted by FSH & TS. Tr. 12/13/89 at 247 (Hacker). Defendants' expert testified that the program that should develop as a result of her recommendations would be adequate. Tr. 12/13/89 at 158 (Hacker).
c. Assessments
During the summer of 1989, the rehabilitation professionals at LLH & TS assessed the OT and PT needs of every resident with the Comprehensive Functional Assessment. Tr. 4/27/90 at 163 (LaCourt); Def.Exh. G; Tr. 12/14/89 at 13 (Attermeier). Prior to the summer of 1989, comprehensive functional assessments had not been performed. Tr. 12/13/89 at 248 (Hacker). The relevant portions of the CFA were subsequently revised in the fall of 1989 and have been in place since January 1990. Tr. 12/12/90 at 210-212 (Brownstein).
All residents will have been reevaluated with the new rehabilitation assessment instrument by June 30, 1990. Tr. 4/27/90 at 164-165 (LaCourt); Tr. 12/12/89 at 210-212 (Brownstein); Tr. 12/14/89 at 150-151 (Attermeier); Tr. 12/13/89 at 200 (Hacker); Def.Exh. NN. The assessments have been scheduled to allow the therapy staff to conform to the requirement that they spend fifty percent of their time either directly performing services or training staff to perform those services. Tr. 12/12/89 at 212-213 (Brownstein).
1285 *1285 Defendants' PT expert, Dr. Attermeier, thought the original rehabilitation section of the CFA was "ridiculous and not helpful." Def.Exh. UU at 2; Tr. 12/14/89 at 25 (Attermeier). However, she felt that the CFA, as subsequently revised, was professionally adequate to monitor either the progress or deterioration in residents at LLH & TS and to evaluate generally the PT needs of LLH & TS residents. Tr. 12/14/89 at 26 (Attermeier); Def.Exh. NN.
4. Speech and Language Services ("SPL")
Communication services are an important component of active treatment. There are currently eight full-time equivalent speech and language therapists at LLH & TS. Tr. 12/12/89 at 223 (Brownstein).[28] The duties of the speech and language therapists are similar to those of the physical and occupational therapists. SPL therapists are required to spend at least fifty-percent of their time working directly with the residents or training staff to perform rehabilitation services. They are required to complete assessments, participate in the IDT process,

complete IPP objectives, and train staff on any written training plans they formulate. Tr. 12/12/89 at 216 (Brownstein).
LLH & TS operates a dysphagia clinic and feeding programs that consult a dietician, SPL, direct care staff, physicians and dentist. Tr. 12/15/89 at 75-76 (Witemeyer); Tr. 12/12/89 at 216 (Brownstein). Plaintiffs' experts decided that the dysphagia clinic was professionally appropriate. Tr. 12/12/89 at 135-136 (Beckman); Tr. 12/13/89 at 149 (Hacker).
Prior to December 1989, there was one full-time speech and language pathologist on staff at FSH & TS. FSH & TS subsequently hired an additional part-time speech and language pathologist. Def. Exh. QQ.[29] FSH & TS operates a feeding program for residents who have difficulty eating. Pl.Exh. 317 at 25-26.
While plaintiffs' expert was highly critical of past practices, neither plaintiffs nor intervenors presented evidence that the current speech and language services provided to the residents at either LLH & TS or FSH & TS are inadequate. Plaintiffs' expert visited LLH & TS in August 1989. She did not review the comprehensive functional assessments or current IPPs of any resident, with the exception of Andra Martinez. Tr. 12/12/89 at 180-183 (Beckman).
5. Adaptive Equipment
Adaptive equipment is an important area for occupational therapists, physical therapists and speech and language pathologists. Adaptive equipment can facilitate a developmentally disabled person's mobility, communication and self-care skills. Tr. 11/16/89, Vol. I at 106-107 (Spencer); Tr. 12/13/89 at 150 (Hacker). To utilize effectively adaptive equipment, a resident must be able to exercise some control over a body movement and to understand the effect of the movement. Tr. 11/2/89 at 158 (Donovan); Tr. 12/13/89 at 153-154 (Hacker).
Adaptive equipment such as electronic switches, communication aids, adaptive feeding equipment, including built up spoons and plates with raised edges, positioning equipment and equipment for mobility are available at LLH & TS. Tr. 11/2/89 at 158-159, 162-85 (Donovan); Tr. 11/16/89, Vol. II at 87 (Spencer); Tr. 4/19/90 at 223, 242-43 (Reid). Adaptive equipment is also available in the library to be checked out to residents. Different equipment can 1286 be sampled by residents before a determination is made as to what equipment is most useful and meets the *1286 needs of the particular resident. Tr. 12/13/89 at 151 (Hacker).
Plaintiffs' experts found that little adaptive equipment is in use at LLH & TS. Residents of LLH & TS are not provided with adequate individualized adaptations, such as head pointers, electric correlators, and feeding devices. Tr. 10/18/89 at 169-170 (Brown); Tr. 11/16/89, Vol. I at 108-111 (Spencer). Adaptive equipment, such as switching devices, that is used for training in the classroom are not available in the living units, where they could be used to control radios, doorways, locks or wheelchairs. Tr. 11/16/89, Vol. I at 110-112 (Spencer). Defendants' expert also found that LLH & TS needed a wider use and availability of adaptive devices. Tr. 4/20/90 at 126 (Reid).
In 1989, the HCFA surveyors observed that a resident was to use a communication board, but the board was not with him during outdoor activities. The surveyors also noted that a resident's records indicated that the resident would benefit from a language board; however, there was no language board available in the resident's cottage. In another instance the surveyors noted that a resident's IDT recommended that he be assessed for a communication board. There was no indication in the records that the assessment had been conducted and there was no communication board in the resident's cottage setting. Def.Exh. F at 29, ¶ 5; Pl.Exh. 5 at 24, ¶ E, G.
In addition, no resident at LLH & TS has an electric wheelchair. Pl.Exh. 316 at 106-107. An occupational therapist at LLH & TS testified that in her three years at LLH & TS she has never evaluated a resident for whom she thought an electric wheelchair was appropriate. It was unclear from her testimony whether she had never performed such evaluations or whether her evaluations indicated that an electric wheelchair was inappropriate for any of the residents she considered. She also testified, in a somewhat flippant manner, that wheelchairs "do not hold up well at all in an institutional setting. They require almost constant maintenance and are out of service almost as much as they are in service." Pl.Exh. 316 at 106-107.

K. Education
1. School-Age Programs
Every school-age resident, i.e. a resident under the age of twenty-two, at LLH & TS and FSH & TS is evaluated by an Educational Appraisal and Review Committee ("EAR"). That committee determines, much like an IDT does, what the educational needs are of an individual resident and whether, based on those needs, the individual should attend public school in the community or a special education program at the facility. Pl.Exh. 310 at 76-77; Tr. 4/27/90 at 196 (LaCourt); Tr. 4/19/90 at 224-226 (Reid).
There are five or six residents at FSH & TS who are of school age. They all attend the Capitan Municipal Public Schools for a full school day. Tr. 11/3/89 at 89 (Aldaz); Pl.Exh. 327 at 184 (Aldaz). This lawsuit was among the catalysts that led to fulltime public school education for the schoolage residents of FSH & TS. Pl.Exh. 327 at 185 (Aldaz).
LLH & TS currently has approximately 67 school-age residents. Tr. 4/27/90 at 195 (LaCourt); Tr. 11/2/90 at 114 (Donovan). Of these 67 residents, eight attend public school in the City of Los Lunas. Tr. 4/27/90 at 195 (LaCourt). The remaining fifty-nine attend the special education program at the facility. Tr. 4/27/90 at 161 (LaCourt). When asked whether many of these individuals could receive services at least as effective in the public school system, the administrator of LLH & TS testified that "[f]or many of [these] individuals ... there are equivalent services in the public schools." Tr. 4/27/90 at 161 (LaCourt).
a. Public Schools
There is coordination of services between the institutions and the public schools. For example, LLH & TS trains public school teachers in the IPPs of the LLH & TS residents attending the public schools and invites 1287 representatives of the public schools to participate in the IDT process. Staff at *1287 LLH & TS visit the public schools to monitor residents in their public school programs and public school teachers are invited to attend EAR committee meetings. Occasionally, psychologists and other professionals accompany residents to the public schools. Tr. 11/2/90 at 135-136 (Donovan); Tr. 10/30/89 at 48-49 (Nunn).
The administrator of FSH & TS attends all EAR committee meetings. FSH & TS also assigns a liaison to the Capitan public schools. The liaison attends EAR committee meetings and FSH & TS invites school representatives, including teachers and counselors, to attend the residents' IDT meetings. The Capitan schools receive copies of the residents' IPPs; and FSH & TS receives copies of the residents' Individual Education Plans which are drafted by the school. Tr. 11/3/89 at 89-90 (Aldaz); Pl. Exh. 310 at 75-76, 78-81.
b. Special Education Program at LLH & TS
LLH & TS has a special education program which is accredited by the New Mexico Department of Education. Accreditation requires that the special education unit of the Department of Education review LLH & TS' special education program to ensure compliance with both federal laws and state regulations governing appropriate education. Tr. 11/2/89 at 115 (Donovan).
FSH & TS has not had a special education program since 1986. During the summer months, when the Capitan public schools are not in session, school-age residents of FSH & TS receive habilitation services at the facility in accordance with their IPPs. Currently, at FSH & TS there are two teachers certified in special education and two teachers who are one course short of being certified in special education. Pl.Exh. 310 at 70-74.

2. Adult Services Programs
LLH & TS and FSH & TS both provide adult services programming. LLH & TS offers both a full-day of programs in the adult services area ("full-day program") and a program which is conducted half-time in the adult services area and half-time in living units or other areas throughout the facility ("half-day program"). The decision of whether to place a resident in the full-day program or half-day program is made by the adult service program staff and members of the IDT. Often a formal recommendation will be made by the team. The adult services program at LLH & TS currently serves approximately 280 adults. Approximately 104 residents are in the full-day program. Tr. 11/2/89 at 41-43, 47-48, 214 (Donovan).
The Work Activity Center ("WAC") is part of the LLH & TS adult services program. It is certified by the Department of Labor on an annual basis. To receive certification, LLH & TS is required to demonstrate that it follows all federal rules and regulations regarding employment for persons with handicaps, complies with the Fair Labor Standards Act, and pays residents a fair and commensurate wage rate. Tr. 11/2/89 at 49-50 (Donovan). The WAC offers a variety of employment activities including refinishing furniture, janitorial work, constructing pizza boxes for Pizza Hut, paper and can recycling, paper shredding, arts and crafts work, and assembling mud mats. Tr. 11/2/89 at 50-51, 54 (Donovan). Approximately 55 to 60 residents in the adult services program at LLH & TS participate in the WAC. Id. at 49.
At the time of trial, LLH & TS had a newly designated position for a full-time employee whose primary job is the development of employment opportunities both within the facility and in the community. In the past, the staff person responsible for obtaining off-campus employment for residents of LLH & TS devoted little time to this activity because she had many other job responsibilities. Tr. 11/2/89 at 245-246 (Donovan).
Prior to authorizing the new position, LLH & TS had never made a systematic attempt to develop employment opportunities for the residents. Tr. 4/27/90 at 194-195 (LaCourt). Of the approximately 280 residents in the Adult Services Program, only four worked within the campus community, in the barber shop, canteen, laundry, the dining areas, or in classrooms as developmental disabilities technicians. Tr. 11/2/89 at 51, 229 (Donovan); 1288 Pl.Exh. 311 *1288 at 39. Since April 1988, LLH & TS has only placed seven residents into work positions in the community. These job placements include Pizza Hut, a hardware store and a thrift shop. Tr. 11/2/89 at 64 (Donovan).
FSH & TS provides every resident with a day program in at least one of the following areas: activities of daily living, attention span, fine motor skills, and discrimination skills in Curry School and Lea School; independent living skills and socialization skills in the Transitional Program; greenhouse, gardening, and working with animals in the Farm Program; academic skills and computers in Otero School; attention span, pre-vocational skills, vocational skills, socialization skills and fine motor skills in ceramics and wood shop; and gross motor skills, endurance, and flexibility in physical education. Pl.Exh. 310 at 82-88.
No residents of FSH & TS have paying jobs at the facility. Four residents of FSH & TS have on-the-job training programs. Two individuals are working in the canteen, one works in the dietary program and one works in maintenance. Pl.Exh. 310 at 91. No residents of FSH & TS have jobs in the community. Pl.Exh. 320 at 89.
Lincoln House at FSH & TS is a transitional program for a small group of higher functioning men who live together in a house on the campus. It offers opportunities to develop independent living skills. The residents prepare meals and do household chores. FSH & TS has no plan for an equivalent transitional living program for females. Pl.Exh. 310 at 97-98. FSH & TS does offer a transitional day program with similar opportunities for developing independent living skills. Id. at 88.
3. Adequacy of the Facilities' Programs[30]

a. Functional and Chronologically Age Appropriate Programs
The experts agreed that the education and training programs at LLH & TS and FSH & TS have adequate staff ratios. Tr. 10/18/89 at 181-182 (Brown); Tr. 4/19/90 at 227 (Reid). Plaintiffs' and defendants' experts also agreed that it is especially difficult for developmentally disabled persons to learn how to do things from simulated activities. The more disabled an individual is, the more problems the individual has generalizing or transferring skills. Developmentally disabled persons learn best within the context of the actual activities themselves and not in a simulated way. They require concrete and tangible situations. Tr. 10/31/89 at 182 (Haywood); Tr. 10/18/89 at 106-108, 160-65 (Brown). Defendants' expert, Dr. Haywood, therefore recommended that more training take place in the settings in which the behavior being developed is normally appropriate. Aggregating residents in school rooms and adult activity rooms can provide one kind of training; however, this does not satisfy the need for training in relevant settings. Tr. 10/31/89 at 182 (Haywood).
Plaintiffs' expert, Dr. Brown, found that the education and training programs at FSH & TS do not adequately teach functional skills. Tr. 10/18/89 at 167-168 (Brown). Defendants' expert, Dennis Reid, agreed that the instructional strategies at FSH & TS needed to have a more functional approach. Tr. 4/20/90 at 127 (Reid). The curriculum of the education program at FSH & TS includes learning to open and close artificial zippers on a board; placing nuts on bolts and taking them off; working on form boards by inserting and removing figured shapes; sorting objects by shape, color, and size; lacing shoe laces on a board and buttoning buttons on a board. Tr. 10/18/89 at 104-105 (Brown); Pl.Exh. 320 at 23, 31 (Kearns). Residents also stack plastic bowls, sort them by color, put loops 1289 on pegs, sort toy silverware, and fold washcloths that are then immediately unfolded *1289 by the instructor. Tr. 11/16/89, Vol. I at 122-123 (Spencer).
An observer described a resident's program at FSH & TS as follows:
On both days of the observation she was stringing beads in the cottage both in the early morning when I came to see her and in the evening before dinner and then after dinner. That was the majority of the habilitation that I saw. I didn't see the implementation of the behavior plan because, I guess, because they didn't have the jumpsuit as the staff person indicated so even though she has a plan and the staff are aware of what to do, I did not observe that piece of habilitation.
I didn't observe anything to do with trimming her nails or washing her hands or any of those things, I, or shaving her legs, although I was there during the time that she was getting ready for bed and when she woke up in the morning, but I just saw her stringing beads, and I saw her do that independently for literally hours on end without any staff intervention that I saw by staff and it's documented in the record is once she completed a necklace, the staff person came over, undid it, emptied all the beads out and told her to start again.
Ogle Depos. at 63-64.
In 1989, defendants began the process of revising the curriculum in one of the schools at FSH & TS to incorporate more functional programming. Pl.Exh. 310 at 61-62, 85 (Kearns).
Similarly, Dr. Brown found that the education and training programs at LLH & TS do not adequately teach functional skills and are not chronologically age appropriate. Tr. 10/18/89 at 167-168 (Brown). Defendants' expert, Dennis Reid believed that LLH & TS needed improvement in the use of functional teaching activities. Tr. 4/20/90 at 125 (Reid). The curriculum of the education program at LLH & TS utilizes preschool materials such as pegboards, blocks, colored puzzles and simulated materials such as flashcards or audio tapes of a telephone ringing, doors opening and closing, and people playing the drums. Even in the cottages, residents use simulated training materials, such as silverware. Tr. 4/13/90 at 201-201 (Baca). Residents also use nuts and bolts and pegboards. Tr. 10/18/89 at 142-143, 145-147 (Brown); Tr. 4/13/90 at 191-194 (Baca). In 1989, the HCFA surveyors noted that one adult services program required residents with many behavioral problems to watch a movie for 90 minutes. Def.Exh. F at 31, ¶ 9.

When asked by the court to identify nonfunctional materials, the Adult Service Program Specialist at LLH & TS testified that one of the most nonfunctional training materials is a pegboard. She also identified simulated telephones, sorting boxes, form boards, zipper boards, and blocks as nonfunctional materials. Tr. 11/2/89 at 18, 107-108 (Donovan). In 1989, LLH & TS began working on substituting materials used in the education programs. Tr. 11/2/89 at 104 (Donovan). Nonfunctional equipment is no longer being ordered although this type of equipment had been ordered in the past. Tr. 11/2/89 at 106 (Donovan).
b. Coordination between Cottage and Education Programs
Defendants testified that cottage staff are made aware of the content of the adult services programs. Cottage staff assist teachers and technicians in carrying out the programs. Tr. 11/2/89 at 94 (Donovan). The professional staff person responsible for drafting a training program trains direct care providers on the program plan. In addition, there is ongoing in-service training for people in the residential living units. Tr. 11/2/89 at 95 (Donovan); Tr. 10/30/89 at 77 (Nunn).
Plaintiffs' expert determined that there is little communication and coordination between the educational programs and the cottages at both LLH & TS and FSH & TS. Tr. 10/18/89 at 114, 121-122, 141, 176 (Brown). For example, some of the residents were learning as part of their educational programs to set a table, but during meals in the cottages the staff provided the residents with utensils instead of allowing the residents to do this. Residents of the 1290 institutions who received training in activities *1290 of daily living such as tooth brushing, cannot practice those skills in the cottages because materials such as toothbrushes and toothpaste are not consistently available to the residents in their cottages. Tr. 10/18/89 at 110-112 (Brown); Pl.Exh. 14 at 3 ¶ A; Pl.Exh. 5 at 9 ¶ B. Residents who are taught to cook in the day program, are not encouraged to cook in their cottage settings. Pl.Exh. 5 at 32 ¶ A.
c. Space
Defendants' expert expressed concerns about the limited space for the education programs at FSH & TS and LLH & TS. Tr. 4/20/90 at 127-129 (Reid); Pl.Exh. 368. Plaintiffs' expert, Dottie Rowe, also testified that the physical space available for adult education and training activities at FSH & TS was overcrowded and inadequate for habilitation or active treatment. Tr. 10/17/89 at 12 (Rowe).
L. Choice, Privacy, Access to Personal Property
1. Choice
Defendants' experts testified that residents of LLH & TS and FSH & TS who are able to exercise choices, are permitted to choose their own clothing, their own bedtime provided their health is not jeopardized, leisure-time activities, food at the canteen provided it is consistent with their dietary requirements, roommates, and programmatic activities. Tr. 4/26/90 at 183-185 (Nunn); Tr. 4/24/90 at 100-101 (Miller); Tr. 11/2/89 at 54 (Donovan). In addition, the parent of a resident of Lincoln House, the transitional living house at FSH & TS, testified that her son's preferences are taken into consideration and that he has both freedom to choose and privacy. Tr. 4/17/90 at 141-142 (Hammond). Nonetheless, the HCFA surveyors found that the residents of Lincoln House did not have free access to money or the freedom to go shopping for items they wanted. Pl.Exh. 14 at 3. The surveyors also concluded that residents of LLH & TS are not encouraged to choose activities in the living units, to choose foods or to visit with residents in other cottages. Pl.Exh. 5 at 33.
2. Privacy
The staff at LLH & TS and FSH & TS have failed to safeguard the privacy of the residents. In February 1989, the HCFA surveyors observed LLH & TS residents while their clothes were being changed. Although screens had

been placed around the residents, the residents were in full view through openings under the screens. The screens did not effectively provide privacy. Throughout the survey, the surveyors also observed that staff did not knock on doors before entering a resident's room and staff were not teaching residents to respect the rights of other residents. Pl. Exh. 5 at 6. In May 1989, the surveyors observed staff toileting residents with the door propped open with a trash can. In another instance, residents were being bathed and privacy curtains were not being used although they were available. Pl. Exh. 5 at 7. At FSH & TS, the surveyors observed residents using the toilet facility when the door was left open and the residents could be seen. Pl.Exh. 14 at 1-2.
3. Access to Personal Property
The HCFA surveyors observed that the residents of FSH & TS did not have access to their personal hygiene items in the living units. Pl.Exh. 14 at 3 ¶ A. The facility's plan of correction provides that a resident's ability to maintain personal hygiene items such as toothbrushes, toothpaste, combs, razors and shampoo will be addressed in the resident's IPP. Id.
4. Respect
The HCFA surveyors have observed that the staff at LLH & TS fail to treat residents with dignity and respect. Rather, the interaction pattern between the staff and the residents is that of adults to children. Staff refer to residents as "child" or "baby." In one cottage, blue and pink paper teddy bears were used to mark adult clients' rooms. Pl.Exh. 5 at 33-34.
5. Access to the Community
1291 Residents of FSH & TS often leave the facility to go on picnics, shopping trips, and *1291 various field trips and to visit family and friends. Tr. 4/17/90 at 140 (Hammond); Pl.Exh. 310 at 99. FSH & TS also offers residents opportunities to participate in community activities such as the Special Olympics, the ski program, the farm program's community clean-up efforts, the Bureau of Land Management's contract to maintain picnic sites, the county fair, the state fair, football games, and picnics and campouts at local state parks. Pl.Exh. 327 at 46-47, 49-51.
Residents of LLH & TS go on planned community trips at least twice a month as part of the adult services department program. These trips are usually half-day outings and include such activities as going to restaurants, movies, grocery stores, and clothing stores. Tr. 11/2/89 at 58 (Donovan). Teachers are encouraged, as part of the program, to take one or two residents into the community. A community trip might entail going to church with staff members and their families, going out to dinner or on a shopping trip, going to a museum, or going hiking. Tr. 11/2/89 at 59 (Donovan).
M. Placements
The Community Services Team ("CST") is employed by HED. CST accepts applications from persons interested in services for developmentally disabled persons. CST consists of a social worker, a psychologist and a registered nurse. The team begins the review process by collecting any prior documentation pertaining to the resident, for example, medical and social work records. A member of the team then visits the resident to conduct a formal interview. On the basis of its evaluation, CST recommends that the resident pursue placement in one of a number of settings, including LLH & TS, FSH & TS and various community programs across the state. In some instances, CST may decide not to recommend a person for services. Tr. 4/23/90 at 64-66 (Brown); Tr. 4/4/90 at 286-88 (Beauregard).

1. LLH & TS
If CST concludes that LLH & TS may be an appropriate placement, it refers the case to the Screening Committee on Admissions and Releases ("SCAR"). SCAR consists of the medical director, the director of nursing, a psychologist and a social worker, and is chaired by the deputy administrator of the facility. Tr. 4/23/90 at 66-67 (Brown). The committee determines whether the person meets the definition of developmental disabilities in the New Mexico Developmental Disabilities Code and whether the facility is able to provide an appropriate program for that person. Tr. 4/23/90 at 68 (Brown). SCAR frequently declines to admit persons referred for admission to LLH & TS. Tr. 4/23/90 at 67-68 (Brown). Approximately three quarters of those who initially seek admission to LLH & TS are referred to another setting. Tr. 4/27/90 at 22 (LaCourt).
2. FSH & TS
The Clinic Committee is responsible for determining the appropriateness of the placement for referrals to FSH & TS. Tr. 4/24/90 at 96 (Miller). The committee consists of division and department heads in the clinical services area, including the director of education, the director of residential services, the medical director, the nursing director, the chief psychologist and a social worker. Tr. 4/24/90 at 92-93 (Miller); Pl.Exh. 315 at 80; Tr. 4/4/90 at 258, 260 (Beechie). The committee gathers information on the individual, including the individual's current educational program, medical status and social history, to determine whether the individual would be appropriate for placement at FSH & TS. In addition, a social worker, a psychologist and a nurse from FSH & TS or the CST conduct an on-site interview of the individual. The committee takes into account the individual's needs, the reason for the referral and whether the facility has the appropriate services to meet the individual's needs. Tr. 4/23/90 at 94-96 (Miller); Tr. 4/4/90 at 259 (Beechie).
If the committee concludes that admission to FSH & TS would not be appropriate, it refers the individual to the 1292 CST or provides counseling about other services in *1292 the community that might be appropriate for the
individual. Tr. 4/24/90 at 96-97 (Miller). In the last four years, 107 individuals who sought admission to FSH & TS were not admitted. Tr. 4/24/90 at 95-96 (Miller).
3. Commitment Process
All admissions to both LLH & TS and FSH & TS are processed in accordance with the New Mexico Mental Health/Developmental Disabilities Code Def.Exh. F at 35; Pl.Exh. 327 at 124. The code requires a judicial determination that placement would be in the resident's best interest. N.M.S.A. § 43-1-13(E). A few residents at FSH & TS are admitted through the criminal justice system. Pl.Exh. 327 at 60-61, 63-65.
N. Implementation of Recommendations for Community Placement
1. IDT Recommendations
The IDT makes the decision whether to seek a discharge for a resident of LLH & TS or FSH & TS. The IDT evaluates the appropriateness of discharging a resident to an alternative placement at least once a year. Tr. 4/24/90 at 97 (Miller); See also Pl.Exh. 16 at 16, Pl.Exh. 18 at 16, Pl.Exh. 19 at 18. In considering the appropriateness of a discharge, the IDT takes into account a number of factors, including the degree to which the client has progressed, adaptive and maladaptive behaviors and any medical conditions that may present a problem. Tr. 4/24/90 at 97-98 (Miller). The IDT has recommended many of the residents of LLH & TS and FSH & TS for appropriate placement and treatment in residential settings, including group homes. These recommendations, made in the exercise of professional judgment by state-employed professionals, including doctors, social workers, psychologists, and occupational therapists are incorporated into the treatment plans. The placement recommendations, however, have not in many instances been implemented and many named

plaintiffs and class members who have been recommended for community placement remain at the institutions. [31]
The IDT for plaintiff Steven Nunez recommended that he be placed in the community. In August 1988, the IDT stated that "[i]f a community placement facility becomes available, Steven has been recommended for placement." Pl.Exh. 19, IPP 9/20/88 at 17. Again in August 1989, his IDT stated that "Steven has been referred to the ARCA,[32] and the IDT agreed to continue that referral. The guardian is also looking into other placement possibilities, both in- and out-of-state." Pl.Exh. 19, IPP 8/22/89 at 18 (footnote not in original). Mr. Nunez remains at LLH & TS, despite this recommendation by his treating professionals. Def.Exh. FK-1.
Plaintiff Andra Martinez has also been recommended for community placement. In 1988, her IDT referred her to two community programs for waiting list placement. Pl.Exh. 27, IPP 7/21/88 at 6. In 1989, the IDT continued the recommendation for community placement. Pl.Exh. 27, IPP 6/13/89 at 8. Ms. Martinez was discharged from LLH & TS on August 27, 1990 after a trial placement at El Mirador, a community program.
Plaintiff Mary Katherine Nowak has also been recommended for community placement. In August 1988 her IDT noted that there were no vacancies at community facilities that it believed were appropriate for her. The IDT, however, developed a transition program that would enable Ms. Nowak to overcome her apprehension of community placement. Recognizing that the deinstitutionalization process would be lengthy, the IDT decided not 1293 to refer Ms. Nowak for placements. Pl.Exh. 20, IPP 8/2/88 at *1293 18. In 1989, her IDT determined that Ms. Nowak is "capable of doing very well in a group home." Pl.Exh. 20, IPP 7/24/89 at 13. She continues to reside at LLH & TS.
Plaintiff Joe Gonzales has been referred for community placement to three residential community programs. His IPP indicates that he presently is on a waiting list for two of the three community programs. A determination is pending on the third community program. Pl.Exh. 24 at 3d. Mr. Gonzales remains at FSH & TS, despite the recommendation by his IDT that Mr. Gonzales be placed in the community and despite the IDT referrals to community programs. Def.Exh. EQ-1.
Defendants maintain no records of persons at LLH & TS and FSH & TS who have been recommended for community placement by their IDT. Pl.Exh. 324 at 40. At trial, defendants identified at least sixty-four residents of LLH & TS and twenty-four residents of FSH & TS whose IDTs have recommended community placement, but who continue to reside at the institutions. Def.Exh. FK-1; Def.Exh. EQ-1.
The administrator of LLH & TS testified that the fact that a resident has been referred for community placement does not indicate that the resident is receiving inappropriate services at the institution. Tr. 4/27/90 at 25 (LaCourt). The administrator interpreted the IDT recommendation to mean that a different kind of service provider might be able to provide longer lasting benefits for the resident. Tr. 4/27/90 at 25 (LaCourt).
The administrator further testified that placement decisions need to be made on an individualized basis, weighing the individual's strengths and needs, and determining what a particular placement would have to offer to accommodate those strengths and needs. Placement determinations cannot be made on a generalized basis. Tr. 4/27/90 at 106 (LaCourt). Nor can the determination be that of any individual person, but rather must be a team decision based on the IDT referral process, which reviews the appropriateness of each of the persons referred for placement against the available resources in that setting. Tr. 4/27/90 at 107 (LaCourt). Nonetheless, the administrator rendered a general opinion that those residents who were recommended for community placement were receiving appropriate care and services at LLH & TS. Tr. 4/27/90 at 25 (LaCourt).
Defendants did not offer similar testimony for those residents of FSH & TS whose IDTs have recommended community placement.
2. Recommendations Based on Availability
ICF/MR standards require that assessments identify the residents' needs for services without regard to the actual availability of the services needed. Pl.Exh. 315, Tag # 215. The IDTs do not recommend many of the residents of

the institutions for community placement because of the unavailability of proper community services for those residents. Plaintiff Walter Stephen Jackson's IDT has advised his family that because no suitable alternative exists, it has recommended that he remain at LLH & TS. Tr. 4/2/90 at 78-79 (Jackson).
In August 1988, plaintiff Mildred Tsosie's IDT determined that there were no community programs available to meet her needs at the time. The professional team stated that Ms. Tsosie needed a program which:
provides ICF/MR residential treatment with a day care program. This program must provide medical, self-care and developmentally oriented treatment. At this time no such program exists outside [LLH & TS]. If and when such a program does exist, [Ms. Tsosie] will be considered for referral to them. It appears that Chavez West at [LLH & TS] is the most appropriate placement for [Ms. Tsosie] at this time.
Consequently, the IDT concluded that it could make no community referrals. Pl. Exh. 21, IPP 8/17/88 at 6. In 1989, the IDT for Mildred Tsosie recommended that her social worker "explore other placement possibilities for [Ms. Tsosie] which meet her overall developmental and medical needs." Pl.Exh. 21 IPP 7/26/89 at 10.
1294 *1294 Similarly, plaintiff Clinton Heath's IDT has determined that Mr. Heath "requires an ICF/MR facility that can meet his medical, self-care and active treatment needs and one that also accepts clients who are in wheelchairs and are profoundly retarded." However, the IDT has also determined that there currently are "no facilities available in New Mexico to meet his needs. If and when one should become available, [Mr. Heath] would be considered for referral." Pl.Exh. 16, IPP 1/5/89 at 16.
The IDT has made a virtually identical determination for plaintiff Shawn Heath, Clinton Heath's brother. The interdisciplinary team has determined that Shawn Heath "requires an ICF/MR facility that can meet his medical, self-care and active treatment needs and one that also accepts clients who are in wheelchair and are profoundly retarded. At present, there is no facility available in New Mexico. If and when one should become available, [Mr. Heath] would be available for referral." Pl.Exh. 17, IPP 1/5/89 at 7, 17.
Plaintiff Lillian Willmon is seventy-one years old and has lived at LLH & TS for the last fifty years. Pl.Exh. 22, IPP 1/25/89 at 7-8. The IDT believes that because of Ms. Willmon's "age, health status and length of stay" at LLH & TS, "she is not a viable candidate for community placement." Pl.Exh. 22, IPP 1/25/89 at 15. Her IDT has reviewed her current placement at LLH & TS and determined that it is "the most appropriate available at this time." Pl.Exh. 22, IPP 7/12/89 at 17. (Emphasis Added). See also Def.Exh. AW, IPP 7/25/89 at 9.
3. State Court Orders for Community Placement
Residents of the institutions frequently are referred for community placement irrespective of the IDT recommendation and, in some instances, notwithstanding an IDT determination that community placement is not recommended. Tr. 4/25/90 at 94-96 (Miller); Pl.Exh. 366; Pl.Exh. 385. A resident may be referred for community placement at the request of a resident's guardian. Tr. 4/25/90 at 94 (Miller); Tr. 4/27/90 at 26 (LaCourt). More often, however, referrals are made pursuant to state court orders. Tr. 4/25/90 at 94; Tr. 4/27/90 at 26-27 (LaCourt). In this instance, the commitment lawyers negotiate an agreement with the Health and Environment Department to refer the resident for community placement. The court order is entered and the referral is made. However, residents who are the subjects of court orders remain in the institutions. Tr. 4/25/90 at 94, 96 (Miller).
Plaintiff Betty Young has been referred to community residential programs in accordance with a state court order. Pl.Exh. 28, IPP 6/1/89 at 6. Her IDT, however, has determined that FSH & TS best meets the conditions for treatment and habilitation. Id. "The criteria for discharge to a less restrictive setting for treatment or habilitation is that she meet her goals for controlling inappropriate behavior, refining ADL skills, improving attention span, socialization skills, gross motor skills, communication skills, pre-academic skills, improve ILS and RLS, the guardian approve of the placement, and the program meets the needs as listed above." Pl.Exh. 28, IPP 6/1/89 at 6.
Similarly, plaintiff Alfred Shirley has been referred to two community residential programs in accordance with the terms of a state court order. Pl.Exh. 26, IPP 11/17/88 at 7. His IDT has also determined that FSH & TS can best

meet the conditions for treatment and habilitation. Id. "The criteria for [Mr. Shirley's] release to a less restrictive setting for treatment or habilitation is that [Mr. Shirley] meet his goals for reducing aggressive behavior, developing attention span, activities of daily living, discrimination skills, improving socialization, developing residential living skills, the guardian approve of the placement, and the program meet the needs as listed above." Pl.Exh. 26, IPP 11/17/88 at 7.
4. Lack of Available Alternatives to Institutionalization
1295 Continued institutionalization of plaintiffs is the product of many factors. Placement *1295 in the institutions often results because the state has not made appropriate alternatives available. There are few community based programs to accommodate individuals with behavior problems or with complex needs. Jimerson Depos. 9/29/89 at 19; Tr. 10/16/89 at 150, 156, 245 (Rowe); Tr. 10/17/89 at 37-38 (Rowe); Pl.Exh. 324 at 34-35. When consideration is given to the possibility of discharging a resident to a community setting, the availability of appropriate alternatives then existing in the community is taken into account. Tr. 4/10/90 at 114-115 (Sandler). An IDT will not discharge residents of the institutions unless there are programs available which can adequately meet residents' needs. Tr. 10/16/89 at 245 (Rowe).
Defendants lack control over existing community providers with whom they contract to serve the developmentally disabled. Community providers determine whether to accept or reject an individual. There is no systematic community placement process in which defendants can participate to influence the decision to accept or reject an applicant for community placement. Pl. Exh. 324 at 25, 27, 29-30 (Boyd); Jimerson Depos. 9/29/89 at 22-23. In such a system, there is no incentive for a community provider to want to serve persons with more challenging and complex needs. In fact, community programs are reluctant to accept certain individuals with challenging behavior. Tr. 4/25/90 at 103-104 (Miller). Community providers do not want to accept challenging cases without adequate reimbursement. Pl.Exh. 324 at 27 (Boyd); Jimerson Depos. 9/29/89 at 27. Instead, community providers tend to serve persons who have the least challenging needs with the implicit understanding that the state-operated institutions serve as a reserve, and will readmit those individuals who manifest behavioral problems while in community placement. Tr. 4/11/90 at 262-264 (Bergman). Of ninety-five residents discharged from FSH & TS since July 1, 1983, twenty-nine percent have been returned to the facility because of behavioral problems in community settings. Pl.Exh. 335 at 11.
Other contributing factors include the absence of an infrastructure to deliver the services recommended by professional judgment and the lack of funding. In New Mexico, there is no single point of entry coordinated by the state to enable developmentally disabled individuals easily to access the service system; no independent case management to coordinate and monitor the services delivered; no training or technical assistance by the state to private service providers; and no mechanism for holding service providers accountable for delivering quality services with measurable outcomes that can be tracked through a management information service. Tr. 4/11/90 at 261-264 (Bergman); Tr. 4/2/90 at 99 (Foley); Tr. 4/9/90 at 129-130, 134 (Dossey); Pl.Exh. 324 at 26 (Boyd); see also Pl.Exh. 324 at 18 (Boyd).
These are essential components of an effective community service delivery system. Tr. 4/11/90 at 217-220 (Bergman); Tr. 4/4/9 at 214-216, 227 (Sandler); Tr. 4/12/90 at 141-142 (Conroy); Tr. 4/13/90 at 63-65 (Conroy). Defendant Boyd testified that a centralized placement system for developmentally disabled individuals in the state was to be in place by July 1, 1990. Pl.Exh. 324 at 29-31, 126.
There was also testimony that New Mexico has not made maximum use of available medicaid funds to expand community alternatives for the residents of LLH & TS and FSH & TS. Jimerson Depos. 9/29/89 at 24-26. The Human Services Department of New Mexico is responsible for the administration and oversight of the Medicaid Waiver Program which allows medicaid funds to be used to support a variety of community-based alternatives for developmentally disabled individuals in institutions. Tr. 4/9/90 at 154-155 (Dossey).
In 1987, defendants submitted a waiver application requesting financing for 170 beds, increasing to 290 beds over a three year period. Approximately twelve percent of those beds were to be used for individuals transferred from FSH & TS and LLH & TS. Tr. 4/10/90 at 33-34 (Sandler); Pl. Exh. 235 at 6-7. The other eighty-eight percent of the beds were to be used for individuals coming directly from their communities instead of from the institutions.

1296 *1296 Pl.Exh. 235 at 7. The per capita cost of the services for which defendants requested financing was approximately $11,000.00, compared to a per capita cost of approximately $30,000.00 to provide the services in the institutions. The reason for the low per capita non-institutional cost was that 120 of the individuals to be served under the waiver would receive only respite care, a low cost service, instead of residential and day care programs which are more expensive. Under the Medicaid Waiver Program, medicaid funds match 71 cents for every 29 cents of state monies.[33] By funding low cost services under New Mexico's Waiver Program, federal participation was minimized. Tr. 4/10/90 at 35-36 (Sandler).[34]
The Health Care Financing Administration approved New Mexico's waiver application in 1988. However, only 174 beds were approved over a three year period. One reason for approval of a lower caseload than New Mexico requested was that New Mexico had not filled all beds allowed under the Waiver Program. Another reason was that New Mexico has not only failed to reduce the number of institutional beds it operates, but has actually increased the number of its institutional beds. Jimerson Depos. 9/29/89 at 26; Tr. 4/10/90 at 37-39 (Sandler); Tr. 4/9/90 at 155-158 (Dossey). Defendant Boyd testified, however, that he expected to fill all beds available under the Waiver Program. Pl.Exh. 324 at 37 (Boyd).
The absence of a unified organizational structure for all developmental disabilities services impedes the effective delivery of services. There is a lack of coordination between agencies, particularly the Health and Environment Department and the Human Services Department, that share responsibility for serving persons with developmental disabilities. Pl.Exh. 324 at 17, 88, 92-94 (Boyd). The HED monitors community-based programs funded by state dollars. For example, HED, provides group homes, companion homes, supported living environments, supported employment and sheltered work shops. Def.Exh. CCC at 4. However, the medicaid waiver program is the responsibility of the Human Services Department. In addition, the Developmental Disabilities Division of the HED has no director and there are no current plans to appoint one. Tr. 4/9/90 at 101, 103-114 (Dossey); See also Tr. 4/10/90 at 5-7 (Sandler).
Moreover, defendants maintain two separate data collection systems to determine the service needs of New Mexicans with developmental disabilities and to conduct systematic planning. The Client Option Oriented Profile ("Co-op") assesses the needs of persons living both outside the institutions and persons living in hospitals and institutions. According to the Co-op data, 133 persons in New Mexico were on the waiting list for group home placement one year ago and approximately 490 were being served in group homes. However, residents of LLH & TS and FSH & TS who have been referred for community placement are not included in the data. Tr. 10/16/89 at 151-152 (Rowe); See also Tr. 10/16/89 at 153-154 (Rowe). In fact, FSH & TS and LLH & TS do not maintain a list of those residents referred for community placement by an IDT or otherwise. See Def.Exh. EQ, EQ-1, FK, FK-1; Pl.Exh. 364, 365, 366.
VI. Conclusions of Law
A. Statutory Claims
1. Rehabilitation Act
1297 Section 504 of the Rehabilitation Act prohibits discrimination against the handicapped by federal grant recipients. *1297 To establish a Section 504 cause of action a plaintiff must show that (1) the plaintiff is a handicapped individual; (2) the plaintiff is "otherwise qualified" to receive the benefit or participate in the activity at issue; (3) the plaintiff was excluded from the benefit or program solely because of the plaintiff's handicap, and (4) the program receives federal funding. Plummer v. Branstad, 731 F.2d 574, 577 (8th Cir.1984) (citing Doe v. New York University, 666 F.2d 761, 774-775 (2d Cir.1981)). Section 504 provides in pertinent part:
No otherwise qualified individual with handicaps in the United States ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or

under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794.
The purpose of the act was "to develop and implement, through research, training, services, and the guarantee of equal opportunity, comprehensive and coordinated programs of vocational rehabilitation and independent living, for individuals with handicaps in order to maximize their employability, independence, and integration into the work place and the community." 29 U.S.C. § 701; Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 626, 104 S.Ct. 1248, 1250, 79 L.Ed.2d 568 (1984).
However, Section 504 does not impose an affirmative obligation on states to furnish services. Clark v. Cohen, 794 F.2d 79, 84 n. 3 (3rd Cir.1986), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986). For example, "educational institutions [are not required] to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate." Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979). An "otherwise qualified" person is one who is able to meet all of a program's requirements in spite of the person's handicap. Id. at 406, 99 S.Ct. at 2367. The legislation encourages state agencies to adopt and implement policies for the hiring, placement and advancement of handicapped individuals, but does not compel them to establish affirmative action programs. Id. at 410, 99 S.Ct. at 2369; Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343, 1354 (10th Cir.1987) (§ 504 does not require a program sponsor to modify the essential purpose of its program or undergo undue financial burdens to accommodate all handicapped persons).
Section 504 does not afford a mentally retarded individual an affirmative right to placement in a residential, noninstitutional facility. Sabo v. O'Bannon, 586 F.Supp. 1132, 1137 (E.D.Pa.1984). The regulations promulgated under Section 504 contemplate that institutions may continue to house handicapped persons. See 45 C.F.R. § 85.54.[35] Accordingly, courts have held that Section 504 does not prohibit all institutionalization. Kentucky, Ass'n for Retarded Citizens, Inc. v. Conn., 674 F.2d 582, 585 (6th Cir.1982), cert. denied, 459 U.S. 1041, 103 S.Ct. 457, 74 L.Ed.2d 609 (1982) ("The least restrictive alternative for some severely and profoundly retarded persons may be institutionalization"). See also Garrity v. Gallen, 522 F.Supp. 171, 213 (D.N.H.1981).
In addition, medical treatment decisions are generally immune from scrutiny under Section 504. Bowen v. American Hospital Association, 476 U.S. 610, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986) ("The legislative history of the Rehabilitation Act does not support the notion that Congress intended intervention by federal officials into 1298 treatment decisions traditionally left *1298 by state law to concerned parents and the attending physicians or, in exceptional cases, to state agencies charged with protecting the welfare of the infant."); U.S. v. University Hosp., State U. of New York, 729 F.2d 144, 161 (2d Cir.1984).
a. Discrimination
The record reflects that New Mexico's community service system discriminates against persons with severe handicaps. Residents at LLH & TS and FSH & TS are denied access to community programs on the basis of physical as well as mental handicaps. HED and HSD provide a wide variety of community services under contract with private agencies. For example, HED provides group homes, companion homes, supported living environments, supported employment and sheltered work shops. HSD is responsible for the community based services funded by the Title XIX waiver. The community programs provided by these agencies are generally not available to persons with severe handicaps.
Discharge plans in plaintiffs' individual program plans show that severely and multiple handicapped residents experience discrimination in opportunities for community placement. Residents are not recommended for community placement, not because their individual needs require institutionalization or because community placement is inappropriate, but rather because community programs are not available in New Mexico for persons who have challenging behavior, physical handicaps or special medical needs. This has been illustrated by experiences of three plaintiffs. Plaintiff Mildred Tsosie's interdisciplinary team determined that there were no community programs available to meet her needs which include medical, self-care and developmentally oriented

treatment. Similarly, the interdisciplinary teams for Clinton and Shawn Heath concluded that there are no facilities available in New Mexico to meet their needs. The IDTs believed that the Heath brothers need facilities that can meet their medical, self-care and active treatment needs and that accept residents who are in wheelchairs and are profoundly retarded. These interdisciplinary teams have determined, based on individualized assessments of the strengths and needs of each resident, that with appropriate services, these severely handicapped residents can reside in community settings.
Interpreting Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the Supreme Court stated:
Davis addressed that portion of section 504 which requires that a handicapped individual be "otherwise qualified" before the nondiscrimination principle of section 504 becomes relevant. However, the question of who is "otherwise qualified" and what actions constitute "discrimination" under the section would seem to be two sides of a single coin; the ultimate question is the extent to which a grantee is required to make reasonable modifications in its programs for the needs of the handicapped.
Alexander v. Choate, 469 U.S. 287, 299 n. 19, 105 S.Ct. 712, 719 n. 19, 83 L.Ed.2d 661 (1985). The Supreme Court "struck a balance between the statutory rights of the handicapped to be integrated into society and the legitimate interests of [recipients of federal assistance] in preserving the integrity of their programs: while a [recipient] need not be required to make `fundamental' or `substantial' modifications to accommodate the handicapped, it may be required to make `reasonable' ones." Alexander, 469 U.S. at 300, 105 S.Ct. at 720.
The balance struck in Davis thus requires that otherwise qualified handicapped residents of LLH & TS and FSH & TS be provided with meaningful access to community programs operated under the direction or control of defendants. Community programs should not be designed in a way that effectively denies otherwise qualified handicapped residents of LLH & TS and FSH & TS the meaningful access to which they are entitled. To assure meaningful access, reasonable accommodations in the community programs have to be made.
The evidence in this case established that various residents' interdisciplinary teams have determined, based on 1299 individualized *1299 assessments of the strengths and needs of each resident, that with appropriate services,
these severely handicapped residents should reside in a community setting. Nonetheless, severely handicapped residents are precluded from living in community settings because the programs lack amenities, that could reasonably be furnished without substantial program changes, necessary to accommodate the needs of the severely handicapped. The severity of plaintiffs' handicaps is itself a handicap which, under § 504, cannot be the sole reason for denying plaintiffs access to community programs. Plummer, 731 F.2d at 576; Garrity v. Gallen, 522 F.Supp. 171, 214-215 (D.N.H.1981); Lynch v. Maher, 507 F.Supp. 1268, 1278-1279 and n. 15 (D.Conn.1981).[36] Defendants' failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory.
The experience of Nebraska and Colorado in serving persons with severe handicaps shows that modification of the existing community service system in New Mexico would not require an excessive financial burden and that the accommodations would enable severely handicapped residents of LLH & TS and FSH & TS to realize the benefits of community settings. Accordingly, the defendants should require those community programs that receive federal assistance funds[37] to make reasonable accommodations for those severely handicapped residents of LLH & TS and FSH & TS whose IDTs have determined that a community program could be appropriate, if reasonably modified.
b. Segregation
Recipients of federal assistance are further required to provide federally assisted services "in the most integrated setting appropriate to the person's needs." 45 C.F.R. § 84.4(b)(2). Regulations implementing Section 504 provide that:

A recipient, in providing any aid, benefit, or service may not ... [p]rovide different or separate aid, benefits or services to handicapped persons or any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aids, benefits or services that are as effective as those provided to others.
45 C.F.R. § 84.4(b)(1)(iv) (emphasis added); accord 45 C.F.R. § 84.52(a)(5).
While Section 504 does not prohibit the existence of separate services, the law is violated when certain residents of LLH & TS and FSH & TS are excluded from qualitatively different facilities which are being provided to their less severely handicapped peers, despite IDT determinations that particular severely handicapped residents can live in community settings if defendants make reasonable accommodations in those settings. Where reasonable accommodations in community programs can be made, defendants' failure to integrate severely handicapped residents into community programs which presently serve less severely handicapped residents violates § 504.

2. Social Security Act

Title XIX of the Social Security Act appropriates grants to states for medical assistance programs for the purpose of enabling each state to furnish:

1300

*1300 (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care ...

42 U.S.C. § 1396 (Supp.1990). Each state is required to submit for approval to the Secretary of Health and Human Resources plans for medical assistance that meet the substantive requirements of 42 U.S.C. § 1396a(a), and to designate a single state agency to administer or supervise the administration of the plan. 42 U.S.C. § 1396a(a)(5). The state agency is responsible for establishing and maintaining health standards for institutions that provide care and services to recipients of medical assistance under the plan. 42 U.S.C. § 1396a(a)(9)(A).

The state plan must include a regular program of independent professional review and evaluation of each patient's need for medical care. 42 U.S.C. § 1396a(a)(31)(A). An independent professional review team must conduct periodic onsite inspections and assessments of the care being provided to each person, including (1) "the adequacy of the services available to meet his current health needs and promote his maximum physical well being; (2) the necessity and desirability of his continued placement in the facility, and (3) the feasibility of meeting his health care needs through alternative institutional or noninstitutional services." 42 U.S.C. § 1396a(a)(31)(B). The review team is required to submit written reports to the state agency of the findings of each inspection with recommendations. 42 U.S.C. § 1396a(a)(31)(C).

Each state which has a plan approved under 42 U.S.C. § 1396a(a) is paid a specified percentage of medical assistance. 42 U.S.C. § 1396b. Payments may be terminated if the Secretary determines that a plan has been changed so that it no longer complies with section 1396a(a) or if the administration of the plan fails to comply with the requirements of that section. 42 U.S.C. § 1396c.

Regulations promulgated pursuant to the statute set forth standards for the care to be provided at intermediate care facilities for the mentally retarded. The regulations require that each client 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 the acquisition of the behaviors necessary for the client to function with as much self-determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status." 42 C.F.R. § 483.440(a) (Condition of Participation: Active Treatment Services). Each client must have an individual program plan developed by an interdisciplinary team that represents the professions, disciplines or service areas that are relevant to identifying the client's needs and designing programs that meet those needs. 42 C.F.R. § 483.440(c). The facility must not segregate clients solely on the basis of their physical disabilities. 42 C.F.R. § 483.470(a)(2). The regulations also contain standards for the provision of dental services, 42 C.F.R. § 483.460, food and

nutrition services, 42 C.F.R. § 483.480, medical services, 42 C.F.R. § 483.460(a), and nursing services, 42 C.F.R. § 483.460(c).
a. Deficiencies
The evidence presented at trial demonstrates that LLH & TS and FSH & TS have remained certified under Title XIX and have received funding in accordance with the Act. However, in the Spring of 1989, the surveyors determined that LLH & TS was out of compliance with two conditions of participation in active treatment and facility staffing. See 42 C.F.R. § 483.440. Because the surveyors determined that the health and safety of the residents were not in jeopardy, LLH & TS retained its certification for a discrete period of time during which the facility worked to achieve compliance with the conditions in order to avoid decertification. LLH & TS was found to 1301 be *1301 in compliance with all conditions of participation in December, 1989.
Although the surveyors found temporary noncompliance with only two conditions of participation, numerous deficiencies in ICF/MR standards were identified at both LLH & TS and FSH & TS over the course of this litigation. The following deficiencies are supported by the record: failing adequately to document residents' health care, active treatment, and other information as required by 42 C.F.R. §§ 483.410(c)(1), 483.440(c)(4), 483.440 (c)(5); failing to enable residents to retain and use appropriate personal possessions, as required by 42 C.F.R. § 483.420(a)(12); failing to implement procedures that prohibit physical, verbal, sexual and psychological abuse or punishment, as required by 42 C.F.R. § 483.420(d)(1)(i); failing to provide an active treatment program that is integrated, coordinated and monitored by a qualified mental retardation professional, as required by 42 C.F.R. § 483.430(a); failing to provide sufficient professional staff and adequate professional program services to implement the active treatment program defined by each resident's individual program plan, as required by 42 C.F.R. § 483.430(b)(1); failing to provide direct care staff with initial and continuing training that enables each employee to perform his or her duties effectively, efficiently and competently, as required by 42 C.F.R. § 483.430 (e); failing to provide residents with a continuous active treatment program, consisting of needed interventions and services in sufficient number and frequency to enable residents to attain as much self-determination, independence and optimal functional status as possible, as required by 42 C.F.R. § 483.440(a); failing to provide residents with accurate, comprehensive functional assessments identifying their need for services, without regard to the availability of services, as required by 42 C.F.R. § 483.440(c)(3); failing to provide residents with adequate individual program plans setting forth the specific objectives necessary to meet the residents' needs and a planned sequence of dealing with the objectives, as required by 42 C.F.R. § 483.440(c)(4); failing to ensure that residents' individual program plans identify the mechanical supports needed to achieve proper body position, balance or alignment and specify the reason for each support, the situations in which it is to be applied, and a schedule for its use, as required by 42 C.F.R. § 483.440(c)(6)(iv); failing to ensure that residents' individual program plans include opportunities for resident choice and self-management, as required by 42 C.F.R. § 483.440(c)(6)(iv); failing to ensure that each resident's individual program plan is implemented by all staff who work with that person, as required by 42 C.F.R. § 483.440(d)(3); failing to ensure adequate privacy for residents, as required by 42 C.F.R. § 483.420(a)(7); and failing to ensure that interventions for managing challenging behavior of residents are employed with sufficient safeguards and supervision to protect their safety, welfare and civil and human rights, as required by 42 C.F.R. § 483.450(b).
Defendants note that as of the spring of 1990, when the last evidence was presented, both LLH & TS and FSH & TS had undergone substantial changes, in part as a result of this litigation. Surveys of the institutions during the spring of 1990 reflected fewer deficiencies than had previously been noted. However, the record demonstrates that numerous deficiencies have been identified in various surveys throughout the course of this litigation. In addition, as the parties agree, ICF/MR regulations are subject to varying interpretations. Responsible professionals can and do reach different conclusions as to whether a particular regulation or standard has been met as of a particular date. Thus, there is no assurance that deficiencies previously identified will not reoccur in the future. Even the last survey reports described deficiencies occurring in many of the same areas in which deficiencies had been noted previously. The existence of these numerous standard-level deficiencies, and for a temporary period condition level deficiencies, underscores the constitutional violations identified below.

b. Application of Title XIX
1302 I ruled previously that a private party may invoke 42 U.S.C. § 1983 to enforce *1302 the provisions of the Medicaid Act and its implementing regulations against participating states. That ruling was made in connection with a motion to dismiss for failure to state a claim, under Rule 12(b)(6), and was necessarily based on allegations in the pleadings. Jackson, et al. v. Fort Stanton, et al., No. 87-839, Memorandum, Opinion and Order at 14 (D.N.M. Oct. 5, 1988). The availability of such a private cause of action, however, is limited. Defendants maintain that Title XIX does not require absolute compliance with each specific standard enumerated in the statute's implementing regulations, but rather demands substantial compliance only with the eight general "conditions of participation" under which the various individual "standards" are included.[38] The regulations break down the eight conditions into a number of discrete standards, all of which are then divided into even more detailed standards or sub-parts. 42 C.F.R. §§ 483.400-480. HCFA's operators manual, for surveyors of intermediate care facilities for the mentally retarded, identifies each specific standard, including sub-parts, by an independent tag number, totalling nearly 500 in all.
Although the eight basic conditions of participation are elaborated on by numerous standards, the question of compliance revolves around whether the conditions themselves have been satisfied. 42 C.F.R. § 442.101. It appears that Congress did not intend to create a private cause of action for non-compliance with one, some, or many of the nearly 500 hundred standards.[39] Instead, the standards are designed to guide the surveyors in making the basic eight-part conditions of participation assessment. So long as a facility is in compliance with each overall condition, the existence of a number of outstanding deficiencies would ordinarily not preclude the facility's certification and eligibility to receive federal funds.[40] The evidence at trial showed that two successive surveys had concluded that there was, at the time of the surveys, two condition-level deficiencies at LLH & TS; but a most recent third survey prior to the conclusion of the trial found the deficiencies had been corrected. Certainly the history of standard-level deficiencies at both institutions is far from enviable; nonetheless, plaintiffs may not assert a private cause of action based on just that.
3. Education of the Handicapped Act[41]
The Education of the Handicapped Act ("EHA"), 20 U.S.C. § 1400 et seq. enacted a comprehensive scheme to assure that handicapped children receive a free public education appropriate to their needs. 20 U.S.C. § 1412(1). See Johnson v. Independent School District, 921 F.2d 1022, 1026 (10th Cir.1990). To achieve this end, the Act sets forth specific procedural safeguards that must be guaranteed by the participating state and local educational 1303 agencies seeking funds under the Act. The Act directs the state to develop a plan *1303 setting forth a detailed timetable for and a description of its program to provide all children between the ages of three and twenty-one full educational opportunity. The state must establish procedures to assure that "to the maximum extent appropriate, handicapped children ... are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. §§ 1412(2)(A), 1412(5)(B) (emphasis added).
Each child who falls within the provisions of the act is to be provided with an "individualized education program" ("IEP") reflecting the child's unique needs. 20 U.S.C. §§ 1401(19), 1412(4). Participation in the formulation of the IEP is to be afforded to the local education agency, the parents or guardian of the child, the child's teacher and the child where appropriate. 20 U.S.C. § 1401(19). The Act guarantees parents the right to obtain an independent educational evaluation of the child and the right to challenge the appropriateness of the child's evaluation, educational placement or IEP in an administrative hearing with subsequent judicial review. 20 U.S.C. §§ 1415(b) (1), 1415(b)(2), 1415(e)(2). See Johnson at 1026-27.

a. Exhaustion of Remedies
Exhaustion of administrative remedies is required before relief can be sought under the EHA in federal court. Hayes v. Unified School Dist., 877 F.2d 809, 812 (10th Cir.1989); 20 U.S.C. § 1415(f).[42] "`This exhaustion rule serves a number of important purposes including (1) permitting the exercise of agency discretion and expertise on issues requiring these characteristics; (2) allowing the full development of technical issues and a factual record prior to court review; (3) preventing deliberate disregard and circumvention of agency procedures established by Congress; and (4) avoiding unnecessary judicial decisions by giving the agency the first opportunity to correct any error.'" Hayes, 877 F.2d at 814 (quoting Association for Retarded Citizens, Inc. v. Teague, 830 F.2d 158, 160 (11th Cir.1987) (citations omitted)). See also Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975).
However, the rule that administrative remedies under the EHA must be exhausted before judicial review is sought should not be applied inflexibly. Hayes, 877 F.2d at 814. Exhaustion of administrative remedies may not be required if pursuing those remedies would be "futile or inadequate." Smith v. Robinson, 468 U.S. 992, 1014 n. 17, 104 S.Ct. 3457, 3469 n. 17, 82 L.Ed.2d 746 (1984); Hayes, 877 F.2d at 814.[43]
Plaintiffs Ronald Fuller and Sean McHenry have exhausted their administrative remedies with regard to their personal claims, but made no similar allegations with respect to other members of the class. Plaintiffs argue that exhaustion of administrative remedies for class members is not required because plaintiffs Ronald Fuller and Sean McHenry have exhausted their administrative remedies on behalf of the class. See Third Amended Complaint ¶ 29a, 65a. Plaintiffs contend that it is not necessary for each member of the alleged class to exhaust administrative remedies. Barela v. United Nuclear Corp., 462 F.2d 149, 153 (10th Cir.1972); Swain v. Hoffman, 1304 547 F.2d 921, 924 (5th Cir.1977). See also Olivares v. Martin, 555 F.2d 1192, *1304 1196-1197 (5th Cir.1977) ("at least one of the purported representatives of a class must have exhausted his administrative remedies"); Williams v. Tennessee Valley Authority, 552 F.2d 691, 697 (6th Cir.1977) ("there is no requirement that each member of the potential class demonstrate exhaustion of administrative remedies"); Phillips v. Klassen, 502 F.2d 362, 369 (D.C. Cir.1974) cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974) ("exhaustion by at least one member of the class is a necessary prerequisite for a class action").
However, when exhaustion of administrative remedies is a prerequisite to suit, each member of the class must exhaust administrative remedies. See e.g. Weinberger, 422 U.S. at 764-765, 95 S.Ct. at 2466. In particular, when an exhaustion requirement is jurisdictional, as in this case, it is necessary that every member of the proposed class exhaust his or her administrative remedies. Bowen v. New York, 476 U.S. 467, 482-483, 106 S.Ct. 2022, 2031, 90 L.Ed.2d 462 (1986).
Plaintiffs maintain that, even if each member of the class is required to exhaust administrative remedies, exhaustion is not necessary because it would be futile in this case. I conclude, however, that plaintiffs would not be engaged in an exercise of futility if they were required to exhaust administrative remedies. Plaintiffs alleged that the state failed to provide adequate notice and failed to appoint surrogate parents where required and that the state's funding scheme creates a financial disincentive to referring LLH & TS residents to the public schools. See Plaintiffs' Reply Memorandum in Support of Class Certification at 23-24. However, plaintiffs adduced no evidence to support these allegations.
Instead, plaintiffs' main contention is that defendants have failed to provide residents of LLH & TS an appropriate education in the most integrated environment, to the maximum extent appropriate. The procedural safeguards in the Act are designed specifically to afford an opportunity to present complaints with respect to the evaluation or educational placement of a child, or the provision of a free appropriate public education to a child. 20 U.S.C. § 1415(b)(1)(E). These procedural guarantees include the right to a due process hearing before either a local, state or intermediate educational agency and the right to appeal the hearing decision. 20 U.S.C. §§ 1415(b)(2), 1415 (e)(2). Plaintiffs have not taken advantage of these procedural safeguards and have not given defendants an opportunity to exercise administrative reform addressing their complaints.

b. LLH & TS
The Act's requirement that "mainstreaming" be provided to the maximum extent appropriate indicates a very strong congressional preference. See 20 U.S.C. 1412(5)(B). Furthermore, the Comment to the implementing regulations states that "[r]egardless of other reasons for institutional placement, no child in an institution who is capable of education in a regular public school setting may be denied access to an education in that setting." 34 C.F.R. § 300.554 (Comment). The administrator of LLH & TS testified, when asked whether many of these individuals could receive services at least as effective in the public school system, that "[f]or many of [these] individuals ... there are equivalent services in the public schools." Although I am not in a position to afford relief before plaintiffs exhaust their administrative remedies, in light of the clear mandate expressed in the EHA, defendants should be called upon, in the administrative review process, to fully explain their efforts in assuring an "appropriate education" for those residents at LLH & TS who receive their educational services at the institution.
c. FSH & TS
As I noted in the findings of fact, all school age residents of FSH & TS attend the local public school.
B. Constitutional Claims[44]
1305 *1305 1. Substantive Due Process[45]
In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Supreme Court considered for the first time the substantive rights of involuntarily committed mentally retarded persons. The Court recognized substantive rights under the Due Process Clause of the Fourteenth Amendment to (i) safe conditions of confinement; (ii) freedom from bodily restraints; and (iii) training or habilitation.
With respect to training and habilitation, the Court held that although a state is under no constitutional duty to provide substantive services for those within its border, when a person is institutionalized the state has a duty to provide certain services and care. Id. at 317, 102 S.Ct. at 2458. Specifically, a state is required to provide food, shelter, clothing, medical care, reasonable safety for all residents and personnel within the institution, and minimally adequate or reasonable training to ensure safety and freedom from undue restraint. Id. at 319, 102 S.Ct. at 2459.
In determining what is reasonable, a court must show deference to the judgment exercised by a qualified professional. Id. at 322, 102 S.Ct. at 2461. A decision made by a professional is presumptively valid. "[L]iability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such judgment." Id. at 323, 102 S.Ct. at 2462. Under this standard, plaintiffs' expert testimony is relevant in determining whether the treating professionals' decisions substantially departed from accepted standards. Id. at 323 n. 31, 102 S.Ct. at 2462 n. 31.
The Court reasoned that by so limiting review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions would be minimized. Id. The Supreme Court instructed that a trial court should not weigh the decisions of the treating professionals against the testimony of the class members' professionals to decide which of several acceptable standards should apply. Id. "There certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions."
With these principles in mind, I now turn to a review of the evidence pertaining to the conditions at LLH & TS and FSH & TS. Although there have been substantial improvements at both facilities during the course of this litigation, constitutional deficiencies remain in certain conditions and treatment.

a. Food, Shelter & Clothing
The residents at LLH & TS and FSH & TS are receiving appropriate food, shelter and clothing. The quality of the food served and the quantity provided to the residents of LLH & TS and FSH & TS is adequate. Residents are consistently provided with clean, adequate and appropriate clothing.
1306 The facilities are clean and well maintained. Both facilities are licensed by the *1306 relevant regulatory authorities to house the number of residents who actually reside there. The size of the bedrooms is adequate and an appropriate number of residents reside in each bedroom. The facilities have undertaken efforts to personalize the living areas.
The physical environment at LLH & TS and FSH & TS is clean, safe and appropriate. Specifically, fire safety, pest control, sanitation practices, lighting, ventilation and the fixtures at the institutions are adequate. In addition, those items that contained asbestos at FSH & TS were "abated."
b. Medical Care
The medical and dental services at LLH & TS and FSH & TS generally address the needs of the residents. The staffing and nature of care provided is more than minimally adequate.[46] However, because of inadequate medical records, I am unable to conclude that medical care generally is minimally adequate.
There are significant lapses in the medical records of the residents of FSH & TS and LLH & TS. The medical records demonstrate an incomplete medical analysis and understanding of the residents. The records lack broad descriptions of a resident's clinical status. Instead, the records contain repetitive listings which reflect a lack of individualized analysis. These matters may affect a resident's health and long-range outlook. They may lead to the loss of necessary interventions. The inadequacy of the medical records at both facilities is unacceptable.
c. Reasonable Conditions of Safety
The Supreme Court recognized that "an institution cannot protect its residents from all danger of violence if it is to permit them to have any freedom of movement. The question then is not simply whether a liberty interest has been infringed but whether the ... lack of absolute safety is such as to violate due process." Youngberg, 457 U.S. at 320, 102 S.Ct. at 2460. In the instant case the evidence showed that defendants failed, in various ways, to provide reasonable conditions of safety for the residents of LLH & TS and FSH & TS.
i. Abuse
Regrettably, residents of LLH & TS have been subjected to abuse. Although the evidence indicated that the frequency and severity of abuse was greater prior to the initiation of this litigation, there was some evidence from which it could reasonably be inferred that abuse has continued as recently as 1989, prior to the arrival of Administrator LaCourt. In 1986, four residents of LLH & TS received abrasions and puncture wounds which a state court found to constitute abuse and neglect. Another resident of LLH & TS was sexually assaulted and died two days later. These acts of violence were unexplained and unaccounted for by the facility. More recently during 1989, a staff member of LLH & TS repeatedly kicked a resident and only received a suspension, although in the opinion of the acting administrator, the abusive staff member should have been terminated.
ii. Accident and Injury
LLH & TS and FSH & TS have established policies and procedures for documenting accidents and injuries. The records show that residents of LLH & TS and FSH & TS frequently sustain injuries. Although it is not uncommon 1307 for developmentally disabled persons such as the residents of FSH & TS and LLH & TS to *1307 sustain injuries,

the evidence showed that there are a number of injuries occurring repeatedly with no attempted pattern analysis and no intervention by the interdisciplinary teams to make changes in the plans to prevent further accidents or injuries. In addition, reports of a number of accidents indicate that the accidents had been witnessed by staff but no known causes are cited.
d. Freedom from Unreasonable Restraints
The Supreme Court acknowledged that "there are occasions in which it is necessary for the state to restrain the movement of residents 0907 for example, to protect them as well as others from violence." Youngberg, 457 U.S. at 320, 102 S.Ct. at 2460. However, restraints must be applied pursuant to the exercise of professional judgment.
i. Chemical Restraints
The evidence presented at trial showed that the use of psychoactive medications at LLH & TS and FSH & TS comports with professional standards. Psychoactive medications are prescribed in consultation with a psychiatrist, regularly reviewed by the resident's IDT, and subjected to further review by various committees. Psychoactive medications are administered pursuant to the exercise of professional judgment.
ii. Physical Restraints
There is no evidence in the record that the residents of FSH & TS are subject to inappropriate physical restraints. The evidence showed that aversive programming and time out rooms are not used at FSH & TS. Physical restraints have never been used as part of a behavioral program and are only used on an emergency basis.
By contrast, LLH & TS used physical restraints such as time out rooms, the papoose board and aversive stimuli as recently as 1988. Defendants' expert, Dr. Haywood, found that time out was used as punishment rather than as a training mechanism, and that papoose boards were an unnecessary restraint in most instances. With one exception LLH & TS has eliminated the use of these physical restraints. The papoose board now is only employed in the context of dental procedures pursuant to an individualized determination by the dentist that the restraint is necessary to insure the safety of the resident; and that decision is reviewed by the IDT. Time out rooms have been dismantled and there are no residents subject to aversive stimuli or four point restraints. One resident has a camisole as part of the resident's behavior program but a professional determination has been made that it is appropriate.
However, residents of LLH & TS have been subjected to physical restraints as a result of insufficient staffing. On two separate occasions, residents were observed restrained to toilets. The restraints were not applied pursuant to the exercise of professional judgment to assure safety or to provide needed training. They were not part of a toilet training program in the IPPs. Rather, the residents were restrained because only one staff member was available to assist six residents. Physical restraints, such as those observed by the state surveyors, that necessarily result from understaffing violate the residents' liberty interest in freedom from undue physical restraints.
e. Minimally Adequate Training
The Supreme Court defined minimally adequate training to mean "such training as an appropriate professional would consider reasonable to ensure ... safety and to facilitate [the residents'] ability to function free from bodily restraint." Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. The residents at FSH & TS and LLH & TS are not being provided minimally adequate training.

i. IDT Process
The processes through which the current IPPs are derived at LLH & TS and FSH & TS comport with professional standards. Each resident's IDT develops an individual program plan at least annually and revises it as needed throughout the year. Prior to each resident's annual meeting, the appropriate professionals at each facility assess 1308 the resident's strengths and needs. The *1308 assessments are current and the assessment instruments now in use at the facilities comply with professional standards.
ii. IPPs
LLH & TS fails to provide its residents with individual program plans that meet professionally acceptable minimum standards. IPPs are insufficiently resident specific to address the resident's individual needs. IPP objectives for the residents of LLH & TS are not individualized. IPPs fail to specify needed interventions or mechanical supports and lack adequate criteria for determining success or failure.
iii. Training Programs
The programming at LLH & TS and FSH & TS is professionally unacceptable. The physical space available for training activities at LLH & TS and FSH & TS is inadequate. The training programs do not adequately teach functional skills and are age inappropriate. For example, training materials include peg boards and form boards and residents work with artificial zippers and simulated telephones. Although nonfunctional materials are no longer being ordered, existing nonfunctional materials continue to be used. Where the programming is functional and age appropriate, there is so little carryover from the classroom to daily life that the training program is largely rendered meaningless. Carryover from the classroom to the living units is an enforcement technique that is particularly necessary for the developmentally disabled.
iv. Implementation of IPPs
Both LLH & TS and FSH & TS fail to implement adequately individual program plans and professional recommendations. The root cause for this deficiency is that direct care staff at LLH & TS and FSH & TS lack adequate training and supervision. The lack of adequate training and supervision of direct care staff falls substantially below professionally acceptable minimum standards. Direct care staff also lack adequate supervision by professional staff such as QMRPs who need to monitor better the delivery of services to residents.
As a result, direct care staff are unfamiliar with basic requirements of a resident's needs. Consequently, direct care staff undertake duties as to which they lack training exposing residents to considerable risk of harm. For example, staff members are not adequately trained in proper feeding techniques before they begin working with residents with complex needs. Improper feeding techniques can place residents in danger of choking on food.
Direct care staff are also unaware of the goals and methods contained in the residents' IPPs. Most of the programming at LLH & TS and FSH & TS is designed by clinicians 0907 doctors, psychologists, physical and occupational therapists. Implementation of this programming falls to direct care staff. Unless direct care staff have sufficient familiarity with the residents and have requisite skills to implement professionally required programming, the programming cannot succeed.
v. Rehabilitation Services
The record clearly establishes that for many years LLH & TS and FSH & TS afforded few rehabilitation services to the residents. Residents were denied direct therapy services because of a lack of adequate staff. As to the adequacy of the rehabilitation services presently provided at LLH & TS and FSH & TS, plaintiffs' and defendants' experts offered diametrically opposed opinions. For example, on the question of whether physical therapy

actually has any therapeutic benefit defendants' expert testified that physical therapy cannot affect the natural progression of many contractures. On the other hand, plaintiffs' expert maintained that therapeutic equipment can be used to correct deformities.
Although my personal belief is that the truth lies somewhere between those views expressed by the parties' experts, I am constrained by the Youngberg standard and must therefore conclude that the number of therapists providing rehabilitation services, the rehabilitation assessments being made, and the quality of programming 1309 currently being provided at LLH & TS and FSH & TS comport with minimal professional *1309 standards. However, LLH & TS lacks the necessary adaptive equipment to render professionally acceptable rehabilitation services. Residents are not provided with adequate individualized adaptations. Adaptive equipment that is used for training in the classroom is not available in the living units.
vi. Professional Staff
The psychology department at LLH & TS is understaffed. At the time of trial there were a number of professional staff positions in the psychology department at LLH & TS which had been authorized but had not been filled. Most importantly, LLH & TS lacks a chief psychologist who defendants' expert testified is necessary for the supervision and training of the existing staff in assessment and treatment strategies.
The existing vacancies, particularly that for the chief psychologist, take on greater importance in light of the fact that the psychology staff at LLH & TS is not sufficiently trained. Psychologists on staff are not capable of sophisticated psychoeducational and behavioral pediatric assessments, and are not competent in psychological treatment modes beyond behaviorism.
vii. Behavior Management
LLH & TS and FSH & TS have failed to provide adequate behavior management programming designed to treat maladaptive behaviors. Behavior management programs at FSH & TS are not state of the art. At LLH & TS, behavioral data collection methods often are unspecified; and where methods are specified the categories of maladaptive behaviors are so broadly defined that useful data are not recorded. Behavioral programs are not changed as conditions require.
Direct care staff at LLH & TS are unaware of the contents or existence of the required programs for dealing with this behavior. Even when staff are familiar with the programs, they do not consistently and effectively intervene in instances of inappropriate behavior. Nor are direct care staff able to accomplish a long-term generalization of acceptable behavior. The failure to implement adequately behavior management programs can result in harm both to the resident who exhibits improper behavior and to others, and may result in the use of otherwise unnecessary chemical or physical restraints.
f. Regression
Justice Blackmun, in a concurring opinion, expanded the minimally adequate training required by the Constitution to include "such training as is reasonably necessary to prevent a person's preexisting self-care skills from deteriorating because of his commitment." Youngberg, 457 U.S. at 327, 102 S.Ct. at 2464. Liability may be imposed where a person can demonstrate that he or she entered a state institution with minimal self-care skills, but lost those skills after commitment because of the state's refusal to provide training. The concurring justices reasoned that "for many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs, is as much liberty as they ever will know." Id. A court should also defer to the judgment of qualified professionals as to whether or not, and to what extent, institutional training would preserve a person's pre-existing skills. Id.[47]
Defendants correctly note that plaintiffs presented no credible evidence that any resident at either facility has 1310 regressed as a result of any inadequacy in the resident's *1310 training program. However, the defendants'

failure to maintain adequate documentation has rendered that task virtually impossible. The evidence presented at trial demonstrated that the program plans do not specify the type of data and frequency of data collection necessary to assess regression or progress, and that the plan objectives are not expressed in terms that provide measurable indices of performance. Even when the data collection procedures are in place, direct care staff are unsure of how to collect the data, or the data recorded varies with the person collecting the data. Because of inadequate documentation and the absence of baseline data it is impossible to determine whether, as a result of omissions or commissions by the institutions, a resident's basic self-care skills had deteriorated after entering one of the institutions.
g. Community Placement
i. IDT Recommendations for Community Placement
It is well settled that there is no substantive due process right to habilitation in the least restrictive environment and there is no constitutional right to placement in a community setting. This position is supported by the conclusions reached in a number of cases. See e.g. Lelsz v. Kavanagh, 815 F.2d 1034, 1035 (5th Cir.1987) (denying rehearing en banc), cert. dismissed 483 U.S. 1057, 108 S.Ct. 44, 97 L.Ed.2d 821 (1987); Thomas S. v. Morrow, 781 F.2d 367, 375 (4th Cir.1986), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 90 L.Ed.2d 673 (1986); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1248 (2d Cir.1984); Phillips v. Thompson, 715 F.2d 365 (7th Cir.1983); Doe v. Public Health Trust, 696 F.2d 901 (11th Cir.1983); Johnson v. Brelje, 701 F.2d 1201, 1210 (7th Cir.1983). However, these decisions did not involve a discrete recommendation for treatment made by qualified professionals to meet the needs of an individual, as contemplated by Youngberg. For example, in Society for Good Will, the district court ordered that 400 residents be placed in the community, finding that by failing to provide enough community placements defendants had "unduly restrained many residents for whom institutional life precludes the exercise of basic liberties." 572 F.Supp. 1300, 1347 (E.D.N. Y.1983). The Second Circuit reversed, holding that mere residence at an institution, without more, does not violate due process. 737 F.2d at 1247. The Second Circuit faulted the district court for assuming that the Youngberg professional judgment standard is not met if experts at trial disagree with care or treatment decisions that were actually made, or think another course of conduct would have been better. 737 F.2d at 1248. ("`professional judgment' has nothing to do with what course of action would make patients `safer, happier and more productive'").
In Thomas S. v. Flaherty, 699 F.Supp. 1178 (W.D.N.C.1988), aff'd 902 F.2d 250 (4th Cir. May 9, 1990) cert. denied, ___ U.S. ___, 111 S.Ct. 373, 112 L.Ed.2d 335 (1990), a group of mentally retarded adults filed a class action alleging that they were being inappropriately housed in public psychiatric institutions in North Carolina under conditions violative of their constitutional rights. As required by Youngberg, the district court presumed that the decisions of the treating professionals were valid, but found that many of these decisions had not been implemented. Id. at 1191.
The court also found areas in which the decisions of the treating professionals substantially departed from accepted standards. Specifically, the court found that the Secretary's decision "to ignore the community placement recommendations of the state's treating professionals" substantially departed from accepted professional standards. Id. The court further found that the lack of adequate community services resulted in the unnecessary confinement of class members in highly restrictive settings for lack of another place to go. The court recognized a tendency among human service professionals in the institutions to conform their recommendations for treatment or habilitation of class members to the constraints imposed by the state's "inadequate service 1311 delivery system, rather than to exercise true professional judgment." *1311 Id. at 1196. The court addressed the issue of behavioral problems and found that the presence of such problems did not excuse the state from providing appropriate placement services. Id. at 1194.
Based on the foregoing findings, the court ordered habilitation in "a training setting which approximates the more normal environment against which their increasing independence will be measured," "the development of individual plans for moving class members to more normal settings," and "the provision of alternative habilitation settings where professional recommendations can be carried out." 699 F.Supp. at 1204. The Fourth Circuit

affirmed, interpreting the district court's order not to require community placement of all class members, but rather merely to establish a process by which the needs of each class member would be evaluated by professionals on a case-by-case basis. At 1252.
Similarly, in Clark v. Cohen, 794 F.2d 79 (3rd Cir.1986), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986) the court held that the plaintiff's substantive right to treatment under Romeo was violated where despite several years of expressions of unanimous professional judgment that plaintiff be placed in the community, she remained at the institution. 794 F.2d at 87. See also Thomas S. v. Morrow, 781 F.2d 367, 375 (4th Cir.1986) (court ordered transfer from hospital to community group home based on recommendations of professionals).
The instant case is not one in which professionals have disagreed on community placement decisions or have concluded merely that community placement would be "better." In this case the state's own treating professionals have made community placement recommendations which the defendants have failed to implement. There are at least sixty-four residents at LLH & TS and twenty-four residents at FSH & TS, including many named plaintiffs, for whom placement in community settings such as group homes has been recommended by the state's treating professionals; and the recommendations have been incorporated into the residents' treatment plans, but have not been implemented. These recommendations were made by qualified professionals who were familiar with the treatment needs of the residents and were acting within their respective areas of expertise; the recommendations are therefore accorded a presumption of validity. Despite these recommendations the residents remain at the institutions because of a severe lack of community-based services in New Mexico. However, lack of available alternatives does not excuse defendants from providing care in community settings for those individuals whose IDTs have, in the exercise of their professional judgments, recommended community care.
Dr. LaCourt, the administrator of LLH & TS, rendered a general opinion that the residents of LLH & TS who have been recommended for community placement by their IDTs are appropriately placed at LLH & TS. However, he acknowledged that placement decisions cannot be made on a generalized basis. He agreed that the decisions have to be made on an individualized basis, weighing the strengths and needs of a resident and whether a particular placement can accommodate those strengths and needs. Also, he acknowledged that the decision cannot be that of any individual, but rather must be a collective decision based on the IDT's referral process.
In interpreting the IDT recommendations for community placement, Dr. LaCourt testified that the fact that a resident has been referred for community placement by the resident's IDT does not indicate that the resident is receiving inappropriate services at LLH & TS, but rather that a different kind of service provider might be able to offer longer lasting benefits for the resident. There is no evidence, however, that Dr. LaCourt was a member of any of the IDTs or that he otherwise participated in the IDTs' exercise of professional judgment as to the placement recommendations for these residents when collective professional decisions were made. The defendants did not present specific evidence, based on individualized assessments, as to whether the services 1312 provided at LLH & TS *1312 were appropriate to the needs of these individual residents.
Accordingly, it cannot be said that the professional recommendations made by the IDTs are merely statements of a course of action that "might be able to provide longer lasting benefits for the resident," as was the case in Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1248 (2d Cir.1984). What can be said is that individualized determinations were made by IDTs consisting of qualified professionals, who after assessing the strengths and needs of the individual residents against the available resources in a particular setting, determined that in their professional judgment a particular resident should be recommended for community placement. Accordingly, defendants' failure to implement the recommendations of their own treating professionals violates due process.
ii. IDT Determinations Based on Unavailability of Community Services
Professional judgment must be based on what is appropriate, not upon what resources are available. Deference to professional judgment requires "the decision be one based on medical or psychological criteria and not on exigency, administrative convenience, or other nonmedical criteria." Clark v. Cohen, 613 F.Supp. 684, 704 and n. 13 (E.D.Pa.1985) aff'd, 794 F.2d 79 (3rd Cir.1986), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404

(1986); Lelsz v. Kavanagh, 673 F.Supp. 828, 835 (N.D.Tex.1987). Institutional confinement which results from an absence of appropriate alternatives is not based on professional judgment.
Many residents of LLH & TS and FSH & TS are not recommended for community placement because of the unavailability of proper community services for those residents. Residents' records demonstrate that treating professionals conform their recommendations to the constraints imposed by the limited nature of existing community resources. Professionals have modified their judgments by focusing on available treatment rather than appropriate treatment, a human reaction. The lack of minimally adequate community based services has prevented the exercise of professional judgment by the treating professionals. Records contain statements to the effect that community placement will be considered for a particular resident when adequate community services become available; such statements do not reflect the unrestrained exercise of professional judgment as to the appropriateness of community placement for a particular resident. The residents are entitled to treatment recommended by qualified professionals whose judgment is unsullied by consideration of the fact that the state does not provide funding for appropriate service in community settings.
iii. No IDT Recommendation for Community Placement
Many residents of the institutions have been referred for community placement pursuant to state court orders,[48] or at the request of a resident's parent or guardian, notwithstanding an interdisciplinary team determination not to recommend community placement. Plaintiffs assert that community placement of all residents is necessary to effectuate their right to safety, freedom from restraint and adequate habilitation.[49]
The state's treating professionals have exercised professional judgment and have determined that community placement would not be appropriate for these residents. Although experts on both sides endorsed the general concept of the desirability of community placement for most developmentally disabled people given appropriate resources, the experts disagreed on the appropriateness of community placement for all residents and on 1313 whether institutions *1313 can provide adequate care and habilitation.[50]See Tr. 10/17/89 at 126-130 (Rowe); Tr. 1/5/90 at 180-183 (Klein); Tr. 4/3/90 at 167 (Franczak); Tr. 10/31/89 at 62-63, 73-77 (Haywood); Tr. 4/20/90 at 121-122 (Reid); Tr. 4/4/90 at 153-157, 164-165 (Crocker); Tr. 4/13/90 at 77 (Conroy). In this situation, I am unable to require under the applicable law that defendants provide community residential settings for all residents of LLH & TS and FSH & TS, regardless of their circumstances. "[M]ere residence in an institution or school for the mentally retarded, without more, does not violate due process." Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1247 (2d Cir.1984). While I personally am convinced that there is no substitute for community placement if assimilation of the developmentally disabled into the mainstream of society is the ultimate goal, the value of community placement does not necessarily translate into a legal entitlement. For whatever reason, as regards its developmentally disabled citizens, New Mexico has failed to follow the lead of other states or the directives of its own Developmental Disabilities Community Services Act. However, the fact that the state of New Mexico has not fulfilled its legislated goals for its developmentally disabled citizens, does not mandate a conclusion that the plaintiffs have been deprived of a constitutional right.
2. Procedural Due Process
Procedural due process is a guarantee that a state will not deprive individuals of an identified liberty or property interest without the benefit of certain procedures, such as notice and an opportunity to be heard. The interest may derive from state law. A state statute confers a right when it uses "language of an unmistakably mandatory character, requiring that certain procedures `shall,' `will,' or `must' be employed." Hewitt v. Helms, 459 U.S. 460, 471-472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983).
Plaintiffs' Fourth Amended Complaint by Interlineation alleges that defendants have violated all the due process rights to which plaintiffs are entitled under the New Mexico Mental Health and Developmental Disabilities Act, § 43-1-1 et seq. NMSA 1978 (1989 Repl.), and the Developmental Disabilities Community Services Act, § 28-16-1 et seq. NMSA 1978 (1987 Repl.).[51]

Section 28-16-8 of the Developmental Disabilities Community Services Act requires that the Health and Environment Department "establish minimum requirements for admission, and withdrawal of residents from services funded by the department." Section 43-1-13 establishes the procedures for residential placement if, upon evaluation, a facility decides to recommend such services. The statute requires that the facility file a petition for residential placement in state court. The court must then appoint an attorney to represent the resident at the hearing. Plaintiffs raised a question as to whether the residents at FSH & TS who are not represented by Protection and Advocacy System are being afforded due process at the commitment hearings. However, plaintiffs 1314 failed to present any specific evidence from which *1314 I could conclude that a due process violation has occurred.
Plaintiffs did show that LLH & TS and FSH & TS have failed to establish minimum criteria for discharge of a resident. Until recently, the individual program plans at LLH & TS had no formalized criteria for discharge. At FSH & TS each resident's IPP contained a formal discharge plan. However, a typical discharge plan at FSH & TS set forth numerous goals that a resident had to achieve to qualify for discharge. Yet, despite the lengthy stated requirements, testimony at trial showed that FSH & TS does not in fact expect a resident to meet all the programmatic goals listed in the resident's discharge plan, but rather showed that these are merely "suggested" criteria.
Plaintiffs' remaining allegations involve substantive provisions, such as the right to prompt treatment, § 43-1-7, and habilitation services, § 43-1-8, which cannot form the basis of a federal court order. It is well established that the Eleventh Amendment prohibits a federal court from ordering a state or its officials to conform their conduct to substantive state law. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984).
3. Equal Protection Clause
In Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442, 105 S.Ct. 3249, 3255, 87 L.Ed.2d 313 (1985), the Supreme Court held that the rational basis standard of equal protection analysis applied to a challenge to zoning laws under which a city denied a special use permit for the operation of a group home for the mentally retarded. Therefore, "[t]o withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose." Id. at 446, 105 S.Ct. at 3258.
Plaintiffs contend that defendants have failed to identify any legitimate justification for their continued "segregation" of persons with retardation.[52] The evidence adduced at trial showed that placements at LLH & TS and FSH & TS are made pursuant to a highly individualized process that focuses on the particular needs and attributes of each person. That process includes a review by professionals as well as a judicial determination that the individual would receive appropriate services in that setting.
The evidence also showed that some physicians and psychologists believe that the best setting for the care of persons with severe disabilities is a state residential facility. A number of professionals, including some of plaintiffs experts, testified that congregate care facilities are appropriate and should continue to occupy a place in the continuum of services for the developmentally disabled. Some of these professionals went even further by testifying that institutional services may be of significantly better quality than those available in home or community facilities. In light of this evidence, I cannot accept the contention that placement of developmentally disabled persons at LLH & TS and FSH & TS lacks any rational basis.
C. Claims for Attorneys' Fees
Plaintiffs have made a general request for an award of attorneys' fees and costs. Third Amended Class Action Complaint, page 75, paragraph 4 of prayer for relief. However, plaintiffs have not stated anywhere in their Third Amended Class Action Complaint a statutory or other basis for an award of attorneys' fees. Since plaintiffs alleged jurisdiction under 42 U.S.C. § 1983 (Third Amended Class Action Complaint, page 5), presumably one basis for an award of attorneys' fees that will be advanced by plaintiffs is 42 U.S.C. § 1988. Intervenors, in their

1315 Complaint in Intervention, made no *1315 request for attorneys' fees. The parties were not requested to brief the issue of attorneys' fees post trial or to submit requested findings and conclusions as to attorneys' fees. Since the parties have not had an opportunity to present their positions on claims for attorneys' fees, they should be permitted to submit supplemental proposed findings of fact and conclusions of law and briefs in regard to those claims. However, in view of the extensive factual findings and legal conclusions set forth above, I am, without the need of further briefing, in a position to reach certain general findings and conclusions regarding the claims for attorneys' fees that will not foreclose the parties from arguing the legal bases for such claims, the scope of the claims as to which attorneys' fees may be awarded, or the reasonableness of rates requested or amount of time for which fees are requested. Nevertheless, in the hope that the parties will undertake, in good faith, to reach agreement on awards of attorneys' fees, I make the following general findings and conclusions:
1. As a result of the evidence presented by the plaintiffs, although they did not achieve their ultimate goal of having LLH & TS and FSH & TS closed, plaintiffs obtained substantial court ordered relief for the residents in the nature of mandated correction of multiple deficiencies at the institutions.
2. In addition to gaining significant court ordered improvements to the institutions, by filing and pursuing this lawsuit plaintiffs have helped bring about important changes in the institutions of great benefit to the residents, which have occurred during the course of this litigation; this lawsuit clearly has been a catalyst prompting those changes.
3. In addition, plaintiffs succeeded in obtaining court ordered release to community settings of many residents whose IDTs long ago had recommended their placement in the community and court ordered professional reconsideration by IDTs of recommendations against community placement that may have been improperly influenced by taking into account the lack of available community services.
4. Moreover, plaintiffs were successful in gaining prospective injunctive relief as to future IDT recommendations of community placements and as to a time limit for placement following recommendation of community placement by an IDT.
VII. Relief
Because of their intimate familiarity with the residents of the institutions for whom I am ordering relief and with the operations of LLH & TS and FSH & TS, the parties, in the first instance, shall attempt to formulate by agreement a plan to correct the deficiencies that have been identified in this Memorandum Opinion and Order. I contemplate adopting such an agreed plan of correction as part of my order for relief. However, it is also appropriate to establish some guidelines to be followed by the parties in their effort jointly to formulate a plan of correction and I will attempt to do so without getting too deeply involved in detail.
Based on my findings of fact and conclusions of law set forth above, the parties are to address correction of deficiencies in the following areas:
1. Individual program plans,
2. Medical records,
3. Discharge plans,
4. Data collection,
5. Qualified mental retardation professional services,
6. Behavior management,
7. Use of physical restraints,
8. Prevention of abuse of residents,
9. Reduction of accidents and injuries to residents,

10. Reports of abuse, accidents and injuries,

11. Staff supervision,

12. Preservice training of staff,

13. In-service training of staff,

14. Sufficiency of professional staff,

15. Adaptive equipment,

16. Functional and chronologically age appropriate programming,

1316

*1316 17. Coordination between residential areas and training program areas,

18. Inadequate space in training program areas.

The plan of correction to be developed by the parties as to each of these deficient areas should address, at a minimum, the following:

1. Formulation of a detailed written policy to be adopted by and followed at each institution,

2. Designation of a representative or representatives of each institution who will be primarily responsible for assuring implementation of the policy,

3. A description of strategies to be adopted by each institution to achieve the goals of the correction plans,

4. A detailed timetable establishing deadlines by which specific components of the correction plan for each deficiency will be achieved;

5. Means of assuring continued compliance with appropriate standards after correction of the deficiencies has been achieved.

The parties should confer as expeditiously and frequently as practicable for the purpose of attempting to agree to a plan of correction as suggested above, contemplating submission of a detailed plan of correction to the court by not later than April 1, 1991. The plan of correction should establish a timetable that will lead to complete correction of all deficiencies by not later than September 10, 1991.

In regard to each resident of LLH & TS and FSH & TS whose IDT has recommended placement in a community setting, defendants should forthwith prepare a written plan for the orderly transfer of the resident to an appropriate community setting. By not later than March 1, 1991, defendants should provide copies of all of the plans to plaintiffs and should provide to intervenors copies of the plans for those residents whose transfers affect interests of the intervenors. Each plan should describe (1) the activities and interventions to be conducted prior to community placement to assure an orderly transition from LLH & TS or FSH & TS to the community setting; (2) the specific objectives of the activities and interventions, stated in measurable terms with realistic deadlines by which they are to be achieved, which will prepare the resident for transfer, assure availability of appropriate care in the community setting and involve participation by family members and/or guardians in the process; (3) the representatives of LLH & TS or FSH & TS who will be responsible for assuring accomplishment of the plan's goals; (4) the outside date of final placement in the community setting, which shall be not later than 200 days after implementation of the plan begins; (5) the full scope of community programs and services to be provided to support an effective community placement; and (6) any other subjects the resident's IDT believes, in the exercise of professional judgment, should be included in the plan. If plaintiffs or intervenors have concerns about any plans, they should confer with defendants immediately after receiving the plans in a good faith effort to resolve their concerns, which may be by amendments to plans, if appropriate. By not later than April 1, 1991 plaintiffs and/or intervenors should file with the court and serve on defendants a statement of any remaining objections they may have to, and their proposals for amending, any particular plan.

In regard to those residents of LLH & TS and FSH & TS whose IDTs have made decisions against community placement that were influenced by the unavailability of adequate community services, defendants should convene IDT meetings to reconsider and to make recommendations about community placement that do not take into account the present availability or unavailability of community services. The IDT meetings should be held in time to complete all such written recommendations and have them made a part of the residents' IPPs by April 1, 1991.
By not later than June 10, 1991 defendants should prepare transfer plans (as described above for residents 1317 whose IDTs have already recommended community placement) for all residents whose IDTs, *1317 after
reconsideration without taking into account availability of community services, make new recommendations of community placement. By June 10, 1991 copies of these transfer and placement plans should be provided to plaintiffs and copies of plans affecting interests of intervenors should be provided to them. Plaintiffs and intervenors should immediately thereafter confer with defendants in a good faith effort to resolve their concerns with any of the plans. By not later than July 1, 1991 plaintiffs and/or intervenors should file with the court and serve on defendants a statement of any remaining objections they may have to, and their proposals for amending, any particular plan.
IDTs, when considering whether to recommend community placement for a resident, should not be influenced by the availability or unavailability of then existing community services. Consequently, the defendants should be enjoined from permitting IDTs in the future to take into account availability or lack of availability of community services in reaching a recommendation as to whether a resident should be served in the community.
Since many residents of LLH & TS and FSH & TS have not been placed in community settings despite recommendations for community placement having been made by their IDTs long ago, a general deadline for transfer from an institution to a community setting should be set. Two hundred days is a reasonable time within which LLH & TS and FSH & TS should be able to accomplish transfer of a resident to a community setting following a community placement decision by the resident's IDT, in the absence of extraordinary circumstances warranting an extended period.
By not later than April 1, 1991, the parties should confer, in good faith, in an attempt to reach agreement on the claims for attorneys fees. In the event agreement is not reached, plaintiffs and intervenors should file by April 15, 1991 supplemental proposed findings of fact and conclusions of law and briefs relating to their claims for attorneys' fees; defendants should file by May 1, 1991 their supplemental proposed findings of fact and conclusions of law and briefs on the claims for attorneys' fees.
IT IS THEREFORE ORDERED that:
1. The parties shall confer as expeditiously and frequently as practicable for the purpose of submitting to the court by not later than April 1, 1991 an agreed plan for correction of deficiencies consistent with the directions set forth above.
2. In the event the parties are unable to reach agreement on all aspects of the relief ordered as to correction of deficiencies, and fail to complete an agreed plan by April 1, 1991, the parties shall:
a. By not later than April 1, 1991 file with the court those parts of a plan of correction to which the parties have been able to agree; and
b. By not later than April 10, 1991, file with the court detailed statements setting forth the reasons the parties have been unable to agree on specific points in a plan of correction, with each party's proposal for each part of the plan of correction as to which there is disagreement. (Following review of the proposals, a hearing may be scheduled, if appropriate.)
3. If any party is in any manner recalcitrant in promptly complying with this Order, a monitor or special master may be appointed; however, as of this time, trusting that the parties will in good faith attempt to resolve any minor differences that may exist among them with reference to the implementation of the relief ordered regarding

correction of deficiencies at LLH & TS and FSH & TS, appointment of either a monitor or a special master appears to be unnecessary.
4. Defendants shall, by not later than March 1, 1991, prepare a written plan of transfer to an appropriate community setting for each resident whose IDT has recommended placement in a community setting and shall provide copies of the plans to plaintiffs and/or intervenors, as appropriate, containing the information above 1318 described; plaintiffs and/or intervenors shall, by not later than April 1, 1991, file and *1318 serve objections to, and proposals for amending, any particular plan.
5. Defendants shall convene IDT meetings for those residents whose IDTs have made decisions against community placement that were influenced by the unavailability of adequate community services for the purpose of making new written recommendations regarding community placement that do not take into account the availability of community services; and by not later than June 10, 1991, defendant shall prepare appropriate transfer plans for all residents whose IDTs, after reconsideration, make new recommendations of community placement and shall provide copies of those plans to plaintiffs and/or intervenors, as appropriate; plaintiffs and/or intervenors shall by not later than July 1, 1991, file and serve objections to, and proposals for amending, any particular plan.
6. Defendants are hereby permanently enjoined from permitting IDTs to take into account the availability or lack of availability of community services in reaching a recommendation as to whether a resident should be served in the community.
7. Defendants shall accomplish transfer of a resident to a community setting within 200 days following a community placement recommendation by the resident's IDT, in the absence of extraordinary circumstances warranting an extended period.
8. By not later than April 15, 1991, the parties shall submit an agreed order as to claims for attorneys fees or, if agreement has not been reached, plaintiffs and intervenors shall file supplemental proposed findings of fact and conclusions of law relating to their claims for attorneys fees; and defendants shall file by not later than May 1, 1991 their supplemental proposed findings of fact and conclusions of law and briefs on the claims for attorneys fees.
[1] "Developmental disability" refers to a general category of disorders usually first evident in infancy, childhood, or adolescence, including mental retardation. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 3-4 (3d ed. revised 1987). The New Mexico Developmental Disabilities Community Services Act defines "developmental disability" as a "severe chronic disability of a person which is attributable to a mental or physical impairment or a combination of mental and physical impairments; is manifested before the person attains age twenty-two; is likely to continue indefinitely; results in substantial functional limitations in areas of major life activity; and reflects the person's need for a combination and sequence of special interdisciplinary or generic care, treatment or other services which are individually planned and coordinated. Persons who are diagnosed as mentally retarded, cerebral palsied, epileptic or autistic and who have at least one functional limitation in an area of major life activity [are] considered developmentally disabled. Infants and preschoolaged children at risk of being developmentally disabled [are] also ... considered developmentally disabled." § 28-16-3 (D) NMSA 1978 (1987 Repl.).
[2] Plaintiffs and Intervenors claim that the actions complained of have deprived them of their rights under the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution.
[3] After the close of trial, plaintiffs moved for leave to amend the complaint to allege claims arising under the Americans with Disabilities Act of 1990. The effective dates of the applicable sections of that Act range from eighteen to twenty-four months from the date of enactment, July 26, 1990. That Act imposes no present enforceable duties on defendants. Accordingly, plaintiffs' motion for leave to amend was denied.
[4] The ten plaintiffs who continue to reside at LVMC are Virgil Addison, Felicia Botello, Joseph Baca, Viola Gurule, Damon Keeswood, Jose Martinez, Robert McHenry, Ted Nichols, Edwin Vasquez, and Benjamin Romero.

[5] Another named plaintiff, Richard Stanfield, was discharged from FSH & TS on June 29, 1987 and no evidence was offered about him.
[6] The interdisciplinary team process is described more fully below.
[7] Coffin-Lowry Syndrome is a rare inherited disorder that has multiple congenital anomalies. Historically, there have only been approximately fifty diagnosed cases in the world. Tr. 4/4/90 at 97-98 (Crocker); Tr. 4/23/90 at 71-73 (Brown).
[8] The Act requires that the "developmental disabilities planning council ... conduct a needs assessment to determine the number of developmentally disabled persons resident in New Mexico, the range and degree of severity of their disabilities, their present placement and services being received, their needs for services and the extent to which their needs are unserved or underserved." § 28-16-4 NMSA 1978 (1987 Repl.)
[9] Carolyn Klintworth was the administrator of LLH & TS at the time the complaint was filed in 1987. Miriam Brownstein later served as acting administrator from May 1989 to December 1989 until David LaCourt became the administrator in December 1989.
[10] Ervin Aldaz considers himself a fourth generation employee of FSH & TS. His father was employed at the facility for 31 years.
[11] See Jackson, et al. v. Fort Stanton, et al., No. 87-839, Joint Pretrial Order for Evidentiary Hearings of October 16-19 and October 30-November 3, 1989 at 4 (D.N.M. Oct. 19, 1989).
[12] See footnote 11, supra.
[13] Plaintiff Roseann Crockett is a thirty-three year old woman who resided at FSH & TS until she was transferred to a nursing home in Roswell, New Mexico in 1986. Although Ms. Crockett falls within the class of persons transferred from the institution into a nursing facility, no evidence was presented in support of her individual claim. Therefore, no relief may be afforded to her other than that relief afforded to the class.
The Third Amended Class Action Complaint also named Andre Armenta, Kelli Van Curen, Lacy Walker, Kim Lautenschlager, and Bill Thomas as representatives of a class of mentally and physically disabled individuals who reside at home with their families but are "at risk" of being institutionalized because of a lack of communitybased services. In determining class certification, I found that these five named plaintiffs residing at home do not have the requisite constitutional standing to assert any claims against the state. Jackson, et al. v. Fort Stanton, et al., No. 87-839, slip op. at 3 (D.N.M. May 23, 1989) and therefore, these five individuals do not form part of the class.
Plaintiffs also sought to certify as a subclass all persons residing at the Las Vegas Medical Center who are developmentally disabled. However, I found that the proposed subclass failed to meet the numerosity requirement of Rule 23(a) of the Federal Rules of Civil Procedure. The residents of LVMC, therefore, do not form part of the class.
[14] It is extremely unusual for a survey team to find no deficiencies throughout the course of a survey. Tr. 10/17/90 at 154 (Rowe); Tr. 4/16/90 at 72 (Dalessandri).
[15] Plaintiffs contention that the main course at an evening dinner at Fort Stanton was "unidentifiable," Plaintiffs' Proposed Findings of Fact at 102, does not rise to the level of a constitutional violation.
[16] Defendants note that the number of physicians employed at LLH & TS exceeds the requirements of the Department of Justice Settlement Agreement and that the number of hours of psychiatric consultation at LLH & TS conforms with the settlement. Compliance with the settlement agreement, however, does not place defendants' conduct outside the purview of this court's authority.
[17] The rare incidence of the disease should mandate a full explanation of the bases for the diagnoses.

[18] Plaintiffs also note that the IPPs contain goals to develop skills which the residents have already mastered. Ogle Depos. at 25. However, plaintiffs' expert testified that it is consistent with ICF/MR regulations to implement goals for maintenance of the residents' physical status. Tr. 4/19/90 at 42 (Foster).
[19] Beginning on January 19, 1990, the IPPs of the residents of LLH & TS have included an express consideration of long-term view. Tr. 4/27/90 at 156 (LaCourt).
[20] Psychological evaluations at LLH & TS are more complete than assessments. Evaluations include a formal cognitive or developmental assessment measure and a formal adaptive assessment measure. The annual assessments include only the adaptive assessment measures. Tr. 4/27/90 at 28 (LaCourt).
[21] Pursuant to the terms of the Settlement Agreement, LLH & TS is required to discontinue the use of papoose boards, except as may be medically required based on the exercise of professional judgment, to administer dental or medical treatment. USA v. State of New Mexico, No. 89-1165, Settlement Agreement at 7 (D.N.M. Feb. 2, 1989).
[22] Plaintiffs' expert observed a resident of LLH & TS with his left hand tied down. 11/13/89 at 135 (Cox). However, the parties presented no additional evidence regarding Ms. Cox's observation. In the absence of additional evidence, I am unable to determine whether the restraint was part of the resident's program.
[23] Plaintiffs' expert did not determine how many of the injuries he reviewed were caused by the injured residents' own physical or psychiatric disabilities instead of by other persons or situations. Tr. 4/3/90 at 258-259 (Franczak).
[24] Plaintiffs' expert concluded that at FSH & TS many accidents of unknown cause are not investigated, accident reporting is inconsistent and staff use their own discretion as to whether to report alleged abuse. Tr. 4/2/90 at 262-265 (Franczak). However, Dr. Franczak did not review FSH & TS's abuse reporting forms or behavioral summaries, which contain information about incidents and outbursts. Tr. 4/3/90 at 216-217, 223-224 (Franczak). With the exception of two separate instances involving individuals with challenging behavior, plaintiffs offered no evidence that either institution had failed to investigate allegations of abuse. Tr. 4/3/90 at 259-261 (Franczak).
[25] In February of 1990, LLH & TS expanded preservice training to three days. Tr. 4/4/90 at 276 (Beauregard).
[26] Mandt training is a technique used to deal with either aggressive or non-aggressive residents in order to prevent injury either to the resident or to the person dealing with the resident. Mandt is used at LLH & TS only when a resident becomes violent and needs to be restrained by using some kind of physical force. Tr. 4/4/90 at 279 (Beauregard).
[27] Defendants' expert, Dr. Attermeier, found that the physical therapy staff is competent. A number of therapists have four or five years of experience with the developmentally disabled population. Tr. 12/14/89 at 36-36 (Attermeier).
[28] Plaintiffs' expert found that the speech and language pathologist at LLH & TS are competent. Tr. 12/12/89 at 145 (Beckman). Plaintiffs and intervenors presented no evidence that the number of speech and language pathologists at LLH & TS is insufficient to adequately meet the needs of the residents.
[29] Plaintiffs' expert found that the speech and language pathologists at FSH & TS are competent. Tr. 12/12/89 at 145 (Beckman). Plaintiffs and intervenors presented no evidence that the number of speech and language pathologists at FSH & TS is insufficient to adequately meet the needs of the residents.
[30] Defendants' expert testified that the education programs at FSH & TS and LLH & TS overall "compared favorably" to other programs across the country, although improvements were warranted in certain specific areas. Tr. 4/19/90 at 219 (Reid). The institutions selected for comparison included some that were not ICF/MR certified and some that were the subjects of suits for civil rights violations, such as Fairview Hospital. Tr. 4/26/90 at 108-109 (Reid).

[31] Plaintiffs did not provide specific evidence as to when the first recommendation for community placement was made for each resident by the resident's IDT, but it would appear from reviewing the evidence that in most instances the recommendations for community placement were made much earlier than one year ago.
[32] The Association for Retarded Citizens of Albuquerque ("ARCA") is a community service provider.
[33] This ratio applies to New Mexico. The ratio of medicaid funds to state funds varies among the states. New Mexico has one of the most favorable ratios. By comparison, the neighbor state of Colorado uses the medicaid waiver program to the maximum extent permitted even though it must fund 50 cents of every dollar spent under its waiver program. Tr. 4/9/90 at 194-195 (Sandler); Tr. 4/10/90 at 15 (Sandler).
[34] There was also testimony that there are at least ten million dollars of state funds for programs for persons with developmental disabilities which could serve as a potential match for the Waiver Program. 4/10/89 at 13 (Dossey).
[35] § 84.54 Education of institutionalized persons.
A recipient to which this subpart applies and that operates or supervises a program or activity for persons who are institutionalized because of handicap shall ensure that each qualified handicapped person, as defined in § 84.3(k)(2), in its program or activity is provided an appropriate education, as defined in § 84.33(b). Nothing in this section shall be interpreted as altering in any way the obligations of recipients under Subpart D.
[36] In Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988), the Supreme Court denied an extension of the 10-year delimiting period for educational assistance benefits following military service, in accordance with 38 U.S.C. § 1662(a)(1), to veterans whose alcoholism was the result of willful misconduct. The Court distinguished between those veterans whose alcoholism was the result of an underlying psychiatric disorder and those whose condition arose from "willful misconduct." The Court reasoned that veterans in this second category "... are not, in the words of § 504, denied benefits `solely by reason of [their] handicap,' but because they engaged with some degree of willfulness in the conduct that caused them to become disabled." Id. at 549-50, 108 S.Ct. at 1382. This reasoning does not encompass the severely handicapped plaintiffs in this case, who cannot be faulted for the occurrence of their conditions.
[37] Although the parties did not present any specific evidence on which community programs receive federal assistance, the parties acknowledge that some community providers receive both federal and state funds.
[38] Plaintiffs, in their Post Trial Memorandum, did not comment on this issue.
[39] By this I do not suggest that no conceivable scenario of standards violations would give rise to a private cause of action, even if all eight conditions of participation were met.
[40] An exception will be made if, as has never been the case at LLH & TS and FSH & TS, the surveyors find that the safety or health of the clients are in immediate jeopardy as a result of any outstanding deficiency. 42 C.F.R. § 442.105. Additionally, the regulations require that, where a facility is found to be in compliance with all conditions of participation, but not with all standards, the facility must submit for approval a plan of correction to address each deficient standard prior to being certified. 42 C.F.R. §§ 442.101, 442.105.
[41] In the Memorandum Opinion and Order entered October 5, 1988, I found that Congress had abrogated the states' Eleventh Amendment immunity in the Education of the Handicapped Act. Subsequently, the Supreme Court held that the Education of the Handicapped Act did not abrogate the states' Eleventh Amendment immunity from suit in federal court. Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989). Accordingly, the New Mexico Health and Environment Department, the New Mexico Department of Education, the New Mexico Human Services Department, LLH & TS and FSH & TS are immune from suit under the EHA and the claims against them based on the EHA should be dismissed on that ground.
[42] Section 1415(f) provides in relevant part:

[B]efore the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
[43] The legislative history of the EHA supports this view. During the debate on the Senate Conference Report, Senator Harrison Williams, the principal author of the EHA, explained that "exhaustion of the administrative procedures established under this part should not be required for any individual complainant filing a judicial action in cases where such exhaustion would be futile either as a legal or practical matter." 121 Cong.Rec. 37416 (1975).
[44] Counts V and VI of the Third Amended Complaint allege that defendants have violated the rights of plaintiffs to freedom of expression and association secured by the First Amendment and to privacy, dignity and family integrity and association secured by the First, Fourth, Ninth and Fourteenth Amendments, respectively. However, Plaintiffs' Post Trial Memorandum does not seek relief for these claims. Specifically, although I believe the institutions' sensitivity to and protection of residents' privacy and dignity are problematic, as reflected in my findings of fact, plaintiffs did not brief or submit authorities supporting a constitutional basis for these claims. See Plaintiffs' Post Trial Memorandum at 60. Accordingly, these claims will be deemed to have been abandoned.
Count VIII of the Third Amended Complaint alleges that "[d]efendants have violated the right of [p]laintiffs and the class to freedom from the imposition of unconstitutional conditions ... as a condition for the receipt of services provided by the State." Federal Rule of Civil Procedure 8(a)(2) requires that plaintiffs set forth a short and plain statement of the claim showing that plaintiffs are entitled to relief. Count VIII of the Third Amended Complaint fails to meet the requirements of Rule 8(a)(2).
[45] Although traditionally courts should consider statutory claims first before proceeding to constitutional claims, in this instance it is appropriate to consider the constitutional issues because the law is more developed in that area. See Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1091 (2nd Cir.1990).
[46] The development of hyperpigmentation in some residents at LLH & TS as a result of the use of thorazine is distressing. The medical staff, although aware of the side effects, continued to administer thorazine, after discussing the issue with the consulting psychiatrist. It was not until Dr. Gualtieri recommended that LLH & TS discontinue use of thorazine that LLH & TS did so. Although there has been a marked improvement, the condition has not completely reversed on all the affected residents.
I am mindful of the Supreme Court's admonition that courts should not "second guess" the "presumptively valid" treatment decisions of the treating professionals. Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462. In this instance, although I recognize the unfortunate consequences of the use of thorazine, I cannot say that medical staff failed to exercise professional judgment when they decided to continue to administer the drug.
[47] Courts have adopted the reasoning of Justice Blackmun's concurrence. For example, the Second Circuit has held that an individual has a due process right to training sufficient to prevent basic self-care skills from deteriorating. Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1250 (2d Cir.1984).
The Second Circuit carefully limited its holding to those skills with which a mentally retarded individual entered the institution. Moreover, the court ruled that the right did not encompass such training as will improve a resident's basic self-care skills or skills that are not basic to self-care. Id. ("Where the state does not provide treatment designed to improve a mentally retarded individual's condition, it deprives the individual of nothing guaranteed by the Constitution; it simply fails to grant a benefit of optimal treatment that it is under no constitutional obligation to grant").
[48] Of course, reliance on the state law as grounds for ordering community placement would be impermissible under Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984).

[49] Plaintiffs claim of a constitutional right to community placement or to placement in the least restrictive environment was dismissed. Jackson, et al. v. Fort Stanton, et al., Civ. No. 87-839, slip op. at 19 (D.N.M. Oct. 5, 1988).
[50] For example, plaintiffs' expert Dr. Franczak testified that adequate care and habilitation can be provided in institutions given the right kind of administration, staff and organization. See Tr. 4/3/90 at 167 (Franczak).
[51] Specifically, plaintiffs' allege violations of the rights to legal representation, § 43-1-4; personal rights as provided by § 43-1-6; prompt treatment, § 43-1-7; prompt habilitation services, § 43-1-8; an individualized treatment or habilitation plan, § 43-1-9; an involuntary commitment proceeding, § 43-1-13; consent to or refuse treatment, § 43-1-15; an education in regular classes with non-handicapped minors whenever appropriate, § 43-1-18; confidentiality, § 43-1-19; an assessment of the needs of the state's developmentally disabled population, § 28-16-4; planning for community services for developmentally disabled persons, § 28-16-5; appropriate standards for services, § 28-16-7; minimum requirements for admission, discharge and withdrawal of clients from services, § 28-16-8; effective monitoring of compliance with regulations and other state imposed requirements, § 28-16-9; a system to pay for services which accurately estimates funding requirements, § 28-16-10; and all other procedural due process rights due citizens when their liberty is restrained by the state of New Mexico.
[52] Specifically, Count IV of the Third Amended Complaint alleges that "Defendants have violated the rights of Plaintiffs and the class secured by the Equal Protection Clause of the Fourteenth Amendment by establishing, encouraging, subsidizing, and otherwise sanctioning in de jure fashion enactments, programs, policies and practices that have excluded, separated and segregated persons with retardation."
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 757 F.Supp. 1231 (1990)
Walter Stephen JACKSON, et al., Plaintiffs, v.
FORT STANTON HOSPITAL AND TRAINING SCHOOL, et al., Defendants, v.
John E. and Iris YOUNG, legal guardians and parents of Rita Kay Young, et al., Intervenors.
Civ. No. 87-0839 JP.
United States District Court, D. New Mexico.
December 28, 1990.
1232 *1232 Paul L. Biderman, Santa Fe, N.M., Philip B. Davis, Albuquerque, N.M., Robert Levy, Levy and Geer, P.A., Daniel W. Shapiro, Albuquerque, N.M., Timothy M. Cook, Judith A. Gran, Frank Laski, The Public Interest Law Center of Philadelphia, Philadelphia, Pa., Peter Cubra, Marlene Foster, Protection and Advocacy System for New Mexicans with Developmental Disabilities, Albuquerque, N.M., Ann Tilford Sims, Williams, Conroy & Sims, Belen, N.M., Nancy Koenigsberg, Protection and Advocacy System, Albuquerque, N.M., for plaintiffs.
Barbara Bergman, School of Law, University of New Mexico, Albuquerque, N.M., Guardian Ad Litem, for Felicia Botello.
Kent Winchester (Roberta Beyer, of counsel), Albuquerque, N.M., for applicants-in-intervention plaintiffs.
Vernon W. Salvador, Albuquerque, N.M., for intervenors.
Jerry A. Dickinson, Beth W. Schaefer, Patricia E. Bustamante, Sp. Asst. Attys. Gen., Hal Stratton, Atty. Gen., Chris Coppin, Santa Fe, N.M., Joel I. Klein, Paul M. Smith & Rebecca L. Brown, Onek, Klein & Farr, Washington, D.C., for State defendants.
MEMORANDUM OPINION AND ORDER
PARKER, District Judge.
The subject of this memorandum opinion and order is "Plaintiffs' Motion for Disqualification," filed August 29, 1990. After reviewing the memoranda submitted by the parties in conjunction with the motion, and after consulting the applicable authorities, I conclude that plaintiffs' motion should be denied.
I. Background
This action was filed on July 8, 1987. The case has required numerous proceedings and orders and has involved a multitude of parties and witnesses.[1] After many days of evidentiary hearings on requests for emergency relief beginning in late 1987, the main trial began on October 16, 1989, consuming a total of eight weeks in the following trial segments: October 16-19, 1989; October 30 to November 3, 1989; November 13-16, 1989; December 12-15, 1989; January 2-5, 1990; and April 2-27, 1990. In the course of the trial, many witnesses, most of whom were presented as experts, testified; over eight hundred exhibits were admitted into evidence; and over 10,000 pages of transcripts were recorded.
During the trial I decided that the assistance of a court-appointed expert, with broad expertise in the area of 1233 developmental disabilities, would enhance my ability after trial to articulate an opinion based on *1233 the trial
evidence.[2] In addition, at the time I was considering appointing an expert, which was before I heard all of the

parties' experts testify, I believed it would be useful to have an independent expert available after trial to advise me on whether my conclusions based on the trial testimony and other evidence were professionally understandable and practical.[3] By letter of December 15, 1989, I asked the attorneys to confer and jointly to submit recommendations, or preferably one recommendation, to fill the position. If counsel were unable or unwilling to agree on a joint submission, I requested separate submissions of no more than five recommendations each. Letter to counsel, December 15, 1989.
In early January, 1990 the attorneys conferred but to no avail. In short order, I received three sets of recommendations: defendants provided four nominees, intervenors one, and plaintiffs five, with no common recommendation. The parties offered substantial commentary on their own nominees, as well as on those of the other parties. The defendants and plaintiffs provided lengthy criticisms of one another's selections. I endeavored to select the nominee with the broadest experience who would be the most acceptable to all parties. To that end, I chose Dr. James Foshee, a nominee of the defendants who was then employed as Assistant Commissioner of Mental Retardation Services for the State of Tennessee.
In accordance with my needs, and in consideration of the parties' preferences,[4] Dr. Foshee was an acceptable expert for the duties required of him by the court. Although opposed to Dr. Foshee, the plaintiffs found him to be the least objectionable of defendants' nominees. In discussing those nominees, plaintiffs allowed: "... only one of those individuals even meets the sole criteria [sic] established by the court; only James Foshee could fairly be called a `generalist' in the field of developmental disabilities." And further:
James Foshee comes closest among the four to meeting the criteria plaintiffs have recommended. As assistant commissioner for mental retardation services in the state of Tennessee over the past 14 years he is experienced in administering or contracting for the provision of both institutional and community based services. He can fairly be called a "generalist."
Letter from plaintiffs, January 12, 1990, 2 & 5. Nonetheless, plaintiffs objected to Dr. Foshee for two stated reasons. First, plaintiffs believed that Dr. Foshee's personal and professional relationship with Dr. Carl Haywood, who testified at trial on behalf of the defendants, would inhibit a candid expression of Dr. Foshee's views. Second, they argued that his employment by Tennessee, a state with a relatively high rate of institutionalization, would inhibit his ability or inclination to take positions contrary to that state's practices. Id. at 5-6.
In response to plaintiffs' concerns, I interviewed Dr. Foshee by telephone in early February, 1990. After speaking with him at length, I was fully satisfied that he had no predisposition as to the outcome of the case and would have no difficulty taking positions contrary either to those expressed by Dr. Haywood or to the practices of his employer. Regarding this second point, Dr. Foshee also informed me that he was contemplating retirement within the following few months; as it turned out, before Dr. Foshee toured the institutions or engaged in substantive conversations, he had decided to retire, and did retire from his position with the state before his deposition was 1234 taken. Finally, I was impressed with *1234 Dr. Foshee's willingness to express opinions with frankness and without hesitation. See letter to counsel, February 16, 1990. I informed counsel that although Dr. Foshee would not be present for the completion of the trial, he would review the transcripts of the proceeding and would visit both institutions following the completion of the trial. With respect to his role I explained to all counsel: "I plan to call on Dr. Foshee to assist me with technical questions as well as to comment on trial testimony on which I elicit his views." Id.
Plaintiffs renewed their objections to the impending appointment of Dr. Foshee. Citing Rule 706(a), plaintiffs also argued that communications between the court and Dr. Foshee must be on the record. Letter from plaintiffs, February 23, 1990, 3.[5]
By order of March 28, 1990 I appointed Dr. Foshee as the court expert. My order, which was modelled after an order[6] submitted by the plaintiffs, directed Dr. Foshee: to investigate and evaluate conditions at the two facilities; to evaluate training received by individually named plaintiffs to determine its adequacy in preventing deterioration of self-care skills; to determine and verify the proper basis of placement recommendations by interdisciplinary teams for individually named plaintiffs; to evaluate the reports and testimony of the expert witnesses of all parties; and to offer testimony after trial, if requested, as to his findings and expert opinions.

Additionally, the order granted the parties reasonable opportunity to depose Dr. Foshee after completion of his review, investigation and evaluation and, furthermore, granted the parties the right to cross-examine him on any findings and opinions. Order, filed March 28, 1990. In a letter accompanying the order, I informed the parties: "In regard to plaintiffs' request that communications with Dr. Foshee be made on the record, the parties should be advised that I plan to communicate with Dr. Foshee by telephone when necessary. Copies of any written correspondence, however, are being placed in the court file." Letter to counsel, March 28, 1990.

After presentation of evidence during April, Dr. Foshee reviewed the trial transcripts and visited the institutions, accompanied by me, my law clerk Laura Cordero, and representatives of all parties.

In response to questions by the parties as to the evidentiary form in which Dr. Foshee would present his findings and what role the parties would play in that process, I advised counsel that I would not be asking Dr. Foshee to prepare an extensive written report. I thought such a request would unnecessarily delay resolution of the case. Letter to all counsel, May 22, 1990. During trial on April 27, 1990, I had asked counsel for suggestions concerning communications between the court and Dr. Foshee. Defendants and intervenors had requested an opportunity to depose him on any opinions rendered to the court pursuant to Rule 706. Plaintiffs had asked that any communications be placed on the record.

In particular, plaintiffs were concerned by my stated intention to speak with Dr. Foshee by telephone. Before engaging in any substantive conversations with Dr. Foshee, I sought to address plaintiffs' concern. I therefore asked all counsel what type of record would adequately inform them of my conversations with Dr. Foshee, which I planned to begin once he had completed his review of transcripts and his visit to the facilities. On April 27, 1990, the following exchange took place between me and the parties, Mr Cerf for the defendants, Mr. Winchester for the intervenors, and Mr. Cubra for plaintiffs:

1235

*1235 THE COURT:

* * * * * *

Now I want to address the broader issue of the Court's communications with Dr. Foshee, and tell you that as of this time, although I have had probably a half dozen telephone conversations with Dr. Foshee, I have not met him personally.

The telephone conversations have involved logistical matters almost exclusively. There have been no discussions of any substantive matters other than the question of random selection of certain people who we wanted him in particular to focus on in terms of records review. * * *

And then of course I've asked Dr. Foshee to look at the records of the 13 named Plaintiffs and also two of the subjects of the Foster Tour.

Now, beyond that, I need your suggestions, though, as to what you think appropriate for me to do in conversing with Dr. Foshee about substantive matters in the case. In order to expedite it, I probably am not going to ask him to prepare an extensive written report, and that's, like I say, primarily for time considerations. If you insist on that, we can do that, but it may substantially delay a resolution of the case. So any other suggestions you may have, I'm open to comments.

MR. CERF: I think the rule addresses this with some clarity, and if I'm recalling correctly, the rule simply requires that he be made available for deposition at the election of 0907

THE COURT: Well, I should state 0907 and I think I've said this before 0907 he will, of course, be made available for deposition.

MR. CERF: Certainly so far as Defendants are concerned, I don't know whether we would exercise that option. I haven't given it considerable thought. But to the extent that he has formed opinions, I think all we would like is an opportunity to find out what those opinions are, whether they come from him orally or through a written report would be sufficient for our purposes.

MR. WINCHESTER: Your Honor, the intervenors basically agree with that. And speaking for the Intervenors, I'm not unduly concerned about the issue of documenting communications between you and your expert, as long as we have an opportunity to find out what his findings are, which is what the rule speaks to. That's all we care about. So it is our position that communications between you and Dr. Foshee do not need to be on the record, and there does not need to be a record of them.

THE COURT: Okay. What is the Plaintiffs' position?

MR. CUBRA: Your Honor, I would like to ask your indulgence, and allow us to discuss this after our next break, because 0907

THE COURT: Sure. That's fine.

Tr. 4-27-90 at 4-6. The exchange resumed later that day:

THE COURT:

* * * * * *

Let me ask Mr. Cubra, did you have any suggestions about communications between the Court and Dr. Foshee?

MR. CUBRA: Yes, sir. Our thoughts are these: That we would ask you to continue your practice of having no substantive discussions when you're having contact outside of the presence of the parties.

And as to the tour, our thought is that when you wish to ask questions of Dr. Foshee, that you do so in the presence of our observer, and at any time that there are substantive statements by him, that you just arrange for whoever our observer turns out to be to be able to hear them at the same time, and then there's at least some semblance of a record in that fashion. I don't know your plan about that.

THE COURT: It's unlikely that there will be many conversations of substance during the tour. I do want to be in a position, of course, to talk to him, and I need to know what you request in terms of a record of that.

1236

*1236 MR. CUBRA: I understand. To the extent that you would like to have conversations with him outside of the context of this tour, we would ask that you make a record that you think will be sufficient for us and others to know the content, at least as to the subjects and so forth, so that then we could use that to refresh his recollection when we do his deposition.

Our first preference is, to the extent you're able to do it, to ask his views when our observers are present.

THE COURT: Okay. All right....

Tr. 4-27-90 at 201-02. My clerk and I understood Mr. Cubra's comments to mean that during the upcoming tours of the two facilities, plaintiffs wanted any of our questions of Dr. Foshee to be asked in the presence of the parties' representatives, but that conversations following the tours, which would be by telephone, need not involve representatives of the parties, as long as a record sufficient to identify the content of the conversations was kept for the parties' use at Dr. Foshee's deposition. Confirming my understanding of the exchange on April 27, 1990, I advised counsel by my letter of May 22, 1990 that I had adopted plaintiff's request. I concluded: "I plan to communicate with Dr. Foshee by telephone in the near future. Both my law clerk and Dr. Foshee have made records of the subjects discussed as requested by plaintiffs and will continue to do so. These records will be made available to counsel in advance of Dr. Foshee's deposition." Letter to counsel, May 22, 1990. As of May 22, 1990, Dr. Foshee had not expressed opinions on any substantive issues. To that point the discussions addressed only logistical matters such as which exhibits Dr. Foshee had and would review, the manner in which

random selection of records for review would occur, which transcripts had been sent for his review, and his itinerary.
On May 29, 1990 the first of three substantive phone conversations occurred between me and Dr. Foshee. My law clerk, Laura Cordero, participated in this and in the two subsequent conversations. In preparation for the three conversations, Ms. Cordero and I outlined in detail the areas which I wanted to discuss with Dr. Foshee. During these conversations I expressed many of the conclusions that I had reached based on the presentation of evidence in court. I made no changes to these conclusions by reason of my exchanges with Dr. Foshee. Dr. Foshee served the useful purpose of helping me to articulate, in a more technically precise and effective manner, the components of discharge and transfer plans.
After the first telephone conversation, I received a letter from plaintiffs revising the procedure that I had understood they had requested on April 27, 1990: "Plaintiffs respectfully request that you alter your plan and make a transcription of the conversation." Letter from plaintiffs, May 30, 1990. Plaintiffs argued that their statements of April 27, 1990 should not be construed as a waiver of their earlier request that substantive communications be on the record. Id. By that point, however, I had already adopted and put into operation their request of April 27, 1990.[7]
On June 20 and July 2, 1990 I conferred with Dr. Foshee again by phone. After the talks concluded, my clerk and I amended the outline we had previously prepared by adding some items to reflect all subjects discussed during the exchanges and then sent copies to counsel. In my accompanying letter I explained to counsel: "I am confident that the outline I am enclosing will enable all parties to explore fully at a deposition the opinions rendered by Dr. Foshee." Letter to counsel, July 10, 1990.
During the third and final substantive conversation with Dr. Foshee I informed him of my conclusions on an appropriate discharge plan for those individuals whose interdisciplinary teams had recommended community 1237 placement. I asked him to help me to articulate my thoughts in a manner *1237 and in a language that would be understandable to professionals involved with the care of the developmentally disabled. On July 6, 1990, Dr. Foshee submitted a letter and two page "draft position" in accordance with my request. Letter from Dr. Foshee, July 6, 1990. At that time I decided not to transmit copies to counsel because I had not decided to adopt the language contained therein and, also, I did not want to divulge my decision on the issues prematurely. I had already met the parties' request that they be sufficiently apprised of the content of the communications by distributing the outline.
The parties moved to depose Dr. Foshee. On July 12, 1990 plaintiffs noticed the deposition of Dr. Foshee for the agreed upon date of July 19, 1990. During my conversation with Dr. Foshee on July 2, 1990, I had asked him if he had taken notes during either his tours of the facilities or his reviews of institutional records. He indicated that he had, and I asked that he take the notes with him to his deposition and make them available to counsel. In order to assist the parties in preparing for the deposition, I asked Dr. Foshee to mail me a copy of his notes so that I could provide counsel with copies. Upon receipt, I mailed copies of the notes to counsel. Letter to counsel, July 16, 1990. I skimmed through the notes to identify them, but never read the notes in detail because they were not material for my purposes.
I am advised that the deposition took place on July 19, 1990. Because Dr. Foshee, as the court's expert, would be available to testify and every party had a right to call him, the parties agreed that the deposition would serve only for discovery purposes and no party would seek its admission into evidence. Stipulation Concerning the Deposition of James G. Foshee, filed July 17, 1990.
Soon after the deposition, I received letters from both defendants and plaintiffs. In a letter dated August 2, 1990, defendants asked for guidance regarding Dr. Foshee's role in the litigation. Defendants, specifically, sought clarification in these areas: (1) whether I would rely on Dr. Foshee as a court-appointed expert, under Rule 706, or as a technical advisor to the court; (2) whether I intended to relay the information received from Dr. Foshee during the phone conversations, and if so, by what evidentiary method; (3) whether the parties would be permitted to offer rebuttal evidence if Dr. Foshee was called to testify; and, (4) whether I intended to inform counsel of the substance of the July 6, 1990 Foshee letter. Letter from defendants, August 2, 1990. With respect to this last issue, apparently Dr. Foshee had advised the parties at his deposition of his July 6 letter to me and

said that he was "not at liberty" to divulge its contents. Plaintiffs' Motion for Disqualification at 5. Having never had an opportunity to read the Foshee deposition transcript, I do not know the details of that discussion.
By letter of August 3, 1990 plaintiffs requested that I set a date for them to present rebuttal testimony to the opinions expressed by Dr. Foshee at his deposition. Also, plaintiffs expressed the view that any reliance by me on statements by Dr. Foshee would be inappropriate: "Those statements are prejudicial to the plaintiffs and are based on a review of institutional conditions whose shortcomings are acute." Letter from plaintiffs, August 3, 1990.
By letter of August 8, 1990 I responded to the concerns raised by the parties. First, I informed counsel that Dr. Foshee was serving as a court-appointed expert, not as a technical advisor. Second, I explained that unless one of the parties offered his deposition testimony into evidence, which of course would take concurrence by all parties, I would not rely on any opinions he had expressed; without such concurrence and admission, I would not base my conclusions about liability issues on any opinions or statements Dr. Foshee had conveyed to me. Third, I would not make a decision as to whether rebuttal witnesses could be presented until Dr. Foshee's deposition testimony was in evidence. Of course, at no time was any party barred from calling Dr. Foshee to testify in 1238 person, in which case appropriate rebuttal evidence would certainly have been permitted. Finally, regarding Dr. *1238 Foshee's July 6 letter, I explained the conditions under which it had been written, adding: "I found Dr. Foshee's phrasing of my thoughts to be helpful, although I am not certain that I will adopt his suggested wording entirely." Letter to counsel, August 8, 1990.
In light of my foregoing statements, I should make clear why I did not chose to rely on any opinions offered by Dr. Foshee, despite nearly five hours of conversation. First, after hearing hundreds of hours of expert testimony and reading hundreds of pages of expert reports, I had already reached my conclusions in the case. Second, until the parties decided either to call Dr. Foshee to testify or to withdraw the stipulation barring admission of his deposition, I could not rely on his opinions anyway. I informed counsel of this fact three full weeks before plaintiffs filed their motion to disqualify.
Plaintiffs have questioned my ability to ignore or not to rely on opinion testimony not in evidence. By letter of October 29, 1990 plaintiffs assert: "By offering the Court his opinions on nearly all the issues in the case, Dr. Foshee has had a singular opportunity to influence its outcome. The effect of his opinions on the Court simply cannot be undone." Letter from plaintiffs, October 29, 1990. I should note, however, that plaintiffs have been inconsistent on this point. At the same time that they question my use of Dr. Foshee's services, plaintiffs themselves have asked and expected me to distinguish between inadmissible expert opinions and admissible factual evidence presented in a report by plaintiffs' expert Dr. Ray Foster. See plaintiffs' exhibit 228. In large part, the report, which is approximately 200 hundred pages in length, is not separated into factual findings (which I ruled were admissible) and hearsay expert opinions (which I ruled were inadmissible).[8] Distinguishing between the two required interpretation of certain language in the report and the exercise of discretion in sorting out fact from opinion. Notwithstanding this, plaintiffs assumed I would be able to make such a distinction. Necessarily, I had to read a lot of inadmissible opinions in plaintiffs' expert's report in order to accomplish this task. If I could consider a voluminous report from plaintiffs' expert and focus only on the admissible portions while ignoring and not being influenced by the inadmissible expert opinions, I am confident, likewise, that I could avoid being influenced by the oral opinions of Dr. Foshee.
After receiving my letter of August 8, 1990, defendants advised me that they would not be calling Dr. Foshee to testify: "Given the already voluminous record, we doubt that further testimony of any kind would materially assist the Court in its deliberations." Letter from defendants, August 20, 1990. Although defendants noted that they would not object if one of the parties moved the admission of the Foshee deposition, the parties had not agreed to do so.[9]Id.
Soon after, plaintiffs filed their motion to disqualify on August 29, 1990. After plaintiffs' motion was fully briefed, I convened a telephone conference of all counsel on October 18, 1990. Among those issues discussed, the question of the sufficiency of the parties' apprisal of the contents of the three communications between Dr. Foshee and the court consumed most of the discussion. Although I did not rely on any opinions or statements of 1239 Dr. Foshee in deciding the issues of the case,[10] I asked the *1239 parties if they wanted copies of all the notes

of the exchanges that both I and my law clerk had taken during our discussions with Dr. Foshee. If I were ever to have relied on any information from the conversations with Dr. Foshee, those notes contained the full extent of my knowledge of, and even my selection and interpretation of, that information.
Plaintiffs, however, declined my offer of production. Although, they stated that the deposition of Dr. Foshee was comprehensive and sufficiently apprised the parties of the substance of the court's conversations with the courtappointed expert, plaintiffs argued that only their presence during the phone conversations would have made those conversations unobjectionable. Tr. 10-18-90 at 16-17. Contrary to plaintiffs' earlier requests either of April 27, 1990, which sought only a record that would be sufficient to apprise the parties of the contents of the conversations, or of May 30, 1990, which requested that all communications be on the record, plaintiffs here asserted that the existence or not of a record was not the problem, anymore. For the plaintiffs, Judith Gran stated:
Your Honor, the problem is not that we do not have a record of that....
But the basic problem, the fundamental problem and the fundamental due process issue that was raised by the Court's conversations with Dr. Foshee is that they took place out of the presence of the parties and, therefore, a witness had the opportunity to influence the Court out of the hearing of the parties and influence the outcome of the case.
Tr. 10-18-90 at 6. After hardly mentioning anything previously about being present during the conversations, plaintiffs had once more changed their minds. All of a sudden party presence was the "fundamental" issue. It is interesting to note that this change of focus occurred almost simultaneously with my offer to provide the most thorough record in existence, the notes taken by me and my law clerk.
During the October 18, 1990 telephone conference call, the subject of Dr. Foshee's July 6, 1990 letter came up again. I again indicated its technical purpose, but in order to put to rest the unflagging concern over its content, sent copies to counsel shortly thereafter. Letter to counsel, October 22, 1990.
In the six months that have followed my last conversation with Dr. Foshee, none of the parties have called him to testify, and plaintiffs have not withdrawn their stipulation, which prevents admission of his deposition testimony. If either of these two options had been exercised, I would have postponed my decision of the issues in this case, until all additional evidence, including appropriate rebuttal, had been heard and considered. Oddly, plaintiffs have avoided all opportunities either to correct or to supplement their perceived shortcomings in the evidentiary record or procedure. They have not called Dr. Foshee to testify as a witness. Additionally, they declined to accept my notes or those of my law clerk of the telephone conversations with Dr. Foshee, the best record of those conversations and the only information on which I could have relied if that had been my purpose. But, as I have stated, I have not been influenced by nor have I relied on any findings or opinions relayed to me during those exchanges by Dr. Foshee, just as I have not been influenced by the inadmissible opinions I read in plaintiffs' expert's report.
II. Discussion
As the legal basis for their disqualification motion, plaintiffs cite 28 U.S.C. § 455(a). This section provides: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Accordingly, the Tenth Circuit has stated:
In determining whether a judge should recuse under § 455(a), the issue is not whether the judge is impartial in fact, but rather, whether a reasonable man might question his impartiality under all circumstances.
1240 United States v. Gigax, 605 F.2d 507, 511 (10th Cir.1979). See Hinman v. Rogers, *1240 831 F.2d 937, 939 (10th Cir.1987). The judge him or herself is in the best position to apply this objective standard and must in the first instance determine whether to grant a recusal motion: "In deciding whether to recuse himself, the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over the case."

In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2nd Cir.1988), reh'g denied, 869 F.2d 116 (2nd Cir.1989), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). Equally as important as a judge's disqualifying himself or herself when circumstances so warrant, therefore, is a judge's refusing to disqualify when they do not. In Hinman the Tenth Circuit noted: "There is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is." 831 F.2d at 939. See United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976); In re Drexel, 861 F.2d at 1312.
One reason there is as much of an obligation to deny a recusal motion as there is to grant it is the potential for abuse of § 455(a) by litigants who anticipate an unfavorable result. The legislative history of § 455(a) makes clear that judges should be careful not to permit such abuse:
... in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequence of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a "reasonable fear" that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice.
H.R.Rep. No. 93-1453, House Judiciary Committee, 93rd Cong., 2d Sess., 1974 U.S. Code Cong. & Admin.News 6351, 6355. See In re Drexel, 861 F.2d at 1312-13. Examining congressional intent in enacting § 455(a), the Tenth Circuit concluded: "... section 455(a) must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias." United States v. Hines, 696 F.2d 722, 729 (10th Cir.1982). See Varela v. Jones, 746 F.2d 1413, 1416 (10th Cir. 1984).
With the above considerations in mind, I conclude as follows.
A. Impartiality Not Reasonably in Doubt
I find that my impartiality in this case is not reasonably in doubt. As the standard for determining impartiality is an objective one, the conduct complained of must be such that a reasonable person would doubt my impartiality under the circumstances. This test "... assumes that a reasonable person knows and understands all the relevant facts." In re Drexel, 861 F.2d at 1313 (emphasis omitted). In United States v. Grinnell Corp, 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), the Supreme Court rejected a motion to disqualify the trial judge for personal bias and prejudice, stating: "The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Id. at 583, 86 S.Ct. at 1710. The Tenth Circuit has adopted this approach in examining § 455(a) recusal motions. United States v. Page, 828 F.2d 1476, 1481 (10th Cir.1987), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987). For disqualification, the Grinnell approach requires that the alleged impartiality both arise from an extrajudicial source and effectuate a decision not based on the judge's participation in the case. I conclude that neither one of these requirements is met in this case, and that, 1241 accordingly, plaintiffs have failed to allege facts sufficient to show that a reasonable *1241 person would suspect me of bias. See Page, 828 F.2d at 1481.
The first requirement is not satisfied if the alleged partiality stems from a judicial activity: "To make out a case for recusal under § 455(a), a movant must rely on extra-judicial conduct rather than matters arising in a judicial context." Bradley v. Milliken, 620 F.2d 1143, 1157 (6th Cir. 1980), cert. denied, 449 U.S. 870, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980).[11] The three telephone conversations between me and Dr. Foshee, however, did arise in a judicial context. Dr. Foshee was the court-appointed expert and served in a manner approved, so I understood, by the parties. In Bradley the court held that the district judge was not required to recuse himself in spite of his ex parte discussions with court-appointed experts, community groups, and representatives of the defendant school board: "Although perhaps a bit unorthodox, Judge Demascio's actions appear to us to have been judicial activities." Id. at 1157.[12] By contrast, the majority of the cases upon which plaintiffs primarily rely in support of

their motion for disqualification involve personal contacts and not judicial conduct. See, e.g., Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (conflict between judge's fiduciary interest and the resolution of issues in the case); Roberts v. Bailar, 625 F.2d 125 (6th Cir.1980) (judge personally knew defendant and expressed ardent sentiments about his character); Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5th Cir.1980), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980) (judge had personal relationship with attorney for one of the parties).
Furthermore, the cases cited by plaintiffs that do involve judicial activity are not persuasive. In two of the cases the trial judge had engaged in ex parte communications with the court-appointed expert. See United States v. Green, 544 F.2d 138 (3rd Cir 1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1185, 51 L.Ed.2d 588 (1977); United States v. Weathers, 618 F.2d 663 (10th Cir.1980), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 814 (1980). In both of these criminal cases the defense sought reversal under due process grounds, but the respective courts of appeals affirmed the convictions, holding that the ex parte contact had not violated the defendants' due process rights. In Green the court noted that while the judge should avoid ex parte communications with anyone associated with the trial, including his own appointed expert, failure to do so did not warrant reversal: "We note that every ex parte communication to the trial court does not require reversal, especially when there has been a subsequent opportunity to cross-examine the declarant concerning such communication and a failure to object at trial to the procedure used." 544 F.2d at 146, n. 16. As I have indicated, plaintiffs were afforded the opportunity to cross-examine Dr. Foshee and had acceded to the procedure I followed in communicating with him. In Weathers the court ruled that the trial judge's sua sponte appointment of an independent expert was harmless error, if at all, inasmuch as the judge did not rely on the post-trial expert reports. In coming to this conclusion, the court emphasized that the judge learned nothing from the post-trial reports that had not already been presented at trial. 618 F.2d at 664. In neither Weathers nor Green had the trial judge heard the great volume of expert testimony that I did in this case. By the time I talked to Dr. Foshee, he said nothing of substance that I had not already heard and considered.[13]
1242 *1242 In addition to the requirement of extra-judicial conduct, plaintiffs must also show that a reasonable person would suspect that my opinion on the merits is not based on what I learned through my participation in the case. See United States v. Page, 828 F.2d at 1481. While a determination of the satisfaction of this requirement must be made in accordance with an objective standard, the judge's stated intentions or reliances are not irrelevant. In United States v. Van Griffin, 874 F.2d 634 (9th Cir.1989), the court noted that a reasonable person could consider an "emphatic declaration" by the judge as to the proper basis of his decision: "Absent a basis for believing that Magistrate Sattler had any reason to lie, a reasonable person would not doubt his denial that he had in any way examined the incident report that was on the bench as he conducted the trial of Griffin." Id. at 637. Therefore, the court held that possession of the report during trial did not create an appearance of bias and that recusal was unwarranted on that ground.[14]Id. See also Price Brothers Co. v. Philadelphia Gear Corp., 649 F.2d 416, 420-21 (6th Cir.1981), cert. denied, 454 U.S. 1099, 102 S.Ct. 674, 70 L.Ed.2d 641 (1981) (after law clerk gave report of off-the-record observations, statement of judge and testimony of clerk as to the limited purpose of the report overcame any specter of prejudice).[15]
I find that a reasonable person, apprised of all the relevant facts, would not doubt that my opinion on the merits is based solely on my participation in this case. Neither my actions nor my statements could reasonably give rise to an objective claim of impartiality. Finally, an objective observer, in assessing whether I have been partial to plaintiffs' opponents, would undoubtedly note that, in the main, I ruled in favor of the plaintiffs and granted them very significant relief.
B. Waiver by Plaintiffs
Looking back on the many statements plaintiffs have made on the subject of the court-appointed expert, there is enough variation and inconsistency to perplex even the most insightful of decisonmakers. Depending on which of several plaintiffs' attorneys was addressing the court and at which point in the proceedings the comment was made, plaintiffs expressed at least three positions on how my telephone conversations with Dr. Foshee should be conducted. This spectrum ranged from requesting merely a record sufficient to identify the content of the

conversations, to a formal stenographic transcription, to actual presence by the parties during the exchanges. Taken together these expressions of plaintiffs' position on this matter have little coherence.
However, at the time I asked for a clear statement of all the parties' positions on the manner by which I should conduct the conversations, plaintiffs answer was coherent. It was at this critical juncture, the last day of trial and, also, the last discussion of the subject prior to the commencement of the conversations, that I looked to plaintiffs 1243 for guidance. After being given *1243 further time to consider the issue, Mr. Cubra answered: "... we would ask that you make a record that you think will be sufficient for us and others to know the content, at least as to the subjects and so forth, so that then we could use that to refresh his recollection when we do his deposition." Tr. 4-27-90 at 202. This was the statement on which I relied. Had plaintiffs' request been another, the procedure I followed would have been appropriately different.
I conclude that plaintiffs' statements in response to my request for guidance on April 27, 1990 constituted a waiver of the grounds on which they herein seek recusal under § 455(a). Section 455(a) may be waived by the parties after full disclosure. Parker v. Connors Steel Co., 855 F.2d 1510, 1527 (11th Cir.1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989). Not only did I disclose to the plaintiffs the procedure I would follow, but I also asked plaintiffs to participate in determining that procedure. When a party learns the very facts that form the basis of a disqualification motion and allows the proceedings to go forward without moving to disqualify at that time, the party is deemed to have waived the claim. United States v. Nobel, 696 F.2d 231, 236 (3rd Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L.Ed.2d 1348 (1983). See In re Muller, 851 F.2d 916, 919 (7th Cir.1988).
In addition, I find that plaintiffs waived their right to seek my recusal because they did not file their motion in a timely manner. It was not until several months had passed and after plaintiffs had deposed Dr. Foshee that plaintiffs filed the motion to disqualify. To be timely, a motion to recuse "... must be filed promptly after the allegedly disqualifying facts are discovered." Hinman v. Rogers, 831 F.2d at 938. See Singer v. Wadman, 745 F.2d 606, 608 (10th Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 785 (1985); United States v. Slay, 714 F.2d 1093, 1094 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). See also Willner v. University of Kansas, 848 F.2d 1023, 1028-29 (10th Cir. 1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989).
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Disqualification is denied.
[1] For a more detailed discussion of the history of this litigation and of the parties involved, see my opinion on the merits in this case, 5-23, filed concurrently.
[2] Both the defendants and the intervenors opposed the concept of a court-appointed expert, contending that by the close of all the evidence I would have heard sufficient evidence to render a careful and informed judgment.
[3] This rather broad mandate, which was reflected in my order appointing Dr. Foshee, filed March 28, 1990, turned out to be broader than I eventually required. By the end of trial, after I had heard a great deal of expert testimony, the services I called on for Dr. Foshee to provide were quite narrow in scope.
[4] The intervenors did not nominate Dr. Foshee, but did concur in his nomination. Letter from intervenors, January 12, 1990.
[5] Plaintiffs also made this statement: "To allow Dr. Foshee to give expert testimony out of the presence of the parties would completely violate the due process rights of all the parties to the case." Id. I interpreted this statement as another call for on the record communications. I did not believe that plaintiffs meant by this that the parties should listen in on my phone conversations with Dr. Foshee; or that, if I had asked him for a written report, the parties should have been present while I read it.
[6] As a sample order, plaintiffs submitted the order appointing the court-appointed expert in Homeward Bound, Inc. v. Hissom Memorial Center, No. 85-C-437-E (N.D.Okla. filed March 30, 1986).
[7] I should further report that Dr. Foshee expressed most of his views during the first conversation on May 29, 1990.

[8] The parties tried to agree which parts of the report are factual findings and which are opinion, but because of frequent disagreement, they left large portions of the report for the court to make the proper designation.
[9] On this subject defendants stated:
At present, however, a stipulation between the parties precludes such submission. I am authorized to represent that intervenors would be willing to withdraw the stipulation, as would defendants. Plaintiffs, however, prefer to adhere to it, as is their right. Accordingly, it appears that the Court will be spared several hundred additional pages of material to review.
Id.
[10] I had already informed all the parties I would not rely on the conversations in making substantive determinations without admission into evidence of Dr. Foshee's findings and opinions. See Letter to counsel, August 8, 1990.
[11] The Tenth Circuit has recognized an exception to the requirement of extra-judicial conduct, when "... `such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party.'" United States v. Page, 828 F.2d at 1481 (quoting Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976)). This exception is inapplicable under the facts at bar.
[12] I should note that my exchanges with Dr. Foshee, if they were ex parte, were a lot less so than the discussions in Bradley.
[13] The other cases plaintiffs cite in support of the proposition that avoidance of ex parte communications is mandatory likewise do not address the issue of recusal, but rather that of due process in criminal cases. See In re Paradyne Corp., 803 F.2d 604 (11th Cir.1986); United States v. Anderson, 798 F.2d 919 (7th Cir.1986). Moreover, in Anderson, the court specifically defined the term "ex parte" to mean "without the other party," concluding that an "ex parte proceeding, therefore, is any judicial proceeding at which only one party is present." 798 F.2d at 923. Under this definition, my conversations with Dr. Foshee may not even constitute ex parte communications.
[14] The court did question the magistrate's refusal to recuse himself after he did not give assurances that when he subsequently retained the report he did not examine it. Nonetheless, the court ruled the error harmless and upheld the magistrate's decision not to disqualify himself. Id.
[15] Plaintiffs cite Hall v. Small Business Admin., 695 F.2d 175, 180 (5th Cir.1983), to support their contention that my assurances are immaterial. In Hall, a magistrate's law clerk continued working on a matter after accepting employment with a firm representing one of the parties. As the Seventh Circuit noted in discussing Hall, rather than being viewed as a case involving the appearance of impropriety, it is best understood as a case of actual bias (of the clerk) imputed to the court. United States v. Murphy, 768 F.2d 1518, 1539 & n. 3 (7th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986).
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 489 F.Supp.2d 1267 (2007)
Walter Stephen JACKSON, et al., Plaintiffs, v.
LOS LUNAS CENTER, et al., Defendants, and The Arc of New Mexico, Intervenor, and Mary Terrazas, et al., Intervenors.
No. CIV 87-0839 JP/LCS.
United States District Court, D. New Mexico.
May 24, 2007.
12689 *1268 *1269 Philip B Davis, Albuquerque, NM, for plaintiffs.
Judith Reed, Office of General Counsel, Dept of Health, State of New Mexico, Santa Fe, NM, for defendants.
MEMORANDUM OPINION AND ORDER
PARKER, Senior District Judge.
On December 8, 2006, Plaintiffs filed Plaintiffs' Motion for Attorneys' Fees and Expenses for July-September 2006 (Doc. No. 1534). More than two months later, on February 27, 2007, Defendants filed a Motion for Leave to Amend Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Expenses and Defendants' Request that the Court Impose Clear Guidelines for the Payment of Attorneys' Fees (Doc. No. 1561). Having reviewed the briefs, the various exhibits, and the relevant law, the Court will: 1) grant Defendants' motion for leave to amend their opposition to the extent that the Court considers it in deciding Plaintiffs' motion for attorneys' fees and expenses, 2) grant Plaintiffs' motion for attorneys' fees and expenses in full for a total award of $91,540.08 (including gross receipts taxes),[1] and 3) deny Defendants' request to impose guidelines for determining attorneys' fees and expenses.
A. Discussion
On July 19, 2006, Defendants notified Plaintiffs that they would not continue to negotiate on a monthly basis attorneys' fees and expenses incurred by Plaintiffs, and that they would not agree to an increase in billing rates for Plaintiffs' attorneys. Consequently, Plaintiffs moved for an award of attorneys' fees and expenses under 42 U.S.C. § 1988(b) and 42 U.S.C. § 12205 for July through September 2006. Both §§ 1988(b) and 12205 allow the Court, in its discretion, to award reasonable attorney's fees and expenses to a party who prevails under 42 U.S.C. § 1983 or under the Americans with Disabilities Act. Plaintiffs contend that when a party prevails by obtaining a consent decree, that party's attorney is entitled to reasonable attorney's fees and expenses under §§ 1988(b) and 12205 for monitoring the implementation of the consent decree. Defendants contend: 1) Plaintiffs are not entitled to attorneys' fees and expenses for post-judgment compliance proceedings which are prosecutorial in nature; 2) Plaintiffs are not entitled to' attorneys' fees and expenses for their attorneys' monitoring 1270 activities; 3) Plaintiffs are not *1270 entitled to attorneys' fees and expenses for their attorneys' activities which go beyond monitoring; and 4) Defendants have particularized objections to the bills and expenses sought by Plaintiffs. Defendants also assert that the Court should establish guidelines for future determinations of attorneys' fees and expenses incurred by Plaintiffs.
1. Were Plaintiffs' Attorneys' Post-Judgment Actions During July Through September 2006 Prosecutorial in Nature?
Defendants contend first that Plaintiffs' attorneys' post-judgment actions during July through September 2006 have not entailed monitoring the implementation of the consent decree but instead have consisted of

prosecutorial actions. Defendants argue that Plaintiffs should not be paid for "prosecuting" the Defendants "[s]ince there has been no post-judgment compliance proceedings creating a change in legal relationship for the period of time Plaintiffs seek compensation. . . ." Defendants' Brief in Support of Their Opposition to Plaintiffs' Motion for Attorneys' Fees and Expenses and Defendants' Request that the Court Impose Clear Guidelines for the Payment of Attorney's Fees (Response)(Doc. No.1547) at 3, filed Dec. 22, 2006. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)(a party is "prevailing" and therefore entitled to reasonable attorneys' fees only if there is a "judicially sanctioned change in the legal relationship of the parties."). In other words, Defendants argue that Plaintiffs are not prevailing parties because Plaintiffs have not yet successfully prosecuted the Defendants with respect to post-judgment activities.

Defendants base their contention that Plaintiffs' attorneys' actions are prosecutorial in nature on the following statement in Plaintiffs' Memorandum Brief in Support of Plaintiffs' Motion for Attorneys' Fees and Expenses for July-September 2006 (Plaintiffs' Memorandum Brief)(Doc. No.1535) at 2: "The time and expenses for which plaintiffs seek compensation for their counsel were reasonably and necessarily incurred in the continued prosecution of this action in post-judgment compliance proceedings." Furthermore, Defendants believe that Attorney Peter Cubra's time talking to witnesses is not part of the monitoring process but rather is time attributed "to a `prefiling investigation' as part of the `prosecution' of the case." Response at 7. In Plaintiffs' Reply to Defendants' Opposition to Motion for Attorneys' Fees and Expenses (Reply)(Doc. No.1554), filed January 8, 2007, Plaintiffs clarified that they are seeking compensation for reasonable monitoring of ongoing court judgments and are not engaged in a "continued prosecution" of Defendants. Moreover, Mr. Cubra explained in his supplemental affidavit at ¶ 17 (attached to Reply) that the "witnesses" he speaks with are persons who contact him or other Plaintiffs' attorneys with information that may lead the Plaintiffs to discover monitoring problems. The Court finds that Plaintiffs' activities for July through September 2006 were not prosecutorial in nature.

2. Are Monitoring Activities Compensable?

Defendants further argue that Plaintiffs' attorneys' monitoring activities are simply not compensable even if Plaintiffs prevailed earlier by obtaining a consent decree. Defendants note that the Joint Stipulation on Disengagement (JSD) (Doc. No. 1064) at ¶ 45, filed December 19, 1997, is the only court document in which compensation of Plaintiffs for monitoring expenses is mentioned in this case. The JSD states:

1271

*1271 If the Court determines that the defendants have complied with the provision of this Stipulation, or appendix or desired outcome of the Plan, it shall terminate its oversight of, but not dismiss, that provision, appendix, or outcome. In such event, the defendants shall no longer be required to compensate the plaintiffs' counsel for time spent monitoring such provision, appendix, or outcome.

Defendants contend that since the JSD was adopted, the United Supreme Court issued an opinion in Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) which precludes Plaintiffs from receiving compensation for monitoring activities. Buckhannon, however, is not on point with respect to post-judgment monitoring. See Grier v. Goetz, 421 F.Supp.2d 1061, 1071 (M.D.Tenn.2006)("Buckhannon does not discuss post-judgment or post-consentdecree litigation."); Rolland v. Romney, 292 F.Supp.2d 268, 272 (D.Mass.2003)("Buckhannon did not directly address the compensability of post-settlement monitoring. . . ."). The issue in Buckhannon was whether the term "prevailing party" "includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree but has, nonetheless, achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct[, the so-called catalyst theory]." Buckhannon, 532 U.S. at 600, 121 S.Ct. 1835. The Tenth Circuit, on the other hand, has ruled directly on the issue of the availability of reasonable attorney's fees for post-judgment monitoring of consent decrees and has held that reasonable attorney's fees are available to previously prevailing parties for post-judgment monitoring of consent decrees. Joseph A. by Wolfe v. New Mexico Dept. of Human Services, 28 F.3d 1056, 1059 (10th Cir.1994)(citing Diaz v. Romeo; 961 F.2d 1508, 1511 (10th Cir.1992))(citing Duran v. Carruthers, 885 F.2d 1492, 1495 (10th Cir.1989)).

The Defendants also argue that under the JSD the job of monitoring is presently being performed by the community monitor so there is no need to compensate Plaintiffs for monitoring activities. Defendants cite to a

Seventh Circuit case, Alliance to End Repression v. City of Chicago, 356 F.3d 767 (7th Cir.2004), to support that argument. Defendants, however, ignore Duran in which the Tenth Circuit rejected defendants' argument that plaintiffs' monitoring was unnecessary and duplicative because of the presence of both a Special Master and defendants' own internal monitor. 885 F.2d at 1495. The Tenth Circuit stated that to accept defendants' argument "would mean that the plaintiffs must accept reports of the Special Master and the defendants' own compliance officer at face value and they would be unable to make any real challenge, backed with facts established by monitoring, to such reports." Id. Moreover, Plaintiffs note that continued monitoring by Plaintiffs' attorneys is essential in this case because the community monitor does not evaluate 75% to 80% of the class members in any way during the annual audit since only 100 class members are evaluated yearly. Supplemental Affidavit of Peter Cubra at ¶ 15 (attached to Reply). "In fact, there are some class members today who have never been evaluated in an annual audit, even though the audits have been conducted for nine years." Id. at ¶ 16. The community monitor, therefore, does not effectively monitor implementation of the consent decree as to all Plaintiffs. Consequently, Plaintiffs' attorneys are necessary to ensure effective and complete monitoring.
Finally, Defendants argue that the fact that they have acquiesced over the years to Plaintiffs' requests for 1272 attorneys' fees and expenses does not preclude Defendants *1272 from refusing to pay fees and expenses now.
Defendants cite to Barcia v. Sitkin, 367 F.3d 87, 109 (2nd Cir.2004) to support that argument. Barcia states:
We need not decide whether an obligation not unambiguously mandated by a consent decree can be imposed on a state entity on the basis of the parties' conduct, although we find the proposition doubtful, see Tourangeau, 101 F.3d at 307 ("[A] district court may not impose obligations on a party that are not unambiguously mandated by the decree itself." (citation omitted)); King, 65 F.3d at 1058 ("[A] decree is the sole source of the parties' rights.").
Barcia is inapplicable to this case because the JSD in this case actually refers to attorneys' fees for monitoring, albeit, in an indirect manner. The Court concludes that Plaintiffs' attorneys' monitoring activities are compensable.
3. Did Plaintiffs' Attorneys Engage in Activities that Went Beyond Monitoring?
Defendants argue next that several of Plaintiffs' attorneys' activities during July through September 2006 went beyond monitoring and therefore, are not compensable. The activities Defendants refer to involved the termination of services provided by Desert States and ResCare[2] and the subsequent replacement of case managers and relocation of 66 Plaintiffs from ResCare facilities to other appropriate care givers. The New Mexico State Department of Health (DOH) apparently contracted with an organization called "the Columbus Organization" to provide additional personnel to transition the 66 Plaintiffs and others from ResCare to other care givers.[3] According to Defendants, the transition was completed in a very short time through the work of the community system and DOH employees. Consequently, Defendants contend that "Plaintiffs should be paid nothing for their time in attempting to micromanage the Department's transitions from these providers." Response at 5. Even so, Defendants admit that about twelve clients, presumably Plaintiffs, still need additional services to complete the transition and that minor problems occurred during the transition but were corrected. Plaintiffs argue that such a large upheaval of services required monitoring by Plaintiffs' attorneys to ensure the well-being of the Plaintiffs who were transitioned as well as the well-being of those Plaintiffs whose transitions have not yet been completed. The Court agrees with Plaintiffs and finds that Plaintiffs' attorneys' activities regarding the transition of Plaintiffs following the termination of services provided by Desert States and ResCare constitute compensable monitoring activities.
4. Defendants' Particularized Objections to Bills and Expenses
(a) Can the Plaintiffs Unilaterally Increase the Hourly Rate of Attorneys' Fees?
The attorney hourly rates sought by Plaintiffs reflect a 10% increase from previous hourly rates.[4] Defendants 1273 argue *1273 that Plaintiffs' attorneys' fees cannot be increased unilaterally. Defendants, however, do not provide
any legal support for their argument. Defendants' argument that Plaintiffs cannot unilaterally increase their attorneys' fees is, therefore, without merit.
(b) Are the Hourly Rates Charged by Plaintiffs' Attorneys Reasonable?

Next, Defendants assert that if monitoring activities are compensable only reasonable hourly rates are compensable. Defendants contend that the hourly rates for Mr. Schwartz and Ms. Costanzo, Plaintiffs' out-ofstate attorneys, are higher than the New Mexico attorneys and that their travel expenses are excessive. To support this contention, Defendants attack Plaintiffs' reference to Arnold v. Arizona Dept. of Health Services, Maricopa County AZ, No. C-432355 in which Mr. Schwartz was paid $305.25 per hour, the same hourly rate Mr. Schwartz charged in this case. Defendants note that the parties in that case had stipulated to this hourly rate and that the total amount of attorneys' fees in that case was much less than those sought in this case. Defendants also cite to Rolland v. Romney, 292 F.Supp.2d 268 (D.Mass. 2003), another case in which Mr. Schwartz was an attorney. In that case, the court did not award Mr. Schwartz all the attorney's fees he had asked for. Finally, Defendants cite to Lewis v. New Mexico Dept. of Health, Civ. No. 99-0021 MV/ JHG, a § 1988 case in which the Honorable Chief District Court Judge Martha Vazquez awarded attorneys' fees in the amount of $299,202.70 for five years of litigation.
Plaintiffs argue that Defendants' general objections to hourly rates and their references to other cases are insufficient evidence of the unreasonableness of the hourly rates Plaintiffs request, especially in light of the wellsupported affidavits and declarations submitted by Plaintiffs to establish the reasonableness of the hourly rates sought. The Tenth Circuit stated in Martinez v. Roscoe, 100 F.3d 121, 124 (10th Cir.1996) that "generalized objections to the amount of the fees awarded, without any `evidence challenging the accuracy and reasonableness of the hours charged'" constitutes a waiver of the objecting party's "right to challenge the determination that the fees awarded were reasonable." In this case, Defendants have not provided adequate, admissible evidence of market rates which contradict the hourly rates Plaintiffs propose. Plaintiffs, on the other hand, have provided substantial evidence in the form of affidavits that the hourly rates they seek are actually below the market rate. The Court finds that the hourly rates charged by Plaintiffs' attorneys are reasonable.
(c) Were Monitoring Related Activities Reasonably Necessary?
(1) Certain Monitoring Related Activities
Defendants further argue that the attorneys' fees sought for certain monitoring related activities during July through September 2006 were unnecessary and therefore, unreasonable. Defendants argue first that Plaintiffs are not entitled to the full amount of requested attorneys' fees for reviewing mortality review documents because Plaintiffs have not returned mortality review documents to Defendants as requested by Defendants. The 1274 appropriate avenue for compelling the return of *1274 the mortality review documents is through motion practice, not by reducing otherwise legitimate attorneys' fees. Hence, Defendants have failed to show that Plaintiffs are not entitled to attorneys' fees associated with the review of mortality review documents.
Second, Defendants contend that Plaintiffs are not entitled to the full amount of requested attorneys' fees for conferences Plaintiffs' attorneys had with the community monitor when Plaintiffs did not subsequently share the community monitor's advice with Defendants. Defendants did not provide the Court with any legal analysis as to why this failure to share the community monitor's advice should lead to a reduction of legitimate attorneys' fees. Defendants also did not present an affidavit or other evidence to verify their allegation that Plaintiffs did, in fact, not share the community monitor's advice with them. Plaintiffs are, likewise, entitled to attorneys' fees related to attorney conferences with the community monitor.
Third, Defendants assert that attorneys' fees for developing protocols not given to Defendants should be denied, and if a protocol is released to Defendants, the amount of attorneys' fees associated with the development of the protocol should be reduced. Again, Defendants did not provide any legal or factual support for their assertions that Plaintiffs are not entitled to attorneys' fees for developing protocols not released to Defendants or that those fees should be reduced. Plaintiffs are entitled to attorneys' fees incurred with respect to the development of protocols.
Finally, Defendants contend that quarterly monitoring and report writing is excessive and is not even required by the JSD or by any other Court order. Nonetheless, Defendants suggest that monitoring and its accompanying report writing should be limited to once a year and should relate only to Jackson requirements that have not been disengaged as required by the JSD. The Court, however, finds that quarterly monitoring and report writing are

necessary and reasonable to monitor the implementation of the consent decree, thereby making those compensable activities.
(2) Was There Unwarranted Duplication of Effort by Plaintiffs' Attorneys?
Defendants argue next that there is unwarranted and unreasonable duplication of effort and cost because there are simply too many attorneys working for Plaintiffs. For example, Defendants contend that they should not pay for more than one attorney from P & A. Also, Defendants contend that the fact that Mr. Schwartz and Mr. Cubra share responsibility for coordinating the activities of Plaintiffs' attorneys has not actually reduced costs to Defendants. Defendants further argue that not all of Plaintiffs' attorneys need to attend the quarterly meetings nor do they all need to participate in deciding the agendas for those meetings. Other examples of alleged duplication include the participation of all of Plaintiffs' attorneys in telephone conferences, the participation of three attorneys to review new DD waiver standards, and the participation of seven attorneys to draft a letter to the Honorable Magistrate Judge Leslie Smith. Plaintiffs assert that multiple attorneys are necessary in order to effectively divide the labor in this complicated case.
The Court acknowledges the complexity of this case as well as the need to effectively represent this particularly vulnerable class. In a class action of this magnitude, multiple attorneys are often needed to ensure that there is proper monitoring of the implementation of the consent decree as to each individual class member. Having 1275 reviewed the various affidavits and declarations *1275 submitted by Plaintiffs, the Court does not find that there was unnecessary duplication of effort.[5]
(3) Are Out-Of-State Attorney Mr. Schwartz and Ms. Costanzo Necessary?
Moreover, Defendants object to paying for out-of-state attorneys who do not actually monitor anything. Defendant; note that the New Mexico attorneys are experienced and capable attorneys who should not need the assistance of out-of-state attorneys. The Defendants have not persuaded the Court that there is any legally sufficient reason for excluding the assistance of out-state-attorneys who specialize in class action lawsuits like this one. Depriving Plaintiffs of the best attorneys they can retain would create an injustice. Hence, Plaintiffs are entitled to the reasonable attorneys' fees and expenses billed by out-of-state attorneys Mr. Schwartz and Ms. Costanzo.
(4) Are Plaintiffs Entitled to Attorneys' Fees and Expenses Associated with Plaintiffs' Motion to Compel Production of Documents Sought in Plaintiffs' Eighth Request for Production of Documents to Defendants (Motion to Compel)(Doc. No.1514), filed June 13, 2006?
Defendants assert that attorneys' fees and expenses incurred with respect to Plaintiffs' Motion to Compel should not be compensable because Defendants won that motion. See Memorandum Opinion and Order (Doc. No. 1526), filed Aug. 31, 2006 (denying Plaintiffs' Motion to Compel). Those attorneys' fees and expenses included travel to Las Cruces on August 8, 2006 to attend a hearing on the Motion to Compel and a status conference held by Judge Smith. Plaintiffs counter this argument by noting that their attorneys, Mr. Cubra and Mr. Davis, did not charge for time expended on working on the Motion to Compel. After reviewing the time entries of Mr. Cubra and Mr. Davis, it appears that on July 26, 2006 Mr. Davis charged .2 hours for work on the Motion to Compel and fee issues and charged .8 hours for working on an outline for oral argument, presumably for the hearing on the Motion to Compel. Ex. 2, Aug. 22, 2006 invoice at 2 and Sept. 8, 2006 invoice at 1 (attached to Affidavit of Phillip B. Davis (Doc. No. 1538), filed Dec. 8, 2006). That total amount of time (1.0 hours), however, is accounted for in Mr. Davis' August 2006 billing in which Mr. Davis did not charge for 2.4 hours of work on the Motion to Compel despite marking by an asterisk a "no charge" of only 1.3 hours for work on the Motion to Compel. With respect to Mr. Cubra's billings, the Court notes that even though Mr. Cubra indicated "no charges" for work on the Motion to Compel on August 3, 2006 (.4 hours) and on August 7, 2006 (.7 hours), those hours apparently were not properly deducted from Mr. Cubra's billing, thereby inappropriately adding 1.1 hours to Mr. Cubra's billable hours for August 2006. Nonetheless, the Court observes that because Mr. Cubra's hourly rate of $211.75 is well below the market hourly rate of $250-275 per hour, see Affidavit of Peter Cubra (Doc. No.1536) at ¶ 9-¶ 11, filed December 8, 2006, the additional charge for 1.1 hours is readily absorbed by the below market hourly rate Mr. Cubra 1276 charged. Discounting the above minor charges, I conclude that Mr. Cubra and Mr. Davis essentially *1276 did not charge for work on Plaintiffs' Motion to Compel.

Plaintiffs also note that "Defendants mistakenly attribute to the motion to compel Mr. Cubra's time in fact spent not on that motion but rather traveling to Las Cruces and meeting with Judge Smith for the status conference portion of the [August 8, 2006] hearing held at the same time as the motion to compel." Reply at 16 n. 7. Mr. Cubra and Mr. Davis are entitled to attorneys' fees and expenses for traveling to Las Cruces to attend a status conference held before Judge Smith.
(d) Should Mr. Davis Be Compensated for His Work as a Fee Attorney?
Defendants object to paying Mr. Davis for his work as a fee attorney. Although Defendants admit that there is precedence for paying a fee attorney when attorneys' fees are litigated, Defendants argue that Mr. Davis' review of attorneys' fees bills could be done by a paralegal at a much reduced hourly rate. Mr. Davis argues that his role as fee counsel included not just compiling bills but also included the review and editing of those bills to insure "that plaintiffs' counsel have all exercised billing judgment in the preparation of their time and expense records and avoids duplication in billings," and the negotiation and resolution of billing disputes. Reply at 15. Mr. Davis further notes that he also worked on the merits of the case. Since Mr. Davis's activities as a fee attorney involved more expertise than could be expected of a paralegal, Mr. Davis should be compensated for his work as a fee attorney as well as for his work on the merits of this case.
(e) Expenses
(1) Are Overhead Expenses Compensable?
Additionally, Defendants argue without any legal citation that overhead expenses for postage, copies, and fax charges should not be allowed.[6] Defendants also appear to contend that if copy and fax charges are permitted, Plaintiffs should be paid only for copying documents provided to Defendants and only for fax charges used to communicate with Defendants. Moreover, Defendants assert that copy and fax charges should be billed at CJA rates. Under 42 U.S.C. § 1988, litigation expenses incurred in civil rights cases that are normally itemized and billed in addition to the attorney's hourly rate may be awarded as part of attorneys' fees. See Brown v. Gray, 227 F.3d 1278, 1297-98 (10th Cir.2000) (citations omitted). Mr. Davis indicates in his affidavit at ¶ 35, that the expenses Plaintiffs seek are normally itemized and billed to clients. Also, the Court notes that it is important for coordination purposes that Plaintiffs' attorneys are able to communicate with each other through the use of copying and faxing. Consequently, copy and fax charges should not be limited to communications with only the Defendants. The Court further notes that Defendants have not provided any legal support for their argument that CJA rates must be charged for copy and fax expenses. Hence, Plaintiffs' expenses for postage, copies, and fax charges incurred during July through September 2006 are compensable.
(2) Other Expenses
1277 Defendants observe in their amended opposition to Plaintiffs' motion for attorneys' *1277 fees and expenses that travel time and other time should be separated I travel time is paid at half the hourly rate. Defendants cite to time entries made by Ms. Sims and Mr. Cubra as examples of combining travel time with time spent on other legal work. Interestingly, Defendants do not argue that those reported times should be reduced or eliminated.[7] Nonetheless, it would be helpful in the future to separate travel time from time devoted to other services where travel time is charged at less than the full hourly rate.
Moreover, Defendants argue that the Court should disallow expenses unrelated to a Jackson requirement. Although Defendants specify entries that supposedly reflect non-Jackson expenses, the Defendants do not explain why each of those entries is not related to monitoring activities which are compensable. Without such a detailed explanation, the Court will not disallow those expenses. In sum, Plaintiffs' expenses for July through September 2006 appear to be reasonable and compensable.
5. Defendants' Proposed Guidelines for Awarding Attorneys' Fee's and Expenses
Defendants propose the following guidelines for determining future attorneys' fees and expenses:
1. Only one Plaintiffs' attorney should attend meetings with Defendants' counsel,

2. Field monitoring should be done by paralegals, not attorneys;
3. Plaintiffs' attorneys should be paid half of their hourly rate for travel;
4. State per diem rates should apply for travel ($85.00 per day);
5. Defendants should not pay for overhead expenses like photocopying;
6. Defendants should not pay for participation of out-of-state attorneys;
7. Defendants will pay for only one conference call a month for Plaintiffs' counsel;
8. Defendants will not pay for time spent preparing Plaintiffs' attorneys' bills;
9. Only one attorney from P & A will be involved in this lawsuit;
10. Defendants will not pay for discussions between members of the same law firm; and
11. There will be a yearly cap of $200,000 (100 hours per month at about $200.00 per hour).
Plaintiffs argue that the Court cannot adopt any these proposed guidelines in view of the well-established law requiring a lodestar determination of reasonable attorneys' fees and costs. Plaintiffs also argue that ruling that a cap should apply would be the equivalent of issuing an advisory opinion without knowing what sort of attorneys' fees and expenses will be incurred in the future. Plaintiffs are correct. Defendants' proposed guidelines are simply not appropriate.
B. Conclusion
Plaintiffs are entitled to compensation for the monitoring activities of their attorneys for July through September 2006. The hourly rates and hours of Plaintiffs' attorneys as presented in their detailed affidavits and declarations are reasonable. The expenses Plaintiffs incurred are, likewise, reasonable. Consequently, the Court will award 1278 Plaintiffs a total of $91,540.08 (including gross receipts tax) for July *1278 through September 2006. Furthermore, the Court rejects Defendants' proposed guidelines for determining future attorneys' fees and expenses.
IT IS ORDERED that:
1. Defendants' Motion for Leave to Amend Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Expenses and Defendants' Request that the Court Impose Clear Guidelines for the Payment of Attorneys' Fees (Doc. No. 1561) is granted to the extent that the Court considered it in deciding Plaintiffs' Motion for Attorneys' Fees and Expenses for July-September 2006 (Doc. No. 1534);
2. Plaintiffs' Motion for Attorneys' Fees and Expenses for July-September 2006 (Doc. No. 1534) is granted in its entirety;
3. Defendants must pay Plaintiffs $91,540.08 by July 1, 2006 for the reasonable attorneys' fees and expenses Plaintiffs incurred during July through September 2006; and
4. Defendants' request to implement proposed guidelines for determining attorneys' fees and expenses is denied.
[1] In Defendants' amended opposition to the motion for attorneys' fees and expenses, Defendants argue that Plaintiffs are entitled to an award of only $30,660.31.
[2] Desert States provided case management services to Plaintiffs and ResCare provided Plaintiffs with day and residential services.
[3] Elfin Howe, the internal monitor for this case, belongs to the Columbus Organization.
[4] Plaintiffs' attorneys seek the following hourly rates:

1. Protection & Advocacy (P & A): Attorney Dennis Drucker, $175 per hour, Attorney Sandra Gomez, $137.50 per hour, and
Paralegal Johanne Guyton, $85.00 per hour,
2. Attorney Peter Cubra: $211.75 per hour,
3. Center for Public Representation (Massachusetts): Attorney Steven Schwartz, $305.25 per hour, and
Attorney Cathy Costanzo, $218.35 per hour,
4. Attorney Ann Sims: $187.00 per hour, and
5. Attorney Phil Davis: $224.40 per hour.
[5] Of course, Plaintiffs should be diligent in containing fees and expenses by, among, other things, limiting attendance of attorneys to hearings when feasible and reducing travel expenses by using video conferencing, if possible.
[6] Defendants claim for the first time in their amended opposition to the motion for attorneys' fees and expenses that Lexis services also constitute an overhead expense. Defendants then state that "[t]he court should require a justification of expenses." Amended Opposition to Plaintiffs' Motion for Attorneys' Fees and Expenses at 6. Defendants, however, do not explicitly argue that Lexis services are not compensable.
[7] Additionally, Defendants allege that Mr. Cubra's expenses for travel to Santa Fe on August 29, 2006 should be denied became that meeting was actually held in Albuquerque. Defendants have not provided any factual support such as an affidavit to prove this allegation.
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 Case 1:87-cv-00839-JAP-KBM Document 2035 Filed 04/03/15 Page 1 of 47

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

WALTER STEVEN JACKSON, et al., Plaintiffs,
vs. LOS LUNAS CENTER, et al.,
Defendants, and THE ARC OF NEW MEXICO,
Intervenor, and MARY TERRAZAS, et al.,
Intervenors, pro se.

No. CIV 87-839 JAP/KBM

MEMORANDUM OPINION AND ORDER Introduction
On November 21, 2014, Defendants filed EVALUATIVE COMPONENTS AS DIRECTED BY JUDGE PARKER’S ORDER OF 9/11/14 [DOC 1996] (Defendants’ evaluative components) (Doc. No. 2008). Defendants’ evaluative components for the Goals and Objectives of the Safety, Health, and Supported Employment Plans are intended to lead to the disengagement of all outstanding obligations listed in Table I of the MEMORANDUM OPINION AND ORDER entered September 11, 2014. (Doc. No. 1996 at 62, ¶ D). The parties were allowed to submit comments regarding Defendants’ evaluative components, and on

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December 12, 2014, Plaintiffs filed COMMENTS REGARDING DOC. 2008 DEFENDANTS’ EVALUATIVE COMPONENTS AS DIRECTED BY JUDGE PARKER’S ORDER OF 9/11/14 [DOC. 1996] (Plaintiffs’ Comments) (Doc. No. 2014).
Consistent with the process set forth in the JOINT STATUS REPORT (Doc. No. 1986 at 2–3), on December 31, 2014, the Jackson Compliance Administrator (JCA) Sue A. Gant Ph.D. filed FORMAL RECOMMENDATION[S] (Doc. No. 2016). On January 15, 2015, Defendants filed OBJECTIONS TO THE JACKSON COMPLIANCE ADMINISTRATOR’S PROPOSED EVALUATIVE COMPONENTS (Defendants’ Objections) (Doc. No. 2022).
On January 27, 2015, the Court conducted a telephonic conference (Doc. No. 2027) on Plaintiffs’ January 24, 2015 letter request that they be permitted to file a response to Defendants’ Objections. Plaintiffs’ counsel primarily argued that Defendants’ evaluative components were no different than the JCA’s Formal Recommendations, notwithstanding Defendants Objections to the Formal Recommendations. The Court allowed Plaintiffs to file a list of those Objectives for which Plaintiffs believed Defendants’ evaluative components mirrored Dr. Gant’s recommendations. On February 2, 2015, Plaintiffs filed PLAINTIFFS’ LIST OF EVALUATIVE COMPONENTS (Doc. No. 2028).
The Court held a status conference on February 11, 2015, so that counsel could address a number of the Court’s questions concerning the definition of sustained substantial compliance and the proposed evaluative components. At the February 11 hearing, counsel for both parties responded to the Court’s questions regarding the evaluative components.
The Court now decides Defendants’ Objections to the JCA’s Formal Recommendations to arrive at the final evaluative components for the Goals and Objectives of the Safety, Health,
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and Supported Employment Plans.1 Defendants must demonstrate sustained substantial compliance with all of the final evaluative components, as well as other outstanding obligations (see Doc. No. 1996, Table II), and should diligently work to do so in order for the Court to end active oversight of this case.
Discussion I. Introductory Comments Regarding Proposed Evaluative Components and
Recommendations Defendants recite the Goals and Objectives of the three plans and then propose evaluative components. Defendants refer to a “Component Manager,” who apparently will oversee completion of the evaluative components in a specific area. Defendants provide no additional argument with their evaluative components, although Defendants’ Objections present numerous arguments why Defendants believe the Court should adopt their evaluative components instead of the JCA’s. Defendants’ Objections at 1–7. Many of Defendants’ evaluative components propose a threshold of 80% compliance. In their comments, Plaintiffs ask the JCA to reject “the substantial majority” of Defendants’ evaluative components based on Plaintiffs’ position that Defendants’ evaluative components do not provide the plaintiff class with the benefits of the Court’s Orders. Plaintiffs’ Comments at 1. Plaintiffs contend that there are five recurring problems with Defendants’ evaluative components 1) the evaluative components do not reflect a substantive outcome but instead reflect a process for taking action; 2) the evaluative components describe what Defendants will do, not what difference it will make to a Jackson Class Member (JCM) or how completion of the components will improve the service system; 3) the evaluative components do not relate to any significant change or improvement to the current practice; 4) the evaluative
1 As noted under Section II of this Order, the JCA and the parties may agree to make some changes to the Court’s final evaluative components.
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components are not objective or measurable; and 5) the evaluative components use measurements or percentages that are unreasonable and not consistent with professional standards. Id. at 2–4.
At the February 11 status conference, Plaintiffs’ counsel emphasized that while the parties had proposed many different action steps to be completed through the years, the completion of those steps did not necessarily reflect an improvement in services to the JCMs. According to Plaintiffs, Defendants’ evaluative components merely describe what Defendants will do rather than show how certain steps will impact or improve services to the JCMs. In addition, Plaintiffs argue that Defendants’ proposed 80% compliance threshold in a number of areas is an inadequate level of compliance “when important human needs, such as medical care or safety are at issue.” Plaintiffs’ Comments at 3. Plaintiffs add “comments” in response to almost all of Defendants’ evaluative components. However, Plaintiffs do not propose specific evaluative components for the Objectives.
In the Formal Recommendations, the JCA provides a 2-page overview and a 27-page list of Objectives and recommended evaluative components. The JCA proposes five “core elements” that she believes are key in meeting Defendants’ obligations to the JCMs: “1) activities demonstrate achievement of intended outcomes; 2) performance deviation be promptly detected and remediated; 3) criteria that [are] developed that are feasible, reliable and most likely to yield action which will improve practice; 4) gathering only enough data to allow realistic analysis; and 5) using information for continuous evaluation and practice improvement at the individual, program[,] and systems level.” JCA’s Formal Recommendations, Introduction at 1. The JCA believes that Defendants’ proposed 80% compliance threshold is artificial and would subject JCMs to harm. She recommends the use of “reasonable solutions intended to institutionalize
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policy and practice that allows defendants to achieve and sustain intended outcomes.” Id. at 2. The JCA also proposes that Defendants provide quarterly written status reports to the Court, the JCA, and the parties that demonstrate progress or identify barriers.
Defendants’ Objections state that the “DOH [the Department of Health] criteria for all [O]bjectives represent a comprehensive set of indicators that address the [O]bjectives and can be used to monitor and improve the systems and the processes and the entities that execute them across the Developmental Disabilities Supports Division (DDSD) and its providers.” Defendants’ Objections at 4. According to Defendants, the JCA’s Formal Recommendations “stop short of being effective evaluative components because they are not sufficiently objective to provide a clearly understood performance target.” Id. Defendants urge the Court to adopt their proposed evaluative components based on Defendants’ positions that their proposals “are consistent with expectations for good levels in systems such as those in place for DDSD and their providers” and “are consistent with expectations for controlling human performance in such systems and reflective of the limitations of the data sets and measurement approaches that can be used on the systems.” Id.
Defendants attach a 78-page chart to their Objections comparing the JCA’s Formal Recommendations to Defendants’ evaluative components. Id. at 9–87. In the chart, Defendants set forth an “Objective Measurement Description” of each Objective, re-stating what Defendants’ believe each Objective generally requires. Defendants then recite the evaluative components from their November 2014 filing (Doc. No. 2008) and state Objections to the JCA’s Formal Recommendations. Suffice it to say, there is little agreement between the parties or between Defendants and the JCA.
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The Court has reviewed the JCA’s Formal Recommendations and the parties’ positions and proposals. The Court sets out, under Section II of this Order, specific rulings and comments pertaining to some of the final evaluative components.
The Court further observes that in some instances, the JCA’s proposed evaluative components merely repeat steps contained under other Objectives. For example, under Health Objective H1.2, the Court requires in evaluative component H1.2a that Defendants accurately document each JCM’s healthcare needs, conditions, and risk factors in the JCM’s health care plan. The JCA recommends a similar evaluative component be included in Health Objective H1.3a – “Each JCM has an accurate health record.” After setting forth evaluative components under one Objective, the Court does not restate the same or similar evaluative components under other Objectives.
The Court also avoids using evaluative components for Objectives that already contain specific, required steps. For example, Health Objective H1.8 states that each JCM will receive medications in the doses prescribed, in the manner and frequency prescribed, and at the time prescribed. There is no need to repeat the same language as an evaluative component under Health Objective H1.8.
With respect to using percentile thresholds for compliance, the Court finds that such figures are arbitrary and difficult to apply. See Fortin v. Comm’r of the Dep’t of Mass. Pub. Welfare, 692 F.2d 790, 795 (1st Cir. 1982) (“[N]o particular percentage of compliance can be a safe-harbor figure, transferable from one context to another. Like reasonableness, substantiality must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which noncompliance affects that interest.”). The Court will not use percentile compliance thresholds in the final evaluative components.
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In deciding the Objections, the Court sets out the Goals and each Objective at issue from
the Safety, Health, and Supported Employment (SE) plans. Doc. 1996, Table I. The Court then
presents the final evaluative components for each Objective. In some instances, the Court
comments about why it did not adopt the positions of the JCA and parties. Table IV, attached to
this Order, contains a list of the final evaluative components without comments.
II. Final Evaluative Components2 for Health, Safety, and Supported Employment Plans
HEALTH PLAN
A. HEALTH GOAL 1 Consistent, informed and effective healthcare coordination.
1. Health Objective H1.1 Expectations for healthcare coordination are appropriate as evidenced by well-defined roles and responsibilities that are carried out and measured at the provider, region and state level.
H1.1a The Department of Health (DOH) must define healthcare coordination roles and responsibilities at the provider, regional, and state levels in DOH policies, procedures, and standards. H1.1b The DOH must disseminate the definitions referred to in H1.1a to all pertinent providers. H1.1c The definitions of healthcare coordination roles and responsibilities must contain measurable performance indicators so that the DOH can assess whether the assigned responsibilities are carried out at the provider, regional, and state levels. H1.1d The DOH must annually evaluate the performance of healthcare coordination roles and responsibilities consistent with the measurable performance indicators through the use of field surveys or other appropriate tools. H1.1e The DOH must take prompt corrective action for healthcare coordination performance that does not meet the measurable performance indicators. Component Manager: DDSD Clinical Services Bureau Chief.
Court’s Comments: The Court does not use the term “best practice” as proposed by the JCA (Health Objective H1.1d). The determination of
2 Evaluative components are assigned numbers consistent with the Objective to which they relate. The Court uses a bold font and underlining for emphasis in the numbering of the final evaluative components. For example, the first three final evaluative components for Health Objective H1.1 appear as H1.1a, H1.1b, H1.1c.
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“best practice” may pertain to an assessment of substantial compliance. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Health Objective H1.2 Nurses routinely monitor Jackson Class Members’ individual health needs through (1) oversight, (2) communication with DSP (Direct Support Professionals), and (3) corrective actions in order to implement the Jackson Class Members’ health plans, to ensure that the Jackson Class Members’ health needs are being met, and to timely respond to changes in Jackson Class Members’ health status.
H1.2a Defendants3 must ensure that each JCM’s healthcare needs, conditions, and risk factors are accurately documented in the JCM’s healthcare plan. H1.2b DSP and their supervisors must receive training by nurses in order to competently and correctly implement each JCM’s healthcare plan. H1.2c Nurses must visit each JCM in accordance with DOH requirements. H1.2d Nurses must meet with DSP as needed to monitor each JCM’s health status. H1.2e Defendants must ensure prompt revision of a JCM’s healthcare plan if there is a change in the JCM’s health status. Component Manager: DDSD Clinical Services Bureau Chief
Court’s Comments: The Court generally follows the JCA’s Formal Recommendations. But, the Court does not include the JCA’s recommendation that “[g]uidelines and performance expectations for nursing” be “established and used to evaluate the adequacy of nurse practice.” JCA’s Formal Recommendations at 1 (H1.2e). That action falls outside the more specific aim of Health Objective H1.2. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Health Objective H1.3 Teams use accurate health records for Jackson Class Members.
H1.3a Defendants must monitor the accuracy of each JCM’s healthcare plan, including the JCM’s current health records. H1.3b Each JCM’s “Therap eCHATs” (“Electronic Comprehensive Assessment Tool”) must be updated within 45 days before an IDT (Interdisciplinary Team) Meeting at which the JCM’s annual ISP (Individual Service Plan) is created.
3 When the Court is not certain who specifically should take a certain action, the Court refers to “Defendants” or to the department being discussed in the recommendations and proposals. However, Defendants can best determine the appropriate individuals or departments that should take specific actions.
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Component Manager: DDSD Bureau of Systems Improvement Chief.
Court’s Comments: In some instances, the JCA’s Formal Recommendations restate elements of the Objective. In that event, the Court omits duplicative language. Defendants argue that the JCA proposes “actions” rather than evaluative components. The Court does not see such a clear distinction between actions and evaluative components. The Court contemplated that the evaluative components would encompass specific steps for Defendants to complete in order to satisfy the Objectives. The substantial compliance inquiry asks whether Defendants took the required specific steps in furtherance of the essential purposes and intent of the consent decree. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
4. Health Objective H1.4 Teams (including the individual) have information (education, consultant and technical assistance) needed to achieve goals stated in individual Healthcare Plans, MERPs [Medical Emergency Response Plans], CARMPs [Comprehensive Aspiration Risk Management Plans] and written direct support instructions as appropriate to the individual.
H1.4a DDSD must identify healthcare professionals with specialized skills to provide needed information, consultation, and technical assistance to IDTs, based on an accurate assessment of the JCM’s healthcare needs. H1.4b Each JCM must have access to healthcare professionals with specialized skills, as needed. Component Manager: DDSD Medical Director.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
5. Health Objective H1.5 Identified health needs for Jackson Class Members, including daily medical considerations, are addressed in individualized healthcare plans, MERPs, CARMPs, and written direct support instructions as appropriate to the Jackson Class Members. Healthcare plans are reviewed and promptly modified in response to changes in health status.
H1.5a Defendants must prepare quarterly reports on a sample4 of the JCMs to monitor the accuracy of the JCMs’ individual healthcare plans. H1.5b Defendants must take action to correct inaccuracies in the JCMs’ individual healthcare plans.
4 The Court understands that, as of January, 2015, 292 JCMs remain of the original class of 552. It should not be burdensome to obtain a scientifically valid sample of the current number of JCMs.
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Component Manager: DDSD Clinical Services Bureau Chief.
Court’s Comments: Because some of the proposed evaluative components under Health Objective H1.2 apply also to Health Objective H1.5, the final evaluative components under Health Objective H1.2 are not repeated under Health Objective H1.5. Moreover, because Health Objective H1.5 contains specific steps that Defendants must satisfy, the Court does not repeat those steps in the final evaluative components. Although Defendants propose that the JCM’s healthcare plans cover health issues listed as “Required in the current e-CHAT summary sheet,” the Court does not know what the summary sheets contain. Thus, the Court is unable to determine if the summary sheet requirements are appropriate final evaluative components. If the parties and the JCA agree to an evaluative component regarding a summary sheet, it can be added as H1.5c. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
6. Health Objective H1.6 Current and complete information is provided to the healthcare professionals treating or evaluating the individual.
H1.6a Healthcare professionals, who treat or evaluate a JCM, must have a copy of the JCM’s accurate “Health Passport.” H1.6b Each JCM’s healthcare plan must indicate that the JCM’s accurate and up-to-date Health Passport is to be provided to treating or evaluating healthcare professionals. H1.6c A JCM’s provider or case manager must ensure that a JCM’s accurate Health Passport is provided to treating and evaluating healthcare professionals. Component Manager: DDSD Clinical Services Bureau Chief.
Court’s Comments: Both the JCA and Defendants contemplate that printed or hard copies of the JCM’s healthcare records are provided to healthcare professionals. The Court requires that healthcare professionals receive accurate and current healthcare information, regardless of format. In addition, Defendants appear to distinguish between internal and external healthcare professionals. All treating and evaluating healthcare professionals must have accurate and current healthcare information. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
7. Health Objective H1.7 The team assures recommendations from healthcare professionals are reviewed with the individual and guardian in a manner that supports informed decision making and [are] either implemented, or documented in a Decision Consultation Form if recommendation is declined.
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H1.7a A JCM’s IDT must ensure that a healthcare professional’s recommendations and assessments (1) are promptly communicated to the nurse, guardian, DSP, and entire healthcare team, as needed, and (2) are implemented, unless the IDT declines the healthcare professional’s recommendations by completing a Decision Consultation Form. H1.7b A JCM’s healthcare records must accurately identify and reflect any recommendations and assessments of the JCM’s treating and evaluating healthcare professionals. H1.7c Defendants, through appropriate personnel, e.g., provider agencies and case managers, must ensure that a healthcare professional’s recommendations are implemented within the prescribed timeframe. H1.7d The JCM’s IDT must complete a Decision Consultation Form, as appropriate, for use by the JCM’s healthcare professionals. The Decision Consultation Form must be kept in the JCM’s healthcare records. Component Manager: DDSD Statewide Case Management Lead.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
8. Health Objective H1.8 Each Jackson Class Member will receive the Jackson Class Member’s medications (1) in the doses prescribed, (2) in the manner and frequency prescribed, and (3) at the times prescribed.
H1.8a Defendants must monitor the accuracy of dispensation of prescription medications to each JCM. H1.8b Defendants must take prompt action to correct any failure to properly dispense medications to a JCM in accordance with prescriptions. Component Manager: DDSD Clinical Services Bureau Chief
Court’s Comments: The JCA’s Formal Recommendations restate the elements of Health Objective H1.8 which do not need to be repeated as final evaluative components. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
B. HEALTH GOAL 2 Early identification of deteriorating health.
1. Health Objective H2.1 Jackson Class Members receive age appropriate preventive/early detection screening/immunizations for health risk factors.
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H2.1a The DOH must publish and implement routine preventive and early detection healthcare screening standards, adjustable for the age and the specific condition of each JCM. Defendants may adopt, if appropriate for a JCM, the national screening and immunization standards, that Defendants refer to as the “US Preventive Services Task Force A and B Recommendations” and the “Immunization Practices clinical preventive services.” H2.1b Each JCM must receive routine preventive screening and immunizations consistent with the DOH’s standards unless the JCM, in conjunction with the JCM’s guardian and primary healthcare provider, makes an informed choice to reject the recommended screening and immunization standards. Component Manager: DDSD Clinical Services Bureau Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
C. HEALTH GOAL 3 Jackson Class Members receive prompt, knowledgeable and effective responses to health symptoms and needs.
1. Health Objective H3.1 Jackson Class Members receive increased intensity of services during acute episodes or illnesses.
H3.1a A nurse’s monitoring, including nursing assessments and oversight, must increase during a JCM’s acute episodes or illnesses. H3.1b Face-to-face visits by a nurse must occur and must be documented in response to a JCM’s acute episodes or illnesses. H3.1c The failure of a nurse to monitor a JCM’s acute episodes or illnesses must be promptly corrected. Component Manager: DDSD Clinical Services Bureau Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Health Objective H3.2 Direct Service Personnel/supervisors are able to identify subtle signs of change/acute symptoms.
H3.2a The DOH must issue and must implement healthcare guidelines for use by healthcare provider staff about the timely identification of and response to changes in the health status of a JCM so that a JCM does not experience unnecessary pain, loss of optimal function, or regression. The
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DOH may develop “fact sheets” that define a specific health condition, related signs and symptoms, and recommended actions, or the DOH may develop other pertinent policies and procedures that provide the required guidance. H3.2b Each JCM’s ISP must contain individual-specific information on how to identify subtle signs of change or acute symptoms. H3.2c DSP and supervisors must receive and must complete appropriate training on how to timely identify signs of change or acute symptoms in a JCM. H3.2d DSP and supervisors must promptly document in the ISP or Healthcare Plan any acute symptoms and any signs of change in a JCM’s health status. Component Manager: DDSD Training Unit Manager.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Health Objective H3.3 When informed of signs of change in health status (including chronic and acute pain) agency nurses take immediate action.
H3.3a The DOH or pertinent agency must develop and must publish effective pain management strategies for addressing a JCM’s chronic and acute pain. H3.3b The DOH or pertinent agency must communicate these effective pain management strategies to the JCM’s treating healthcare professionals. H3.3c The DOH must evaluate the effectiveness of pain management strategies and must record the effectiveness of those strategies in the JCM’s e-CHAT, healthcare plan, and nursing report. H3.3d Nurses must identify and must respond to signs of a JCM’s chronic and acute pain and must take prompt action to reduce or to eliminate the JCM’s pain. Component Manager: DDSD Clinical Services Bureau Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
4. Health Objective H3.4 When an individual is receiving healthcare in an out of home setting, critical health and functional information will be provided and the individual’s existing adaptive equipment that can be used in that setting will be offered.
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H3.4a The DOH must develop and must implement a procedure to ensure communication of a JCM’s need for existing adaptive equipment and supports to an out-of-home provider. H3.4b The out-of-home provider must receive a JCM’s Health Passport, along with information concerning the JCM’s mobility, comfort, safety, and sensory items within 24 hours of the JCM’s placement with an out-ofhome provider. H3.4c The necessary adaptive supports already used by a JCM must be offered to the out-of-home provider within 24 hours of the JCM’s placement with an out-of-home provider. Component Manager: Jackson Compliance Officer.
Court’s Comments: The JCA’s Formal Recommendations include additional evaluative components concerning discharge planning. Health Objective H3.4 does not encompass discharge planning although Health Objective H3.5 addresses it. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
5. Health Objective H3.5 When a JCM is receiving healthcare in an out-of-home setting, the IDT will plan for a smooth transition back to the JCM’s home as soon as medically feasible.
H3.5a The JCM’s IDT, case managers, and pertinent healthcare staff (including Regional Office and Agency nurses), along with the out-ofhome facility’s discharge planners, must promptly meet together to plan for a JCM’s discharge as soon as it is medically feasible to ensure a safe discharge, provided the guardian consents to discharge. H3.5b The JCM’s e-CHAT and other healthcare records must be promptly updated by appropriate healthcare providers to indicate healthcare and adaptive supports that the JCM received from the out-of-home provider in order to ensure a safe and smooth transition back to the JCM’s home. Component Manager: Jackson Compliance Officer.
Court’s Comments: Defendants’ evaluative components are not sufficiently specific in referring to “transition discussions.” Defendants’ Objections at 25 (H3.5). To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
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D. HEALTH GOAL 4 Competent and consistent care in line with recommendations and good practice.
1. Health Objective H4.1 Competent personnel (nurses, DSP, front line supervisors, ancillary providers, and case managers), who have received and passed competency based training related to prevention and early identification, provide services to Jackson Class Members. (Ashton #6, 7, 8)
H4.1a The parties and the JCA must develop a mandatory competency based training program. H4.1b Nurses, DSP, front-line supervisors, ancillary providers, and case managers must satisfactorily complete the mandatory competency based training program. H4.1c The DOH must independently measure compliance by nurses, DSP, front-line supervisors, ancillary providers, and case managers with mandatory competency based training. H4.1d The DOH must take prompt remedial action for nurses, DSP, frontline supervisors, ancillary providers, and case managers who are found deficient in the mandatory competency based training. H4.1e Nurses, DSP, front-line supervisors, ancillary providers, and case managers must receive information specific to Ashton #6, 7, and 8, as outlined in the Health Communications Matrix. Component Manager: Jackson Compliance Officer.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Health Objective H4.2 IDTs provide for the changing health supports class members need as they age including advanced care planning and have access to palliative care consistent with their individual needs.
H4.2a Case managers and agency nurses must provide up-to-date information and resources to JCMs and their guardians about advanced care planning and palliative or end-of-life care so that the JCMs and their guardians can make informed choices. H4.2b The DOH must identify, and must document on an annual basis in the pertinent healthcare records, those JCMs who want advanced care planning, including palliative care, and those JCMs who decline advanced care planning. H4.2c The DOH must provide advanced care planning and palliative care to those JCMs who choose to have advanced care planning and palliative care. Component Manager: DDSD Statewide Case Management Lead.
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Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Health Objective H4.3 Quality Assurance information is used to improve health outcomes.
H4.3a The DOH must identify gaps in healthcare services to JCMs and must develop strategies to improve healthcare services to JCMs. H4.3b The DOH must use existing quality assurance information and tools – including the measurements found in the CPR (Community Practice Review), Out-of-Home Placement, Emergency Services Utilization, ANE (Abuse, Neglect, and Exploitation) Reporting, and Provider QA (Quality Assurance) Reports – to improve healthcare services to JCMs and to fill in gaps in healthcare services to JCMs. Component Manager: QMB Bureau Chief.
Court’s Comments: It is difficult to develop appropriate and specific final evaluative components for this open-ended Objective. The Court considered proposals by the JCA and by Defendants in an attempt to describe meaningful evaluative components. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
SAFETY PLAN
A. SAFETY GOAL 1 The recommendations from the JCA’s report on the incident management system prepared by Eva Kutas are implemented. Incidents of abuse, neglect and exploitation are timely reported, professionally investigated, and needed corrective actions are promptly implemented and sustained.
1. Safety Objective S1.1 Define “Abuse, Neglect and Exploitation” (ANE) consistent with New Mexico Statutory Adult Protective Services (APS) definitions.
S1.1a The DOH must promulgate revised regulations that define ANE consistent with APS definitions. Component Manager: Incident Management Bureau (IMB) Bureau Chief.
Court’s Comments: Defendants state they have satisfied the requirements of Safety Objective S1.1, as evidenced in the Eva Kutas progress report of 1/9/15. The JCA’s Formal Recommendations include additional evaluative components directing DHI to review samples of intake reports to ensure consistency with the new APS definitions. The Court finds that the JCA’s
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Formal Recommendations fall outside the scope of Safety Objective S1.1. To the extent the Court’s final evaluative component is inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Safety Objective S1.2 Provide educational information about how to detect ANE.
S1.2a The DOH must develop and must provide annually educational information to providers, physicians, clinicians, families, guardians, and law enforcement about detecting ANE. Component Manager: IMB Bureau Chief and Division of Health Improvement (DHI) Trainer.
Court’s Comments: The JCA’s Formal Recommendation that JCMs be informed of their right to be safe (S1.2b) exceeds the scope of Safety Objective S1.2. Defendants propose using a chart to track the dates and number of times they provide educational information about how to detect ANE. Defendants should use the chart as described at page 30 of Defendants’ Objections. To the extent the Court’s final evaluative component is inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Safety Objective S1.3 The individuals listed in POA [Plan of Action] CIMS B [Community Incident Management System] [regional coordinators, agency coordinators, direct contact staff, DD[S]D staff, case managers, agency executive staff, IMB investigators, agency IMCs, agency direct service staff] will receive the training described in the Eva Kutas Recommendations #7 and #8 and will pass a formal test of the individuals’ knowledge and understanding of IMB provider policy requirements.
S1.3a All current and new staff as listed in POA CIMS B and the DDSD staff ( Regional Directors, Assistant Regional Office Bureau Chief, and the DDSD Training Unit) must successfully complete competency based training that incorporates the principles of adult learning described in Kutas Recommendations # 7 and #8. S1.3b All current and new staff in POA CIMS B and the DDSD staff must complete competency based training from a DHI trainer before working alone with JCMs and their guardians. S1.3c All current and new staff in POA CIMS B and the DDSD staff must demonstrate a knowledge and understanding of the training received in S1.3a and S1.3b by passing a formal test. S1.3d All current and new staff listed in POA CIMS B and the DDSD staff must receive refresher competency based training on an annual basis. Component Manager: DHI Deputy Director.
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Court’s Comments: The Court’s final evaluative components are a combination of the proposals by the JCA and Defendants. The Court does not include all of the JCA’s Formal Recommendations as they exceed the scope of Safety Objective S1.3. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
4. Safety Objective S1.4 ANE is reported immediately.
S1.4a The DOH must maintain a toll-free 24 hour, 7 days a week, telephone number to receive reports of ANE. S1.4b The DOH must communicate to its staff and the providers who have contact with JCMs that ANE of JCMs must be reported immediately. S1.4c IMB must formally document reports of ANE of JCMs and must take corrective action when ANE is not reported immediately. Component Manager: IMB Bureau Chief.
Court’s Comments: Defendants state that they have designated a statewide toll-free telephone number for IMB reporting of ANE. Thus, the Court requires that Defendants maintain this telephone number and service. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
5. Safety Objective S1.5 Providers will take immediate action to develop a safety plan after an allegation of ANE to protect the alleged victim(s) during the course of an investigation.
S1.5a Providers for JCMs must immediately develop, with IMB approval and monitoring, an Immediate Action and Safety Plan (IASP) in all cases of reported ANE. S1.5b The DOH must monitor providers for compliance with IASPs and must take corrective action as needed. Component Manager: IMB Bureau Chief.
Court’s Comments: Defendants are willing to increase their earlier proposed percentile threshold to 90% from 80%. Defendants’ Objections at 33 (S1.5). However, as stated earlier, the Court will not use percentages in the final evaluative components. Defendants argue that they completed the requirements for a safety plan and its approval process, as indicated in Eva Kutas’ progress report of 1/9/15. Id. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
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6. Safety Objective S1.6 Severity of the alleged ANE dictates the investigation response.
S1.6a The DOH must establish a priority of investigation responses consistent with the applicable policy which requires investigative responses be three hours or less for emergencies, 24 hours or less for Priority 1 incidents, and 5 days or less for Priority 2 incidents. Component Manager: IMB Bureau Chief.
Court’s Comments: The parties do not say where the policy addressing response times can be found. However, Defendants set forth the pertinent response times for emergency, Priority 1, and Priority 2 incidents, and the Court accepts that this information accurately reflects the parties’ understanding. See Defendants’ Objections at 34 (S1.6). Defendants further state that revision of the IMB timelines for reporting and investigative responses, using prioritization categories based on severity, is complete as indicated in the Eva Kutas progress report of 1/9/15. Id. The Court finds that the JCA’s Formal Recommendation that DOH conduct quarterly assessments falls outside the scope of Safety Objective 1.6. JCA’s Formal Recommendations at 8. To the extent the Court’s final evaluative component is inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
B. KUTAS RECOMMENDATION #2: The NM DOH Incident Management Bureau’s Abuse, Neglect and Exploitation (ANE) response system will conform to NAPSA [National Adult Protective Services Association] Guidelines for ANE investigation and protective services.
1. Safety Objective S[Kutas]2.15 Competent ANE Investigators conduct professionally adequate investigations.
S2.1a ANE Investigators must pass Core Competency and Field Training before conducting investigations of ANE. S2.1b The Supervisory Review Tool must be used to assess an ANE investigation in every case of ANE. S2.1c ANE investigations must not be closed until they meet the standards of the Supervisory Review Tool, which verifies whether the investigation meets the standard for professionally adequate investigations. S2.1d The DOH must review ANE intake and investigation quality, consistent with the Kutas quality indicators, on a quarterly basis.
5 The numbering of some Safety Objectives and their evaluative components is confusing. For example, Safety Objective 2.1 under Kutas Recommendation #2 (“Competent ANE Investigators….”) might be confused with Safety Objective 2.1 (“All deaths are reviewed….”). The Court did not use the JCA’s numbering sequence (e.g., S1 2.1 for Kutas Recommendations) and instead, identified the Safety Objectives that pertain to the Kutas Recommendations.
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Component Manager: IMB Bureau Chief.
Court’s Comments: Defendants did not object to the JCA’s Formal Recommendations or to the language used by the JCA in the evaluative components. Thus, the Court assumes that Defendants understand the meaning of requiring DOH to “review ANE intake and investigation quality.” See Defendants’ Objections at 35. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
C. KUTAS RECOMMENDATION #3: A single professionally appropriate investigation is conducted that eliminates duplication and minimizes the impact on victims and witnesses.
1. Safety Objective S[Kutas]3.1 Consistent with the IGA (Inter-Governmental Agreement), IMB will be the primary authority for ANE investigations.
S3.1a The DOH must promulgate administrative rules that delineate the IMB’s responsibilities as they relate to the IMB’s primary authority to conduct single ANE investigations. S3.1b The DOH must monitor the IMB’s compliance with these administrative rules on a quarterly basis and must promptly correct any deficiencies. Component Manager: IMB Bureau Chief.
Court’s Comments: The JCA’s Formal Recommendation that the IMB conduct appropriate investigations for all ANE allegations is duplicative of Safety Objective S2.1. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
D. KUTAS RECOMMENDATION #4: The ANE system of reporting and investigation is transparent. What happens is easily seen and understood. Individuals, families, guardians, providers, case managers and others receive relevant and necessary information about reports and findings that are used to keep individuals safe and address identified system issues.
1. Safety Objective S[Kutas]4.1 Provide information regarding ANE reports/investigations to designated stakeholders.
S4.1a The DOH must provide timely information regarding ANE reports, investigations, and findings to JCMs, stakeholders (families, guardians, providers, case managers), and other individuals or staff who need that information to ensure the safety of JCMs.
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S4.1b The reporter of ANE must receive information from the DOH about the status of the ANE report and any findings. S4.1c Notification of substantiation of ANE reports must comply with New Mexico Administrative Code 7.1.14.12 (Notification of Investigation Results). Component Manager: IMB Bureau Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
E. KUTAS RECOMMENDATION #5: The findings of investigations result in actions that are beneficial to the alleged victim, effectively remediate problems, increase safety and prevent recurrence.
1. Safety Objective S[Kutas]5.1 Risk of ANE is reduced when individual/systems issues are identified and prevent[ive] and remedial measures are taken.
S5.1a When there is substantiated ANE, Defendants must take immediate preventive and remedial action at the individual, program, and system levels. S5.1b When there is substantiated ANE, the appropriate case managers must ensure that identified health and safety risks for a JCM are addressed and remediated. S5.1c Providers and appropriate regional office staff must review ANE investigations and findings to determine if responses to substantiated ANE are timely, effective, and sustained. S5.1d When there is substantiated ANE, the JCM’s ISP must include pertinent information about the ANE investigation and the ANE report for purposes of reducing and preventing ANE. Component Manager: IMB Bureau Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
F. KUTAS RECOMMENDATION #6: People are protected from abuse, neglect and exploitation by a reliable ANE system.
1. Safety Objective S[Kutas]6.1 Use ANE information to improve health/safety.
S6.1a The DOH must implement an integrated data system to identify patterns concerning ANE at the individual, program, and systems levels.
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S6.1b Quarterly, the DHI and DDSD must examine IMB data and must identify patterns of ANE, indicated, for example, by multiple reports of ANE by providers or JCMs, by substantiated cases of ANE, by use of emergency services in response to ANE, and by out-of-home placements resulting from ANE. S6.1c The DOH must disseminate to providers and pertinent personnel information about ANE, including patterns of ANE, identified “systems” issues concerning ANE, and identified causes and contributing factors of ANE. Component Manager: IMB Bureau Chief and DDSD Assistant Regional Office Bureau Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
G. SAFETY GOAL 2 Deaths are reviewed in a timeframe consistent with DOH policy by a team of qualified, independent healthcare professionals and relevant administrative personnel. Detailed findings and recommendations, as appropriate are issued and recommendations from the MRC and corrective actions are implemented. Deaths are reviewed as a learning opportunity to improve quality at the individual, program and systems level. Incidents, deaths and significant events are documented and analyzed, root causes are identified and deficiencies are adequately remediated.
1. Safety Objective S2.1 All deaths are reviewed and a root cause analysis is done of preventable deaths. The findings from the root cause analysis will be used to strategically reduce the likelihood of preventable deaths.
S2.1a Qualified independent healthcare professionals and relevant administrative personnel must timely report and review all JCM deaths. S2.1b The DOH must timely provide autopsy reports and independent healthcare professionals’ reports of JCMs’ deaths to the Mortality Review Committee (MRC), that then reviews and analyzes all JCM deaths, and makes findings and recommendations. S2.1c The DOH must identify and take appropriate remedial actions in response to the MRC’s findings and recommendations. S2.1d The DOH mortality review process must be consistent with the components in the General Accounting Office Mortality Review Report, GAO-08-529, as tailored for New Mexico’s population and demographics. S2.1e In response to analysis of JCMs’ deaths and the mortality review process, the DOH must identify root causes of the JCM deaths and must remediate identified deficiencies in the mortality review process so as to reduce the likelihood of preventable deaths.
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Component Manager: DDSD Medical Director.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
H. SAFETY GOAL 3 The quality of services, settings, and supports provided by community agencies are evaluated at least annually through the Community Practice Review and at other intervals as appropriate, through provider reviews; any deficiencies are identified, corrective actions are taken and sustained on an individual, program and regional basis.
1. Safety Objective S3.1 Establish and use indicators to measure quality of DD [Developmentally Disabled] Services in New Mexico.
S3.1a The DOH must establish “DD key indicators” at the individual, program, and systems levels that guide programs and services for JCMs. S3.1b The DOH must ensure that the DD key indicators are present in the DDW provider agreements, DDW (Developmentally Disabled Waiver) standards, and the QMB (Quality Management Bureau) review tool. S3.1c The DOH must identify and must document a JCM’s preferences and needs, through the use of DD key indicators, the CPR (Community Practice Review), and other JCM data, with respect to gaining skills, increasing independence, and participating in integrated community activities. S3.1d The DOH and providers must respect a JCM’s informed choices for program development and services to meet the JCM’s preferences and needs. S3.1e Providers must use information from the DD key indicators, the CPR, and the JCM to promptly correct deficiencies in programs and services and to improve practice. Component Manager: DDSD Bureau of Systems Improvement Bureau Chief.
Court’s Comments: The Court did not use the JCA’s Formal Recommendations that were general and open-ended, e.g., “JCM[s] are safe and protected from harm,” “JCMs have opportunities for meaningful and empowering relationships.” JCA’s Formal Recommendations at 11. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Safety Objective S3.2 Community Practice Reviews are provided by competent personnel as evidenced by reviewers who have passed competency based training.
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S3.2a Community Practice Reviewers must satisfactorily complete the DOH mandatory competency-based training, including “Online PreService Manual Part 1, person Centered Planning 2 day, Health and Wellness Coordination, and Advocacy Strategies,” before participating in the CPR. S3.2b The Community Monitor must be satisfied with the selection and training of the Community Practice Reviewers and of the Case Judges who review the Community Practice Reviewers’ findings. S3.2c The Community Monitor must determine the CPR sampling methodology, protocol instrument, reviewers’ guidelines, scoring, and evidence used to assess compliance with the elements of the CPR, consistent with related requirements in the JSD (Joint Stipulation on Disengagement) Component Manager: Community Monitor/Jackson Compliance Officer.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Safety Objective S3.3 Implement the CPR.
S3.3a The DOH must annually conduct the CPR consistent with the Community Monitor’s existing sampling methodology, protocol instrument, reviewers’ guidelines, scoring, and evidence. S3.3b The Community Monitor must issue individual, regional, and statewide reports that contain the Community Monitor’s findings and recommendations. S3.3c The DOH must continue to provide adequate resources to support the implementation of the CPR for purposes of demonstrating sustainability. Component Manager: DDSD Litigation Management Unit and Jackson Compliance Officer.
Court’s Comments: The JCA’s Formal Recommendation that Defendants “implement an individual quality review as part of a quality improvement system,” falls outside the scope of Safety Objective S3.3. JCA’s Formal Recommendations at 12 (S3.3d). Defendants request an evaluative component stating that they must fulfill the requirements of implementing the CPR process for one additional year after the Court makes a finding that Defendants have satisfied all outstanding obligations. Defendants’ Objections at 45 (S3.3). This may be an appropriate yardstick although it could also be interpreted to mean that Defendants may stop using the CPR process after that year. Because Defendants’ proposed evaluative component is unclear, the Court does not include it as a final evaluative component. To the extent the Court’s final evaluative components are
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inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
4. Safety Objective S3.4 Use the findings from the CPR to improve services for class members and to improve the system of services for Jackson class members.
S3.4a DDSD must work with service providers and case management agencies that have “repeat findings” of deficiencies or problems to improve and sustain improvement with respect to the identified deficiencies or problems. S3.4b The DDSD and providers must use the 2013–2015 CPR findings and recommendations. S3.4c DDSD must meet with providers that have high health risk-related findings and providers that have the highest number or 2013–2015 CPR findings of deficiencies to improve those providers’ services to JCMs. S3.4d Defendants must identify actions taken in response to the 2013– 2015 CPR findings and ensure that deficiencies are remedied. Component Manager: Jackson Compliance Officer.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
5. Safety Objective S3.5 Competency based training is provided based in part on analysis of identified deficiencies from the CPR through the DDSD required trainings and to specific entities as appropriate.
S3.5a DDSD must evaluate CPR findings to identify deficiencies in its required competency-based training. S3.5b Using its evaluation of CPR findings, the DDSD must modify existing competency-based training or must provide additional competency-based training to address identified deficiencies. S3.5c Providers with identified deficiencies, and especially providers with repeat deficiencies, must receive competency-based training designed to address deficiencies. Component Manager: DDSD Training Unit Manager.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
6. Safety Objective S3.6 Use information from the CPR in an integrated manner to inform program development and management for class members.
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S3.6a DDSD must develop, modify, and manage programs and services for JCMs based on identified correlations in the CPR information and other JCM data. S3.6b DDSD must file semi-annual reports identifying program development and implementation. Component Manager: Jackson Compliance Officer.
Court’s Comments: Safety Objective S3.6 is very similar to Safety Objective S3.4. For example, Safety Objective S3.4 requires that Defendants use CPR information to improve services to JCMs, while Safety Objective S3.6 requires Defendants to use CPR information in an “integrated manner” to inform services to JCMs. Safety Objective S3.6 implies that the CPR data should be used with other information to develop and improve services to JCMs. Thus, the Court addresses only the requirement that integrated information be used and measured, and refers to Safety Objective S3.4 for other related final evaluative components. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
7. Safety Objective S3.7 Regulatory program reviews are completed by staff who have received and passed competency based training specific to their QMB roles and responsibilities.
S3.7a DHI/QMB staff must receive competency-based training for evaluating programs that serve JCMs. S3.7b DHI/QMB staff must satisfactorily complete competency-based training before evaluating programs and providers that serve JCMs. Component Manager: QMB Bureau Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
8. Safety Objective S3.8 Regulatory review of CM [case management] agencies by the QMB, will include a review of essential services as determined by professional assessments and IDT decisions of individual needs and preferences.
S3.8a QMB must identify and must review the essential services that should be provided to JCMs, consistent with IDT decisions and determinations by medical professionals, therapists, and nutritional experts. S3.8b QMB must modify its CM data to reflect the identified essential services for JCMs.
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S3.8c QMB must review CM agencies on an annual basis, using quality indicators consistent with the DDSD 2006 Case Management Manual Resource Guide and DDSD Service Standards, to ensure essential services are being provided to JCMs. Component Manager: QMB Bureau Chief.
Court’s Comments: The JCA recommends steps to assess the “implementation of the ISP” and “the extent to which services are delivered in accordance with the ISP.” JCA’s Formal Recommendations at 14 (S3.8b). However, that recommendation appears to expand the scope of Safety Objective S3.8. But see Safety Objective S5.3. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections
I. SAFETY GOAL 4 Prompt and effective action is taken with respect to provider agencies where serious incidents, deaths, patterns of incidents or of significant events or serious programmatic deficiencies have been identified, in order to protect class members, to reduce the risk of future harm and to ensure that quality services and supports are provided.
1. Safety Objective S4.1 Examine current Quality Assurance and Quality Improvement processes and activities intended to safeguard Jackson Class Members and to improve the quality of provider performance in relation to Jackson Class Members. Take steps to increase transparency, accountability, and effective remediation. Establish measurable indicators that are consistent with the pertinent standards that address the quality of provider performance.
S4.1a The DOH, with stakeholder input, must analyze its quality assurance and quality improvement systems and must modify these systems accordingly to improve the quality of services and of provider performance for JCMs. S4.1b The DOH must annually evaluate the quality of providers’ services and must promptly issue “provider report cards” that identify strengths, deficiencies, and remediation plans of the providers. S4.1c The DOH must allow public access of the provider report cards. S4.1d Increased transparency and accountability of providers’ services must be measured by the Provider Selection Guide (a DOH publication). S4.1e The DOH must review a provider more frequently in cases where there is evidence that the provider has an increased number of deficiencies or increasingly serious deficiencies. Component Manager: DDSD Bureau of Systems Improvement Chief.
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Court’s Comments: Defendants believe that the JCA expands the purpose of Safety Objective S4.1 with her recommendation that the public have access to provider performance report cards. Defendants’ Objections at 51–52 (S4.1). However, the Court finds that public access is part of the transparency and accountability expressly contemplated by Safety Objective S4.1. Although the JCA proposes several evaluative components directed at the use of measurable indicators, Safety Objective S5.1 addresses this same issue. See Safety Objective S5.1 and evaluative component S5.1a for the development of measurable indicators that address quality of provider performance. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Safety Objective S4.2 DOH response is proportionate to the seriousness of the contractor’s alleged substandard performance when corrective action is not effectively implemented.
S4.2a Defendants must identify a contractor’s deficiencies in cases where the contractor failed to effectively implement corrective action. S4.2b Defendants must take remedial action proportional to the seriousness of the alleged substantial performance by a contractor that fails to effectively implement an identified corrective action. Component Manager: Internal Review Committee Chair.
Court’s Comments: The JCA’s recommendation that “frequency and scope of reviews is dependent on the Provider’s self-survey compared to the actual findings by QMB” is not clear. JCA’s Formal Recommendations at 15 (S4.2c). Safety Objective S4.2 does not refer to a “review” or to a “self-survey.” To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
J. SAFETY GOAL 5 Establish measurable indicators of quality and develop an integrated data collection system that collects, analyzes, and employs information from multiple sources to ensure that these quality indicators are met, the safety of Jackson Class Members is protected, and quality services are provided for Jackson Class Members.
1. Safety Objective S5.1 Providers will use the identified performance indicators as part of their agency quality assurance system to improve quality.
S5.1a The DOH must establish measurable quality indicators, including (1) implementation of a QA/QI (Quality Assurance/Quality Improvement)
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Plan, (2) implementation of ISPs, (3) analysis of General Events Reports data, (4) compliance with Caregivers Criminal History Screening requirements, (5) compliance with Employee Abuse Registry requirements, (6) compliance with DDSD training requirements, (7) patterns of reporting incidents, and (8) results of improvement actions taken in previous quarters, at the individual, program, and systems levels. S5.1b The DOH must communicate these required measurable quality indicators to providers. S5.1c Providers must use the required measurable quality indicators to improve the quality of their services to JCMs. S5.1d The DOH must determine providers’ compliance in using the measurable quality indicators through the use of QMB surveys for a fiscal year. Component Manager: QMB Bureau Chief.
Court’s Comments: The JCA’s Formal Recommendations for Safety Objective S3.1 recite almost verbatim the proposed evaluative components for Safety Objective S5.1. JCA’s Formal Recommendations at 11, 15–16. The Court avoids duplication of the final evaluative components in cases where the goals of certain Objectives may be similar. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Safety Objective S5.2 Use significant events reported through GER (General Events Reporting)-including use of emergency services, falls, medication errors, and law enforcement incidents -- to support DD system management, that includes responses to significant events.
S5.2a The joint DDSD and DHI Significant Events Committee, and the DDSQI Developmental Disabilities Supports Division Quality Improvement must routinely use the GER information (as defined by Safety Objective S5.2) to support DD system management. S5.2b Defendants must use the GER information to identify the JCMs most at risk, to inform providers and regional Quality Assurance staff of JCMs most at risk, and to request the development and implementation of prevention plans specific to a JCM’s identified risks. S5.2c Defendants must provide DDSQI with significant event information found in electronic reporting through Therap GER for use by members of the joint DDSD and DHI Significant Events Committee in program development and improvement. S5.2d The DOH must analyze significant event information, must identify undesirable trends or deficiencies in performance (e.g., failure to respond adequately to significant events), must develop remedial plans, and must evaluate effectiveness of remediation. Component Manager: DDSD Deputy Director.
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Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Safety Objective S5.3 Implement a responsive and effective case management system as evidenced by the provision of needed supports and services.
S5.3a Case managers must demonstrate that they know the current strengths, needs, preferences, and medical conditions of the JCMs they serve through updating each JCM’s ISP to address these factors. S5.3b Case Managers must ensure that each JCM’s ISP is properly implemented and should use the Omnicaid Claims Report to confirm that a JCM received the services identified on the ISP. S5.3c Case Managers must identify significant risks, needed supports, and unmet needs for each JCM; must convene the IDT promptly whenever a JCM is at risk or a JCM’s needs are not being fully addressed; must ensure that the JCM’s needs are addressed; and must seek assistance from the DOH if the IDT is unable to adequately meet a JCM’s needs. S5.3d The DOH must monitor and evaluate the performance of each case management agency on an annual basis and must use its evaluation to determine whether the case management agency should be certified as a DD Waiver provider. Component Manager: QMB Bureau Chief and Bureau of Systems Improvement Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
4. Safety Objective S5.4 Develop and implement an effective, integrated DD Strategic Information Management System.
S5.4a The DOH must evaluate its integrated DD Strategic Information Management System, comprised of the electronic Health management System, DDSD (LTSD) reports, and HSD’s (Human Services Department) Medicaid Management Information System (MMIS) (currently Omnicaid), in terms of that integrated system’s capacity to use information through web-based reports for JCMs. S5.4b The DOH must make DDSD (LTSD) reports available as webbased reports. S5.4c The DOH must ensure that the “ad-hoc reports pulled from HSD’s MMIS” are available from DDSD. S5.4d The DOH must transition the “Therap reports on Provider Compliance” to DDSD. (If this does not reflect Defendants’ proposed
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evaluative component, which may not have been complete or clear, Doc. No. 2022 at 58, Defendants should correct evaluative component S5.4d as needed.) S5.4e Defendants must evaluate the usefulness and gaps in the abovedescribed data collection system and must modify or update the system where practicable. Component Manager: DDSD Bureau of Systems Improvement Chief.
Court’s Comments: The JCA recommends that the DOH develop and operate “a computerized and integrated data management system that collects, analyzes, and employs information from all available data sources, including HSD’s Medical Assistance Division, QMB findings, DDSD quality assurance reviews of ISPs, incident report data, IMB investigation data, mortality/morbidity information, GER information, Community Practice Review findings, RORIs (Regional Requests for Intervention), SSRs (Speciality Service Reports), IRC (Internal Review Committee) data, DDSQI reports, federal Center for Medicare and Medicare Services, and DDSD Regional Office technical assistance information” so that “administrators” have information about provider performance at all levels. JCA’s Formal Recommendations at 17. Defendants argue that “integrating IT systems” as recommended by the JCA is a high risk effort and not in the best interests of the JCMs. Defendants’ Objections at 59. Defendants contend that this type of project has a high failure rate even after a prolonged effort and the expenditure of a lot of money. Defendants further assert that designing and implementing an integrated computerized analysis system, as contemplated by the JCA, can only be accomplished if the data sets are consistent. Data pertaining to JCMs is qualitative or text-based rather than quantitative or numerical.
The JCA envisions an integrated computerized database that might greatly assist the administration of services to the JCMs. However, the reality is that such a system likely cannot be developed and implemented within the lifetimes of the dwindling class members. See R.C. ex rel. Alab. Disabilities Advocacy Project v. Walley, 270 F. App’x 989, 993 (11th Cir. Mar. 27, 2008) (“[f]ederal courts should not be in the business of running important functions of state government for decades at a time”) (citation omitted). Moreover, the Court already requires sufficient data collection and reporting by Defendants as to specific plans and Objectives. The Court adopts Defendants’ evaluative components without using the percentile thresholds. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
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SUPPORTED EMPLOYMENT PLAN
A. SUPPORTED EMPLOYMENT GOAL 1 People who want to work will work.
1. Supported Employment Objective SE 1.1 Achieve an annual increase of Jackson Class Members working “at criteria,” in accordance with information gathered regarding the Jackson Class Members’ abilities and desires to be employed, and the guardians’ positions on employment of the Jackson Class Members. Defendants must provide technical, supported employment assistance to the Jackson Class Members and support for teams to assist all qualified and willing Jackson Class Members to obtain “at criteria” employment.
SE1.1a Defendants must obtain current statistics on JCMs who are not working at criteria, but who wish to work and are capable of working at criteria, provided the JCMs’ guardians support working at criteria. SE1.1b Defendants must provide technical vocational assistance and support through job developers and job coaches for all JCMs identified in SE1.1a. SE1.1c Defendants must achieve an annual increase in the number of JCMs working at criteria, consistent with SE1.1a. SE1.1d Defendants must provide technical assistance to JCMs and their teams to obtain jobs for JCMs consistent with the federal definition of Supported Employment. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Supported Employment Objective SE 1.2 Defendants will increase the number of qualified providers statewide in order to increase the number of Jackson Class Members earning minimum wage or better, and to increase the average number of hours per week worked by Jackson Class Members. Defendants will develop a plan with time lines to provide quality supported employment at criteria to all priority class members who are determined to be appropriate for work.
SE1.2a Defendants must develop a written strategy and process to recruit and retain qualified employment providers for all JCMs who wish to and are able to work at criteria, with their guardians’ consent. SE1.2b Defendants must provide a current written list of qualified employment providers to JCMs and their guardians.
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SE1.2c Defendants must use the list of qualified employment providers to increase the number of JCMs earning minimum wage or better and to increase the number of hours per week worked by JCMs. SE1.2d Defendants must create and must disseminate a timeline with target dates for the employment at criteria of all JCMs who wish to work, who can work, and who have the consent of the guardians to work at criteria. SE1.2e Defendants must maintain and must report annual statistics on the number of (1) JCMs who wish to work at criteria, (2) JCMs who can work at criteria with their guardians’ consent, and (3) JCMs who are working at criteria. Defendants must correlate these annual statistics with the target dates in the timeline. Component Manager: DDSD Deputy Director.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Supported Employment Objective SE 1.3 Personnel who develop or implement career development plans will receive and pass competency based training based on DDW standards on career development planning.
SE1.3a Defendants must develop competency based training on DDW standards for career development planning. SE1.3b Personnel must have satisfactorily passed competency based training on DDW standards for career development planning before providing career development planning to JCMs and their guardians. Component Manager: DDSD Deputy Director.
Court’s Comments: The JCA recommends that Defendants develop or recruit employment providers for JCMs, but that requirement is addressed under Supported Employment Objective SE1.2. The JCA also proposes that Defendants fund certain entities to provide vocational assistance to JCMs. JCA Formal Recommendations at 19 (SE1.3b, SE1.3c). That recommendation is outside the scope of Supported Employment Objective SE1.3. To the extent the Court’s final evaluative component is inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
4. Supported Employment Objective SE 1.4 Increase capacity to create traditional and non-traditional paths to employment.
SE1.4a The DDSD Deputy Director must develop an approved action plan to deploy an SE expert or experts to work with qualified employment
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providers to increase the number of traditional and non-traditional employment opportunities for JCMs to work at criteria. SE1.4b Defendants, through Partners for Employment, must deliver customized employment training to qualified employment providers in reference to employment of JCMs at criteria. SE1.4c Defendants must use funding available through the IGA for the development of JCMs’ vocational assessment profiles (VAPs). SE1.4d Defendants must demonstrate through annual statistics that they have increased the capacity to provide traditional and non-traditional paths for employment of JCMs at criteria. Component Manager: DDSD Deputy Director.
Court’s Comments: Some of the JCA’s Formal Recommendations are unclear. Defendants object to the JCA’s recommendation that “DD Waiver provider agencies have successfully completed competency-based training recommended by the Jackson Employment Expert and provide traditional and non-traditional paths to employment.” JCA’s Formal Recommendations at 19 (SE1.4c). Defendants argue the proposed strategy has had limited success and that the DOH field data does not indicate training will support this component. Defendants’ Objections at 63 (SE1.4). The Court does not have sufficient information to evaluate the possible usefulness of the JCA’s Formal Recommendation. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
5. Supported Employment Objective SE 1.5 Individual records (including ISPs) of Jackson Class Members will contain accurate employment plans that include information about the Jackson Class Members’ desires to work, the Jackson Class Members’ skills for existing jobs, and whether the guardians want the Jackson Class Members to work.
SE1.5a Defendants, through appropriately trained personnel, must update each JCM’s ISP with a current and accurate employment plan, including information about the JCM’s employment goals and whether the JCM wishes to work, has skills for existing work, seeks traditional or nontraditional work, and has the guardian’s consent to work. Component Manager DDSD Supported Employment Lead.
Court’s Comments: To the extent the Court’s final evaluative component is inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
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6. Supported Employment Objective SE 1.6 When there is a change in an individual’s life that impacts their employment status, the team will meet within 10 days and take action to minimize the disruption to the class member’s employment.
SE1.6a Defendants must have a system in place to minimize the disruption to a JCM’s employment when a JCM suffers a “life change” (hospitalization, significant health status change, relocation to another city, loss of employment). SE1.6b Defendants must promptly document any life change for a JCM in appropriate forms, including Case Management Site Visit Forms and IDT Meeting minutes. SE1.6c The JCM’s team must meet within ten (10) days of a JCM’s life change to take approved actions to minimize a disruption in the JCM’s employment. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: Defendants appear to object to the requirement that action be taken within 10 days of a JCM’s life change. Defendants’ Objections at 65. Defendants state, for example, that the events that could impact a JCM’s employment status may not be known to the case manager within 10 days of a particular event. Thus, Defendants decided that the mandatory case management visits that occur twice a month would identify any issue within a sufficient time frame for the team to act. To the extent that Defendants object to the use of a 10-day deadline, the Court overrules that objection. The Court’s earlier Order and related Table reflected that the parties agreed to the language of Supported Employment Objective SE1.6. Doc. 1996, Table I. The Court does not use the JCA’s Formal Recommendations, which essentially repeat the elements of the Objective. To the extent the Court’s final evaluative components are inconsistent with Defendants’ other proposals, the Court overrules Defendants’ Objections.
B. SUPPORTED EMPLOYMENT GOAL 2 Every class member will have access to a quality network of providers throughout the state. Providers who cannot achieve work goals are eliminated.
1. Supported Employment Objective SE2.1 Qualified regional providers will be available in each region for each individual seeking employment.
SE2.1a Defendants must develop a process to produce a list of qualified employment providers in all regions of the State for JCMs who seek employment.
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SE2.1b Defendants must create written standards that qualified employment providers must meet, including standards addressing employment goals for JCMs. SE2.1c Qualified employment providers that do not meet Defendants’ standards must be placed on probation for a period not to exceed six (6) months. If a qualified employment provider does not meet Defendants’ standards by the end of the probationary period, Defendants must eliminate that employment provider from the list. SE2.1d Defendants must ensure that JCMs in every region of the State have some choice of qualified employment providers. Defendants need not provide qualified employment providers in regions of the State where there are no JCMs who seek employment. Component Manager: DDSD Deputy Director.
Court’s Comments: Defendants argue that the JCA’s Formal Recommendation that JCMs have a choice of qualified providers is a “major expansion” of Supported Employment Objective SE2.1. Defendants’ Objections at 66 (SE2.1). The Court disagrees. Supported Employment Objective SE2.1 specifically requires a “quality network of providers.” (emphasis added). The term “network” implies that JCMs will have some choice of quality employment providers. The JCA also recommends that “providers who fail to achieve work goals” should not be considered “qualified.” JCA’s Formal Recommendations at 20 (SE2.1b). The meaning of “work goals” in the JCA’s recommendation is not clear. In addition, Supported Employment Objective SE2.6 addresses almost this same issue–“Increase the number of qualified providers statewide. Qualified employment providers are defined as those that get [JCMs] jobs in the community, [help JCMs] maintain jobs[,] and help [JCMs] with career advancement.” If the JCA and the parties wish to include this definition of “qualified [employment] providers” in a final evaluative component, they may agree to do so. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Supported Employment Objective SE2.2 Defendants will implement the Employment First Policy that explicitly sets forth the role and importance of employment, as well as expectations for employment, in a Jackson Class Member’s life.
SE2.2a The DOH must develop and must implement an Employment First Policy consistent with professionally accepted standards of practice that apply to a JCM. SE2.2b The Employment First Policy must set forth in writing the role and importance of employment for a JCM and a JCM’s expectation of employment.
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SE2.2c The DOH must make available to a JCM and the JCM’s family and guardian information on how to obtain vocational assistance, vocational assessment, assistance for non-traditional employment, and DVR services. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Supported Employment Objective SE2.3 Clarify what the employment first principle means in terms of day-to-day practice for all stakeholders (people with disabilities, family members, providers, guardians, advocates, case managers, DDSD, DVR, Partners for Employment).
SE2.3a Defendants must communicate to stakeholders, including pertinent agency personnel, the meaning of New Mexico’s Employment First Policy as it relates to day-to-day practice and assistance to JCMs and their guardians. SE2.3b Defendants must communicate information about New Mexico’s Employment First Policy through formal training sessions, delivery of written materials, or other outreach efforts. SE2.3c Defendants must use the proposed Communication Matrix–which contains columns indicating audience size, frequency of event, method of communication, key message delivered, and date of communication–to identify communications about New Mexico’s Employment First Policy. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
4. Supported Employment Objective SE2.4 Identify quality employment providers based on employment outcome data.
SE2.4a Defendants must measure qualified employment providers through employment outcome data that includes each JCM’s name, start and end date of each job, employer of record, wages earned, hours worked, and summary of qualified employment providers’ assistance. Component Manager: DDSD Deputy Director.
Court’s Comments: There is some overlap between Supported Employment Objectives SE1.2 and SE2.4. The Court does not repeat in SE2.4 final evaluative components that are found under Supported
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Employment Objective SE1.2. To the extent the Court’s final evaluative component is inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
5. Supported Employment Objective SE2.5 Review CPR and other employment data. Analyze data and use the resulting information annually to help make improvements to the employment system and improve provider performance.
SE2.5a Defendants must maintain and must analyze current employment data and the CPR. SE2.5b Defendants, through the Statewide Supported Employment Lead or the Jackson Employment Expert, must use the resulting information to enhance employment outcomes for JCMs. Component Manager: DDSD Deputy Director.
Court’s Comments: Defendants do not clearly object to the JCA’s Formal Recommendations at 22 (SE2.5a and SE2.5b), but state that Defendants have already established the initiative that is addressed by the JCA’s proposals. Defendants’ Objections at 70 (SE2.5). To the extent that the Court’s final evaluative components do not fully capture the parties’ intent with respect to Supported Employment Objective SE2.5, the JCA and the parties should confer and agree on appropriate final evaluative components. Where the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
6. Supported Employment Objective SE2.6 Increase the number of qualified providers statewide. Qualified providers are defined as those that get people jobs in the community, maintain jobs and help individuals with career advancement. Component Manager: DDSD Deputy Director.
Court’s Comments: Supported Employment Objectives SE1.1 and SE1.2, along with other SE Objectives, already address the substance of Supported Employment Objective SE2.6. There is no need to add additional, final evaluative components to Supported Employment Objective SE2.6.
7. Supported Employment Objective SE2.7 CMs will demonstrate competence in facilitating IDTs regarding employment outcomes for class members. Competence will be demonstrated by passing competency based training regarding DOH employment policies.
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SE2.7a DOH, in consultation with the Jackson Employment Expert, must provide competency-based training for all JCM case managers. SE2.7b DOH must identify JCM case managers who have not passed the competency-based training and must take appropriate actions until the case managers are successful. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: Defendants state they have already developed, in consultation with the Jackson Employment Expert, the competency-based training for JCM case managers. Defendants’ Objections at 72 (SE2.7). Defendants do not clearly object to the JCA’s Formal Recommendations, which the Court adopts with minor changes. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
8. Supported Employment Objective SE2.8 DOH will disseminate information to CM[s], Providers and IDTs regarding strategies for overcoming identified barriers to employment and will promote use of the RORI system by CMs, providers and IDTs to seek assistance from DOH when they encounter obstacles related to employment. DOH will review and use the information from the RORIs at least annually.
SE2.8a The DOH must collect annual data and information useful in identifying barriers to employment and in developing strategies for overcoming barriers to employment for JCMs. The data and information may include CPRs, RORIs, and input from JCMs, JCMs’ families and guardians, case managers, providers, DDSD personnel, DVR personnel, and advocates. SE2.8b The DOH must disseminate the information addressed in SE2.8a to case managers, providers, JCMs, guardians, and IDTs. SE2.8c The DOH must collect RORI information on an annual basis and must promote RORI use to identify barriers that JCMs encounter in obtaining employment. Component Manager: DDSD Supported Employment Lead and Assistant Regional Office Bureau Chief.
Court’s Comments: Some of the JCA’s Formal Recommendations fall outside the scope of Supported Employment Objective SE2.8. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
9. Supported Employment Objective SE2.9 Qualified employment providers have capacity to do individualized job development.
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SE2.9a Defendants must provide adequate training for providers that are unable to perform the individualized job development. Component Manager: DDSD Deputy Director.
Court’s Comments: To the extent the Court’s final evaluative component is inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
10. Supported Employment Objective SE2.10 Qualified employment providers have the capacity to provide individualized job supports to JCMs.
SE2.10a Defendants must identify employment positions for JCMs who need job supports to ensure that providers can supply the required job supports to JCMs. Component Manager: DDSD Deputy Director.
Court’s Comments: Defendants state that this Objective is satisfied “by the identification of providers where lack of capacity is a contributor to performance of individualized job supports.” Defendants’ Objections at 76 (SE2.10). The language “contributor to performance of individualized job supports” is unclear. In addition, the Court observes that the JCA regularly refers to the Jackson Employment Expert as someone who can assist in satisfying Supported Employment Objectives. In contrast, Defendants state that the Jackson Employment Expert lives in Georgia, is employed full time as the Director of Georgia Protection and Advocacy, does not work exclusively in the field of employment, and has informed Defendants that she is not available to travel to New Mexico as requested to perform activities in both Appendix A and the scope of her contract. Id. Defendants urge the use of the Statewide Supported Employment Lead, who Defendants assert has skills equivalent to the Jackson Employment Expert and who also has the advantage of current field data. The Court directs the JCA and the parties to confer and decide which professional will perform the required activities. The parties may amend these final evaluative components as needed. To the extent the Court’s final evaluative component is inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
11. Supported Employment Objective SE2.11 Provider agencies use outcome data to improve practice.
SE2.11a Defendants must identify outcome data related to employment of JCMs that will assist provider agencies to improve their services to JCMs. That data may include information concerning provider agencies that are successfully developing jobs for JCMs at criteria or above criteria, provider agencies that are successfully supporting JCMs in maintaining
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community based jobs at criteria or above criteria, and provider agencies that are enabling JCMs to work more hours, receive higher wages, and obtain greater levels of social integration. SE2.11b Defendants must disseminate to provider agencies annual outcome data that Defendants deem helpful for use by provider agencies to improve services to JCMs. SE2.11c Provider agencies must use “the required QA/QI agency plan in regards to ISP implementation specific to Supported Employment.” Component Manager: DDSD Supported Employment Lead.
Court’s Comments: While the Court adopts Defendants’ proposed component regarding implementation of the QA/QI agency plan, the Court does not know how it directly relates to Supported Employment Objective SE2.11. The JCA and the parties should work together to agree on the final evaluative components for this Objective so that the language is clear and avoids repetition of final evaluative components included under other Objectives. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
C. SUPPORTED EMPLOYMENT GOAL 3 Provide a reliable available form of targeted technical assistance to providers of supported employment based on all provider reviews.
1. Supported Employment Objective SE3.1 Defendants will inform employment providers where to refer Jackson Class Members for a complete, person-centered vocational assessment, and employment providers will understand the requisite elements of a person-centered vocational assessment as defined by Defendants.
SE3.1a Defendants must identify appropriate tools, e.g., the “Assessment Toolkit,” for employment providers, including information about where to refer JCMs for a complete person-centered vocational assessment. SE3.1b Defendants must develop training on how to use the Assessment Toolkit, and DDSD Supported Employment Coordinators and other pertinent staff must receive that training. SE3.1c Defendants must provide training to employment providers on how to use the Assessment Toolkit. SE3.1d Defendants must inform employment providers that they may schedule follow-up meetings with Defendants about the use of the Assessment Toolkit. Component Manager: DDSD Deputy Director.
Court’s Comments: The JCA recommends that Defendants identify providers in each region of the State that are capable of developing a “complete, person-centered, vocational assessment.” JCA’s Formal
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Recommendations at 24 (SE3.1a). Other Supported Employment Objectives already address the JCA’s Formal Recommendations for this Objective. See SE2.1 (“Qualified regional providers will be available in each region for each individual seeking employment”); SE2.9 (“Qualified employment providers have capacity to do individualized job development”). The JCA recommends that Defendants make quarterly determinations regarding whether the vocational assessments include the requisite elements. This is beyond the scope of Supported Employment Objective SE3.1. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Supported Employment Objective SE3.2 IDTs are informed about the importance of accommodations to increase independent performance in the workplace.
SE3.2a IDTs, case managers, and qualified employment providers must understand, through training and written communications, the importance of accommodations, supports, and assistive technology for a JCM so as to maximize a JCM’s independent performance in the workplace. SE3.2b IDTs, case managers, and qualified employment providers must understand, through training and written communications, the availability of accommodations, supports, and assistive technology for use by a JCM in the workplace. SE3.2c Defendants must document the transmittal of information about the importance of accommodations and supports for a JCM to IDTs, case managers, and qualified employment providers. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: Although the Court includes requirements related to “qualified employment providers” under this Objective, Supported Employment Objective SE2.10 (“Qualified employment providers have the capacity to provide individualized job supports to JCMs”) overlaps somewhat with Supported Employment Objective SE3.2. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
3. Supported Employment Objective SE3.3 Use the statewide employment institute to provide training and technical assistance to the field to advance employment opportunities for class members.
SE3.3a The DOH and University of New Mexico must have a formal agreement that requires Partners for Employment to respond to requests for employment information and consultation.
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SE3.3b Partners for Employment must provide training, technical assistance, information, and support to employment providers, JCMs and their families and guardians, and the IDTs in order to advance employment opportunities for JCMs. SE3.3c Defendants must report quarterly the requests for information about employment, training, technical assistance, consultation, and support made to Partners for Employment that it provided regarding JCMs. SE3.3d Defendants’ quarterly reports must disclose Partners for Employment’s success rate in assisting the advancement of employment opportunities for JCMs. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: See Court’s Comments to Supported Employment Objective SE3.6. To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
4. Supported Employment Objective SE3.4 DDSD will provide technical assistance to teams as requested for individuals whom they support to access employment opportunities.
SE3.4a DDSD must identify necessary technical assistance and information to provide to IDTs and JCMs and their guardians for purposes of responding to JCMs’ employment inquiries and issues. SE3.4b DDSD must respond to inquiries about employment opportunities and provide appropriate job-related technical assistance and information that may include job coaching, mentoring, and problem solving to IDTs and JCMs and their guardians. Component Manager: DDSD Assistant Regional Office Bureau Chief.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
5. Supported Employment Objective SE3.5 UNM/CDD Partners for Employment will provide training for people with disabilities, family members, providers, guardians, advocates, case managers, DDSD and DVR consistent with the Employment First Principle.
Component Manager: DDSD Supported Employment Lead.
Court’s Comments: See Court’s Comments to Supported Employment Objective SE3.6.
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6. Supported Employment Objective SE3.6 Defendants will provide training to employment providers and case managers on evidence based practices in Supported Employment. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: The Court requires the JCA and the parties to address Supported Employment Objective SE3.3 and Supported Employment Objective SE3.5 with Objective SE3.6 in order to present one set of final evaluative components for the three Objectives. It is clear from the JCA’s and Defendants’ proposed evaluative components that all three Supported Employment Objectives contemplate Defendants’ relationship with Partners for Employment, along with services by Partners for Employment and the Employment First Principle. There is no need to have three separate Supported Employment Objectives that address the same relationships, services, and training. The JCA and the parties may renumber the Supported Employment Objectives as needed.
7. Supported Employment Objective SE3.7 The appropriate Defendant will work with Partners for Employment (formerly known as Employment Institute) to maintain an ongoing learning collaborative.
SE3.7a Defendants must continue to fund and support Partners for Employment in accordance with an active formal agreement between DDSD and UNM, pertinent state procurement rules, and funding appropriated by the state legislature. SE3.7b The Partners for Employment program is intended to provide a learning collaborative that enhances employment opportunities for JCMs. SE3.7c Defendants must annually evaluate the outcomes and efficacy of Partners for Employment as the program relates to employment services for JCMs. SE3.7d Defendants must communicate the results of the annual evaluation with Partners for Employment. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
D. SUPPORTED EMPLOYMENT GOAL 4 Assist class members to have meaningful lives.
1. Supported Employment Objective SE4.1 Class members are able to explore community work experiences including job sampling, trial work experiences and volunteering.
44

Case 1:87-cv-00839-JAP-KBM Document 2035 Filed 04/03/15 Page 45 of 47
SE4.1a Defendants must identify JCMs who wish to do job sampling, trial work, or volunteering, provided the JCMs have their guardians’ consent to do this type of work. SE4.1b Defendants must identify processes that encourage job sampling, trial work experience, and volunteer opportunities for JCMs identified in SE4.1a. SE4.1c Defendants must communicate processes identified in SE4.1b to JCMs and their guardians, IDTs, case managers, and qualified employment providers. SE4.1d Defendants must ensure that there are qualified employment providers in each region that will afford opportunities for job sampling, trial work experiences, and volunteer opportunities for JCMs identified in SE4.1a. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
2. Supported Employment Objective SE4.2 Decrease the amount of time class members spend in congregated, segregated settings for persons with D/D and work with IDTs to promote participation in community activities and generic resources that are comparable to those used by non-disabled persons of the same age.
SE4.2a Defendants must identify JCMs who are working in “congregated, segregated settings for persons with D/D” and who do not wish to be in these work settings. SE4.2b For those JCMs identified in SE4.2a, Defendants must take steps to decrease the amount of time the JCMs spend in congregated, segregated work settings, provided the JCMs’ guardians agree. SE4.2c Defendants must provide education and competency-based training to IDTs and pertinent personnel concerning the importance of having JCMs participate in integrated community activities (in relation to work) and reducing the time spent by JCMs in congregated, segregated work settings. SE4.2d Defendants must annually identify and monitor those JCMs who wish to reduce time spent in congregated segregated work settings and those JCMs who spent reduced hours in congregated, segregated work settings. Component Manager: DDSD Supported Employment Lead.
Court’s Comments: The Court narrowed some of the language in the final evaluative components to “work settings” because this is an Objective that relates to the JCM’s employment. To the extent the JCA and parties wish to include broader language, it should be placed under more appropriate
45

Case 1:87-cv-00839-JAP-KBM Document 2035 Filed 04/03/15 Page 46 of 47
Health Goals and Objectives. The Court does not understand the reference to “meaningful day lead” in Defendants’ proposals. Defendants’ Objections at 87. Similarly, the Court does not understand the JCA’s reference to “CMS HCBS settings guidance pertaining to waiver funded presumptively isolating and segregating services.” JCA’s Formal Recommendations at 27 (SE4.2a).To the extent the Court’s final evaluative components are inconsistent with Defendants’ proposals, the Court overrules Defendants’ Objections.
Conclusion Defendants must demonstrate sustained substantial compliance with all of the final evaluative components for the Health, Safety, and Supported Employment Objectives set out in this Order. See Table IV (attached).6 The JCA and the parties should work with Chief Magistrate Judge Karen B. Molzen to prepare a comprehensive list of outstanding obligations, including the final evaluative components and obligations in Table II to the MEMORANDUM OPINION AND ORDER (Doc. No. 1996), with a timetable of realistic dates for completion of all outstanding obligations. The parties should file the comprehensive list of outstanding obligations and the timetable by May 15, 2015. If necessary, the JCA and the parties should also address with Chief Magistrate Judge Molzen the issue of sustained substantial compliance and the period of time deemed sufficient to show sustainability. IT IS ORDERED THAT: (1) the parties must file an Amended Table IV by May 1, 2015; (2) the parties must file a comprehensive list of outstanding obligations and the timetable
by May 15, 2015; and
6 Should the JCA and the parties agree to amend the final evaluative components for Safety Objective 5.4 and Supported Employment Objectives SE2.1, SE2.5, SE2.10, SE2.11, SE3.3, SE3.5, and SE3.6, and SE 4.2 they should file an Amended Table IV by May 1, 2015.
46

Case 1:87-cv-00839-JAP-KBM Document 2035 Filed 04/03/15 Page 47 of 47 (3) Defendants must demonstrate sustained substantial compliance with all of the final evaluative components for the Health, Safety, and Supported Employment Objectives set forth in this opinion. _______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
47

 
 Case 1:87-cv-00839-JAP-KBM Document 2095 Filed 02/11/16 Page 1 of 2

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

WALTER STEPHEN JACKSON, et al.,

Plaintiffs,

vs.

CIV No. 87-0839 JAP/KBM

LOS LUNAS CENTER FOR PERSONS with DEVELOPMENTAL DISABILITIES, et al.,

Defendants,

and

ARC OF NEW MEXICO,

Intervenor,

and

MARY TERRAZAS, et al.,

Intervenor pro se.

STIPULATED ORDER FOR DISENGAGEMENT OF OBJECTIVE S1.1.1

THIS MATTER, is before the Court by the agreement of the parties. On December 22, 2015,

Defendants sought a formal written determination from the Jackson Compliance Administrator (the

“JCA”) related to Objective S1.1.1 “Define ‘Abuse, Neglect and Exploitation’ (ANE) consistent with

New Mexico Statutory Adult Protective Services (APS) definitions.”

On January 21, 2016, the JCA issued a written determination, Doc. 2080, finding that “DOH has met the requirements of evaluative component S1.1a and therefore the criteria for the Objective S1.1.1 has been met.”

Plaintiffs have assented to the disengagement of S.1.1. The Court, having reviewed the matter and otherwise being apprised, finds that disengagement is appropriate.

Case 1:87-cv-00839-JAP-KBM Document 2095 Filed 02/11/16 Page 2 of 2
NOW THEREFORE, it is found that Defendants have satisfied Objective S1.1.1 “Define
‘Abuse, Neglect and Exploitation’ (ANE) consistent with New Mexico Statutory Adult Protective
Services (APS) definitions.”
IT IS THEREFORE ORDERED that the Court’s oversight of the aforesaid Objective S1.1.1
be and hereby is disengaged as contemplated by the Stipulated Agreement on Disengagement
Process for Revised Table IV (Doc. 2073). In the event that there is evidence of substantial
noncompliance with Objective S1.1.1, the Plaintiffs may request that the Court reassert its
supervision over this Objective, or the Court, at its discretion, may re-establish its oversight of this
Objective.
_______________________________________ HON. JAMES A. PARKER DISTRICT COURT JUDGE
Submitted and Approved:
/s/ Jerry A. Walz Jerry A. Walz, Esq. James J. Grubel, Esq. Attorney for Defendants Walz and Associates, P.C. 133 Eubank NE Albuquerque NM 87123 505-275-1800 Email: jerryawalz@walzandassociates.com
/s/ Peter Cubra Peter Cubra, Esq. Attorney for Plaintiffs and the Plaintiff Class 3500 Comanche NE, Suite H Albuquerque, N.M. 87107 505-256-7690 Email: pcubra@qwestoffice.net

 
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• • Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 1 of 29

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IN THE UNITED STATES DISTRICt·cbtJRT

FOR THE DISTRICT OF NEW ME(XICO

n •- ~ -'~ .- ~~·-·,
~LERi\

WALTER STEPHEN JACKSON, by his parents and next friends, Walter and Helen Jackson,

STEVE NUNEZ, by his guardian and next friend, Mary Kathryn Reed,

RON FULLER, by his mother and next friend, Josephine Boughton,

MILDRED TSOSIE, by her next friend, Polly Arango,

MARY KATHERINE NOWAK, by her next friend, James W. Ellis, Esq.,

LILLIAN WILLMON, by her next friend, Arthur Grumblatt,

ANDRA MARTINEZ, by her next friend,

3 a HB Lance Chilton, M.D.'

rll.hfrV 87 • 0 8 CLINTON and SHAWN HEATH, by their
and next friend, Belva Heath,

~']t

. '
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RICHARD STANFIELD, by his father and next friend, The Reverend Clyde Stanfield,

JOSEPH GONZALES, by his mother and next friend, Charlotte Gonzales,

SEAN MCHENRY, by his next friend, Paula Duvall,

ALFRED SHIRLEY, by his next friend, Frederick Hart, Esq.,

JAMES FRITCHE, by his next friend, Sally Dehon,

BETTY YOUNG, by her next friend, Mary Dudley, Ph.D.,
ROSEANN CROCKETT, by her next friend, Robert McNeill, Esq.,

CLASS ACTION COMPLAINT

. ,

• • Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 2 of 29

ANDRE ARMENTA, by his mother

and next friend, Loretta Armenta,

KELLI VAN CUREN, by her parents and next friends, Ted and Sallie Van Curen,

LACEY WALKER, by her mother and next friend, Sandra Walker,

KIM LAUTENSCHLAGER, by her mother and next friend, Dale Lautenschlager, and

WILLIAM THOMAS, by his parents and next friends, James and Elizabeth Thomas,

on behalf of themselves and all others similarly situated,

and

SUPPORTERS OF DEVELOPMENTALLY DISABLED NEW MEXICANS, INC., on behalf of its members,
Plaintiffs,

v.

FORT STANTON HOSPITAL AND TRAINING SCHOOL,

LOS LUNAS HOSPITAL AND TRAINING SCHOOL,

NEW MEXICO HEALTH AND ENVIRONMENT DEPARTMENT,

LARRY GORDON, individuall capacity as Secretary of

y and in his o the New Mexico

fficial Health

and Environment Department,

CAROLYN KLINTWORTH, individually and in her official capacity as Acting Administrator, Los Lunas Hospital and Training School,

ERVIN ALDAZ, individua as Administrator, Fort

lly and in his offici Stanton Hospital and

al capacity Training

School,

NEW MEXICO HUMAN SERVICES DEPARTMENT,

LOU GALLEGOS, individually and as Secretary of the New Mexico

in his official capacity Human Services Department,

NEW MEXICO DEPARTMENT OF EDUCATION,

2

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• • Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 3 of 29
NEW MEXICO BOARD OF EDUCATION,
CATHERINE SMITH, LYNN MEDLIN, RUDY CASTELLANO,JOHN W. BASSETT, L. GRADY MAYFIELD, HERMAN WISENTEINER, MARIA CHAVEZ, MELVIN MARTINEZ, DAVID MCMANN, MILLIE POGNA, GERALD THOMAS, EMMALOU RODRIGUEZ, J. JAMES SANCHEZ, VIRGINIA TRUJILLO and GORDON KING, individually and in their official capacities as members of the New Mexico Board of Education,
ALAN MORGAN, individually and in his official capacity as the New Mexico Superintendent of Public Instruction,
ELIE GUTTIERREZ, individually and in his official capacity as Director of Special Education for the State of New Mexico,
LOS LUNAS PUBLIC SCHOOLS,
LOS LUNAS BOARD OF EDUCATION,
NEIL HARTIGAN, RICHARD LOVATO, DOTTIE SILVER, ISMAEL GURULE and LAUREL C. EDENBURN, individually and in their official capacities as members of the Los Lunas Board of Education,
CAPITAN PUBLIC SCHOOLS,
CAPITAN BOARD OF EDUCATION,
JAMES MCDANIEL, THOMAS TROST, PRESTON STONE, HOLLIS FOX and KENNETH COX, individually and in their official capacities as members of the Capitan Board of Education,

Defendants.

CLASS ACTION COMPLAINT

Introduction 1. This action is brought by the Supporters of Developmentally Disabled New Mexicans, Inc., and twenty-one individual retarded citizens of New Mexico, on behalf of themselves and all others similarly situated. 2. Plaintiffs bring this action to redress the unconstitutional and

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• Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 4 of 29
illegal conditions imposed under color of state law on retarded persons in New Mexico, many of whom are incarcerated and segregated by the State in Fort Stanton Hospital and Training School and Los Lunas Hospital and Training School. In these isolated institutions, the State confines severely handicapped people, segregated from the community, for their entire lives. The State continues to support prejudice and bigotry against handicapped people at Fort Stanton and Los Lunas, which have become ghettos for severely handicapped New Mexicans.
3. Fort Stanton and Los Lunas are dangerous places to live. Plaintiffs have been and continue to be subjected to abuse, neglect, injury, and unnecessary physical and chemical restraints and to be denied adequate medical care, clothing, food and habilitative services.
4. By this action, Plaintiffs seek to declare and enforce the Constitutional and statutory rights of retarded persons to effective, meaningful and integrated services in small, family-like settings in the community.
Jurisdiction 5. This action is brought to remedy violations of the Constitution and laws of the United States. 6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. Sections 1331 and 1343, 42 U.S.C. Section 1983 and 20 U.S.C. Section 1415. Appropriate declaratory relief is authorized pursuant to 28 U.S.C. Sections 2201 and 2202. 7. Monetary damages are inadequate. Plaintiffs have suffered and will continue to suffer irreparable harm from defendants' actions, policies and procedures and from the violations of the laws complained of herein; accordingly, declaratory and injunctive relief is necessary and appropriate.
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Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 5 of 29

The Plaintiffs 8. WALTER STEPHEN JACKSON is a twenty-six year old profoundly retarded
man who has resided at Los Lunas since the age of six. Mr. Jackson has
cerebral palsy and a seizure disorder that is controlled by medication. He cannot walk, needs some assistance in dressing, eating and bathing and is on a trip schedule for toileting.
9. Because of the various difficulties that Mr. Jackson's parents
faced in caring for him at home, they needed an alternative to home care. The State Health and Environment Department only provides one alternative institutionalization and therefore, the Jacksons had no choice but to place him at Los Lunas.
10. Although Mr. Jackson demonstrates a capacity for both understanding
and expressing language and can use a language board, he receives no speech therapy to assist him in developing his communication skills. Despite the fact that he has severe physical disabilities, he receives no physical therapy or occupational therapy to assist him in improving his daily living and self-care skills.
11. In 1985, Mr. Jackson and another resident were forced to drink a
caustic oven cleaner solution by an attendant who mistook the unmarked bottle
in which it was stored for one containing fruit juice. Both Mr. Jackson and
the other resident received serious internal and external acid burns. An investigation of the incident revealed that caustic and poisonous substances are routinely stored in unmarked containers in refrigerators and unlocked cabinets accessible to residents. Despite this incident, open containers of cleanser and other dangerous substances have recently been found stored in an unlocked under-sink cabinet in a Los Lunas cottage.
12. Mr. Jackson's mother has discovered numerous unexplained bruises and
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~n e other injuries

she visits her son. On one occasion, she was called by

an anonymous staff member and was told that an employee was regularly beating
Mr. Jackson.

13. Individuals in the community who have physical and mental disabilities similar to Mr. Jackson's attend a vocational training program in
Belen, near the institution. Los Lunas has denied Mr. Jackson the opportunity
to attend this or any other similar program outside the institution and to learn work skills that could help him function in the community.
14. Mr. Jackson enjoys interaction with other adults but placement at
Los Lunas deprives him of opportunities to develop skills and abilities that would enable him to participate in community life. He is also denied

opportunities for normal social interactions and exchanges with individuals of his age and functioning level.

15. STEVE NUNEZ is a twenty-two year old retarded man. Since the age of six, he has resided at Los Lunas. Currently he lives in Building No. Two with fifteen other retarded residents. That building is frequently understaffed in the area of direct residential care.

16. Mr. Nunez grew up at Los Lunas but was never allowed to attend the
local public schools with non-handicapped students. Instead, he was forced to remain in segregated educational programs at the institution. The segregated adult education programs he currently attends have inadequate resources
to develop the skills he is capable of learning. Mr. Nunez is not consistently
receiving the services identified in his Individualized Habilitation Plan as necessary to meet his needs.

17. Mr. Nunez is able to communicate by using a language board, has
acquired several signs and is capable of differentiated vocalization. He would benefit greatly from speech therapy. However, Los Lunas currently

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Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 7 of 29

employs only one full-time speech therapist and two part-time temporary assistants for all 367 residents. The speech therapist has administrative
responsibilities that limit her work with residents. Mr. Nunez does not
receive any formal speech therapy.
18. Mr. Nunez is mobile, has reciprocal movement in his legs and, in the
past, could walk with assistance. For the convenience of Los Lunas staff, however, he is most frequently placed in a wheelchair. He would benefit greatly from physical therapy to increase his range of motion and ambulation potential. Los Lunas employs only one physical therapist, two occupational
therapists and one part-time occupational therapist. Mr. Nunez does not
receive any physical or occupational therapy services.
19. Mr. Nunez requires frequent repositioning in his wheelchair to
prevent muscle deterioration and skin breakdown. Because of inadequate staffing and gross inattention, he is not repositioned enough, and, as a result, he suffers from pelvic and hip deterioration that now cannot be corrected without surgery.
20. Mr. Nunez' communication goals require that he interact and converse
with non-handicapped persons. Interaction between residents and staff on a one-to-one basis is infrequent, however, and limited to random instruction and reprimand. He is allowed no non-handicapped friends at the institution.
Because he is segregated, Mr. Nunez has little, if any, opportunity for
conversation.
21. Mr. Nunez occassionally regurgitates his food. In the past,
he had a program addressing this behavior which allowed him to maintain an appropriate weight and healthy nutritional status. Currently, no effective program is being implemented, and he has experienced serious weight loss as a result.
22. When permitted to wear normal clothes and provided access to a bath-
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Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 8 of 29

room, Mr. Nunez is able to toilet himself. For the convenience of staff, however, he has been required to wear diapers.
23. When his and other residents' demands and behavior have overwhelmed the overworked staff, Mr. Nunez has been strapped into his wheelchair and locked into a maintenance closet as punishment.
24. RON FULLER is a seventeen year old profoundly retarded and autistic adolescent who resides at Los Lunas. Mr. Fuller has spent most of his life at home with his family. Mr. Fuller's mother has sought appropriate care and treatment for her son in community facilities but has found that none exist in New Mexico. State officials counseled and encouraged Mrs. Boughton to commit her son to Los Lunas.
25. Mr. Fuller displays a number of behavior problems. He is agitated, paces, rocks, alternates between periods of inactivity and hyperactivity and has episodes of unconsolable crying and screaming. The ubiquitous idleness at Los Lunas exacerbates his autistic behaviors. Since his commitment to Los Lunas, his agitation has increased, and Los Lunas staff have recommended treatment with powerful psychotropic drugs. In December, 1986, Mr. Fuller was discovered strapped into a wheelchair and locked in a closet.
26. Mr. Fuller is excluded from the local public school and from interaction with non-handicapped children. He is required to attend the segregated program at the institution, and is assigned to a classroom which contains other students with behavioral disabilities only. The room is stark and devoid of any visual stimulation. All materials and supplies are stored in locked cabinets. Students are sometimes strapped with papoose restraints.
27. Mr. Fuller has a hearing loss in one ear. A hearing evaluation has shown that he could benefit from a hearing aid. Mrs. Boughton purchased an aid for him before he arrived at Los Lunas. At the institution, Mr.
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Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 9 of 29
closet.~ Fuller's hearintllid is kept locked in a
28. When living in the community, Mr. Fuller had been on a successful
trip schedule for his toileting needs. He has regressed substantially since coming to Los Lunas.
29. Los Lunas has not provided any programming or plan of treatment to deal with Mr. Fuller's autism. Staff have abandoned all attempts at behavior programming and are pressuring his mother to consent to his sedation with Thorazine. Institutional staff have not been trained to deal appropriately with his needs and behavior and treat him not as a young adult but as a misbehaving, willful child.
30. MILDRED TSOSIE is a twenty-two year old Navajo who has resided at Los Lunas since she was eight. Ms. Tsosie has a seizure disorder and cerebral palsy. She requires extensive nursing care.
31. Ms. Tsosie's parents live in a remote area outside of Gallup and, in order to visit Ms. Tsosie, rely upon the Bureau of Indian Affairs for transportation. They are able to visit her at Los Lunas only once a year, and she has never been able to visit her home. Institution staff correspond but are unable to maintain telephone contact with Ms. Tsosie's family because they have no phone. As a result, in 1984, the New Mexico Association for Retarded Citizens assumed corporate guardianship of Ms. Tsosie and now has the legal authority to make all medical and other decisions on her behalf. Due to the remoteness and isolation of Los Lunas, Ms. Tsosie has lost the opportunity to have greater involvement with her family.
32. Ms. Tsosie was recently transferred from Bashein Building to Chavez West Building -- a "medical" unit at Los Lunas. She currently lives there with other severely handicapped men, women and children and has no opportunity to interact with non-handicapped peers. She spends most of her time in the cottage, lying in her crib, on the floor or a mat, or seated in a wheelchair.

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33. Despite her severe disabilities, Ms. Tsosie can respond to her name and to a friendly voice, notices and responds to faces, enjoys music and likes spicy food. She recently had a permanent gastric tube inserted through her stomach for feeding. Her medical condition had deteriorated without explanation; in response, the institution's doctors determined that a gastrostomy was necessary.
34. MARY KATHERINE NOWAK is a thirty-one year old Los Lunas resident who has been institutionalized since the age of eight. She is currently living in Building No. Four, a part of the institution's "transitional" unit with a group of residents designated as appropriate for placement in a small familylike community setting.
35. Ms. Nowak was placed at the New Mexico State Hospital prior to being moved to Los Lunas. She has been forced to ingest powerful psychotropic drugs, including Haldol and Mellaril.
36. The most recent program plan written by Los Lunas staff for Ms. Nowak indicates that she will no longer be referred to any community programs, and her name has been removed from community program waiting lists. Although she was once eager to move to the community, Ms. Nowak has recently expressed a fear of leaving Los Lunas. Her psychologist has suggested that she is "institutionalized" as a result of her prolonged placement at Los Lunas. He and other staff have recommended "a program of desensitization •••• more visits off campus, more furloughs and more social experiences ••• " to help extinguish her "relocation phobia." Each day she remains at Los Lunas will increase her "institutionalization,"
37. LILLIAN WILLMON is a sixty-seven year old, profoundly retarded woman who has lived at Los Lunas since 1939. Ms. Willmon was never permitted to attend school with nonhandicapped peers.
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•

I

'\- •

1

38. Although Ms. Willmon now must use a wheelchair for mobility and has regressed in her motor skills, she previously walked with the aid of a walker. She suffers from arthritis which has impaired her ability to walk and interferes with her movement. She receives no physical therapy or other treatment for this condition, however.
39. Ms. Willmon is well-liked, enjoys social interaction and attends a local church on a regular basis. She has never been considered for communitybased, family-like residential living programs throughout her forty-eight years at the institution. The State offers almost no community placements to older persons with developmental disabilities.
40. ANDRA MARTINEZ is a thirty-four year old severely retarded resident of Los Lunas. She has resided at the institution since 1979, when she was transferred from the Las Vegas Medical Center.
41. Ms. Martinez is able to talk, although her speech is echolalic, perseverative and difficult to understand. Despite her need for frequent and on-going speech therapy, Los Lunas does not provide Ms. ~furtinez with therapy which could help her develop and improve her verbal abilities.
42. Ms. Martinez has been confined to state institutions most of her life and was never permitted to attend public school with nonhandicapped children. She is currently enrolled in the Los Lunas adult education program which she attends in the mornings during the school year.
43. Ms. Martinez exhibits some inappropriate behaviors which Los Lunas staff members attempted to treat with Haldol, a potent psychotropic drug. Although that drug has been discontinued, no plan or program to treat Ms. Martinez' behavior has been developed.
44. For several years, Ms. Martinez has been receiving birth control pills. The institution has been unable to provide an adequate reason for this prescription and provides no form of sexual education or counseling to Ms.
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Martinez.

45. CLINTON and SHAWN HEATH, ages twenty-five and twenty-three, are

brothers who have resided at Los Lunas since 1971. Both men are profoundly
I I
retarded, non-verbal and use wheelchairs for mobility. Mrs. Heath cared for !

both her sons at home as long as she was able. When the boys were young, they I I

were placed briefly at a private facility in Albuquerque which serves children I

with developmental disabilities up to the age of twelve.

Thereafter, with no

I
1

other programs available to her which could provide appropriate care, Mrs.

I

Heath was forced to place her sons at Los Lunas.

I

I

46. Although they were required by federal law to receive an education I

with nonhandicapped children, Clinton and Shawn were provided only the

I

11 segregated educational program at Los Lunas. This program ended when they
I
reached the age of twenty-one. By the time he graduated, Shawn was able to

communicate with the aid of a language board. Because of the absence of any
I
programming thereafter, within two years of graduation, Shawn's communication

skills deteriorated; he has lost the ability to use a language board.

I

I

47. Although both men are enrolled in the institution's "adult education"!

program, they receive no speech therapy or communication training. The

education program they do receive is not individualized and is conducted en

masse with numerous residents using wheelchairs crowded into small classrooms.

48. Both Shawn and Clinton are myopic, and their mother has purchased

both men several pairs of glasses. Shawn, in particular, is unable to see

clearly more than a few feet in front of him without corrective lenses. Los

Lunas staff members, however, do not permit the men to wear glasses. As a

result of his uncorrected vision, Shawn is unable to concentrate and has a limited attention span.

49. Although both men are on a trip schedule for their toileting needs,

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both are frequently placed in diapers in the residential program, for staff convenience. Shawn has been injured in falls from the toilet while left unattended by direct care staff in his building.
50. Mrs. Heath has received anonymous reports that an employee was beating her son Shawn on a regular basis.
51. Plaintiffs Jackson, Nunez, Fuller, Tsosie, Nowak, Willmon, Martinez and Heath experience on a daily basis the demoralizing and illegal conditions at Los Lunas as described in Paragraphs 134-207. Because defendants have failed to establish sufficient small, family-like living arrangements and services for people with retardation in the community and have limited their usage to people less severely handicapped than Plaintiffs, they have no alternative to confinement and segregation at Los Lunas.
52. RICHARD STANFIELD is a twenty-two year old man who has resided at Fort Stanton since 1983. Mr. Stanfield is articulate, charming, has a wellhoned sense of humor, and can read and write. He is working at the senior high school level in some educational subjects such as mathematics and is interested in developing employment skills.
53. Mr. Stanfield functioned normally until age fifteen when a car accident left him with a serious brain injury. As a result, he has visual deficits, partial paralysis, balance problems and exhibits obsessive-compulsive behaviors, including chain-smoking and over-eating. He also has difficulty sleeping.
54. In the months following his commitment to the institution, Mr. Stanfield's teeth began to decay and fall out. Despite repeated requests from his father and from his court-appointed attorney, the institution failed to address his dental problems, claiming that he was failing to properly maintain his teeth. Eventually, the institution agreed to seek and provide dental treatment, but not before several teeth were lost, and extensive restoration
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was necessary. 55. Fort Stanton fails to provide any programs to treat Mr. Stanfield's
obsessive-compulsive behaviors. The enforced idleness at the facility exacerbates these behaviors.
56. Fort Stanton staff acknowledge that Mr. Stanfield's needs cannot be properly met at the institution. As someone who was previously functioning in the normal range of intelligence and behavior, he needs rehabilitative rather than habilitative services. Fort Stanton does not have the capacity to provide Mr. Stanfield with appropriate services.
57. JOE GONZALES is a forty-three year old resident of Fort Stanton. He lives in Sierra Building where he shares a room with three other handicapped persons on the second floor. The rooms in Sierra are institutional in appearance and ambiance. The walls are stark and undecorated. Mr. Gonzales is dressed in whatever institutional garments happen to be available, regardless of their fit, condition or appropriateness for the weather. On a recent visit with her son, Mrs. Gonzales found his sneakers, his only pair of shoes, in shreds.
58. Except for travel to and from his program area, and to meals, Mr. Gonzales rarely is permitted an opportunity to spend time outside or to spend time alone.
59. Mr. Gonzales has frequently been subjected to abuse. Recently, he was injured by another resident. After complaining of pain and an inability to move, he was transferred across the campus in a wheelchair. After waiting two hours for an examination, medical staff finally decided to move Mr. Gonzales to a local hospital where x-rays revealed that he had suffered a broken hip.
60. Mrs. Gonzales fears for her son's safety and well-being at Fort
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Stanton. Because the State refuses to provide appropriate retardation
services in the community, Mr. Gonzales is forced to stay at the institution.
61. SEAN MCHENRY is a profoundly retarded and autistic young adult who resides at Fort Stanton. He is one of seven children and was a victim of severe emotional and physical abuse as a young child. Social workers and psychologists believe that Sean was normal at birth but the severe abuse he suffered in both family and foster care settings has resulted in his retardation and autistic behaviors. Sean has been a ward of the State of New Mexico since parental rights to the McHenry children were terminated in 1980. He was placed in a number of residential treatment programs and community facilities throughout New Mexico until 1984, when he was segregated at Fort Stanton. For many years, Sean was in the custody of the State Human Services Department, which failed to place him in an appropriate foster family setting. His rights to an education and to appropriate services were abridged during this period, and no efforts were made by the State to assure him of those rights.
62. Fort Stanton staff have forced Sean to attend the institution's segregated education program and have denied him the opportunity to attend the local public schools with nonhandicapped students. The segregated school is housed in a large building which is divided into four smaller classrooms separated only by curtains. Most of the time, students are left in the classes with nothing to do. Students sit for hours with their heads down or simply staring into space. The idleness at Fort Stanton exacerbates his autistic behaviors. In school, Sean can most often be found rocking or seated in a corner of the room with his head down.
63. Sean does not receive adequate related educational services such as speech therapy or physical and occupational therapy. Fort Stanton employs only one speech therapist to serve all 140 residents. Sean is on a "waiting
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list" for occupational therapy services because Fort Stanton has no occupational therapists on staff.
64. Sean's living area is completely institutional in ambiance and appearance. No efforts have been made to make his living area at Fort Stanton personal, intimate or friendly.
65. Sean needs habilitation services in small, community-based settings, including psychological support and counseling -- services that are not even available at Fort Stanton. No effort has been made to address Sean's individual and specific needs for communication, socialization, psychological services, occupational or physical therapy in a comprehensive plan that could help to modify and ameliorate his behavior and increase his abilities.
66. ALFRED SHIRLEY is a thirty-five year old Native American who has resided at Fort Stanton since 1981, when he was transferred from a Gallup nursing home by the Bureau of Indian Affairs. Since his parents live on a reservation in Arizona, contact of any kind is extremely limited.
67. Mr. Shirley has a seizure disorder and wears a leg brace. Although
able to walk with assistance, he is frequently placed in a wheelchair for the convenience of staff.
68. According to Fort Stanton records, Mr. Shirley is unable to
communicate his needs and understands little that is said to him. One
attendant has noted in his file that one of Mr. Shirley's frequent verbalizations, "aiyayaya," is probably a form of "Indian talk." Although Mr. Shirley
may understand and perhaps be able to speak Navajo, he is provided no opportunity to communicate in that language with anyone at the institution. He receives only minimal instruction and training in basic skills of daily living. In spite of his need for assistance with communication and his difficulties with self-ambulation, he receives no speech, physical or occupa-
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-------- - --

-.--~-----.

tional therapy.
69. Mr. Shirley's records document numerous injuries resulting from
unexplained and uncharted incidents. He is frequently bruised or cut and almost constantly has black eyes.
70. Because Mr. Shirley is one of the few non-ambulatory residents at
Fort Stanton, he is frequently isolated from his peers and has few opportunities to leave the institution grounds.
71. JAMES FRITCHE is a thirty-three year old resident of Fort Stanton who has lived at the institution for twenty years. In addition to severe
retardation, Mr. Fritche has cerebral palsy and a clubfoot. 72. Mr. Fritche is a charming and engaging young man. The institution's
psychologist has described Mr. Fritche as a loner and "socially isolated."
However, he exhibits delight when he has visitors and readily communicates a willingness and eagerness to interact and learn. He smiles easily and enjoys playing ball outside when afforded the opportunity.
73. Although Fort Stanton claims that Mr. Fritche is unable to communicate and could not benefit from speech therapy or communication training, he was able to learn three signs in only one thirty-minute session with a special educator from the University of New Mexico.
74. Mr. Fritche is a resident of Eddy Building at Fort Stanton -- the
residence for all men at the institution labeled by the staff as "lowfunctioning." The atmosphere is institutional. The dayroom contains only plastic chairs lined up in a row in front of a television mounted high on the ceiling. Residents occupy a bedroom with three other men and are not allowed to choose their roommates. Bedrooms are sparcely furnished with minimal, if any, decoration. Each resident's personal possessions are stored in plastic milk crates and kept in locked cabinets.
75. BETTY YOUNG is a thirty year old Fort Stanton resident who has been

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incarcerated at the institution since 1980. Ms. Young, who is non-verbal and

hearing impaired, was transferred to Fort Stanton from Los Lunas seven years

ago.

76. Ms. Young's records indicate that she used and understood at least

twenty-five signs while at Los Lunas. At Fort Stanton she receives no speech

therapy or communication training in sign language and her ability to use

sign language, as a result, has deteriorated.

I

I

77. Since arriving at the institution, Ms. Young has experienced a weigh~

I

gain of at least thirty pounds, a gain that Fort Stanton staff have been

I

~. unable to control or explain. She receives Ortho-novum, a contraceptive, and

Thorazine, a potent psychotropic drug, to control what the institution
I
terms her aggression and hyperactive behavior. Both medications can stimulate I

appetite. The need for birth control pills is unexplained.

I

78. Ms. Young resides in a building for women which is generally poorly

lit and frequently smells of urine. Residents spend much of their "free" time

sitting or wandering aimlessly in a large dayroom. I

79. Until 1973, Ms. Young lived in the community with a foster family.

I i

Although she is on the waiting list for a community program in Albuquerque and J

!
demonstrates basic community functioning skills, Fort Stanton asserts that her I

placement at the institution is necessary.

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80. Plaintiffs Stanfield, Gonzales, McHenry, Shirley, Fritche and Young j

experience

on

a

daily

basis

the

illegal

conditions

at

Fort

Stanton

as

I
describe1

in Paragraphs 134-207. Because defendants have failed to establish sufficient i
I
community living arrangements and services for people with retardation, and I,
have limited their use to people less severely handicapped than Plaintiffs,

they have no alternative to confinement and segregation at Fort Stanton.

81. ROSEANN CROCKETT is a thirty-three year old woman who, until the

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spring of 1986, resided at Fort Stanton. She is now living at a nursing home in Roswell after a medication error left her bed-ridden and catatonic.
82. From August, 1985, to March, 1986, a psychotropic drug known as Prolixin, a phenothiazine deriviative, was administered to Ms. Crockett in increasing dosages. Ms. Crockett's medical records throughout that time stated that she was allergic to phenothiazines.
83. Although Ms. Crockett exhibited symptoms of an adverse reaction to
Prolixin for some time, it was not until March 9, 1986, that a crisis occurred, and she was admitted to a local hospital. In a March 10, 1986, evaluation she was found to be "in a semi-catatonic state, non-responsive to verbal stimuli and mildly responsive to physical stimuli only." The examining physician also noted that "she is normally able to ambulate and speak, however, she is more [sic] of a catatonic state at the present and does not speak, cannot ambulate and cannot respond." Following her admission to St. Mary's Hospital in Roswell, Roseann was examined by a neurologist who described her diagnosis as "phenothiazine hypersensitivity."
84. Roseann now lies alone in a back room of the Roswell Nursing Center, unable to walk or communicate. She is not permitted to participate in the programming at the center which serves only older residents. She is rarely, if ever, moved from her room and the Center provides no programming directed towards Ms. Crockett's needs. At thirty-three, Ms. Crockett is the youngest resident at the Center. The nursing staff, accustomed to caring for the elderly, are unfamiliar with Ms. Crockett's special needs. She is often in pain and cries out; little relief is available to her.
85. Because defendants have failed to establish sufficient community living arrangements and services for retarded people, and have limited their usage to people less severely handicapped than Ms. Crockett, she has been given no alternative to confinement and segregation in Roswell. The State

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has placed her in a private nursing home and refused to provide her with habilitation services.
86. ANDRE ARMENTA is a sixteen year old severely mentally and physically disabled man who resides at home with his parents, Ray and Loretta Armenta, in Albuquerque. Andre was born with Sturge-Weber syndrome, a vascular abnormality which has affected his physical and mental development. He is partially deaf and blind and suffers from frequent seizures that often leave him unable to swallow and occasionally cause respiratory arrest.
87. Before Andre's first birthday, his medical bills amounted to over $160,000. The family's insurance has not covered the costs of medication, consultation with physicians, home child care and oxygen.
88. Despite the serious financial problems Andre's disabilities have caused, the Armentas continue to keep Andre at home because of their firm belief that the love and care he receives from his family has contributed to his mental and physical development. Andre attends public school when his medical condition permits and participates as fully as possible in all aspects of family and community life.
89. In 1984, Andre became eligible for the State's Medically Fragile Children's Program, and he and his family now receive eighty hours per month of in-home nursing care. The program has given his family additional support and freedom, and temporarily relieved a part of the financial burden of Andre's care. However, the program only serves children under eighteen. In two years, the support the Armentas receive will be discontinued and they will again be forced to either pay for additional services themselves or go without. No services, programs or facilities exist for adults with severe mental and physical handicaps that can provide the same or similar quality of care that Andre has been receiving at home.
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• Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 21 of 29 90. KELLI VAN CUREN is a seven year old child who lives with her family in Los Lunas. She is moderately retarded and has physical disabilities as a result of a medical error that allowed toxins to build up in her blood and damage her brain after she was born. 91. Soon after Kelli's birth, her parents were told that she would never walk. Today she not only walks, but runs and rides a tricycle. 92. Kelli is a healthy, active member of her family who contributes a great deal to the lives of her parents, sisters and brother as well as her friends and the community where she lives. She attends a regular public school six hours a day and rides there on the school bus. At home, she helps around the house, sets the table, washes dishes, feeds the chickens and gathers eggs. She can put on her own coat and partially dress herself. Her communication is limited to two to three words, but she communicates actively through the use of numerous signs. 93. On family outings, Kelli interacts with many other members of the community and has become very social. She loves animals, enjoys riding horses, and cares for her own pet. 94. Kelli currently receives speech and physical therapy services through her school. Speech, physical and occupational therapy services are available through the public school system in New Mexico to persons with developmental disabilities until the age of twenty-one. Without continued services, Kelli will regress and lose many of her skills. 95. At age twenty-one, Kelli will face long waiting lists for employment services and residential placement if she wishes to live away from her family. Should her condition worsen or her family become unable to care for her, the only alternative currently available for Kelli is institutionalization at Los Lunas. 96. LACEY WALKER is five and one-half years old. Profoundly retarded

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and blind, she has lived all of her life at home with her parents in Farmington. Lacey also has cerebral palsy, a seizure disorder and severe respiratory problems.
97. In addition to other complications at birth, Lacey suffered complete renal failure and a cerebral hemmorage at the age of five weeks. A local doctor advised the Walkers to let her die. Instead, Mr. and Mrs. Walker spent much of the next two years seeking care and treatment for their daughter in Utah. Three years ago, they returned to New Mexico and sought services for Lacey from the State. Mrs. Walker toured Los Lunas but found the conditions and quality of care unacceptable. She was told that staff ratios in the building where Lacey would be placed were one staff member to every ten children; on weekends the ratio increased to 1:20. Children, she was told, were bathed every other day. She found the residents there languishing, without the most minimal programming necessary to meet their needs.
98. In 1985, Lacey was approved for the state's Medically Fragile Children's Program, which provided the Walkers with in-home nursing care for Lacey five hours a day, four days per week, Medicaid benefits enabling them to purchase drugs, diapers and formula and insurance against catastrophic medical expenses. In the year preceding her acceptance into the Medically Fragile Program, Lacey was hospitalized three to four times per year at a cost to the Walkers of $10,000 per week.
99. In 1986, Lacey was dropped from the Medically Fragile program. Her condition had improved and was no longer "life-threatening." Although she and her family were still in need of around the clock care and assistance, the Walkers' benefits were severely curtailed. Lacey now receives limited assistance from the State in the form of minimal in-home care and some
22

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Medicaid benefits. 100. The strain of caring for Lacey has affected the entire Walker
family. Lacey is often up all night and until recently cried constantly. The Walker's acceptance into the Medically Fragile program was a tremendous relief to them and their recent termination from that program a heavy blow. Her family believes that Lacey is alive today because of the love and affection she receives at home. They recognize that if they should for any reason become unable to care for her, she risks institutionalization at Los Lunas or Fort Stanton since they are the only alternatives available to people like Lacey. Professionals have suggested that the Walkers move elsewhere to obtain better services for Lacey. The Walkers believe that their home and Lacey's is in New Mexico and believe that she, like other citizens, has a right to optimum quality care within the supportive environment of her family and friends.
101. KIM LAUTENSCHLAGER is an eight year old profoundly mentally and physically handicapped child living in Los Alamos. Kim is non-verbal, cannot walk or feed herself and has no self-help or self care skills. She also has a seizure disorder and is vulnerable to colds, viruses and other infections.
102. Kim lives near her parents in a companion home with a volunteer family willing and able to take on the responsibility and difficulties involved with her care. The companion home arrangement is purely voluntary and Kim's companion parents accept no money for Kim's care. Kim spends the weekends, vacations and holidays at home with her family.
103. During the week, Kim receives home visits from therapists who provide stimulation and feedings and help to supplement her extensive care requirements. She receives physical therapy once a month.
104. Mrs. Lautenschlager has sought alternative placements for Kim. At
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designated as foster parents by the State so that they would be eligible for

i
!

firs~ financial support. The State insisted, however, that the Lautenschlagers

terminate their parental rights to Kim, which they were unwilling to do.

; I

I
Mrs. Lautenschlager has also sought the State's assistance without success to !

provide small, family-like, integrated homes for profoundly handicapped

children like Kim in the Los Alamos area.

105. Although she could place her daughter in an institution, Mrs.

Lautenschlager believes strongly that the only appropriate place for Kim is

a family. Like parents of other profoundly handicapped children living in the

community, the Lautenschlagers fear that Kim risks institutionalization

should they or their companion family become unable to care for her.

106. BILL THOMAS is a thirty-four year old severely retarded life-long

resident of Roswell. His handicap was diagnosed soon after birth. At the

age of six, doctors advised his parents to place their son at Los Lunas. They

refused, and Bill has been at home ever since.

107. Mr. Thomas never attended public school, since no programming was

provided when he was of school age for individuals with handicaps of his

severity. He never received any related services such as physical, occupational or speech therapy to assist him in coping more effectively with the

demands of daily life. Nevertheless, Mr. Thomas can feed himself, is toilet-

trained, can follow simple commands, assists in dressing, and can put on, take

off and put away his coat. He enjoys the outdoors and has many friends and

acquaintances in the community. Five days a week Mr. Thomas attends a day

program in the community. He rides a van to and from the program.

108. Mr. Thomas' parents would like their son to eventually move to a

small, family-like home so that when they are no longer able to care for him,

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the separation~! not result in his instituti41tlization. The state has
failed to provide the Thomases a placement option in a small, family-like integrated setting.
109. Plaintiffs Armenta, Van Curen, Walker, Lautenschlager and Thomas are at risk of being segregated and confined at Los Lunas or Fort Stanton, since New Mexico provides inadequate alternatives. Defendants have failed to establish sufficient living arrangements and services in the community for people with retardation, and have limited their usage to people less severely handicapped than these Plaintiffs.
110. The Supporters of Developmentally Disabled New Mexicans, Inc. (SDDNM) is a nonprofit corporation existing under the laws of the State of New Mexico. Members of SDDNM include retarded persons, parents, other relatives, guardians, and next friends of people segregated at Fort Stanton and Los Lunas and of persons in jeopardy of being segregated there by the State, as well as retarded people presently segregated or in jeopardy of being segregated there.
111. SDDNM was formed in the face of the official exclusion of retarded New Mexicans from a wide array of public services ~, educational, vocational, and recreational programs provided to all other state citizens in the community. It expends its resources to provide retarded people the opportunity to receive those services, which are as essential to retarded people as they are to all others, and to enforce the duties of defendants to provide meaningful and integrated services in small, family-like settings in the community for the retarded citizens of New Mexico. SDDNM seeks to make New Mexico officials aware of the competencies of those who are retarded, and to replace confining and defeating stereotypes with respect and appreciation.
Class Action Allegations 112. Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(a) and (b)(1) (A) or (B), or 23(b)(2), on their own behalf and on behalf of all other
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persons who are now, or who may be in the future segregated by the State at Fort Stanton or at Los Lunas.
113. The members of the class include all persons who are now at Fort Stanton or Los Lunas or may be transferred there in the future and persons residing at home who, because appropriate community services to assist their families are unavailable, are in jeopardy of being sent to Fort Stanton or Los Lunas. The class also includes persons who have been transferred to skilled nursing facilities, intermediate care facilities, homes for the aged, and similar facilities, yet remain defendants' responsibility and who, because of defendants' failure to provide alternatives in small, family-like settings in the community, may be forced to return to Fort Stanton or Los Lunas. Plaintiffs seek for themselves and the members of the class declaratory and injunctive relief which requires defendants to create the quantity and type of community living arrangements and other community services necessary for the habilitation of all plaintiffs and class members in integrated community settings.
114. The members of the class have all been denied rights under federal law as a result of the actions, inactions, policies and practices of defendants. Plaintiffs seek declaratory and injunctive relief for themselves and for all members of the class to eliminate those actions, policies and practices and to require defendants to establish standards and procedures that do not arbitrarily deny to plaintiffs and the class their rights guaranteed by federal law.
115. This is a proper class action pursuant to Fed. R. Civ. P. 23 because:
(a) the class is so numerous as to make joinder of all members impracticable;
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·' ' Case 1:87-cv-00839-JAP-KBM Document 1 Filed 07/08/87 Page 27 of 29
(b) there are substantial questions of law and fact common to the entire class;
(c) the claims of the plaintiffs are typical of the class; (d) the plaintiffs' attorneys have legal resources and experience adequate to protect all members of the class and the named plaintiffs will adequately and fairly represent the interests of the class; (e) defendants have acted on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole; (f) the prosecution of separate actions by individual members of the class would create a risk of varying adjudications with respect to individual members of the class that might establish incompatible standards of conduct for the defendants in this action; and (g) separate actions would create a risk of adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. 116. The questions of law and fact common to the entire class and to the claims of the individual plaintiffs include but are not limited to:
(a) Have the defendants failed to provide services to plaintiffs in an integrated community setting?
(b) Do the defendants have an obligation under the Constitution and the laws of the United States to provide necessary services to plaintiffs and their class in integrated community settings?
(c) Have defendants provided an appropriate public education, including integration with nonhandicapped children, to handicapped children living at Fort Stanton and Los Lunas?
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(d) Are there standards for the provision of services in the community that the defendants, under the Constitution and the laws of the United States, must respect and implement?
(e) Are the conditions at Fort Stanton and Los Lunas as alleged herein?
(f) Have defendants subjected residents of Fort Stanton and Los Lunas to abuse and neglect and unnecessary physical and chemical restraints and deprived the residents of adequate food, clothing, shelter, medical care, and habilitative training?
(g) Does segregation at Fort Stanton or Los Lunas violate, among I
other rights, plaintiffs' entitlement to: freedom from harm, the equal pro-
I
tection of the laws; habilitation in integrated community settings; freedom ~I
association; freedom of expression; the right of family integrity; and particit pation, as they are able, in programs and activities receiving federal assistance regardless of the severity of plaintiffs' handicaps?

Defendants 117. Defendants Fort Stanton and Los Lunas are both state-owned and operated institutions in which approximately five hundred citizens are incarcerated, although they have committed no crimes. Both institutions are classified as Intermediate Care Facilities for the Mentally Retarded (ICF/MR) under Title XIX of the Social Security Act, and both receive federal funds under the Act, in addition to other federal financial assistance. 118. Defendant Health and Environment Department (HED) is charged with executing the primary functions of the State of New Mexico pertaining to the care and treatment of developmentally disabled persons. HED administers and operates Los Lunas and Fort Stanton. HED has the duty to insure that all residents of Los Lunas and Fort Stanton receive services in accordance with

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~d s~e the provisions

protections of federal and

law • HED is required to

meet the mandates of the federal Intermediate Care Facilities for the Mentally

Retarded (ICF/MR) regulations governing those facilities. It contracts

with private agencies to provide residential and other services beneficial

to and needed by persons with developmental disabilities.

119. Defendant Larry Gordon (the Secretary) is the Secretary of the New

Mexico Health and Environment Department. He is its chief executive and

administrative officer and is responsible for insuring that state facilities

for developmentally disabled persons are operated in compliance with federal

law. The Secretary is responsible for monitoring and evaluating the

professional and administrative activities of Fort Stanton and Los Lunas,

consulting with the administrators of those facilities and preparing and

submitting to the state legislature budget requests sufficient to enable these

facilities to carry out their functions and meet their statutory and

constitutional obligations. He is also responsible for insuring that the

needs of developmentally disabled persons in New Mexico are assessed every

three years and that a residential services plan to meet these needs is

completed. He is additionally responsible for preparing and submitting a

budget request to the Governor and the legislature for the support of

community-based services.

120. Defendants Carolyn Klintworth and Ervin Aldaz are respectively

Acting Administrator and Administrator of Los Lunas and Fort Stanton.

They are responsible for the operation, administration, and supervision of all

aspects of their facilities, including the custody, care, and treatment of all

persons admitted there. They are responsible for insuring compliance by the staff with each facility's and RED's rules, regulations, and procedures; with

applicable state and federal law and regulations; and with court orders

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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 1 of 38
governing the admission, care, treatment, and discharge of residents. They are further responsible for insuring that allegations of abuse of residents are reported to the appropriate local or state authorities. They have oversight responsibility for the process by which residents are discharged to community-based programs, nursing homes, or other placements.
121. Defendant New Mexico Department of Human Services (HSD) is the designated state agency responsible for the receipt and appropriate disbursement of funds under Title XIX of the Social Security Act and for the enforcement of the provisions of that Act in New Mexico. The Act requires review of the needs and level of care required by all persons in intermediate care facilities for the mentally retarded in order to insure that appropriate placements are made and to identify persons inappropriately placed in such facilities instead of in the community. HSD is also responsible for the administration and oversight of all home and community-based Medicaid service programs authorized by Section 1915(c) of Title XIX of the Act, and for insuring that such programs comply with federal requirements and with the service plan submitted by the State pursuant to which the waiver of certain Medicaid requirements has been granted by the federal government.
122. Defendant Lou Gallegos is the Secretary of the Department of Human Services. He is the executive and administrative officer of the Department and is responsible for insuring that HSD fulfills its obligations under the Social Security Act.
123. Defendant New Mexico Department of Education supervises all schools and school officials under the jurisdiction of the New Mexico Board of Education. The Department of Education, with the approval of the Board evaluates educational programs, and sets standards for diagnosis, screening and educational offerings for exceptional children in public schools and in state institutions under the authority of HED. The Department of Education
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must insure that all state agencies administering educational programs fully comply with requirements guaranteeing that handicapped children be educated with nonhandicapped children to the maximum extent appropriate. The Department is also responsible for insuring that severely handicapped New Mexicans, including residents of Los Lunas and Fort Stanton, receive vocational rehabilitation services on a priority basis so that such individuals may prepare for and engage in gainful employment to the extent of their capabilities. The Department is also responsible for maximizing the use of community resources in the provision of vocational rehabilitation services.
124. Defendants Smith, Medlin, Castellano, Wisenteiner, Chavez, Martinez, Thomas, Bassett, Rodriguez, Mayfield, McMann, Pogna, Sanchez, Trujillo and King are the members of the New Mexico Board of Education. They are responsible for the formulation and adoption of curricula for the adequate instruction and education of all students in the public schools. They are also responsible for the establishment and enforcement of certification requirements for special education teachers and other school personnel who provide services to disabled children, and of standards for the identification, evaluation, placement and service programs for all handicapped children served through all public schools and state supported institutions. They are additionally responsible for applying for funds appropriated by Congress pursuant to the Education of the Handicapped Act (EHA), and they are responsible for carrying out the provisions of that Act within the State of New Mexico including assuring that handicapped students be educated with nonhandicapped students to the maximum extent appropriate.
125. Defendant Alan Morgan is the New Mexico Superintendent of Public Instruction. He is the executive and administrative officer of the State Department of Education and is responsible for insuring that the policies of
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the Board are implemented, applied, and carried out. 126. Defendant Elie Guttierrez, the Director of Special Education
within the New Mexico Department of Education, is an educational program manager. He is responsible for evaluating policies and procedures for the delivery of educational services to local educational districts, including state institutions. He must also evaluate the effectiveness of instructional programs, become informed of research findings in the area of special education and disseminate that current information to school personnel throughout the state.
127. Defendants Richard Lovato, Dottie Silver, Ismael Gurule, Laurel Edenburn and Anthony Apodaca are members of the Board of Education of the Los Lunas Public Schools and Defendants James McDaniel, Thomas Trost, Preston Stone, Hollis Fox and Kenneth Cox are members of the Board of Education of the Capitan Public Schools. They are responsible for educating handicapped students, including students residing at Los Lunas and Fort Stanton, in integrated settings with nonhandicapped students. They are responsible for adopting a budget sufficient for all school programs and for establishing policies governing the conduct of education in all district programs. They are further responsible for insuring that all handicapped children of school age within their districts receive a free, appropriate, individualized public education with nonhandicapped children.
How Plaintiffs and The Class Came to be Segregated and Confined at
Los Lunas and Fort Stanton
128. Los Lunas was established by Act of the State Legislature on March 20, 1925, as the New Mexico "Home and Training School for Mental Defectives." 1925 N.M. Laws 254, ch. 133, Section 2. The institution was created -- at a time when prejudice and bigotry against severely handicapped people was
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rampant in this country - for "any person mentally underdeveloped or faultily developed" who "requires supervision, care, and control of his own welfare, or for the welfare of others, .Q!. for the welfare of the community". Id. Section 1 (emphasis added). Thus, a regime of segregation was commissioned, and public and private attitudes and activities reinforcing that regime were evoked and legitimated.
129. The New Mexico legislature actively inculcated fear of retarded people as dangerous, authorizing an admissions "preference to cases which constitute a special social menace." Id. Section 6 (emphasis added).
130. State officials directed the identification of retarded people and their removal from the community and enlisted the assistance of the public in doing so. The government undertook major outreach efforts to find potential cases for institutionalization and the legislature authorized commitment proceedings to be instituted by "[a]ny person over the age of twenty-one," against the wishes of the retarded person's parents or relatives, if necessary. The petition was merely required to allege "the facts bringing each person within the provisions of this Act," and incarceration to the State Home was authorized if the person was merely "found to be mentally defective, within the difinition [sic] and provisions of this Act." Id., Section 6.
131. This regime of segregation was reinforced by systematic exclusion of retarded children from public schooling, forced sterilization, and bans upon exercise of the franchise.
132. Retarded people continue to be incarcerated at Los Lunas and Fort Stanton, because the State's previous actions dried up most community retardation services, and because the State has failed to provide alternative services for them in their communities. When a crisis occurs in the family of a retarded person, inadequate services are available to support the family or
33

• Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 5 of 38 to assist in the care and treatment of the retarded family member at home or in a community residence near the home. 133. Retarded persons remain incarcerated and segregated at Los Lunas and Fort Stanton for the same reason: the failure of defendants to provide sufficient alternative services, including residences in the community. Although the living conditions are unconstitutionally deficient and dangerous at Los Lunas and Fort Stanton, retarded persons are forced into confinement at the institutions, with all of their strictures, as the only settings available to them.
The Institutional Environment At Los Lunas and Fort Stanton
134. Los Lunas houses 367 individuals with various disabilities and is the only State-operated facility that provides services for individuals with severe physical and mental disabilities. Los Lunas also is the primary facility in the state for the confinement of school-age children with developmental disabilities. Approximately 100 school-age children are committed to Los Lunas; many are state wards.
135. Because Los Lunas is the only State-operated facility serving individuals with severe developmental disabilities, people from throughout the state are committed there. Native Americans from the Navajo reservation in western New Mexico (6-7 hours from Los Lunas by car), Hispanics and Native Americans from northern New Mexico (3-7 hours away) and individuals from the southern part of the state (3-7 hours away) are incarcerated at the institution. For many families who lack money and support services to care for their family members effectively at home, the distance from, and the difficulty in traveling to Los Lunas severely inhibits contact between residents and their families. The distance to Los Lunas from other areas of the State increases the isolation of its residents and denies them the critica
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emotional support normally available within the home and the community. 136. Los Lunas is a self-contained facility. All residential and
recreational facilities, educational and training programs and most medical care is provided at the institution. The self-contained environment of the institution mitigates against extensive community involvement. Individuals who are not "high-functioning," or without physical handicaps rarely leave the institution.

137. In September, 1986, a young female resident of Bashein Building, on' of two "medical" units at Los Lunas, was brutally sexually assaulted by an unknown assailant. She later died from the resulting injuries. That same day a male resident of Bashein was found dead. Subsequent investigations revealed that four other Bashein residents had suffered unexplained wounds to the head in the weeks preceding the deaths. The state police continue to investigate all of these incidents without success.

138. Defendant's reaction to these incidents has been to drastically

increase "security" at the institution in a manner that has created an even

more prison-like environment than previously existed. All cars are stopped

upon entering and leaving the institution, and all of the occupants are

questioned. Newly adopted visitation policies interfere with the residents'

ability to maintain relationships with friends and family outside the institu-'

tion. This past winter, large signs were temporarily posted at the entrance tJ

the institution warning that all visitors were subject to a search of their I

vehicles. Although these security measures were ostensibly instituted to

I

insure the safety of the residents, these procedures have created a seige-like

atmosphere at the facility designed to keep the residents in and others out.

Defendants have not increased their efforts to place residents of the

institution in the community where their security could be insured in normal

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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 7 of 38 environments. 139. The average number of deaths per year at Los Lunas has increased significantly recently, without explanation. At least four residents have died during the first five months of 1987. There were at least seven deaths in 1986. 140. Severely handicapped residents are not permitted to live in the more modern, humane and normal units. The more severely handicapped persons receive fewer and lesser quality services. 141. Many of the more severely handicapped residents at Los Lunas have been segregated in the Chavez and Bashein buildings. Chavez contains large open wards, with no privacy whatsoever. The residents are forced to stay in rows of cribs. The environment in Chavez is sterile and institutional devoid of warmth and stimulating, normalized decoration or furnishings. 142. Bashein Building contains approximately 62 residents housed in two wings. They are forced to live in wards furnished only with cribs and bedside tables. A large nursing station and storage cabinets for clothing and linens dominate the entrance and hallways of Bashein. Few decorations are evident. Intense odors pervade the living areas. 143. Campbell Building and Building No. 10 are designated "behavior" units at Los Lunas. Doors in both facilities are kept locked and doorknobs in the dayroom areas are placed high on the doors. The rooms in Campbell and Building No. 10 are devoid of decoration and have sparse, institutional plastic furnishings. A lone television is kept locked behind a metal grill. 144. Fort Stanton is located in rural Lincoln County, one of the most isolated and sparsely populated regions of the country. It is remote and inaccessible by public transportation. Originally a federal cavalry outpost established as a defense against Native Americans in 1855, the institution became a sanitarium for persons with tuberculosis in 1899. In 1966, the
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State converted Fort Stanton to an institution for the mentally retarded, segregating these persons from the rest of society.
145. The institution's location limits the ability of families and friends to maintain frequent contacts with residents. The hardship is greater for persons with limited means, but in all cases the sheer isolation of Fort Stanton accelerates the decline of affectionate relationships, stripping from the incarcerated individual those supports, both emotional and material, that are normally available in small, home-like settings in the community.
146. Bordering the Fort Stanton facility is the intermediate security prison, Sierra Blanca. The isolation of the institution and its proximity to the prison accentuates the differences of people with developmental disabilities and devalues all individuals within the institution walls.
147. Fort Stanton's isolation prohibits the use of community resources to establish training programs, to meet health needs, to provide employment and recreation, or to aid in the development of those diversified activities that non-incarcerated persons take for granted. Skilled professional and volunteer resources in Lincoln County and in the nearby town of Capitan are limited and woefully insufficient to absorb the social and educational needs of Fort Stanton's population.
148. Fort Stanton's location in the remote forested wilderness of Lincoln County has contributed to a number of deaths at the institution. Several residents have wandered away from the institution and have never been heard from again or have been found dead from exposure to the elements. At least one resident drowned after falling into a river that flows near the institution.
149. Eddy Building is the residence for all male Fort Stanton residents labeled "low functioning." The building contains several bedrooms sur-

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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 9 of 38

lar~oom office.~ rounding a

with a glassed-in

television set is mounted

close to the ceiling where no resident can reach the dials.

150. Most female clients at Fort Stanton reside in Soccoro Building.

Residents of Soccoro spend much of their time sitting or wandering in a large

room where a television, also mounted close to the ceiling, plays at loud

volume.

151. Sierra Building is the residence for the other men and boys at Fort

Stanton. Sierra's residents have included individuals charged with crimes

such as assault or auto theft who are incarcerated at Fort Stanton as an

alternative to the criminal court system. As a result, individuals with

developmental disabilities residing in Sierra are frequently intimidated and

injured by tougher residents, who sometimes do not even have a developmental

disability. The psychologist and social worker for Sierra residents utilize

their military backgrounds to create an atmosphere of strict regimentation

for those individuals confined there. Residents quickly lose any warmth and

trust displayed when they first entered the institution.

152. The Fort Stanton dining hall is a large building with high

ceilings that is always extremely noisy and chaotic. Residents are not

permitted to choose their food, to participate in the preparation of their

meals or to choose with whom they will eat. The routine of eating breakfast,

lunch and dinner in the dining hall is unchanging from day to day. It is

difficult for clients to learn appropriate eating or socialization skills

during this mass-feeding process.

153. Both Fort Stanton and Los Lunas provide inadequate space for

storage of personal possessions. Those facilities which are available often

remain locked or otherwise inaccessible to residents. Because of the lack of

storage facilities for personal items, the few belongings plaintiffs own are

often lost, stolen or destroyed within a short period of time. These

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conditions deprive plaintiffs of their dignity and identity and also fail to help them develop the self respect, consideration for others, and understanding of property relationships necessary to functioning in the community.
154. Clean clothing, bed linen, and towels are frequently not available to either Fort Stanton or Los Lunas residents. Residents' clothing is routinely lost, and individuals are frequently required to wear improperly fitting clothes and underclothes and sometimes to even go entirely without necessary items of clothing. Many residents are forced to wear clothes conspicuously marked in black ink with their names or those of other residents. Clothing modified to fit handicapped residents' particular physiques and to help them learn to dress themselves properly is not provided. Plaintiffs are deprived of the personal development, comfort and satisfaction that accompanies the right to choose among a decent selection of appropriate, clean, well-fitting, seasonable and attractive personal clothing and to present an appearance similar to that of other citizens.
155. Soap, washcloths, towels, toilet paper, toothbrushes and toothpaste are not readily accessible to residents at Fort Stanton and Los Lunas. Plaintiffs do not learn to utilize hygenic supplies or to exercise self-care skills necessary for personal health and comfort, as well as for acceptance within the larger community.
156. Upon information and belief, the buildings at Fort Stanton and Los Lunas were constructed with materials containing asbestos. Any amount of asbestos poses a threat of serious, possibly deadly injury for the residents forced to live and work in buildings constructed with that material. The serious health problems associated with exposure to asbestos include pleural mesothelioma, lung cancer and asbestosis. The danger is compounded by the fact that many residents are forced to spend a great deal of time in their
39

e e Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 11 of 38 assigned buildings, and that many of those subjected to the long-term effects of the asbestos are children, teenagers and young adults. 157. Fort Stanton and Los Lunas were designed for mass management and custodial convenience. Plaintiffs spend much of their time in large groups in multi-function rooms which do not permit the separation of activities that would be found in private or group homes or in normal work or recreation places. Residents at Los Lunas spend hours strapped in wheelchairs and parked in hallways unattended, waiting long periods of time for some activity to begin. Plaintiffs are not provided the opportunity to experience a variety of environments during the day, as are other citizens, and thus are deprived of important learning opportunities. 158. Living and activity space at Los Lunas and Fort Stanton is inadequate in design, insufficient in area, inappropriate in setting and dehumanizing in condition. The institutions' physical layouts are devoid of warmth, individuality, or dignity. The living and sleeping areas are sparsely furnished and do not contain lamps, sofas, rugs, tables, comfortable chairs, pictures, magazines, toys, or other age appropriate furnishings associated with normal, active living. Plaintiffs are denied the developmental opportunities and sensory, and intellectual stimulation, comfort, and pleasure that community residents obtain from the usual physical accoutrements in homes, schools, resturants, work places, and recreational facilities. 159. The physical settings at Los Lunas and Fort Stanton do not permit privacy, individuality, or freedom of association to plaintiffs. Residents spend their days in large, sterile day rooms, seated on plastic furniture or on the uncarpeted bare floor. They are deprived of their freedom to choose or reject their associates and to determine when and in what ways they relate to their friends. As a result, numerous residents have regressed, mentally and
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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 12 of 38

physically.

Staff at Los Lunas and Fort Stanton

160. Defendants have failed to recruit, employ and train direct care and professional staff at both institutions in sufficient numbers and have failed to place personnel in an environment making it possible for them to stimulate and assist in the daily lives and activities of the residents.
161. Fort Stanton's isolated, remote location makes its particularly difficult to recruit, employ and train qualified staff in sufficient numbers. The institution provides little, if any, staff training in developmental disabilities and methods of working with individuals with developmental disabilities. Many well-meaning staff members are not able to provide residents with quality services due to lack of information, training and appropriate facilities.
162. Both Los Lunas and Fort Stanton have staff sufficient to provide little more than custodial care. Residents are not provided with the habilitative services, stimulation and attention necessary to prevent deterioration of their physical condition, psychological well-being or personal development.
163. Residents are frequently unable to develop personal relationships with staff or to engage in one-to-one contact and conversations such as those enjoyed in normal living situations. The gross scale of institutional living operates to discourage such relationships and other personalized, individual activities.
164. The overworked staff at Los Lunas has not been able to provide the attention necessary to protect residents from physical injury and abuse. Client abuse by other unsupervised residents is frequent and uncontrolled.
165. Los Lunas residents are often physically restrained when the

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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 13 of 38

demands of individual clients become too overwhelming for staff. Ambulatory residents are frequently locked into wheelchairs for staff convenience. Clients have been locked into closets by staff as punishment or for convenience.
166. Client abuse and injury by other unsupervised residents at Fort Stanton is frequent because insufficient staff members are available to oversee the activities of all residents in their care; in some cases, staff members simply choose not to intervene.
167. The direct care staff at Los Lunas and Fort Stanton have not been trained to recognize abuse and are unaware of what constitutes physical and emotional abuse of residents. Both institutions have been without a formal training program on recognition and monitoring of abuse.
168. Los Lunas has failed to provide complete criminal background checks of its employees and has subjected residents to the custody of individuals unqualified to work with severely disabled people. Some employees have been discharged after delayed investigations revealed disturbing criminal backgrounds.
169. Upon information and belief, the normal state policy of providing criminal background checks of all employees is not followed at Fort Stanton. At least one individual dismissed from Los Lunas for abuse has been hired at Fort Stanton in a direct care position.
170. Los Lunas and Fort Stanton direct care staff receive only minimal orientation and training in the care and habilitation of persons with developmental disabilities before being hired to work in the institutions.
171. Direct care staff at Los Lunas are not trained to properly feed severely handicapped clients. For the convenience of staff, clients are sometimes fed too quickly, causing discomfort and health-related problems.

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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 14 of 38
Approximately one hundred uncredentialed Foster Grandparents have major responsibilities for feeding and other direct care of residents but receive inadequate training. The lack of instruction and staff shortages have caused client injuries and contributed to deaths from aspiration and choking.
172. Los Lunas residents are transferred from building to building arbitrarily, without regard to either their own abilities, skills, or training or that of staff. Staff members without relevant training are called upon to work in buildings with aggressive and violent residents. They receive no instruction in management techniques, are fearful for their safety, and have themselves been physically injured. Staff who lack training in the handling and care of severely disabled residents have been transferred to buildings with the most fragile residents.
173. Many Los Lunas residents who have contractures or are nonambulatory require frequent repositioning in order to prevent skin breakdown and muscle and joint deterioration. These clients do not receive the repositioning they require to prevent deterioration and, as a result, have physically regressed.
174. Los Lunas currently employs only two full-time occupational therapists, one part-time occupational therapist and one physical therapist for 367 residents. For many residents, years of institutionalization and the lack of ongoing and appropriate therapy has resulted in unnecessary physical and muscular deterioration. Many residents would benefit from frequent direct physical therapy. The physical therapist concentrates mainly on wheelchair redesign and renovation rather than providing direct therapy to residents. The occupational therapists provide evaluations and conduct in-service training. Only a handful of residents receive sorely needed occupational or physical therapy.
175. Fort Stanton currently employs no full-time occupational therapist.
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Residents receive no occupational therapy services despite their needs to develop self-care and community living skills.
176. A pa:r·t-time physical ther·apist pr·ovides limited services on a temporary basis to Fort Stanton residents. Although many residents have cerebral palsy or other muscular disorders which impair their ability to walk well, they are denied essential physical therapy services at Fort Stanton.
177. The speech/language department at Los Lunas is staffed by one speech language pathologist <SLP> with two part-time assistants and two audiologists who perform hearing evaluations. The SLP also has administrative duties which limit her efforts to provide direct speech therapy to residents.
178. Fort Stanton employs only one speech therapist for all 140 clients. Although many residents need speech therapy designed to improve their ability to understand others and communicate their own needs intelligibly, that therapy is not available for all.
179. Los Lunas has failed to provide its residents with adequate, timely medical care. Residents' health problems often go unrecognized and untreated because of a shortage of trained medical personnel and because medical staff are often slow to respond to requests for examination and treatment from non-medical staff. The victim of a recent sexual assault lay untreated and undiagnosed for at least two days before her injuries resulted in her death. Medical staff finally agreed to examine the resident the morning of her death at the insistence of educational staff. Even then, her injuries were not discovered.
180. Upon information and belief, residents injured in falls and accidents at Los Lunas have been left unattended and untreated while nonmedical staff have attempted to obtain medical services and consultation from the institution's physicians.

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181. Fort Stanton medical staff do not have specific training in the treatment and care of developmentally disabled individuals. Staff members have been known to flush residents' medications down the toilets as a punishment if they arrive late for medication.
182. Upon information and belief. uncredentialed direct care staff at both institutions routinely administer oral. anal and topical medications.
183. Professional staff members at Fort Stanton lack the qualifications necessary for the positions they hold. Until recently, no psychologist at Fort Stanton had even a masters degree in psychology.
184. Fort Stanton professional staff members lack even rudimentary training or coursework in mental retardation or developmental disabilities. Most of the teachers lack certification in special education.
185. Many Fort Stanton staff members reside on the grounds of the institution. The resulting parochial. self-contained atmosphere discourages efforts to integrate residents into the larger community and creates an artificial. enclosed social microcosm at the institution. Staff members are reluctant to assist residents in moving out of Fort Stanton and into the community because of their local attitudes and their fear of losing their jobs and homes.
186. Fort Stanton's management fails to instill in staff members a positive and caring attitude toward the individuals they serve. Although some staff members bring that quality with them as individuals. the overall outlook of the staff towards the clients is a negative one. Descriptions of residents, both orally and in writing, concentrate on their inabilities and weaknesses. There is no recognition of the residents' strengths and no belief in the residents' abilities to grow. learn and change. As a result. an atmosphere is created which hinders efforts to provide habilitation.

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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 17 of 38
187. The Individuali2ed Habilitation Plans <IHPs> developed for residents do not provide adequate, appropriate active programming. Staff shortages and poor or non-existent training limits the quality and quantity of programming offered to residents.
188. Individuali2ed Habilitation Plans <IHPs> are not appropriate or individuali2ed for each Fort Stanton or Los Lunas resident. Goals are copied verbatim from IHP to IHP. Goals remain the same year after year. No continuity, integration or follow-up of goals is provided.
189. Defendants have failed to provide all Fort Stanton or Los Lunas residents with individuali2ed discharge plans for placement in integrated community settings, despite professional judgment that residents need such placements. The State has failed to provide sufficient community placements and provides virtually no community opportunities for the most severely disabled residents.
190. Activities such as eating, toileting, and bathing are often conducted en masse, at predetermined and unchanging times chosen for the convenience of the institutions. This regimentation deprives Plaintiffs of the normally experienced freedom and dignity of choosing when to attend to their individual daily tasks and interests, and of arranging their appearances according to their personal tastes.
191. At Los Lunas, many residents languish in cribs or on mats with no stimulation except when they are changed or fed. Other non-ambulatory residents are left in their wheelchairs, unattended for hours, with no stimulation or interaction available to them. There is little interaction between staff and residents in the cottages. Age-appropriate activities are unavailable. Lighting is often diminished and noise levels fluctuate wildly.
192. Physical and pharmaceutical restraint procedures and tranquili2ing
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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 18 of 38
medications are frequently utili2ed for restraint of residents and as a substitute for appropriate care and programs of habilitation. Plaintiffs are subjected to punishment and to medication prescribed without a specific therapeutic goal.
193. Programs to deal with residents' behavioral problema are absent. Staff are not trained to understand the causes of residents' aggressive or self-abusive behavior nor to intervene and modify it. When confronted with inappropriate or difficult behavior problemat professional staff generally opt for pharmaceutical remedies despite the availability of alternative programs and the lack of compelling evidence that tranquili2ing or psychotropic medications are effective or appropriate in controlling such behavior in individuals with mental retardation.
194. Loa Lunas professional staff have administered substances manufactured for animals to Loa Lunas residents to control their biting behaviors. The preparationt WBitter Bite,w has not been approved by the United States Food and Drug Administration for use on humans.
195. Residents at Loa Lunas are subjected to undue restraints on their freedom of movement by excessive locking of doors. Ambulatory clients are restrained in wheelchairs; others are locked in closets. Use of papoose restraints to immobili2e and restrain residents is a common practice.
196. Medical recorda and charta maintained by medical and direct care cottage staff are inadequate and incomplete. Charting of residents' behavior, condition and progress on a daily basis is hapha2ard at best and no longer available in the residents' individual cottage files.
197. Medical files are incomplete and poorly maintained. Medical staff have been unable to determine if vaginal bleeding is the result of normal biological functions or sexual assault, as in the case of a Loa Lunas resident
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e • Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 19 of 38 who was attacked in September, 1986.

198. Charting of injuries and abuse or suspected abuse is incomplete and

results of investigations regarding such injuries are often absent. Staff notations indicate that residents have suffered unexplained bruises or

injuries that have neither been reported nor treated. Notes on residents'

condition, behavior and progress as well as specific unusual incidents made by the educational and other professional staff are not routinely entered

into the residents' files. This information is frequently unavailable

to the resident's advocates, attorneys or families.

199. Plaintiffs have been excluded from the opportunity to attend public school with children who are not handicapped. They are provided separate

educational services within the confines of the institutions. They are denied, without any educational justification, the six-hour education day mandated by New Mexico law for all students. The education programs at the

institutions do not always provide appropriate, individualized programs for the residents, nor do they provide appropriate related services such as

physical therapy, speech therapy, occupational therapy or psychological

services.

200. Educational programming at Fort Stanton consists of routine tasks recycled year after year. The students are not provided the opportunity to develop their vocational, leisure and self-care skills. Although all persons at Fort Stanton could participate actively in a vocational program, only the least handicapped residents are given opportunities to do so.

Participants in the ceramics and farm programs moat often sit idly while

instructors perform the actual work. In addition, residents receive little marketable training in job skills.

201. Education in daily living skills is rarely integrated into the routine of each resident in a normalized fashion. Toothbrushing does not

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occur immediately after meals or in the evening, but rather at mid-morning or mid-afternoon. Clients who have toileting programs are expected to learn these skills at the staff's convenience, and not necessarily at a time when they would ordinarily go to the bathroom.
202. Students spend much of their time repetitively placing laces through boards, sticking pegs in holes, looking into hand-mirrors and working a few childish pu22les. A great deal of time is spent sitting idly. Little age appropriate activity is available for adult residents; they color pictures and pursue other projects designed for children.
203. Programming for the clients does not include opportunities to learn about life in the community. Trips to the community are rare, and community visits are often offered only as a reward for ngood behavior.• Residents have little opportunity to leave the institution's grounds and learn how to live in society.
204. There are few structured recreational or leisure time activities available to residents. Residents spend little time outdoors. Staff prefer to keep them inside where they can be more easily observed and controlled. Fort Stanton and Los Lunas residents rarely are permitted opportunities to hike, picnic or camp.
205. Fort Stanton and Los Lunas residents spend most of their time wandering or sitting idly and aimlessly. This lack of programming makes it difficult for clients to develop friendships with other clients in a normali2ed fashion through social interaction. Without normali2ed social activities, residents are unable to learn how to relate to one another and to the larger social community in an appropriate manner.
206. Fort Stanton does not permit clients the opportunity to worship at the church of their choice. Only a limited number of church services are
49

e Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 21 of 38 available for clients at the institution. 207. Defendants' failure to provide Plaintiffs with professionallydevised programs and activities to help them maintain fundamental skills has caused plaintiffs to experience regression and the loss of skills they possessed when they entered the institutions. Th• P•r•i•t•nc• and In•vitability of In•titutional Condition• at Lo• Luna• and Fort Stanton 208. The conditions described herein have persisted throughout the existence of Los Lunas and Fort Stanton. The presence of these conditions universally among institutions demonstrates that such conditions are endemic to large, segregated, isolated, "total institutions" such as Los Lunas and Fort Stanton. A total institution is one that attempts to serve all of the residents' needs, as defined by the institution, within its own confines. Los Lunas and Fort Stanton inherently deny to Plaintiffs the experiences, interactions and opportunities for growth and development enjoyed by other members of society. 209. The behavior of retarded persons may differ slightly from that of other persons, but retarded and non-retarded persons are more alike than they are different. By segregating retarded persons from the rest of the community and congregating them together, the State reifies, compounds, and aggravates the residents' deviating behaviors. 210. Staff at Los Lunas and Fort Stanton view and relate to residents primarily in large, massed numbers, in warehouse environments. Because of the population density and because of the forced institutionalized appearance of residents, staff lose the ability to perceive and relate to residents as human beings. 211. Retarded persons, like other persons, vary in their needs, wishes, and abilities. At different points of life, different activities and environ-
50

'I' Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 22 of 38
menta are appropriate to each person. Large institutions classify residents once, and in the gross, based on a few salient characteristics, with little opportunity for r-eevaluation or change. The large, total institution deprives Plaintiffs of their individuality, of the possibility of habilitation, and of living freely.
212. Los Lunas and Fort Stanton, segregated and isolated from the rest of society, deprive residents of the opportunity to interact with non-retarded people in non-custodial relationships and in small, home-like settings in the community. Plaintiffs are denied the experiences of observing how other peaple behave and interact, of learning to carry out age-appropriate and acceptable social behavior and of experiencing the dignity and freedom of living in the community as normally as they may.
Normalization, Lib•rty, Int•gration, and Equality
213. Persons vith retar·dation grow and gain skills and overcome institution-imposed regr·ession when provided with opportunities to learn, in practice, basic skills in small, well-structured, supervised community settings.
214. Professional knowledge, research and the experience of other states across the country confirm that retarded persons who are subject to destructive environments such as Los Lunas and Fort Stanton progress and gain skills when provided community services.
215. In a five year study commissioned by the Secretary of the U.S. Department of Health and Human Services comparing the growth and development of sever·ely retarded persons moved from an institutional facility, older but much like Los Lunas, to community living arrangements, researchers systemstically monitoring residents for five years found:
Sever·ely r·etarded persons placed in community living arrangements increased in
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skills and developmental growth while residents of the institution did not; and Severely retarded persons were receiving and benefiting from greater amounts of structured services than those at the institution even though the cost of community services was less than the per client institutional cost. 216. The federal government study concluded that retarded persons moved from the institution to community placements were •better off in every way.• J.W. Conroy & V. J. Bradley~ The Pennhurst Longitudinal Study: A Report of Five Years of Research and Analysis, Temple Univ.~ Philadelphia, PA; A Project of the U.S. Department of Health and Human Services, Office of Human Development Services~ Washington, DC (1985). 217. Professional judgement dictates that retarded persons be served in life patterns that are integrated with and similar to those followed by other persons. This detemination has been accepted as a guiding principle for programs serving retarded people by such retardation professional organizetiona as the American Association on Mental Deficiency, the President's Committee on Mental Retardation, and the Association for Persons with Severe Handicaps; by consumers~ including the Association for Retarded Citizens of the United States; and by the defendants themselves. 218. Professional experience similarly dictates that retarded persons be treated like other persons of the same age in their own community to the greatest extent possible. Their similarity to nonretarded persons is to be emphasized and their deviant aspects deemphasized and diminished through appropriate habilitative programming. They are to be enabled to live in a culturally normative community setting~ with typical housing, to communicate and socialize in age- and culturally-appropriate ways, and to utilize community resources as other citizens do. Habilitation is to be attained through the use of generic services in the community.
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I
219. Plaintiffs and members of their class are human beings who have feelings, needs, and motivations like all other people. They have, to varying degrees, the potential for· g:r·owth, development, and achievement of self-care and self-support. They are capable of benefiting from treatment and habilitative services to maximize their potential and to satisfy their social, emotional and economic needs.
220. Expe:r·ience in New Mexico and throughout the country demonstrates that these needs can be met and a nor·malized, free and equal life in the community assured to retar·ded per·sons. Experience shovs that a nor·malized life in the community can be provided for a retarded person vhile satisfactorily guaranteeing to parents the continued care and security of the person, after the parents' death, after the person has reached majority, and when circumstances contrive to require that the person reside apart from the family. Experience also shows that integrated services for retarded people, including a normalized life outside the institution, can be assured while satisfactorily guaranteeing to present employees at the institution job security and employment in community services.
221. Services in the community to support retarded people can be secured at a cost no greater than the current per capita annual expenditure at Los Lunas and Fort Stanton; it is likely that it can be provided for less. Moreover, the cost of providing such services in the community is enormously leas than the cost of providing in the institution the services that are necessary to actually meet the needs of retarded persons.
222. Learning by retarded people requires the examples of other nonretarded people in real-world environments where what is learned is done. As for all people, but relatively more so for retarded people (it is one of their "differences">, learning by retarded people during all of life proceeds in
53

I 1 t't

,r r

• • Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 25 of 38 significant part by imitation and example and in the concrete, rather than by
generalization from one context into another. Learning by retarded people
flourishes in properly structured and integrated environments; in isolation
it is destroyed.
223. As members of the community, retarded people of all ranges of
ability can and do maintain not only steady but productive jobs. Retarded
people can and do significantly care for themselves, keep clean and pleasing
rooms, and respect the rights of others. Retarded people do make good
neighbors, to their own benefit and their neighbors'. The abysmally ignorant
stereotypes to the contrary do not withstand the facts or a correct
understanding of what difference being retarded makes. Retarded people need
assistance, as do all persons, but often relatively more. That means not
exclusion from the community but participation in it.
224. In recognition of these facts, the U.S. Congress has concluded:
"It must be recognized that the vast majority of developmentally disabled persons and the vast majority of persons institutionalized should not be in these institutions at all. Efforts to assure proper treatment, education, and habilitation services in large institutions should not deflect attention from the fact that most of these institutions themselves are anachronisms, and that rapid steps should be taken to phase them out. Many of these institutions by their very nature, their size, their isolation, their impersonality, are unsuitable for treatment, education and habilitation programs. •
S. Rep. No. 94-160, 94th Cong., 1st Sess. 32-33 (1975).

225. Although defendants espouse community placement, they utterly have failed to progress toward their own meager goals. Despite their own policies, prevailing professional opinion, and clear standards, and in violation of the
54

Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 26 of 38
Constitution and fede~al law, defendants have not acted to p~ovide to ~eta~ded pe~aona the neceaaa~y conditions for a free, equal, integrated life in the community.
226. Defendants have stated a commitment to make resources available for relocating persona confined at Loa Lunas and Fort Stanton to the community, and have instead invested those resources in the institutions. Defendants have permitted the transfer of residents to similar large-scale, isolating institutions, such as skilled nursing facilities, rather than developing community living facilities and community services.
227. Defendants have failed or refused to implement plans and programs for alternative community living facilities despite e~plicit state and federal authorization to provide them.
228. Defendants have failed to implement a range of programs and services to prevent the needless segregation of retarded persons. Community and group home development has fallen far below needed levels.
229. Defendants individually have fragmented responsibilities for assisting Plaintiffs. As a result, ther are painful gaps in the state's service system. Defendants provide no centralized case management system to insure that the needs of individuals with developmental disabilities are met.
230. Because state officials historically have directed its retardation resources and reviews toward isolated segregated institutional settings, and as a matter of state policy encouraged the parents and relatives of retarded New Me~icans to make use of state institutions, community retardation resources naturally have dried up.
231. Today, financing, operation, and monitoring of residential and day ser·vices for· persons with developmental disabilities continues to be fragmented and uncoordinated between the Health and Environment Department, the Human Services Department, and the Department of Education. The result is a
55

Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 27 of 38
system with significant gaps in services and a lack of clear lines of authority and responsibility. At the client levelJ the absence of any meaningful case management systems reflects this absence of responsibility and perpetuates a lack of access to appropriate services by an entire class of clients or potential clients who must find their awn servicesJ and are denied procedural due process in contesting their denial of service.
232. The Health and Environment Department has failed to monitor services to developmentally disabled persons through contracts with private, nan-profit service providers around the state or to periodically assess the needs of the state's developmentally disabled residents and to prepare plans to meet these needs.
233. Few of the residential services made available by HED through its community contractors are fully accessible to persons with mobility impairments. As a resultJ many residents of institutions, and many other potential clients living elsewhereJ are denied appropriate community living services only because they are mobility-impaired.
234. HED's local contractors discriminate against potential clients based an their degree of disability or the presence of secondary disabilities or medical conditions.
235. In conjunction with the Health and Environment Department, the Human Services Department applied for and received in 1983 a waiver of Medicaid rules from the federal government as provided under Section 2176 of the Omnibus Budget Reconciliation Act of 1981. HSD assumed complete control of the Waiver program in 1986. The Waiver allows Medicaid funds to be used to support a variety of community-based services. These services and placements are designed to allow institutional residents to be served at less cost in community settingsJ and to divert those at risk of institutional placement to
56

e e Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 28 of 38 community settings. In the approved waiver, the state committed itself to a substantial reduction in the number of residents at Fort Stanton in order to reallocate the Medicaid funding needed to create the community placements that most of the institution's residents need. 236. Despite the explicit assurances to this effect provided to the federal government, neither HED nor HSD implemented the waiver program in they proposed. Not a single resident has been moved from Fort Stanton; indeed the institution has grown significantly in si2e during the period since the Waiver vas granted. The number of community placements promised by the Waiver application and authori2ed by the granting of the Waiver is far greater than the number of placements actually provided, requiring many persons to remain in inappropriate institutional placements in deplorable conditions. 237. The Waiver regulations require that persons proposed for admission to institutional placements be offered the alternative of Medicaid-financed community services. This alternative is rarely offered to new or current residents of Fort Stanton and Los Lunas, who are thus denied the option of community services for which they might qualify under the program.
Claim• Count It R•habilitation Act
Defendants have violated the rights of Plaintiffs and the class secured by Sections 100 and 504 of the Rehabilitation Act of 1973, ~ amended, 29 U.S.C. Sections 720 and 794, and regulations promulgated pursuant thereto, 34 C.F.R. part 104, and 45 C.F.R. parts 84 and 1361, by:
a. Excluding retarded people from participation in state-operated federally funded programs;
b. Failing to provide retarded people federally assisted services that
57

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• Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 29 of 38
ere effective end meaningful end that ere delivered in less separate, more integrated settings;
c. Denying retarded people the benefits of federally funded activities on the basis of the severity of their handicaps;
d. Segregating residents of Los Lunas and Fort Stanton on the basis of their physical handicaps;
e. Denying training and habilitation to residents at Los Lunas end Fort Stanton because of the severity of their retardation or their physical handicaps;
f. Denying community services to residents because of the severity of their handicaps; and
g. Failing to meximi2e vocational rehabilitation services in the community for severely handicapped residents of Los Lunas and Fort Stanton on a priority basis so that such individuals may prepare for and engage in gainful employment to the extent of their capabilities.

Count lla Socill S•curity Act
Defendants have violated the rights of Plaintiffs and the class secured by Title XIX of the Social Security Act, 42 U.S.C. Sections 1396 and 1396a, and regulations promulgated pursuant thereto, 42 C.F.R. pert 42, subparts G and I, by:
a. Failing to provide training and habilitation services to all residents regardless of age, degree of retardation or accompanying disabilities or handicaps;
b. Failing to provide professional services to residents in physical therapy, occupational therapy, speech pathology and audiology, psychology, dentistry, nursing, and pharmacy;
c. Failing to allow residents to manage their own personal financial

58

... Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 30 of 38
affairs; d. Failing to allow :r·esidents to :r-etain personal possessions and
clothing in their living areas; e. Failing to provide for individual privacy in toiletst bathtubst
showers and living areas generally; f. Accommodating more than four residents per bedroom; g. Failing to provide living areas equipped for use by persons with
physical handicaps; h. Using physical and chemical restraints for the convenience of stafft
and as a substitute for activities or treatment; i. Failing to develop adequate activities for residentst thereby
forcing them to spend the greater part of each day in unstructured activities; j. Failing to provide sufficientt appropriately qualified and trained
staff in resident living a:r·east especially in living areas for severely and profoundly retarded and severely physically handicapped persons;
k. Failing to provide adequatet integrated individual treatment plans for residents;
1. Failing to perform adequate individual interdisciplinary assessments of residents;
m. Failing to review or evaluate the appropriateness of the continued residence of retarded persons in Los Lunas or Fort Stanton and other Title XIX facilities or the feasibility of meeting their needs through alternative noninstitutional care;
n. Failing to determine whether it is necessary and desirable for the residents of Los Lunas and Fort Stanton to remain in those facilities;
o. Failing to review and dete:r·mine that services pr·ovided at Los Lunas and at Fort Stanton are adequate to promote the maximum physicalt verbalt and psychosocial functioning of the residents there;
59

• Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 31 of 38 p. Failing to develop discharge plans and referral to appropriate community resources; q. Failing to monitor r·esidents' medications; r. Failing to have written agreements with qualified professionals and hospitala outside the facility to provide required ser·vices not furnished by the facility; s. Subjecting residents to emotional and physical abuse; t. Refusing to permit residents communication, association, and private meetings with individuals of their choosing; u. Failing to permit residents to participate in social, religious, and community group activities; v. Segregating residents on the basis of their physical handicaps; w. Failing to treat plaintiffs and the class with consideration, respect, and full recognition of their dignity and individuality; x. Failing to assure that ser·vices are provided pursuant to the state's Title XIX Plan in a manner· consistent with the best interests of Plaintiffs and the class. Count llla Eduaation of th• Handiaap,.d Aat Defendants have violated the rights of plaintiffs and the class secured by the Education of the Handicapped Act, 20 U.S.C. Sections 1401-15, and regulations promulgated pursuant thereto, 34 C.F.R. part 300, by: a. Failing to insure, to the maximum extent appropriate, that Plaintiffs and the class who are of school-age are educated with students who are not handicapped; b. Requiring Los Lunas and Fort Stanton residents to be segregated in separate schools even though their handicaps are not uniformly of such a natur·e or severity that attendance in a more integrated environment, with
60

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Olj.

..

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"Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 32 of 38

i. Failing to assign a surrogate parent to insure that the rights of each class member are protected when a parent is unavailable, the whereabouts of a parent are not known, or the student is a ward of the State;
j. Failing to group students in age appropriate classes or locate classes in age appropriate schools where nonhandicapped students also attend, and precluding opportunities for interaction between handicapped and nonhandicapped students; and
k. Failing to insure that monitoring of the educational program at Fort Stanton and Los Lunas occurs in a timely fashion.
Count lVa lqual ~ot•ation
Defendants have violated the r·ights of Plaintiffs and the class secured by the Equal Protection Clause of the Fourteenth Amendment by establishing, encouraging, subsidizing, and otherwise sanctioning in de jure fashion enactments, programs, policies and practices that have excluded, separated, and segregated persons with retardation.
Count Yt lxpr•••ion and A••aaiation
Defendants have violated the r·ights of Plaintiffs and the class to the freedoms of expression and association secured by the First Amendment, by:
a. Preventing class members from associating and assembling with other·s of their choice and from not associating or residing with others not of their choice;
b. Diminishing and failing to protect the capacity of class members to pr·oduce ideas by thinkir1g and learning, and to express those ideas through communication;
c. Failing to permit residents the free exercise of their religious beliefs; and

62

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I ! •-.

1l i

•

• Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 33 of 38 d. Failing to utili2e leas restrictive alter·nativea when impinging

upon the above rights.

Count Yla Privacy, Dignity and Fa•ily lnt•grity

Defendants have violated the r·ighta of plaintiffs and the class to

privacy, dignity, familial integrity and association as secured by the Firat,

Fourth, Ninth and Fourteenth Amendments and with regard to the

protective rights of familial integrity and association, have done so

intentionally; the rights set forth above have been violated by:

a. Stripping the residents of Los Lunas and Fort Stanton of

their individuality;

b. Requiring that they exercise the moat personal of bodily functions

under the constant intrusive stares of staff and other residents in a way

that is patently offensive to a reasonable person;

c. Affording them little or· no oppor·tunity to be alone when they want

to be, or to be with others of their choosing;

d. Failing to provide them normal opportunities to express love,

warmth, affection, and sexuality; and

e. Forcing them to live their lives congregately, according to the

demands of the institution, rather than according to their personal

preferences.

Count VII: Du• Proc•••

Defendants have violated the rights of Plaintiffs and the class to the

liberty and proper·ty interests secured by the Due Process Clause of the

Fourteenth Amendment, by:

a. Failing to provide adequate shelter·, clothing, food and health care;

b. Imposing unnecessary restraints, physical and chemical;

c. Subjecting class members to abuse, neglect and other harmful

conditions, including the injur·y stemming fr·om r·egreaaion and the stigma

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I! •

1. l

• Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 34 of 38 the use of supplementary aids and services, cannot be achieved satisfactorily; c. Failing to provide or arrange for the provision of nonacademic and extracurricular services and activities, including meals and recess periods, in a way that insures the participation of each class member with nonhandicapped students in those ser·vices and activities to the extent appropriate to the unique needs of that student; d. Failing to make individualized determinations for each class member of the appropriateness of placement in a separate school; e. Failing to establish various alternative placements to insure that all class members receive an integrated education appropriate to their individual needs; f. Failing to provide adequate transportation and such developmental, corrective, and other supportive services as are required to assist each class member to benefit from special education, including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, vocational education, early identification and assessment of disabilities, counseling, medical services for diagnostic or evaluation purposes, social work services, parent counseling and training, and other related services; g. Failing to evaluate each class member· to determine the nature and extent of the special education and related services that the student needs by providing and refining assessments that distinguish precisely each individual student's strengths and needs, learning style, behavioral needs, and lifeskill needs;
h. Failing to provide written notice to or to obtain the consent of the parents of each class member before conducting evaluations of or placing the class members in a program providing special education and related services;

61

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Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 35 of 38

and other harms caused by segregation and incarceration; d. Failing to place class members in settings that are more integrated
and less separate, and that would enable them to enjoy the liberties normally associated with one's citizenship;
e. Failing to provide habilitative services to enable each class member to enjoy the rights enumerated in Counts I through VII<D>;
f. Failing to give consideration to the habilitative, placement, and ather needs and rights of each individual class member, treating him or her in accordance with his or her awn situation;
g. Conclusively presuming that residents of Las Lunas and Fort Stanton cannot benefit from particular services or cannot live in non-institutional , settings;
h. Denying class members' rights to the property and liberty interests created by New Mexico state law to services in integrated settings;
i. Denying class member·s an adequate apportuni ty to be heard on the appropr·iateness of their habilitative plans, programs, and environment; and
j. Failing to provide a friend-advocate to assist each class member to live safely in freedom, and to exercise their federally protected Constitutional rights.
Count YIIIa I•poaition o1 Unaonatitutional Condition•
Defendants have violated the right of Plaintiffs and the class to freedom from the imposition of unconstitutional conditions violations created by defendants themselves -- as a condition for the receipt of services provided by the State.
R•li•1
WHEREFORE, Plaintiffs respectfully request that this Court~ 1. Declare unconstitutional and unlawful the failure of defendants

64

• Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 36 of 38 to pr-ovide all Plaintiffs and member-a of the class with effective ser-vices deliver-ed in integr-ated community settings appr-opr-iate to their- needs and per-manently enjoin them to provide such services. 2. Pr-eliminar-ily and permanently enjoin defendants: (a) to provide all Plaintiffs and members of the class effective services in integrated community settings apropriate to their needs. (b) from admitting persons to Los Lunas and Fort Stanton or from transferring present residents from Los Lunas and Fort Stanton unless such transfer is to integrated community settings appropriate to their needs, with appropriate related ancillary services provided. (c) to make available in advance of that time and with dispatch the necessary alternative residential facilities and services in the community. (d) to safeguard Plaintiffs' and the Plaintiff class' rights to freedom from abuse, neglect, and unnecessary physical and chemical restraints, and to provide adequate food, clothing, shelter, medical care, and habilitative programming to Plaintiffs and members of the Plaintiff class. (e) to develop written individualized habilitation and exit plans for each Plaintiff and member- of the class and to pr·ovide an individualized habilitation progr-am for each. (f) to make available a friend-advocate and/or surrogate parent to each Plaintiff and member of the class to assist each in securing the substantive and procedural protections aforesaid.
(g) from failing to perform their duties under other federal statutes, including 42 U.S.C. Sections 1396 and 1396a, 20 U.S.C. Sections 1401-1415, and 29 U.S.C. Section 720, and their accompanying regulations.
(h) to submit to Plaintiffs and to the Court for its approval a plan for implementation of the measures set forth above.
65

'• .
. . ~

• • Case 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 37 of 38 3. Schedule a hearing without delay on Plaintiffs' claims of class certification and enter a final judgment certifying the class of individuals the Plaintiffs represent to include all persons who are now at Los Lunas or Fort Stanton or who may be transferred there in the future; retarded persons residing at home who, because effective community services to assist their families are unavailable, are in jeopardy of being sent to Los Lunas and Fort Stantont and persons who have been transferred to skilled nursing facilities, intermediate care facilities, homes for the aged, and similar facilities, yet remain defendants• responsibility, and who, because of defendants• failure to provide alternatives in the community may be forced to return to Los Lunas or Fort Stanton.

4. Award Plaintiffs their costs and attorneys fees.

5. Award Plaintiffs and the members of the class such other relief as the Court deems appropriate.

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• C11· ase 1:87-cv-00839-JAP-KBM Document 1-1 Filed 07/08/87 Page 38 of 38

IIII

•

!I

II

,III

li~ d
il

----/1-/J~Arz________

, Paul L. Biderman {/ .

!1j P.o. Box 1447

II Santa Fe, NM 87504-1447
I 5 · 988-8979

87102

Hughes, Borg Suite 200 809 Copper NW Albuquerque, NM (505) 842-6123

87012

Respectfully submitted,
/~
/ ~~Timothy M. Cook Judith A. Gran Frank Laski THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 s. 9TH Street Room 700 Philadelphia, Pa. 19107 215 627-7100
// 01~ A~n-n -M-. -H-ar-ve-y-- --- --
Peter Cubra Marlene Foster Protection and Advocacy System for New Mexicans with Developmental Disabilities 2201 San Pedro NE Bldg. 4, Suite 140 Albuquerque, NM 87110 (505) 888-0111

Daniel w. Shapiro
Ortega and Snead, P.A. Box 2226 Albuquerque, NM 87103 (505) 842-8177
Attorneys for Plaintiffs and the Plaintiff Class

 
 • Case 1:87-cv-00839-JAP-KBM

Document 238 Filed 1•0/13/88 Page 1 of 3 --

·-------------------------------~--~

IN

THE

UNITED

STATES

DISTRICT

COu~ru~rL..:'1J.. a"-_ v

. ,.---···, :.li-;tfRK

FOR THE DISTRICT OF NEW MEXICO A,Jj(,fJJER01 •

~vALTER STEPHEN JACKSON, et al.,

Plaintiffs,

vs.
FORT STANTCN HOSPITAL AND TRAINING SCHOOL, et al.,
Defendants,

CIV 87-0839 JP

and

JOHN E. and IRIS YOUNG, et al., Intervenors.

FOURTH AMENDED COMPlAINT BY INTERLINEATION Come now plaintiffs, by order of the court, and submit their fourth amended complaint. Following paragraph j of Count VII on page 72 of Plaintiffs' Third Amended Complaint the following is added: k. All plaintiffs in this action and all members of the plaintiff class have a developmental disability as defined by state law. Section 43-l-3(H)
NMSA 1978. 1. All plaintiffs and all members of the plaintiff class have a
disability which is attributable to a mental or physical impairment or a combination of mental and physical bnpairrnents, mental retardation, cerebral palsy, autism, or neurological dysfunction, regardless of the age of onset, which requires treatment or habilitation services similar to that
provided to persons with mental retardation. As a result, all plaintiffs and

1

• • Case 1:87-cv-00839-JAP-KBM Document 238 Filed 10/13/88 Page 2 of 3
members of the plaintiff class are entitled, under state law, to all of the protections embodied in chapter 43 of New Mexico Statutes Annotated. Nevertheless, many plaintiffs are not being provided the procedural due process rights required of the defendants by state law.
m. All members of the plaintiff class are entitled to effective assistance of counsel under Section 43-1-4; to personal rights as provided by Section 43-1-6; to prompt treatment under Section 43-1-7; to prompt habilitation services pursuant to Section 43-1-8; to a comprehensive individualized treabment or habilitation plan pursuant to Section 43-1-9; to the right to be at liberty unless ordered by a court in a timely fashion to undergo residential placement pursuant to Section 43-1-13; to the right to exercise informed consent or refusal of consent to treatment pursuant to Section 43-1-15; if a minor, to a right to education in regular classes with non-handicapped minors whenever appropriate pursuant to Section 43-1-18; to a formal adequate process to guarantee plaintiffs' confidentiality pursuant to Section 43-1-19; to an assessment of the needs of the state's developmentally disabled population pursuant to Section 43-lA-4; to planning for community services for developmentally disabled persons pursuant to Section 43-lA-5; to the benefit of appropriate standards for services pursuant to Section 43-lA-7; , to due process in decisions regarding admission and discharge of clients from services pursuant to Section 43-lA-8; to effective monitoring of compliance with regulations and other state imposed requirements pursuant to Section 43lA-9; to a system to pay for services which accurately estimates funding requirements pursuant to Section 43-lA-10; and to all other procedural due process rights due any citizens when their liberty is restrained by the state of New Mexico.
n. All of these due process rights are being violated by the defendants.
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• • Case 1:87-cv-00839-JAP-KBM Document 238 Filed 10/13/88 Page 3 of 3

o. The state-created liberty interest and due process rights entitle plaintiffs to substantive and procedural due process of law under the 5th and 14th Amendments to the United States Constitution.

I hereby certify that on October 13, 1988, a copy of the foregoing Fourth Amended Complaint was mailed to:
Chris Coppin, Assistant Attorney General PO Drawer 1508 Santa Fe, NM 87504
Roberta Beyer 1228 Central SW Albuquerque, NM 87102
P~ch
Counsel for Plaintiffs

Peter Cubra Counsel for Plaintiffs Protection and Advocacy System 2201 San Pedro NE, Blg. 4, Ste. 140 Albuquerque, NM 87110

3

 
 Appellate Case: 16-2172

Document: 01019934522
PUBLISH

Date Filed: 01/23/2018 Page: 1
FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

January 23, 2018

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

WALTER STEPHEN JACKSON, by his parents and next friends, Walter and Helen Jackson; STEVE NUNEZ, by his guardian and next friend, ARC of New Mexico; MARY KATHERINE NOWAK, by her next friend, James W. Ellis, Esquire; RICHARD STANFIELD, by his father and next friend, The Reverend Clyde Stanfield; BETTY YOUNG, by her next friend, Mary Dudley, Ph.D.; KELLY VAN CUREN, by her parents and next friends, Ted and Sallie Van Curen, on behalf of themselves and all others similarly situated,

Plaintiffs - Appellees,

No. 16-2172

and

ARC OF NEW MEXICO; AVA PEETS,

Plaintiffs Intervenors - Appellees,

v.

LOS LUNAS COMMUNITY PROGRAM; NEW MEXICO DEPARTMENT OF HEALTH; LYNN GALLAGHER, in her official capacity as Secretary of the New Mexico Department of Health; JILL MARSHALL, in her official capacity as Administrator for the Los Lunas Community Program; NEW MEXICO HUMAN SERVICES DEPARTMENT; BRENT EARNEST, in his official capacity as Secretary of the New Mexico Human Services Department; NEW MEXICO

Appellate Case: 16-2172 Document: 01019934522 Date Filed: 01/23/2018 Page: 2
PUBLIC EDUCATION DEPARTMENT; JOE D. CORDOVA, in his official capacity as Director of the New Mexico Vocational Rehabilitation Division,
Defendants - Appellants. _________________________________
Appeal from the United States District Court for the District of New Mexico
(D.C. No. 1:87-CV-00839-JAP-KBM) _________________________________
Jerry A. Walz (James J. Grubel appeared with him on the briefs), Walz and Associates, P.C., Albuquerque, New Mexico, for Defendants - Appellants.
Steven J. Schwartz, Center for Public Representation, Northampton, Massachusetts (Cathy Costanzo, Center for Public Representation, Northampton, Massachusetts; Peter Cubra, Albuquerque, New Mexico; Philip Davis, Albuquerque, New Mexico; Ann Sims, Los Lunas, New Mexico; Tim Gardner and Nancy Koenigsberg, Disability Rights New Mexico, Albuquerque, New Mexico, appeared with him on the briefs), for Plaintiffs Appellees.
_________________________________
Before MATHESON, McKAY, and McHUGH, Circuit Judges. _________________________________
McHUGH, Circuit Judge. _________________________________
This civil rights class action lawsuit was filed thirty years ago to challenge
various aspects of the institutionalization of developmentally disabled individuals at
two state-supported facilities in New Mexico. After a lengthy trial in 1990, the
district court ruled that Defendants—the two institutions and the individuals charged
with their operation—were violating class members’ federal constitutional and
statutory rights. The district court ordered the parties to develop a plan to cure the
2

Appellate Case: 16-2172 Document: 01019934522 Date Filed: 01/23/2018 Page: 3
violations, and the plan was implemented over the ensuing years through several consent decrees and other court-approved agreements (collectively, consent decrees). Although the two institutions closed in the 1990s, the district court has continued to monitor whether Defendants are in compliance with the obligations set forth in those consent decrees (decree obligations). And in the twenty-five years since the court’s initial ruling, the parties have agreed to, and the court has approved, numerous additional decree obligations of varying specificity with which Defendants must comply before the court will discontinue its oversight. As of the district court’s most recent order, Defendants had yet to fulfill over 300 decree obligations.
In August 2015, Defendants moved under Federal Rule of Civil Procedure 60(b)(5) to vacate all consent decrees and to terminate the court’s oversight, arguing that changed factual circumstances warrant the requested relief. The district court denied the motion in June 2016. Defendants appealed. We vacate the 2016 Order and remand for the district court to decide whether Defendants are currently violating class members’ federal constitutional or statutory rights and to reassess the equity of continuing federal oversight with the benefit of that determination.
I. BACKGROUND To provide context for this dispute, we begin with an overview of the procedural history of this multi-decade litigation. We then examine the district court’s ruling on Defendants’ Rule 60(b)(5) motion under the governing legal standard.
3

Appellate Case: 16-2172 Document: 01019934522 Date Filed: 01/23/2018 Page: 4
A. Litigation History In July 1987, twenty-one developmentally disabled individuals brought this class action lawsuit on behalf of themselves and others similarly situated. In their complaint, Plaintiffs challenged the conditions of institutionalization at Fort Stanton Hospital and Training School (Fort Stanton) and Los Lunas Hospital and Training School (Los Lunas), both of which were state-supported institutions for the developmentally disabled in New Mexico. Jackson v. Fort Stanton Hosp. & Training Sch. (Jackson II), 964 F.2d 980, 985 (10th Cir. 1992). Plaintiffs sought to correct the federal constitutional and statutory deficiencies of the conditions at Fort Stanton and Los Lunas. Id. They also requested relief permitting developmentally disabled persons residing at the institutions to live in integrated family-like settings within the community. Id. In June 1988, the district court allowed more than 125 parents and guardians of residents at Fort Stanton and Los Lunas to intervene. Id. Like Plaintiffs, Intervenors sought to bring the conditions at the two institutions into compliance with federal constitutional and statutory law. Id. But Intervenors opposed Plaintiffs’ efforts to require mandatory transfer of the institutions’ residents to communitybased facilities. Id. In June 1989, the district court certified a class of “all persons who at that time resided at [Fort Stanton] or [Los Lunas], all persons who would become residents of the institutions during the pendency of the action, and all persons who had been transferred from these two institutions to other facilities funded by [D]efendants.” Id.
4

Appellate Case: 16-2172 Document: 01019934522 Date Filed: 01/23/2018 Page: 5
1. The 1990 Order
After a prolonged trial, the district court issued, on December 28, 1990, an
extensive Memorandum Opinion and Order (1990 Order). Jackson v. Fort Stanton
Hosp. & Training Sch. (Jackson I), 757 F. Supp. 1243 (D.N.M. 1990), rev’d in part,
964 F.2d 980 (10th Cir. 1992). In the 1990 Order, the court “made detailed findings
of fact regarding almost every aspect of the conditions” at the two institutions,
Jackson II, 964 F.2d at 986, and determined that the conditions were statutorily and constitutionally deficient in eighteen areas, Jackson I, 757 F. Supp. at 1315–16.1 The
court concluded that Defendants were discriminating against class members in
violation of § 504 of the Rehabilitation Act of 1973 by failing to provide adequate
accommodations for severely handicapped residents capable of residing in a
community setting, while simultaneously serving less severely handicapped
individuals in the community. See id. at 1297–99; see also 29 U.S.C. § 794. And the
court ruled that Defendants were violating class members’ substantive due process
rights under the Fourteenth Amendment and Youngberg v. Romeo, 457 U.S. 307
(1982). See Jackson I, 757 F. Supp. at 1305–13. Specifically, the court ruled that
1 The eighteen areas of deficiencies are: (1) individual program plans; (2) medical records; (3) discharge plans; (4) data collection; (5) qualified mental retardation professional services; (6) behavior management; (7) use of physical restraints; (8) prevention of abuse of residents; (9) reduction of accidents and injuries to residents; (10) reports of abuse, accidents, and injuries; (11) staff supervision; (12) preservice training of staff; (13) in-service training of staff; (14) sufficiency of professional staff; (15) adaptive equipment; (16) functional and chronologically age appropriate programming; (17) coordination between residential areas and training program areas; and (18) inadequate space in training program areas. Jackson v. Fort Stanton Hosp. & Training Sch., 757 F. Supp. 1243, 1316–17 (D.N.M. 1990).
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Defendants were violating due process by failing to provide residents of the two
institutions with minimally adequate medical care; by failing “to provide reasonable
conditions of safety for the residents”; by physically restraining residents as a result
of understaffing; by failing to provide “minimally adequate training” to the residents;
and by failing to implement recommendations by interdisciplinary treatment teams
(Teams)—consisting of qualified professionals—that certain of these residents should be placed in community settings. Id. at 1306–07, 1312.2
The district court ordered the parties to work together in good faith “to
formulate by agreement a plan to correct” the eighteen areas of deficiencies at the
two institutions. Id. at 1315. The court required the parties to formulate a “detailed
written policy to be adopted by and followed at each institution,” to designate
persons responsible at each institution for implementing the correction plans, to
describe the “strategies to be adopted by each institution” in order to ensure
successful implementation of the correction plans, and to develop a “detailed
timetable establishing deadlines by which specific components of the correction plan
2 The district court further concluded that Defendants violated class members’ substantive due process rights by “considering the present availability of community services when determining whether to recommend the residents for community placement.” Jackson v. Fort Stanton Hosp. & Training Sch. (Jackson II), 964 F.2d 980, 986 (10th Cir. 1992). Accordingly, the district court permanently enjoined Defendants “from permitting [Teams] to take into account the availability or lack of availability of community services in reaching a recommendation as to whether a resident should be served in the community.” Id. On appeal, we reversed this portion of the 1990 Order, holding that the district court erred in ruling that due process required Defendants be enjoined from permitting Teams to consider the availability of community services when making treatment decisions. Id. at 992.
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for each deficiency will be achieved.” Id. at 1316. The court also set September 10, 1991, as the deadline for “complete correction of all deficiencies.” Id. And the court required the parties to describe the “[m]eans of assuring continued compliance with appropriate standards after correction of the deficiencies has been achieved.” Id.
The court further ordered Defendants to prepare, by March 1, 1991, “a written plan of transfer to an appropriate community setting for each resident whose [Team] has recommended placement in a community setting.” Id. at 1317. The court urged Plaintiffs to confer in good faith with Defendants to resolve any concerns Plaintiffs may have with the proposed plans and to amend the plans accordingly. Id. at 1316– 17. The court also afforded Plaintiffs the opportunity to “file with the court and serve on [D]efendants a statement of any remaining objections they may have to, and their proposals for amending, any particular plan.” Id.
Over the next several years, the district court entered various remedial orders and continued to oversee enforcement of those orders.3 See Jackson v. Los Lunas Ctr. (Jackson III), No. CIV 87-839-JAP/KBM, 2016 WL 9777237, at *2 (D.N.M. June 14, 2016).
3 In late 1993, Plaintiffs moved to amend their complaint by interlineation to assert a claim under the Americans with Disabilities Act (ADA). Plaintiffs’ proposed claim asserted that Defendants violated the ADA by excluding class members with disabilities from certain public programs and places of public accommodation and service and by segregating class members from their communities by congregating them in Fort Stanton and Los Lunas. In early 1994, the court granted Plaintiffs’ motion.
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2. The 1994 Stipulation Concerning Fort Stanton In 1994, New Mexico elected to close Fort Stanton by 1995 and to transfer all
of the residents at the institution to community-based services. In April 1994, the parties filed a joint motion under Rule 60(b) and Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), to modify portions of the district court’s 1990 Order, and to terminate the 1990 Order’s requirements as to Fort Stanton upon closure of that facility.
The district court found the parties’ joint motion “well-taken” and determined that “the proposed modification is consistent with the rights of the classmembers.” JA Vol. 3 at 582. As a result, the court relieved Defendants from making further improvements to Fort Stanton. In doing so, the court stated, “[i]n the event that all classmembers have been transferred from Fort Stanton to appropriate settings by July 31, 1995, this Order and all portions of the [1990 Order] concerning corrections of deficiencies . . . at Fort Stanton will hereby be terminated.” Id. at 584. 3. The 1997 Joint Stipulation on Disengagement (JSD) and Plan of Action
In October 1997, the parties presented the court with the JSD, a Plan of Action, and a joint motion requesting the court’s approval of the JSD. According to the parties’ stipulation, the JSD “does not seek a remedy for past violations of Plaintiffs’ constitutional and statutory rights.” JA Vol. 7 at 1403. It is instead designed to prevent future harm by ensuring that “Plaintiffs’ rights are not violated in the community settings.” Id. at 1394. To that end, the JSD “defines the further actions and requirements” that Defendants had to complete, “and the services,
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supports, and benefits” that Defendants had to provide to class members, in order for Defendants to comply with their obligations under the court’s existing orders. JA Vol. 4 at 622.
The JSD acknowledges Defendants’ “substantial efforts to develop a nondiscriminatory service system for persons with developmental disabilities and to provide appropriate community living arrangements and supports to classmembers.” Id. at 620. And it states Defendants had made “efforts to reasonably accommodate the residents of Fort Stanton and Los Lunas in community settings.” Id. at 621. As a result of those efforts, Fort Stanton closed in March 1995 when all its residents had transitioned to community settings, and Los Lunas closed in July 1997 when its last resident transitioned to the community.
The JSD also includes a process for judicial disengagement of Defendants’ decree obligations. And it identifies the “Continued Improvement of Community Services” as an area subject to disengagement. The Continuous Improvement obligations address “a quality improvement approach that requires Defendants to achieve a certain score on an annual audit.” Jackson III, 2016 WL 9777237, at *2 (internal quotation marks omitted). In the order denying Defendants’ Rule 60(b)(5) motion that is the subject of this appeal, the district court recognized that Defendants have achieved disengagement from fifty-six of the seventy Continuous Improvement obligations. Id.
The parties identified additional obligations in the Plan of Action, which Defendant Department of Health developed “to [e]nhance the Community Service
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System” for persons with developmental disabilities. JA Vol. 4 at 629. The Plan of Action contains “a narrative, desired outcomes, and specific activities for thirteen components of the community service system.”4 Id. Those thirteen components are contained in the Plan of Action’s thirteen attached appendices. Two more appendices were later added by consent of the parties.
After holding a fairness hearing, the district court issued, in December 1997, an order approving the JSD and the Plan of Action. The court noted the JSD “does not call for immediate dismissal of this lawsuit,” but instead “contemplates continued judicial oversight that could extend well into the next [millennium].” Id. at 801. The court further observed that the JSD “states the parties’ intention to fulfill most of the activities described in the Plan of Action by December 31, 1998, but makes an exception for certain requirements that may not be met until December 31, 2000.” Id. 4. The 2005 Stipulation to Resolve Motion for Noncompliance (Appendix A)
In May 2004, Plaintiffs moved for an order to show cause and for further remedial relief to require Defendants to comply with the court’s December 1997 order approving the JSD and the Plan of Action. In June 2004, Plaintiffs moved for an Order to Reengage Effective Case Management, Desired Outcome A, Under the Plan of Action.
4 The thirteen components are (1) quality enhancement, (2) community incident management system, (3) training, (4) management information systems, (5) individual service planning, (6) case management, (7) behavioral services, (8) crisis response, (9) sexuality, (10) supported employment, (11) assistive technology, (12) medical services, and (13) regional offices.
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In May 2005, the parties filed a Joint Stipulation on Agreed Actions to Comply with Joint Stipulation of Disengagement and Plan of Action and to Resolve Pending Motions to Show Cause and to Re-engage (2005 Stipulation). Attached to the 2005 Stipulation is “Appendix A[:] Agreed Actions to Address Contempt Motions” (Appendix A). JA Vol. 10 at 1903. The 2005 Stipulation states that it “is intended to obligate Defendants to take certain actions outside the Plan of Action as more specifically outlined in Appendix A.” Id. at 1898. “[T]he actions identified in Appendix A are intended to facilitate compliance with the JSD, to promote completion of . . . Audit Recommendations, to further address Case Management even though Plan of Action Desired Outcomes related to Case Management have been previously disengaged by an order of the Court and to address certain aspects of Vocational Rehabilitation.” Id. at 1898–99. The 2005 Stipulation clarifies that it is not intended to change or modify the terms of the JSD, which remain in effect. And it further states that Defendants “agree to implement all of the actions identified and listed in Appendix A,” and that the parties agree some of the Appendix A actions supplanted or modified activities listed in the Plan of Action. Id. at 1899.
Appendix A imposes 107 specific obligations on Defendants. Some of the obligations are identified as “complete,” while many obligations were scheduled to be completed by May 2006 or in 2007. Although those deadlines were not met, Defendants represent that one third of the activities in Appendix A have been disengaged. Jackson III, 2016 WL 9777237, at *4.
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The district court issued an order adopting the parties’ stipulation the same day the parties submitted it. 5. The 2012 Order
In mid-July 2010, Plaintiffs filed another Motion for Further Remedial Relief to Remedy Noncompliance. After full briefing, the district court denied the motion without prejudice so Plaintiffs could refile after an evidentiary hearing scheduled for June 2011.
On April 26, 2011—the day before the pretrial conference for the evidentiary hearing—Defendants filed a Rule 60(b)(5) motion to terminate all remaining orders and to conclude the court’s oversight. Defendants maintained that they have made more than a reasonable effort to comply with the court’s orders, that they have substantially complied with all existing orders, and that changed factual conditions make continuing compliance substantially more onerous. The court held the motion in abeyance and suspended briefing on it until the completion of the evidentiary hearing, which occurred from June 13 to June 17, 2011. Jackson III, 2016 WL 9777237, at *4. The court later terminated the pending Rule 60(b)(5) motion without deciding its merits. Id. at *4 n.12.
In November 2011, after the evidentiary hearing, Plaintiffs filed a Renewed Motion for Further Remedial Relief to Remedy Noncompliance. Plaintiffs argued that Defendants had failed to comply with the JSD, the Plan of Action, Appendix A, the Rehabilitation Act, and the ADA (collectively, decrees). Plaintiffs also asked the court to appoint a Jackson Compliance Administrator (Compliance Administrator) to
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oversee and ensure Defendants’ compliance. In October 2012, the district court
issued a 206-page, Findings of Fact and Conclusions of Law (2012 Order). The court
praised Defendants’ “innovations and progress,” but determined that Defendants
were still in substantial noncompliance with the decree obligations. JA Vol. 25 at
5303. Indeed, the court identified instances of noncompliance in the areas of health,
safety, and supported employment.
Based on the evidence before it, however, the court stated it “is unable to
conclude that Defendants have violated the Rehabilitation Act and ADA.” The court
explained:
To start with, the Court could not conclude that Defendants have discriminated against severely disabled class members with respect to the provision of health care services. In fact, the Court commends Defendants for accommodating those severely disabled class members who live in rural New Mexico by providing them meaningful access to health care services . . . and for developing more and better health care services directed to severely disabled persons. There is, however, a question as to whether Defendants violated the Rehabilitation Act and ADA by intentionally denying severely disabled class members supported employment services equivalent to those received by less severely disabled persons. Unfortunately, that question of disparate treatment cannot be analyzed at this time, but must be further briefed. On the other hand, the Court was unable to find a violation of the Rehabilitation Act and ADA when severely disabled class members choose to participate in segregated, congregate day services while less severely disabled persons more often chose to engage in supported employment.
Id. at 5304–05.
The court also noted that Defendants “are close to substantially complying
with [their] obligations,” and suggested that “the parties reconsider the descriptions
of the more broadly stated obligations and restate them in language that makes the
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obligations achievable.” Id. at 5303–04. After all, “many of the obligations are
described in language that is more aspirational in nature than operational.” Id. at
5304. Finally, the court granted Plaintiffs’ request to appoint a Compliance Administrator, who could “prod Defendants into final substantial compliance.”5 Id. at
5305.
6. The 2015 Revised Table IV
After the district court issued its 2012 Order, the parties were to develop a
consolidated remedial plan in the areas of health, safety, and supported employment
to address the identified violations. See Jackson III, 2016 WL 9777237, at *6. The
parties, counsel, the Compliance Administrator, and the court then worked together
for over two years before finalizing a consolidated plan. Id.
In June 2015, the parties jointly filed the 2015 Revised Table IV—which is a
final list of objectives in the areas of health, safety, and supported employment—
along with evaluative components (or disengagement criteria) and projected
completion dates for each objective. In November 2015, the parties jointly filed a
Stipulated Agreement on Disengagement Process for Revised Table IV. Under the
5 After the court issued its 2012 Order, Plaintiffs moved to modify the 2012 Order with respect to their claims under the Rehabilitation Act and the ADA. Plaintiffs asked the court to delete its findings and conclusions “on all discrimination claims regarding severity of disability and segregation,” to strike those portions of their November 2011 Renewed Motion for Remedial Relief to Remedy Noncompliance based on the Rehabilitation Act and the ADA, and to vacate the pertinent sections from its 2012 Order. JA Vol. 25 at 5308–09. The court denied the motion to modify, but, on its own initiative, granted Plaintiffs leave to file a motion seeking relief on their disparate treatment claim. Plaintiffs never filed a motion seeking relief on that claim.
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agreed-upon disengagement process, Defendants would submit a request for disengagement of a specific decree objective to the Compliance Administrator, who would then make a written “determination” on whether the disengagement criteria had been met. If the Compliance Administrator did not agree that the criteria had been met, then Defendants could withdraw their request for a determination or pursue a disengagement motion with the court.
The court noted that, as of May 2016, the Compliance Administrator had issued approximately three determinations on Defendants’ requests, with roughly 197 decree obligations remaining for which the Compliance Administrator had not issued preliminary determinations. Jackson III, 2016 WL 9777237, at *7 n.20. The court also stated Revised Table IV did not replace or modify existing decree obligations that were not the subject of Plaintiffs’ Renewed Noncompliance Motion and the court’s 2012 Order. Id. at *8. Thus, Defendants must demonstrate substantial compliance with the earlier outstanding decree obligations, in addition to those listed in Revised Table IV. Id. The court estimated that, between the JSD, the Plan of Action, Appendix A, and Revised Table IV, Defendants must still show substantial compliance with approximately 307 decree obligations. Id. at *9.
B. District Court’s Denial of Defendants’ Rule 60(b)(5) Motion In August 2015, Defendants filed their current motion under Rule 60(b)(5), arguing that factual circumstances have changed to the extent that the district court should vacate all remaining orders and conclude its oversight entirely. Defendants identified four changed factual circumstances they claim warrant vacatur of all
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pertinent decrees and termination of the case. First, Defendants argued that their
decree obligations have increased in number and complexity to the point they will
never be able to satisfy the “labyrinth of obligations” that are ever-changing, ever-
increasing, and not subject to objective measurement. Jackson III, 2016 WL
9777237, at *11.
Second, Defendants argued that some of their obligations are now outdated:
1) the JSD provisions about community practice improvements at [Los Lunas], which are no longer relevant as that institution closed in 1997; 2) the JSD formulate for disengagement of the Continuous Improvement outcomes, which is “convoluted,” “confusing,” and “unworkable”; 3) the JSD Continuous Improvement obligations that “are no longer programmatically sound and are no longer the desire” of [class members],” and that are not relevant to the present-day needs of [class members]; 4) the 1997 Plan of Action obligations that have been “morphed into new requirements” under Revised Table IV and that are “long detached from remedying the original constitutional issues”; and 5) Appendix A obligations that consist of vague and aspirational language, making disengagement impossible.
Id. at *12 (citations omitted).
Third, while conceding they have not substantially complied with all their
decree obligations, Defendants maintained they have remedied all constitutional
violations. Id. They argued they have thus attained the “objects” of the consent
decrees, and they have corrected all eighteen areas of deficiencies the district court
identified in its 1990 Order. Id. at 12–13. And if more is required, they insisted, this
case will remain a never-ending process of continuing quality control. Id. at 12.
Fourth, Defendants argued that the increased litigation costs inhibit New
Mexico’s ability to fund other important programs. Id. at *12–13. For instance, New
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Mexico has spent more than $50 million related to this litigation in the last eight years. Id. at *12. And, as of 2009, the average yearly cost to provide services to class members had risen from $67,290.00 to $135,535.00 per class member, while New Mexico’s $32,992.00 per capita income was the ninth lowest in the United States. Id. at *13.
Based on these four changed circumstances, Defendants contended that notions of federalism supported their request for relief. Indeed, they argued that federalism concerns are heightened here because the consent decrees have the effect of dictating state and local budget priorities and improperly depriving state officials of their designated legislative and executive powers. Id. at *13.
In an order issued in June 2016, the court ruled that Defendants had not met their burden to show the existence of a significant change in fact warranting vacatur of all pertinent orders and termination of the case. First, the court stated that “while Defendants’ obligations are onerous,” Defendants never identified when these asserted changed factual circumstances occurred; indeed, “[s]ome of the complained about developments have been happening for years.” Id. at *14.
Next, the court concluded that Defendants have not shown that the objects of the pertinent decrees have been attained. While the court recognized that the decrees were designed to restore class members to the position they would have occupied absent violations of federal law, the court stated that the “more specific ‘essential purposes’” of those decrees “are to provide class members with adequate health care, a reasonably safe environment, and supported employment opportunities.” Id.
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(quoting 2012 Order at 33). And based on Defendants’ concessions that they have not substantially complied with all the decree obligations, the court concluded that Defendants “have not fulfilled the essential purposes of the pertinent decrees.” Id.
Further, the court found Defendants’ assertion that they long ago remedied all constitutional violations to be “somewhat misleading.” Id. at *14–15. The court explained that the decree obligations in the JSD, the Plan of Action, and Appendix A “all flowed from [its] original findings of [federal] violations in 1990.” Id. at *15. And it noted that Revised Table IV was developed in response to the 2012 findings of approximately 100 decree violations. Id. The court stated that it “correlated its specific findings of violations in 2012 with enumerated requirements in the JSD, Plan of Action, and Appendix A.” Id. “Stated differently, the October 2012 violations evolved from compliance issues concerning obligations that first appeared in the JSD, Plan of Action, and Appendix A that Defendants had not yet satisfied.” Id.
The court also took issue with Defendants’ characterization of the 2012 Order as finding no ongoing violations of federal law. The court clarified that it had made no findings in its 2012 Order on continuing violations of federal law. Id. Although Plaintiffs had argued that Defendants violated the Rehabilitation Act and the ADA, the court ruled then that “there was not sufficient evidence of discrimination under” either Act. Id. But the court explained that it was not asked, and thus made no findings on, whether Defendants otherwise continued to violate class members’ constitutional rights. Id. With respect to the 2016 motion to terminate oversight, the district court likewise did not resolve the question of current compliance with federal
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law, stating it “is not in the position to assess, and, therefore, cannot conclude that Defendants are no longer violating constitutional or federal law.” Id. at *16. But “[b]ecause all of [the] outstanding obligations grew out of the Court’s 1990 Order and/or the related 2012 findings of violations,” the district court concluded that “Defendants have not convinced the Court that they have satisfied the essential purposes of the JSD, Plan of Action, Appendix A, and Revised Table IV.” Id. at 16.
The court then rejected Defendants’ claim that principles of federalism dictated the termination of oversight. The court acknowledged that the Supreme Court, in Horne v. Flores, 557 U.S. 433 (2009), stated that federalism concerns are heightened when a consent decree has the effect of dictating state budget allocations. Id. And it conceded that “increasing fees and costs associated with this litigation are detrimental to the State’s interest.” Id. But the court reasoned that “first and foremost,” the Horne Court asked if the State had fulfilled its obligations under federal law and achieved the objectives of the pertinent order. Id. The district court answered that question in the negative, stating: “Unlike Horne, Defendants have not shown that they have fulfilled their outstanding obligations, ‘by other means.’” Id. at *17 (quoting Horne, 557 U.S. at 439).
Ultimately, the court concluded that Defendants “have not come close to showing that vacatur of all of the orders and decrees is suitably tailored to the proposed changed circumstances.” Id. Nor have Defendants “demonstrated that a durable remedy is in place sufficient to justify vacatur of all of the Court’s orders.” Id. at *18. In other words, Defendants had not shown “that it is unlikely that the
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prohibited conditions or actions will recur.” Id. (quoting LaShawn A. ex rel. Moore v. Fenty, 701 F. Supp. 2d 84, 111 (D.D.C. 2010), aff’d sub nom. LaShawn A. ex rel. Moore v. Gray, 412 F. App’x 315 (D.C. Cir. 2011)). The court therefore denied the motion.
II. ANALYSIS On appeal, Defendants assert that the district court abused its discretion when it denied their Rule 60(b)(5) motion. Defendants contend significant changes in factual circumstances warrant termination of all consent decrees and of the court’s oversight. Specifically, they claim that compliance with the decrees has become substantially more onerous, the decrees have become unworkable due to unforeseen obstacles, and continued enforcement of the decrees would be detrimental to the public interest. They also argue that the district court misapplied Horne by requiring them to show attainment of specific essential purposes identified by the district court rather than compliance with federal law.
A. Appellate Jurisdiction Before addressing the merits, we must first resolve the parties’ dispute about whether the district court’s June 2016 order is a final, appealable order under 28 U.S.C. § 1291. We have appellate jurisdiction over “final decisions of the district courts of the United States.” 28 U.S.C. § 1291. “A ‘final decision’ is ordinarily one that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Hayes Fam. Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1003 (10th Cir. 2017) (quoting Catlin v. United States, 324 U.S. 229, 233
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(1945)); see also D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1444 (10th Cir. 1984) (en banc) (stating that § 1291 “has consistently been held to require the termination of all matters as to all parties and causes of action before an appeal may be taken”). “[P]ut differently,” a final decision is “one by which the district court ‘disassociates itself from a case.’” McClendon v. City of Albuquerque, 630 F.3d 1288, 1292 (10th Cir. 2011) (quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42 (1995)). Although “a final judgment is the paradigmatic ‘final decision’ appealable under § 1291,” not “every case with a final judgment in it is appealable.” Id. Instead, “every post-judgment decision must be assessed on its own terms to determine whether it is a final decision amenable to appeal.” Id. at 1293.
As relevant here, “[t]he general rules governing our review of a district court’s order granting or denying a Rule 60(b) motion are fairly well settled.” Stubblefield v. Windsor Capital Grp., 74 F.3d 990, 993 (10th Cir. 1996). “We have jurisdiction under 28 U.S.C. § 1291 to reach the merits of an appeal from a denial of a Rule 60(b) motion, provided the ruling or judgment the Rule 60(b) motion challenged was a final decision of the district court.” Id. (internal quotation marks omitted); see also McClendon, 630 F.3d at 1294 (recognizing that a district court’s denial of a Rule 60(b) motion “usually qualif[ies] as [a] final decision[] for purposes of § 1291 because [it] usually signal[s] that the district court’s business is done, that it has disassociated itself from the case, [and] that we may act without stepping on the district court’s toes”).
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Here, Defendants moved under Rule 60(b) to vacate all pertinent orders—the JSD, the Plan of Action, Appendix A, and Revised Table IV—and to terminate this case. The parties and district court agree that the pertinent orders are consent decrees. See Jackson III, 2016 WL 9777237, at *9. And all agree that consent decrees are, in effect, final decisions within the meaning of Rule 60(b). See Johnson v. Lodge #93 of Fraternal Order of Police, 393 F.3d 1096, 1101 (10th Cir. 2004) (“A consent decree is a negotiated agreement that is entered as a judgment of the court. Consent decrees . . . have characteristics both of contracts and of final judgments on the merits.” (internal quotation marks omitted)); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir. 1979) (noting that when “the underlying judgment was by consent [it] has the same force and effect for [Rule] 60(b) purposes as a judgment rendered on the merits following trial”). Because the pertinent orders are consent decrees that are final orders under Rule 60(b), it necessarily follows that the district court’s June 2016 order denying relief under Rule 60(b)(5) from those consent decrees is also final and appealable under § 1291. See Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir. 2004) (“Because consent decrees are considered final judgments we have jurisdiction to review the claims raised in the motion to vacate the consent decrees pursuant to 28 U.S.C. § 1291.” (citation omitted)).
Plaintiffs disagree. Relying on McClendon, they argue the district court’s June 2016 order is not a final, appealable order because it signals that more litigation is on the way. Plaintiffs believe future litigation will occur when they inevitably file another motion for remedial relief to remedy Defendants’ noncompliance with the
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consent decrees. In other words, the June 2016 Order is not final because the district court will continue to monitor Defendants’ compliance with its prior consent decrees (i.e., the JSD, the Plan of Action, Appendix A, and Revised Table IV).
But under McClendon, that the district court may have to continue to oversee Defendants’ compliance with the consent decrees is not enough to strip the June 2016 order of its status as a final decision. Instead, the relevant inquiry is whether the June 2016 order will result in more litigation on the merits in the district court. See McClendon, 630 F.3d at 1292–94. If the June 2016 order “ensures litigation on the merits will continue in the district court,” then it is not final under § 1291. Id. at 1293. But if it does not, and it is otherwise a denial of a Rule 60(b) motion challenging a final decision of the district court, then it is a final decision under § 1291. See id. at 1293–94; Jeff D., 365 F.3d at 850.
Under this formulation, the June 2016 order is a final, appealable decision. First, the June 2016 order does not signal that more litigation on the merits is on the way. In fact, the 1990 order, which followed a lengthy trial, resolved the merits of the litigation, and the district court retained jurisdiction only to oversee implementation of the ensuing consent decrees. Second, as discussed above, the 2016 order denied a Rule 60(b) motion challenging several final decisions of the district court.
To be sure, the June 2016 order does not result in the district court dissociating itself from the case. Much the opposite, it means the district court will, as it has since it issued the 1990 Order, continue to oversee Defendants’ compliance with the pertinent consent decrees. But this fact alone does not deprive us of jurisdiction.
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After all, each decree was a final, appealable decision under § 1291, even though the district court continued to oversee each decree’s implementation. See Johnson, 393 F.3d at 1101; V.T.A., 597 F.2d at 224. If the district court’s continued oversight would not have divested us of appellate jurisdiction then, it should not do so now.
In sum, the finality test asks whether the ruling challenged in the denied Rule 60(b) motion was “a final decision of the district court.” Stubblefield, 74 F.3d at 993. Here, that test is met. The June 2016 order is a final, appealable order and, thus, we have appellate jurisdiction under § 1291.
B. The Rule 60(b)(5) Motion We now turn to Defendants’ argument that termination of all pertinent orders and of this case is appropriate due to significant changes in factual circumstances. Our analysis proceeds in three parts. First, we discuss the relevant standard of review. Second, we outline the law governing Rule 60(b)(5) motions in institutional reform litigation. Third, we apply that standard to the facts of this case. 1. Standard of Review We review a district court’s denial of a Rule 60(b) motion for an abuse of discretion. Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). In the Rule 60(b) context, we review the district court’s ruling only “to determine if a definite, clear or unmistakable error occurred below.” Zurich N. Am. v. Matrix Serv., Inc. 426 F.3d 1281, 1289 (10th Cir. 2005) (internal quotation marks omitted). “A reviewing court may reverse only if it finds a complete absence of a reasonable basis and is certain that the decision is wrong.” Id. (internal quotation marks omitted). “A
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clear example of an abuse of discretion exists where the trial court fails to consider the applicable legal standard or the facts upon which the exercise of its discretionary judgment is based.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). An appeal from the denial of a Rule 60(b) motion raises for our review only the district court’s order denying the motion, and not the underlying judgment itself. Servants of Paraclete, 204 F.3d at 1009. 2. Legal Standard
A Rule 60(b) motion for relief from judgment is an extraordinary remedy and may be granted only in exceptional circumstances. Id.; see V.T.A., Inc., 597 F.2d at 223 n.7 (10th Cir. 1979). The motion may not be used as a substitute for direct appeal. See Servants of Paraclete, 204 F.3d at 1009.
Rule 60(b)(5) permits relief from a judgment or order if “[1] the judgment has been satisfied, released, or discharged; [2] it is based on an earlier judgment that has been reversed or vacated; or [3] applying it prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5) (emphasis added). Use of the disjunctive “or” demonstrates “that each of the provision’s three grounds for relief is independently sufficient and therefore that relief may be warranted even if [a movant has] not ‘satisfied’ the original order.” Horne v. Flores, 557 U.S. 433, 454 (2009). Defendants seek relief on the ground that ongoing enforcement of the pertinent decrees is no longer equitable.
We now turn to a discussion of the limits of federal involvement in institutional reform litigation and of the two leading Supreme Court cases addressing
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the no-longer-equitable basis for Rule 60(b)(5) relief: Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), and Horne v. Flores, 557 U.S. 433 (2009).
a. Consent Decrees Generally A consent decree “entered in federal court must be directed to protecting federal interests.” Frew v. Hawkins, 540 U.S. 431, 437 (2004). The consent decree “must spring from, and serve to resolve, a dispute within the court’s subject-matter jurisdiction.” Id. (citing Firefighters v. Cleveland, 478 U.S. 501, 525 (1986)). Equity requires a federal court fashioning and implementing a consent decree to focus on three factors. See Milliken v. Bradley, 433 U.S. 267, 280 (1977). First, a federal consent decree must “be remedial in nature” and thus “designed as nearly as possible to restore the victims of [illegal] conduct to the position they would have occupied in the absence of such conduct.” Id. at 280 (internal quotation marks omitted). Second, the nature and scope of the remedy provided by a federal consent decree depends on the nature and scope of the federal-law violation. Id. at 280, 282. This means a “federal-court decree[] must directly address and relate to the [federallaw] violation itself.” Id. at 282. And it must be “tailored to cure the condition that offends” federal law. Id. (internal quotation marks omitted). But a decree exceeds appropriate limits if it is “aimed at eliminating a condition that does not violate [federal law] or does not flow from such a violation.” Id. Third, federal courts “must take into account the interests of state and local authorities in managing their own affairs,” consistent with the demands of federal
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law. Id. at 280–81. Indeed, principles of federalism require that federal courts give “significant weight to the views of government officials,” and that “state officials with front-line responsibility for administering [a state program] be given latitude and substantial discretion.” Frew, 540 U.S. at 442 (internal quotation marks omitted).
Importantly, federal consent decrees are temporary solutions that may be kept in place only as long as necessary to cure an unlawful condition. See Missouri v. Jenkins, 515 U.S. 70, 88-89 (1995). The Supreme Court has cautioned that federal courts should not continue their “oversight of state programs for long periods of time . . . absent an ongoing violation of federal law.” Frew, 540 U.S. at 441. Thus, a “federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State’s obligations is returned promptly to the State and its officials.” Id. at 442. Keeping a consent decree in place any longer than necessary to assure compliance with federal law risks violating principles of federalism and “improperly depriv[ing] future officials of their designated legislative and executive powers.” Id. at 441; see also John B v. Emkes, 710 F.3d 394, 398 (6th Cir. 2013) (stating that a consent decree “may remain in force only as long as it continues to remedy a violation of federal law”); United States v. Washington, 573 F.3d 701, 710 (9th Cir. 2009) (“The [Supreme] Court has repeatedly reminded us that institutional reform injunctions were meant to be temporary solutions, not permanent interventions, and could be kept in place only so long as the violation continued.”).
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b. Rufo v. Inmates of Suffolk County Jail In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 372 (1992), pretrial detainees held at a county jail in Massachusetts sued the county, state, and related entities, claiming they were being held under unconstitutional conditions. The district court ruled that conditions at the jail were constitutionally deficient; thus, the district court enjoined the state defendants from, among other things, housing two or more inmates in a single cell. Id. at 372–73. When conditions at the jail did not improve, the district court ordered the state defendants to renovate another existing facility to serve as a substitute detention center. Id. at 373–74. The First Circuit affirmed and ordered that the jail be closed unless the state defendants timely presented a plan to create a constitutionally adequate facility for the pretrial detainees. Id. at 374. Days before the deadline to present a plan for a new facility, the state defendants submitted a plan to create a substitute facility with only single-occupancy cells, and the district court entered a consent decree obligating the state defendants to construct a facility containing 309 single occupancy rooms. Id. at 374–75. When the inmate population outpaced population projections, the parties moved the district court to modify the decree to provide a facility with an increased number of cells. Id. at 375–76. The district court granted the modification on the condition that “singlecell occupancy is maintained” under the new plan for the facility. Id. at 376. The state defendants again moved to modify the consent decree, this time to allow for double bunking of male detainees in roughly one-third of the cells in the new jail. Id. The state defendants attributed the need for a second modification to a
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further increase in the population of pretrial detainees. Id. The state defendants argued that the continued increase in the pretrial detainee population—a change in fact—coupled with a change in law regarding the constitutionality of double bunking pretrial detainees, see Bell v. Wolfish, 441 U.S. 520 (1979), supported the requested modification. Rufo, 502 U.S. at 376. The district court denied the motion, in part, because the state defendants failed to make a “clear showing of [a] grievous wrong evoked by new and unforeseen conditions.” Id. at 377 (quoting United States v. Swift & Co., 286 U.S. 106, 119 (1932)). The district court explained that modification would violate a primary purpose of the decree—to provide for a separate cell for each detainee—although it never decided whether double celling would be unconstitutional. Id. at 377. The First Circuit affirmed. Id.
The Supreme Court granted certiorari and remanded so the lower courts could apply the proper standard to modification requests under Rule 60(b)(5). See id. at 393. The Court began by emphasizing the need for flexibility when considering a motion for modification of a consent decree in institutional reform litigation. Id. at 380–83. After all, consent decrees in such cases “often remain in place for extended periods of time, [meaning] the likelihood of significant changes occurring during the life of the decree is increased.” Id. at 380. The Court further explained that the experience of the Courts of Appeals “demonstrated that a flexible approach is often essential to achieving the goals of reform litigation,” as the Courts of Appeals observed that consent decrees frequently “reach beyond the parties involved directly
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in the suit and impact [] the public’s right to the sound and efficient operation of its institutions.” Id. at 381 (internal quotation marks omitted).
The Court then outlined what a movant must show when seeking modification of a consent decree under Rule 60(b)(5). The party seeking modification of a consent decree bears the burden of showing that “a significant change either in factual conditions or in law” warrants revision of the decree. Id. at 384. Changed factual circumstances may warrant modification of a consent decree when the changed circumstances “make compliance with the decree substantially more onerous,” when “a decree proves to be unworkable because of unforeseen obstacles,” or when “enforcement of the decree without modification would be detrimental to the public interest.” Id. at 384. A party need not show that a change in fact was both unforeseen and unforeseeable. Id. at 385.
Conversely, a court should deny a party’s request for a modification under Rule 60(b)(5) if the party merely establishes that “it is no longer convenient [for the moving party] to live with the terms of a consent decree.” Id. at 383. Furthermore, a modification should be denied “where a party relies upon events that actually were anticipated at the time it entered into a decree.” Id. at 385. The Court explained:
If it is clear that a party anticipated changing conditions that would make performance of the decree more onerous but nevertheless agreed to the decree, that party would have to satisfy a heavy burden to convince a court that it agreed to the decree in good faith, made a reasonable effort to comply with the decree, and should be relieved of the undertaking under Rule 60(b). Id.
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If a party meets its burden of establishing a change in fact that warrants modification of a consent decree, the district court should examine “whether the proposed modification is suitably tailored to the changed circumstance.” Id. at 391. This analysis focuses on whether the proposed modification “is tailored to resolve the problems created by the change in circumstances.” Id. In performing this analysis, a court must bear in mind that the public interest and principles of federalism require a federal court to defer to state or local government officials and to consider a state or local government’s financial constraints. Id. at 392. But a modification “must not create or perpetuate a constitutional violation.” Id. at 391. Additionally, in accord with the requirement that a modification be tailored to the change in circumstances, the existence of a change in circumstances often will not justify a modification to the consent decree that lowers the terms of the consent decree to “the constitutional floor.” Id. In this sense, a court modifying a consent decree may “do no more” to the consent decree than is warranted by the change in circumstances and “should not ‘turn aside to inquire whether some of the provisions of the decree . . . could have been opposed with success if the defendants had offered opposition.’” Id. at 391-92 (quoting United States v. Swift & Co., 286 U.S. 106, 116-17 (1932)). Thus, even where a change in circumstances occurs, the plaintiff will retain those benefits secured under the consent decree that are not impugned by the change in circumstances. See id.
The Court then instructed the district court on remand to first consider whether the purported change in factual circumstances—the upsurge in the pretrial detainee
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population—was foreseen by the state defendants. Id. at 385. But the Court also
advised that the district court erred by concluding that modification was
inappropriate simply because it would not provide for a separate cell for each
detainee. The Court explained:
Even if the decree is construed as an undertaking by [the state defendants] to provide single cells for pretrial detainees, to relieve [them] from that promise based on changed conditions does not necessarily violate the basic purpose of the decree. That purpose was to provide a remedy for what had been found, based on a variety of factors, including double celling, to be unconstitutional conditions obtaining in the [jail]. If modification of one term of a consent decree defeats the purpose of the decree, obviously modification would be all but impossible. That cannot be the rule. The District Court was thus in error in holding that . . . modification of the single cell requirement was necessarily forbidden.
Id. at 387.
c. Horne v. Flores
In Horne v. Flores, 557 U.S. 433, 439 (2009), the Supreme Court was again
tasked with determining whether the lower courts applied the correct standard in
denying a Rule 60(b)(5) motion. There, a class of English Language-Learner (ELL)
students and their parents in Arizona sued the state for violating the Equal
Educational Opportunities Act of 1974 (EEOA), which requires a state “to take
appropriate action to overcome language barriers that impede equal participation by
its students in its instructional programs.” Id. at 438–39. After a trial, the district
court concluded that “defendants were violating the EEOA because the amount of
funding the State allocated for the special needs of ELL students (ELL incremental
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funding) was arbitrary and not related to the actual funding needed to cover the costs of ELL instruction.” Id. at 441.
Over the next several years, the district court entered various additional orders and injunctions aimed at improving the state’s ELL incremental funding. Id. For instance, the court ordered the state to “prepare a cost study to establish the proper appropriation to effectively implement ELL programs.” Id. (internal quotation marks omitted). And it later required the state to, within ninety days of the order’s issuance, “appropriately and constitutionally fund the state’s ELL programs taking into account the [court’s] previous orders.” Id. After the state failed to comply with these orders, the district court held the state in contempt and imposed a fine for every day until the state came into compliance. Id. at 442.
After accruing over $20 million in fines, the state legislature passed HB 2064, a bill that was designed “to implement a permanent funding solution to the problems identified” by the district court. Id. The Governor allowed HB 2064 to become law without her signature, and the state presented it to the district court for approval. Id. at 443. Because the Governor did not approve of HB 2064’s funding provisions, two members of the state legislature intervened to support the bill. Id. Intervenors then moved to “purge” the district court’s contempt order in light of HB 2064 and, in the alternative, for relief under Rule 60(b)(5) based on changed circumstances. Id. The district court denied the Rule 60(b)(5) motion because HB 2064 “did not establish a funding system that rationally relates funding available to the actual costs of all elements of ELL instruction.” Id. at 444 (internal quotation marks omitted). The
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Ninth Circuit affirmed, stating that “relief would be appropriate only if petitioners had shown either that there are no longer incremental costs associated with ELL programs in Arizona or that Arizona had altered its funding model.” Id. at 445 (internal quotation marks omitted).
The Supreme Court reversed. The Court first reiterated that a party may move to modify or vacate an order under Rule 60(b)(5) if “‘a significant change either in factual conditions or in law’ renders continued enforcement ‘detrimental to the public interest.’” Id. at 447 (quoting Rufo, 502 U.S. at 384). “[O]nce a party carries this burden, a court abuses its discretion when it refuses to modify an injunction or consent decree in light of such changes.” Id. at 447–49 (internal quotation marks omitted).
The Court then stressed that Rule 60(b)(5) serves an important function in institutional reform litigation for three reasons. Id. First, injunctions and consent decrees in such cases often remain in place for many years, “and the passage of time frequently brings about changed circumstances” (e.g., “changes in the nature of the underlying problem” and “new policy insights”) “that warrant reexamination of the original judgment.” Id. at 448. Second, injunctions and decrees in reform cases tend to “raise sensitive federalism concerns” because such cases often “involve[] areas of core state responsibility.” Id. And those federalism concerns “are heightened when . . . a federal court decree has the effect of dictating state or local budget priorities.” Id.
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Recognizing that states have limited resources, the Court expressed sensitivity toward the fact that “[w]hen a federal court orders that money be appropriated for one program, the effect is often to take funds away from other important programs.” Id. Third, seemingly endless injunctions and decrees in these types of cases commonly “bind state and local officials to the policy preferences of their predecessors and may thereby ‘improperly deprive future officials of their designated legislative and executive powers.’” Id. at 449 (quoting Frew, 540 U.S. at 441). Successor officials may bring new insights and solutions to ongoing “problems of allocating revenues and resources,” but overbroad or outdated decrees may inhibit their ability to respond to those problems and fulfill their duties as democraticallyelected officials. Id. In sum, a long-lasting and unmodified consent decree not only raises serious federalism concerns but it may also restrain the opportunities for the class protected by the decree because an overbroad and unyielding decree limits financial resources available to governments for the implementation of new innovations and policies that may serve the needs of the protected class better than the requirements embodied in the decree.
For the foregoing reasons, courts must take a flexible approach to motions under Rule 60(b)(5) where the moving party seeks relief from a long-lasting decree. Id. at 450. This flexible approach “seeks to return control to state and local officials as soon as a violation of federal law has been remedied.” Id. at 451. To that end, courts must be wary “that ‘federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate federal law or does not flow
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from such a violation.’” Id. at 450 (quoting Milliken, 433 U.S. at 282). “‘If a federal consent decree is not limited to reasonable and necessary implementations of federal law,’ it may ‘improperly deprive future officials of their designated legislative and executive powers.’” Id. (quoting Frew, 540 U.S. at 441).
Accordingly, “a critical question in [the] Rule 60(b)(5) inquiry is whether the objective of the [challenged decree] has been achieved.” Id. (citing Frew, 540 U.S. at 442). “If a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper.” Id. (citing Milliken, 433 U.S. at 282).
Applying these standards, the Court in Horne concluded that the Ninth Circuit erred in two ways. First, instead of applying a flexible approach, the Ninth Circuit “used a heightened standard that paid insufficient attention to federalism concerns.” Id. at 451. Based on the federalism concerns, application of a flexible approach was “critical.” Id. at 452. The Court instructed that application of the flexible approach requires that “‘[w]hen the objects of the decree have been attained’—namely, when [compliance with federal law] has been achieved—‘responsibility for discharging the State’s obligations must be returned to the State and its officials.’” Id. (quoting Frew, 540 U.S. at 442).
Second, the Court held that instead of “inquiring broadly into whether changed conditions in [the schools] provided evidence of an ELL program that complied with the EEOA,” id. at 451, the Ninth Circuit performed an inquiry that was “too narrow,” “focus[ing] almost exclusively on the sufficiency of incremental funding,” id. at 452. But the narrow inquiry—focusing on whether a prior judgment has been satisfied—
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addresses only one of the bases for relief under Rule 60(b)(5) and fails to consider whether relief is warranted because “applying [a judgment] prospectively is no longer equitable.” Id. at 454. For purposes of the equity basis for modification, the Ninth Circuit’s narrow inquiry also overlooked the possibility that specific items in an initial decree may, with the passage of time and changing circumstances, no longer be the only way, or even the best way, to attain the objects of the decree and assure compliance with federal law. See id. at 447–48, 451–54.
To determine whether relief was proper under the equity basis for modification, the Ninth Circuit “needed to ascertain whether ongoing enforcement of the original order was supported by an ongoing violation of federal law.” Id. at 454 (citing Milliken, 433 U.S. at 282); see also id. at 468 (repeating that a proper Rule 60(b)(5) inquiry should ask whether the school district “is now providing equal educational opportunities to ELL students”).
The Court explained that while the Ninth Circuit focused on ELL incremental funding, “funding is simply a means [of complying with the EEOA], not the end (here, the EEOA).” Id. at 454–55. By requiring the state “to demonstrate ‘appropriate action’ [mandated by the EEOA] through a particular funding mechanism, the Court of Appeals improperly substituted its own educational and budgetary policy judgments for those of the state and local officials to whom such decisions are properly entrusted.” Id. at 455. Stated otherwise, the Ninth Circuit should have “consider[ed] the broader question whether, as a result of important changes during
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the intervening years, the State was fulfilling its obligation under the EEOA by other means.” Id. at 439.
The Court then remanded for the district court to make “up-to-date” findings and to consider whether four changed circumstances advanced by the defendants warranted releasing the state from the earlier judgment. See id. at 469–70.
d. Applicability of Horne & Tension between Horne and Rufo As opposed to the present case that features a Rule 60(b)(5) motion seeking a modification of a consent decree, Horne involved a Rule 60(b)(5) motion seeking a modification of a court-issued injunction, as well as additional orders crafted by the district court. See id. at 441. Lower courts have reached different conclusions regarding the force of Horne in the context of a Rule 60(b)(5) motion seeking modification of a consent decree. See Burt v. Cty. of Contra Costa, 2014 WL 253010, at *18–19 (N.D. Cal. Jan. 22, 2014) (discussing opposing conclusions by district courts that have analyzed extent of Horne’s applicability to consent decrees); see also Evans v. Fenty, 701 F. Supp. 2d 126, 165–67, 170–71 (D.D.C. 2010) (questioning applicability of Horne to modification of consent decree and relying primarily on inquiry established in Rufo and Frew when evaluating propriety of enforcement beyond minimum requirements of federal law). The Sixth Circuit, however, did not express any hesitation regarding applying Horne to a Rule 60(b)(5) motion seeking modification of a consent decree. See John B., 710 F.3d at 411–14. In fact, the Sixth Circuit, in John B., concluded that where a defendant subject to a consent decree in institutional reform litigation has implemented a durable remedy to cure the federal
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violation underlying the decree, Horne’s admonition that continued enforcement of the decree is “improper” controls and requires vacatur of the consent decree. Id. at 411–13.
Three considerations compel us to join the Sixth Circuit’s apparent conclusion that Horne fully applies to a Rule 60(b)(5) motion seeking modification of a consent decree. First, while the parties may form the essential terms of a consent decree, as we noted earlier when discussing our jurisdiction over this appeal, a district court’s order approving the consent decree is tantamount to a final judgment on the merits. See supra 22 (citing Johnson, 393 F.3d 1096, 1101 (10th Cir. 2004)).
Second, when discussing the proper inquiries for evaluating a Rule 60(b)(5) motion in institutional reform litigation, Horne uses “consent decree” or “decree” interchangeably with injunction and court order even though Horne involved requested modifications to an injunction and several court orders but did not involve a consent decree. See Horne, 557 U.S. at 448–50. From this, we glean that the Court considers a consent decree and an injunctive order equivalent for purposes of evaluating a Rule 60(b)(5) motion for modification. And had the Court intended to limit Horne to institutional reform litigation involving only injunctions and court crafted orders, it could have easily done so explicitly. The Court, however, did not so limit its holding, and the plain language of Horne supports the conclusion that the decision applies with equal force to all institutional reform cases, including those cases featuring consent decrees.
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Third, the same federalism concerns at the heart of Horne are present in institutional reform cases featuring consent decrees. Admittedly, the acquiescence of state or local governmental officials to the terms of a consent decree might diminish federalism concerns at the inception of the decree. But where, as here, a consent decree remains in effect for decades, enforcement of the decree necessarily interjects a federal court into local affairs and binds local governmental officials who were not parties to the consent decree. The federal court, thereby, effectively limits the democratic process by restricting the array of resources available to the governmental officials for the enactment of other policies.
Applying Horne to Rule 60(b)(5) motions for modifications to consent decrees does not come without complication. Notably, an apparent tension exists between Horne and Rufo with respect to the appropriate course of action where a party seeking modification has brought itself into compliance with federal law but has not substantially complied with the specific terms of the consent decree or court order. Compare Horne, 557 U.S. at 450 (“If a durable remedy [addressing the federal law violation] has been implemented, continued enforcement of the order is not only unnecessary, but improper.”), with Rufo, 502 U.S. at 391 (“A proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor.”).
To the extent Rufo and Horne differ as to the appropriate course of action when a party seeks a Rule 60(b)(5) modification to an order in an institutional reform case, two considerations cause us to follow the course outlined in Horne when the
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significant change advanced as the basis for Rule 60(b)(5) modification is the defendant’s alleged ongoing compliance with federal law. First, Rufo involved a proposed modification to a plan that, if faithfully implemented over time, would eventually cure the federal law violation. See id. at 376 (describing requested modification at issue as allowing for some double bunking in new facility yet to be completed or opened). As such, unlike in Horne where the defendants alleged that they had remedied the federal law violation, the defendants in Rufo had not yet remedied the issues with overcrowding and neglect in maintaining the jail that gave rise to the litigation. And, where the Rufo defendants had not remedied the issues giving rise to the litigation, it naturally follows that the Rufo defendants, unlike the Horne defendants, were not in a position to establish the implementation of a durable remedy. Further, nothing in Rufo suggests that the proposed modification would equate with, or for that matter exceed, the constitutional floor. Thus, while Rufo is undoubtedly informative on many issues surrounding the Rule 60(b)(5) standard for modifying a consent decree, its statement about not striving to modify a consent decree to the constitutional floor is not germane to its decision.
Second, Horne represents the Court’s most recent proclamation regarding the standard for obtaining a modification to an order in institutional reform litigation. And, as noted by scholars, Horne is the latest ruling in a trend of decisions that lower the threshold for defendants to obtain a modification to, or the dissolution of, orders in long-lasting institutional reform cases. Jason Parkin, Aging Injunctions & the Legacy of Institutional Reform Litigation, 70 Vand. L. Rev. 167, 193–94 & n.136
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(2017) (citing Catherine Y. Kim, Changed Circumstances: The Federal Rules of Civil Procedure and the Future of Institutional Reform Litigation After Horne v. Flores, 46 U.C. Davis L. Rev. 1435, 1466 (2013), and Mark Kelley, Note, Saving 60(b)(5): The Future of Institutional Reform Litigation, 125 Yale L.J. 272, 307 (2015)).
As we read Horne, if a party seeking modification to a consent decree demonstrates a significant change in circumstances, the district court must take a flexible approach and consider whether the moving party has implemented a durable remedy to cure the federal law violation underlying the institutional reform litigation. See John B., 710 F.3d at 412 (“In applying this flexible approach, we must answer two questions: first whether the state has achieved compliance with the federal-law provisions whose violation the decree sought to remedy; and second, whether the State would continue that compliance in the absence of continued judicial supervision.”); see also Petties ex rel. Martin v. District of Columbia, 662 F.3d 564, 569, 571 (D.C. Cir. 2011) (applying Horne’s statement that district court “ought to have ‘applied a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied’” to context of requested modification to preliminary injunction (quoting Horne, 557 U.S. at 450– 51)). The district court, by way of its role in overseeing the institutional reform litigation for many years, is in the best position to evaluate both whether a party has complied with federal law and, if so, whether the party is committed to ongoing compliance with federal law in the absence of oversight by the federal court. See Petties, 662 F.3d at 571 (recognizing that district court’s management of litigation
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“for many years” places district court in position to assess likelihood of compliance with federal law absent oversight). Likewise, the district court is also in the best position to assess whether the litigation has taken on a life of its own and now advances a purpose removed from remedying the initial violation(s) or whether continued oversight remains necessary to ensure compliance with federal law.
Finally, we note that when applying the flexible approach and evaluating whether a moving party implemented a durable remedy, a district court must consider the totality of the moving party’s efforts to demonstrate sustained compliance with federal law. In this respect, there is not a single path, such as the adoption of new legislation, by which a party can demonstrate the implementation of a durable remedy. See id., 662 F.3d at 569–71 (remanding for determination of whether adoption of new internal policies, coupled with improved record of compliance with federal law, satisfied durable remedy requirement). Several of the desegregation cases, although arguably not directly on point, highlight the broad inquiry a district court must undertake when determining a party’s commitment to abiding by federal law. Specifically, factors that a district court may consider include the party’s commitment to compliance, the duration of the party’s compliance with federal law, and whether or not the effects of the violation of federal law persist. See Freeman v. Pitts, 503 U.S. 467, 490 (1992) (holding that the district court may relinquish desegregation control in incremental stages, and stating that: “one of the prerequisites to relinquishment of control in whole or in part is that a school district has demonstrated its commitment to a course of action that gives full respect to the equal
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protection guarantees of the Constitution”); id. at 491 (listing relevant factors in determining whether partial withdrawal of federal desegregation oversight is appropriate as including whether the school district has demonstrated “its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for the judicial intervention in the first instance”); Bd. of Educ. of Oklahoma City Pub. Sch. v, Dowell, 498 U.S. 237, 249–50 (1991) (stating that “[t]he district court should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable” while also considering the lengthy period of time during which the Board complied with the federal court’s oversight).
e. Summary From the foregoing discussion of Rufo, Horne, and other institutional reform litigation cases, several principles emerge that are critical to our analysis of whether Defendants are entitled to relief under Rule 60(b)(5). First, a motion for relief from a consent decree based on an assertion that “applying it prospectively is no longer equitable” demands a different focus than a motion based on an assertion that “the judgment has been satisfied, released or discharged.” See Fed. R. Civ. P. 60(b)(5); Horne, 557 U.S. at 454. With respect to the latter ground for relief, it is appropriate for a court to focus on whether the movant has satisfied each obligation set forth in the consent decree. But where, as here, the movant contends that changed circumstances have rendered further enforcement of
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the consent decree no longer equitable, the inquiry is whether the movant has shown (a) that a significant change in factual circumstances or in law warrants revision of the decree, and (b) that the requested modification is suitably tailored to the changed circumstance. Rufo, 502 U.S. at 383–84, 391. A movant may establish that changed factual circumstances warrant modification when (i) the changed circumstances “make compliance with the decree substantially more onerous,” (ii) a “decree proves to be unworkable because of unforeseen obstacles,” or (iii) “enforcement of the decree without modification would be detrimental to the public interest.” Id. at 384. It is an abuse of discretion for a district court to deny a motion for modification where the moving party meets this burden. Horne, 557 U.S. at 447.
Second, a flexible approach to evaluating the equities of such a motion is crucial where, as in this case, institutional reform is sought. Horne, 557 U.S. at 450; Rufo, 502 U.S. at 380–81. Consent decrees in reform cases often remain in effect for extended periods, thereby increasing the prospect that a significant change in factual circumstances will occur. Horne, 557 U.S. at 447–48; Rufo, 502 U.S. at 380. Consent decrees also tend to restrict state and local officials’ ability to implement new ideas to old problems. Horne, 557 U.S. at 449; Rufo, 502 U.S. at 381. And they raise sensitive federalism concerns that are heightened when a decree effectively dictates state or local budget priorities. Horne, 557 U.S. at 448.
Third, when a party seeks termination or vacatur of a consent decree based on the inequity of continued oversight, a court must determine not only whether changed circumstances exist, but also whether the “objective” of the decree—that is, whether
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compliance with federal law—has been attained. See id. at 450 (noting that “a critical question in [the] Rule 60(b)(5) inquiry is whether the objective of the District Court’s [initial] order—i.e., satisfaction of the EEOA’s ‘appropriate action’ standard—has been achieved” (emphasis added) (citing Frew, 540 U.S. at 442)); id. at 454 (concluding that the Ninth Circuit “needed to ascertain whether ongoing enforcement of the original order was supported by an ongoing violation of federal law” (emphasis added) (citing Milliken, 433 U.S. at 282)); id. at 468 (reiterating that the Ninth Circuit should have asked whether the school district was meeting the EEOA’s “appropriate action” requirement); see also Milliken, 433 U.S. at 282 (explaining that a decree must be “tailored to cure the condition that offends” federal law and seek to restore victims of unlawful conduct to the position they would have occupied absent the unlawful conduct (internal quotation marks omitted)); John B., 710 F.3d at 411 (stating that a court considering a Rule 60(b)(5) motion “must determine whether ‘ongoing enforcement of the original order [is] supported by an ongoing violation of federal law’” (alteration in original) (emphasis added) (quoting Horne, 557 U.S. at 454)); Washington, 573 F.3d at 710 (interpreting Horne and Rufo as requiring a court to “consider whether the purpose of the decree” has been achieved). So where the basis of the Rule 60(b)(5) motion is that continued enforcement of the decree is no longer equitable, instead of inquiring narrowly whether the specific obligations of a consent decree have been attained, the court must broadly inquire whether the party obligated by the decree is at that time in compliance with federal law. Horne, 557 U.S. at 451–52; see also id. at 439 (stating that the lower courts needed to ask the
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broader question whether the state “was fulfilling its obligation under the EEOA by other means”). And once compliance with federal law has been attained, a court must return control over the program to the state and its officials, provided a durable remedy is in place. See id. at 452 (“‘When the objects of the decree have been attained’—namely, when EEOA compliance has been achieved—‘responsibility for discharging the State’s obligations [must be] returned promptly to the State and its officials.’” (alteration in original) (quoting Frew, 540 U.S. at 442)); see also Frew, 540 U.S. at 442 (“The federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State’s obligations is returned promptly to the State and its officials.” (emphasis added)); Washington, 573 F.3d at 709 (“The Constitution does not establish the district courts as permanent administrative agencies.”).
Last, the existence of a durable remedy may warrant disengagement of judicial oversight. The Horne Court’s single reference to a durable remedy states:
[A] critical question in this Rule 60(b)(5) inquiry is whether the objective of the District Court’s [initial] order—i.e., satisfaction of the EEOA’s “appropriate action” standard—has been achieved. See [Frew,] 540 U.S. at 442. If a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper. See Milliken, [433 U.S.] at 282. Horne, 557 U.S. at 450. From the latter sentence, it is fair to conclude that if a durable remedy is in place, then the movant has attained the more-general objects of the decree—i.e., compliance with federal law. We interpret the Court’s reference to a “durable remedy” as recognition that fleeting federal compliance is insufficient to
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warrant relief. Thus, a district court, in assessing whether further oversight is equitable, may and should consider the totality of defendants’ efforts to comply with federal law and defendants’ commitment to remaining in compliance with federal law. Such is the approach adopted by two of our sister circuits subsequent to Horne. See supra 41-43 (discussing application of Horne’s durable remedy language in John B., 710 F.3d 391 and Petties, 662 F.3d 564).
And like our sister circuits, we do not read the language in Horne too restrictively with respect to what may constitute a durable remedy. The Court has admonished against taking language from its opinions out of context and giving it “talismanic quality.” Rufo, 502 U.S. at 380. Recall that, in Rufo, the district court denied modification of the consent decree because the state defendants had failed to meet the “clear showing of grievous wrong” evoked by the Court in United States v. Swift & Co., 286 U.S. 106 (1932). Rufo, 502 U.S. at 377. The Court acknowledged that the “grievous wrong” language used in Swift, if “[r]ead out of context,” “suggests a ‘hardening’ of the traditional flexible standard for modification of consent decrees.” Id. at 379. It explained, however, that such a reading would be inconsistent with Rule 60(b)(5): “That Rule, in providing that, on such terms as are just, a party may be relieved from a final judgment or decree where it is no longer equitable that the judgment have prospective application, permits a less stringent, more flexible standard.” Id. at 380. A similarly cautious reading of the “durable remedy” language in Horne is appropriate here.
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When a Rule 60(b)(5) movant has established both the absence of an ongoing violation of federal law and a future commitment to remain in compliance with federal law, federalism concerns should inform a court’s flexible determination as to how a consent decree will be modified. Rule 60(b)(5) dictates as much. See Rufo, 502 U.S. at 380. Accordingly, there is no one way for a movant to show that its federal compliance is more than fleeting. For example, a movant may establish its commitment to future compliance through the adoption of a durable remedy—such as a statute designed to cure the specific federal violation. See Horne, 557 U.S. at 450. A movant may also establish its commitment to future compliance through a record of sustained good-faith efforts to remedy federal violations and, to the extent possible, eliminate the vestiges of the federal violation. See Freeman, 503 U.S. at 490, 498; Dowell, 498 U.S. at 248–49. Ultimately, the district court’s wealth of experience overseeing the litigation should inform its assessment of whether the Defendants are now in compliance with federal law, and whether they are committed to remaining in compliance.6
In summation, if Defendants here can show they are no longer violating the class members’ federal rights, and the district court has reason to believe Defendants’ compliance with federal law is durable, then “continued enforcement of the District Court’s original order[s] is inequitable within the meaning of Rule 60(b)(5), and relief is warranted.” Horne, 557 U.S. at 470; see also John B., 710 F.3d at 413;
6 Here, the district court has been involved with this case for three decades. It has personal knowledge of the efforts by the Defendants to meet their obligations and the complexity involved in setting compliance measures.
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Petties, 662 F.3d at 570-71. To require more under those circumstances would raise serious federalism concerns. It also would conflict with the Supreme Court’s admonition that a federal consent decree should do no more than remedy a condition that violates federal law. Milliken, 433 U.S. at 282. Once the offending condition has been cured, the Court has instructed that responsibility over the state program must be returned promptly to the state and its officials. Frew, 540 U.S. at 442; see also Horne, 557 U.S. at 450–51 (stating the flexible standard under Rule 60(b)(5) “seeks to return control to state and local officials as soon as a violation of federal law has been remedied”). And in weighing the equities, the district court should avoid imposing an inflexible standard that risks depriving future officials of their legislative and executive powers. See Horne, 557 U.S. at 449. After all, such inflexibility is unnecessary to protect the federal interests at the heart of the institutional reform litigation. If the state again violates federal law, victims may file a new lawsuit to bring the state back into compliance. Elected officials may also be held accountable to the citizenry through the political process. For all of these reasons, we conclude that Defendants may satisfy the durability required by Horne in a number of ways, including: by taking specific, long-term actions aimed at curing the federal violations, by making good faith efforts to obtain compliance, or by operating in conformity with federal law for a reasonable period of time. 3. Application
Since this case’s inception, the district court has expended considerable effort and displayed exceptional skill resolving the numerous issues that have arisen.
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Despite this fine stewardship, two aspects of the ruling on Defendants’ Rule 60(b)(5) motion require us to vacate the June 2016 order and to remand for further proceedings in the district court.
First, the district court’s determination that there are no changed circumstances appears to be inconsistent with its factual findings. Defendants maintain that changed factual circumstances warrant relief, including that (a) their obligations have increased in number and complexity to the point the obligations have become substantially onerous, (b) they remedied the constitutional violations giving rise to this litigation and are in compliance with federal law, and (c) increased costs to litigate this case and to provide services to class members have inhibited the State’s ability to fund other important programs such that continued enforcement of the decree is contrary to the public interest.
Although the district court concluded that Defendants “have not presented sufficient changed circumstances . . . to warrant the requested relief,” Jackson III, 2016 WL 9777237, at *17, the court seemingly endorsed Defendants’ argument that their “task ha[d] become incomprehensible, if not insurmountable,” and recognized that their outstanding obligations “are onerous,” id. at *14.7 The court also
7 Defendants may have anticipated at the time they entered into the pertinent decrees that the number and complexity of obligations would substantially increase. After all, their obligations did not become onerous as a result of changed factual circumstances occurring after they entered into the decrees—it was the act of entering into the decrees itself that multiplied their obligations. On remand, if the district court finds that Defendants anticipated that their obligations would substantially increase in number and complexity, Defendants would have to “satisfy a heavy burden to convince [the] court that [they] agreed to the decree[s] in good faith,
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acknowledged that the “increasing fees and costs associated with this litigation are detrimental to the State’s interest,” that “more than 25 years of orders and stipulations have restricted the State’s ability to make basic decisions concerning its budget,” and that “it is doubtful that the outlay of over 5 million dollars of attorney’s fees and costs every year is directly assisting” class members. Id. at *16. Indeed, the district court noted that Defendants have spent more than $50 million related to this litigation in the last decade, id. at *12, and that, as of 2009, the average yearly costs to provide services to class members had risen from $67,290.00 to $135,535.000 per class member, while the State’s $32,992.00 per capita income was the ninth lowest in the nation, id. at *13.
Despite accepting these facts advanced by Defendants, the district court concluded, without adequate explanation, that the facts did not amount to a significant change in circumstances. But the district court’s conclusion that the obligations on the Defendants are “onerous” suggests Defendants established a significant change in circumstances under Rufo’s first two prongs for showing a change in facts warranting modification—that “changed factual conditions make compliance with the decree substantially more onerous” and that “a decree proves to be unworkable because of unforeseen obstacles.” See Rufo, 502 U.S. at 384. Similarly, the district court’s findings concerning the increased fees and costs, and how they have restricted the State’s ability to make decisions about its budget,
made a reasonable effort to comply with the decree[s], and should be relieved of the undertaking under Rule 60(b).” Rufo, 502 U.S. at 385.
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suggest that continued enforcement of the decrees is detrimental to the public
interest. See Horne, 557 U.S. at 447 (explaining that Rule 60(b)(5) “provides a means
by which a party can ask a court to . . . vacate a judgment or order if a significant
change either in factual conditions or in law renders continued enforcement
detrimental to the public interest” (internal quotation marks omitted)); id. at 448 (“A
structural reform decree eviscerates a State’s discretionary authority over its own
program and budgets and forces state officials to reallocate state resources and
funds[.]” (quoting Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J.,
concurring))); id. at 454 (recognizing that a decree is detrimental to the public
interest when it risks “improperly interfer[ing] with a State’s democratic process”);
id. at 459 (concluding that the district court’s imposition of heavy fines on the state
“unquestionably imposed important restrictions on the legislature’s ability to set
budget priorities”); Small v. Hunt, 98 F.3d 789, 796 (4th Cir. 1996) (stating in a Rule
60(b)(5) case that the public “has an interest in how its tax dollars are spent”). We
remand for further explanation of why these facts do not constitute a significant change in circumstances.8
8 To be sure, the district court questioned the timing of the changes relative to the Defendants’ pending, August 25, 2015, Rule 60(b)(5) motion. This explanation, however, may not justify rejecting the conclusion that a significant change in circumstances occurred where (1) Defendants filed a Rule 60(b)(5) motion in 2011 that the district court terminated without ruling on the merits of the motion and (2) the district court made no reference to the requirement in Fed. R. Civ. P. 60(c)(1) that a Rule 60(b) motion be “made within a reasonable time.” Of course, on remand, the district court is free to perform a Rule 60(c)(1) timeliness analysis and conclude that, even in light of the 2011 Rule 60(b)(5) motion, Defendants did not seek relief “within a reasonable time” of the change in circumstances upon which they rely.
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Second, federalism concerns are heightened here because the decrees and the court’s continued oversight have “the effect of dictating state . . . budget priorities.” Horne, 557 U.S. at 448. Despite acknowledging the federalism concerns at play, including the lengthy duration of federal oversight and the budgetary constraints resulting from continued federal oversight, the district court did not apply the flexible approach called for by Horne. Under the flexible approach, the district court needed to inquire whether “the objects of the decree[s] have been attained.” Id. at 452 (internal quotation marks omitted). The court purported to engage in this analysis, stating that the objects—or “essential purposes”—of the pertinent decrees “are to provide class members with adequate health care, a reasonably safe environment, and supported employment opportunities.” Jackson III, 2016 WL 9777237, at *14. The court then noted that these “more specific” essential purposes are encompassed in the obligations provided in the pertinent decrees. Id. And because Defendants conceded they have not substantially complied with many of those decree obligations, the court determined that Defendants “have not fulfilled the essential purposes of the pertinent decrees.” Id.
Like the Ninth Circuit’s analysis in Horne, the district court’s analysis on this point was too narrow, focusing almost entirely on whether defendants had fulfilled the numerous, detailed obligations provided in the consent decrees. But because Defendants move on the ground that continued enforcement of the consent decrees is no longer equitable, the district court should have “ascertain[ed] whether ongoing enforcement of the [decrees] was supported by an ongoing violation of federal law,”
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see Horne, 557 U.S. at 454—here, whether Defendants are violating class members’ rights under the substantive due process component of the Fourteenth Amendment and under the Rehabilitation Act. The court explicitly declined to make this determination, stating it “is not in the position to assess, and, therefore, cannot conclude that Defendants are no longer violating constitutional or federal law.” Jackson III, 2016 WL 9777237, at *16. In declining to make this finding, the district court failed to perform an inquiry that we, in accord with both the Sixth Circuit and the D.C. Circuit, conclude that Horne requires. See Ohlander, 114 F.3d at 1537 (“A clear example of an abuse of discretion exists where the trial court fails to consider the applicable legal standard[.]”).9
The district court appears to have focused on whether Defendants substantially complied with the decree obligations, as well as an overly narrow view of the objects of the consent decree. Substantial compliance with all the obligations in the pertinent decrees would likely place New Mexico in compliance with federal law. But the obligations are merely a means of accomplishing that goal, not the end. See Horne, 557 U.S. at 454–55. On remand, the court should consider the broader question of whether the State is meeting the requirements of the Fourteenth Amendment and the Rehabilitation Act by means other than those stated in the consent decrees. See id. at 439. To be sure, the court concluded that “Defendants have not shown that they have fulfilled their outstanding obligations, ‘by other means.’” Jackson III, 2016 WL
9 The burden of showing compliance with federal law is, of course, on the Defendants.
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9777237, at *17 (quoting Horne, 557 U.S. at 439). But the court seemingly focused
on whether Defendants have fulfilled their decree obligations by other means, instead
of focusing on the broader question of whether Defendants have fulfilled their
federal-law obligations to class members by means other than those provided in the decrees.10 Such an inquiry is critical not only to determining whether Defendants are
in current compliance with federal law, but also to analyzing whether their
compliance is durable. In other words, an inquiry into whether Defendants are
currently in compliance with federal law is a necessary predicate to any inquiry into
whether that compliance is more than merely fleeting. Unless the court properly
focuses its inquiry on compliance with federal law, it cannot analyze whether any
remedy adopted by the state will be effective to maintain such compliance. In turn,
without analyzing whether Defendants are in compliance with federal law and, if so,
whether they are likely to maintain compliance with federal law absent continued
oversight, the district court was not in a proper analytical position to determine
whether Defendants’ proposed modification of terminating the consent decrees was
properly tailored to any significant change in circumstances. Thus, after first deciding
10 The district court also justified its ruling based on its finding that the obligations set forth in the JSD, the Plan of Action, and Appendix A “all flowed from [its] original findings of violations in 1990.” Jackson III, 2016 WL 9777237, at *15. Accepting this finding as true, all it shows is those decrees do not exceed appropriate limits of a federal-court decree. See Horne, 557 U.S. at 450 (stating that “federalcourt decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate [federal law] or does not flow from such a violation” (quoting Milliken v. Bradley, 433 U.S. 267, 282 (1977))). But even a decree that is within appropriate bounds may be vacated where changed circumstances make prospective enforcement of the decree no longer equitable and where the movant has attained compliance with federal law.
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whether New Mexico is now in compliance with federal law, the district court should assess whether that compliance is durable, or whether the proposed modification is not properly tailored to any change in circumstances because equity weighs in favor of further federal oversight to assure the protection of the class members’ federal rights.
In sum, due to the public interests and federalism concerns, continued enforcement of the consent decrees is warranted only to the extent Defendants are in current violation of federal law or have reached only fleeting compliance. We remand so the district court can make up-to-date findings and determine whether Defendants are currently violating class members’ rights under the Fourteenth Amendment and the Rehabilitation Act. On remand, the district court should conduct the necessary proceedings to develop a record that would allow it to make this determination. If the court then concludes Defendants are not violating class members’ rights under federal law, the court should assess the durability of that compliance. In the event that Defendants have implemented a durable remedy, the court should next address whether vacatur of all pertinent orders and termination of this case is appropriate.
III. CONCLUSION We VACATE the district court’s June 2016 Order and REMAND so the court can make appropriate findings and conclusions and then reassess the equities under Rule 60(b) with the benefit of those findings and conclusions.
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Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
January 23, 2018

Chris Wolpert Chief Deputy Clerk

Mr. Jerry A. Walz Walz and Associates 133 Eubank Boulevard, NE, Suite 2 Albuquerque, NM 87102-3487
RE: 16-2172, Jackson, et al v. Los Lunas Community Program, et al Dist/Ag docket: 1:87-CV-00839-JAP-KBM
Dear Counsel:
Enclosed is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 6 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,

Elisabeth A. Shumaker Clerk of the Court

Appellate Case: 16-2172 Document: 01019934524
cc: Cathy E. Costanzo Peter Cubra Philip B. Davis Tim Gardner Nancy Koenigsberg Ava Peets Maureen A. Sanders Steven J. Schwartz Ann Tilford Sims

Date Filed: 01/23/2018

Page: 2

EAS/sds

2

 
 Jackson v. Los Lunas Center, Slip Copy (2019)

2019 WL 2581629 Only the Westlaw citation is currently available.
United States District Court, D. New Mexico.
Walter Steven JACKSON, et al., Plaintiffs, v.
LOS LUNAS CENTER, et al., Defendants, and
The Arc of New Mexico, Intervenors, and
Mary Terrazas, et al., Intervenors, pro se.
No. CIV 87-839 JAP/KBM |
Filed 06/21/2019
Attorneys and Law Firms
Cathy Costanzo, Steven Schwartz Center for Public Representation, Northampton, MA, Peter Cubra, Law Office of Peter Cubra, Philip B. Davis, Philip B. Davis, Attorney at Law, Tim Gardner, Protection & Advocacy System, Nancy Koenigsberg, Disability Rights New Mexico, Albuquerque, NM, Ann Tilford McCartney, Los Lunas, NM, for Plaintiff Developmentally Disabled New Mexicans, Inc., Supporters of.
Paul R. Ritzma, Littleton, CO, for Defendant New Mexico Human Services Department.
Jerry A. Walz, Walz and Associates, Albuquerque, NM, for Defendant Fort Stanton Hospital and Training School.
MEMORANDUM OPINION AND ORDER APPROVING SETTLEMENT AGREEMENT
JAMES A. PARKER, SENIOR UNITED STATES DISTRICT JUDGE
*1 Plaintiffs Walter Stephen Jackson et al. (Plaintiffs), Intervenor Arc of New Mexico (Arc) and pro se Intervenors Mary Terrazas, et al. (jointly, Intervenors), and Defendants Los Lunas Center, et al. (Defendants), seek final approval of a joint settlement agreement1 that provides a resolution to a dispute over Defendants’ treatment of class members.

On April 17, 2019, the parties jointly filed a motion asking the Court to give preliminary approval to the Settlement Agreement.2 On April 18, 2019, the Court held a hearing on the motion. During the hearing, counsel clarified provisions of the Preliminary SA. On April 19, 2020, the Court approved the Preliminary SA as clarified and directed the parties to issue Notice to all Plaintiff Class Members and Intervenors.3
On June 4, 2019, the parties filed their Joint Motion for Final Approval, Joint Memorandum, and final Settlement Agreement, which as directed by the Court’s Preliminary Approval Order, clarified the language of the Preliminary SA.4
On June 12, 2019, the Court held a hearing on final approval of the Settlement Agreement. Present for the Plaintiffs were Steven Schwarz, Peter Cubra, Cathy Costanza, Tim Gardner, Philip Davis, Ann McCartney, and Debra Poulin. Present for Defendants were Jerry A. Walz, Kathyleen Kunkel, Billy Jimenez, Jason Cornwell, and Matthew Garcia. Present for the Intervenors were Maureen Sanders and Jacqueline Mader.5 At the hearing the following five guardians and/or family members of Jackson class members addressed the Court with expressions of concern: Julie Bisbee, Hector Romero, Audrey Quintanta, Therese Quintana Doolittle, and Sophia Nolte. Prior to the hearing, pro se Intervenor Ava Peets filed written comments expressing concern,6 and at the hearing, she addressed the Court.
After considering the long history of the case, the Settlement Agreement, the arguments of counsel, and the comments of pro se Intervenor, guardians and/or family representatives of members of the class, the Court will grant final approval of the Settlement Agreement. Additionally, the Court will vacate the Scheduling Order.7 Moreover, the Court will vacate all other orders in this case except Jackson by Jackson v. Fort Stanton Hosp. and Training School, 757 F. Supp. 1243 (D. N.M. 1990) rev’d in part, 964 F.2d 980 (10th Cir. 1992) (Jackson I) (Doc. No. 679),8 the Memorandum Opinion and Order (Doc. No. 831) (granting Plaintiffs’ motion to amend the Complaint by interlineation to include a claim under the American with Disabilities Act, 42 U.S.C. § 12101 et. seq. (ADA)), and the Memorandum Opinion and Order (Doc. No. 890) (reconfiguring the class).
I. STANDARD OF REVIEW *2 A trial court has the discretionary authority to approve

Jackson v. Los Lunas Center, Slip Copy (2019)
a settlement of a class action. Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (10th Cir. 1984). Federal Rule of Civil Procedure 23(e) provides the following procedure:
(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
...
(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court’s approval.
The notice requirements of Rule 23 are designed to satisfy due process by providing class members notice of settlement and a right to be heard. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 174 (1974). “[N]otice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Id. at 174 (internal quotation marks omitted) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) and like cases).
Under Rule 23(e)(2) a court may approve a settlement agreement as fair, reasonable and adequate if the settlement agreement meets four criteria: (1) the settlement was fairly and honestly negotiated; (2) serious legal and factual questions place the litigation’s outcome in doubt; (3) the immediate recovery is more valuable than the mere possibility of a more favorable outcome after further litigation; and (4) the parties believe the settlement is fair and reasonable. Tennille v. Western Union Co., 785 F.3d 422, 434 (10th Cir. 2015). “[T]he district court must independently analyze the evidence before it in making its determination[.]” Gottlieb v. Wiles, 11 F.3d 1004, 1015 (10th Cir. 1993) (emphasis in original) abrogated on other grounds by Devlin v. Scardelletti, 536 U.S. 1 (2002).

II. BACKGROUND This civil rights class action began 32 years ago on July 8, 1987 when 21 individual developmentally disabled citizens of New Mexico on behalf of themselves and other similarly situated individuals (JCMs)9 filed a complaint to “redress the unconstitutional and illegal conditions” at Fort Stanton Hospital and Training School (Fort Stanton) and Los Lunas Hospital and Training School (Los Lunas) (jointly, institutions) that operated, in part, with federal funds.10 Defendants were the institutions and individuals operating the institutions. On June 27, 1988, the Court granted parents and guardians of some of the residents of the institutions leave to intervene,11 which they did on July 6, 1988.12
*3 On October 16, 1989, the merits trial commenced. On December 28, 1990, the Court ruled that Defendants had violated the JCMs’ rights under § 504 of the Rehabilitation Act and the substantive due process clause of the Fourteenth Amendment of the United States Constitution. See Jackson by Jackson v. Fort Stanton Hosp. and Training School, 757 F. Supp. 1243 (D. N.M. 1990) rev’d in part, 964 F.2d 980 (10th Cir. 1992) (Jackson I). Since 1990, the parties have attempted to resolve compliance issues and achieve disengagement of Defendants’ obligations to the JCMs.
A. Jackson I In Jackson I, the Court made detailed findings of fact. The Court found 18 areas where Defendants’ operation of state supported institutions for the developmentally disabled were deficient under federal law and the Constitution.13 The Court ordered the parties to create a written plan of correction at each institution for each of the 18 identified deficiencies. The parties were to submit the plan to the Court no later than April 1, 1991. Jackson I, 757 F. Supp. at 1315. The plan was to include the following: a detailed written policy to be followed by each institution; identification of an individual who would be responsible for implementing the policy; a strategy for achieving the goals of the corrective plans; a timetable with guidelines for achieving the specific components of each plan; and a means of assuring continued compliance with the adopted standards. Id. at 1316. The Court asked that the plan of correction establish a timetable for correcting all deficiencies by September 10, 1991. Id.

Jackson v. Los Lunas Center, Slip Copy (2019)
On September 27, 1991, Defendants completed a Systemic Plan, which was amended on November 19, 1993. On January 4, 1993, Defendants promulgated new polices and procedures for institutions which were reported to the Court on February 17, 1993.14 On November 9, 1993, Plaintiffs moved to amend the Complaint by adding a claim under the American with Disabilities Act, 42 U.S.C. § 12101 et seq.,15 which the Court granted on January 27, 1994.16
In April 1994, the parties filed a joint motion under Rule 60(b)(5) to modify Jackson I as it applied to Fort Stanton because by 1995, Fort Stanton would no longer serve JCMs.17 The Court granted the motion on June 27, 1994, relieving Defendants from making further improvements to Fort Stanton.18 In March 1995, Fort Stanton closed, and all residents were transferred to community-based services.
*4 In July 1997, after all residents in Los Lunas transitioned to community-based services, Los Lunas also closed.
B. Consent Decrees After Jackson I, the Court entered various remedial orders and actively oversaw their enforcement. During the pendency of this case, there have been four consent decrees.19 In 1997, the Court entered the first two consent decrees, a Joint Stipulation on Disengagement (JSD) and its attached Plan of Action.20 In subsequent years, the Court entered two additional consent decrees: in 2005, Appendix A,21 and the 2015 Revised Table IV.22 All four documents attempt to resolve the areas of noncompliance identified in Jackson I. Each consent decree imposes additional obligations on Defendants.
i. JSD
In October 1997, the parties presented the Court with a joint motion requesting the Court approve their proposed JSD with a Plan of Action. The JSD states the criteria and process for disengagement from most of the identified obligations. Id. at 20-25. Because both institutions had closed, the JSD focused on preventing future harm to Plaintiffs’ rights in community settings. See JSD (Doc. 1047-1) at 14. Toward that end, the JSD groups a specific area of obligations, identified as “Continued Improvement

of Community Services,” for a different disengagement procedure. To disengage from those obligations, Defendants were required to conduct an annual community audit and achieve a certain score for four years. Id. at 14-17. After a fairness hearing regarding the JSD on November 20, 1997, the Court entered an Order approving the JSD.23
The JSD set a December 31, 1998 deadline for disengagement of most of its obligations but indicated that certain requirements would not be met until December 31, 2000. Id. at 20. These deadlines were not met.
ii. Plan of Action
In addition to the JSD, the parties prepared a Plan of Action,24 which was meant to provide a structure to enhance the community services system. See JSD (Doc. 1047-1) at 28.25 Initially, the 1997 Plan of Action comprised thirteen components in thirteen appendices. Each appendix listed specific activities with their desired outcomes.26 Over time, two additional appendices were added.27
iii. Appendix A
*5 On May 20, 2005 the parties submitted Appendix A, which sought to resolve pending motions and to detail actions that would bring the Defendants into compliance with the JSD.28 Appendix A contains a list of over 100 additional agreed actions which were meant to “facilitate compliance with the JSD, to promote completion of certain 1998 Audit Recommendations, to further address Case Management even though Plan of Action Desired Outcomes related to Case Management have been previously disengaged by an order of the Court and to address certain aspects of Vocational Rehabilitation.” Appendix A (Doc. 1473) at 1-2. Each action had a deadline, with the last one scheduled to be completed by the end of fiscal year 2007. Notably, the additional obligations in Appendix A did not change or end Defendants’ obligations under the JSD and the Plan of Action. On May 20, 2005, the Court entered an Order approving Appendix A.29

Jackson v. Los Lunas Center, Slip Copy (2019)
iv. 2015 Revised Table IV
Between 2007 and 2010, Plaintiffs filed motions asserting that Defendants were non-compliant with the JSD, with the Plan of Action, and with Appendix A by failing to provide the JCMs adequate health care, a reasonably safe environment, and supported employment services.30 The Court responded to the Plaintiff’s first motion by appointing a Rule 706 expert.31 The Court denied the second motion, deciding that an evidentiary hearing was necessary to examine the issues raised by the Plaintiffs.32 The evidentiary hearing occurred in June 2011.
After the evidentiary hearing, but before the Court issued a ruling, on November 2, 2011, Plaintiffs filed an opposed motion asking the Court to appoint a Jackson Compliance Administrator (JCA).33 On November 14, 2011, Plaintiffs renewed their motion for remedial relief.34 On October 12, 2012, the Court entered findings and conclusions and an order based on the evidentiary hearing.35
In the 2012 Order, the Court found that Defendants were not in substantial compliance “with many outstanding health care, safety, and supported employment obligations” of the JSD, the Plan of Action, and Appendix A. 2012 Order (Doc. 1930) at 200. The Court granted Plaintiffs’ motion to appoint a JCA, whose role as an administrator would have the “appropriate expertise and availability to prod Defendants into substantial compliance.” Id. On January 11, 2013, the Court vacated the Order Appointing the 706 Expert (Doc. 1610) and appointed Dr. Sue Gant as the JCA.36
To address violations identified in the 2012 Order, the JCA, Plaintiffs, and Defendants were to develop a consolidated plan in the areas of health, safety, and supported employment. On June 12, 2015, the parties submitted a final list of objectives in the 2015 Revised Table IV.37 Like Appendix A, the 2015 Revised Table IV did not replace existing decree obligations.38 In addition to the obligations defined in the 2015 Revised Table IV, Defendants had to demonstrate substantial compliance with still outstanding obligations in the JSD, the Plan of Action, and Appendix A.
C. Rule 60(b)(5) Motions *6 Rule 60(b)(5) states that a court may relieve a party from a judgment, order, or proceeding if “applying [a

judgment or order] prospectively is no longer equitable[.]” Fed. R. Civ. P. 60(b)(5). The Defendants have filed three motions39 under Fed. R. Civ. P. 60(b)(5) seeking to end the Court’s oversight of this class action.
On April 2, 1999, Defendants filed their first Rule 60(b)(5) motion, asking the Court to dismiss the case and vacate the JSD because they had an Eleventh Amendment defense to the case and it was no longer equitable that the judgement should have prospective application.40 On September 7, 1999, the Court denied the motion.41 The Court found that Defendants did not have an Eleventh Amendment immunity defense to this case because the JSD “does not invade a ‘special sovereignty interest’ of the State and does not provide for a form of improper legal relief.” Order (Doc. No. 1132) at 14.
On April 26, 2011, the day before the pretrial conference scheduled to address the upcoming 2011 evidentiary hearing, Defendants filed their second Rule 60(b)(5) motion, asking the Court to vacate all existing orders and to end oversight of the case for the following reasons: 1) Defendants had made a reasonable effort to comply with the Court’s orders; 2) Defendants had substantially complied with existing orders; and 3) changed factual circumstances made Defendant’s continued compliance substantially onerous.42 The Court suspended its ruling on the 2011 Rule 60(b)(5) Motion until after the conclusion of the 2011 evidentiary hearing so that the Defendants could cite evidence from the hearing in their briefing. See 2012 Order (Doc. 1930) at 12. Subsequently, the Court “terminated” the 2011 Rule 60(b)(5) Motion, which had not been fully briefed.
On August 25, 2015, Defendants filed a third motion under Rule 60(b)(5).43 As grounds Defendants identified four changed factual circumstances: 1) Defendants’ decree obligations had grown substantially and compliance had become increasingly difficult because of the numerosity of the obligations and because they were not subject to objective measurement; 2) many of Defendants’ obligations had become outdated; 3) Defendants’ had remedied all constitutional violations; and 4) increased litigation costs inhibited New Mexico’s ability to fund other important programs. Plaintiffs opposed the motion, contending that the Rule 60(b)(5) Motion was Defendants’ attempt to avoid compliance.44 On June 14, 2016, the Court denied the Rule 60(b)(5) Motion, finding that Defendants had not met their burden. See Jackson v. Los Lunas Center et al., No. CIV 87-839, 2016 WL 9777237 (D.N.M. June 14, 2016) (Jackson II).
*7 The Court held that Defendants had not shown that there had been a significant change in fact that would warrant vacatur of all orders and decrees and termination

Jackson v. Los Lunas Center, Slip Copy (2019)
of the case. Jackson II, 2016 WL 9777237 at *14. The Court based its holding on the following: 1) Defendants never pinpointed a moment in the case when circumstances had changed; 2) Defendants did not show that they had provided the JCMs with the essential purposes of the obligations, specifically adequate health care, a reasonably safe environment, and supported employment opportunity; 3) Defendants had not established that they had remedied all federal statutory and constitutional violations because, as Defendants conceded, they had not complied with all consent decree obligations which flowed directly from the violations found by Jackson I; and finally, 4) federalism concerns did not mandate the Court’s termination of its oversight because the State had not fulfilled its obligations under federal law. Id. at 15-19. Defendants appealed.
The Tenth Circuit reversed the Court, finding the Court had improperly focused on whether Defendants had substantially complied with the consent decrees, when it should have considered the broader question of whether “the State is meeting the requirements of the Fourteenth Amendment and the Rehabilitation Act by means other than those stated in the consent decrees.” Jackson v. Los Lunas Community Program et al., 880 F.3d 1176, 1206 (10th Cir. 2018) (Jackson III). The Tenth Circuit found that two aspects of the Court’s ruling required it to vacate the 2016 Order and to remand for further proceedings. Id. at 1204. First, the Tenth Circuit found that “the district court’s determination that there are no changed circumstances appears to be inconsistent with its factual findings.” Id. Second, the Tenth Circuit observed that “federalism concerns are heightened here because the decrees and the court’s continued oversight have ‘the effect of dictating state ... budget priorities.’ ” Id. at 1205 (quoting Horne v. Flores, 557 U.S. 433, 448 (2009)).
The Tenth Circuit gave the Court three issues to examine on remand: 1) Are the Defendants currently violating class members’ rights under the Fourteenth Amendment and the Rehabilitation Act; 2) If Defendants are not violating the class members’ rights under federal law, then is the Defendant’s remedy durable; and 3) If Defendants have implemented a durable remedy, is vacatur of all pertinent orders and termination of this case appropriate. Id. at 1207.
On April 2, 2018, following the remand, Defendants supplemented the Rule 60(b)(5) motion.45 The Court did not set a firm trial date, but indicated that trial would be set sometime in September or October of 2019.46 From April 2018 through January 2019, the parties conducted fact discovery related to the Rule 60(b)(5) Motion and Supplement. Ultimately, the parties determined that “the most efficient and appropriate resolution of the Motion

and this litigation is to enter a Settlement Agreement to Resolve the Litigation.” Settlement Agreement (Doc. 2299-1) at ¶ 3.
The Settlement Agreement resolves all pending litigation disputes and is meant to “establish a durable remedy” that will survive the dismissal of the case. See Joint Memorandum (Doc. 2300) at 1-2. In their Joint Motion for Final Approval, the parties ask the Court to determine that the Settlement Agreement is fair, adequate, and reasonable.
D. Settlement Agreement The parties structured the Settlement Agreement to close the gap between Defendants’ policies and actions and thereby establish a durable remedy. The Settlement Agreement contemplates a deadline of 18 months from the Court’s final approval for completion of its terms. The Settlement Agreement replaces all existing orders of the Court except Jackson I, the Memorandum and Order approving the motion to amend the complaint (Doc. 831) and the Memorandum and Order on class reconfiguration (Doc. 890). However, the Settlement Agreement incorporates, as of the date of its entry, current New Mexico state policies, procedures, practices, and waiver standards. The Settlement Agreement also introduces a new agreement: the Qualified Provider Agreement Initiative (QPAI). The QPAI is a revised provider agreement between the New Mexico Department of Health47 Developmental Disability Supports Division (DDSD) and community providers of developmental disability services.
*8 The Settlement Agreement describes seven action provisions that Defendants will complete to fulfill their obligations to the JCMs. Six of the action provisions are substantive48 and include: Incident Management, Mortality Review, Health, Provider Oversight, Supported Employment, and Individual Quality Review (IQR). The actions provisions obligate Defendants to do the following:
i. Incident Management
Defendants will eliminate the backlog of incident investigations, will conduct timely and adequate investigations, and will take necessary remedial actions as

Jackson v. Los Lunas Center, Slip Copy (2019)
required by the current policies and procedures of the Division of Health Improvement of the New Mexico Department of Health (DHI).

v. Supported Employment
Defendants ensure they will assess each working age class member’s abilities and interests as required by their policies, procedures, and waiver standards.

ii. Mortality Review
By December 31, 2019, Defendants will eliminate the backlog of outstanding mortality reviews. Going forward they will conduct timely and adequate mortality reviews and take remedial actions as required by the current DOH/DHI policies.
iii. Health
There are three subdivisions under this action provision: medical, behavior, and case management. Each subdivision addresses the needs of the JCMs designated high-acuity or with high behavioral needs and provides a mechanism for evaluating individuals not currently designated high-acuity. Defendants are required to provide health related services as required by the current waiver standards. To help implement these services, new state-employed nurses will have the authority to review and monitor the health care status of JCMs under the state waiver standards and to direct corrective action if necessary. Defendants agree to continue to collect data on JCMs to help identify those with high behavioral needs. Data will be collected by state behavioral specialists through the review and analysis of behavioral support plans and by at least one unannounced monthly face to face visit. Defendants will also use state-employed case-management coordinators to review case management files for high-acuity/high behavioral JCMs.
iv. Provider Oversight
This subsection implements the QPAI and contemplates enforcement of its terms through DOH contract management policies and IRC policies.

vi. IQR
By June 30, 2020, the current Community Monitor will have transferred the IQR process to DHI and will cease serving as Community Monitor. Defendants will hire at least five reviewers and one supervisor who will pass a core competency test to conduct the IQR thereafter. During the 2019-2020 transfer year, the Community Monitor or her designees and the state supervisor will jointly conduct the case judging process. Once Defendants have enough qualified staff, the Community Monitor will no longer use independent contractors. Disputes about whether state-employees are qualified will be resolved by the Court. Defendants will use an IQR process substantially like the one currently used by the Community Monitor through June 30, 2021. After transfer, Defendants will continue the process consistent with internal waiver standards and DHI’s quality program management.
Defendants will comply with all Settlement Agreement actions until the case is dismissed.
*9 The remaining sections of the Settlement Agreement address its implementation.
Defendant DOH will hire a consultant to assist in the implementation of the Settlement Agreement and will retain the consultant until the Court dismisses this case.
On the 15th of each month following the end of each quarter,49 Defendants will provide data specific to each action provision to the Plaintiffs and Intervenor Arc to demonstrate Defendants are making reasonable progress. Two weeks after each production of the data, Defendants will meet with the Court.
When Defendants believe they have substantially implemented one of the action provisions, they will notify Plaintiffs and Intervenor Arc. Thirty days after submitting the notice, Defendants will file a motion seeking a finding of compliance and disengagement of the specified action provision mentioned in the notice. If the motion is contested, the parties will request a Court hearing. If the Court finds compliance, then the Court will terminate its

Jackson v. Los Lunas Center, Slip Copy (2019)
oversight of that action provision. However, at any time, Defendants may file a motion requesting a court finding that they have complied with all action provisions, and that they have maintained compliance with all disengaged provisions of the Settlement Agreement.
The parties acknowledge that the Court maintains its inherent authority to interpret, clarify, modify or enforce this Settlement Agreement. The parties agree not to appeal a Court order that approves the Settlement Agreement.
III. DISCUSSION
A. Notice was Reasonable Before a Court approves a settlement agreement, it must be assured that the parties have received adequate notice and a significant opportunity to be heard. See Jones, 741 F.2d at 325 (“The essence of procedural due process is that the parties be given notice and opportunity for a hearing.”). Due process requires that the affected parties receive “ ‘the best notice practicable under the circumstances including individual notice to all members who can be identified through reasonable effort.’ ” Weinman v. Fid. Capital Appreciation Fund (In re Integra Realty Res., 262 F.3d 1089, 1110 (10th Cir. 2001) (quoting Eisen, 417 U.S. at 174).
The parties included the proposed Notice of the Settlement Agreement in their Joint Motion for Preliminary Approval. The Notice sufficiently summarized the provisions of the Settlement Agreement and explained that class members could object to the Settlement Agreement by providing their objections in writing to the Court by May 24, 2019. The Notice further informed the JCMs and their guardians/family members that a hearing to determine whether to approve the proposed settlement would be held and gave the date and time for the hearing.
Attached to the parties’ Joint Motion for Final Approval was the Declaration of Peter Cubra, Esq., counsel for the Plaintiff class, who stated that Notice was mailed by the DOH on April 23, 2019 to the last known address of members of the Plaintiff class and their guardians.50 The Declaration discloses that after the Notices were mailed, the Plaintiffs’ attorneys received the following responses:
*10 1) Ms. Annabelle Molina, a JCM-paid family living provider, called Plaintiff’s counsel, Tim Gardner, and

asked for clarification of the Notice and further stated that she wanted services to continue for the JCM living with her.
2) Ms. Ida Kasero, mother of a JCM, telephoned Plaintiffs’ counsel Philip B. Davis and asked for additional information about the Settlement Agreement which he provided both orally, and with mailed copies of the (a) the Settlement Agreement; (b) Order Preliminarily Approving Settlement; (c) Notice to Plaintiff Class Members and Intervenors; and (d) Notice of Hearing. Mr. Davis advised Ms. Kasero to call if she had additional questions. As of the date of the hearing, she had not communicated further with Plaintiffs’ counsel.
3) Ms. Julie Bisbee, a guardian of two JCMs, telephoned Ms. Carissa Tashiro, an attorney with Disability Rights New Mexico, and indicated that she would like to speak to the Court at the June 12, 2019 hearing. She expressed two main concerns: (a) the Settlement Agreement does not adequately address the needs of non-high-acuity JCMs; and (b) the Settlement Agreement does not contemplate the effectiveness of state-employed nurses.
4) Pro se Intervenor Ava Peets emailed a memo and a letter addressed to the Court to Plaintiffs’ counsel Peter Cubra about her concerns. Her memo was docketed in the case as Comments (Doc. No. 2297). The Comments suggested improvements to the State’s developmental disabilities system but did not explicitly object to approval of the Settlement Agreement. Ms. Peets also stated that she believed the JCA should continue her work and that it was “a bad idea” to discontinue the services of an outside community monitor.
Plaintiffs’ counsel did not receive any other telephonic or written responses before the June 4, 2019 filing of the Declaration.
On June 12, 2019, the Court conducted a hearing on the Joint Motion for Final Approval.
At the hearing, Plaintiffs’ Counsel stated that they had received the following two additional responses from JCMs’ guardians/family members to the Settlement agreement:
1) Josh Hammons asked Plaintiffs’ counsel to express at the fairness hearing his objection to the Settlement Agreement because he does not trust the State without the pressure of the lawsuit.
2) Paul Heck asked for clarification of the Settlement Agreement because of his concern that class members would no longer receive services once the case was

Jackson v. Los Lunas Center, Slip Copy (2019)
dismissed. Plaintiff’s counsel explained the Settlement Agreement to him.
At the hearing Ms. Peets and Ms. Bisbee spoke. Immediately before the hearing, four additional JCMs’ guardians and/or family members asked to address the Court and did so. None of the six JCMs’ guardians/family members who spoke objected to specific language or to the terms of the Settlement Agreement, but all expressed individual concerns about certain of the State’s practices.
Defendants responded to the comments and assured the JCMs’ guardians/family members that the terms of the Settlement Agreement addressed their concerns and that Defendants intended to comply. Counsel for the Plaintiffs and for the Defendants made it clear that Court approval of the Settlement Agreement does not mean the case is dismissed. The case will continue until the Court is satisfied that the Defendants have complied with all requirements of the Settlement Agreement and that a durable remedy exists.
*11 Based on the Declaration, the telephonic response from the JCMs’ guardians/family members and/or living provider, the presence and statements of the JCMs’ guardians/family members, and Ms. Peet’s written Comments and oral statements, the Court concludes that the JCMs and their guardians/family members received adequate notice of the Settlement Agreement and had a significant opportunity to be heard on their concerns.
B. Settlement Agreement is Fair, Reasonable, and Adequate
1. Settlement Agreement Was Fairly and Honestly Negotiated
After the Tenth Circuit reversed the Court’s denial of the Defendants’ Rule 60(b)(5) Motion and directed the Court to conduct further proceedings, Defendants supplemented their Rule 60(b)(5) Motion, and the parties then estimated that approximately four weeks would be needed for an evidentiary hearing. In preparation for the evidentiary hearing, the parties conducted extensive factual discovery. At the end of the discovery period, and after reviewing the strength and weaknesses of their respective positions on the Rule 60(b)(5) Motion and Supplement, in January 2019 the parties began settlement negotiations.

Present at the face-to-face negotiations were representatives of the Defendants, the Plaintiff class, and Intervenor Arc. In their Joint Memorandum, and at the hearing, the parties described the process that resulted in the Settlement Agreement. The parties jointly assert that the Settlement Agreement was fairly and honestly reached through arms-length negotiation and helpful mediation by United States Magistrate Judge Karen B. Molzen. No JCM guardian/family member has argued or pointed to any evidence that the Settlement Agreement was the product of collusion.
The Court finds that the evidence establishes that the Settlement Agreement was fairly and honestly negotiated.
2. Serious Legal and Factual Questions Place Outcome of Litigation in Doubt
First, the parties assert that serious legal and factual questions plague this case. The Plaintiffs’ position is that factual questions remain about whether Defendants’ practices indicate ongoing federal statutory or constitutional violations of the JCMs’ rights. In contrast, Defendants’ stance is that while Defendants have not disengaged from all consent decree obligations, they have remedied all federal statutory and constitutional violations. Defendants’ arguments find some support in Jackson III.
Although in Jackson II the Court found that Defendants have not substantially complied with all consent decree obligations, in Jackson III, the Tenth Circuit observed that “the obligations are merely a means of accomplishing that goal, not the end” and directed the Court to address the “broader question” of whether “the State is meeting the requirements of the Fourteenth Amendment and the Rehabilitation Act by means other than those stated in the consent decrees.” Jackson III, 880 F.3d at 1206. The Tenth Circuit further advised that if there are no ongoing violations, and a durable remedy is in place, court oversight should end. Id. at 1207.
The Court believes that what constitutes a durable remedy raises yet another difficult, sticky legal issue. The Tenth Circuit stated when considering whether a remedy is durable, a district court should consider the totality of the circumstances. Id. at 1200. Factors indicating whether a remedy is durable include: “the party’s commitment to compliance, the duration of the party’s compliance with federal law, and whether or not the effects of the violation of federal law persist.” Id. (citing Freedman v. Pitts, 503

Jackson v. Los Lunas Center, Slip Copy (2019)
U.S. 467, 491 (1992)). An examination of these factors likely would result in vigorous and lengthy litigation.
*12 Second, the parties theorize that any ruling by the Court after an extensive evidentiary hearing on the Rule 60(b)(5) Motion and Supplement would result in yet another appeal which would have an unforeseeable impact on the JCMs. Significantly, the outcome of the appeal could also lead to additional litigation. Moreover, the scope and nature of the prevailing party’s relief cannot be predicted.
Since the inception of this case in 1987, there have been numerous evidentiary hearings, two appeals, four consent decrees, and four Rule 60(b)(5) motions. Rulings adverse to a party have resulted in additional litigation, which has not clarified the case, but instead has expanded it in complexity and scope. While the Tenth Circuit has delineated the appropriate inquiry for the Court’s analysis of Defendants’ Rule 60(b)(5) Motion and Supplement, the factual issues surrounding questions such as the nature and scope of a durable remedy would inevitably lead to yet more litigation. The Court finds that the evidence demonstrates both parties bear a significant risk of an adverse outcome.

gap between the State’s policies and procedures and its actual practices. Unfortunately, over time the numerosity of the consent decree obligations and the State’s attendant work to disengage each obligation have evolved into a labyrinth of requirements that has obscured the real goal of achieving a durable remedy. See Jackson III. 880 F.3d at 1206. Now, the parties concur that a durable remedy is not only attainable, but structurally present in the State’s current policies, procedures, and standards. The Settlement Agreement provides a clear path for the State to bring its practices into alignment with its policies. Most important, the parties agree that the State’s compliance with its own polices, will establish the durable remedy discussed by the Tenth Circuit in Jackson III. Finally, the Settlement Agreement provides a resolution to this case by setting an 18-month deadline for the full implementation of the durable remedy, which will confer an immediate benefit on the remaining JCMs and end the ongoing uncertainty created by this litigation.
The Court finds that on balance the value of an immediate recovery to the Plaintiffs outweighs the possibility of future relief after protracted litigation.

3. The Value of an Immediate Recovery Outweighs the Possibility of Future Relief After Protracted Litigation
The ancillary costs of this case have been considerable. For 32 years this case has required the services of a federal court, the advocacy of numerous attorneys for the Plaintiffs, the Intervenors, and the Defendants and the services of a compliance monitor, a community monitor and their staff. Should this case continue, the cost of additional litigation would be substantial.
Significantly, the expense of this lawsuit also impacts the public interest. See Jackson III, 880 F.3d at 1205. In the last decade, Defendants have expended more than $50 million in costs related to this case, including $5 million on attorney’s fees. Id. (observing that Jackson II found that Defendant’s financial obligations are onerous). These expenditures have been detrimental to the State’s interest and have raised federalism concerns by restricting the State’s ability to make decisions about its budget. See Id. at 1204-05. Monies spent on the costs of the litigation might be better spent on State programs that ultimately benefit the JCMs and other state citizens. Id.
Many of the parties’ disagreements have focused on the

4. The Parties Believe the Settlement Fair and Reasonable
*13 In Jackson III, the Tenth Circuit directed this Court to determine whether Defendants have “fulfilled their federal-law obligations to class members by means other than those provided in the decrees” and to examine whether a durable remedy was in place. Jackson III, 880 F.3d at 1206. All parties indicate that they believe the Settlement Agreement accomplishes both purposes.
The Settlement Agreement has been negotiated by counsel for the JCMs, the Defendants, and the Intervenor Arc. The attorneys are experienced, and several have a significant background in disability law. For 32 years the parties have actively litigated this case and are familiar with its issues. Extensive discovery has occurred both on Defendants’ Rule 60(b)(5) Motion and Supplement and on a multitude of underlying issues. The parties have a clear understanding of the strengths and weaknesses of their positions in the case and agree that the Settlement Agreement is fair and reasonable.
At the June 12, 2019 hearing, pro se Intervenor Ava Peets, and JCMs’ guardians/family members Julie Bisbee, Hector Romero, Audrey Quintana, Therese Quintana Doolittle and Sophia Nolte commented and expressed

Jackson v. Los Lunas Center, Slip Copy (2019)

concerns that the State would no longer be motivated to fulfill their obligations to the JCMs should the Court vacate the consent decrees. Specifically, all six who spoke at the hearing expressed reservations about the State’s ability to hire staff and compensate them adequately. Ms. Peets and Ms. Bisbee questioned the qualifications of current medical staff. Both Ms. Peets and Ms. Bisbee stated that in the past, class members had suffered adverse medical affects because of a medical provider’s poor judgment. Mr. Romero, Audrey Quintana, and Therese Quintana Doolittle also expressed concern about the qualifications of state-employed medical providers and voiced dissatisfaction with certain state services, including the lack of effective communication between the state and the JCMs’ guardians/family members. An additional JCMs’ guardian/family member, Josh Hammons orally objected through Plaintiffs’ counsel based on his distrust of the State without the pressure of the lawsuit. None of the six JCMs’ guardians/family members who addressed the Court or the JCM’s guardian/family member who expressed his reservations through Plaintiffs’ counsel objected to the actual terms of the Settlement Agreement.
The Secretary for the DOH, Kathyleen Kunkel (Secretary) reassured each of the six JCMs’ guardians/family members that their concerns were addressed in the Settlement Agreement and that the State will follow through on its stated commitment to implement the Settlement Agreement. The Secretary further noted that there was an emergency fund for sitters, and she would address the lack of knowledge about that fund with relevant employees. All six JCMs’ guardians/family members expressed satisfaction with the Secretary’s statements.
The Court finds that the concerns of pro se Intervenor Ms. Peets and the JCMs’ guardians/family members who commented at the hearing are appropriately addressed in the Settlement Agreement.

remedy, the Court finds that the Settlement Agreement is fair, reasonable, and adequate. Therefore, the Court will approve the Settlement Agreement. The Court will vacate the Scheduling Order and all other orders in this case except for Jackson I (Doc. No. 679), Memorandum Opinion and Order (Doc. 831) (granting leave to amend), and Memorandum Opinion and Order (Doc. 890) (reconfiguring the class).

*14 IT IS ORDERED that:

1. The Court GRANTS the parties Joint Motion to Approve Settlement Agreement (Doc. 2299) and APPROVES the Settlement Agreement as revised (Doc. 2299-1);

2. The Court VACATES the ORDER GRANTING JOINT MOTION TO EXTEND DEADLINES (Doc. 2287);

3. The Court VACATES the following orders: ORDER

APPROVING

STIPULATION

ON

DISENGAGEMENT (Doc. 1064); ORDER

ADOPTING JOINT STIPULATION (Doc. 1474);

ORDER AMENDING TABLE IV (FINAL

EVALUATIVE COMPONENTS) (Doc. No. 2044);

STIPULATION

AND

ORDER

OF

DISENGAGEMENT (Doc. 2052) (adopting Revised

Table IV) and all other orders relating to and

implementing the listed Orders with the exception of

Jackson by Jackson v. Fort Stanton Hosp. and Training

School, 757 F. Supp. 1243 (D. N.M. 1990) rev’d in

part, 964 F.2d 980 (10th Cir. 1992) (Doc. No. 679);

MEMORANDUM OPINION AND ORDER (Doc. No.

831) (granting Plaintiffs’ motion to amend the

Complaint by interlineation to include a claim under

the American with Disabilities Act, 42 U.S.C. § 12101

et. seq. (ADA)); and MEMORANDUM OPINION

AND ORDER (Doc. No. 890) (reconfiguring the class).

For 32 years the Court has overseen this case. The Court

All Citations

is very familiar with the issues. Mindful of the Tenth Circuit’s direction to ensure that a durable remedy is in

Slip Copy, 2019 WL 2581629

place, and the parties’ confidence that the implementation

of the Settlement Agreement will provide that durable

Footnotes

1

See JOINT MOTION TO FINALLY APPROVE SETTLEMENT AGREEMENT (Joint Motion for Final Approval) (Doc. No.

2299), SETTLEMENT AGREEMENT (Doc. No. 2299-1) (Settlement Agreement) and JOINT MEMORANDUM IN

SUPPORT OF FINAL APPROVAL OF THE PARTIES’ SETTLEMENT AGREEMENT (Doc. No. 2300) (Joint Memorandum).

2

See JOINT MOTION TO PRELIMINARILY APPROVE SETTLEMENT AGREEMENT (Doc. No. 2289) (Motion) and

Jackson v. Los Lunas Center, Slip Copy (2019)

SETTLEMENT AGREEMENT (Doc. No. 2289-1) (Preliminary SA).

3

See ORDER PRELIMINARILY APPROVING SETTLEMENT AGREEMENT (Doc. No. 2292) (Preliminary Approval Order).

4

See JOINT MOTION TO FINALLY APPROVE SETTLEMENT AGREEMENT (Doc. No. 2299) (Joint Motion for Final

Approval); SETTLEMENT AGREEMENT (Doc. No. 2299-1) (Settlement Agreement); JOINT MEMORANDUM IN

SUPPORT OF FINAL APPROVAL OF THE PARTIES’ SETTLEMENT AGREEMENT (Doc. No. 2300) (Joint Memorandum).

5

Several individuals who have a long history with this case were present in the gallery including: Dr. Sue Gant, former

Jackson Compliance Administrator and her staff Eva Kutas and Jodi Simmons; Lyn Rucker, Community Coordinator;

and former Director of the Arc of New Mexico, Veronica Chavez Newman.

6

See COMMENTS (Doc. No. 2297).

7

See ORDER GRANTING JOINT MOTION TO EXTEND DEADLINES (Doc. No. 2287).

8

The Intervenors appealed Jackson I, arguing “that the court erred by enjoining defendants from considering the

present availability of community facilities when deciding whether to recommend a resident for community

placement.” See Jackson by Jackson v. Fort Stanton Hosp. and Training School, 964 F.2d 980, 987 (10th Cir. 1992).

The Tenth Circuit agreed with the Intervenors and reversed the Court solely on that issue.

9

JCMs is an abbreviation of “Jackson Class Members.”

10 See COMPLAINT (Doc. No. 1). The Court certified the class on May 23, 1989. See MEMORANDUM OPINION AND ORDER (Doc. No. 395). On February 24, 1995, the Court granted the Plaintiffs’ motion to reconfigure the class. See MEMORANDUM OPINION AND ORDER (Doc. No. 890). The Jackson class consists of all persons who were residents at Fort Stanton and Los Lunas on July 8, 1987, the date of filing the Complaint, all persons who became residents of those institutions while the litigation was pending; and all those who were transferred from those institutions to skilled nursing facilities, intermediate care facilities, homes for the aged and similar facilities and whose service were funded in whole or in part by Defendants. Id.

11 See ORDER (Doc. No. 163). There were over 125 Intervenors. The Intervenors sought to require the Defendants to bring the institutions into compliance with federal law and the United States Constitution but opposed any effort to close the institutions and transition the residents to community-based facilities.

12 See COMPLAINT IN INTERVENTION (Doc. No. 171).

13 The areas were: “(1) Individual program plans, (2) Medical records, (3) Discharge plans, (4) Data collection, (5) Qualified mental retardation professional services, (6) Behavior management, (7) Use of physical restraints, (8) Prevention of abuse of residents, (9) Reduction of accidents and injuries to residents, (10) Reports of abuse, accidents and injuries, (11) Staff supervision, (12) Preservice training of staff, (13) In-service training of staff, (14) Sufficiency of professional staff, (15) Adaptive equipment, (16) Functional and chronologically age appropriate programming, (17) Coordination between residential areas and training program areas, and (18) Inadequate space in training program area. Jackson I, 757 F. Supp. at 1315-16.

14 See JOINT STATUS REPORT FOR 1992 (Doc. No. 769).

15 See PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THE COMPLAINT BY INTERLINEATION (Doc. No. 803).

16 See MEMORANDUM OPINION AND ORDER (Doc. No. 831) (Order Granting Leave to Amend).

17 See DEFENDANTS’ AND PLAINTIFFS’ JOINT MOTION FOR MODIFICATION OF DECEMBER 28, 1990 ORDER (Doc. No.

Jackson v. Los Lunas Center, Slip Copy (2019)
841) and DEFENDANTS’ MEMORANDUM IN SUPPORT OF JOINT MOTION FOR MODIFICATION OF DECEMBER 28, 1990 ORDER (Doc. No. 842).
18 See ORDER CONCERNING FORT STANTON (Doc. No. 893).
19 The Court has found that these orders are consent decrees and the parties agree. See Jackson II, 2016 WL 9777237 at *9.
20 See ORDER APPROVING STIPULATION ON DISENGAGEMENT (Doc. No. 1064)
21 See ORDER ADOPTING JOINT STIPULATION (Doc. No. 1474) (Appendix A)
22 See ORDER AMENDING TABLE IV (FINAL EVALUATIVE COMPONENTS) (Doc. No. 2044); STIPULATION AND ORDER OF DISENGAGEMENT (Doc. 2052) (adopting Revised Table IV).
23 See ORDER APPROVING STIPULATION ON DISENGAGEMENT (Doc. No. 1064).
24 It does not appear that the 139-page Plan of Action was docketed although the Court has a copy of the twice revised plan in its files.
25 When citing to the JSD, the Court will use the numbers the Clerk has stamped in the upper right-hand corner.
26 The Appendices included: (1) quality enhancement, (2) community incident management system, (3) training, (4) management information systems, (5) individual service planning, (6) case management, (7) behavioral services, (8) crisis response, (9) sexuality, (10) supported employment, (11) assistive technology, (12) medical services, (13) regional offices. Plan of Action (1047-1) at 29.
27 The two additional appendices included the 1996 Audit Recommendations and the Ashton Recommendations. On April 29, 1999 and on May 31, 2000, the Plan of Action was revised. See Jackson II, 2016 WL 9777237 at *3.
28 See JOINT STIPULATION ON AGREED ACTIONS TO COMPLY WITH [JSD] AND PLAN OF ACTION AND TO RESOLVE PENDING MOTIONS TO SHOW CAUSE AND TO RE-ENGAGE (Doc. No. 1473).
29 ORDER ADOPTING JOINT STIPULATION (Doc. No. 1474).
30 See PLAINTIFFS’ MOTION FOR FURTHER REMEDIAL RELIEF TO ADDRESS DEFENDANTS’ NONCOMPLIANCE (Doc. No. 1590) and MOTION FOR FURTHER REMEDIAL RELIEF TO ADDRESS DEFENDANTS’ NONCOMPLIANCE (Doc. No. 1731).
31 On December 21, 2007, the Court appointed Dr. Sue Gant as a Rule 706 Expert. See ORDER APPOINTING RULE 706 EXPERT (Doc. No. 1610). As a Rule 706 Expert, Dr. Gant was “to substantially assist the Court in the determination of compliance with the orders of the Court, including the Joint Stipulation on Disengagement, the Plan of Action, the 1998 Audit Recommendations and the May 21 [sic], 2005 Stipulation and Appendix A.” Id. at 1.
32 See ORDER (Doc. No. 1798).
33 See PLAINTIFFS’ MEMORANDUM CONCERNING THE COURT’S AUTHORITY TO APPOINT A JACKSON COMPLIANCE ADMINISTRATOR (Doc. No. 1882) and Defendants Response, DEFENDANTS’ MEMORANDUM REGARDING THE COURT’S AUTHORITY TO APPOINT A JACKSON COMPLIANCE ADMINISTRATOR (Doc. No. 1885).
34 See RENEWED MOTION FOR FURTHER REMEDIAL RELIEF TO REMEDY NONCOMPLIANCE (Doc. No. 1888).
35 See FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER (Doc. No. 1930) (2012 Order).

Jackson v. Los Lunas Center, Slip Copy (2019)
36 See ORDER APPOINTING JACKSON COMPLIANCE ADMINISTRATOR (Doc. No. 1942).
37 See ORDER AMENDING TABLE IV (FINAL EVALUATIVE COMPONENTS) (Doc. No. 2044); NOTICE OF SUBMISSION OF REVISED TABLE IV (Doc. No. 2046); STIPULATION AND ORDER OF DISENGAGEMENT (Doc. No. 2052) (adopting Revised Table IV)
38 See COMPREHENSIVE LIST OF OUTSTANDING OBLIGATION AND TIMETABLE (Doc. No. 2041) (attaching a list of all outstanding obligations and timetable).
39 In total there have been 4 Rule 60(b)(5) motions. As observed infra at p. 6, Defendants first Rule 60(b)(5) motion asked only to vacate the part of Jackson I that affected Fort Stanton.
40 See DEFENDANTS’ MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO Fed. R. Civ. P. 60(b)(5) and REQUEST FOR EXPEDITED ORAL ARGUMENT (Doc. No. 1101).
41 See MEMORANDUM OPINION AND ORDER (Doc. No. 1132).
42 See DEFENDANTS’ RULE 60(b)(5) MOTION AND SUPPORTING MEMORANDUM TO TERMINATE ALL REMAINING ORDERS IN JACKSON et al. v. FSH&TS et al. (Doc. No. 1830) (2011 60(b)(5) Motion).
43 See VERIFIED RULE 60(b)(5) MOTION AND SUPPORTING MEMORANDUM TO TERMINATE ALL REMAINING ORDERS IN JACKSON et al. v. FSH&TS et al. (Doc. No. 2053) and DEFENDANTS’ REPLY IN SUPPORT OF VERIFIED RULE 60(b)(5) MOTION AND SUPPORTING MEMORANDUM TO TERMINATE ALL REMAINING ORDERS IN JACKSON et. at. V. FSH&TS et al. (Doc. No. 2071) (Rule 60(b)(5) Motion).
44 See PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TERMINATE ALL REMAINING COURT ORDERS AND DISMISS THE CASE (Doc. No. 2063).
45 See DEFENDANTS’ SUPPLEMENTATION TO DEFENDANTS’ VERIFIED RULE 60(b)(5) MOTION AND SUPPORTING MEMORANDUM TO TERMINATE ALL REMAINING ORDERS IN JACKSON et al. v. FSH&TS et al. [Doc. 2053] (Doc. No. 2188) (Supplement).
46 See ORDER ON AMENDED JOINT STIPULATION ON PRE-TRIAL SCHEDULE AND DISCOVERY (Doc. 2272); see also ORDER GRANTING JOINT MOTION TO EXTEND DEADLINES (DOC. 2287) (extending pretrial deadlines only).
47 Hereinafter, “DOH.”
48 The first provision acknowledges that preliminary approval of the Settlement Agreement resulted in the cessation of the JCA’s monitoring functions.
49 The required data for the first quarter will be provided on October 15, 2019, consistent with the terms of the Settlement Agreement. The next date for production of the contemplated data will be January 15, 2020.
50 See DECLARATION OF PETER CUBRA, ESQ. REGARDING COMMENTS ON APRIL 17, 2019 SETTLEMENT AGREEMENT (Doc. No. 2299-2) (Declaration).

 
 Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2019)

2019 WL 5789243 Only the Westlaw citation is currently available.
United States District Court, D. New Mexico.
Walter Stephen JACKSON, et al., Plaintiff, v.
LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, et al., Defendants. and The Arc of New Mexico, Intervenors, and Mary Terrazas, et al., Intervenors. pro se
Civ. No. 87-0839 JAP/KBM |
Filed 11/06/2019
Attorneys and Law Firms
Cathy Costanzo, Center for Public Representation, Northampton, MA, Peter Cubra, Law Office of Peter Cubra, Philip B. Davis, Philip B. Davis, Attorney at Law, Tim Gardner, Protection & Advocacy System, Nancy Koenigsberg, Disability Rights New Mexico, Nancy L. Simmons, Law Offices of Nancy L. Simmons PC, Albuquerque, NM, Ann Tilford McCartney, Los Lunas, NM, Debra D. Poulin, Law Office of Debra D. Poulin, Santa Fe, NM, Steven Schwartz, Center for Public Representation, Northampton, MA, for Plaintiff Developmentally Disabled New Mexicans, Inc., Supporters of.
James J. Grubel, Alfred A. Park, Park & Associates, LLC, Albuquerque, NM, Christopher D. Woodward, Department of Health Office of General Counsel, Santa Fe, NM, for Defendant Fort Stanton Hospital and Training School.
Billy J. Jimenez, Adams+Crow Law Firm, Jerry A. Walz, Walz and Associates, Albuquerque, NM, for Defendant Los Lunas Center for Persons with Developmental Disabilities.
Paul R. Ritzma, NM Human Services Department, Santa Fe, NM, for Defendant New Mexico Human Services Department.
Maureen A. Sanders, Sanders & Westbrook, PC, Albuquerque, NM, for Intervenor ARC of New Mexico.
Taylor S. Rahn, Robles, Rael & Anaya, P.C., for, Albuquerque, NM, for Defendants, the Department of

Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, and New Mexico Human Services Department.
MEMORANDUM OPINION AND ORDER
JAMES A. PARKER, SENIOR UNITED STATES DISTRICT JUDGE
*1 On October 3, 2019, Defendants filed two motions: DEFENDANTS’ MOTION FOR INJUNCTIVE RELIEF REGARDING ACTIONS OF COMMUNITY MONITOR (Doc. No. 2318) (Motion for IR); and DEFENDANTS’ MOTION TO ENFORCE THE SETTLEMENT AGREEMENT AS TO THE OPERATION OF THE INDIVIDUAL QUALITY REVIEW AND DECLARE REVIEWER QUALIFIED (Doc. No. 2319) (Motion to Qualify). At a quarterly meeting held on October 9, 2019, Plaintiffs argued that Defendants’ Motion to Qualify was not ripe. The Court asked for further briefing confined to that question. On October 21, 2019, Plaintiffs responded to the Motion to Qualify,1 and on October 25, 2019, Defendants replied.2 Subsequently, on October 30, 2019, Plaintiffs responded to the Motion for IR.3
Both motions ask the Court to clarify the procedure outlined in ¶ 15 of the Settlement Agreement (SA) as it applies to state employees going through the qualification process to become a reviewer for the Individual Quality Review (IQR). After considering the briefs of the parties,4 the language of the SA, and applicable law, the Court will grant, in part, Defendants’ Motion to Qualify and will deny as moot Defendants’ Motion for IR.
FACTS AND PROCEDURAL BACKGROUND
The factual background of this 32-year-old case is well documented and known by all parties, and the Court will not repeat it here.
On April 17, 2019, the parties jointly filed a motion

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2019)

asking the Court to give preliminary approval to a settlement agreement,5 which the Court granted on April 19, 2019.6 On June 4, 2019, the parties filed a motion asking the Court to give final approval to the SA.7 On June 21, 2019, the Court granted the parties’ motion.8
The SA states that its purpose is “to memorialize a resolution that allows the Court to conclusively end this litigation and terminate all orders and decrees relating to this matter with a durable remedy in place.” SA (Doc. No. 2299-1) at ¶ 1. The MOO terminated all outstanding orders and Consent decrees, excepting three: the Court’s 1992 dispositive opinion, the order allowing the plaintiffs to amend the complaint and the order to reconfigure the class.9
ANALYSIS
*2 Defendants’ two motions filed on October 3, 2019 arise from conflicting interpretations of ¶ 15 of the SA, which focuses on the IQR process. The IQR process is implemented by reviewers who evaluate the care of Jackson class members. Before becoming an IQR reviewer, an individual must become qualified through a three-step progression. At the completion of the three-steps, a reviewer will either be determined qualified or unqualified. In relevant part, ¶ 15 provides:
The current Community Monitor, Lyn Rucker, will continue to transfer the IQR process to DHI and complete the transfer by June 30, 2020. During this transfer period, the Defendants will hire and employ a total of at least five reviewers and one supervisor, each of whom will pass a core competency test, will be mentored in at least one region, and will independently complete reviews in a second region. At that time, the Community Monitor and the state supervisor jointly will evaluate the state staff person and determine if the individual is qualified to conduct the IQR. In the event that the Community Monitor and the state supervisor disagree, the matter will be submitted to the Court

which will make a final decision.
SA (Doc. No. 2299-1) at ¶ 15.
Both parties agree that historically the Community Monitor, Lyn Rucker (CM), has determined each part of the three steps. But Defendants argue that now, under the plain language of ¶ 15, only the Division of Health Improvement of New Mexico’s Department of Health (DHI) may determine the requirements of each step. Accordingly, in the Motion to Qualify, Defendants ask the Court to decide that a specific state employee is a qualified IQR reviewer. Alternatively, Defendants ask the Court to conclude that the State has the authority to determine when a reviewer may move from one step to another. In the Motion for IR, Defendants ask the Court to conclude that ¶ 15 does not give the CM authority to enforce the three-step reviewer qualification process she has historically overseen. In opposition, Plaintiffs argue that neither issue is ripe for the Court’s review, and that even if the issue was ripe, Defendants’ motions should be denied as improper attempts to modify ¶ 15 of the SA.
A. Motion to Qualify
1. Whether This Issue is Properly Before the Court As a preliminary matter, the Court must consider whether Defendants’ motions are properly before the Court. Defendants argue that ¶ 15 of the SA contemplates the Court’s resolution of this dispute when it states: “In the event that the Community Monitor and the state supervisor disagree, the matter will be submitted to the Court which will make a final decision” (disagreement sentence). Id. This language, Defendants argue, applies to any disagreement about the entire reviewer qualification process.
Not so, Plaintiffs say. They contend that the disagreement sentence applies only to disagreements arising from the CM and state supervisor’s final joint evaluation of a potential reviewer at the conclusion of the three-steps. Because step three has not yet occurred and there has been no joint review, Plaintiffs argue that the Motion to Qualify is not properly before the Court.
The disagreement sentence does not specifically state whether it applies to each of the three steps or just to the final qualification decision. But the Court’s authority to

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examine this issue does not originate from the disagreement sentence but from its inherent authority. As the SA states: “The Court retains the inherent authority to interpret, clarify, modify or enforce this Settlement Agreement.” SA (Doc. No. 2299-1) at ¶ 20; see also United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993) (observing “[a] trial court has the power to summarily enforce a settlement agreement entered into by the litigants while the litigation is pending before it.”). Although the Motion to Qualify is couched as a clash about whether a potential reviewer is qualified, at its core, this motion comes from a disagreement between the parties over the meaning of the language in ¶ 15. On that matter, there can be no dispute that the Court retains its authority to interpret, clarify, and enforce the terms of the SA.
*3 Alternatively, Plaintiffs argue that as a prudential matter the issue is not ripe for the Court’s review. “The purpose of the ripeness doctrine is to prevent the premature adjudication of abstract claims.” Tex. Brine Co., LLC and Occidental Chem. Corp., 879 F.3d 1224, 1229 (10th Cir. 2018). A court should consider two factors: “ ‘(1) the fitness of the issue for judicial review,’ and (2) ‘the hardship to the parties from withholding review.’ ” United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019) (quoting United States v. Bennett, 823 F.3d 1316, 1326 (10th Cir. 2016)).
Plaintiffs contend that because the state employee has not completed the final step of the three-step qualification process, it is premature for the Court to decide whether the state employee is qualified as a reviewer. In opposition, Defendants argue that the matter is ripe because the central issue is not the qualification of the employee but control of the three-step reviewer qualification process. Moreover, Defendants assert, if the Court adopts the Plaintiffs’ argument, the matter will never be ripe for Court review. Defendants posit this will create hardship for the Defendants because if the CM controls the content and the reviewers’ progression through the three steps, no state employee will arrive at the third step unless and until the CM permits the state employee to do so.
The Court agrees with Defendants. The pivotal question before the Court is not whether a reviewer is qualified, but who controls the three-step reviewer qualification process. Both parties look to the plain terms of the SA. An assertion that the language of a settlement agreement precludes a claim relates to the merits of an action, not to the ripeness of a claim. See Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1276 (10th Cir. 2012). While Plaintiffs are correct that the state employee in question has not yet completed all three steps, the dispute

between the parties centers on whether the language of ¶ 15 requires her to progress through those steps in a manner determined by the CM. Because the actual disagreement focuses on the language of the SA, the issue is properly before the Court.
2. The Language of ¶ 15 “A settlement document is a contract and is construed using ordinary principles of contract interpretation.” Anthony v. United States, 987 F.2d 670, 673 (10th Cir. 1993) (further citation omitted). As a contract, “ ‘[i]ssues involving the formation and construction of a purported settlement agreement are resolved by applying state contract law.’ ” Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013) (quoting Schoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004) (alteration in original)). The parties created and entered into the SA in New Mexico, so New Mexico contract law applies.10
*4 When examining a contract, a court must first determine if the contract is ambiguous. Generally, a contract is ambiguous when it is “ ‘reasonably and fairly susceptible of different constructions.’ ” LensCrafters, Inc. v. Keho, 282 P.3d 754, 763 (N.M. 2012) (quoting Allsup’s Convenience Stores, Inc. v. North River Ins. Co., 976 P.2d 1, 12 (N.M. 1998)); Lucero, Jr. v. Northland Ins. Co., 346 P.3d 1154, 1159–60 (N.M. 2015) (holding that a contract is ambiguous when it may have two reasonable but conflicting meanings). A contract with clear terms is conclusive. Cont’l Potash, Inc. v. Freeport-McMoran, Inc., 858 P.2d 66, 80 (N.M. 1993) (“The purpose, meaning and intent of the parties to a contract is to be deduced from the language employed by them; and where such language is not ambiguous, it is conclusive” (citations omitted)). “The question whether an agreement contains an ambiguity is a matter of law to be decided by the trial court.” Mark V, Inc. v. Mellekas, 845 P.2d 1232, 1235 (N.M. 1993) (citation omitted). A mere disagreement between the parties about the construction of the contract does not make it ambiguous. LensCrafters, 828 P.3d at 763.
The SA “replaces all existing orders of the Court and will be the sole source of Defendants’ remaining obligations to class members during the Term of this Settlement Agreement.” SA (Doc. No. 2299-1) at ¶ 4. (emphasis added). As the sole source of Defendant’s obligations, the plain language of the SA controls. The plain language of ¶ 15 states that to become qualified, a reviewer must go through three steps. The parties disagree about who establishes and who implements those steps. Plaintiffs assert that the answer to those questions can be found in

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2019)

the meaning of the terms IQR and CM. As the SA does not provide an explicit definition for those terms, Plaintiffs argue that CM and IQR can only be understood in the context provided by the history of this litigation. According to Plaintiffs, because the CM has always implemented the IQR and overseen the reviewer qualification process those traditional roles were contemplated by the language of ¶ 15. Defendants reject Plaintiffs’ historical argument on the basis that the SA vacated all previous relevant orders. Defendants assert that the plain language of ¶ 15 and its stated purpose to transfer control from the CM to DHI indicates that DHI has authority over both the content and the implementation of the three-step reviewer qualification process. While the Court agrees with Plaintiffs that the plain language of the SA gives the IQR process historical context, the Court finds no similar support for Plaintiffs’ argument about the role of the CM.
The language of ¶ 15 defines the IQR process in terms of how it is performed. It requires DHI “[to] conduct the IQR process, with technical assistance from [the CM], using a substantially similar sampling, protocol instrument, review, and data reporting methodology through June 30, 2021” (substantially similar sentence). Id. The use of the phrase “substantially similar” followed by a list of requirements indicates that the IQR is to conform to or to be substantially like the IQR that has been used over the years. The fact that it will be conducted with “technical assistance” from the CM reinforces this meaning. Notably, nothing in ¶ 15 suggests that qualifying reviewers is part of the IQR process, so we must look elsewhere for information about the CM’s role.
The second and third sentences of ¶ 15 address how reviewers become qualified. In the second sentence, the parties stated: “Defendants will hire and employ” reviewers (hire and employ sentence). The latter part of the hire and employ sentence describes the three steps those individuals who Defendants hire and employ must complete to become reviewers. In the hire and employ sentence, the CM is neither a subject nor a named participant. The CM’s contributions are contemplated only in the third sentence which states that, at the end of the qualification progression, the CM and the state supervisor “jointly will evaluate the state staff person and determine if the individual is qualified to conduct the IQR.” Id. The plain language of the second sentence indicates that Defendants will control the three-step reviewer qualification process.
*5 Plaintiffs rebut this conclusion by asserting that the three-step reviewer qualification process previously used by the CM is imported into the hire and employ sentence through the prepositional phrase, “[d]uring the transfer

period” that begins the second sentence. Id. According to Plaintiffs, the CM must be involved and is imported as the “doer” of the three-steps because the CM is required to do the transferring. This construction strains the meaning of that phrase. “During” is a preposition used before a noun to show when something happens. Thus, the prepositional phrase describes a time period for the transfer of the IQR process, which will occur between the signing of the SA and June 30, 2020, when the CM position ends. The language does not support the CM as a doer of the verbs “hire and employ.”
Alternatively, Plaintiffs argue that the CM’s three-step reviewer qualification process is imported into the second sentence because both parties to the SA understood that qualifying reviewers has been one of the CM’s historical duties. Plaintiffs state, “[f]or years, these professionals were independent consultants to the Community Monitor, selected by the Community Monitor, paid through the Community Monitor, and ultimately responsible to the Community Monitor.” Response (Doc. No. 2326) at p. 9.11 But Plaintiffs’ interpretation ignores that nowhere does ¶ 15 reference the CM’s historical reviewer qualification process, while it does specifically reference the historical IQR and directs that the current IQR conform in a substantially similar manner. Paragraph 15’s mandatory language indicating that the State must use an IQR process “substantially similar” to the CM’s established one indicates that if the parties had wanted to similarly limit the three-step reviewer qualification process to the historical one established and used by the CM, they would have done so. They did not.
Finally, the Court observes that ¶ 15’s delegation of responsibilities straddles the line between recognizing Plaintiffs’ need for an immediate recovery and the State’s autonomy. In the opinion remanding this Court’s denial of Defendants Rule 60(b)(5) motion, the Tenth Circuit emphasized that ongoing court oversight raised federalism concerns. See Jackson v. Los Lunas Community Program et al., 880 F.3d 1176, 1204 (10th Cir. 2018) (observing “[o]nce the offending condition has been cured, the [Supreme Court] has instructed that responsibility over the state program must be returned promptly to the state and its officials.”). The parties entered the SA because they concurred that “a durable remedy is not only attainable, but structurally present in the State’s current policies, procedures, and standards.” MOO (Doc. No. 2304) at 24 (emphasis added). Paragraph 15’s delegation of the three-step reviewer qualification process to the State while calling on the CM’s considerable experience in the final evaluation of each reviewer recognizes the role both Plaintiffs and Defendants have in the implementation of a durable remedy and eliminates concerns about continued court oversight.

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2019)

In sum, the plain language of ¶ 15 gives control over the three-step reviewer qualification process to Defendants, and consequently only DHI has the authority to determine if a potential reviewer is ready to move to the next step. It is only at the end of that progression, during the joint evaluation of the state employee, that the CM plays a role. Because the Court has determined that, as a matter of law, the plain language of the SA controls the outcome of this dispute, Plaintiffs’ argument that Defendants’ interpretation modifies the terms of the SA has no merit; therefore, Plaintiffs’ request for an evidentiary hearing is denied.
*6 In the Motion to Qualify, Defendants also asked the Court to determine whether under the terms of ¶ 15 a specific reviewer is qualified. Defendants admit that the reviewer has not yet completed all three steps of the training nor has she been jointly evaluated by the CM and the state supervisor. Because the reviewer has not completed the third step of the reviewer qualification process or been jointly evaluated by the state supervisor and the CM, the Court finds that it is premature to consider this issue. After the reviewer has completed the three steps as implemented by DHI and then has been evaluated, if the parties cannot agree on whether the reviewer is qualified, the parties may resubmit this issue.

B. Motion for IR Defendants’ second motion asks the Court to enjoin the CM from implementing and enforcing her three-step reviewer qualification process on DHI employees. As the Court has found that under the plain language of the SA, Defendants control both the content of the three-step reviewer qualification process and its implementation, this motion is now moot.
IT IS ORDERED THAT:
1. DEFENDANTS’ MOTION TO ENFORCE THE SETTLEMENT AGREEMENT AS TO THE OPERATION OF THE INDIVIDUAL QUALIFY REVIEW AND DECLARE REVIEWER QUALIFIED (Doc. No. 2319) is GRANTED IN PART and DENIED IN PART;
2. DEFENDANTS’ MOTION FOR INJUNCTIVE RELIEF REGARDING ACTIONS OF THE COMMUNITY MONITOR (Doc. No. 2318) is DENIED as moot.
All Citations
Slip Copy, 2019 WL 5789243

Footnotes

1

See PLAINTIFFS’ INITIAL OPPOSITION TO DEFENDANTS’ MOTION TO DECLARE AN IQR REVIEWER QUALIFIED (Doc.

No. 2326) (Response).

2

See DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO ENFORCE THE SETTLEMENT AGREEMENT AS TO THE

OPERATION OF THE INDIVIDUAL QUALITY REVIEW AND DECLARE A REVIEWER QUALIFIED (Doc. No. 2328) (Reply to

Motion to Qualify).

3

See PLAINTIFFS’ AND THE ARC’S INITIAL OPPOSITION TO DEFENDANTS’ MOTION FOR INJUNCTIVE RELIEF

REGARDING ACTIONS OF COMMUNITY MONITOR (Doc. No. 2331) (Response to Motion for IR).

4

Defendants have not yet replied to the Response to Motion for IR. However, because the Court does not address

the merits of this motion, no reply is necessary.

5

See JOINT MOTION TO PRELIMINARILY APPROVE SETTLEMENT AGREEMENT (Doc. No. 2289).

6

See ORDER PRELIMINARILY APPROVING SETTLEMENT AGREEMENT (Doc. No. 2292).

7

See JOINT MOTION TO FINALLY APPROVE SETTLEMENT AGREEMENT (Doc. No. 2299) and SETTLEMENT AGREEMENT

(Doc. No. 2299-1).

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2019)

8

See MEMORANDUM OPINION AND ORDER APPROVING SETTLEMENT AGREEMENT (Doc. No. 2304) (MOO).

9

See Jackson by Jackson v. Fort Stanton Hosp. and Training School, 757 F.Supp. 1243 (D.N.M. 1990) rev’d in part, 964

F.2d 980 (10th Cir. 1992) (Doc. No. 679); MEMORANDUM OPINION AND ORDER (Doc. No. 831)(granting Plaintiffs’

motion to amend the Complaint by interlineation to include a claim under the American with Disabilities Act, 42

U.S.C. § 12101 et. seq.); and MEMORANDUM OPINION AND ORDER (Doc. No. 890) (reconfiguring the class).

10 Plaintiffs argue that federal common law applies to contract interpretation of federal questions, citing Chavez v. New Mexico, 397 F.3d 826, 831 (10th Cir. 2005). In Chavez, the Tenth Circuit held that “ ‘the enforcement and interpretation of Title VII cases are governed by federal common law because such settlements are ‘inextricably linked’ to the underlying law of Title VII.’ ” (quoting Heuser v. Kephart, 215 F.3d 1186, 1190 (10th Cir. 2000)). The Court went on to observe that although Chavez was a Title VII case, the parties had agreed that New Mexico contract law applied and the “ ‘applicable principles of contract law are not different in federal and New Mexico law.’ ” Id. (quoting Heuser, 215 F.3d at 1191). Although this case does not arise under Title VII, Plaintiffs state that federal common law should apply because there are federal and constitutional law issues. Plaintiffs did not provide any authority for this argument, and because the Tenth Circuit concluded that principles of contract law in New Mexico and federal common law are substantially similar, the Court will apply New Mexico law.

11 The Court acknowledges that for many years, Lyn Rucker, the CM has performed her duties in a diligent outstanding manner. However, her past performance is not the issue. The Court is simply tasked with divining the meaning of the language chosen by the parties.

 
 Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2020)

2020 WL 1676648 Only the Westlaw citation is currently available.
United States District Court, D. New Mexico.
Walter Stephen JACKSON, et al., Plaintiff, v.
LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, et al., Defendants. and The Arc of New Mexico, Intervenors, and Mary Terrazas, et al., Intervenors. pro se
Civ. No. 87-0839 JAP/KBM |
Filed 04/05/2020
Attorneys and Law Firms
Cathy Costanzo, Steven Schwartz Center for Public Representation, Northampton, MA, Peter Cubra, Law Office of Peter Cubra, Philip B. Davis, Philip B. Davis, Attorney at Law, Tim Gardner, Protection & Advocacy System, Robert E. Hanson Peifer, Hanson, Mullins & Baker, P.A., Nancy Koenigsberg, Disability Rights New Mexico, Nancy L. Simmons, Law Offices of Nancy L. Simmons PC, Flynn Evelyn Sylvest, Albuquerque, NM, Ann Tilford McCartney, Los Lunas, NM, Debra D. Poulin, Law Office of Debra D. Poulin, Santa Fe, NM, for Plaintiff Developmentally Disabled New Mexicans, Inc., Supporters of.
James J. Grubel, Alfred A. Park, Park & Associates, LLC, Albuquerque, NM, Christopher D. Woodward, Department of Health, Santa Fe, NM, for Defendant Fort Stanton Hospital and Training School.
Billy J. Jimenez, Adams+Crow Law Firm, Jerry A. Walz, Walz and Associates, Albuquerque, NM, for Defendant Los Lunas Center for Persons with Developmental Disabilities.
Paul R. Ritzma, NM Human Services Department, Santa Fe, NM, for Defendant New Mexico Human Services Department.
Taylor S. Rahn, Robles, Rael & Anaya, P.C., for, Albuquerque, NM, for Defendants, the Department of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, and New Mexico Human Services Department.

MEMORANDUM OPINION AND ORDER
JAMES A. PARKER, SENIOR UNITED STATES DISTRICT JUDGE
*1 On December 23, 2013, Defendants Los Lunas Center for Persons with Developmental Disabilities, et al. (Defendants) filed a MOTION TO DISENGAGE PARAGRAPH 7 OF THE SETTLEMENT AGREEMENT (Doc. 2342) (Motion). The Motion asserts that Defendants are in substantial compliance with actions delineated in paragraph 7 (¶ 7) of the parties’ Settlement Agreement (Doc. No. 2299-1) (SA) and asks the Court to terminate its oversight of all activities listed in ¶ 7.
On January 28, 2020, Plaintiffs Walter Stephen Jackson et al. and Intervenors The Arc of New Mexico and Mary Terrazas et al. (jointly, Plaintiffs) filed a Response opposing disengagement of ¶ 7. See PLAINTIFFS’ AND THE ARC OF NEW MEXICO’S OPPOSITION TO DEFENDANTS’ MOTION TO DISENGAGE PARAGRAPH 7 (Doc. 2352) (Response). On February 18, 2020, Defendants filed their REPLY IN SUPPORT OF MOTION TO DISENGAGE PARAGRAPH 7 OF THE SETTLEMENT AGREEMENT (Doc. 2367) (Reply).
The Motion is fully briefed. The Court finds that Defendants have shown substantial compliance with ¶ 7 and will grant the Motion.
THE SETTLEMENT AGREEMENT
On June 21, 2019, the Court entered an order approving the parties’ final SA. The SA “replaces all existing orders of the Court and will be the sole source of Defendants’ remaining obligations to class members during the term of [the] Settlement Agreement.” SA (2299-1) ¶ 4. Part III of the SA, entitled “Actions to Resolve the Litigation,” lists the actions Defendants must take to terminate the litigation. Before termination, Defendants must show compliance with each action item.

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2020)

Section V of the SA “Compliance and Disengagement” specifies that Defendants must implement all action items within 18 months of the date of the Court’s final approval of the SA. Id. ¶ 17. Although the Court’s written order of final approval was not entered until June 21, 2019, the Court gave final approval at the hearing on June 12, 2019. Eighteen months from June 12, 2019 establishes a termination date of December 12, 2020 (or midnight Friday, December 11, 2020).
The SA requires Defendants to provide specific quarterly data on the action items, with the first relevant quarter commencing on July 15, 2019. Id. ¶ 18. The procedure for disengaging from any action item is described in ¶ 19:
When the Defendants believe they have substantially implemented an Action set forth in Section III of this Settlement Agreement, they will notify the Plaintiffs and Intervenor Arc. The notice will state the basis for the Defendants’ belief that they have substantially implemented the Actions(s), including the facts then known supporting their claim of compliance. At any time after thirty days from this notice, the Defendants may file a motion for a finding of partial compliance and disengagement of the Action(s). If the motion is contested, the parties will request that the Court hold a hearing and enter its findings and conclusions.1 If the Court determines that the Defendants have complied with the Action(s) of this Settlement Agreement, it will terminate its oversight of that Action(s). In such event, the Defendants will no longer be required to report on these Action(s) or compensate the Plaintiffs for attorney time spent monitoring such Action(s).
*2 But disengagement from a specific action does not end the Defendants’ obligations on that action. Until the SA is terminated, Defendants must continue sustained compliance with all actions. Id. ¶ 21.

The subject of this Motion, ¶ 7, addresses Incident Management and outlines the process for investigating Abuse Neglect and Exploitation (ANE) of Jackson class members. These cases are either substantiated, meaning that the investigation has uncovered evidence of ANE, or unsubstantiated, meaning that the investigation has not found evidence of ANE. See Ex. D (Doc. 2342-4) at 1 (Policy DIV.DHI.13.09(13.260.006). Paragraph 7 states:

The Defendants will conduct timely

and adequate investigations and

take necessary remedial actions, as

required by current DHI policies

and procedures including

Immediate Action and Safety Plan:

Procedure and Guidelines;

DIV.DHI.IMB. 13.260.003—IMB

Conducting Investigations of

Abuse, Neglect, and Exploitation

(ANE):

DIV.DHI.IMB.

13.260.005—IMB Investigation

Quality Assurance Review,

including its Operational Procedure

Detail; and DIV.DHI.IMB

13.260.006—Corrective

and

Preventive Action Plans.

SA (Doc. 2299-1) ¶ 7. The New Mexico Department of Health (NMDH) Incident Management Bureau (IMB) conducts investigations of ANE. The three policies listed in ¶ 7 describe the procedures for an IMB investigation.
Two of the policies involve the procedures for investigating the ANE: IMB Conducting Investigations of Abuse, Neglect & Exploitation and IMB Corrective and Preventive Action Plans. See Motion, Ex. B (Doc. 2342-2), Ex. D (Doc. 2342-4). The third policy, the Quality Assurance Review (QAR), examines whether the resulting investigation complied with the requirements of NMDH’s policies and procedures. See id., Ex. C (Doc. 2342-3). When IMB conducts a QAR, it uses a Quality Assurance tool (QA tool) developed by the Jackson Compliance Officer, Dr. Sue Gant (JCA) and her consultants, to assess the investigation. Id., Ex. E (Doc. No. 2342-5) ¶ 4. The State began testing and using the QA tool in January 2016, and it was finalized in fall 2018. Id. ¶ 7. Each QA report gets two scores: a quality score and a process score. Id. ¶ 12. The scores are equally weighted for a total score. Id. ¶ 13. Under the State policy, a score of 90 percent is the compliance threshold. Id. ¶ 14.

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2020)

Defendants assert that in the first quarter of fiscal year 2020, Defendants’ IMB investigations, as analyzed by the QA tool, received an average score of 91 percent.

and 3) Defendants’ IMB investigations were flawed.

LEGAL STANDARD
The Motion asks the Court to find that Defendants have substantially complied with ¶ 7 of the SA. Substantial compliance is a contract doctrine meant “to assist the court in determining whether conduct should, in reality, be considered the equivalent of compliance under the contract.” Joseph A. by Wolfe v. New Mexico Dep’t. of Human Servs., 69 F.3d 1081, 1086 (10th Cir. 1995) (citing John D. Calamari & Joseph M. Perillo, The Law of Contracts § 11-15 at 454 (3d ed. 1987)). “Thus, the touchstone of the substantial compliance inquiry is whether Defendants frustrated the purpose of the consent decree—i.e. its essential requirements.” Id. at 1086. In the Court’s 2015 MOO, this Court stated “[t]he substantial compliance inquiry asks whether Defendants took the required specific steps in furtherance of the essential purposes and intent of the consent decree.” Jackson v. Los Lunas Center, 2015 WL 13662981 *5 (D.N.M. 2015). When a settlement agreement identifies the steps that must be taken to meet its criteria, those criteria must be met to show substantial compliance. See Wolfe, 69 F.3d at 1086.
ANALYSIS
*3 The SA states that its purpose is “to identify those services, safeguards, and protections from harm that will be provided to the plaintiff class and to ensure that a durable remedy is in place when this litigation ends and this case is dismissed.” SA (Doc. 2299-1) ¶ 1. Toward that end, ¶ 7 identifies specific criteria that must be met to demonstrate a durable remedy and the standard for evaluating the performance of that criteria. Supporting documentation for Defendants’ Motion demonstrates in fiscal year (FY) 2020, quarter one, as evaluated by the QA tool, IMB investigations received an average score of 91 percent.
Plaintiffs object to disengagement on three grounds: 1) Defendants have not demonstrated that they have been in substantial compliance with ¶ 7 for a sufficient period; 2) the QA tool is not an adequate measure of compliance;

1. Length of Compliance Period Plaintiffs argue that Defendants’ Motion must be denied because Defendants have not shown compliance long enough. They maintain that Defendants were not in compliance in the FY 2019, fourth quarter, and they question whether Defendants were in substantial compliance in FY 2020, first quarter. Plaintiffs also argue that Defendants showed bad faith by not including more data about FY 2019, fourth quarter cases. The language of the SA does not support Plaintiffs’ arguments.
The SA prescribes all of Defendants’ remaining obligations, replaces all existing orders, and governs only the period following its approval. See SA (Doc. 2299-1) ¶ 4. Thus, by its terms, the SA applies only to Defendants’ performance after approval. During the SA negotiations and at the SA preliminary approval hearing, the parties engaged in considerable discussion about when the first reporting period of the SA should begin.2 The parties agreed that “[t]he specific actions taken to meet the terms of this Settlement Agreement will be provided on a quarterly basis on the 15th of the month following the end of each quarter.... The first production of this data will be due on the 15th day of the month following the end of the quarter.” SA (Doc. 2299-1) ¶ 18. Ultimately, this language means that if the Court was to give final approval to the SA in June, which it did, the first reporting period would begin on July 1st and would conclude 90 days later on October 1st with the report due on October 15th. See TMH (Doc. 2298) at 39:20-21. Therefore, the SA limits all relevant data for evaluating Defendants’ substantial compliance with ¶ 7 to data generated from July 1, 2019 to the present day.
*4 Although the period between April 2019 through July 1, 2019 is not relevant to the Court’s determination of substantial compliance under the language of the SA, Defendants may, of course, agree that additional data may be relevant. They did so here. While disengaging from ¶ 8, the parties agreed that the Court could consider all backlogged cases when considering disengagement from ¶ 7. Reply (Doc. 2367) at 11. However, Plaintiffs have presented no evidence that Defendants agreed that pre-SA data was more relevant or could supersede the data provided in the SA’s first reporting period. Nor is there evidence that the parties agreed that the Defendants’ failure to include data about all backlogged cases would demonstrate bad faith.
Notably, the SA does not set a specific period for

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2020)

Defendants to show substantial compliance before requesting disengagement. When addressing compliance and disengagement, the SA states only that Defendants may give notice of substantial compliance and request disengagement “[w]hen the Defendants believe they have substantially implemented an Action set forth in Section III of this Settlement Agreement....” With the notice Defendants must include “the basis for the Defendants’ belief that they have substantially implemented the Actions(s), including the facts then known supporting their claim of compliance.” SA (Doc. 2299-1) ¶ 19.
Moreover, in the hearing for preliminary approval of the SA, Plaintiffs acknowledged that there was not a “set period” for compliance. As Plaintiffs’ counsel Mr. Schwartz stated:
But we have also agreed that there is not a waiting period after compliance that the defendants come forward with their evidence, let’s say, on January 1st, or whatever date it is – and we note that, the court notes, they can come forward with the evidence earlier than the 18 months because there is, as there currently is, a process for incremental disengagement.
TMH (Doc. 2298) at 32:4-10. For these reasons, Plaintiffs’ argument that Defendants must show compliance for a period longer than one fiscal quarter fails. The SA states only that when Defendants give notice of substantial compliance, they must “believe” they have substantially complied and “provide evidence” in support. Defendants have done so.
2. The QA Tool is the Parties’ Agreed Method of Determining Substantial Compliance Defendants’ assertion of substantial compliance as to ¶ 7 relies on their QA average score of 91 percent in FY 2020, first quarter. Plaintiffs object to this score, arguing that an average QA tool score is an inaccurate measure of IMB investigations. According to Plaintiffs, the QA tool is inadequate in two ways: first, the use of an average QA score masks deficiencies in IMB investigations; and second, the QA tool is not comprehensive enough because it does not measure substantial compliance as to corrective actions plans. Defendants counter that

Plaintiffs’ arguments are an attempt to alter the substantial compliance standard in ¶ 7 by changing the criteria. The Court agrees.
Paragraph 7 requires compliance with the QAR. That policy incorporates the QA tool to “ensure the accuracy, thoroughness, quality and completeness of IMB investigations and identify and remedy any areas found deficient.” Motion, Ex. C (Doc. 2342-3) I. Over a three-year period, the parties developed and refined the QA tool. Together, the parties set the threshold of substantial compliance at a 90 percent average score. Although the QA tool may not include everything the Plaintiffs now want, they cannot now change the criteria. An average score of 90 percent or above on IMB investigations demonstrates substantial compliance under the terms of ¶ 7.
3. The Accuracy of the QA Scores Plaintiffs’ final argument is that the QA scores are inaccurate because Defendants’ documentation demonstrates a “pattern of noncompliance with several DHI policies and procedures.” Response (Doc. 2352) at. 2. Plaintiffs support this argument with attached affidavits by Eva Kutas and Jaqueline Mader (jointly Affidavits). The Kutas Affidavit is accompanied by her summation and findings with respect to five substantiated cases and two unsubstantiated cases. These cases include both backlogged cases from FY 2019 and cases from FY 2020, quarter one. The Mader affidavit is accompanied with an IMB closure letter on one of the unsubstantiated cases.
*5 Defendants object to the use of these experts to evaluate their compliance, largely because of Ms. Kutas’ prior role in this case. Before the Court’s preliminary approval of the SA, Ms. Kutas worked as a designee of the JCA. After the Court gave preliminary approval to the SA, Ms. Kutas’ work as a JCA designee ended. SA (Doc. 2299-1) ¶ 6 (stating “the Jackson Compliance Administrator will cease all monitoring or consultation activities and will no longer have any role in the oversight of Defendants’ operations upon preliminary approval of the Settlement Agreement.”). Defendants argue that the use of a former JCA designee violates the “spirit” of the SA because the SA is meant, in part, to avoid the costs of litigation. Reply (Doc. 2367) at 5. They ask the Court to reject the Affidavits. But Defendants have failed to establish that the Affidavits are not relevant.
While the SA terminated Ms. Kutas’ role as a monitor, it did not bar Ms. Kutas from reviewing compliance issues. In fact, nothing in the SA prevents Plaintiffs from using

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2020)

an expert to substantiate their opposition to disengagement. Notably, Defendants do not argue that Ms. Kutas and Ms. Mader are unqualified to be experts or that their testimony is unreliable. See Fed. R. Evid. 702 and Fed. R. Evid. 703 (outlining the necessary qualifications of an expert and the relevant bases for expert opinions). Defendants’ arguments concerning the substance of the Affidavits goes to the weight of the evidence, not their evidentiary value.
Relying exclusively on the Affidavits, Plaintiffs argue that there are three areas of noncompliance: 1) The QA scores are inaccurate because they were assessed by a DHI supervisor; 2) IMB did not implement the correct procedures in its investigations; and 3) Defendants did not substantiate that corrective action plans were implemented and successful.
Plaintiffs first contend that it is inappropriate to rely wholly on a NMDH supervisor’s evaluation of a sample of the supervisor’s own employees to demonstrate “compliance with four separate policies, and up to ten related procedures, comprising close to sixty pages of investigation requirements and provisions.” Response (Doc. 2352) at 8. As proof, Plaintiffs indicate that the NMDH supervisor’s conclusions that the investigations met the policy standards contradict the findings of Plaintiffs’ expert, Ms. Kutas. This argument is yet another iteration of Plaintiffs’ rejection of the efficacy of the QA tool. The SA explicitly incorporates the QA tool, which provides both the standards and the personnel responsible for doing the evaluation. When Plaintiffs agreed to the SA, they agreed to those standards, and they are now bound by them.
Next, Plaintiffs allege that the investigations were inadequate. According to Plaintiffs, the IMB investigators did not take the actions Plaintiffs’ assert were most appropriate. For this argument Plaintiff relies both on backlogged cases from FY 2019 and on the more current cases from FY 2020, first quarter. The backlogged cases are immaterial on this issue as Defendants did not produce them to support their claim of substantial compliance, and the cases predate the cases Defendants have produced.3 The only relevant cases in this inquiry are the ones from FY 2020, first quarter.
In arguing the inadequacy of the investigations, Plaintiffs reject both the actions taken by the investigators and their conclusions. But Plaintiffs’ arguments ignore the discretionary element of an IMB investigation. Each of the policies referenced in ¶ 7 direct that IMB investigators take some mandatory actions, but often leave the implementation of those actions to the discretion of the investigator. For example, when initiating an ANE

investigation, the investigator is required to review an “Immediate Action and Safety Plan (IASP) provided by the Community-Based Service Provider (agency) and ensure the plan is adequate to protect the alleged victim and all other individuals potentially impacted by the incident/allegation, in accordance with the IASP policy.” Motion, Ex. B (2342-2) III(B)(1). This provision makes an IASP mandatory, but the adequacy of the IASP is left, in part, to the discretion of the investigator.
*6 Plaintiffs contend that “[a]ll five of the IASPs reviewed were non-compliant with one or more expectations for assuring safety of the individual and others affected when ANE was reported....” But Plaintiffs’ arguments focus their analysis on the adequacy of the investigator’s actions. Plaintiffs do not argue that no action was taken to assure the class member’s safety; they just disagree with the actions that were. Nothing in the policy mandates that Defendants take specific actions to ensure an “adequate plan.” Moreover, there is no evidence that any deficiencies in the IASP were not accounted for in the investigation’s final QA score.
Plaintiffs also question the findings that two of the cases were unsubstantiated. Plaintiffs allege that the two cases involved severe injuries, and the documentation did not thoroughly establish that these cases were unsubstantiated. Again, Plaintiffs are substituting their judgment for the investigators’, and in doing so, are ignoring the QA scores, a tool they helped develop and implement.
Finally, Plaintiffs argue that Defendants have failed to furnish evidence that Defendants complied with the requirements of the Corrective Action Plan policy. This policy requires community-based providers to submit a corrective and preventative action plan (CPAP) for ANE substantiated cases. The policy provides guidance on “what constitutes a timely, effective and appropriate Corrective and Preventative Action Plan, and what to do when a Corrective and Preventative Action Plan submitted by a provider is inadequate.” In the two current cases reviewed with a CPAP, Plaintiffs object that certain corrective and preventative actions were not listed in the report and so had not been verified. Notably, Plaintiffs also found documentation that the corrective actions listed in the CPAP report had been completed.4 As Defendants observe, the policy provides that under limited circumstances and with the approval of a supervisor, investigators may close an investigation without verification of full implementation. See Motion, Ex. D (Doc. 2342-4) IIIB.
The Court finds that Defendants’ scores on the QA tool demonstrate that they have substantially complied with

Jackson v. Los Lunas Center for Persons with Developmental..., Slip Copy (2020)

the requirements of ¶ 7.
IT IS ORDERED THAT: Defendants’ MOTION TO DISENGAGE PARAGRAPH 7 OF THE SETTLEMENT AGREEMENT (Doc. 2342) is GRANTED.

All Citations Slip Copy, 2020 WL 1676648

Footnotes

1

The parties did not request a hearing on this contested motion.

2

As explained at the preliminary hearing by Plaintiffs’ counsel, Mr. Schwartz, and Kathyleen Kunkel, Cabinet Secretary

of NMDH:

Mr. Schwartz: The word ‘approval’ as we’ve discussed, although it probably could be clarified, means the final

approval. So, if the court were, for instance, to approve the agreement on June 15th, then the quarter that begins

on June 15th would be the first reporting quarter. So it would be three months from June 15th, approximately July,

August, September 15th, and then the report would be due September 30th. So the time period of quarterly

reporting runs from final approval.

...

Mrs. Kunkel: So that was the concept, just to start fresh on probably July 1, and then two weeks before we meet,

we have a commitment to provide them [Plaintiffs] with documents which has been a problem for us to agree on

dates, and it was more for us to agree on when reports would be provided and when we would meet.

See Transcript of Motion Hearing, April 18, 2019 (TMH) (Doc. 2298) at 34:10-18, 38:6-11.

3

Defendants acknowledge that the backlogged cases received scores below 90 percent. There is no requirement in

the SA that Defendants make backlogged cases substantially compliant. Even if there were, Defendants argue that

they cannot correct errors in past investigations because of the timelines in the policies.

4

See Response, Affidavit of Eva Kutas (Doc. 2352-1). In her findings about the CPAP of case number 2K20-0102-A, Ms.

Kutas states that the CPAP lists two corrective actions, that were not verified in the report. Then she notes that

additional documentation indicated that both items were done.

 
 Jackson v. Los Lunas Center for Persons With Developmental..., Slip Copy (2020)

2020 WL 2542021 Only the Westlaw citation is currently available.
United States District Court, D. New Mexico.
Walter Stephen JACKSON, et al., Plaintiff, v.
LOS LUNAS CENTER FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, et al., Defendants. and The Arc of New Mexico, Intervenors, and Mary Terrazas, et al., Intervenors. pro se
Civ. No. 87-0839 JAP/KBM |
Filed 05/19/2020
Attorneys and Law Firms
Cathy Costanzo, Steven Schwartz, Center for Public Representation, Northampton, MA, Peter Cubra, Law Office of Peter Cubra, Philip B. Davis, Philip B. Davis, Attorney at Law, Tim Gardner, Protection & Advocacy System, Robert E. Hanson, Charles Robert Peifer, Sara Nathanson Sanchez, Peifer, Hanson, Mullins & Baker, P.A., Nancy Koenigsberg, Disability Rights New Mexico, Nancy L. Simmons, Law Offices of Nancy L. Simmons PC, Albuquerque, NM, Ann Tilford McCartney, Los Lunas, NM, Debra D. Poulin, Law Office of Debra D. Poulin, Santa Fe, NM, for Plaintiff Developmentally Disabled New Mexicans, Inc., Supporters of.
James J. Grubel, Alfred A. Park, Park & Associates, LLC, Albuquerque, NM, Christopher D. Woodward, Department of Health, Santa Fe, NM, for Defendant Fort Stanton Hospital and Training School.
Billy J. Jimenez, Adams+Crow Law Firm, Jerry A. Walz, Walz and Associates, Albuquerque, NM, for Defendant Los Lunas Center for Persons with Developmental Disabilities.
Paul R. Ritzma, NM Human Services Department, Santa Fe, NM, for Defendant New Mexico Human Services Department.
Maureen A. Sanders, Sanders & Westbrook, PC, Albuquerque, NM, for Intervenor ARC of New Mexico.

MEMORANDUM OPINION AND ORDER
JAMES A. PARKER, SENIOR UNITED STATES DISTRICT JUDGE
*1 On January 30, 2020, Defendants Los Lunas Center for Persons with Developmental Disabilities, et al. (Defendants) filed a MOTION TO DISENGAGE PARAGRAPH 9 OF THE SETTLEMENT AGREEMENT (Doc. 2356) (Motion). The Motion asserts that Defendants are in substantial compliance with actions delineated in paragraph 9 (¶ 9) of the parties’ Settlement Agreement (Doc. No. 2299-1) (SA) and asks the Court to terminate its oversight of all activities listed in ¶ 9.
On March 2, 2020, Plaintiffs Walter Stephen Jackson et al. and Intervenors The Arc of New Mexico and Mary Terrazas et al. (jointly, Plaintiffs) filed RESPONSE IN OPPOSITION BY PLAINTIFFS’ AND THE ARC TO MOTION TO DISENGAGE PARAGRAPH 9 OF THE SETTLEMENT AGREEMENT (Doc. 2376) (Response). On March 18, 2020, Defendants filed a REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISENGAGE PARAGRAPH 9 OF THE SETTLEMENT AGREEMENT (Doc. 2401) (Reply). On April 2, 2020, Plaintiffs’ filed PLAINTIFFS’ AND THE ARC’S MOTION TO DISREGARD REPLY, DOC. NO. 2401 OR TO PERMIT FILING OF SURREPLY (Doc. 2412). The Court granted Plaintiffs’ motion to file a surreply,1 and On April 28, 2020, Plaintiffs filed SURREPLY BY PLAINTIFFS AND THE ARC, TO DEFENDANTS’ REPLY, DOC NO. 2401, REGARDING DEFENDANTS’ MOTION TO DISENGAGE PARAGRAPH 9, DOC. NO. 2356 (Doc. 2431).2
On May 12, 2020, the Court held a hearing by Zoom on the Motion.3 At the hearing, Nancy Simmons and Peter Cubra represented the Plaintiffs. Maureen Sanders and Jacque Mader represented the Intervenors.4 James Grubel and Taylor Rahn represented Defendants.5 The Court concludes that Defendants have not yet demonstrated substantial compliance with ¶ 9 and will deny the Motion.
THE SETTLEMENT AGREEMENT
This case focuses on the State’s systems and procedures

Jackson v. Los Lunas Center for Persons With Developmental..., Slip Copy (2020)

that provide care for the developmentally disabled. On June 21, 2019, the Court entered a Memorandum Opinion and Order Approving Settlement Agreement (Doc. 2304). The SA’s purpose “is to identify those services, safeguards, and protections from harm that will be provided to the plaintiff class and to ensure that a durable remedy is in place when this litigation ends and this case is dismissed.” SA (Doc. 2299-1) ¶ 1. The SA “replaces all existing orders of the Court and will be the sole source of Defendants’ remaining obligations to class members during the Term of [the] Settlement Agreement.” Id. ¶ 4.
*2 Part III of the SA lists the actions Defendants must take to terminate the litigation. The action item from which Defendants seek disengagement, ¶ 9, addresses mortality review. Paragraph 9 states:

The Defendants will conduct timely

and adequate mortality reviews of

deaths and take necessary remedial

actions, as required by current

DOH/DHI policies including

DIV.DDSD.DHI.13.CPS.03

(Post-Mortality Setting Safety

Check);

DIV.DDSD.SHI.13.CPS.23

(Developmental

Disabilities

Mortality

Review);

and

DIV.DDSD.13.GA.21

(Developmental

Disabilities

System Quality Improvement

Committee), ¶ V.B.4 (MRC).

SA (Doc. 2299-1) ¶ 9. Paragraph 9 cites three NMDOH policies. Together the policies address the requirements for investigating and, if necessary, remediating any individual or systemic problems that may have contributed to a Jackson Class Member’s (JCM) death. Policy DIV.DDSD.SHI.13.CPS.23 (MR Policy) outlines each step after notification of a JCM’s death the Mortality Review Committee (MRC) must take when conducting a mortality review.6
Section V of the SA, “Compliance and Disengagement,” specifies that Defendants must implement all action items within 18 months of the date of the Court’s final approval of the SA. Id. ¶ 17. Although the Court’s written order of final approval was not entered until June 21, 2019, the Court gave final approval at the hearing on June 12, 2019. Eighteen months from June 12, 2019 establishes a termination date of December 12, 2020 (or midnight Friday, December 11, 2020).

The SA requires Defendants to provide specific quarterly data on the action items, with the first relevant quarter commencing on July 15, 2019. Id. ¶ 18. The procedure for disengaging from any action item is described in ¶ 19:
When the Defendants believe they have substantially implemented an Action set forth in Section III of this Settlement Agreement, they will notify the Plaintiffs and Intervenor Arc. The notice will state the basis for the Defendants’ belief that they have substantially implemented the Actions(s), including the facts then known supporting their claim of compliance. At any time after thirty days from this notice, the Defendants may file a motion for a finding of partial compliance and disengagement of the Action(s). If the motion is contested, the parties will request that the Court hold a hearing and enter its findings and conclusions. If the Court determines that the Defendants have complied with the Action(s) of this Settlement Agreement, it will terminate its oversight of that Action(s). In such event, the Defendants will no longer be required to report on these Action(s) or compensate the Plaintiffs for attorney time spent monitoring such Action(s).
*3 But disengagement from a specific action does not end the Defendants’ obligations on that action. Until the SA is terminated, Defendants must continue sustained compliance with all actions. Id. ¶ 21.
LEGAL STANDARD
The Motion asks the Court to find that Defendants have substantially complied with ¶ 9 of the SA. Substantial compliance is a contract doctrine meant “to assist the court in determining whether conduct should, in reality,

Jackson v. Los Lunas Center for Persons With Developmental..., Slip Copy (2020)

be considered the equivalent of compliance under the contract.” Joseph A. by Wolfe v. New Mexico Dep’t. of Human Servs., 69 F.3d 1081, 1086 (10th Cir. 1995) (citing John D. Calamari & Joseph M. Perillo, The Law of Contracts § 11-15 at 454 (3d ed. 1987)). When a settlement agreement identifies the steps that must be taken to meet its criteria, those steps must be met to show substantial compliance. See Wolfe, 69 F.3d at 1086.
Motions to disengage the action items in the SA are procedurally like motions for summary judgment. The movant has the burden to show that there is no material dispute about a material fact. Cf. Fed. R. Civ. P. 56(a). When applying the Rule 56 summary judgment standard, the Court examines the factual record and reasonable inferences in the light most favorable to the party opposing summary judgment. Applied Genetics Intl, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “Once the moving party has met its burden, the burden shifts back to the nonmoving party to show that there is a genuine issue of material fact.” Jensen v. Kimble, 1 F.3d 1073, 1077 (10th Cir. 1993) (citing Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)).
ANALYSIS
Defendants seek disengagement from ¶ 9, stating that they have substantially complied with all of its requirements. In opposition, Plaintiffs argue that Defendants’ mortality review has not been timely or adequate and has failed to effectuate appropriate remedial actions.
Mortality review is a process through which NMDOH engages in a “comprehensive review of the deaths of individuals receiving services funded by [NMDOH DDSD]” to “monitor whether necessary and reasonable medical, social and psychological interventions were provided prior to death,” and “to promote system wide quality improvement.” Motion, MR Policy (Doc. 2356-1) ¶¶ I, III. Toward that end, ¶ 9 requires Defendants to comply with current DOH/DHI policies regarding mortality review by: 1) conducting timely reviews; 2) conducting adequate reviews; and 3) taking necessary remedial action.
The Mortality Review Committee (MRC) leads this process. “The role of the MRC is to effect system change with the goal of improving the provision of care, reducing mortality and morbidity, and promoting the provision of competent, caring services and supports funded by

NMDOH-DDSD” Id. ¶ III. The MR Policy delineates actions that Defendants must take immediately after the death of a JCM. Certain actions, or steps, must be completed within a defined time. Plaintiffs do not dispute that for most of the steps, Defendants met the time requirements. But Plaintiffs argue that Defendants did not timely complete the MR Policy’s requirement for an annual report.
The annual report summarizes and tabulates the results of the mortality reviews.7 The MRC’s findings and recommendations are submitted the Developmental Disabilities Services Quality Improvement Steering Committee (DDSQI) .. “for further action via submittal of the written annual report ... to improve systems quality.” Id. ¶ V.K.2.a. The MRC report is “presented annually for discussion at a meeting with the Advisory Committee on Quality. Id. ¶V.N “Representatives from DDSD will include the DDSD Director, the DDSD Medical Director and other DDSD staff designated by the Director.” Id. The DDSQI Committee “reviews data and other information and directs the development of DDSD and/or DHI actions to improve the quality of services for persons with intellectual and/or developmental disabilities.” Id. ¶ II.B. In this way, the DDSQI Committee is an important part of the mortality review’s purpose to “effect system change.” Id. § III.
*4 After the effective date of the SA, Defendants produced two annual reports. On February 23, 2020, Defendants completed and submitted the FY 2018 Annual Report, and on April 3, 2020, Defendants completed and submitted the FY 2019 Annual Report. Plaintiffs contend that Defendants’ delay of over twenty months as to FY 2018 and eight months as to FY 2019 in submitting these annual reports demonstrates a failure to substantially comply with the timeliness requirements of the MR Policy. The language of the MR Policy does not support this argument.
The MR Policy does not set a deadline for the annual report; it only requires that the MRC complete and produce an annual report. On its face, the MRC’s delayed production of the two annual reports does not show that Defendants have not substantially complied with ¶ 9. But, the submission of an annual report is only the first step in this part of the mortality review process.
After submission of the annual report, the MR Policy requires Defendants to hold a DDSQI meeting to discuss the annual report. Significantly, the purpose of the annual report is to provide the DDSQI with the MRC’s recommendations for systemic change. Defendants have not yet held a DDSQI meeting on either annual report for FY 2018 or FY 2019.

Jackson v. Los Lunas Center for Persons With Developmental..., Slip Copy (2020)

While the MR Policy is also silent as to a period within which the DDSQI meeting will occur, it is not silent as to its purpose. Submission of the annual report and holding the meeting are means by which to evaluate current systems and to effect systemic change. These two steps are an important part of “the necessary remedial action” required by ¶ 9.
The substantial compliance doctrine requires Defendants to complete each step mandated by the SA. To disengage ¶ 9, Defendants must show evidence of substantial compliance with each component. The DDSQI annual report meeting is one such essential component. Since the effective date of the SA, Defendants have not held a DDSQI annual report meeting.

have timely substantially complied with this requirement in ¶ 9.8
IT IS ORDERED THAT:
1. Plaintiffs’ UNOPPOSED MOTION TO INCREASE PAGE LIMITS AND FILE PLEADINGS UNDER SEAL, REGARDING PLAINTIFFS’ SURREPLY TO DEFENDANTS’ MOTION TO DISENGAGE ¶ 9 (Doc. 2429) is GRANTED;
2. Defendants’ MOTION TO DISENGAGE PARAGRAPH 9 OF THE SETTLEMENT AGREEMENT (Doc. 2356) is DENIED.

Defendants have told the Court that the DDSQI annual

All Citations

report meeting will occur soon. But under the terms of the SA and the MR Policy, a planned future event is not

Slip Copy, 2020 WL 2542021

evidence of substantial compliance. In the absence of the

mandated meeting, the Court cannot find that Defendants

Footnotes

1

See Order (Doc. 2420).

2

Plaintiffs also filed an UNOPPOSED MOTION TO INCREASE PAGE LIMITS AND FILE PLEADINGS UNDER SEAL,

REGARDING PLAINTIFFS’ SURREPLY TO DEFENDANTS’ MOTION TO DISENGAGE ¶ 9, DOC. NO. 2356 (Doc. 2429)

which the Court will grant.

3

United States Magistrate Judge Karen Molzen was also present at the hearing

4

Several other attorneys of record including Ann McCartney, Tim Gardner, Robert Hanson, Stephen Schwartz, and

Cathy Costanzo participated on behalf of Plaintiffs and Intervenors.

5

Also present at the meeting on behalf of the New Mexico Department of Health (NMDOH) was Scott Doan, Daniel

Lucero, Sally Karingada, and Jason Cornwell.

6

1) An Initial Assessment and Plan which includes:

a. IMB investigation under the IMB Intake policy

b. DDSD Regional staff conduct a Post-Mortality Safety Check

c. Within three days of the death, a meeting between the MRC Coordinator and Chair to determine a plan for

mortality review;

2) Regional Assessment and Review at the DDSD-DHI monthly meeting;

3) Within three days of notification of the death, the MRC Coordinator must request relevant records for the

timeframes established in the Initial Assessment and Plan;

4) Within 45 days of receipt of the requested documents, the MRC Coordinator must compose a summary of

facts, issues, and concerns for review by the DDSD Medical Director (internal report). If approved, then the

summary will be shared with the MRC;

5) The MRC Chair will review the report and determine which cases will be referred for external review (external

report) (All JCMs are referred for external review);

6) Within 45 days after receipt of the entire record, the external medical reviewer will issue a report. The report

Jackson v. Los Lunas Center for Persons With Developmental..., Slip Copy (2020)

should include both individual and systemic issues and include recommendations to address identified problems; 7) The MRC will review all reports, identify issues, and include recommendations for improvements; 8) The case will be closed when the MRC determines that adequate review has been completed and that final disposition can be determined.

7

The MR Policy requires an annual report “which contains aggregate, de-identified information related to the

mortality review process:

1. Age, gender, county and region of residence of the decedents[;]

2. Type(s) of services received[;]

3. Underlying causes of death of decedents;

4. Service or care issues that may have contributed to the deaths;

5. Proportion and number of expected and unexpected deaths;

6. Proportion and number of deaths for which a preventable intervention was identified;

7. Case disposition for death reviews;

8. Findings regarding care issues;

9. Recommendations made by the MRC; and

10. Other information as requested by the DDSD Division Director.”

Motion, MR Policy (Doc. 2356-1) ¶ V.M.1-10.

8

Plaintiffs have made additional arguments as to Defendants’ substantial compliance. Because the Court has found

that Defendants have not yet substantially complied on the remediation prong, the Court finds that it is unnecessary

to address those arguments at this time.

 
 CASREF,REFER,SuppressAnsRpt
U.S. District Court United States District Court − District of New Mexico (Albuquerque)
CIVIL DOCKET FOR CASE #: 1:87−cv−00839−JAP−KBM

Jackson, et al v. Fort Stanton Hosp, et al Assigned to: District Judge James A. Parker Referred to: Magistrate Judge Karen B. Molzen Demand: $0 Related Case: 1:14−cv−00047−JCH−KBM
Case in other court: 02−02165
Tenth Circuit Court of Appeals, 16−02172 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 07/08/1987 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Walter Stephen Jackson by his parents and next friends, Walter and Helen Jackson next friend Walter − Jackson next friend Helen Jackson

represented by Ann Tilford McCartney PO Box 187 Los Lunas, NM 87031−0187 (505) 865−1449 Fax: 505−865−6809 Email: asims98891@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Becky S. Jiron Protection & Advocacy System, Inc 1720 Louisiana Blvd., NE #204 Albuquerque, NM 87110 (505) 256−3100 Fax: 256−3184 TERMINATED: 03/10/2003 LEAD ATTORNEY

Cathy Costanzo Center for Public Representation 22 Green Street Northampton, MA 01060 Email: ccostanzo@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Robert Peifer Peifer, Hanson, Mullins & Baker, P.A. PO Box 25245 Albuquerque, NM 87125−5245 (505) 247−4800 Fax: (505) 243−6458 Email: cpeifer@peiferlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Flynn Evelyn Sylvest 1720 Lousiana Blvd. NE, Suite 204 Albuquerque, NM 87110 505−256−3100 Email: fsylvest@drnm.org TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Koenigsberg

Disability Rights New Mexico 1720 Louisiana Blvd., NE #204 Albuquerque, NM 87110 (505) 256−3100 Email: nkoenigsberg@drnm.org TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons Law Offices of Nancy L Simmons PC 120 Girard Blvd SE Albuquerque, NM 87106 505−232−2575 Fax: 505−232−2574 Email: nlsstaff@swcp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra Law Office of Peter Cubra 3500 Comanche NE, Suite H Albuquerque, NM 87107 505−256−7690 Fax: 505−256−7641 Email: pcubra@qwestoffice.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis Philip B. Davis, Attorney at Law 1000 Lomas NW Albuquerque, NM 87102 505−242−1904 Fax: 505−242−1864 Email: phil@davislawnm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez Peifer, Hanson, Mullins & Baker, P.A. Post Office Box 25245 Albuquerque, NM 87125−5245 505−247−4800 Email: ssanchez@peiferlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz Center for Public Representation 22 Green Street Northampton, MA 01060 Email: sschwartz@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin Law Office of Debra D. Poulin 7 Avenida Vista Grande, Suite B−7 Box 235 Santa Fe, NM 87508 505 231 5554 Email: dpoulin@poulinlawoffice.com TERMINATED: 02/12/2020

Plaintiff
Steve Nunez by his guardian and next friend, Mary Kathryn Reed next friend Mary Kathryn Reed

Robert E. Hanson Peifer, Hanson, Mullins & Baker, P.A. PO Box 25245 Albuquerque, NM 87125−5245 Email: rhanson@peiferlaw.com ATTORNEY TO BE NOTICED
Tim Gardner Protection & Advocacy System 1720 Louisiana Blvd NE Suite 204 Albuquerque, NM 87110 505−256−3100 Fax: 505−256−3184 Email: tgardner@drnm.org ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY

Plaintiff
Ron Fuller by his mother and next friend, Josephine Boughton next friend Josephine Boughton

ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address)

Plaintiff
Mildred Tsosie by her next friend, Polly Arango next friend Polly Arango

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Mary Katherine Nowak by her next friend, James W. Ellis, Esquire next friend James W Ellis

Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Lillian Willmon by her next friend, Arthur Grumblatt next friend Arthur Grumblatt

Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Andra Martinez by her next friend, Paula Duvall next friend Paula Duvall

Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Clinton Heath by his next friend, Belva Heath next friend Belva Heath

Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY

Plaintiff
Shawn Heath by next friend, Belva Heath next friend Belva Heath

ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address)

Plaintiff

TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by

Richard Stanfield by his father and next friend, The Reverend Clyde Stanfield next friend Clyde Stanfield

Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Joseph Gonzales by his mother and next friend, Charlotte Gonzales next friend Charlotte Gonzales

Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address)

Plaintiff
Sean McHenry by his next friend, Robert Desiderio, Esquire next friend Robert Desiderio

TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz

Plaintiff
Alfred Shirley by his next friend, Frederick Hart, Esquire next friend Frederick − Hart

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
James Fritche by his next friend, Sally Dehon next friend Sally Dehon

Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY

Plaintiff
Betty Young by her next friend, Mary Dudley, Ph.D. next friend Mary Dudley

ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY

Plaintiff
Roseann Crockett by her next friend, Robert McNeill, Esquire next friend Robert McNeill

ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address)

Plaintiff
Andre Armenta by his mother and next friend, Loretta Armenta next friend Loretta Armenta

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons

Plaintiff
Kelli Van Curen by her parents and next friends, Ted and Sallie Van Curen next friend Ted Van Curen next friend Sallie Van Curen

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg

Plaintiff
Lacey Walker by her mother and next friend, Sandra Walker next friend Sandra Walker

(See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest

Plaintiff
Kim Lautenschlager by her mother and next friend, Dale Lautenschlager next friend Dale Lautenschlager

(See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
William Thomas by his parents and next friends, James and Elizabeth Thomas; on behalf of themselves and all others similarly situated next friend Elizabeth Thomas next friend James Thomas

Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY

Plaintiff
Developmentally Disabled New Mexicans, Inc, Supporters of on behalf of its members

Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Tilford McCartney (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Becky S. Jiron (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY
Beverly Sorensen Ohline Protection & Advocacy System, Inc 1720 Louisiana Blvd., NE #204 Albuquerque, NM 87110 (505) 256−3100 Fax: 256−3184 TERMINATED: 10/07/2005 LEAD ATTORNEY
Cathy Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Drucker Protection & Advocacy System, Inc P.O. Box 53254 Albuquerque, NM 87153 (505) 385−1546 Email: Dennis.Drucker@comcast.net TERMINATED: 04/27/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Flynn Evelyn Sylvest (See above for address) TERMINATED: 12/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Cubra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip B. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra L Gomez

Plaintiff Nancy L. Simmons

Protection and Advocacy System, Inc. 1720 Louisiana Blvd. NE Suite 204 Albuquerque, NM 87110 505−256−3100 Fax: 505−256−3184 Email: nmpagomez@hotmail.com TERMINATED: 04/07/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
V Colleen Miller Protection & Advocacy System, Inc 1720 Louisiana Blvd., NE #204 Albuquerque, NM 87110 (505) 256−3100 Fax: 256−3184 TERMINATED: 03/13/2003 LEAD ATTORNEY
Debra D Poulin (See above for address) TERMINATED: 02/12/2020
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED
Tim Gardner (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Robert Peifer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Nathanson Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Hanson (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff John E Young legal guardians and parents of Rity Kay Young, et al; all parties as listed on Complaint in Intervention filed 7/6/88 next friend Rita Kay Young
V. Defendant Fort Stanton Hospital and Training School All State Defendants as listed on manual docket

represented by John E Young PRO SE
Elizabeth J. Church PO Box 4160 Santa Fe, NM 87504 (505) 988−4476 Fax: 505−954−7373 Email: echurch@cuddymccarthy.com TERMINATED: 04/07/1995 LEAD ATTORNEY
Kent Winchester PO Box 7906 Albuquerque, NM 87194−7906 (505) 238−4905 TERMINATED: 04/07/1997 LEAD ATTORNEY
Nancy Koenigsberg (See above for address) TERMINATED: 07/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta Beyer PO Box 507 Mesilla, NM 88046−0507 (505) 977−4378 Fax: TERMINATED: 09/21/1999 LEAD ATTORNEY
Vernon W. Salvador Email: salvador01@aol.com TERMINATED: 04/07/1997 LEAD ATTORNEY
represented by Alfred A Park Park & Associates, LLC 3840 Masthead St., N.E. Albuquerque, NM 87109 505−246−2805 Fax: 505−246−2806 Email: apark@parklawnm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Billy J. Jimenez Adams+Crow Law Firm Suite 320 5051 Journal Center Blvd., N.E Albuquerque, NM 87109 505−582−2819 Fax: 505−212−0439 Email: billy.jimenez@state.nm.us LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Christopher D Woodward Department of Health Office of General Counsel 1190 St. Francis Drive Suite 4095 Santa Fe, NM 87501 505−827−2703 Fax: 505−827−2930 Email: chris.woodward@state.nm.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J Grubel Park & Associates, LLC 3804 Masthead Street NE Albuquerque, NM 87109 505−246−2805 Fax: 505−246−2806 Email: jgrubel@parklawnm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry A. Walz Walz and Associates 133 Eubank NE Albuquerque, NM 87123 505−275−1800 Fax: 505−275−1802 Email: jerryawalz@walzandassociates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Taylor Sauer Rahn Robles, Rael & Anaya, P.C. 500 Marquette Avenue, N.W. Suite 700 Albuquerque, NM 87102 505−242−2228 Fax: 505−242−1106 Email: taylor@roblesrael.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea F Joseph 741 North Alameda #9 Las Cruces, NM 88005 (505) 523−4507 Fax: 523−0207 TERMINATED: 11/02/1999
Bennett S. Cohn NM Attorney General's Office PO Drawer 1508 Santa Fe, NM 87504−1508 (505) 827−6000 Fax: 827−6036 TERMINATED: 04/07/2008
Corliss G. Thalley NM Attorney General's Office PO Drawer 1508 Santa Fe, NM 87504−1508

(505) 827−6000 Fax: 827−6036 TERMINATED: 11/02/1999
Gregory L. Biehler Lewis Brisbois Bisgaard & Smith LLP 8801 Horizon Blvd NE Suite 300 Albuquerque, NM 87113 505−828−3600 Fax: 505−828−3900 Email: greg.biehler@lewisbrisbois.com TERMINATED: 04/07/2008
Josh A. Harris Lewis, Brisbois, Bisgaars & Smith, LLP 8801 Horizon Blvd NE Suite 300 Albuquerque, NM 87113 505−828−3600 Fax: 505−828−3900 Email: jharris@ylawfirm.com TERMINATED: 04/07/2008
Kathyleen M Kunkel New Mexico Department of Health 1190 St. Francis Drive Santa Fe, NM 87502 505−827−0002 Fax: 505−827−2930 Email: kathy.kunkel@state.nm.us TERMINATED: 06/29/2007
Nancy A. Taylor NM Attorney General's Office PO Drawer 1508 Santa Fe, NM 87504−1508 (505) 827−6000 Fax: 827−6036 TERMINATED: 02/09/1996
Patricia A. Madrid NM Attorney General's Office PO Drawer 1508 Santa Fe, NM 87504−1508 (505) 827−6000 Fax: 827−6036 TERMINATED: 04/07/2008
Robert W Becker YLAW, PC 4908 Alameda Blvd. NE Albuquerque, NM 87113 (505) 266−3995 Fax: (505) 268−6694 Email: rbecker@ylawfirm.com TERMINATED: 01/26/1998
Robert T Booms Butt Thornton & Baehr P.O. Box 3170 Albuquerque, NM 87190 505−884−0777 Fax: 505−889−9970 Email: rtbooms@btblaw.com

Defendant
Los Lunas Center for Persons with Developmental Disabilities

TERMINATED: 12/01/1998
Susan Sullivan NM Department of Health Office of General Counsel PO Box 26110 Santa Fe, NM 87502−6110 (505) 827−2997 Fax: 827−2930 TERMINATED: 02/23/2005
Tom S. Udall NM Attorney General's Office PO Drawer 1508 Santa Fe, NM 87504−1508 (505) 827−6000 Fax: 827−6036 TERMINATED: 11/02/1999
represented by Alfred A Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea F Joseph (See above for address) TERMINATED: 11/02/1999 LEAD ATTORNEY
Bennett S. Cohn NM Attorney General's Office PO Drawer 1508 Santa Fe, NM 87504−1508 (505) 827−6000 Fax: 827−6036 Email: \ TERMINATED: 04/07/2008 LEAD ATTORNEY
Billy J. Jimenez Adams+Crow Law Firm Suite 320 5051 Journal Center Blvd., N.E Albuquerque, NM 87109 505−582−2819 Fax: 505−212−0439 Email: billy@adamscrow.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher D Woodward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory L. Biehler (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
James J Grubel (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
John H. Clough 842 Witt Road Taos, NM 87571 575−737−2618 Fax: 575−731−2668 Email: jackclough@aol.com TERMINATED: 02/14/2003 LEAD ATTORNEY
Josh A. Harris (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
Judith E Reed NM Department of Health PO Box 26110 Santa Fe, NM 87502−6110 (505) 827−2613 Fax: 827−2530 Email: judith.reed@state.nm.us TERMINATED: 05/04/2007 LEAD ATTORNEY
Kathyleen M Kunkel (See above for address) TERMINATED: 06/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Madrid (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
Richard R Salazar , Jr Beall & Biehler 6715 Academy Road, NE Albuquerque, NM 87109 (505) 828−3600 Fax: 828−3900 TERMINATED: 04/07/2008 LEAD ATTORNEY
Robert W Becker (See above for address) TERMINATED: 03/02/1999 LEAD ATTORNEY
Sally Malave NM Attorney General's Office PO Drawer 1508 Santa Fe, NM 87504−1508 (505) 827−6000 Fax: 827−6036 TERMINATED: 11/02/1999 LEAD ATTORNEY
Susan Sullivan (See above for address) TERMINATED: 02/23/2005 LEAD ATTORNEY

Defendant J Alex Valdez Secretary of the New Mexico Department of Health TERMINATED: 10/30/2002
Defendant New Mexico Human Services Department

Taylor Sauer Rahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom S. Udall (See above for address) TERMINATED: 11/02/1999 LEAD ATTORNEY
Jerry A. Walz (See above for address) ATTORNEY TO BE NOTICED
represented by Kathyleen M Kunkel (See above for address) TERMINATED: 06/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert W Becker (See above for address) TERMINATED: 10/30/2002 LEAD ATTORNEY
represented by Alfred A Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Billy J. Jimenez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher D Woodward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory L. Biehler (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
James J Grubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Stone Rodey Law Firm P.O. Box 1888 201 Third Street NW Suite 2200 Albuquerque, NM 87102 (505) 765−5900 Fax: (505) 768−7395 Email: jstone@rodey.com TERMINATED: 05/19/2006 LEAD ATTORNEY

Intervenor ARC of New Mexico

Josh A. Harris (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
Judith E Reed NM Department of Health Office of General Counsel PO Box 26110 Santa Fe, NM 87502−6110 (505) 827−2613 Fax: 827−2530 Email: judith.reed@state.nm.us TERMINATED: 05/04/2007 LEAD ATTORNEY
Kathyleen M Kunkel (See above for address) TERMINATED: 06/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul R Ritzma NM Human Services Department Office of General Counsel 1474 Rodeo Road Santa Fe, NM 87505 505 476−7048 Email: paul.ritzma@state.nm.us LEAD ATTORNEY
Richard R Salazar , Jr (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
Taylor Sauer Rahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry A. Walz (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen A Sanders Sanders & Westbrook, PC 102 Granite, NW Albuquerque, NM 87102−2310 505−243−2243 Fax: 505−243−2750 Email: mas@sanwestlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert W Becker (See above for address) TERMINATED: 03/02/1999 LEAD ATTORNEY
Sally Malave (See above for address) TERMINATED: 11/02/1999

Intervenor Josephine Rutar
Intervenor Charles E Woodhouse 19461 S.E. 322nd St. Kent, WA 98042−9712 TERMINATED: 08/18/2009 Intervenor Frank Terrazas TERMINATED: 08/20/2003
Intervenor Mary Terrazas TERMINATED: 08/20/2003
Intervenor Ava Peets
Intervenor Donald Clingenpeel
Intervenor Marjorie Clingenpeel

LEAD ATTORNEY
represented by Josephine Rutar 500 Paisano Street NE Apt 307 Albuquerque, NM 87123 PRO SE
Michael S. Sanchez PO Box 1297 Los Lunas, NM 87031 (505) 865−0688 Fax: 505−865−4079 Email: msslawoffices@yahoo.com TERMINATED: 10/18/2007 LEAD ATTORNEY
represented by Frank Terrazas 524 Florida, SE Albuquerque, NM 87108−3827 (505) 265−5019 PRO SE
represented by Mary Terrazas 524 Florida, SE Albuquerque, NM 87108−3827 (505) 265−5019 PRO SE
represented by Ava Peets P. O. Box 1418 Grants, NM 87020 (505) 287−4002 PRO SE
represented by Donald Clingenpeel 3632 Moon St, NE Albuquerque, NM 87111 (505) 298−2676 PRO SE
represented by Marjorie Clingenpeel 3632 Moon St, NE Albuquerque, NM 87111 (505) 298−2676 PRO SE
Patrick D Allen Yenson, Allen & Wosick, P.C.

Defendant
Jack Callaghan New Mexico Department of Health, Secretary of

4908 Alameda, NE Albuquerque, NM 87113−1736 505 266 3995 Fax: 505 268 6694 Email: pallen@ylawfirm.com TERMINATED: 06/25/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alfred A Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Billy J. Jimenez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher D Woodward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory L. Biehler (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
James J Grubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Josh A. Harris (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
Kathyleen M Kunkel (See above for address) TERMINATED: 06/29/2007 LEAD ATTORNEY
Richard R Salazar , Jr (See above for address) TERMINATED: 04/07/2008 LEAD ATTORNEY
Robert W Becker (See above for address) TERMINATED: 12/02/2003 LEAD ATTORNEY
Jerry A. Walz (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/08/1987

# Docket Text
1 CLASS ACTION COMPLAINT (referred to Magistrate Don J. Svet) (former employee) (Additional attachment(s) added on 7/8/2015: # 1 Part 2 of Complaint, # 2

07/20/1987 07/20/1987 07/23/1987
07/23/1987
07/23/1987
07/28/1987 08/03/1987 08/03/1987 08/05/1987 08/05/1987 08/05/1987 08/05/1987 08/05/1987 08/07/1987 08/07/1987 08/11/1987 08/13/1987
08/13/1987
08/20/1987

Civil Cover Sheet) (kg). (Additional attachment(s) added on 7/15/2015: # 3 Filing Fee) (kg). (Entered: 11/26/1993)
2 UNOPPOSED MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by State Defendants (kg) (Entered: 07/07/2015)
3 CERTIFICATE OF SERVICE of Unopposed Motion for Extension of Time to Answer by Defendants (kg) (Entered: 07/08/2015)
4 ENTRY OF APPEARANCE of Simons, Cuddy & Friedman, and John F. Kennedy on behalf of defendants., Board of Education of the Los Lunas Public Schools, Neil Hartwigsen, and his successor in interest Anthony R. Apodaca (kg) (Entered: 07/08/2015)
5 UNOPPOSED MOTION FOR EXTENSION OF TIME TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT by defendants., Board of Education of the Los Lunas Public Schools, Neil Hartwigsen and his successor in interest Anthony R. Apodaca to and including 8/20/1987 (kg) (Entered: 07/08/2015)
6 ORDER that defendants' motion for an extension of time to answer or otherwise respond to the complaint is granted and that defendants will have until August 20, 1987 at 4:30 to file their answer or otherwise respond to complaint (CAB) cc: attys (kg) (Entered: 07/08/2015)
7 ORDER that defendants' motion for an extension of time to answer or otherwise respond to the complaint is granted, and these defendants will have until 8/20/1987 at 4:30 to file their answer (Clerk−CAB) cc: attys (kg) (Entered: 07/08/2015)
8 MOTION FOR CLASS ACTION DETERMINATION by Plaintiff's (kg) (Entered: 07/08/2015)
9 MEMORANDUM in Support of Plaintiffs' 8 Motion for Class Determination. (kg) (Entered: 07/08/2015)
10 MOTION for Scheduling Order by State Defendants' (kg) (Entered: 07/08/2015)
11 BRIEF in Support of 10 motion for scheduling order (kg) (Entered: 07/08/2015)
12 CERTIFICATE OF SERVICE by State Defendants' on above pleadings #10 and #11 to counsel of record on 8/5/87 (kg) (Entered: 07/08/2015)
13 UNOPPOSED MOTION for extension of time to file motion to dismiss by State Defendants (kg) (Entered: 07/08/2015)
14 CERTIFICATE OF SERVICE on above pleading #13 to counsel of record on 8/5/87 (kg) (Entered: 07/08/2015)
15 ORDER that the state defendants' motion for an extension of time to file a motion to dismiss 13 is granted and that defts will have until 9/30/87, at 4:30 to file their motion to dismiss (HB) cc: attys (kg) (Entered: 07/08/2015)
16 UNOPPOSED MOTION for extension of time to file response to motion for class certification by State Defendants (kg) (Entered: 07/08/2015)
17 UNOPPOSED MOTION for extension of time to file response to motion for class certification by Local School District Defts (kg) (Entered: 07/08/2015)
18 ORDER that the motion shall be granted and the Local School Defts. shall be permitted an extension of time until September 10, 1987, within which to respond to pltfs' class certification motion and to brief defenses raised under Rule 12(b) (GRANTED: CLERK:pmr) cc: attys (kg) (Entered: 07/08/2015)
19 ORDER that the state defts' motion for an extension of time to file a response to the motion for class certification is granted; THAT state defts. will file their reply to pltf's response to the motion for a scheduling order not later than five "working" days of receipt of the response. (GRANTED: CLERK:pmr) cc: attys (kg) (Entered: 07/08/2015)
20 CERTIFICATE OF SERVICE on first request for production of documents to counsel of record on 8/18/87 by pltfs. (kg) (Entered: 07/08/2015)

08/20/1987 08/20/1987 08/20/1987 08/20/1987 08/24/1987 08/25/1987 08/31/1987 09/08/1987
09/11/1987
09/17/1987
09/17/1987 09/21/1987 09/21/1987
09/21/1987
09/21/1987
09/22/1987 09/25/1987 09/25/1987
09/29/1987
09/29/1987

21 MOTION to Amend Complaint by Interlineation by Pltfs. (kg) (Entered: 07/08/2015)
23 ANSWER by State Defts. (kg) (Entered: 07/08/2015)
24 CERTIFICATE OF SERVICE by State Defts on answer to complaint to counsel of record on 8/20/87 (kg) (Entered: 07/08/2015)
25 ANSWER by Defts. Local School Board (kg) (Entered: 07/08/2015)
22 MEMORANDUM in Opposition by Pltfs. to defts' motion to delay these proceedings (kg) (Entered: 07/08/2015)
26 ORDER that the motion to amend complaint by interlineation 21 shall be granted. (HB) cc: attys. (kg) (Entered: 07/08/2015)
27 REPLY BRIEF by State Defendants in support of motion for scheduling order (kg) (Entered: 07/08/2015)
28 UNOPPOSED MOTION of Local School District Defendants for supplemental extensions of time to brief issues raised by affirmative defenses and to respond to plaintiff's motion for class certification (kg) (Entered: 07/15/2015)
29 ORDER on 28 Unopposed Motion for Supplemental Extensions of Time that the local school defendants shall be permitted a supplemental extension of time until September 17, 1987 within which to respond to plaintiffs' class certification motion brief affirmative defenses raised under Rule 12(b). (GRANTED: Clerk: CAB) cc: attys (kg) (Entered: 07/15/2015)
30 MOTION and MEMORANDUM to Dismiss and Brief in Support of defenses raised under Rule 12(b) by local school defendants (Attachments: # 1 Exhibit A)(kg) (Entered: 07/15/2015)
31 MEMORANDUM in Opposition to Certification of Plaintiff class by local school defendants (kg) (Entered: 07/15/2015)
32 MOTION (Unopposed) by Local School Defendants to Amend Answer by Interlineation (kg) (Entered: 07/15/2015)
33 CERTIFICATE OF SERVICE re: State Defendants response to plaintiffs' first request for production of documents mailed to all counsel on September 21, 1987 (kg) (Entered: 07/15/2015)
34 CERTIFICATE OF SERVICE re: Health and Environment Department's Notice of Deposition to Supporters of Developmentally Disabled New Mexicans, Inc. mailed to all counsel on September 15, 1987 (kg) (Entered: 07/15/2015)
35 CERTIFICATE OF SERVICE re: Health and Environment Department's first request for production of documents mailed to all counsel on September 15, 1987 (kg) (Entered: 07/15/2015)
36 CERTIFICATE OF SERVICE re: State Defendants' Answers to Interrogatories mailed to all counsel of record on September 21, 1987 (kg) (Entered: 07/15/2015)
38 Unopposed MOTION for Extension of Page and Time Limits by State Defendants' (kg) (Entered: 07/15/2015)
39 CERTIFICATE OF SERVICE re: State Defendants' Unopposed Motion for Extension of Page and Time Limits mailed to all counsel of record on September 25, 1987 (kg) (Entered: 07/15/2015)
37 ORDER amending Answer by Interlineation that the Local School Defendants' Answer to Class Action complaint is amended by interlineation to insert "by lack of standing of the plaintiffs," in the 9th Affirmative Defense to such Answer after the word "mootness" (HB) cc: attys (kg) (Entered: 07/15/2015)
40 Unopposed Motion for Extension of Time by Plaintiffs within which to respond to the local school defendants' brief in support of defenses raised under Rule 12(b), FRCP and to reply to their response to plaintiffs' motion for class certification (Attachments: # 1 40 A − Order that State Defendants motion for extension of page and time limit is granted)(kg) (Entered: 07/15/2015)

09/29/1987
09/30/1987 09/30/1987 09/30/1987 09/30/1987 09/30/1987 09/30/1987 09/30/1987 10/07/1987 10/08/1987 10/09/1987
10/14/1987 10/15/1987 10/15/1987 10/23/1987 10/23/1987 10/23/1987 10/23/1987 10/28/1987

43 ORDER on unopposed motion for supplemental extensions of time for plaintiffs to respond to defendants' dismissal motion and an extension of time to jointly reply to defendant's responses to plaintiffs' class certification motion (GRANTED: Clerk: CAB) cc: attys (kg) (Entered: 07/15/2015)
41 MOTION to Dismiss by State Defendants (kg) (Entered: 07/15/2015)
42 MEMORANDUM of Points and Authorities in Support of State Defendants' 41 Motion to Dismiss (kg) (Entered: 07/15/2015)
44 CERTIFICATE OF SERVICE of Notice of Deposition by Defendant Gordon of James Ellis mailed to counsel of record on September 30, 1987 (kg) (Entered: 07/15/2015)
45 CERTIFICATE OF SERVICE of Notice of Deposition by Defendant Gordon of Robert McNeil mailed to counsel of record on September 30, 1987 (kg) (Entered: 07/15/2015)
46 CERTIFICATE OF SERVICE of Notice of Deposition by Defendant Gordon of Frederick Hart mailed to counsel of record on September 30, 1987 (kg) (Entered: 07/15/2015)
47 CERTIFICATE OF SERVICE of Notice of Deposition by Defendant Gordon of Arthur Gumblatt mailed to all counsel of record on September 30, 1987 (kg) (Entered: 07/15/2015)
48 CERTIFICATE OF SERVICE of Notice of Deposition by Defendant Gordon of Loretta Armenta mailed to counsel of record on September 30, 1987 (kg) (Entered: 07/15/2015)
49 MOTION for Extension of Time in which to file motion to compel discovery by Plaintiffs (kg) (Entered: 07/15/2015)
50 CERTIFICATE OF SERVICE by Local School Defendants on answer's to plaintiffs' first interrogatories and responses to request for production to counsel of record on 10/8/87 (kg) (Entered: 07/15/2015)
51 AMENDED CERTIFICATE OF SERVICE re: Local School Defendants' answers to plaintiffs' first interrogatories to defendants and local school defendants' responses to plaintiffs' first request for the production of documents mailed to counsel of record on October 9, 1987 (kg) (Entered: 07/15/2015)
52 MOTION for Extension of Time by Plaintiffs until 10/29/87 to respond to defendant HED's first request for production of documents (kg) (Entered: 07/15/2015)
53 ORDER that plaintiff's 52 motion for extension of time is granted until 10/29/87 in which to respond to defendant HED's first request for production of documents (MC) cc: attys (kg) (Entered: 07/15/2015)
54 ORDER re 49 that plaintiffs shall have until 11/6/87 in which to file their motion to compel production of documents and answers to interrogatories. (MC) cc: attys (kg) (Entered: 07/15/2015)
55 CERTIFICATE OF SERVICE re: Notice of Deposition by Defendant Larry Gordon of Robert McNeil mailed to counsel of record on 10/22/87. (kg) (Entered: 07/15/2015)
56 CERTIFICATE OF SERVICE re: Notice of Deposition by Defendant Larry Gordon of Arthur Bumblatt mailed to counsel of record on 10/22/87. (kg) (Entered: 07/15/2015)
57 CERTIFICATE OF SERVICE re: Notice of Deposition by Defendant Larry Gordon of Loretta Armenta mailed to counsel of record on 10/22/87. (kg) (Entered: 07/15/2015)
58 CERTIFICATE OF SERVICE re: Notice of Deposition by Defendant Larry Gordon of James Ellis mailed to counsel of record on 10/22/87. (kg) (Entered: 07/15/2015)
59 CERTIFICATE OF SERVICE re: Notice of Deposition by Defendant Larry Gordon of Supporters of Developmentally Disabled NM mailed to counsel of record on

10/29/1987 11/02/1987 11/02/1987 11/06/1987 11/09/1987 11/09/1987 11/12/1987
11/12/1987 11/17/1987 11/19/1987 11/25/1987 11/25/1987 11/30/1987
12/03/1987 12/03/1987 12/04/1987 12/04/1987 12/08/1987 12/08/1987

10/23/87 (kg) (Entered: 07/15/2015)
60 Unopposed MOTION for extension of time within which to respond to State's and Local School Defendants Briefs in Support of Defenses under Rule 12(b) FRCvP until 11/6/87 by Plaintiff's (kg) (Entered: 07/15/2015)
61 ORDER that the 60 motion shall be granted and the plaintiffs shall be permitted an extension of time till 11/6/87 within which to respond to defendants' dismissal motions (GRANTED: CLERK: CAB) cc: attys (kg) (Entered: 07/15/2015)
62 CERTIFICATE OF SERVICE of Plaintiffs' response to defendant Health and Environment Department's first request for production of documents hand−delivered to counsel of record on 10/29/87 (kg) (Entered: 07/15/2015)
63 ENTRY OF APPEARANCE of Williams, Conroy & Simms, attys on behalf of the plaintiffs (kg) (Entered: 07/15/2015)
64 UNOPPOSED MOTION for extension of page limits in plaintiffs' response to defendants' motion to dismiss (kg) (Entered: 07/15/2015)
65 SECOND MOTION to Amend the Complaint by interlineation by plaintiffs (kg) (Entered: 07/15/2015)
66 MINUTE ORDER that this matter comes before the Court on plaintiffs' motion for the extension of page limits. The Court, having considered the motion, the Court finds: THAT plaintiffs are allowed to file a brief in excess of the page limit, but not to exceed 60 pages, said brief is to be filed by November 20, 1987. (CLERK:cab) cc: attys (kg) (Entered: 07/15/2015)
67 SECOND MOTION by plaintiff for extension of time to 12/4/87 to file motion to compel production of documents and answers to interrogatories (kg) (Entered: 07/15/2015)
68 ORDER that plaintiffs' 67 second motion for extension of time is granted until 12/4/87 in which to file their motion to compel (MC) cc: attys (kg) (Entered: 07/15/2015)
69 UNOPPOSED MOTION for extension of time to respond to plaintiffs' second motion to amend the complaint by interlineation from 11/19/87 to 11/25/87 (kg) (Entered: 07/15/2015)
70 PLAINTIFFS' MEMORANDUM in opposition to the motions to dismiss of the State and Local Education Defendants with appendices (Attachments: # 1 Part 2 of Memorandum, # 2 Appendices 1−2, # 3 Appendices 3−4)(kg) (Entered: 07/15/2015)
71 LOCAL SCHOOL DEFENDANTS' Response in Opposition to 65 Plaintiffs' Second Motion to Amend the Complaint by Interlineation (kg) (Entered: 07/15/2015)
72 ORDER that the local school defendants 69 motion for an extension of time in which to file a response to plaintiff's second motion to amend the complaint by interlineation is hereby granted and that the local school defendants will be permitted until 11/25/87 to respond to plaintiff's motion (CB) (kg) (Entered: 07/15/2015)
75 MOTION for extension of time by State Defendants to file a motion to compel the production of documents until 12/21/87 (kg) (Entered: 07/15/2015)
76 CERTIFICATE OF SERVICE that motion for extension of time was mailed to all counsel of record by State Defendants (kg) (Entered: 07/15/2015)
73 PLAINTIFFS' MOTION to compel production of documents and certificate of good faith compliance (kg) (Entered: 07/15/2015)
74 PLAINTIFFS' Memorandum Brief in Support of 73 motion to compel production of documents (Attachments: # 1 Exhibit 1−10)(kg) (Entered: 07/15/2015)
77 Unopposed MOTION for Enlargement of Page Limits by State Defendants' (kg) (Entered: 07/15/2015)
78 CERTIFICATE OF SERVICE that State Defendants' unopposed motion for enlargement of page limits was mailed to all counsel of record on 12/8/87 (kg)

(Entered: 07/15/2015)

12/09/1987

79 ORDER that 75 motion for extension of time is granted and the State Defendants' shall have until 12/21/87 in which to file their motion to compel (MC) cc: attys (kg) (Entered: 07/15/2015)

12/10/1987

80 Plaintiff's Application for Temporary Restraining Order restraining defendants Los Lunas Hospital and Training School, Health and Environment Department, Department of Education, Carolyn Klintworth, Larry Gordon and Alan Morgan from preventing plaintiff Ronald Fuller's enrollment in Los Lunas Public Schools, directing Los Lunas Public School to enroll plaintiff immediately to devise an appropriate individual education plan for him subject to immediate Court review and directing Los Lunas Hospital and Los Lunas Public Schools to transport plaintiff to and from school (Attachments: # 1 Exhibit 1−5, # 2 Exhibit 6−12)(kg) (Entered: 07/15/2015)

12/10/1987 81 PLAINTIFFS' MEMORANDUM in Support of 80 Application for Temporary Restraining Order and Preliminary Relief (kg) (Entered: 07/15/2015)

12/10/1987 83 Unopposed MOTION for Extension of Time within which to file reply brief by Local School Defendants (Until 12/31/87) (kg) (Entered: 07/15/2015)

12/11/1987

82 ORDER that the State Defendants' 77 motion for enlargement of page limits is granted and the state defendants will be permitted to file a reply brief in support of their motion to dismiss that will not exceed 30 pages (JP) cc: attys (kg) (Entered: 07/15/2015)

12/11/1987 2081 CLERK'S MINUTES on Hearing for TRO held before the Honorable James A. Parker on 12/11/1987. All Parties Present. (kg) (Entered: 02/02/2016)

12/14/1987 86 STATE DEFENDANTS' REPLY Brief in Support of Motion to Dismiss (Attachments: # 1 Attachment A−H)(kg) (Entered: 07/15/2015)

12/14/1987

87 CERTIFICATE OF SERVICE that the State Defendants' Reply Brief in Support of Motion to Dismiss was mailed to counsel of record on 12/14/87 (kg) (Entered: 07/15/2015)

12/15/1987

84 PLAINTIFFS' SUPPLEMENTAL MEMORANDUM IN SUPPORT of 80 Application for Temporary Restraining Order and Preliminary Relief (Attachments: # 1 Appendix 1−2)(kg) (Additional attachment(s) added on 10/13/2015: # 2 Exhibit 1a−5) (kg). (Entered: 07/15/2015)

12/15/1987

85 MEMORANDUM IN OPPOSITION to 80 Plaintiffs Application for Temporary Restrainign Order by Defendants Los Lunas Public School District with affidavit of Hugh Prather, Superintendent of Los Lunas Public Schools (Attachments: # 1 Exhibit A)(kg) (Entered: 07/15/2015)

12/15/1987

88 MEMORANDUM in Opposition to 80 Application for Temporary Restraining Order and Preliminary Relief by State Defendants (Attachments: # 1 Exhibit AA−G, # 2 Exhibit H−P)(kg) (Entered: 07/15/2015)

12/15/1987 89 CERTIFICATE OF SERVICE by State Defendants of pleading #88 to counsel of record on 12/15/87 (kg) (Entered: 07/15/2015)

12/17/1987 90 MOTION to be allowed to intervene in proposed class action (kg) (Entered: 07/15/2015)

12/17/1987 91 CERTIFICATE OF SERVICE by Applicants in intervention of mailing pleading #90 to counsel of record on 12/17/87 (kg) (Entered: 07/15/2015)

12/21/1987 93 UNOPPOSED MOTION for Extension of Time (kg) (Entered: 07/15/2015)

12/21/1987 94 CERTIFICATE OF SERVICE by State Defendants' pleading #93 (kg) (Entered: 07/15/2015)

12/23/1987 92 ORDER on Unopposed Motion of Extension of Time that the local school defendants shall file their reply brief on or before 12/31/87 (CB) (kg) (Entered: 07/15/2015)

12/23/1987 95 MEMORANDUM IN OPPOSITION to Plaintiff's Motion to Compel Production of Documents by State Defendant (kg) (Entered: 07/21/2015)

12/23/1987 12/31/1987 01/05/1988 01/06/1988 01/06/1988 01/07/1988
01/08/1988
01/08/1988 01/08/1988 01/08/1988 01/11/1988 01/14/1988 01/15/1988 01/19/1988 01/22/1988
01/22/1988 01/25/1988 01/25/1988 01/29/1988

96 CERTIFICATE OF SERVICE of pleading #95 by State Defendants' (kg) (Entered: 07/21/2015)
97 LOCAL SCHOOL DEFENDANTS' REPLY Memorandum in Support of Motion to Dismiss (kg) (Entered: 07/21/2015)
98 COMMENTS OF LOS LUNAS PUBLIC SCHOOLS to Proposed Memorandum Opinion and Order (kg) (Entered: 07/21/2015)
99 MINUTE ORDER that the hearing on preliminary injunction set for 1−27−88 is hereby vacated and is reset for Thursday, 2−4−88 at 9:00 A.M. (CLERK: cab) cc: attys w/amended calendar (kg) (Entered: 07/21/2015)
100 NOTICE OF DEPOSITION COMPLETION of Arthur G. Grumblatt taken on 11/5/87 by Howard W. Hendry and Co. (kg) (Entered: 07/21/2015)
101 NOTICE OF WITHDRAWAL OF COUNSEL by Ann M. Harvey of the Protection and Advocacy System on behalf of plaintiffs − that plaintiffs will continue to be represented by counsel who have entered an appearance in this matter. (kg) (Entered: 07/21/2015)
102 PLAINTIFFS' MOTION FOR EXTENSION OF TIME until 1−14−88 to file their reply brief to defendants' response to plaintiffs' motion to compel production of documents and answers to interrogatories. cc: Marte w/proposed order (kg) (Entered: 07/21/2015)
103 STATE DEFENDANT HEALTH AND ENVIRONMENT DEPARTMENT'S Motion to Compel Production of Documents and Certificate of Good Faith Compliance. cc: Marte (kg) (Entered: 07/21/2015)
104 MEMORANDUM IN SUPPORT of Health and Environment 103 Motion to Compel Production of Documents (kg) (Entered: 07/21/2015)
105 CERTIFICATE OF SERVICE of State Defendants' Motion and Memorandum in Support of Motion to Compel Production of Documents mailed to counsel of record on 1−8−88 (kg) (Entered: 07/21/2015)
106 SUPPLEMENT TO LOCAL SCHOOL DEFENDANTS' Reply Memorandum w/affidavit by Scott Childress attached. (Superintendent of Capitan Municipal Schools) (kg) (Entered: 07/21/2015)
107 PLAINTIFFS' REPLY to State Defendants' Memorandum in Opposition to Plaintiffs' Motion to Compel (kg) (Entered: 07/21/2015)
108 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker that Plaintiff's Application for a TRO is granted in part; see order for specifics. (kg) (Entered: 07/21/2015)
109 ORDER that plaintiffs' reply brief to defendants' response to plaintiff's motion to compel is granted until 1−14−88 in which to file their reply brief. (MC) cc: attys (kg) (Entered: 07/21/2015)
110 NOTICE OF TRANSMITTAL OF ADMINISTRATIVE RECORD IN THE MATTER OF RONALD FULLER with an Index and Volumes I, II, III and IV attached (Attachments: # 1 Part 1 of 6, # 2 Part 2 of 6, # 3 Part 3 of 6, # 4 Part 4 of 6, # 5 Part 5 of 6, # 6 Part 6 of 6)(kg) (Entered: 07/21/2015)
111 CERTIFICATE OF SERVICE that State Defendants' Notice of Transmittal of Administrative Record was mailed to all counsel of record on 1/22/88 (kg) (Entered: 07/21/2015)
112 PLAINTIFFS' response to State Defendants' Motion to Compel. cc: Marte (kg) (Entered: 07/21/2015)
113 CERTIFICATE OF SERVICE that Plaintiffs' Supplemental response to State Defendants' Request for Production was mailed to all counsel of record on 1−25−88 (kg) (Entered: 07/21/2015)
114 NOTICE OF TENDER OF BOND TO COURT CLERK by Plaintiffs in the amount of $500 pursuant to Order 108 filed 1/15/88 cc: Fiscal Clerk (Attachments: # 1 Filing

02/02/1988 02/02/1988 02/04/1988
02/10/1988 02/10/1988 02/12/1988 02/12/1988 02/16/1988 02/16/1988 02/17/1988 02/24/1988 02/29/1988
02/29/1988 02/29/1988 03/04/1988 03/04/1988 03/08/1988 03/17/1988 03/22/1988

Fee)(kg) (Entered: 07/21/2015)
115 NOTICE OF DEPOSITION COMPLETION of Robert McNeill which was taken on 11/4/87 by Howard W. Henry and Co. Original transcript is held by Chris Chopin, Bataan Memorial Bldg., Santa Fe, NM 87504 (kg) (Entered: 07/21/2015)
116 REPORT of Los Lunas Public Schools on Educational Appraisal of Ronald Fuller (kg) (Entered: 07/21/2015)
117 STIPULATION AND ORDER that the TRO entered by the Court on 1/15/88 is hereby terminated as to defendant Los Lunas Public Schools and that the parties shall carry out the terms of the Stipulation as presented (PARKER) cc: attys (kg) (Entered: 07/21/2015)
118 NOTICE OF DEPOSITION COMPLETION of Walter R. Jackson taken on 11/4/87 by Howard W. Henry and Co. (kg) (Entered: 07/21/2015)
119 NOTICE OF DEPOSITION COMPLETION of Linda Worley taken on 11/4/87 by Howard W. Henry (kg) (Entered: 07/21/2015)
122 STATE DEFENDANTS' REPLY to Plaintiffs' response in opposition to state defendants' motion to compel the production of documents. cc: Marte (kg) (Entered: 07/21/2015)
123 CERTIFICATE OF SERVICE that State Defendants' reply brief in support of motion to compel was mailed to all counsel of record on 2/12/88 (kg) (Entered: 07/21/2015)
120 NOTICE OF DEPOSITION COMPLETION of Loretta Armenta on 11/4/87 by Howard W. Henry and Co. (kg) (Entered: 07/21/2015)
121 NOTICE OF DEPOSITION COMPLETION of James W. Ellis on 11/4/87 by Howard W. Henry and Co. (kg) (Entered: 07/21/2015)
124 MOTION FOR RELEASE OF BOND by Plaintiffs to release the $500.00 bond previously deposited by Plaintiffs with the Clerk of the Court w/proposed order (kg) (Entered: 07/21/2015)
125 MOTION FOR EXTENSION OF TIME by Plaintiff re: to file his application for fees and costs until 3/4/88 w/proposed order (kg) (Entered: 07/21/2015)
126 ORDER by District Judge James A. Parker that the Public Interest Law Center of Philadelphia, including Frank Laski, Tim Cook, Judith Gran and Lisa Rau, may participate as counsel for Plaintiffs in this cause and before this Court. cc: attys (kg) (Entered: 07/21/2015)
127 ORDER by District Judge James A. Parker that Plaintiff's 125 motion for extension of time is granted and that plaintiff shall have until 3/4/88 in which to file his application for fees and costs (kg) (Entered: 07/21/2015)
128 ORDER by District Judge James A. Parker that the Clerk shall forthwith release the $500.00 bond previously deposited by Plaintiffs. cc: attys and fiscal clerk (kg) (Entered: 07/21/2015)
129 PLAINTIFF'S MOTION for Award of Attorney's Fees and Costs (kg) (Entered: 07/22/2015)
130 MEMORANDUM BRIEF in Support of 129 Plaintiff Ron Fuller's Motion for Award of Attorney's Fees and Costs (kg) (Entered: 07/22/2015)
PAID to Plaintiffs on 3/8/88 check no. 70924 in the amount of $500.00 by E. Montoya (kg) (Entered: 07/22/2015)
131 UNOPPOSED MOTION of Defendants State and Local School for Extension of Time within which to respond to Plaintiffs' motion for award of attorneys fees and costs until 4/1/88 (kg) (Entered: 07/22/2015)
132 ORDER by District Judge James A. Parker that state and local school defendants 131 motion for extension of time in which to file a response to plaintiff's motion for award of attorney's fees is granted and that the defendants will be permitted till 4/1/88 to respond to plaintiffs' motion (kg) (Entered: 07/22/2015)

03/24/1988 03/24/1988 03/25/1988
04/01/1988
04/01/1988 04/01/1988 04/05/1988 04/12/1988
04/13/1988 04/13/1988 04/13/1988 04/26/1988 04/26/1988 04/26/1988
04/26/1988
04/27/1988 04/28/1988

133 CERTIFICATE OF SERVICE that Plaintiff's first request for admission to Public School defendants of the Los Lunas Public School defendants were mailed to all counsel of record on 3/24/88 by Plaintiffs (kg) (Entered: 07/22/2015)
134 CERTIFICATE OF SERVICE that Plaintiff's first request for admission to Public School defendants of Capitan Public Schools were mailed to all counsel of record on 3/24/88 by Plaintiffs (kg) (Entered: 07/22/2015)
135 CERTIFICATE OF SERVICE that Plaintiff's Second Set of Interrogatories and Request for Production of documents and tangible items were mailed to Christopher Coppin, counsel for State Defendants and a copy was mailed to remaining counsel on 3/25/88 (kg) (Entered: 07/23/2015)
136 MEMORANDUM by Los Lunas School Defendants' in Opposition to Plaintiff's motion for award of attorneys fees and costs w/affidavit of Thomas Gabaldon attached (no signature) and affidavit of J. Duke Thornton attached (Attachments: # 1 Exhibit A)(kg) (Entered: 07/23/2015)
137 MEMORANDUM by State Defendants' in Opposition to Plaintiff's motion for award of attorneys fees and costs w/affidavit of Gary Beene attached (kg) (Entered: 07/23/2015)
138 CERTIFICATE OF SERVICE by State Defendants' of memorandum in opposition to Plaintiff's motion for fees and costs to counsel of record on 4/1/88 (kg) (Entered: 07/23/2015)
139 AFFIDAVIT of Thomas Gabaldon (kg) (Entered: 07/23/2015)
140 MOTION FOR EXTENSION OF TIME by Plaintiffs until 4/29/88 in which to file a reply to the response briefs filed by state defendants and Los Lunas School Defendants in opposition to Plaintiff Ron Fuller's motion for award of attorneys' fees and costs (kg) (Entered: 07/23/2015)
141 ORDER that Plaintiffs' motion to compel is granted in part and denied in part. See Order for specifics. (MCCOY) (kg) (Entered: 07/23/2015)
142 ORDER that State Defendant Health and Environment Department's motion to compel production of documents is granted, and the documents shall be produced to defendant within 5 days of entry of this order (MCCOY)(kg) (Entered: 07/23/2015)
143 ORDER that Plaintiffs' motion for extension of time is granted; that plaintiffs shall file their reply brief on or before 4/29/88 (CLERK:cab) (kg) (Entered: 07/23/2015)
144 PLAINTIFFS' SECOND Motion for Extension of Time in which to file reply brief to defendants' response briefs as to plaintiffs application for fees for 10 more working days (kg) (Entered: 07/23/2015)
145 CERTIFICATE OF SERVICE that plaintiffs' third request for production of documents to state defendants were mailed to attorney for state defendants and all remaining opposing counsel on 4/25/88 (kg) (Entered: 07/23/2015)
146 CERTIFICATE OF SERVICE that plaintiffs' second set of interrogatories to Local School Defendants and plaintiffs' second request for production of documents to local school defendants were mailed to counsel for Local School Defendants and all remaining opposing counsel on 4/25/88 (kg) (Entered: 07/23/2015)
148 CERTIFICATE OF SERVICE that copies of Los Lunas Public School defendants' answer to request for admission and Capitan Municipal School defendants' answer to request for admissions were mailed to all counsel of record on 4/26/88 (kg) (Entered: 07/23/2015)
147 CERTIFICATE OF SERVICE that State Defendants' answers to responses to plaintiff's second set of interrogatories and request for production were mailed to all counsel of record on 4/27/88 (kg) (Entered: 07/23/2015)
149 ORDER that Plaintiffs' second motion for extension of time is granted and that plaintiffs shall have until 10 working days after counsel receive defendants' responses and answers to the discovery propounded to them in which to file their reply brief (PARKER) (kg) (Entered: 07/23/2015)

05/20/1988 05/25/1988 05/25/1988 05/27/1988 05/31/1988
06/01/1988
06/02/1988 06/13/1988 06/16/1988 06/20/1988 06/21/1988 06/24/1988 06/24/1988
06/27/1988
06/27/1988
06/27/1988 06/27/1988
06/27/1988 06/27/1988 06/27/1988
06/28/1988

150 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker granting motion to amend complaint by interlineation. (kg) (Entered: 10/13/2015)
151 MOTION for Extension of Time by intervenors to file a memorandum brief in support of its motion to intervene until 6/2/88 (kg) (Entered: 10/13/2015)
152 CERTIFICATE OF SERVICE that intervenors' motion for extension of time was mailed to counsel of record on 5/25/88 (kg) (Entered: 10/13/2015)
153 NOTICE OF WITHDRAWAL by Lynn C. Eby (Luebben and Hughes, P.C.) as attorney for Plaintiff's (kg) (Entered: 10/13/2015)
155 CERTIFICATE OF SERVICE of State Defendants' answers and responses to Plaintiff's third set of interrogatories and request for production was mailed to counsel of record on 5/31/88 (kg) (Entered: 10/13/2015)
154 ORDER by District Judge James A. Parker. Intervenors shall have until 6/2/1988 in which to file their memorandum brief in support of their motion to intervene. (kg) (Entered: 10/13/2015)
156 MEMORANDUM IN SUPPORT of Motion to Intervene by proposed intervenors (kg) (Entered: 10/13/2015)
157 PLAINTIFF'S Motion for Reconsideration of that portion of the Court's Order entered 5/23/88 dismissing the local school district defendants (kg) (Entered: 10/13/2015)
158 MOTION for Extension of Time by Plaintiff's in which to file their reply to state and local defendants' response briefs (kg) (Entered: 10/13/2015)
159 ORDER that Plaintiffs' motion for extension of time to 6/27/88 is granted to reply to defendants' response brief (CLERK/CAB) (kg) (Entered: 10/13/2015)
160 RESPONSE of the State of New Mexico to parents' and guardians' motion to intervene (kg) (Entered: 10/13/2015)
161 STATE DEFENDANTS' Response to Plaintiffs' Motion for Reconsideration of the Court's Order dismissing the Local School Defendants (kg) (Entered: 10/13/2015)
162 CERTIFICATE OF SERVICE that State Defendants' response to Plaintiff's motion for reconsideration was mailed to all counsel of record on 6/24/88 (kg) (Entered: 10/13/2015)
163 ORDER by District Judge James A. Parker granting proposed intervenors motion to intervene and intervenors are to file their complaint in intervention, listing all intervenors by name, within 10 days of the date of this order (kg) (Entered: 10/13/2015)
164 NOTICE OF SUPPLEMENTAL AUTHORITY by Plaintiff's re: defendant's motion to dismiss a number of plaintiffs' claims (Attachments: # 1 Continuation of Notice)(kg) (Entered: 10/13/2015)
165 PLAINTIFFS' Motion for Leave to File Reply Brief in Excess of Local Rule Page Limit (kg) (Entered: 10/13/2015)
166 ORDER by District Judge James A. Parker that plaintiffs' motion for leave is granted and that plaintiffs may file a reply brief not to exceed 31 pages, with exhibits. (kg) (Entered: 10/13/2015)
167 PLAINTIFFS' Motion to Strike Portions of the Affidavit of J. Duke Thornton (kg) (Entered: 10/13/2015)
168 PLAINTIFFS' BRIEF in Support of Plaintiffs' Motion to Strike Portions of the Affidavit of J. Duke Thornton (kg) (Entered: 10/13/2015)
169 PLAINTIFFS' REPLY to Defendants' Memoranda in Opposition to Motion for Award of Attorneys' Fees and Costs (Attachments: # 1 Exhibit 1−7)(kg) (Entered: 10/13/2015)
170 AFFIDAVIT OF JOSEPHINE COLVIN (kg) (Entered: 10/13/2015)

07/06/1988 07/11/1988 07/13/1988 07/15/1988 07/15/1988
07/15/1988 07/15/1988
07/19/1988 08/01/1988 08/01/1988 08/01/1988 08/01/1988 08/01/1988 08/01/1988 08/01/1988 08/01/1988 08/02/1988
08/02/1988
08/02/1988 08/02/1988 08/05/1988 08/05/1988 08/05/1988

171 COMPLAINT in Intervention by attys Kent Winchester and Roberta Beyer (kg) (Entered: 11/02/2015)
172 PLAINTIFFS REPLY Memorandum in Support of Motion for Reconsideration of the Court's May 23 Order (kg) (Entered: 11/02/2015)
173 UNOPPOSED Motions for Extension of Time and For Leave to File Sur−Response by Local School Defendants (kg) (Entered: 11/02/2015)
174 UNOPPOSED Motion for Leave to File Supplemental Response by State Defendants (kg) (Entered: 11/02/2015)
175 CERTIFICATE OF SERVICE that State Defendants' supplemental response to plaintiff's motion for attys fees was mailed to counsel of record on 7−15−88 (kg) (Entered: 11/02/2015)
176 ANSWER to Complaint in Intervention by State Defendants (kg) (Entered: 11/02/2015)
177 CERTIFICATE OF SERVICE by State Defendants' answer to complaint in intervention was mailed to all counsel of record on 7/15/88. (kg) (Entered: 11/02/2015)
178 NOTICE of Filing of Affidavits of Gary Beene and Frederic D. Ball, M.D. by State Defendants (kg) (Entered: 11/02/2015)
179 PLAINTIFFS' Motion for Extraordinary Relief for a TRO and a preliminary injunction (kg) (Entered: 11/02/2015)
180 PLAINTIFFS' MEMORANDUM in Support of the Motion for Extraordinary Relief (Attachments: # 1 Appendix A−D, # 2 Appendix E−I)(kg) (Entered: 11/02/2015)
181 AFFIDAVIT of Peter Cubra (kg) (Entered: 11/02/2015)
182 AFFIDAVIT of Carol S. Romero in support of plaintiff's motion for TRO and preliminary injunction (kg) (Entered: 11/02/2015)
183 AFFIDAVIT of Don Westervelt in support of plaintiff's motion for TRO and preliminary injunction (kg) (Entered: 11/02/2015)
184 AFFIDAVIT of Sally Faubion in support of plaintiff's motion for TRO and preliminary injunction (kg) (Entered: 11/02/2015)
185 AFFIDAVIT of Charlotte Gonzales in support of plaintiff's motion for TRO and preliminary injunction (kg) (Entered: 11/02/2015)
186 AFFIDAVIT of Mary Kathryn Reed in support of plaintiff's motion for TRO and preliminary injunction (kg) (Entered: 11/02/2015)
187 NOTICE OF WITHDRAWAL by Marlene Foster of the Protection and Advocacy System and withdraws as co−counsel for plaintiffs in this litigation (kg) (Entered: 11/02/2015)
188 CERTIFICATE OF SERVICE that plaintiff's first set of requests for admission was mailed to counsel for state defendants on 8/2/88 by Plaintiffs (kg) (Entered: 11/02/2015)
189 ORDER by District Judge James A. Parker granting the State Defendants' motion for leave to file supplemental response (kg) (Entered: 11/02/2015)
190 ORDER by District Judge James A. Parker on unopposed motions for extension of time and for leave to file sur−response (kg) (Entered: 11/02/2015)
191 PLAINTIFFS' THIRD Motion to Amend Complaint by Interlineation (kg) (Entered: 11/02/2015)
192 ORDER by District Judge James A. Parker to amend complaint by interlineation (kg) (Entered: 11/02/2015)
193 THIRD AMENDED COMPLAINT by Plaintiffs (kg) (Entered: 11/02/2015)

08/05/1988 08/15/1988 08/15/1988 08/18/1988 08/19/1988 08/22/1988
08/29/1988 08/29/1988 08/29/1988 08/29/1988 08/30/1988
08/30/1988
08/30/1988
08/31/1988
08/31/1988 08/31/1988 08/31/1988
09/02/1988
09/02/1988
09/02/1988 09/06/1988 09/07/1988

194 STATE DEFENDANTS' RESPONSE to Plaintiffs' Motion for Extraordinary Relief (kg) (Entered: 11/02/2015)
195 PLAINTIFFS' TRIAL BRIEF regarding admissibility of plaintiffs' exhibit five (kg) (Entered: 11/02/2015)
196 STATE DEFENDANT'S BRIEF on Admissibility of Document Authored by Tom Dieker (kg) (Entered: 11/02/2015)
197 MOTION for Extension of Time to File an Amended Complaint by Plaintiffs (kg) (Entered: 11/02/2015)
198 ORDER by District Judge James A. Parker shall have until 9/6/88 to file an amended complaint (kg) (Entered: 11/02/2015)
199 MEMORANDUM in Support of Plaintiffs' motion for extraordinary relief on behalf of plaintiffs who have been housed at the State Hospital in Las Vegas(kg) (Entered: 11/02/2015)
201 PLAINTIFFS' MEMORANDUM in Support of Application for Temporary Restraining Order (kg) (Entered: 11/02/2015)
202 AFFIDAVIT of Carol Romero (kg) (Entered: 11/02/2015)
203 AFFIDAVIT of Sally Faubion (kg) (Entered: 11/02/2015)
204 AFFIDAVIT of Peter Cubra (kg) (Entered: 11/02/2015)
205 MOTION TO STRIKE Defendant's Response Regarding Plaintiffs Motion for Extraordinary Relief on Behalf of Plaintiffs who have been housed at the State Hospital in Las Vegas (kg) (Entered: 11/04/2015)
206 PLAINTIFFS' Provisional Reply to Defendants' Memorandum in Response to Plaintiffs Motion for Extraordinary Relief Regarding Plaintiffs at LVMC (kg) (Entered: 11/04/2015)
209 DEFENDANTS' POST−HEARING MEMORANDUM CONCERNING THE REQUEST FOR EMERGENCY RELIEF AT LAS VEGAS MEDICAL CENTER (Attachments: # 1 Attachment A−B)(kg) (Entered: 11/04/2015)
207 SUBSTITUTE MOTION to Strike Defendant's Post−Hearing Memorandum Concerning the Request for Emergency Relief at Las Vegas Medical Center (kg) (Entered: 11/04/2015)
208 MEMORANDUM in Support of Plaintiffs Substitute Motion to Strike Defendants' Response Brief (kg) (Entered: 11/04/2015)
210 AFFIDAVIT of Tony Escudero, Administrator II of Las Vegas Medical Center (kg) (Entered: 11/04/2015)
211 CERTIFICATE OF SERVICE that the Affidavit of Tony Escudero was hand−delivered to counsel for plaintiff and mailed to counsel for intervenors on 8/30/88 (kg) (Entered: 11/04/2015)
212 DEFENDANTS' BRIEF IN OPPOSITION to Plaintiffs' Application for a Temporary Restraining Order Preventing Discharge of the LVMC Plaintiffs (kg) (Entered: 11/04/2015)
213 CERTIFICATE OF SERVICE that defendants' brief in opposition to plaintiffs' application for TRO preventing discharge of the LVMC plaintiffs as hand−delivered to the Protection and Advocacy System on 9/2/88 by attys for defendants (State Defts) (kg) (Entered: 11/04/2015)
214 THIRD AMENDED CLASS ACTION COMPLAINT (Attachments: # 1 Part 2)(kg) (Entered: 11/05/2015)
219 DEFENDANTS' response in opposition to substitute motion to strike defts' post−hearing memorandum (kg) (Entered: 11/05/2015)
220 AFFIDAVIT of Peter Cubra in Support of August 29, 1988 Application for TRO (kg) (Entered: 11/05/2015)

09/07/1988 221 NOTICE of Filing of Affidavit of Michael F. Gzaskow, M.D. by State Defendants (kg) (Entered: 11/05/2015)

09/07/1988

222 CERTIFICATE OF SERVICE that defts' response in opposition to substitute motion to strike defts' post−hearing memorandum and defts notice of filing of the affidavit of Michael F. Gzaskow, M.D. were mailed to attys for pltfs and attys for intervenors on 9/7/88 (kg) (Entered: 11/05/2015)

09/13/1988 223 PLAINTIFFS' ANSWER to Complaint in Intervention (kg) (Entered: 11/05/2015)

09/13/1988

225 CERTIFICATE OF SERVICE that Affidavits of Sally Faubion, Nancy Koenigsberg and Carol Romero in support of plaintiffs' motion for extraordinary relief were filed under seal and mailed to counsel of record on 9/13/88 by attys for plaintiffs (kg) (Entered: 11/05/2015)

09/15/1988 228 MINUTE ORDER that beginning with Volume VI of this case, is hereby SEALED until further order of the Court (kg) (Entered: 11/05/2015)

09/19/1988 2093 TRANSCRIPT COMPLETED from hearing on 8−4−88 before the Honorable James A. Parker re: status, motion and application for TRO discussion (Completed by Charlotte Macias − Court Reporter) (kg) (Additional attachment(s) added on 2/11/2016: # 1 Part 2) (kg). (Entered: 02/11/2016)

09/23/1988 229 CERTIFICATE OF SERVICE that the response to plaintiffs' first request for admission to State Defendants was mailed to all counsel of record on 9/21/88 (kg) (Entered: 11/05/2015)

09/23/1988 230 CERTIFICATE OF SERVICE that plaintiffs' interrogatories re: plaintiffs' request for admission were mailed to state defendants on 9/22/88 (kg) (Entered: 11/05/2015)

09/23/1988 231 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker. See Order for Specifics. (kg) (Entered: 11/05/2015)

09/28/1988 232 STIPULATION by Plaintiffs and State Defendants re: motion for extraordinary relief (kg) (Entered: 11/05/2015)

09/30/1988 233 AMENDED SUPPLEMENTAL AFFIDAVIT of Philip B. Davis (kg) (Entered: 11/05/2015)

10/05/1988 234 SCHEDULING ORDER by District Judge James A. Parker (kg) (Entered: 11/05/2015)

10/05/1988 235 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker re motion to dismiss (kg) (Entered: 11/05/2015)

10/11/1988 236 CERTIFICATE OF SERVICE that atty for plaintiffs mailed to atty Roberta Beyer and Assistant AG Notice of Deposition on 10/6/88 (kg) (Entered: 11/05/2015)

10/12/1988 237 MOTION for Extension of Time by Plaintiffs to file Application for Fees and Costs (kg) (Entered: 11/05/2015)

10/13/1988 238 FOURTH AMENDED COMPLAINT by Interlineation (kg) (Entered: 11/05/2015)

10/17/1988 239 UNOPPOSED Motion for Extension of Page Limits by Defendants (kg) (Entered: 11/05/2015)

10/18/1988 240 ORDER by District Judge James A. Parker granting 239 motion for extension of page limits (kg) (Entered: 11/05/2015)

10/19/1988 241 CERTIFICATE OF SERVICE that State Defendants' motion for extension of page limits was mailed to all counsel of record on 10/18/88 (kg) (Entered: 11/05/2015)

10/19/1988 242 MOTION for Extension of Time for Response by Intervenors (kg) (Entered: 11/05/2015)

10/20/1988 243 CERTIFICATE OF SERVICE that a notice of deposition was mailed to Roberta Beyer and Christopher Chopin, Assistant AG on 10/18/88 (kg) (Entered: 11/05/2015)

10/20/1988 244 ORDER granting 242 intervenors' motion for extension of time for response by Clerk (kg) (Entered: 11/05/2015)

10/20/1988 10/20/1988
10/20/1988 10/20/1988
10/24/1988 10/24/1988 10/24/1988 10/25/1988 10/25/1988 10/26/1988 10/26/1988 10/26/1988
10/27/1988
10/28/1988
10/28/1988
10/31/1988
10/31/1988 10/31/1988 10/31/1988
11/01/1988 11/02/1988

245 MOTION FOR WITHDRAW PRIOR ADMISSIONS by Defendants (kg) (Entered: 11/05/2015)
246 CERTIFICATE OF SERVICE by State Defendants' motion to withdraw prior admissions was mailed to all counsel of record on 10/20/88 (kg) (Entered: 11/05/2015)
248 AMENDED MOTION for Extension of Page Limits by Defendants (kg) (Entered: 11/05/2015)
249 CERTIFICATE OF SERVICE that State Defendants' amended motion to extend page limits and defts' memorandum of law in opposition to plaintiffs' motion for class certification was mailed to counsel of record on 10/20/88 (kg) (Entered: 11/05/2015)
247 ORDER granting 237 Plaintiffs' motion for extension of Time to 10/25/88 to file an Application for Fees and Costs by Clerk (kg) (Entered: 11/05/2015)
250 MOTION to Amend State Defendants' Answer (kg) (Entered: 11/05/2015)
251 CERTIFICATE OF SERVICE that State Defendants' motion to amend answer was mailed to all counsel of record on 10/24/88 (kg) (Entered: 11/05/2015)
252 PLAINTIFFS' MOTION for Award of Attorneys Fees and Costs (kg) (Entered: 11/05/2015)
253 MEMORANDUM Brief in Support of Plaintiff's 252 Motion for Award of Attorneys' Fees (kg) (Entered: 11/05/2015)
254 ORDER re 245 that the State Defendants have permission to withdraw the responses to plaintiffs' first request for admissions by Judge McCoy (kg) (Entered: 11/05/2015)
255 INTERVENORS' response to Plaintiff's motion for class certification (kg) (Entered: 11/05/2015)
256 CERTIFICATE OF SERVICE that intervenors' reponse to plaintiffs' motion for class certification was mailed to all counsel of record on 10/26/88 (kg) (Entered: 11/05/2015)
257 INTERIM REPORT TO THE COURT on compliance w/preliminary injunction by State Defendants (Attachments: # 1 Exhibit 1−10, # 2 Exhibit 11−18)(kg) (Entered: 10/13/2015)
261 NOTICE of Withdrawal of counsel by James P. Bieg on behalf of State Defendants since he will no longer be employed by the NM Attorney General and that Chris Coppin co−counsel of record will continue as atty for State Defendants (kg) (Entered: 11/05/2015)
263 CERTIFICATE OF SERVICE that State Defendants' answer to plaintiffs' interrogatories were mailed to all counsel of record on 10/26/88 (kg) (Entered: 11/05/2015)
259 DEFENDANTS' MEMORANDUM of Law in Opposition to Plaintiffs' Motion for Class Certification (Attachments: # 1 Exhibit A−C, # 2 Exhibit D−E, # 3 Exhibit F−J)(kg) (Entered: 10/29/2015)
258 ORDER by District Judge James A. Parker granting 248 Defendants motion for an extension of the page limit to file a response (kg) (Entered: 11/05/2015)
262 CERTIFICATE OF SERVICE that a notice of inspection was mailed to counsel of record on 10/31/88 by atty for plaintiffs (kg) (Entered: 11/05/2015)
264 CERTIFICATE OF SERVICE that State Defendants' response to deposition notices request to produce documents was mailed to attys of record on 10/28/88 by attys for State Defendants (kg) (Entered: 11/05/2015)
260 ORDER by District Judge James A. Parker that the State Defendants be given leave to amend their answer in this case until 11/2/88 (kg) (Entered: 11/05/2015)
265 MOTION for Extension of Time by Plaintiffs for an order extending time for plaintiffs to reply to defendants' and intervenors' responses to motion for certification

11/02/1988 11/02/1988 11/04/1988 11/04/1988 11/09/1988 11/15/1988 11/15/1988 11/15/1988 11/15/1988 11/16/1988 11/16/1988 11/16/1988 11/18/1988 11/18/1988 11/18/1988 11/18/1988
11/18/1988 11/21/1988 11/21/1988

(kg) (Entered: 11/05/2015)
268 AMENDED ANSWER by State Defendants (Answer to Third Amended Complaint) (kg) (Entered: 11/05/2015)
269 CERTIFICATE OF SERVICE that State Defendants' amended answer was mailed to counsel of record on 11/2/88 (kg) (Entered: 11/05/2015)
266 CERTIFICATE OF SERVICE that plaintiffs' request for production of documents re: plaintiffs' request for admission were mailed to atty for state defendants by atty for plaintiffs on 11/3/88 (kg) (Entered: 11/05/2015)
267 ORDER by District Judge James A. Parker granting 265 Plaintiffs' motion for extension to time to reply to defendants' and intervenors' responses to plaintiffs' application for class certification until 12/5/88 (kg) (Entered: 11/05/2015)
270 CERTIFICATE OF SERVICE that a supplemental notice of inspection was mailed to attys of record by attys for plaintiffs (attys Kent Winchester and Chris Coppin only) on 11/4/88 (kg) (Entered: 11/05/2015)
274 NOTICE OF NON−APPEARANCE by State Defendants that they will not produce Karen Lucero and Jamie Gerbrach for depositions set for 11/18/88 (kg) (Entered: 11/05/2015)
275 CERTIFICATE OF SERVICE that atty for State Defendants mailed a copy of its notice of non−appearance, motion for protective order and brief in support to counsel of record on 11/15/88 (kg) (Entered: 11/05/2015)
276 MOTION for Protective Order by State Defendants (kg) (Entered: 11/05/2015)
277 BRIEF in Support of 276 Motion for Protective Order by State Defendants (kg) (Entered: 11/05/2015)
271 MOTION for extension of time to file defendants' response to motion for award of attys fees until 11/21/88 (kg) (Entered: 11/05/2015)
272 CERTIFICATE OF SERVICE that a notice of deposition was mailed to attys Kent Winchester and Chris Coppin on 11/12/88 by attys for plaintiffs (kg) (Entered: 11/05/2015)
273 CERTIFICATE OF SERVICE that a notice of deposition was mailed to atty Kent Winchester and Chris Coppin on 11/12/88 by attys for plaintiffs (kg) (Entered: 11/05/2015)
278 MOTION FOR AN ORDER TO SHOW CAUSE and for further extraordinary relief by Plaintiffs w/attachments (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(kg) (Entered: 11/05/2015)
279 MEMORANDUM OF LAW in Support of 278 Motion for an Order to Show Cause and for further extraordinary relief by Plaintiffs (kg) (Entered: 11/05/2015)
280 ENTRY OF APPEARANCE by Bonnie Stepleton of the Protection and Advocacy System and enters her appearance on behalf of Plaintiffs (kg) (Entered: 11/05/2015)
281 CERTIFICATE OF SERVICE that the plaintiffs atty mailed a copy of the motion for order to show cause and for further extraordinary relief and memo in support to Kent Winchester and hand−delivered the same to atty for state defts on 11/18/88 (kg) (Entered: 11/05/2015)
282 CERTIFICATE OF SERVICE that notice of deposition was mailed to attys for state defendants and Kent Winchester by attys for plaintiffs on 11/18/88 (kg) (Entered: 11/05/2015)
283 ORDER granting 271 defendants motion for an extension of time until 11/21/88 to file defendants' response to plaintiffs' motion for award of attys fees and costs by Clerk (kg) (Entered: 11/05/2015)
284 STATE DEFENDANTS' MOTION for extension of time to file response to motion for award of attys' fees and costs until 11/23/88 (kg) (Entered: 11/05/2015)

11/23/1988 11/25/1988
11/29/1988 12/05/1988 12/05/1988
12/06/1988 12/06/1988 12/07/1988 12/08/1988 12/08/1988 12/08/1988 12/08/1988 12/09/1988
12/09/1988 12/09/1988
12/09/1988
12/09/1988
12/09/1988 12/09/1988 12/09/1988
12/15/1988

286 DEFENDANTS' Memorandum Response to Plaintiffs' motion for award of attys fees and costs by State Defendants (kg) (Entered: 11/05/2015)
285 ORDER granting 284 Defendants motion for an extension of time until 11/23/88 to file defendants' response to plaintiffs' motion for award of attys fees and costs by Clerk (kg) (Entered: 11/05/2015)
287 NOTICE OF DEPOSITION COMPLETION of Ann Hughes on 11/3/88 by Bean and Harris (kg) (Entered: 11/05/2015)
290 DEFENDANTS' Response to Plaintiffs' Motion for Order to Show Cause and other extraordinary relief (kg) (Entered: 11/05/2015)
291 CERTIFICATE OF SERVICE that State Defendants' response to plaintiffs' Motion for Order to Show Cause was mailed to Peter Cubra on 12/5/88 (kg) (Entered: 11/05/2015)
288 AFFIDAVIT of Sally Faubion, legal assistant, Protection Advocacy System (kg) (Entered: 11/05/2015)
289 CERTIFICATE OF SERVICE that the Affidavit of Sally Faubion was mailed to Jerry Dickinson and Kent Winchester on 12/6/88 (kg) (Entered: 11/05/2015)
292 MOTION for Extension of Time by Plaintiffs until 12/19/88 to file their reply to defendants' response to plaintiffs' application for fees (kg) (Entered: 11/05/2015)
293 PLAINTIFFS' REPLY Memorandum in Support of Class Certification w/attachments (kg) (Entered: 11/05/2015)
295 MOTION IN LIMINE by State Defendants (kg) (Entered: 11/05/2015)
296 MEMORANDUM in Support of 295 Motion in Limine by State Defendants (kg) (Entered: 11/05/2015)
297 CERTIFICATE OF SERVICE that State Defendants' Motion in Limine was mailed to counsel of record on 12/8/88 (kg) (Entered: 11/05/2015)
294 ORDER that plaintiffs' 292 motion for extension of time is granted and that plaintiffs shall have until 12/19/88 in which to file their reply to defendants' response to plaintiffs' application for fees by Clerk (kg) (Entered: 11/05/2015)
298 CERTIFICATE OF SERVICE that a notice of deposition was mailed to Chris Coppin and Kent Winchester by atty for plaintiffs on 12/8/88 (kg) (Entered: 11/05/2015)
299 CERTIFICATE OF SERVICE that a notice of inspection to Ervin Aldaz, Admin. of Ft. Stanton Hospital and to Caroly Klintworth, Admin. of Los Lunas Hospital was mailed to atty for state defendants and atty for intervenors by attys for plaintiffs on 12/6/88 (kg) (Entered: 11/05/2015)
300 CERTIFICATE OF SERVICE that a notice of deposition was mailed to Chris Coppin and Kent Winchester on 12/8/88 by Bonnie Stepleton, atty for plaintiffs (kg) (Entered: 11/05/2015)
301 MOTION for Subclass Certification by Plaintiffs for an order certifying as a sub−class all persons residing at Las Vegas Medical Center (kg) (Entered: 11/05/2015)
302 MEMORANDUM OF LAW in Support of 301 Motion for Subclass Certification by Plaintiffs (kg) (Entered: 11/05/2015)
303 AFFIDAVIT of Sally Faubion, Legal Assistant for Protection and Advocacy System (kg) (Entered: 11/05/2015)
304 CERTIFICATE OF SERVICE that a copy of the affidavit of Sally Faubion was mailed to Chris Coppin and Kent Winchester by atty for Plaintiffs (kg) (Entered: 11/05/2015)
305 RESPONSE MEMORANDUM in Opposition to 295 Motion in Limine by Plaintiffs (kg) (Entered: 11/05/2015)

12/15/1988 12/15/1988 12/15/1988
12/15/1988 12/15/1988 12/15/1988 12/19/1988 12/19/1988
12/19/1988 12/19/1988 12/19/1988 12/19/1988 12/19/1988 12/20/1988 12/21/1988 12/21/1988
12/22/1988 12/22/1988 12/28/1988 01/03/1989 01/03/1989 01/03/1989 01/03/1989

306 REPLY TO DEFENDANTS' RESPONSE to Plaintiffs' motion for order to show cause and other extraordinary relief by plaintiffs (kg) (Entered: 11/09/2015)
307 AFFIDAVIT of Mary Fields Cohen − Former Director of Brain Restraining Unit of Las Vegas Medical Center (kg) (Entered: 11/09/2015)
308 AFFIDAVIT of Donald R. Westervelt, Project Coordinator of the Protection and Advocacy System's Mental Health Client Advocacy Project (kg) (Entered: 11/09/2015)
309 AFFIDAVIT of Dr. John R. Graham a psychiatrist in the State of New Mexico (Attachments: # 1 Part 2)(kg) (Entered: 11/09/2015)
310 AFFIDAVIT of Dr. Lawrence F. Wilson − American Board of Medical Psychotherapists (kg) (Entered: 11/09/2015)
311 AFFIDAVIT of Dr. John Gluck − psychologist in the State of New Mexico (kg) (Entered: 11/09/2015)
312 MOTION FOR LEAVE to file surreply by Intervenors (kg) (Entered: 11/09/2015)
313 MOTION for Extension of Time by Plaintiffs to file their reply to defendants' response to plaintiffs' application for fees as to Las Vegas Medical Center (kg) (Entered: 11/09/2015)
314 MOTION to Reconsider Motion in Limine by Plaintiffs (kg) (Entered: 11/09/2015)
315 MEMORANDUM of Law in Support of 314 Motion to Reconsider Motion in Limine by Plaintiffs (kg) (Entered: 11/09/2015)
316 MOTION TO STRIKE Affidavit of Carl Haywood and to Exclude Any Evidence From Him by Plaintiffs (kg) (Entered: 11/09/2015)
317 MEMORANDUM in Support of 316 Motion to Strike by Plaintiffs (kg) (Entered: 11/09/2015)
318 ORDER by District Judge James A. Parker that the State's Motion in Limine is granted (kg) (Entered: 11/09/2015)
319 ORDER that plaintiffs' 313 Motion for Extension of Time is granted by Clerk (kg) (Entered: 11/09/2015)
320 RESPONSE by State Defendants to Plaintiffs' 316 motion to strike affidavit of Carl Haywood and to exclude any evidence from him (kg) (Entered: 11/09/2015)
321 ORDER by District Judge James A. Parker that plaintiffs' 314 motion to reconsider the Order granting defendants' motion in limine is denied as further described herein. (kg) (Entered: 11/09/2015)
322 NOTICE OF DEPOSITION COMPLETION of John R. Graham on 12/20/88 (kg) (Entered: 11/09/2015)
323 ORDER by District Judge James A. Parker granting 312 intervenors motion to file a surreply brief on or before 1/6/89 (kg) (Entered: 11/09/2015)
324 NOTICE OF DEPOSITION COMPLETION of John Paul Gluck taken on 12/20/88 (kg) (Entered: 11/09/2015)
325 NOTICE OF DEPOSITION COMPLETION of Jamie Gerbracht taken on 11/29/88 (kg) (Entered: 11/09/2015)
326 NOTICE OF DEPOSITION COMPLETION of Thomas J. Thompson taken on 11/30/88 (kg) (Entered: 11/09/2015)
327 NOTICE OF DEPOSITION COMPLETION of George W. Brown, M.D. taken on 12/19/88 (kg) (Entered: 11/09/2015)
328 NOTICE OF DEPOSITION COMPLETION of Ann Hughes taken on 12/20/88 (kg) (Entered: 11/09/2015)

01/03/1989
01/04/1989 01/04/1989 01/06/1989 01/06/1989 01/06/1989 01/12/1989 01/12/1989 01/12/1989 01/12/1989 01/12/1989 01/12/1989 01/12/1989 01/12/1989 01/12/1989 01/13/1989 01/13/1989 01/13/1989 01/13/1989 01/13/1989 01/13/1989 01/13/1989
01/16/1989

329 MOTION FOR EXTENSION OF TIME by Plaintiffs to file a reply brief re: attys' fees fro application on services performed re: extraordinary relief for the Las Vegas Medical Center until 1/16/89 (kg) (Entered: 11/09/2015)
330 ORDER by District Judge James A. Parker granting 329 plaintiffs' motion for extension of time (kg) (Entered: 11/09/2015)
331 CERTIFICATE OF SERVICE that State Defendants' response to notice of inspection was mailed to counsel of record on 1/4/89 (kg) (Entered: 11/09/2015)
332 NOTICE OF DEPOSITION COMPLETION of Pablo Hernandez, M.D. on 11/9/88 by Bean and Harris (kg) (Entered: 11/09/2015)
333 NOTICE OF DEPOSITION COMPLETION of Carolyn Klintworth on 10/25/88 by Bean and Harris (kg) (Entered: 11/09/2015)
334 INTERVENORS' SURREPLY on Class Certification (kg) Modified text on 11/10/2015 (bap). (Entered: 11/09/2015)
335 MOTION TO COMPEL the deposition of H. Carl Haywood or to Exclude His Evidence by Plaintiffs (kg) (Entered: 11/09/2015)
336 MEMORANDUM IN SUPPORT of 335 Motion to Compel the Deposition of H. Carl Haywood (kg) (Entered: 11/09/2015)
337 CERTIFICATE OF SERVICE by Plaintiffs on notice to take deposition to counsel on 1/6/89 (kg) (Entered: 11/09/2015)
338 CERTIFICATE OF SERVICE by Plaintiffs on notice to take deposition to counsel on 1/6/89 (kg) (Entered: 11/09/2015)
339 CERTIFICATE OF SERVICE by Plaintiffs on notice to take deposition to counsel on 1/6/89 (kg) (Entered: 11/09/2015)
340 CERTIFICATE OF SERVICE by Plaintiffs on notice to take deposition to counsel on 1/6/89 (kg) (Entered: 11/09/2015)
341 CERTIFICATE OF SERVICE by Plaintiffs on notice to take deposition to counsel on 1/6/89 (kg) (Entered: 11/09/2015)
342 CERTIFICATE OF SERVICE by Plaintiffs on notice to take deposition to counsel on 1/6/89 (kg) (Entered: 11/09/2015)
343 CERTIFICATE OF SERVICE by Plaintiffs on notice to take deposition to counsel on 1/6/89 (kg) (Entered: 11/09/2015)
344 NOTICE OF WITHDRAWAL OF AFFIDAVIT OF LAWRENCE WILSON by Attorney for Petitioner (kg) (Entered: 11/09/2015)
345 CERTIFICATE OF SERVICE that notice of withdrawal was mailed to attys of record (kg) (Entered: 11/09/2015)
346 NOTICE OF SUPPLEMENTAL AUTHORITY by Plaintiffs without attachment (kg) (Entered: 11/09/2015)
347 CERTIFICATE OF SERVICE that notice was mailed to all counsel of record by atty for plaintiff (kg) (Entered: 11/09/2015)
348 MOTION for Extension on page limit pursuant to DNMR 9(f) w/copy of 68 page attachment (Attachments: # 1 Part 2)(kg) (Entered: 11/10/2015)
349 CERTIFICATE OF SERVICE that the motion for extension was mailed to counsel of record (kg) (Entered: 11/10/2015)
350 STATUS CONFERENCE before the Honorable James A. Parker re: deposition held by phone conference. Mr. Peter Cubra and Mr. Christopher Cerf on phone 11:03−11:20 (Court Reporter: C. Macias) (kg) (Entered: 11/10/2015)
351 MOTION HEARING CONDUCTED (re: testimony of Dr. Haywood) held before the Honorable James A. Parker. All parties present 9:17−4:16 (Court Reporter: C. Macias) (kg) (Entered: 11/10/2015)

01/20/1989
01/24/1989
01/25/1989 01/25/1989 02/01/1989 02/01/1989
02/06/1989 02/15/1989 02/24/1989 03/01/1989 03/01/1989
03/03/1989
03/14/1989 03/14/1989 03/14/1989 03/22/1989
03/23/1989 03/23/1989 03/23/1989 03/24/1989 03/24/1989 03/27/1989

352 ORDER by District Judge James A. Parker granting 348 plaintiffs' motion for extension of page limit to exceed 50 pages as an attachment to plaintiffs' notice of supplemental authority (Attachments: # 1 Part 2)(kg) (Entered: 11/10/2015)
353 CERTIFICATE OF SERVICE that State Defendants' Objections to production of documents to Michael Beauregard and James Waltner were delivered to counsel of record on 1/23/89 (kg) (Entered: 11/10/2015)
354 CERTIFICATE OF SERVICE that Notice of Deposition was mailed to counsel of record by attys for plaintiffs on 1/13/89 (kg) (Entered: 11/10/2015)
355 CERTIFICATE OF SERVICE that Notice of Deposition was mailed to counsel of record by attys for plaintiff on 1/13/89 (kg) (Entered: 11/10/2015)
356 DEFENDANTS' RESPONSE to Plaintiffs' Reply Memorandum in Support of Class Certification (kg) (Entered: 11/10/2015)
357 CERTIFICATE OF SERVICE that deft's response to plaintiffs' reply memorandum in support of class certification was mailed to attys for plaintiffs and attys for intervenors on 2/1/89 (kg) (Entered: 11/10/2015)
358 NOTICE OF DEPOSITION COMPLETION of John Paul Bluck, PhD taken on 1/27/89 (kg) (Entered: 11/10/2015)
360 MEMORANDUM OF LAW in Support of Plaintiffs' Motion to Strike (kg) (Entered: 11/10/2015)
361 CERTIFICATE OF DEPOSITION re: deposition of Steven R. Olson taken on 2/1/89 by Elaine J. Buchanan (kg) (Entered: 11/10/2015)
362 STATE DEFENDANTS' RESPONSE in Opposition to Motion to Strike (kg) (Entered: 11/10/2015)
363 CERTIFICATE OF SERVICE that the State Defendants' response in opposition to motion to strike was mailed to all counsel of record on 3/1/89 (kg) (Entered: 11/10/2015)
364 ORDER by District Judge James A. Parker denying plaintiffs' motion for reconsideration of that portion of the Court's Order entered 5/23/88 dismissing the Local School District Defendants' (kg) (Entered: 11/10/2015)
365 NOTICE OF DEPOSITION COMPLETION of David Fisher taken on 12/20/1988 (kg) (Entered: 11/10/2015)
366 NOTICE OF DEPOSITION COMPLETION of Michael R. Matherly taken on 1/31/89 (kg) (Entered: 11/10/2015)
367 NOTICE OF DEPOSITION COMPLETION of Mary Ava Peets taken on 12/20/88 (kg) (Entered: 11/10/2015)
368 CERTIFICATE OF SERVICE that interrogatories were mailed to counsel of record, Chris Coppin and Kent Winchester by atty for plaintiff on 3/15/89 (kg) (Entered: 11/10/2015)
369 MOTION FOR PARTIAL SUMMARY JUDGMENT by State Defendants (kg) (Entered: 11/10/2015)
370 MEMORANDUM IN SUPPORT of 369 Defendants' Motion for Partial Summary Judgment (kg) (Entered: 11/10/2015)
371 CERTIFICATE OF SERVICE by State Defendants on 369 motion to counsel of record on 3/23/89 (kg) (Entered: 11/16/2015)
372 MOTION FOR SANCTIONS by Local School Defendants under Rule 11 F.R. Civ. P. (kg) (Entered: 11/16/2015)
373 MEMORANDUM in Support of 372 Motion for Sanctions by Local School Defendants (kg) (Entered: 11/16/2015)
374 PROTECTIVE ORDER by District Judge James A. Parker re: confidentiality (kg) (Entered: 11/16/2015)

03/27/1989 03/29/1989 03/29/1989 03/29/1989 03/29/1989 04/06/1989 04/06/1989 04/07/1989 04/07/1989
04/10/1989
04/10/1989
04/11/1989 04/14/1989 04/27/1989 05/03/1989 05/04/1989 05/04/1989 05/11/1989 05/11/1989 05/11/1989 05/23/1989 05/23/1989

379 CLERK'S MINUTES for Motion Hearing held on 3/27/1989 before the Honorable James A. Parker. All parties present. (kg) (Entered: 11/16/2015)
375 NOTICE OF DEPOSITION COMPLETION of Lawrence Wilson PhD taken on 12/21/1988 by Howard W. Henry (kg) (Entered: 11/16/2015)
376 NOTICE OF DEPOSITION COMPLETION of Michael Beauregard taken on 1/25/1989 (kg) (Entered: 11/16/2015)
377 NOTICE OF DEPOSITION COMPLETION of Thomas Sturm, Ann Hughes and Beverly Norris Jimmerson taken on 1/30/1989 (kg) (Entered: 11/16/2015)
378 NOTICE OF DEPOSITION COMPLETION of James D. Waltner, MD taken on 1/31/1989 (kg) (Entered: 11/16/2015)
380 CERTIFICATE OF SERVICE that attys for plaintiffs mailed a notice of deposition to attys Chris Coppin and Kent Winchester on 3/17/89 (kg) (Entered: 11/16/2015)
381 CERTIFICATE OF SERVICE that attys for plaintiffs mailed a notice of deposition to attys Chris Coppin and Kent Winchester on 4/3/89 (kg) (Entered: 11/16/2015)
382 PLAINTIFFS' response to defendants motion for partial summary judgment (kg) (Entered: 11/16/2015)
383 CERTIFICATE OF SERVICE that plaintiffs' response to defendants' motion for partial summary judgment mailed to attys Chris Coppin and Kent Winchester on 4/7/89 by attys for plaintiffs (kg) (Entered: 11/16/2015)
384 CERTIFICATE OF SERVICE that attys for defendants mailed defts answers to interrogatories and request for production of documents to intervenors re: expert witnesses to all counsel of record on 4/10/89 (kg) (Entered: 11/16/2015)
385 CERTIFICATE OF SERVICE that State Defendants response to plaintiffs' interrogatories and request for production concerning excerpts were mailed to counsel of record on 4/10/89 (kg) (Entered: 11/16/2015)
386 SUPPLEMENT to 373 Memorandum in Support of Motion for Sanctions under Rule 11 FRCVP by Local School Defendants (kg) (Entered: 11/16/2015)
387 NOTICE OF SUPPLEMENTAL AUTHORITY in Support of Plaintiff Ron Fuller's March 4, 1988 Motion for Attorneys' Fees and Costs (kg) (Entered: 11/16/2015)
388 REPLY MEMORANDUM on Motion for Rule 11 Sanctions by Local School Defendants (kg) (Entered: 11/16/2015)
389 NOTICE OF DEPOSITION COMPLETION of Steve Dossey taken on 1/20/1989 (kg) (Entered: 11/16/2015)
390 NOTICE OF SUPPLEMENTAL AUTHORITY in Opposition to Ron Fuller's March 4, 1988 Motion for Attorneys' Fees (kg) (Entered: 11/16/2015)
391 CERTIFICATE OF SERVICE that State Defendants' notice of supplemental authority was mailed to counsel of record on 5/3/89 (kg) (Entered: 11/16/2015)
392 NOTICE OF DEPOSITION DUCES TECUM of Elizabeth Warren on 5/15/1989 at 9:30 am (kg) (Entered: 11/16/2015)
393 NOTICE OF DEPOSITION DUCES TECUM of Peggy Maury on 5/15/89 at 9:30 AM (kg) (Entered: 11/16/2015)
394 NOTICE OF DEPOSITION COMPLETION of Pablo Hernandez taken on 1/26/89 (kg) (Entered: 11/16/2015)
395 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker. See Orders for Specifics. (kg) (Entered: 01/29/2016)
396 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker that plaintiffs motion for order to show cause and for further extraordinary relief is denied. (kg) (Entered: 01/29/2016)

06/01/1989 06/02/1989
06/05/1989 06/09/1989 06/12/1989
06/14/1989 06/16/1989 06/30/1989 07/05/1989
07/07/1989
07/10/1989 07/12/1989
07/12/1989 07/17/1989 07/17/1989
07/17/1989
07/17/1989 07/18/1989 07/20/1989 07/21/1989 07/21/1989

397 STATUS CONFERENCE CONDUCTED before the Honorable James A. Parker, all parties present. Motions discussed and trial date. (kg) (Entered: 01/29/2016)
398 ORDER by District Judge James A. Parker that the motion for sanctions under Rule 11 FRCVP filed by the local school defendants on 3/24/89 is denied and plaintiffs request for Rule 11 sanctions against the local school defendants is also denied. (kg) (Entered: 01/29/2016)
399 NOTICE of Withdrawal of Defendants' March 23, 1989 Motion for Partial Summary Judgment by State Defendants (kg) (Entered: 01/29/2016)
400 PLAINTIFFS' Motion for Extension of Time until 6/30/89 to file their application and memo in support of fees and costs (kg) (Entered: 01/29/2016)
401 ORDER by District Judge James A. Parker granting 400 plaintiffs motion for extension of time to file their application and memo in support of fees and costs until 6/30/89. (kg) (Entered: 01/29/2016)
402 CERTIFICATE OF SERVICE that attys for plaintiffs mailed its notice of inspection to attys Coppin and Winchester on 6/6/89 (kg) (Entered: 01/29/2016)
403 STIPULATED ORDER OF WITHDRAWAL by District Judge James A. Parker. (kg) (Entered: 01/29/2016)
404 MOTION by Plaintiffs for extension of time to file a brief and application for fees and costs by 7/10/89 (kg) (Entered: 01/29/2016)
405 CERTIFICATE OF SERVICE by State Defendants of response to notice of inspection for Los Lunas Hospital and Training School and Fort Stanton Hospital and Training School mailed to counsel of record on 7/5/89 (kg) (Entered: 01/29/2016)
406 ORDER that Plaintiffs Motion for Extension of Time is granted and that Plaintiffs shall have until 7/10/89 to file their application and memo in support of fees and costs by Clerk (kg) (Entered: 01/29/2016)
407 PLAINTIFFS' MOTION for Extension of Time to file a brief and application for fees and costs until 7/24/89 (kg) (Entered: 01/29/2016)
408 ORDER by District Judge James A. Parker that plaintiffs' motion for extension of time is granted and that plaintiffs shall have until 7/24/89 to file their application and memo in support of fees and costs (kg) (Entered: 01/29/2016)
409 ENTRY OF APPEARANCE as co−counsel on behalf of intervenors of Vernon W. Salvador (kg) (Entered: 01/29/2016)
410 CERTIFICATE OF SERVICE by attys for plaintiffs of Notice of Deposition (kg) (Entered: 01/29/2016)
411 CERTIFICATE OF SERVICE by Plaintiffs attorneys of notice of deposition scheduled for 7/25/1989 at Los Lunas Hospital and Training School (kg) (Entered: 01/29/2016)
412 CERTIFICATE OF SERVICE by Plaintiffs attorneys of Notice of Deposition scheduled for 7/27/89 at Fort Stanton Hospital and Training School (kg) (Entered: 01/29/2016)
413 CERTIFICATE OF SERVICE by Plaintiffs attorneys of Notice of Deposition mailed on 6/15/89 (kg) (Entered: 01/29/2016)
414 STATUS CONFERENCE BY PHONE before the Honorable James A. Parker. Parties present by phone. Parties to prepare a PTO. (kg) (Entered: 01/29/2016)
415 NOTICE OF SUPPLEMENTAL AUTHORITY by Plaintiffs re: motion for attys' fees (kg) (Entered: 01/29/2016)
416 PLAINTIFFS' Motion for Extension of Time to file a brief and application for fees and costs until 8/4/89. (kg) (Entered: 01/29/2016)
418 STATUS CONFERENCE CONDUCTED before the Honorable James A. Parker. All parties by phone. (kg) (Entered: 01/29/2016)

07/24/1989 07/25/1989 07/25/1989
07/25/1989
07/26/1989
08/01/1989 08/03/1989 08/03/1989
08/04/1989 08/04/1989 08/04/1989 08/04/1989 08/04/1989 08/04/1989 08/04/1989 08/04/1989 08/09/1989 08/09/1989 08/16/1989 08/22/1989
08/30/1989 09/01/1989 09/01/1989 09/01/1989

417 NOTICE to Take Deposition by Defendant of Dottie Rowe on 8/13/89 (kg) (Entered: 01/29/2016)
420 STATE DEFENDANTS' Motion to Reschedule Proposed Trial Dates and Set Pre−Trial Discovery Schedule (kg) (Entered: 01/29/2016)
421 MEMORANDUM of Points and Authorities in Support of 420 State Defendants' Motion to Reschedule Proposed Trial Dates and Set Pre−Trial Discovery Schedule (kg) (Entered: 01/29/2016)
422 CERTIFICATE OF SERVICE that attys for State Defendants mailed copies of its motion to reschedule and memorandum in support to counsel of record on 7/25/89 (kg) (Entered: 01/29/2016)
419 ORDER by District Judge James A. Parker that plaintiffs' motion for extension of time is granted re: application for fees and costs until 8/4/89 (kg) (Entered: 01/29/2016)
423 PLAINTIFFS' Response to Defendants' 420 Motion to Reschedule Proposed Trial Dates (kg) (Entered: 01/29/2016)
TRANSCRIPT OF PROCEEDINGS (Status Conference) held on 6/1/89 at 10:30 A.M. I Volume (kg) (Entered: 01/29/2016)
436 MOTION HEARING CONDUCTED before the Honorable James A. Parker. All parties present. Counsel to submit a PTO for every state of the case. (kg) (Entered: 01/29/2016)
424 PLAINTIFF'S Motion for Award of attys' fees and costs re: 11−18−88 motion for an order to show cause and for further extraordinary relief (kg) (Entered: 01/29/2016)
425 PLAINTIFF'S Memorandum Brief in Support of 424 Motion for Award of Attys' Fees and Costs (kg) (Entered: 01/29/2016)
426 AFFIDAVIT of Phillip B. Davis (kg) (Entered: 01/29/2016)
427 AFFIDAVIT of Judith A. Gran (kg) (Entered: 01/29/2016)
428 AFFIDAVIT of Bonnie Stepleton (kg) (Entered: 01/29/2016)
429 AFFIDAVIT of Peter Cubra (kg) (Entered: 01/29/2016)
430 AFFIDAVIT of Ann Tilford Sims (kg) (Entered: 01/29/2016)
431 PLAINTIFF Ron Fuller's Notice of Supplemental Authority Regarding March 4, 1988 Motion for Award of Attorneys' Fees and Costs (kg) (Entered: 01/29/2016)
432 NOTICE OF DEPOSITION COMPLETION by Bean and Harris of Margaret Maury on 5/15/1989 (kg) (Entered: 01/29/2016)
433 NOTICE OF DEPOSITION COMPLETION by Bean and Harris of Ross Sweat on 4/18/1989 (kg) (Entered: 01/29/2016)
434 DEFENDANTS' Motion for Extension of Time to Respond to Plaintiffs' Application for attys fees and costs until 8/29/89 (kg) (Entered: 01/29/2016)
435 ORDER that defts' 434 motion for extension of time is granted and that defts shall have until 8/29/89 to file their response to plaintiffs' application for attys fees and costs by Clerk (kg) (Entered: 01/29/2016)
437 DEFENDANTS' Motion for Extension of Time to Respond to Plaintiffs' Motion for Attorneys Fees and until 8−8−89 (kg) (Entered: 02/04/2016)
438 CERTIFICATE OF SERVICE that a notice of deposition was mailed to counsel of record on 8−2−89 by attys for plaintiffs (kg) (Entered: 02/04/2016)
439 CERTIFICATE OF SERVICE of Notice of Deposition was mailed to counsel of record on 8/2/89 by attys for plaintiffs (kg) (Entered: 02/04/2016)
440 CERTIFICATE OF SERVICE that a Notice of Deposition was mailed to counsel of record on 8/2/89 by attys for plaintiffs (kg) (Entered: 02/04/2016)

09/01/1989 09/01/1989 09/01/1989
09/01/1989
09/06/1989
09/07/1989 09/08/1989 09/08/1989 09/08/1989 09/11/1989
09/13/1989
09/13/1989 09/14/1989 09/18/1989 09/18/1989
09/18/1989
09/18/1989 09/20/1989 09/20/1989
09/20/1989 09/20/1989

441 CERTIFICATE OF SERVICE that a Notice of Deposition was mailed to counsel of record on 8/2/89 by attys for plaintiffs (kg) (Entered: 02/04/2016)
442 CERTIFICATE OF SERVICE that a Notice of Deposition was mailed to counsel of record on 8/2/89 by attys for plaintiffs (kg) (Entered: 02/04/2016)
443 CERTIFICATE OF SERVICE that a Notice of Tour for the Los Lunas Hospital and Training School has been mailed to counsel of record on 8/2/89 by attys for plaintiff (kg) (Entered: 02/04/2016)
444 CERTIFICATE OF SERVICE that a Notice of Tour for the Fort Stanton Hospital and Training School was mailed to counsel of record on 8/2/89 by attys for plaintiff (kg) (Entered: 02/04/2016)
445 ORDER that defendants' 437 motion for extension of time is granted and defendants shall have until 8/8/89 to file their response to plaintiffs' application for attys fees and costs (Clerk/CAB) (kg) (Entered: 02/04/2016)
446 MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM by Plaintiff Felicia Botello (kg) (Entered: 02/04/2016)
447 MOTION FOR PROTECTIVE ORDER by Intervenors re: depositions (kg) (Entered: 02/04/2016)
448 MEMORANDUM Brief in Support re 447 Motion for Protective Order by Intervenors (kg) (Entered: 02/04/2016)
450 DEFENDANTS' MEMORANDUM Response to Plaintiffs' Motion for Award of Attorneys' Fees and Costs (kg) (Entered: 02/04/2016)
449 ORDER by District Judge James A. Parker appointing Barbara Bergman as Guardian Ad Litem for Felicia Botello for the purpose of this matter only re 446 Motion (kg) (Entered: 02/04/2016)
451 CERTIFICATE OF SERVICE that Plaintiffs' Request for Production of Documents was mailed to counsel of record on 9/12/89 by attys for plaintiffs (kg) (Entered: 02/04/2016)
452 NOTICE OF DEPOSITION COMPLETION by Bean and Harris of Elizabeth Warren taken on 6/19/89 (kg) (Entered: 02/04/2016)
453 CERTIFICATE OF SERVICE that attys for state defts mailed State Defts' request for production to attys of record on 9/13/89 (kg) (Entered: 02/04/2016)
454 STATE DEFENDANTS' MOTION in Limine and for Sanctions (kg) (Entered: 02/04/2016)
455 MEMORANDUM in Support of State Defendants' 454 Motion in Limine and for Sanctions (Attachments: # 1 Attachments 1, # 2 Attachments 2)(kg) (Entered: 02/04/2016)
456 CERTIFICATE OF SERVICE that the State Defendants' Motion in Limine and for Sanctions with Memorandum in Support was mailed to counsel of record on 9/15/89 (kg) (Entered: 02/04/2016)
457 PLAINTIFFS' Motion for Extension of Time (kg) (Entered: 02/04/2016)
458 MOTION AND MEMORANDUM to Extend the Time in Which to File a Proposed Pretrial Order by Intervenors (kg) (Entered: 02/08/2016)
459 CERTIFICATE OF SERVICE that atty for intervenor mailed a copy of the motion and memo to extend the time in which to file a proposed pretrial order on 9/20/89 to counsel of record (kg) (Entered: 02/08/2016)
460 MOTION AND MEMORANDUM to Extend the Time in Which to File a Proposed Pretrial Order by State Defendants (kg) (Entered: 02/08/2016)
461 CERTIFICATE OF SERVICE that the attys for state defendants mailed a copy of the motion and memo to extend time to file pretrial order on 9/20/89 to counsel of record (kg) (Entered: 02/08/2016)

09/21/1989
09/21/1989 09/21/1989 09/21/1989 09/22/1989 09/22/1989
09/22/1989 09/26/1989 09/26/1989
09/26/1989 09/27/1989 09/28/1989 09/28/1989 09/29/1989 09/29/1989 10/03/1989
10/04/1989 10/04/1989 10/06/1989
10/06/1989
10/10/1989

462 ORDER that plaintiffs' reply to defendants' response to plaintiffs motion for attorneys' fees and costs is granted and that plaintiffs shall have until 10/2/89 in which to file their reply brief (CLERK/CAB) (kg) (Entered: 02/08/2016)
463 MOTION by Plaintiffs for Extension of Time for filing a pre−trial order (kg) (Entered: 02/08/2016)
464 PLAINTIFF'S MEMORANDUM in Opposition to Intervenors' Motion for Protective Order (kg) (Entered: 02/08/2016)
465 NOTICE OF CHANGE OF ADDRESS by Plaintiffs counsel (kg) (Entered: 02/08/2016)
466 STATE DEFENDANTS Response in Opposition to intervenors' motion for a protective order (kg) (Entered: 02/08/2016)
467 CERTIFICATE OF SERVICE that attys for state defts mailed state deft's response in opposition to intervenor's motion for a protective order to counsel of record on 9/21/89 (kg) (Entered: 02/08/2016)
468 NOTICE OF DEPOSITION DUCES TECUM by Defendant of Eileen Cook on 10/10/89 at 9:00 am (kg) (Entered: 02/08/2016)
469 STATE DEFENDANTS' MOTION AND MEMORANDUM to Reschedule State Defendants' Dates for Presentation of Evidence (kg) (Entered: 02/08/2016)
470 CERTIFICATE OF SERVICE that state defendants mailed a copy of their motion and memo to reschedule date for presentation of evidence to counsel of record on 9/26/89 (kg) (Entered: 02/08/2016)
484 TELEPHONE CONFERENCE CONDUCTED before the Honorable James Parker. Parties online. (CT RPTR − none) (kg) (Entered: 02/08/2016)
474 PRE−TRIAL CONFERENCE CONDUCTED before the Honorable James A. Parker. All parties present. (CT RPTR. C. Macias) (kg) (Entered: 02/08/2016)
471 NOTICE OF DEPOSITION COMPLETION by Bean and Harris of Ross Sweat on 4/18/1989 (kg) (Entered: 02/08/2016)
472 NOTICE OF DEPOSITION COMPLETION by Bean and Harris of Glady's Gisi and Lisa Vega on 7/5/89 (kg) (Entered: 02/08/2016)
473 ORDER by District Judge James A. Parker re deadlines. See Order for Specifics. (kg) (Entered: 02/08/2016)
475 PLAINTIFFS' Motion for Extension of Time to file reply brief (kg) (Entered: 02/08/2016)
476 ORDER that plaintiffs' reply brief re: pending fee application is granted and plaintiffs shall have until 10/9/89 in which to file their reply brief (CLERK/CAB) (kg) (Entered: 02/08/2016)
477 PLAINTIFFS' Response to State Defendants' Motion in Limine and for Sanctions (kg) (Entered: 02/08/2016)
478 PLAINTIFFS' Memorandum in Opposition to State Defendants' motion in limine and for sanctions (kg) (Entered: 02/08/2016)
479 MOTION FOR EXTENSION OF TIME by Plaintiffs to file memorandum re: presence of defts' experts on the Foster review tour until 10/13/89 (kg) (Entered: 02/08/2016)
480 ORDER that plaintiffs' motion for extension of time is granted and that plaintiffs shall have until 10/13/89 to file a memorandum re: presence of defts' experts on the Foster review tour (CLERK/CAB) (kg) (Entered: 02/08/2016)
481 ORDER by District Judge James A. Parker that state defendants' motion and memo to reschedule state defts' date for presentation of evidence is denied as moot (kg) (Entered: 02/08/2016)

10/10/1989 10/10/1989 10/11/1989 10/11/1989 10/13/1989 10/16/1989 10/16/1989 10/17/1989 10/19/1989
10/27/1989 10/27/1989 10/31/1989
10/31/1989 11/06/1989 11/06/1989 11/06/1989 11/06/1989 11/06/1989
11/06/1989
11/06/1989 11/08/1989
11/08/1989

482 PLAINTIFFS' REPLY to Defendants' Memorandum Response to Motion for Award of Attorneys' Fees and Costs (kg) (Entered: 02/08/2016)
483 SUPPLEMENTAL AFFIDAVIT of Philip B. Davis re: plaintiffs' application for attys fees (kg) (Entered: 02/08/2016)
485 DEFENDANTS' REPLY to Plaintiffs' Response to State Defendants' Motion in Limine and for Sanctions (kg) (Entered: 02/08/2016)
486 DEFENDANTS' OPPOSITION to Plaintiffs' "Proposed Orders" for Preliminary Injunctive Relief (kg) (Entered: 02/08/2016)
487 PLAINTIFF'S MEMORANDUM re: Dr. Ray Foster's Tour (kg) (Entered: 02/08/2016)
488 CERTIFICATE OF SERVICE that attys for plaintiffs mailed plaintiff's memo re: Dr. Ray Foster's Tour to all counsel of record on 10/13/89 (kg) (Entered: 02/08/2016)
512 NON−JURY TRIAL CONTINUED before the Honorable James A. Parker held on 10/16−10/19/89 and 10/30/89. All Parties Present. (kg) (Entered: 02/10/2016)
489 ORDER that Intevenors' motion for protective order is denied (McCOY) (kg) (Entered: 02/08/2016)
490 JOINT PRE−TRIAL ORDER by District Judge James A. Parker for Evidentiary Hearings of October 16−19 and October 30−November 3, 1989 (kg) (Entered: 02/08/2016)
491 MOTION TO CONSOLIDATE by Plaintiffs re: USA v. State of NM, et al − Civ. No. 89−1165−M − USDC−DNM (kg) (Entered: 02/08/2016)
492 MEMORANDUM IN SUPPORT of 491 Motion to Consolidate by Plaintiffs (kg) (Entered: 02/08/2016)
493 MOTION IN LIMINE TO EXCLUDE the Testimony of Carl Haywood Concerning the Results of the Inventory for Client and Agency Planning by Plaintiffs (kg) (Entered: 02/08/2016)
494 MEMORANDUM IN SUPPORT of 493 Motion in Limine to Exclude (kg) (Entered: 02/08/2016)
495 CERTIFICATE OF SERVICE that attys for plaintiffs mailed a Notice of Deposition for Millie Miller to counsel of record on 10/30/89 (kg) (Entered: 02/08/2016)
496 CERTIFICATE OF SERVICE that attys for plaintiffs mailed a Notice of Deposition for Dr. H. Carl Harwood on 9/26/89 to counsel of record (kg) (Entered: 02/10/2016)
497 CERTIFICATE OF SERVICE that attys for plaintiffs mailed a Notice of Deposition for Bonnie Hacker to counsel of record on 9/26/89 (kg) (Entered: 02/10/2016)
498 CERTIFICATE OF SERVICE that attys for plaintiffs mailed a Notice of Deposition for Paul Cotten to counsel of record on 9/29/89 (kg) (Entered: 02/10/2016)
499 CERTIFICATE OF SERVICE by attys for plaintiffs that a Notice of Inspection for the Los Lunas Hospital and Training School was mailed to counsel of record on 9/1/89 (kg) (Entered: 02/10/2016)
500 CERTIFICATE OF SERVICE by attys for plaintiffs that a Notice of Inspection for the Fort Stanton Hospital and Training School was hand−delivered to counsel of record on 9/1/89 (kg) (Entered: 02/10/2016)
501 INTERVENORS Memorandum in Opposition to Consolidation (kg) (Entered: 02/10/2016)
502 STATE DEFENDANTS' Response to Plaintiffs' Memorandum Regarding Dr. Ray Foster's Tour (kg) (Additional attachment(s) added on 2/10/2016: # 1 Certificate of Service) (kg). (Entered: 02/10/2016)
503 PLAINTIFFS' MOTION for Extension of Time for filing of Pretrial Order scheduled to begin 11/13/89 (kg) (Entered: 02/10/2016)

11/08/1989 504 CERTIFICATE OF SERVICE that attys for plaintiffs mailed copy of plaintiff's motion for extension of time to counsel of record on 11/8/89 (kg) (Entered: 02/10/2016)

11/09/1989 505 PLAINTIFFS' MOTION for Extension of Time to file General Pre−Trial Order to begin 1/2/1990 (kg) (Entered: 02/10/2016)

11/12/1989 513 HEARING RE: REFUSAL of Atty Judith Gran and CONTINUATION OF NON−JURY TRIAL before the Honorable James A. Parker. All Parties Present. (kg) (Entered: 02/10/2016)

11/13/1989 506 NOTICE OF SUBSTITUTION of Plaintiff's Counsel (kg) (Entered: 02/10/2016)

11/13/1989 507 DEFENDANTS' OPPOSITION to Motion to Consolidate (kg) (Entered: 02/10/2016)

11/16/1989 508 UNITED STATES' OPPOSITION to Proposed Consolidation (kg) (Entered: 02/10/2016)

11/16/1989 509 DISCOVERY ORDER by District Judge James A. Parker. (kg) (Entered: 02/10/2016)

11/16/1989 510 ORDER by District Judge James A. Parker re discovery (kg) (Entered: 02/10/2016)

11/16/1989 511 ORDER by District Judge James A. Parker (kg) (Entered: 02/10/2016)

11/27/1989 514 MOTION FOR EXTENSION of Time to File Several Pleadings by Plaintiffs and Intervenors (kg) (Entered: 02/10/2016)

11/29/1989 515 MOTION FOR EXTENSION of Time to File Pretrial Order by Defendants (kg) (Entered: 02/10/2016)

11/29/1989 516 CERTIFICATE OF SERVICE that attys for State Defendants mailed defts' motion for extension of time to counsel of record on 11/28/89 (kg) (Entered: 02/10/2016)

12/01/1989 517 PLAINTIFFS' MOTION for Extension of Time to file General Pre−Trial Order to begin 1/2/1990 until 12/11/1989 (kg) (Entered: 02/10/2016)

12/04/1989 518 PLAINTIFFS' REPLY Memorandum Regarding Consolidation (kg) (Entered: 02/10/2016)

12/04/1989 519 ORDER by District Judge James A. Parker re: extensions of time (kg) (Entered: 02/10/2016)

12/04/1989 520 ORDER by District Judge James A. Parker re: pre−trial order deadline (kg) (Entered: 02/10/2016)

12/05/1989 521 ORDER by District Judge James A. Parker re: consolidated general pre−trial order for hearings scheduled to begin January 2, 1990 (kg) (Entered: 02/10/2016)

12/07/1989 522 JOINT PRE−TRIAL FOR EVIDENTIARY HEARINGS of November 13−17, 1989 and December 11−15, 1989 by District Judge James A. Parker (kg) (Entered: 02/10/2016)

12/12/1989 523 MOTION TO COMPEL Interview of Residents During Dr. Ray Foster Tour by Plaintiffs (kg) (Entered: 02/10/2016)

12/12/1989 524 PLAINTIFFS' MEMORANDUM Brief in Support of 523 Motion to Compel Interview of Residents During Dr. Ray Foster Tour (kg) (Entered: 02/10/2016)

12/12/1989 525 PLAINTIFFS' MEMORANDUM Regarding Notice to Class (kg) (Entered: 02/10/2016)

12/12/1989

2085

TRANSCRIPT OF TRIAL of 11−13−89 (I Vol) and TRANSCRIPT OF TRIAL 11−16−89 (II Vols) (kg) (Additional attachment(s) added on 2/10/2016: # 1 Part 2 of 4, # 2 Part 3 of 4, # 3 Part 4 of 4, # 4 Trial held 11−16−89 − Part 1 of 3, # 5 Part 2 of 3, # 6 Part 3 of 3, # 7 Trial − Part 1 of 3, # 8 Part 2 of 3, # 9 Part 3 of 3) (kg). (Entered: 02/10/2016)

12/12/1989

NON−JURY TRIAL CONTINUED held 12/12/89. All Parties Present. 9:08−5:20; NON−JURY TRIAL CONTINUED on 12/13/89 (8:09−4:35); NON−JURY TRIAL CONTINUED on 12/14/89 (8:38−2:28); NON−JURY TRIAL CONTINUED on 12/15/89 (10:54−2:28) before the Honorable James A. Parker. (CT RPTR/Macias)

(kg) (Entered: 02/10/2016)

12/12/1989 537 CLERK'S MINUTES before the Honorable James A. Parker of Non−Jury Trial Continued held on 12/12−12/15/1989. All Parties Present. (kg) (Entered: 03/03/2016)

12/13/1989

2086

TRANSCRIPT OF PROCEEDINGS re: preliminary injunction hearing on 10−30, 10−31, 11−1 and 11−2−89 − IV Volumes (kg) (Additional attachment(s) added on 2/10/2016: # 1 Hearing held on 10/31/1989 − Part 1 of 3, # 2 Part 2 of 3, # 3 Part 3 of 3, # 4 Hearing held on 11/1/1989 − Part 1 of 3, # 5 Part 2 of 3, # 6 Part 3 of 3, # 7 Hearing held on 11/2/1989 − Part 1 of 4, # 8 Part 2 of 4, # 9 Part 3 of 4, # 10 Part 4 of 4) (kg). (Entered: 02/10/2016)

12/13/1989 2087 TRANSCRIPT OF PROCEEDINGS re: preliminary injunction hearing on 11/3/89 held before the Honorable James A. Parker (kg) (Additional attachment(s) added on 2/10/2016: # 1 Part 2) (kg). (Entered: 02/10/2016)

12/13/1989 526 INTERVENORS' MEMORANDUM Concerning Class Notice (kg) (Entered: 02/10/2016)

12/18/1989 527 MOTION FOR EXTENSION OF TIME TO FILE POST−TRIAL MEMORANDUM by Plaintiffs (kg) (Entered: 02/10/2016)

12/18/1989 2088 TRANSCRIPT OF PROCEEDINGS re: trial 10−18−89 − I Volume (kg) (Additional attachment(s) added on 2/10/2016: # 1 Part 2) (kg). (Entered: 02/10/2016)

12/22/1989 2089 TRANSCRIPT OF CONTINUED PROCEEDINGS before the Honorable James A. Parker on October 16, 1989 at 9:02 a.m. (kg) (Additional attachment(s) added on 2/10/2016: # 1 Part 2) (kg). (Entered: 02/10/2016)

12/27/1989 2090 TRANSCRIPT OF PROCEEDINGS − TRIAL November 15, 1989 (kg) (Additional attachment(s) added on 2/10/2016: # 1 Part 2 of 4, # 2 Part 3 of 4, # 3 Part 4 of 4) (kg). (Entered: 02/10/2016)

12/28/1989 528 DEFENDANTS' Motion in Limine (kg) (Entered: 02/10/2016)

12/28/1989 529 ORDER by Clerk granting plaintiffs' motion for extension of time for filing their post−trial memorandum (kg) (Entered: 02/10/2016)

12/28/1989 530 MOTION FOR EXTENSION of Time to File Post−Trial Memorandum by Plaintiffs (kg) (Entered: 02/10/2016)

01/02/1990 531 CLERK'S MINUTES held before the Honorable James A. Parker of Non−Jury Trial Continued. All parties present. (Court Reporter: P. Baca; 9:13−10:38) (kg) (Entered: 03/03/2016)

01/03/1990 532 PLAINTIFFS' RESPONSE to Defendants' Motion in Limine (kg) (Entered: 03/03/2016)

01/03/1990 533 INTERVENOR'S RESPONSE to Defendant's Motion to Exclude the Testimony of Mr. Jay Klein (kg) (Entered: 03/03/2016)

01/03/1990

534 CERTIFICATE OF SERVICE that attys for plaintiffs hand delivered plaintiffs first set of interrogatories to Intervenors and plaintiffs first request for production of documents to attys for intervenors and all counsel of record on 1/3/90 (kg) (Entered: 03/03/2016)

01/05/1990 535 CLERK'S MINUTES before the Honorable James A. Parker of Non−Jury Trial Continued (Court Reporter: P. Katapsky; 9:05−4:03) (kg) (Entered: 03/03/2016)

01/08/1990 2096 TRANSCRIPT OF PROCEEDING OF TRIAL for 12−12−89 (I Vol.) (kg) (Additional attachment(s) added on 3/3/2016: # 1 Part 2 of 5, # 2 Part 3 of 5, # 3 Part 4 of 5, # 4 Part 5 of 5) (kg). (Entered: 03/03/2016)

01/09/1990 536 PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW for Evidentiary Hearings of October 16−19 and October 30 − November 3, 1989 (Attachments: # 1 Part 2)(kg) (Entered: 03/03/2016)

01/18/1990 538 DEFENDANTS' MOTION TO STRIKE 536 Plaintiffs' Proposed Findings of Fact and Conclusions of Law for Evidentiary Hearings of October 16−19 and October 30 − November 3, 1989 (kg) (Entered: 03/03/2016)

01/18/1990 539 CERTIFICATE OF SERVICE that attys for defendants hand delivered State defendants' motion to strike plaintiffs' proposed findings of fact and conclusions of law to counsel of record on 1/18/1990. (kg) (Entered: 03/03/2016)

01/19/1990 540 PLAINTIFFS RESPONSE to 538 Defendants Motion to Strike Plaintiffs Proposed Findings of Fact and Conclusions of Law (kg) (Entered: 03/03/2016)

01/22/1990 2097 TRANSCRIPT OF PROCEEDINGS of 12/15/89 (I Volume − Paul Baca Court Reporters) (kg) (kg). (Entered: 03/03/2016)

01/24/1990 541 DEFENDANTS' REPLY to 540 Plaintiffs' Response to Defendants' Motion to Strike Plaintiffs' Proposed Findings of Fact and Conclusions of Law (kg) (Entered: 03/03/2016)

01/24/1990 542 CERTIFICATE OF SERVICE that atty for defendants mailed defendants' reply to plaintiffs' response to defendants' motion to strike plaintiffs' proposed findings to counsel of record on 1/23/90 (kg) (Entered: 03/03/2016)

01/24/1990 2098 TRANSCRIPT OF PROCEEDINGS of 1/5/90 (I Vol) (P. Baca Court Reporter) (kg) (Additional attachment(s) added on 3/3/2016: # 1 Part 2) (kg). (Entered: 03/03/2016)

01/26/1990 543 NOTICE OF DEPOSITION DUCES TECUM by Defendants of Ray Foster on 3/8/90 at 9:00 am (kg) (Entered: 03/03/2016)

01/26/1990

544 ORDER that plaintiffs' motion for extension of time for filing Post−Trial Memo to 1/3/90 is granted and that defts and Intervenors shall have 4 weeks from date of service of plaintiffs' memo to file responses (CLERK/CAB) (kg) (Entered: 03/03/2016)

01/29/1990 545 NOTICE OF DEPOSITION DUCES TECUM by Defendants of Allan I. Bergman on 2/12/90 at 9:00 am (kg) (Entered: 03/03/2016)

01/29/1990 546 CERTIFICATE OF SERVICE that attys for defendants mailed notice of deposition of Berman to counsel of record on 1/23/90 (kg) (Entered: 03/03/2016)

01/29/1990 547 AMENDED CERTIFICATE OF SERVICE that attys for plaintiffs mailed not hand−delivered to counsel of record its motion to strike to counsel of record (kg) (Entered: 03/03/2016)

01/29/1990 2099 TRANSCRIPT OF CONTINUED PROCEEDINGS for 10/17/89 − I Volume (C. Macias, Court Reporter) (kg) (Additional attachment(s) added on 3/3/2016: # 1 Part 2) (kg). (Entered: 03/03/2016)

01/31/1990 548 MOTION TO SUBSTITUTE Plaintiffs' Expert in the Field of Behavioral Psychology (kg) (Entered: 03/03/2016)

02/02/1990 549 MEMORANDUM in Support of 548 Plaintiffs' motion to substitute their expert in the field of behavioral psychology by plaintiffs (kg) (Entered: 03/03/2016)

02/05/1990 550 STIPULATION FOR EXTENSION OF TIME by all parties (kg) (Entered: 03/03/2016)

02/05/1990 2100 TRANSCRIPT OF PROCEEDINGS OF TRIAL held on 11/14/89 − I Vol. (P. Baca, Court Reporter) (kg) (Additional attachment(s) added on 3/3/2016: # 1 Part 2 of 3, # 2 Part 3 of 3) (kg). (Entered: 03/03/2016)

02/07/1990 551 DEFENDANTS' OPPOSITION to 548 Plaintiffs' Motion to Substitute their Expert in the Field of Behavioral Psychology (kg) (Entered: 04/07/2016)

02/07/1990 552 CERTIFICATE OF SERVICE that attys for defts (state defts) mailed a copy of their opposition to counsel of record on 2/6/90 (kg) (Entered: 04/11/2016)

02/08/1990 553 NOTICE OF DEPOSITION DUCES TECUM by defts of Timothy Greusel on 2/16/90 at 9:30 am (kg) (Entered: 04/11/2016)

02/08/1990

TRANSCRIPT OF PROCEEDINGS (TRIAL) on 12/14/90 (I VOL) (CT. RPTR − Paul Baca) (kg) (Entered: 04/11/2016)

02/09/1990 554 UNOPPOSED MOTION FOR EXTENSION OF TIME by Defendants to file their proposed Findings of Fact and Conclusions of Law re: preliminary injunction

02/13/1990 02/16/1990 02/21/1990 02/21/1990 02/21/1990 02/23/1990 02/26/1990 02/28/1990 02/28/1990 02/28/1990 03/02/1990
03/06/1990 03/06/1990 03/07/1990 03/07/1990 03/09/1990 03/09/1990 03/09/1990 03/09/1990 03/09/1990

proceedings held 10 and 11/89 until 3/2/90 (kg) (Entered: 04/11/2016)
555 ORDER by District Judge James A. Parker granting 554 Unopposed Motion for Extension of Time (kg) (Entered: 04/11/2016)
TRANSCRIPT OF PROCEEDINGS of 12/14/89 filed on 2/16/90 (I Vol.)(CT RPTR Paul Baca) (kg) (Entered: 04/11/2016)
556 PLAINTIFFS' REPLY re: motion to substitute expert in behavioral psychology (kg) (Entered: 04/11/2016)
557 DEFENDANTS' motion to compel the production of documents (kg) (Entered: 04/11/2016)
558 DEFENDANTS' memorandum in support of 557 motion to compel the production of documents (kg) (Entered: 04/11/2016)
559 MOTION HEARING held on 2/23/1990 before the Honorable James A. Parker. All parties present. (11:01−12:56; CT RPTR − C. Macias) (kg) (Entered: 04/11/2016)
560 ORDER by District Judge James A. Parker as further described herein. (kg) (Entered: 04/11/2016)
561 UNOPPOSED MOTION FOR EXTENSION OF TIME by State Defendants to file requested findings of fact and conclusions of law until 3/6/90 (kg) (Entered: 04/11/2016)
562 NOTICE OF DEPOSITION DUCES TECUM by Plaintiffs of Dennis Reid on 3/14/90 at 9:00 am (kg) (Entered: 04/11/2016)
563 ORDER by District Judge James A. Parker re: plaintiffs' unopposed oral motion to be relieved of the application of DNMLR−Cv 54.5 (kg) (Entered: 04/11/2016)
564 CERTIFICATION OF COMPLIANCE that attys for Intervenors certify that they read Dondi Properties Corporation v. Commerce Savings & Loan Association and a Lawyer's Creed of Professionalism of the State Bar of New Mexico (kg) (Entered: 04/11/2016)
565 ORDER that State Defendants have until 3/6/90 to file requested findings of facts and conclusions of law (CLERK: CAB) (kg) (Entered: 04/11/2016)
580 STATE DEFENDANTS' Proposed Findings of Facts and Conclusions of Law for Evidentiary Hearings of October 16−19 and October 30 − November 3, 1989 (kg) (Entered: 04/11/2016)
566 UNOPPOSED MOTION FOR EXTENSION OF PAGE LIMITS by State Defendants re: filing a 37 page response with attachments to plaintiff's request for preliminary injunction (kg) (Entered: 04/11/2016)
567 STIPULATION by District Judge James A. Parker re: Ray Foster Reviewers (See Order for Specifics) (kg) (Entered: 04/11/2016)
568 CERTIFICATE OF SERVICE re: notice of deposition by plaintiffs for Sylvia Holguin scheduled for 2/26/1990 mailed to counsel on 2/14/1990. (kg) (Entered: 04/11/2016)
569 CERTIFICATE OF SERVICE re: notice of deposition by plaintiffs for Matilda Sunnygard scheduled for 2/26/1990 mailed to counsel on 2/14/1990 (kg) (Entered: 04/11/2016)
570 CERTIFICATE OF SERVICE re: notice of deposition by plaintiffs for John Flaxton scheduled for 2/26/1990 was mailed to counsel on 2/14/1990 (kg) (Entered: 04/11/2016)
571 CERTIFICATE OF SERVICE re: notice of deposition by plaintiffs for Alberta Barnes scheduled for 3/2/1990 was mailed to counsel on 2/14/1990 (kg) (Entered: 04/11/2016)
572 CERTIFICATE OF SERVICE re: notice to deposition by plaintiffs for Tim Dellasandri scheduled for 3/15/1990 was mailed to counsel on 2/14/1990 (kg)

03/09/1990
03/09/1990 03/09/1990
03/09/1990 03/09/1990 03/12/1990
03/13/1990 03/13/1990 03/13/1990 03/13/1990 03/13/1990 03/13/1990 03/15/1990 03/15/1990 03/15/1990
03/15/1990
03/19/1990 03/20/1990 03/20/1990 03/20/1990 03/20/1990 03/20/1990

(Entered: 04/11/2016)
573 CERTIFICATE OF SERVICE re: notice of deposition by plaintiffs for Robert Garcia scheduled for 3/2/1990 was mailed to counsel on 2/14/1990 (kg) (Entered: 04/11/2016)
574 CERTIFICATE OF SERVICE re: notice of deposition by plaintiffs for George Brown scheduled 3/16/1990 was mailed to counsel on 3/5/1990 (kg) (Entered: 04/11/2016)
575 CERTIFICATE OF SERVICE re: notice of deposition by plaintiffs for Frederick Ball scheduled for 3/15/1990 was mailed to counsel on 3/5/1990 (kg) (Entered: 04/11/2016)
576 PLAINTIFFS' MOTION to Compel Discovery (kg) (Entered: 04/11/2016)
577 MEMORANDUM OF LAW IN SUPPORT of 576 Plaintiffs' Motion to Compel Discovery (kg) (Entered: 04/11/2016)
578 NOTICE OF DEPOSITION DUCES TECUM by State Defendants of Michael Franczak on 3/21/90 at 9:00 AM and continuing to 3/22/90 if necessary (kg) (Entered: 04/11/2016)
579 ORDER by District Judge James A. Parker granting 566 Unopposed Motion of the State Defendants for Extension of Page Limits (kg) (Entered: 04/11/2016)
581 STATE DEFENDANTS' BRIEF in Opposition to Plaintiffs' Request for a Preliminary Injunction (Attachments: # 1 Appendix A−B)(kg) (Entered: 04/11/2016)
582 DEFENDANTS' RESPONSE to Plaintiffs' Motion to Compel Discovery (kg) (Entered: 04/11/2016)
583 CERTIFICATE OF SERVICE that attys for deft mailed defts' response to plaintiffs' motion to compel to counsel of record on 3/12/90 (kg) (Entered: 04/11/2016)
584 MEMORANDUM IN SUPPORT of Motion for Leave to Withdraw "Motion in Limine and/or for Sanctions" (kg) (Entered: 04/11/2016)
585 NOTICE OF DEPOSITION by Plaintiff of Dr. Alan Parker on 3/21/90 at 10:00 AM (kg) (Entered: 04/11/2016)
586 ORDER by District Judge James A. Parker re: defts motion in limine and/or for sanctions is withdrawn (kg) (Entered: 04/11/2016)
587 ORDER by District Judge James A. Parker re: motion for plaintiffs for substitution of plaintiffs' expert Dr. Franczak in place of Dr. Touchette (kg) (Entered: 04/11/2016)
588 CERTIFICATE OF SERVICE by Plaintiffs of proposed order substituted Dr. Franczak in place of Dr. Touchette was mailed to counsel of record on 3/12/90 (kg) (Entered: 04/11/2016)
589 CERTIFICATE OF SERVICE that attys for defendants mailed its memorandum in support of motion for leave to withdraw "motion in limine and/or for sanctions" to counsel on 3/12/90 (kg) (Entered: 04/11/2016)
590 NOTICE OF DEPOSITION COMPLETION of Victoria Holland which was taken on 2/13/1990 (kg) (Entered: 04/11/2016)
591 ORDER by Judge McCoy re: plaintiffs' motion to compel discovery. (kg) (Entered: 04/11/2016)
592 ORDER by Judge McCoy re: plaintiffs' motion for protective order. (kg) (Entered: 04/11/2016)
593 PLAINTIFFS' MOTION for Protective Order (kg) (Entered: 04/11/2016)
594 MEMORANDUM OF LAW IN SUPPORT of 593 Plaintiffs' motion for protective order (kg) (Entered: 04/11/2016)
595 MOTION (Letter dated 3/20/90) for reconsideration of Order entered by Judge McCoy on 3/20/90 − #592 (kg) (Entered: 04/11/2016)

03/20/1990 03/20/1990 03/20/1990 03/26/1990 03/27/1990 03/28/1990 03/29/1990 03/29/1990
03/30/1990 03/30/1990 04/02/1990
04/02/1990
04/02/1990 04/02/1990 04/03/1990 04/06/1990
04/09/1990 04/11/1990 04/12/1990 04/13/1990 04/13/1990 04/13/1990

596 ORDER by Judge McCoy granting 593 plaintiffs' motion for protective order (kg) (Entered: 04/11/2016)
597 DEFENDANTS' RESPONSE to Plaintiffs' Motion for Protective Order (kg) (Entered: 04/11/2016)
598 STATUS CONFERENCE before the Honorable James A. Parker. All parties present. 7:05 PM − 7:35 PM (Ct. Rptr − C. Macias) (kg) (Entered: 04/11/2016)
599 NOTICE OF DEPOSITION COMPLETION of Ward Duel taken on 11/27/1989 (kg) (Entered: 04/11/2016)
600 NOTICE OF DEPOSITION COMPLETION of Ann Del Vecchio taken on 2/15/1990 (kg) (Entered: 04/11/2016)
601 ORDER by District Judge James A. Parker that Dr. James Foshee is a court appointed expert witness in this case. See Order for specifics. (kg) (Entered: 04/12/2016)
602 PLAINTIFFS' MOTION FOR ADMISSION of Foster Report and Withdrawal of Stipulation Regarding Foster Reviewers (kg) (Entered: 04/12/2016)
603 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT of 602 Plaintiffs' Motion for Admission of Foster Report and Withdrawal of Stipulation Regarding Ray Foster Reviewers (kg) (Entered: 04/12/2016)
604 PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS (kg) (Entered: 04/12/2016)
605 MEMORANDUM OF LAW IN SUPPORT OF 604 Plaintiffs' Motion to Compel Production of Documents (kg) (Entered: 04/12/2016)
606 DEFENDANTS' OPPOSITION to 602 Plaintiffs' Motion for Admission of Foster Report and Withdrawal of Stipulations as to Foster Reviewers (kg) (Entered: 04/12/2016)
607 CERTIFICATE OF SERVICE that attys for deft hand delivered defts' opposition to plaintiffs' motion for admission of Foster Report to counsel of record on 4/2/1990 (kg) (Entered: 04/12/2016)
608 ORDER by Judge McCoy denying 604 Plaintiffs' Motion to Compel Production of Documents. (kg) (Entered: 04/12/2016)
609 NOTICE OF DEPOSITION COMPLETION of John W. Foley taken on 3/29/1990 (kg) (Entered: 04/12/2016)
TRANSCRIPT OF PROCEEDINGS of 10/19/1989 Hearing (1 VOL − P. Baca, Ct. Rptr.) (kg) (Entered: 04/12/2016)
610 INTERVENORS' MEMORANDUM IN OPPOSITION to Plaintiffs' Requested Relief Found in Their Proposed Findings of Fact and Conclusions of Law (kg) (Entered: 04/12/2016)
TRANSCRIPT OF PROCEEDINGS OF TRIAL of 4/2/1990 (I Volume − Paul Baca, Ct. Rptr) (kg) (Entered: 04/12/2016)
TRANSCRIPT OF PROCEEDINGS of April 3, 1990 (I VOL − P. Baca − Ct. Rptr) (kg) (Entered: 04/12/2016)
TRANSCRIPT OF PROCEEDINGS of Trial of 4/4/1990 (I VOL − P. Baca − Ct. Rptr) (kg) (Entered: 04/12/2016)
611 STATE DEFENDANTS' MOTION to Exclude from Evidence Plaintiffs' Documents Prepared to Compile Foster Report (kg) (Entered: 04/12/2016)
612 MEMORANDUM IN SUPPORT of 611 Motion to Exclude from Evidence (kg) (Entered: 04/12/2016)
613 CERTIFICATE OF SERVICE by defendants on pleadings 611 and 612 to counsel on 4/13/1990 (kg) (Entered: 04/12/2016)

04/17/1990 04/17/1990 04/17/1990 04/17/1990 04/17/1990 04/19/1990 04/27/1990
05/29/1990
05/29/1990
05/29/1990
05/31/1990 05/31/1990 06/01/1990
06/01/1990 06/11/1990
06/11/1990 06/11/1990 06/12/1990 06/12/1990 06/13/1990 06/14/1990 06/14/1990

614 NOTICE OF DEPOSITION COMPLETION by Court Reporter of Frederic Dickson Ball, MD taken on 3/15/1990 (kg) (Entered: 04/12/2016)
615 NOTICE OF DEPOSITION COMPLETION by Court Reporter of Steve M. Dossey taken on 3/26/1990 (kg) (Entered: 04/12/2016)
616 NOTICE OF DEPOSITION COMPLETION by Court Reporter of David LA Court taken on 3/13/1990 (kg) (Entered: 04/12/2016)
617 NOTICE OF DEPOSITION COMPLETION by Court Reporter of Robert L. Garcia taken on 3/2/1990 (kg) (Entered: 04/12/2016)
618 NOTICE OF DEPOSITION COMPLETION by Court Reporter of Roger A. Beechie, M.D. taken on 1/10/1990 (kg) (Entered: 04/12/2016)
619 PLAINTIFFS' RESPONSE to 611 Motion to Exclude from Evidence Documents Prepared to Compile Foster Report (kg) (Entered: 04/12/2016)
620 NON−JURY TRIAL CONDUCTED (20 days). Parties present. Court requests that: Plaintiffs to submit rebuttal testimony by 5−21−90; Plaintiffs and intervenors to file findings of fact and conclusions of law by 6−1−90; and Defendants to file findings of fact and conclusions of law by 6−15−90 (PARKER) (CT. RPTR. C. MACIAS) (Attachments: # 1 Part 2) (kg) (Entered: 07/07/2016)
621 DEFENDANTS' OBJECTION to and/or Motion to Strike the Excerpts of Deposition Testimony of Sharon Borthwick−Duffy, Ph. D. Submitted by Plaintiff (kg) (Entered: 07/07/2016)
622 MEMORANDUM in Support of 621 Defendants Objection to and/or Motion to Strike the Excerpts of Deposition Testimony of Sharon Borthwick−Duffy, Ph.D. Submitted by Plaintiff. (kg) (Entered: 07/07/2016)
623 CERTIFICATE OF SERVICE by Defendant re 621 objection to and or motion to strike excerpts and memo were mailed to counsel on 5/25/90 (kg) (Entered: 07/07/2016)
624 MOTION by counsel Bonnie Stepleton, to withdraw as counsel for Plaintiff (kg) (Entered: 07/07/2016)
625 MOTION by Plaintiff for Extension of Time to file proposed findings of fact and conclusions of law and post−trial memorandum (kg) (Entered: 07/07/2016)
626 ORDER by District Judge James A. Parker granting 625 Plaintiff's Motion for Extension for Findings of Fact & Conclusions of Law & Post−Trial Memoranda to June 8, 1990 (kg) (Entered: 07/07/2016)
627 ORDER by District Judge James A. Parker granting 624 Bonnie Stepleton's Withdrawal as co−counsel for plaintiff (kg) (Entered: 07/07/2016)
628 CERTIFICATE OF SERVICE that atty for intervenors mailed intervenors' proposed findings of fact and conclusions of law and brief to counsel on 6−11−90 (kg) (Entered: 07/07/2016)
629 INTERVENORS' Proposed Findings of Fact and Conclusions of Law (kg) (Entered: 07/07/2016)
633 PROPOSED FINDINGS OF FACT & CONCLUSIONS OF LAW by Intervenors' (kg) (Entered: 07/07/2016)
631 PLAINTIFFS' PROPOSED FINDINGS OF FACT (kg) (Entered: 11/02/2015)
630 PLAINTIFF'S Conclusions of Law (kg) (Entered: 07/07/2016)
632 PLAINTIFFS' POST TRIAL MEMORANDUM (Attachments: # 1 Continued Part 2) (kg) (Entered: 07/07/2016)
634 MOTION by Intervenors to exceed page limits (kg) (Entered: 07/07/2016)
635 ORDER by District Judge James A. Parker granting 634 Intervenors be allowed to file a brief exceeding page limits (kg) (Entered: 07/07/2016)

06/14/1990 06/18/1990
06/18/1990 06/26/1990 06/26/1990 06/27/1990 06/27/1990 06/27/1990
07/16/1990 07/17/1990 07/17/1990
07/18/1990
08/13/1990 08/13/1990 08/13/1990
08/13/1990 08/13/1990 08/20/1990 08/27/1990 08/28/1990
08/28/1990 08/29/1990 08/29/1990

636 BRIEF by Intervenors (entitled CONDITIONS) (kg) (Entered: 07/07/2016)
637 PLAINTIFFS' RESPONSE to 621 Defendants' Objection to and/or motion to strike the excerpts of deposition testimony of Sharon Borthwick−Duffy, PH.D. Submitted by Plaintiffs. (kg) (Entered: 07/07/2016)
638 MEMORANDUM in Support of 637 Plaintiffs' Response to Defendants' Objection. (kg) (Entered: 07/07/2016)
639 MOTION by State Defendants for extension of page limits (kg) (Entered: 07/07/2016)
640 ORDER by District Judge James A. Parker re 639 defendants be allowed to file a brief in excess of twenty−four (24) pages (kg) (Entered: 07/07/2016)
641 DEFENDANTS' PROPOSED Conclusions of Law (kg) (Entered: 10/29/2015)
642 DEFENDANTS' POST TRIAL BRIEF (kg) (Entered: 07/07/2016)
643 DEFENDANTS' PROPOSED Findings of Fact (kg) (Additional attachment(s) added on 7/8/2016: # 1 Part 1 of 3, # 2 Part 2 of 3, # 3 Part 3 of 3) (kg). (Additional attachment(s) added on 7/8/2016: # 4 Appendix A, # 5 Appendix B) (kg). (Entered: 07/07/2016)
644 Plaintiffs' and Intervenors' Joint Motion for Leave to File Replies to Defendants' Post−Trial Submissions (kg) (Entered: 07/07/2016)
645 STIPULATION Concerning the Deposition of James G. Foshee (kg) (Entered: 07/07/2016)
646 ORDER by District Judge James A. Parker denying 644 plaintiffs' and intervenors' joint motion for leave to file replies do defendants' post−trial submissions (kg) (Entered: 07/07/2016)
647 ORDER by District Judge James A. Parker denying 621 Defendants' objection to and/or motion to strike excerpts of deposition testimony of Sharon Borthwick−Duffy submitted by plaintiff (kg) (Entered: 07/07/2016)
648 FOURTH MOTION by Plaintiffs to Amend Complaint (kg) (Entered: 07/07/2016)
649 MEMORANDUM in Support of 648 Plaintiffs' Fourth Motion to Amend Complaint. (Attachments: # 1 Continued Part 2) (kg) (Entered: 07/07/2016)
650 MOTION by State Defendants to reconsider the admission of Sharon Borthwick−Duffy Deposition Testimony or in the alternative allow the State to Supplement Highlighted Deposition Testimony (kg) (Entered: 07/07/2016)
651 MEMORANDUM in Support re 650 Motion for Reconsideration by Defendants. (kg) (Entered: 02/09/2017)
652 CERTIFICATE OF SERVICE by State Defendants re 650 Motion for Reconsideration and 651 Memorandum in Support (kg) (Entered: 02/09/2017)
653 NOTICE OF DEPOSITION COMPLETION of Frank Faustine on 2/14/1990 (kg) (Entered: 02/09/2017)
654 DEFENDANTS' OPPOSITION to Plaintiffs' Fourth Motion for Leave to Amend Complaint by Interlineation (kg) (Entered: 02/09/2017)
655 RESPONSE by Plaintiff re 650 Defendants' Motion to Reconsider the Admission of Sharon Borthwick−Duffy Deposition Testimony or in the Alternative Allow the State to Supplement Highlighted Deposition Testimony. (kg) (Entered: 02/09/2017)
656 MEMORANDUM in Opposition by Plaintiffs' re 650 Motion to Reconsider. (kg) (Entered: 02/09/2017)
658 RESPONSE by Intervenors' to Plaintiffs' 648 Fourth Motion for Leave to Amend the Complaint. (kg) (Entered: 02/09/2017)
659 ORDER SUBSTITUTING PARTY DEFENDANTS by District Judge James A. Parker. (kg) (Entered: 02/09/2017)

09/12/1990 09/12/1990 09/18/1990 09/18/1990 09/18/1990 09/18/1990 09/26/1990
10/09/1990 10/18/1990 10/18/1990 10/30/1990 10/30/1990 11/08/1990 11/20/1990 11/20/1990 11/20/1990
11/20/1990 11/23/1990 12/28/1990 12/28/1990

660 UNOPPOSED MOTION for Extension of Time by State Defendants (kg) (Entered: 02/09/2017)
661 CERTIFICATE OF SERVICE by State Defendants of 660 Motion for Extension of Time (kg) (Entered: 02/09/2017)
662 DEFENDANTS' OPPOSITION to Plaintiffs' Motion for Disqualification (kg) (Entered: 02/09/2017)
663 CERTIFICATE OF SERVICE of 662 Opposition to Motion by Defendants (kg) (Entered: 02/09/2017)
664 INTERVENOR'S RESPONSE to the Motion for Disqualification (kg) (Entered: 02/09/2017)
665 ORDER by District Judge James A. Parker granting 660 Unopposed Motion for Extension of Time to Respond until 9/18/1990. (kg) (Entered: 02/09/2017)
666 ORDER by District Judge James A. Parker denying 648 Plaintiffs' Fourth Motion to File an Amended Complaint and granting in part and denying in part 650 Defendants' Motion to Reconsider Admission of Sharon Borthwick−Duffy Deposition Testimony as further described herein. (kg) (Entered: 02/09/2017)
667 Plaintiffs' REPLY to 662 Defendants' and 664 Intervenors' Opposition to Disqualification (kg) (Entered: 02/09/2017)
668 STIPULATION by Parties that Individual Program Plan for Mary Katherine Nowak dated 7/24/89 is admitted into the record as evidence as Plaintiff's Exhibit 20(A) (kg) (Entered: 02/09/2017)
669 CLERK'S MINUTES of Status Conference before the Honorable James A. Parker held on 10/18/1990 (kg) (Entered: 02/09/2017)
670 Plaintiffs' OBJECTIONS to the Admission of the Excerpts Offered by Defendants from the Deposition of Sharon Borthwick−Duffy (kg) (Entered: 02/09/2017)
671 SUPPLEMENTAL ALLEGATIONS AND AUTHORITY by Plaintiffs in Support of their Motion for Disqualification (kg) (Entered: 03/08/2017)
672 CLERK'S MINUTES before the Honorable James A. Parker: Telephone Conference held on 11/8/1990. (Court Reporter: P. Katapski) (kg) (Entered: 03/08/2017)
673 MOTION by Proposed Intervenor Betty Lou Thompson to substitute her as legal guardian for Fidel Thompson. (kg) (Entered: 03/08/2017)
674 SUGGESTION OF DEATH UPON THE RECORD by Kent Winchester attorney for Rose Marquez and Augustina Montoya, legal guardians of Ernesto Hurbina, of the death of Ernesto Hurbina (kg) (Entered: 03/08/2017)
675 SUGGESTION OF DEATH UPON THE RECORD by Kent Winchester, attorney for Thomas J. Thompson, legal guardian of Fidel Thompson suggests upon the record, the death of Thomas J. Thompson and the substitution of Betty Lou Thompson as legal guardian for Fidel Thompson. (kg) (Entered: 03/08/2017)
676 SUGGESTION OF DEATH UPON THE RECORD by Kent Winchester, attorney for William W. Huffman, legal guardian for Ellen Kathryn Huffman suggests upon the record the death of Ellen Kathryn Huffman. (kg) (Entered: 03/08/2017)
677 ORDER by District Judge James A. Parker that Betty Lou Thompson be substituted for Thomas J. Thompson as legal guardian for Fidel Thompson. (kg) (Entered: 03/08/2017)
679 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker. See Order for Specifics. (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4)(kg) (Entered: 11/02/2015)
678 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker that Plaintiffs' Motion for Disqualification is DENIED. (kg) (Entered: 03/08/2017)

01/28/1991 01/28/1991 01/30/1991 02/12/1991 02/14/1991 02/20/1991 06/02/1991
07/22/1991 07/25/1991 07/25/1991 02/17/1993 11/09/1993 11/09/1993 11/15/1993 11/15/1993 11/23/1993 11/24/1993 11/24/1993 11/30/1993
11/30/1993

680 NOTICE of Appeal by Intervenors of Order of 12−28−90. Filing Fee Paid. Copy of NOA, copy of docket entries and copy of Order of 12−28−90 sent to USCA. (kg) (Entered: 08/21/2017)
681 CERTIFICATE OF SERVICE that attorney for Intervenors mailed copy of NOA to all counsel of record on 1/28/91. (kg) (Entered: 08/21/2017)
682 ENTRY OF APPEARANCE of Nancy Koenigsberg on behalf of Plaintiffs (kg) (Entered: 08/21/2017)
683 ENTRY OF APPEARANCE of Thomas K. Gilhool on behalf of Plaintiff (kg) (Entered: 08/21/2017)
684 TRANSCRIPT ORDER FORM from Intervenors that transcript is already on file (kg) (Entered: 08/21/2017)
685 ENTRY OF APPEARANCE of James M. Kennedy on behalf of several defendants (kg) (Entered: 08/21/2017)
718 MEMORANDUM in Support of Motion to Establish an Appropriate Planning Process to Correct Institutional Deficiencies (Attachments: # 1 Exhibit 1 − Part 1 of 4, # 2 Exhibit 1 − Part 2 of 4, # 3 Exhibit 1 − Part 3 of 4, # 4 Exhibit 1 − Part 4 of 4, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6−11, # 10 Exhibit 12)(kg) (Entered: 10/29/2015)
729 RESPONSE by Plaintiffs to Defendants' second motion for extension of time and request for further relief (Attachments: # 1 Exhibit 1−7)(kg) (Entered: 10/29/2015)
734 NOTICE by Defendants' of filing first report on implementation of plans for the correction of deficiencies at Fort Stanton and Los Lunas Hospital and Training Schools (Attachments: # 1 Part 2)(kg) (Entered: 11/02/2015)
735 NOTICE by Defendants' of filing of additions to plans for the correction of deficiencies at Fort Stanton and Los Lunas Hospital and Training Schools (Attachments: # 1 Part 2)(kg) (Entered: 11/02/2015)
769 Joint Status Report for 1992 (Attachments: # 1 Exhibit A − Part 1 of 5, # 2 Exhibit A − Part 2 of 5, # 3 Exhibit A − Part 3 of 5, # 4 Exhibit A − Part 4 of 5, # 5 Exhibit A − Part 5 of 5)(kg) (Entered: 11/02/2015)
803 MOTION by plaintiffs for leave to amend complaint for interlineation (former employee) (kg). (Entered: 11/26/1993)
804 MEMORANDUM by plaintiffs in support of motion for leave to amend complaint for interlineation [803−1] (former employee) (kg). (Entered: 11/26/1993)
805 THIRD AMENDED NOTICE by intervenor−plaintiffs to take deposition of Toney Toby on 11/22/93 (former employee) (kg). (Entered: 11/26/1993)
806 UNOPPOSED MOTION for Extension of time by intervenor− plaintiffs to file reply brief until 11/29/93 (former employee) (kg). (Entered: 11/26/1993)
807 ORDER by Judge James A. Parker granting intervenor−pltfs motion for extension of time to file reply briefs until 11/29/93 [806−1] (cc: all counsel) (former employee) (kg). (Entered: 11/26/1993)
808 UNOPPOSED MOTION for Extension of time by defendants to respond to pltfs' motion for leave to amend complaint for interlineation until 12/10/93 [803−1] (former employee) (kg). (Entered: 11/29/1993)
809 JOINT NOTICE by parties of Status of Systemic Plan (former employee) (kg). (Entered: 11/29/1993)
810 MOTION by intervenor−plaintiffs for an order allowing intervenors to exceed page limitation for their reply brief to motions to restrict access of private documents and review of individuals on community placement list (former employee) (kg). (Entered: 12/01/1993)
811 REPLY BRIEF by intervenor−plaintiffs re: community placement list (former employee) (kg). (Entered: 12/01/1993)

11/30/1993 12/02/1993
12/07/1993
12/07/1993 12/10/1993 12/10/1993 12/10/1993
12/10/1993 12/15/1993 12/17/1993 12/17/1993 12/17/1993 12/17/1993 12/17/1993 12/20/1993 12/29/1993 01/03/1994 01/11/1994
01/21/1994

812 REPLY BRIEF by intervenor−plaintiffs in support of Motion to Restrict Access to Private Documents (former employee) (kg). (Entered: 12/07/1993)
813 CERTIFICATE of service by intervenor−plaintiffs of reply brief re: community placement list and reply in support of intervenors' motion to restrict access to private documents to opposing counsel on 11/30/93 (former employee) (kg). (Entered: 12/07/1993)
814 ORDER by Judge James A. Parker granting motion for an order allowing intervenors to exceed page limitation for their reply brief to motions to restrict access of private documents and for review of individuals on community placement list [810−1] (cc: all counsel) (former employee) (kg). (Entered: 12/07/1993)
815 ORDER by Judge James A. Parker allowing defts until 12/10/93 to respond to pltfs' motion for leave to amend Complaint by Interlineation (cc: all counsel) (former employee) (kg). (Entered: 12/07/1993)
816 RESPONSE by defendant to motion for leave to amend complaint for interlineation [803−1] (jm) (kg). (Entered: 12/13/1993)
817 UNOPPOSED MOTION by plaintiffs for leave to file sur−reply brief to Intervenors' Motion for an order requiring IDT review of individuals on community placement list (former employee) (kg). (Entered: 12/15/1993)
818 ORDER by Judge James A. Parker granting motion for leave to file sur−reply brief to Intervenors' Motion for an order requiring IDT review of individuals on community placement list; to be filed by 12/13/93 [817−1] (cc: all counsel) (former employee) (kg). (Entered: 12/15/1993)
819 SUR−REPLY BRIEF by plaintiffs w/respect to the intervenors' motion re: the community placement list (former employee) (kg). (Entered: 12/15/1993)
820 RESPONSE by intervenor−plaintiff to pltfs' motion for leave to amend complaint for interlineation [803−1] (former employee) (kg). (Entered: 12/16/1993)
821 MOTION by plaintiffs to strike intervenors' response to pltfs' motion to amend (former employee) (kg). (Entered: 12/20/1993)
822 MEMORANDUM by plaintiffs in support of motion to strike intervenors' response to pltfs' motion to amend [821−1] (former employee) (kg). (Entered: 12/20/1993)
823 REPLY by plaintiffs to intervenors' response to motion for leave to amend complaint for interlineation [803−1] (former employee) (kg). (Entered: 12/20/1993)
824 REPLY by plaintiffs to defts' response to their motion for leave to amend (former employee) (kg). (Entered: 12/20/1993)
832 MEMORANDUM by defendants concerning affidavits and exhibits (former employee) (kg). (Entered: 02/02/1994)
825 CLERK'S MINUTES: Hearing before Jdge Parker on Intervenor's Motion for an order requiring IDT review of individuals on the community placement list Court Reporter P. Baca (pg) (kg). (Entered: 12/27/1993)
826 RESPONSE by intervenor−plaintiffs to pltfs' motion to strike intervenors' response to pltfs' motion to amend [821−1] (former employee) (kg). (Entered: 12/30/1993)
827 REPLY by plaintiffs to intervenors' response to pltfs' motion to strike intervenors' response to pltfs' motion to amend [821−1] (former employee) (kg). (Entered: 01/03/1994)
828 ORDER by Judge James A. Parker that the Court will defer ruling on Intervenors' motion to restrict access to private documents until after decisions have been rendered In the Matter of D.H., and Kathleen Jewell; parties are to submit supplemental briefs on issues raised by Intervenors' motion by 1/21/94 (cc: all counsel) (former employee) (kg). (Entered: 01/11/1994)
829 SUPPLEMENTAL BRIEF by plaintiffs re: intervenor's motion to restrict access to private documents (manual docket entry) (former employee) (kg). (Entered: 01/24/1994)

01/21/1994 01/27/1994
02/02/1994
02/17/1994 02/17/1994 02/17/1994 03/03/1994
03/03/1994
03/15/1994 03/25/1994 04/15/1994 04/15/1994 04/15/1994 04/21/1994 05/02/1994 05/04/1994 05/17/1994

830 CLOSING BRIEF (REPLY) by intervenor−plaintiffs' regarding their motion to limit the access of the protection and advocacy system to transition meetings and resident records (manual docket entry) (former employee) (kg). (Entered: 01/24/1994)
831 MEMORANDUM, OPINION, AND ORDER: by Judge James A. Parker denying intervenors' motion for an order requiring IDT Review of Individuals on Community Placement List filed 7/23/93 (manual docket); granting motion to strike intervenors' response to pltfs' motion to amend [821−1], and granting motion for leave to amend complaint for interlineation [803−1] (cc: all counsel) (former employee) (kdf). (Entered: 01/31/1994)
833 ORDER by Judge James A. Parker for transition planning; all defts shall hold an expanded interdisciplinary team (XIDT) meeting as part of the transition planning process as further outlined herein (cc: all counsel) (former employee) (kg). (Entered: 02/02/1994)
834 MOTION by plaintiff for an order shortening the time for defts to respond to pltfs motion for an order requiring defts to produce death investigation reports to joint monitors (pg) (kg). (Entered: 02/17/1994)
835 MEMORANDUM by plaintiff in support of motion for an order shortening the time for defts to respond to pltfs motion an order requiring defts to produce death investigation reports to joint monitors [834−1] (pg) (kg). (Entered: 02/17/1994)
836 MOTION by plaintiff for an order requiring defts to produce death investigation reports to joint monitors (pg) (kg). (Entered: 02/17/1994)
837 ORDER by Judge James A. Parker granting pltfs' motion for an order shortening the time for defts to respond to pltfs motion for an order requiring defts to produce death investigation reports to joint monitors by 2/25/94 [834−1] (cc: all counsel) (former employee) (kg). (Entered: 03/03/1994)
838 STIPULATED ORDER by Judge James A. Parker granting and denying in part pltf's motion for an order requiring defts to produce death investigation reports to joint monitors; allowing access to morbidity and mortality committee death review information as further outlined herein [836−1] (cc: all counsel) (former employee) (kg). (Entered: 03/03/1994)
839 NOTICE by defendants of filing proposed schedule of initial transition planning meetings (former employee) (kg). (Entered: 03/18/1994)
840 ENTRY OF APPEARANCE for intervenor−plaintiffs by Elizabeth J. Church (former employee) (kg). (Entered: 03/28/1994)
841 JOINT MOTION by parties for an order of modification of 12/28/90 Memorandum Opinion and Order (former employee) (kg). (Entered: 04/18/1994)
842 MEMORANDUM by defendants in support of joint motion for an order of modification of 12/28/90 Memorandum Opinion and Order [841−1] (former employee) (kg). (Entered: 04/18/1994)
843 MEMORANDUM by plaintiffs in support of joint motion for an order of modification of 12/28/90 Memorandum Opinion and Order [841−1] (former employee) (kg). (Entered: 04/18/1994)
844 NOTICE of hearing Status conference hearing 6/10/94 at 8:30 am (cc: all counsel) (dmw) (kg). (Entered: 04/25/1994)
845 MOTION for Extension of time to respond to motion for an order of modification until 5/17/94 by intenvenor [841−1] (pg) (kg). (Entered: 05/03/1994)
846 ORDER by Judge James A. Parker granting intervenors until 5/17/94 to file their response to joint motion for modification [845−1] (cc: all counsel) (dmw) (kg). (Entered: 05/04/1994)
847 RESPONSE (MEMORANDUM) by intervenor−plaintiff in opposition to joint motion for an order of modification of 12/28/90 Memorandum Opinion and Order [841−1] (former employee) (kg). (Entered: 05/19/1994)

06/06/1994 06/06/1994 06/10/1994 06/20/1994 06/20/1994 06/27/1994 07/06/1994 07/11/1994
07/15/1994 07/15/1994 07/18/1994 07/20/1994
07/25/1994 07/25/1994 08/01/1994 08/02/1994
08/26/1994 08/26/1994

848 REPLY by plaintiff in support of joint motion for order of modification of 12/28/90 Memorandum Opinion and Order [841−1] (dmw) (kg). (Entered: 06/08/1994)
849 REPLY by defendants in support of joint motion for an order of modification of 12/28/90 Memorandum Opinion and Order [841−1] (former employee) (kg). (Entered: 06/08/1994)
850 CLERK'S MINUTES: before Judge James A. Parker re: joint motion for an order of modification of 12/28/90 Memorandum Opinion and Order [841−1]; no ruling at this time C/R: Paul Baca (former employee) (kg). (Entered: 06/13/1994)
851 MOTION by plaintiffs for attorney fees w/incurred costs (former employee) (kg). (Entered: 06/21/1994)
852 MEMORANDUM by plaintiffs in support of motion for attorney fees w/incurred costs [851−1] (former employee) (kg). (Entered: 06/21/1994)
853 ORDER by Judge James A. Parker granting joint motion for an order of modification of 12/28/90 Memorandum Opinion and Order [841−1]; and is modified as further outlined herein (cc: all counsel) (former employee) (kg). (Entered: 06/28/1994)
854 UNOPPOSED MOTION for Extension of time by defendants to respond to pltfs' motion for attorney fees w/incurred costs to 7/15/94 [851−1] (former employee) (kg). (Entered: 07/07/1994)
855 ORDER granting defts' unopposed motion for extension of time to respond to pltfs' motion for attorneys' fees and costs until 7/6/94 [854−1] (By Direction of the Court:CLERK:cab) (cc: all counsel) (former employee) Modified on 07/11/1994 (kg). (Entered: 07/11/1994)
856 AMENDED ORDER granting defts' unopposed motion for extension of time until 7/15/94 to respond to pltfs' motion for attorneys' fees and costs [854−1] (CLERK:cab) (cc: all counsel by cab) (former employee) (kg). (Entered: 07/15/1994)
857 UNOPPOSED MOTION for Extension of time by defendant Fort Stanton Hosp to respond to plaintiff's motion for attorney fees w/incurred costs until 7/18/94 [851−1] (former employee) Modified on 07/19/1994 (kg). (Entered: 07/19/1994)
859 AMENDED MOTION for Extension of time by defendants to respond to pltfs' motion for attorney fees w/incurred costs until 7/25/94 [851−1] (former employee) (kg). (Entered: 07/20/1994)
858 ORDER granting defts' motion for extension of time to respond to pltfs' motion for attorneys' fees and costs until 7/18/94 [857−1] (By Direction of the Court:CLERK:cab) (cc: all counsel) (former employee) Modified on 07/20/1994 (kg). (Entered: 07/20/1994)
860 ORDER by Judge James A. Parker granting defendants until 7/25/94 to respond to motion for attorney's fees and costs [859−1] (cc: all counsel) (dmw) (kg). (Entered: 07/25/1994)
861 RESPONSE by defendant in opposition to pltfs' motion for attorney fees and costs [851−1] (former employee) (kg). (Entered: 07/28/1994)
862 UNOPPOSED MOTION for Extension by plaintiff to respond to motion for attorney fees w/incurred costs [851−1] until 8/26/94 (dmw) (kg). (Entered: 08/01/1994)
863 ORDER by Judge James A. Parker granting unopposed motion for extension of time to file reply to deft's response to pltf's motion for attorney's fees and costs [862−1] until 8/26/94 (cc: all counsel) (former employee) Modified on 08/05/1994 (kg). (Entered: 08/02/1994)
864 REPLY by plaintiffs to defts' response to their motion for attorney fees w/incurred costs [851−1] (former employee) (kg). (Entered: 08/29/1994)
865 ***STRICKEN from the Record per Order 869 − SUPPLEMENTAL AUTHORITIES by intervenor−plaintiffs in support of their motion to restrict access to private documents (on manual docket) (former employee) (kg). Modified text on 2/4/2016 (kg). (Entered: 08/29/1994)

09/07/1994 09/07/1994 09/09/1994 09/19/1994 09/22/1994
09/22/1994
10/21/1994 10/21/1994 11/04/1994 11/04/1994 11/21/1994 11/29/1994 12/08/1994 12/09/1994 12/09/1994 12/14/1994 12/19/1994 01/04/1995
01/06/1995 01/06/1995

866 MOTION by plaintiffs to strike intervenors' supplemental authorities in support of intervenors' motion to restrict access to private documents (8/26/94) (former employee) (kg). (Entered: 09/08/1994)
867 MEMORANDUM by plaintiffs in support of their motion to strike intervenors' supplemental authorities in support of intervenors' motion to restrict access to private documents (8/26/94) [866−1] (former employee) (kg). (Entered: 09/08/1994)
868 ORDER by Judge James A. Parker denying pltfs' motion for attorney fees w/incurred costs [851−1] (cc: all counsel) (former employee) (kg). (Entered: 09/13/1994)
871 CLERK'S MINUTES: before Judge James A. Parker re: hearing on intervenors' motion to restrict access (manual docket); order to be entered C/R: P Baca (former employee) (kg). (Entered: 09/29/1994)
869 ORDER by Judge James A. Parker granting pltfs' motion to strike intervenors' supplemental authorities in support of intervenors' motion to restrict access to private documents (8/26/94) [866−1]; striking supplemental authorities from the record [865−1] (cc: all counsel) (former employee) (kg). (Entered: 09/27/1994)
870 STIPULATED ORDER by Judge James A. Parker agreement by pltfs and intervenors re: Protection & Advocacy's participation in transition planning process & access to records as outlined herein (cc: all counsel) (former employee) (kg). (Entered: 09/27/1994)
872 BRIEF by pltfs per Courts' request at hearing on 9/19/94 regarding Proposal w/respect to Subclasses (pr) (kg). (Entered: 10/21/1994)
873 NOTICE by defts regarding position concerning class position (pr) (kg). (Entered: 10/26/1994)
874 MOTION by plaintiffs for clarification of access stipulation entered 9/22/94 (jrm) Modified on 11/04/1994 (kg). (Entered: 11/04/1994)
875 MEMORANDUM by plaintiff in support of motion to clarify access stipulation [874−1] (jrm) (kg). (Entered: 11/04/1994)
876 RESPONSE by intervenor−plaintiff John E Young to motion for clarification of access stipulation entered 9/22/94 [874−1] (former employee) (kg). (Entered: 11/21/1994)
877 CERTIFICATE of service of Intervenor's interrogs by intervenor−plaintiff John E Young to counsel on 11/22/94 (jrm) (kg). (Entered: 11/29/1994)
878 REPLY (BRIEF) by pltfs on clarification of access stipulation [874−1] (jrm) (kg). (Entered: 12/08/1994)
879 MOTION by intervenors−plaintiff to have defts held in contempt of Court (jrm) (kg). (Entered: 12/09/1994)
880 MEMORANDUM by intervenor−plaintiff in support of motion to have defts held in contempt of Court [879−1] (jrm) (kg). (Entered: 12/09/1994)
881 CERTIFICATE of service of requests for production to pltfs by intervenor−plaintiff John E Young to counsel on 12/12/94 (jrm) (kg). (Entered: 12/15/1994)
885 CLERK'S MINUTES: before Judge James A. Parker, re: motion hearing and status conference. C/R: Paul Baca (jrm) (kg). (Entered: 01/06/1995)
882 ORDER by Judge James A. Parker Ruling on mtn to have defts held in contempt of Court [879−1] is deferred, and that intervenors and defts shall inform the court no later than 1/17/95, whether they have successfully resolved the issues raised by intervenors' mtn.If intervenors and defts have been unable to reach a settlement, they are hereby ordered to submit on 1/17/95 either a briefing schedule or a request for additional time for negotiations. (cc: all counsel) (jrm) (kg). (Entered: 01/04/1995)
883 MOTION by pltfs for order to reconfigure the class (jrm) (kg). (Entered: 01/06/1995)
884 MEMORANDUM by pltfs in support of mtn for order to reconfigure the class [883−1] (jrm) (kg). (Entered: 01/06/1995)

01/12/1995 01/12/1995 01/23/1995 02/02/1995 02/24/1995
03/10/1995
03/15/1995 03/16/1995 03/27/1995
03/31/1995 04/04/1995 04/04/1995 04/05/1995 04/07/1995 04/12/1995 04/12/1995 04/19/1995 04/24/1995

886 CERTIFICATE by defendant Fort Stanton Hospital of service of defts' response to request for production of Intevenors to counsel on 1/11/95 (former employee) (kg). (Entered: 01/17/1995)
887 CERTIFICATE by defendant Fort Stanton Hospital of service of amended response to Intevenor's request for production to counsel on 1/12/95 (former employee) (kg). (Entered: 01/17/1995)
888 BRIEF IN RESPONSE by intervenor to pltfs' mtn for order to reconfigure the class [883−1] (jrm) (kg). (Entered: 01/23/1995)
889 REPLY brief by plaintiffs on their mtn to reconfigure the class; re [883−1] (jrm) (kg). (Entered: 02/02/1995)
890 MEMORANDUM, OPINION, AND ORDER: by Judge James A. Parker re [883−1] The May 23,1989 Order certifying pltfs' class is reaffirmed; the May 23, 1989 Order is modified by decertifying and eliminating the two pltf subclasses; the parties must confer w/in 10 days of the entry of this Order and submit a proposed notice to the Clerk w/in 20 days of the entry of this Order as further described herein. (cc: all counsel) (jrm) (kg). (Entered: 02/27/1995)
891 ORDER by Judge James A. Parker, granting Intervenors leave to withdraw their motion to have defts held in contempt of Court [879−1]; and the motion is hereby withdrawn. See Order for other conditions herein (cc: all counsel) (jrm) (kg). (Entered: 03/10/1995)
892 NOTICE to Parents and Guardians (jrm) (kg). (Entered: 03/15/1995)
893 PROPOSED NOTICE to Parents and Guardians by intervenor−plaintiff (jrm) (kg). (Entered: 03/16/1995)
894 ORDER by Judge James A. Parker that the Clerk of Court must have the "Notice to Classmembers" and the "Notice to Parents and Guardians", that were submitted by pltfs' counsel, translated into Spanish. By not later than April 3, 1995 the parties must submit to the Clerk of the Court a list of all persons, w/their current addresses, to whom the parties believe notice should be given. By April 10, 1995 the Clerk of the Court is to mail copies of the two notices, both in English and in Spanish, to the persons identified on the lists submitted by the parties. re [890−1] (cc: all counsel)(jrm) Modified on 03/29/1995 (kg). (Entered: 03/27/1995)
895 MINUTE ORDER: Case referred to Magistrate Leslie C. Smith from Magistrate Judge Svet (cc: all counsel) (jrm) (kg). (Entered: 03/31/1995)
896 NOTICE to Classmembers, (also in Spanish attached) the Court's Order reaffirmed the original definition of the pltf class. See Order for specifics (jrm) (kg). (Entered: 04/04/1995)
897 NOTICE to Parents and Guardians (also in Spanish attached), the Court's Order reaffirmed the original definition of the pltf class. See Order for specifics. (jrm) (kg). (Entered: 04/04/1995)
898 MOTION by intervenor−plaintiff John E Young to withdraw attorney Elizabeth J. Church (jrm) (kg). (Entered: 04/05/1995)
899 ORDER by Judge James A. Parker granting intervenors motion to withdraw attorney Elizabeth J. Church for John E Young [898−1] (cc: all counsel) (jrm) (kg). (Entered: 04/07/1995)
900 STATEMENT (NOTICE) of interest in participating as an individual Intervenor by Phyllis Dodd (jrm) (kg). (Entered: 04/12/1995)
901 STATEMENT (NOTICE) of interest in participating as an individual Intervenor by Marjorie & Alfred O'Connell (jrm) (kg). (Entered: 04/12/1995)
902 (NOTICE) STATEMENT OF INTEREST in participating as an individual Intervenor by Sylvie S. Ward (jrm) (kg). (Entered: 04/19/1995)
903 STATEMENT OF INTEREST (NOTICE) IN PARTICIPATING AS AN INDIVIDUAL INTERVENOR BY CHARLES E. WOODHOUSE (jrm) (kg). (Entered: 04/24/1995)

04/24/1995
04/25/1995 05/01/1995
05/01/1995 05/07/1995 05/08/1995 05/10/1995 05/11/1995 05/15/1995 05/15/1995 05/15/1995 05/17/1995 05/17/1995 05/18/1995 05/18/1995 05/18/1995 05/19/1995 05/19/1995 05/19/1995 05/22/1995 05/22/1995 05/23/1995 05/23/1995

904 STATEMENT OF INTEREST (NOTICE) IN PARTICIPATING AS AN INDIVIDUAL INTERVENOR BY MR. and MRS. ALVARADO (jrm) (kg). (Entered: 04/24/1995)
905 (NOTICE) statement of interest in participating as an individual intervenor by June Carole Barney (jrm) (kg). (Entered: 04/25/1995)
906 STATEMENT (NOTICE) OF INTEREST IN PARTICIPATING AS AN INDIVIDUAL INTERVENOR BY MARJORIE M. CLINGENPEEL (jrm) (kg). (Entered: 05/01/1995)
907 SUPPLEMENTAL BRIEF regarding access to documents (jrm) (kg). (Entered: 05/01/1995)
908 STATEMENT (NOTICE) of interest in participating as an individual Intervenor by Mary Ava Peets (jrm) (kg). (Entered: 05/08/1995)
909 STATEMENT (NOTICE) of interest in participating as an individual Intervenor by Sharon Kay Evans (jrm) (kg). (Entered: 05/08/1995)
910 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Josephine Rutar (jrm) (kg). (Entered: 05/10/1995)
911 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Marjorie F. Miller (jrm) (kg). (Entered: 05/11/1995)
912 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Irene Vicenti (jrm) (kg). (Entered: 05/15/1995)
913 RESPONSE by plaintiffs to Intervenors' 5/1/95 supplemental brief regarding access to documents [907−1] (jrm) (kg). (Entered: 05/15/1995)
914 RESPONSE by defendants to supplemental brief regarding access to documents [913−1] (jrm) (kg). (Entered: 05/16/1995)
915 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Mr & Mrs Avaristo Romero (jrm) (kg). (Entered: 05/17/1995)
916 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Robert R. Horning (jrm) (kg). (Entered: 05/17/1995)
917 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Charles C. VanDolsen (jrm) (kg). (Entered: 05/18/1995)
918 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Patrick F. Jewell (jrm) (kg). (Entered: 05/18/1995)
919 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Mary M. Schneider (jrm) (kg). (Entered: 05/18/1995)
920 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Joe & Lillian Lente (jrm) (kg). (Entered: 05/19/1995)
921 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Cathy Sensi (jrm) (kg). (Entered: 05/19/1995)
922 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Wilbur F. Offtermatt (jrm) (kg). (Entered: 05/19/1995)
923 (NOTICE) STATEMENT of interest in particiapating as an individual Intervenor by Sylvia Y. Sensanbaugher (jrm) (kg). (Entered: 05/22/1995)
924 (NOTICE) STATEMENT of inteest in participating as an individual Intervenor by Mary Montoya (jrm) (kg). (Entered: 05/22/1995)
925 STATEMENT (NOTICE) by William E Davis (class member Rosanne R. Davis) of Interest in participating as an individual intervenor (pr) (kg). (Entered: 05/23/1995)
926 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by David Farinelli (jrm) (kg). (Entered: 05/24/1995)

05/25/1995 05/25/1995 05/25/1995 05/25/1995 05/26/1995 05/26/1995 05/26/1995 05/30/1995 05/30/1995 05/30/1995 05/30/1995 05/30/1995 05/30/1995 05/31/1995 05/31/1995 05/31/1995 05/31/1995 05/31/1995 05/31/1995 05/31/1995 06/01/1995 06/01/1995 06/01/1995 06/02/1995

927 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by A.R. Serna (jrm) (kg). (Entered: 05/25/1995)
928 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Andres R. Martinez (jrm) (kg). (Entered: 05/25/1995)
929 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Valentina Miranda (jrm) (kg). (Entered: 05/25/1995)
930 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Henry Lynn Bryant (jrm) (kg). (Entered: 05/25/1995)
931 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Conrdad L. Voights (jrm) (kg). (Entered: 05/26/1995)
932 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Frank Carabajal (jrm) (kg). (Entered: 05/26/1995)
939 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Thomas W Newton (jrm) (kg). (Entered: 05/30/1995)
933 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Mr & Mrs Tommy Trujillo (jrm) (kg). (Entered: 05/30/1995)
934 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Vera Meza (jrm) (kg). (Entered: 05/30/1995)
935 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Mr & Mrs Rubel Pacheco (jrm) (kg). (Entered: 05/30/1995)
936 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by John W Byland (jrm) (kg). (Entered: 05/30/1995)
937 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Greg & Sylvia Abeyta (jrm) (kg). (Entered: 05/30/1995)
938 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Samuel Christensen (jrm) (kg). (Entered: 05/30/1995)
940 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by James and Charlene Harper (jrm) (kg). (Entered: 05/31/1995)
941 (NOTICE) STATEMENT of interest in participating as an individual Intervenor Barbara S Harrison (jrm) (kg). (Entered: 05/31/1995)
942 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Jose Francisco Salas (jrm) (kg). (Entered: 05/31/1995)
943 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Timothy Curley (jrm) (kg). (Entered: 05/31/1995)
944 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Belva Heath (jrm) (kg). (Entered: 05/31/1995)
945 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Goldie R Buckner (jrm) (kg). (Entered: 05/31/1995)
946 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Juanita D Abeita (jrm) (kg). (Entered: 05/31/1995)
947 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Wanda Ruth Graham (jrm) (kg). (Entered: 06/01/1995)
948 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Frank & Mary Terrazas (jrm) (kg). (Entered: 06/01/1995)
949 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Jones Denetclaw (jrm) (kg). (Entered: 06/01/1995)
950 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Jaye M Duncan (jrm) (kg). (Entered: 06/02/1995)

06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/02/1995 06/05/1995 06/06/1995
06/07/1995 06/08/1995 06/14/1995 06/14/1995 06/20/1995 06/20/1995
06/22/1995
06/26/1995

951 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Allen & Ruby Buttke (jrm) (kg). (Entered: 06/02/1995)
952 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by I.L. Zaleski (jrm) (kg). (Entered: 06/02/1995)
953 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Patrick & Sarah Murphy (jrm) (kg). (Entered: 06/02/1995)
954 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Mr & Mrs Angel Alvarado (jrm) (kg). (Entered: 06/02/1995)
955 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Grace Vicente (jrm) (kg). (Entered: 06/02/1995)
956 (NOTICE) STATEMENT of interest in participatiing as an individual Intervenor by Escolastica Lucero (jrm) (kg). (Entered: 06/02/1995)
957 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Madeleline Martinez (jrm) (kg). (Entered: 06/02/1995)
958 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Irene Lowe (jrm) (kg). (Entered: 06/02/1995)
959 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Mr & Mrs Nick Garcia (jrm) (kg). (Entered: 06/02/1995)
960 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Peggy Ranne (jrm) (kg). (Entered: 06/02/1995)
961 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Rita Kilkenny (jrm) (kg). (Entered: 06/02/1995)
962 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Hermon L Tapley (jrm) (kg). (Entered: 06/05/1995)
964 ENTRY OF APPEARANCE for intervenor ARC of New Mexico by Maureen Sanders (jrm) (kg). (Entered: 06/05/1995)
963 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Mildred L Barnes (jrm) (kg). (Entered: 06/05/1995)
965 (NOTICE) Statement of interest in participating as an individual intervenor by Bud C. Hammond and L. Ruth Hammond (mk) Modified on 06/06/1995 (kg). (Entered: 06/06/1995)
966 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Cecilia A Baca (jrm) (kg). (Entered: 06/07/1995)
967 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Elsie M Mead (jrm) (kg). (Entered: 06/08/1995)
Text not available. (Entered: 06/14/1995)
968 NOTICE of change of address by Peter Cubra, atty for pltf (jrm) (kg). (Entered: 06/14/1995)
969 MOTION by pltfs for attorney V. Colleen Miller to appear pro hac vice (jrm) (kg). (Entered: 06/20/1995)
970 CLERK'S MINUTES: before Judge James A. Parker re: motion for clarification of access stipulation entered 9/22/94 [874−1]; Stipulated Order is VACATED, pltfs' motion for clarification of access stipulation is MOOT Status hearing HELD C/R: Paul Baca (jrm) (kg). (Entered: 06/20/1995)
971 ORDER by Judge James A. Parker vacating the Court's Stipulated Order of 9/22/94 [870−1] and pltfs' motion for clarification of access stipulation entered 11/4/94 is MOOT [874−1] (cc: all counsel) (jrm) (kg). (Entered: 06/22/1995)
972 (NOTICE) STATEMENT OF INTEREST in participating as an individual Intervenor by Jones Denetclaw (jrm) (kg). (Entered: 06/26/1995)

06/27/1995
07/11/1995 07/13/1995 11/14/1995
12/01/1995 12/15/1995 01/22/1996 01/22/1996
02/01/1996 02/01/1996 02/01/1996 02/07/1996
02/07/1996
02/09/1996 02/23/1996
02/26/1996 03/01/1996 03/07/1996 03/07/1996 03/07/1996 03/12/1996 03/19/1996

973 ORDER GRANTING TEMPORARY WAIVER OF MEMBERSHIP by Judge James A. Parker granting pltfs' motion for attorney V. Colleen Miller to appear pro hac vice [969−1] (cc: all counsel) (jrm) (kg). (Entered: 06/27/1995)
974 (NOTICE) STATEMENT of interest in participating as an individual Intervenor by Belva Heath (jrm) (kg). (Entered: 07/12/1995)
975 NOTICE by defendant of change in counsel (jrm) (kg). (Entered: 07/17/1995)
976 NOTICE of hearing by Judge Parker that a status conference will take place on 12/15/95 at 9:30 a.m. in Albuquerque, NM (CLERK: cb) (cc: all counsel) (kd) (kg). (Entered: 11/15/1995)
977 CERTIFICATE of Service by pltfs of 1st request for production to counsel on 12/1/95 (pr) (kg). (Entered: 12/04/1995)
978 CLERK'S MINUTES: before Judge James A. Parker; Status Conference HELD; C/R: Paul Baca (jrm) (kg). (Entered: 12/26/1995)
979 MOTION by plaintiffs for an order to show cause and for further relief (jrm) (kg). (Entered: 01/23/1996)
980 MEMORANDUM by plaintiffs in support of motion for an order to show cause and for further relief [979−1] (jrm) (Additional attachment(s) added on 9/24/2015: # 1 Exhibit 1 − Part 1 of 3, # 2 Exhibit 1 − Part 2 of 3, # 3 Exhibit 1 − Part 3 of 3) (kg). (Entered: 01/23/1996)
981 CERTIFICATE of service of 2nd request for production by plaintiffs to counsel on 1/31/96 (jrm) (kg). (Entered: 02/01/1996)
982 CERTIFICATE of service of notice of inspection by plaintiffs to counsel on 1/31/96 (jrm) (kg). (Entered: 02/01/1996)
983 CERTIFICATE of service of notice of inspection by plaintiffs to counsel on 1/31/96 (jrm) (kg). (Entered: 02/01/1996)
984 STIPULATED ORDER by Judge James A. Parker granting an extension of time until 2/12/96 for intervenors to file response to motion for contempt (cc: all counsel) (former employee) (kg). (Entered: 02/07/1996)
985 ORDER by Judge James A. Parker granting defts' request for an extension of time in which to respond to pltfs' "Motion for an Order to Show Cause" and by no later than March 7, 1996, defts shall file its response (CLERK: mw) (cc: all counsel by mw) (jrm) (kg). (Entered: 02/08/1996)
986 CLERK'S MINUTES: before Judge James A. Parker re Conference (jrm) (kg). (Entered: 02/16/1996)
987 ORDER by Magistrate Leslie C. Smith Status hearing/Discovery Issues Conference set for 3/29/96 at 8:30 in Albuquerque, NM am (cc: all counsel) (jrm) (kg). (Entered: 02/23/1996)
988 MOTION for attorney Robert W Becker to appear pro hac vice (jrm) (kg). (Entered: 02/26/1996)
989 ORDER by Judge James A. Parker granting motion for attorney Robert W Becker to appear pro hac vice [988−1] all counsel) (jrm) (kg). (Entered: 03/01/1996)
990 RESPONSE by intervenor−plaintiff John E Young to (jrm) (Entered: 03/08/1996)
991 RESPONSE by intervenor−plaintiff to motion for contempt [979−1] (jrm) (kg). (Entered: 03/08/1996)
992 BRIEF in opposition by defendants regarding pltfs' motion for an order to show cause and for further relief [979−1] (jrm) (kg). (Entered: 03/12/1996)
993 ENTRY OF APPEARANCE for defendants by Robert W Becker (jrm) (kg). (Entered: 03/12/1996)
994 MOTION by plaintiffs for an immediate hearing (jrm) (kg). (Entered: 03/19/1996)

03/21/1996

995 REPLY by plaintiffs to response to motion for an order to show cause and for further relief [979−1] (jrm) (Additional attachment(s) added on 9/24/2015: # 1 Exhibit 1 − Part 1 of 3, # 2 Exhibit 1 − Part 2 of 3, # 3 Exhibit 1 − Part 3 of 3) (kg). (Entered: 03/21/1996)

03/25/1996 1005 CLERK'S MINUTES: before Judge James A. Parker Status hearing HELD C/R: Paul Baca (jrm) (kg). (Entered: 04/01/1996)

03/26/1996 996 CROSS MOTION by defendants for order for a hearing on pltfs' motion for an order to show cause and further relief no earlier than 9/16/96 (jrm) Modified on 03/31/1998 (kg). (Entered: 03/26/1996)

03/26/1996 997 AFFIDAVIT of J Alex Valdez in opposition to pltfs' motion for an immediate hearing [994−1] and in support of cross motion of defts for a hearing no earlier than 9/16/96 (jrm) (kg). (Entered: 03/26/1996)

03/26/1996 998 AFFIDAVIT of Robert W Becker in opposition to pltfs' motion for an immediate hearing [994−1] and in support of cross motion of defts for a hearing no earlier than 9/16/96 (jrm) (kg). (Entered: 03/26/1996)

03/26/1996

999 MEMORANDUM brief by defendants in opposition to motion for an immediate hearing on Order to show cause and further relief [994−1] and in support of cross motion for a hearing on pltfs' motion no earlier than 9/16/96 (jrm) (kg). (Entered: 03/26/1996)

03/26/1996 1000 CERTIFICATE of service of response to defts' 1st request for admissions by plaintiffs to counsel on 3/26/96 (jrm) Modified on 03/26/1996 (kg). (Entered: 03/26/1996)

03/26/1996 1001 CERTIFICATE of service of response to defts' 1st request for production of documents by plaintiffs to counsel on 3/26/96 (jrm) (kg). (Entered: 03/26/1996)

03/27/1996 1002 NOTICE OF AGREEMENT by parties herein (jrm) (kg). (Entered: 03/27/1996)

03/28/1996 1003 AFFIDAVIT of Ava Peets (jrm) (kg). (Entered: 03/28/1996)

03/28/1996 1004 AFFIDAVIT of June L Kirby (jrm) (kg). (Entered: 03/28/1996)

03/29/1996 1006 CLERK'S MINUTES: motion hearing before Magistrate Leslie C. Smith CRD: David Hughes (jrm) (kg). (Entered: 04/02/1996)

04/02/1996 1007 ENTRY OF APPEARANCE for intervenor, defendant by Sally Malave (jrm) (kg). (Entered: 04/04/1996)

04/02/1996 1011 CLERK'S MINUTES: settlement conference HELD before Magistrate Judge DeGiacomo; C/R: Paul Baca (jrm) Modified on 02/26/1997 (kg). (Entered: 04/15/1996)

04/05/1996 1008 ORDER by Judge James A. Parker re pltf's motion to compel as described herein [1006−1] (cc: all counsel) (jrm) (kg). (Entered: 04/09/1996)

04/10/1996 1009 CERTIFICATE of service of answers to defts' 1st set of interrogs by plaintiffs to counsel on 4/10/96 (jrm) (kg). (Entered: 04/10/1996)

04/11/1996 1010 CLERK'S MINUTES: Status Conference HELD before Magistrate Leslie C. Smith (jrm) (kg). (Entered: 04/15/1996)

04/12/1996 1012 CLERK'S MINUTES: settlement conference HELD before Magistrate Judge DeGiacomo; CASE SETTLED; C/R: Paul Baca (jrm) Modified on 02/26/1997 (kg). (Entered: 04/15/1996)

04/16/1996 1013 JOINT MOTION by parties herein for order to approve settlement agreement and stipulation to withdraw pltfs' motion for Order to show cause and for further releif (jrm) (kg). (Entered: 04/17/1996)

04/16/1996

1014

ORDER by Judge James A. Parker granting the parties joint motion for order to approve settlement agreement [1013−1] and granting the parties joint stipulation to withdraw pltfs' motion for Order to show cause and for further releif [1013−2] withdrawing motion an order to show cause and for further relief [979−1] (cc: all counsel) (jrm) (kg). (Entered: 04/17/1996)

04/16/1996 1015 (NOTICE) SETTLEMENT AGREEMENT REGARDING LOS LUNAS as described herein (jrm) (kg). (Entered: 04/17/1996)
08/07/1996 1016 MOTION by plaintiffs for order granting access to classmembers' records (jrm) (kg). (Entered: 08/07/1996)
08/07/1996 1017 MEMORANDUM by plaintiffs in support of motion for order granting access to classmembers' records [1016−1] (jrm) (kg). (Entered: 08/07/1996)
08/14/1996 1018 UNOPPOSED MOTION for Extension of time (no date specified) by defendants in which to respond to motion for order granting access to classmembers' records [1016−1] (jrm) (kg). (Entered: 08/19/1996)
08/23/1996 1020 UNOPPOSED MOTION by defts to exceed page limitation on the response to pltfs' mtn to clarify order granting access to classmembers' records (kd) (kg). (Entered: 08/28/1996)
08/26/1996 1019 ORDER by Judge James A. Parker granting defendants until 8/28/96 to file response to motion to clarify order granting access to classmembers' records [1018−1] (cc: all counsel) (dmw) (kg). (Entered: 08/26/1996)
08/28/1996 1021 RESPONSE by defts to motion for order granting access to classmembers' records [1016−1] (kd) (kg). (Entered: 08/28/1996)
08/28/1996 1022 AFFIDAVIT of Christopher D. Coppin re: response to pltf's mtn to clarify order granting access to classmembers' records [1021−1] (kd) (kg). (Entered: 08/28/1996)
08/28/1996 1023 AFFIDAVIT of Sandra Noble re: response to pltfs' mtn to clarify order granting access to classmembers' records [1021−1] (kd) (kg). (Entered: 08/28/1996)
08/28/1996 1024 AFFIDAVIT of Robert W Becker re: response to pltf's mtn to clarify order granting access to classmembers' records [1021−1] (kd) (kg). (Entered: 08/28/1996)
08/28/1996 1025 ORDER by Judge James A. Parker granting defts' motion to exceed page limitation on the response to pltfs' mtn to clarify order granting access to classmembers' records [1020−1] all counsel) (sl) (kg). (Entered: 08/28/1996)
09/09/1996 1026 UNOPPOSED MOTION by pltfs to exceed page limitation on the reply with respect to the mtn to clarify access to classmembers' records (kd) (kg). (Entered: 09/10/1996)
09/10/1996 1027 ORDER by Judge James A. Parker granting motion to exceed page limitation on the reply with respect to the mtn to clarify access to classmembers' records [1026−1] (cc: all counsel) (kd) (kg). (Entered: 09/12/1996)
09/10/1996 1028 REPLY by pltf to response to motion for order granting access to classmembers' records [1016−1] (kd) (kg). (Entered: 09/12/1996)
09/13/1996 1029 CLERK'S MINUTES: before Judge James A. Parker hearing on motion for order granting access to classmembers' records [1016−1] C/R: Paul Baca (sl) (kg). (Entered: 09/17/1996)
09/13/1996 1030 ORDER by Judge James A. Parker granting pltfs' motion for order granting access to classmembers' records [1016−1] (cc: all counsel) (sl) (kg). (Entered: 09/17/1996)
09/18/1996 1031 NOTICE by pltf of change of address for atty Peter Cubra (kd) (kg). (Entered: 09/19/1996)
09/26/1996 1032 AFFIDAVIT of Sandra Noble in opposition to pltfs' motion for clarification of Order granting access to classmembers' records (jrm) (kg). (Entered: 09/26/1996)
11/18/1996 2067 TRANSCRIPT OF PROCEEDINGS before Judge James A. Parker held on 9/13/96; (re [1029−1] ) lodged in separate file folder (jrm) (kg). (Entered: 11/19/1996)
01/22/1997 1033 MOTION by defendant for order for modification of the April 16, 1996 settlement agreement, for order disqualifying Nancy Ray, PhD from further participation in monitoring and for order for mediation of the termination of the case (jrm) Modified on 01/23/1997 (kg). (Entered: 01/22/1997)
01/22/1997 1034 MEMORANDUM by defendant in support of motion for order for modification of the April 16, 1996 settlement agreement, for order disqualifying Nancy Ray, PhD from

further participation in monitoring and for order for mediation of the termination of the case [1033−1] (jrm) Modified on 01/23/1997 (kg). (Entered: 01/22/1997)
02/10/1997 1035 NOTICE of withdrawal without prejudice of motion for modification of the 4/16/96 settlement agreement filed on 1/22/97 by defts (pz) (kg). (Entered: 02/12/1997)
04/01/1997 1036 MOTION by intervenor−plaintiff John E Young to withdraw attorney (seal) (kg). (Entered: 04/01/1997)
04/07/1997 1037 ORDER by Judge James A. Parker granting motion to withdraw attorney [1036−1] Kent Winchester and attorney Vernon W. Salvador for intervenor John E Young (cc: all counsel) (jrm) (kg). (Entered: 04/08/1997)
04/14/1997 1038 RESPONSE by plaintiffs to motion to withdraw as counsel for all individual intervenors [1036−1] (jrm) (kg). (Entered: 04/15/1997)
04/21/1997 1039 CLERK'S MINUTES: Telephonic Conference held before Judge James A. Parker; C/R: Paul Baca (jrm) Modified on 04/29/1997 (kg). (Entered: 04/28/1997)
04/25/1997 1040 NOTICE AND ORDER by Judge James A. Parker as described herein [1037−1] (cc: all counsel) (jrm) (kg). (Entered: 04/28/1997)
05/12/1997 1041 STATEMENT OF INTENT (NOTICE) to continue to proceed pro se by Ava Peets (dmw) (kg). (Entered: 05/13/1997)
05/15/1997 1042 NOTICE of intent by intervenor Josephine Rutar to continue to proceed pro se or to obtain counsel (jrm) (kg). (Entered: 05/15/1997)
05/19/1997 1043 NOTICE by intervenor Charles E Woodhouse of intent to continue to proceed pro se or to obtain counsel (jrm) (kg). (Entered: 05/19/1997)
05/22/1997 1044 NOTICE by intervenors Frank Terrazas and Mary Terrazas of intent to continue to proceed pro se or to obtain counsel (jrm) (kg). (Entered: 05/22/1997)
05/27/1997 1045 NOTICE of hearing before Judge James A Parker Status Conference set for 6/13/97 at 1:30 pm in Albuquerque, NM (CLERK: cb) (cc: all counsel by cb) (jrm) (kg). (Entered: 05/29/1997)
06/13/1997 1046 CLERK'S MINUTES: before Judge James A. Parker ; Status hearing HELD C/R: Paul Baca (jrm) (kg). (Entered: 06/16/1997)
10/06/1997 1047 JOINT MOTION by parties herein for order to approve stipulation on disengagement (jrm) (Additional attachment(s) added on 10/13/2015: # 1 Exhibit 1 − Part 1 of 3, # 2 Exhibit 1 − Part 2 of 3, # 3 Exhibit 1 − Part 3 of 3, # 4 Exhibit 2) (kg). (Entered: 10/06/1997)
10/06/1997 1050 NOTICE of hearing before Judge James A Parker on approval of settlement set for 11/20/97 at 1:30 pm in Albuquerque, NM (CLERK: cb) (cc: all counsel by cb) (jrm) (kg). (Entered: 10/16/1997)
10/08/1997 1048 NOTICE to pltf classmembers and intervenors by parties herein (jrm) (kg). (Entered: 10/08/1997)
10/08/1997 1049 ORDER by Judge James A. Parker approving the proposed notice to pltf classmembers and intervenors [1048−1] as described herein (see Order for specifics) A hearing will be held at 1:30 pm on 11/20/97 to determine whether the Court will approve the Stipulation (cc: all counsel) (jrm) (kg). (Entered: 10/08/1997)
11/04/1997 1051 Proof of service of filed notice to pltf classmembers and intervenors (in english and spanish) together w/joint stipulation on disengagement b Marilyn Price (jrm) Modified on 11/06/1997 (kg). (Entered: 11/04/1997)
11/04/1997 1052 Proof of service of filed notice to pltf classmembers and intervenors (in english and spanish) together w/joint stipulation on disengagement by Robert W Becker (jrm) (kg). (Entered: 11/04/1997)
11/05/1997 1053 OBJECTIONS by intervenor Ava Peets to stipulation agreement or the "Plan of Action" for class members (sl) (kg). (Entered: 11/05/1997)

11/05/1997 1054 OBJECTIONS by intervenor Charles E Woodhouse to stipulation on disengagement (sl) (kg). (Entered: 11/05/1997)

11/07/1997 1055 OBJECTIONS by Andres R Martinez to Stipulation of Agreement [1015−1] (jrm) (kg). (Entered: 11/07/1997)

11/07/1997 1056 NOTICE of objection to the parties joint stipulation on disengagement by Alfred Bennett (jrm) Modified on 11/10/1997 (kg). (Entered: 11/10/1997)

11/07/1997 1057 NOTICE of objetion to the parties joint stipulation on disengagement by Marjorie O'Connell (jrm) (kg). (Entered: 11/10/1997)

11/07/1997 1058 NOTICE of objection to the parties joint stipulation on disengagement bt The Association of Developmental Disabilities Community Providers (jrm) (kg). (Entered: 11/10/1997)

11/10/1997 1059 NOTICE of objection to the parties joint stipulation on disengagement by Bob Bowen and Michael Binkley (jrm) (kg). (Entered: 11/10/1997)

11/10/1997 1060 (NOTICE) Statement of objections to parties joint stipulation of disengagement by the Arc of New Mexico (jrm) (kg). (Entered: 11/10/1997)

11/20/1997 1061 ENTRY OF APPEARANCE for intervenor by Michael S. Sanchez (former employee) (kg). (Entered: 11/21/1997)

11/20/1997 1062 CLERK'S MINUTES: Fairness hearing held before Judge James A. Parker; day 1, to be continued; C/R: Paul Baca (jrm) (kg). (Entered: 11/26/1997)

11/21/1997 1063 CLERK'S MINUTES: Fairness hearing held before Judge James A. Parker, day 2; [1062−1] C/R: Paul Baca (jrm) (kg). (Entered: 11/26/1997)

12/19/1997 1064 ORDER approving stipulation on disengaement by Judge James A. Parker as described herein (Joint stipulation on disengagement attached) (cc: all counsel) (jrm) Modified on 02/02/1998 (kg). (Entered: 12/22/1997)

01/14/1998

2066

TRANSCRIPT OF PROCEEDINGS before Judge James A. Parker held on 11/20/97, 11/21/97; (re [1063−1], re [1062−1] ) lodged in separate file folder (TWO VOLUMES) (former employee) (Additional attachment(s) added on 11/4/2015: # 1 Volume 1 − Part 2 of 3, # 2 Volume 1 − Part 3 of 3, # 3 Volume 2 − Part 1 of 3, # 4 Volume 2 − Part 2 of 3, # 5 Volume 2 − Part 3 of 3) (kg). (Entered: 01/14/1998)

01/26/1998 1065 SUBSTITUTION OF COUNSEL: terminating attorney Robert W Becker for Los Lunas Center for Persons with Developmental Disabilities and substituting attorney John H Clough (jrm) (kg). (Entered: 01/26/1998)

03/23/1998 1066 ENTRY OF APPEARANCE for defendants by Bennett S. Cohn (mjr) (kg). (Entered: 03/23/1998)

05/15/1998 1067 NOTICE by defts to intervenors of intent to file a motion for partial disengagement (jrm) Modified on 06/01/1998 (kg). (Entered: 05/18/1998)

05/15/1998 1068 MOTION No.1 by defts for order for partial disengagement (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1069 MEMORANDUM brief by defts in support of motion for order for partial disengagement [1068−1] (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1070 CERTIFICATE of service of mtn #1 for partial disengagement by defts to counsel on 5/5/98 (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1071 NOTICE by defts to intervenors of intent to file a motion for partial disengagement (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1072 MOTION No.2 by defts for order for partial disengagement (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1073 MEMORANDUM brief by defts in support of motion for order for partial disengagement [1072−1] (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1075 NOTICE by defts to intervenors of intent to file a motion for partial disengagement (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1076 MOTION No.3 by defts for order for partial disengagement (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1077 MEMORANDUM brief by defts in support of motion for order for partial disengagement [1076−1] (jrm) (kg). (Entered: 05/18/1998)

05/15/1998 1078 CERTIFICATE of service of mtn #3 for partial disengagement by defts to counsel on 5/5/98 (jrm) (kg). (Entered: 05/18/1998)

05/18/1998 1074 CERTIFICATE of service of mtn #2 for partial disengagement by defts to counsel on 5/5/98 (jrm) (kg). (Entered: 05/18/1998)

05/29/1998 1079 ORDER OF COURT by Judge James A. Parker granting mtn no. 1 for partial disengagement [1068−1] as described herein (cc: all counsel) (jrm) Modified on 06/01/1998 (kg). (Entered: 06/01/1998)

05/29/1998 1080 ORDER OF COURT by Judge James A. Parker granting mtn no. 2 for partial disengagement [1072−1] as described herein (cc: all counsel) (jrm) (kg). (Entered: 06/01/1998)

05/29/1998 1081 ORDER OF COURT by Judge James A. Parker granting mtn no. 3 for partial disengagement [1076−1] as described herein (cc: all counsel) (jrm) (kg). (Entered: 06/01/1998)

11/02/1998 1082 CLERK'S MINUTES: before Judge James A. Parker status conference held C/R: Paul Baca (jrm) (kg). (Entered: 11/03/1998)

11/13/1998 1083 ENTRY OF APPEARANCE for defendants Los Lunas Center and Fort Stanton Hosp by Andrea Joseph (mjr) (Entered: 11/13/1998)

11/19/1998 1084 MOTION by defendant to withdraw attorney Robert Tabor Booms (dmw) (kg). (Entered: 11/23/1998)

12/01/1998 1085 ORDER by Magistrate Judge Leslie C Smith granting mtn to withdraw attorney Robert Tabor Booms [1084−1] for Fort Stanton Hosp (cc: all counsel) (rg) (kg). (Entered: 12/01/1998)

02/18/1999 1086 MOTION No.4 by defendants for order for partial disengagement (jrm) Modified on 02/18/1999 (kg). (Entered: 02/18/1999)

02/18/1999 1087 MEMORANDUM brief by defendants in support of motion No.4 for order for partial disengagement [1086−1] (jrm) Modified on 02/18/1999 (kg). (Entered: 02/18/1999)

02/18/1999 1088 MOTION No.5 by defendants for order for partial disengagement (jrm) (kg). (Entered: 02/18/1999)

02/18/1999 1089 MEMORANDUM brief by defendants in support of motion No.5 for order for partial disengagement [1088−1] (jrm) (kg). (Entered: 02/18/1999)

02/18/1999 1090 MOTION No.7 by defendants for order for partial disengagement (jrm) (kg). (Entered: 02/18/1999)

02/18/1999 1091 MEMORANDUM brief by defendants in support of motion No.7 for order for partial disengagement [1090−1] (jrm) (kg). (Entered: 02/18/1999)

02/18/1999 1092 MOTION No.11 by defendants for order for partial disengagement (jrm) (kg). (Entered: 02/18/1999)

02/18/1999 1093 MEMORANDUM brief by defendants in support of motion No.11 for order for partial disengagement [1092−1] (jrm) (kg). (Entered: 02/18/1999)

02/22/1999

1094

ORDER by Judge James A. Parker terminating the court's oversight of Training Desired Outcome "DD staff will monitor progress on activities for Plans of Action"; Activity No.1, involving Training and Technical Assistance, Management Information Systems (re Deft's mtn no.4 for partial disengagement) (Docket No.1086) (cc: all counsel, electronically) (jrm) Modified on 02/23/1999 (Entered: 02/23/1999)

02/22/1999 1095 ORDER by Judge James A. Parker terminating the court's oversight of Training and Technical Assistance, Crisis Response, Desired Outcome "People will receive supports for persons with challengenging behaviors", Activity No.1 (re Deft's mtn

no.5 for Partial Disengagement(Docket No.1088) (cc: all counsel, electronically) (jrm) (Entered: 02/23/1999)

02/22/1999 1096 ORDER by Judge James A. Parker terminating the court's oversight of Behavioral Services, Desired Outcome B, Activities 1 through 6, relating to status update or priority clients (re Deft's mtn no.7 for Partial Disengagement (Docket No.1090) (cc: all counsel, electronically) (jrm) (Entered: 02/23/1999)

02/22/1999

1097

ORDER by Judge James A. Parker terminating the court's oversight of Community Incident Management System, Desired Outcome D, Activities 1 through 5, relating to staffing for the Incident Management System (re Deft's mtn no.11 for Partial Disengagement (docket no.1092) (cc: all counsel, electronically) (jrm) (Entered: 02/23/1999)

02/22/1999 1098 MOTION No.6 by defendant for order for partial disengagement (jrm) (kg). (Entered: 02/23/1999)

02/22/1999 1099 MEMORANDUM brief by defendant in support of motion no.6 for order for partial disengagement [1098−1] (jrm) (kg). (Entered: 02/23/1999)

02/24/1999 1100 ORDER by Judge James A. Parker terminating the court's oversight of Appendix 9, Sexuality, Desired Outcome A, Activities Nos. through 7, relating to dissemination of sexuality guidelines (re mtn no.6 for partial disengagement (docket no.1098) [1098−1] (cc: all counsel, electronically) (jrm) (Entered: 02/25/1999)

04/02/1999 1101 MOTION by defendants for relief from judgment pursuant to FRCP 60(b)(5) and request for expedited oral argument (jrm) (kg). (Entered: 04/02/1999)

04/02/1999 1102 MEMORANDUM brief by defendants in support of motion for relief from judgment pursuant to FRCP 60(b)(5) and request for expedited oral argument [1101−1] (jrm) (kg). (Entered: 04/02/1999)

04/02/1999 1103 CERTIFICATE of service of mtn and supporting memorandum for relief from judgment pursuant to FRCP 60(b)(5) by defendants to counsel on 4−2−99 (jrm) (kg). (Entered: 04/02/1999)

04/09/1999 1104 MOTION by plaintiffs to enforce joint stipulation on disengagement (jrm) (Additional attachment(s) added on 10/13/2015: # 1 Exhibit 1 − Part 1 of 2, # 2 Exhibit 1 − Part 2 of 2, # 3 Exhibit 2) (kg). (Entered: 04/13/1999)

04/09/1999 1105 MEMORANDUM by plaintiffs in support of motion to enforce joint stipulation on disengagement [1104−1] (jrm) (kg). (Entered: 04/13/1999)

04/15/1999 1106 MOTION no.14 by defendant for partial disengagement (jrm) (kg). (Entered: 04/15/1999)

04/15/1999 1107 MEMORANDUM brief by defendant in support of motion no.14 for partial disengagement [1106−1] (jrm) (kg). (Entered: 04/15/1999)

04/19/1999 1108 ORDER by Judge James A. Parker terminating this Court's oversight of paragraph 7 of the joint stipulation on disengagement [1106−1] (cc: all counsel, electronically) (seal) Modified on 04/19/1999 (Entered: 04/19/1999)

04/26/1999 1109 MOTION by defendants to stay proceedings and for protective order (jrm) (kg). (Entered: 04/26/1999)

04/26/1999 1110 MEMORANDUM brief by defts in support of motion to stay proceedings [1109−1] and motion for protective order [1109−2] (jrm) (kg). (Entered: 04/26/1999)

04/26/1999 1111 RESPONSE by defendants to joint motion to enforce joint stipulation on disengagement [1104−1] (jrm) (Additional attachment(s) added on 10/13/2015: # 1 Exhibit 1−9, # 2 Exhibit 10−18, # 3 Exhibit 19−22, # 4 Exhibit 23−25, # 5 Exhibit 26−30) (kg). (Entered: 04/26/1999)

04/26/1999 1111 ALTERNATIVE CROSS−MOTION by defts to exclude certain categories of individuals from Jackson class membership (jrm) (Entered: 04/26/1999)

04/26/1999 1112 CERTIFICATE of service by defendant of motion for a stay of proceedings and for a protective order with supporting brief to counsel on 4/26/99 (vv) (kg). (Entered:

04/27/1999)
04/26/1999 1113 CERTIFICATE of service by defendant of response to motion to enforce joint stipulation on disengagement and alternative cross−motion to exclude certain categories of individuals from Jackson class membership with supporting affidavit and brief to counsel on 4/26/99 (vv) (kg). (Entered: 04/28/1999)
04/29/1999 1114 MOTION by plaintiffs to exceed page limitation for opposition to defts' mtn for relief from judgment (jrm) (kg). (Entered: 04/30/1999)
04/29/1999 1115 (RESPONSE) Memorandum in opposition by plaintiffs to motion for relief from judgment pursuant to FRCP 60(b)(5) and request for expedited oral argument [1101−1] (jrm) (Additional attachment(s) added on 9/30/2015: # 1 Exhibit 1) (kg). (Entered: 04/30/1999)
04/30/1999 1116 RESPONSE in opposition by plaintiffs to motion to stay proceedings and for protective order [1109−1] (jrm) (kg). (Entered: 05/03/1999)
04/30/1999 1117 REPLY by plaintiffs to response in opposition to motion to enforce joint stipulation on disengagement [1104−1] (jrm) (kg). (Entered: 05/03/1999)
04/30/1999 1118 MOTION by plaintiff to exceed page limitation for opposition to defts'mtn for relief from judgment (jrm) (kg). (Entered: 05/03/1999)
05/03/1999 1119 REPLY brief by defendants to response to motion for relief from judgment pursuant to FRCP 60(b)(5) and request for expedited oral argument [1101−1] (jrm) (kg). (Entered: 05/03/1999)
05/03/1999 1120 MOTION by defendants to exceed page limitation for reply to pltfs' opposition to mtn for relief from judgment (jrm) (kg). (Entered: 05/03/1999)
05/03/1999 1121 CERTIFICATE of service of reply brief to pltfs' response to mtn for relief from judgment by defendants to counsel on 5−2−99 (jrm) (kg). (Entered: 05/03/1999)
05/03/1999 1122 REPLY by defendant to response in opposition to motion to stay proceedings [1109−1] and for protective order [1109−2] (jrm) (kg). (Entered: 05/03/1999)
05/04/1999 1123 ORDER by Judge James A. Parker granting unopposed motion to exceed page limitation in excess of 24 pages for opposition to defts' mtn for relief judgment [1114−1] (cc: all counsel) (jrm) (kg). (Entered: 05/04/1999)
05/04/1999 1125 CLERK'S MINUTES: before Judge James A. Parker mtn hrg held [1101−1] C/R: Paul Baca (jrm) (kg). (Entered: 05/06/1999)
05/05/1999 1124 ORDER by Judge James A. Parker denying motion to stay proceedings [1109−1] by Fort Stanton Hosp, Los Lunas Center (cc: all counsel, electronically) (jrm) (Entered: 05/06/1999)
05/07/1999 1126 MOTION for Extension by plaintiffs to respond to motion to exclude certain categories of individuals from Jackson class membership until 5/20/99 [1111−1] (dmw) (kg). (Entered: 05/07/1999)
05/10/1999 1127 ORDER by Judge James A. Parker granting pltfs' unopposed mtn for an extension of timeto respond to defts' alternative cross−mtn to exclude certain categories of individuals from Jackson class membership as described herein [1126−1] (cc: all counsel) (jrm) (kg). (Entered: 05/11/1999)
05/19/1999 1128 RESPONSE in opposition by plaintiffs to cross− motion to exclude certain categories of individuals from Jackson class membership [1111−1] (jrm) (kg). (Entered: 05/19/1999)
05/20/1999 1129 MEMORANDUM by defendants in support of motion response [1111−1] (sl) (kg). (Entered: 05/21/1999)
05/20/1999 1130 NOTICE by plaintiffs of position on the application of the joint stipulation of disengagement to intermediate care facilities for the mentally retarded (sl) (kg). (Entered: 05/21/1999)
06/04/1999 1131 REPLY by defendants to response in opposition to cross− motion to exclude certain categories of individuals from Jackson class membership [1111−1] (dmw) (kg).

(Entered: 06/07/1999)

09/07/1999 1132 MEMORANDUM, OPINION, AND ORDER: by Judge James A. Parker denying motion for relief from judgment pursuant to FRCP 60(b)(5) and request for expedited oral argument [1101−1] by Fort Stanton Hosp, Los Lunas Center (cc: all counsel, electronically) (jrm) (Entered: 09/07/1999)

09/21/1999 1133 MOTION by intervenor−plaintiff John and Iris Young to withdraw attorney Roberta Beyer (jrm) (kg). (Entered: 09/21/1999)

09/21/1999 1134 ORDER by Judge James A. Parker granting motion to withdraw attorney Roberta Beyer [1133−1] for intervenors John and Iris Young (cc: all counsel) (jrm) (kg). (Entered: 09/21/1999)

10/04/1999 1135 MOTION No. 17 by defendants for order for partial disengagement (jrm) (kg). (Entered: 10/05/1999)

10/07/1999

1136

ORDER by Judge James A. Parker that this court's oversight of the Community Incident Management System, Desired Outcome E, Activity 1 of the Joint Stipulation on Disengagement be and is hereby terminated. In the event that there is evidence of substantial noncompliance with this outcome, appendix or provision (cc: all counsel*) (jrm) (Entered: 10/07/1999)

10/07/1999 1137 NOTICE of hearing before Judge James A Parker on motion for order for partial disengagement [1135−1] 9:00 12/9/99 in Albuquerque (cc: all counsel*) (jrm) (Entered: 10/08/1999)

12/08/1999 1138 (ORDER) STIPULATED AGREEMENT ON 1998 SPECIAL REVIEW by Judge James A. Parker as described herein (cc: all counsel) (jrm) (kg). (Entered: 12/08/1999)

12/08/1999 1139 CLERK'S MINUTES: before Judge James A. Parker re conference on stipulated agreement on 1998 special review [1138−1] C/R: Paul Baca (jrm) (kg). (Entered: 12/09/1999)

12/14/1999 1140 MOTION No.12 by defts for order partial disengagement (jrm) (kg). (Entered: 12/15/1999)

12/14/1999 1141 MEMORANDUM brief by defts in support of motion for order partial disengagement [1140−1] (jrm) (kg). (Entered: 12/15/1999)

12/15/1999 1142 ORDER by Judge James A. Parker granting motion for order partial disengagement [1140−1]; that this Court's oversight of the training and technical assistance, desired outcome C, activities 1 through 9 of the joint stipulation on disengagement be and is hereby terminated (cc: all counsel* ) (jrm) (Entered: 12/15/1999)

12/22/1999 1143 MOTION No.15 by defendant for order for partial disengagement (jrm) (kg). (Entered: 12/23/1999)

12/22/1999 1144 MEMORANDUM brief by defendant in support of motion no.15 for order for partial disengagement [1143−1] (jrm) (kg). (Entered: 12/23/1999)

12/22/1999 1145 MOTION No.20 by defendant for order for partial disengagement (jrm) (kg). (Entered: 12/23/1999)

12/22/1999 1146 MEMORANDUM brief by defendant in support of motion no.20 for order for partial disengagement [1145−1] (jrm) (kg). (Entered: 12/23/1999)

12/27/1999 1148 AMENDED MOTION No.15 by defendant for order for partial disengagement (jrm) (kg). (Entered: 12/28/1999)

12/27/1999 1147 ORDER by Judge James A. Parker that ths court's oversight of the training and technical assistance case management, desired outcome F, activity 1 of the joint stipulation on disengagement be and is hereby terminated [1145−1] (cc: all counsel*) (jrm) Modified on 12/29/1999 (Entered: 12/28/1999)

12/30/1999 1149 ORDER by Judge James A. Parker that this Court's oversight of the community incident management system, desired outcome B, activities 1 through 4 of the joint stipulation on disengagement be and is hereby terminated [1148−1] (cc: all counsel*)

(jrm) (Entered: 01/03/2000)
03/06/2000 1150 UNOPPOSED MOTION by plaintiffs to exceed page limitation of exhibits allowed by the local rules (jrm) (kg). (Entered: 03/07/2000)
03/06/2000 1151 MOTION by plaintiffs for attorney fees and expenses (jrm) (kg). (Entered: 03/07/2000)
03/06/2000 1152 MEMORANDUM brief by plaintiffs in support of motion for attorney fees and expenses [1151−1] (jrm) (Additional attachment(s) added on 10/13/2015: # 1 Exhibit 1−15, # 2 Exhibit 16−24) (kg). (Entered: 03/07/2000)
03/06/2000 1153 ORDER by Judge James A. Parker granting motion to exceed page limitation of exhibits allowed by the local rules [1150−1]; also pltfs may file their memorandum brief in support w/exhibits totaling 114 pages (cc: all counsel) (jrm) (kg). (Entered: 03/07/2000)
03/14/2000 1154 MOTION No.9 by defendants for partial disengagement (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1155 MEMORANDUM brief by defendants in support of motion no.9 for partial disengagement [1154−1] (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1156 MOTION No.10 by defendants for partial disengagement (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1157 MEMORANDUM brief by defendants in support of motion no.10 for partial disengagement [1156−1] (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1158 MOTION No.19 by defendants for partial disengagement (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1159 MEMORANDUM brief by defendants in support of motion no.19 for partial disengagement [1158−1] (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1160 MOTION No.27 by defendants for partial disengagement (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1161 MEMORANDUM brief by defendants in support of motion no.27 for partial disengagement [1160−1] (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1162 MOTION No.32 by defendants for partial disengagement (jrm) (kg). (Entered: 03/15/2000)
03/14/2000 1163 MEMORANDUM brief by defendants in support of motion no.32 for partial disengagement [1162−1] (jrm) (kg). (Entered: 03/15/2000)
03/16/2000 1164 ORDER by Judge James A. Parker granting defts' motion no.32 for partial disengagement as described herein [1162−1] (cc: all counsel*) (jrm) (Entered: 03/16/2000)
03/16/2000 1165 ORDER by Judge James A. Parker granting defts' motion no.27 for partial disengagement as described herein [1160−1] (cc: all counsel*) (jrm) (Entered: 03/17/2000)
03/16/2000 1166 ORDER by Judge James A. Parker granting defts' motion no.19 for partial disengagement as described herein [1158−1] (cc: all counsel*) (jrm) (Entered: 03/17/2000)
03/16/2000 1167 ORDER by Judge James A. Parker granting defts' motion no.10 for partial disengagement as described herein [1156−1] (cc: all counsel*) (jrm) (Entered: 03/17/2000)
03/16/2000 1168 ORDER by Judge James A. Parker granting defts' motion no.9 for partial disengagement as described herein [1154−1] (cc: all counsel*) (jrm) (Entered: 03/17/2000)
04/18/2000 1169 RESPONSE by defts to motion for attorney fees and expenses [1151−1] (mjr) (kg). (Entered: 04/18/2000)

05/01/2000 1170 REPLY by plaintiffs to response to motion for attorney fees and expenses [1151−1] (jrm) (kg). (Entered: 05/01/2000)
05/10/2000 1171 MOTION no.16 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1172 MEMORANDUM brief by defendants in support of motion no.16 for partial disengagement [1171−1] (jrm) (Entered: 05/11/2000)
05/10/2000 1173 MOTION no.18 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1174 MEMORANDUM brief by defendants in support of motion no.18 for partial disengagement [1173−1] (jrm) (Entered: 05/11/2000)
05/10/2000 1175 MOTION no.21 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1176 MEMORANDUM brief by defendants in support of motion no.21 for partial disengagement [1175−1] (jrm) (Entered: 05/11/2000)
05/10/2000 1177 MOTION no.28 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1178 MEMORANDUM brief by defendants in support of motion no.28 for partial disengagement [1177−1] (jrm) (Entered: 05/11/2000)
05/10/2000 1179 MOTION no.31 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1180 MEMORANDUM brief by defendants in support of motion no.31 for partial disengagement [1179−1] (jrm) (Entered: 05/11/2000)
05/10/2000 1181 MOTION no.34 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1182 MEMORANDUM brief by defendants in support of motion no.34 for partial disengagement [1181−1] (jrm) (Entered: 05/11/2000)
05/10/2000 1183 MOTION no.38 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1184 MEMORANDUM brief by defendants in support of motion no.38 for partial disengagement [1183−1] (jrm) (Entered: 05/11/2000)
05/10/2000 1185 MOTION no.41 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1186 MEMORANDUM brief by defendants in support of motion no.41 for partial disengagement [1185−1] (jrm) (Entered: 05/11/2000)
05/10/2000 1187 MOTION no.43 by defendants for partial disengagement (jrm) (Entered: 05/11/2000)
05/10/2000 1188 MEMORANDUM brief by defendants in support of motion no.43 for partial disengagement [1187−1] (jrm) (Entered: 05/11/2000)
06/01/2000 1189 ORDER by District Judge James A. Parker granting defts' motion no.38 for partial disengagement [1183−1] (cc: all counsel* ) (jrm) Modified on 06/02/2000 (Entered: 06/02/2000)
06/01/2000 1190 ORDER by District Judge James A. Parker granting defts' motion no.34 for partial disengagement [1181−1] (cc: all counsel* ) (jrm) Modified on 06/02/2000 (Entered: 06/02/2000)
06/01/2000 1191 ORDER by District Judge James A. Parker granting defts' motion no.31 for partial disengagement [1179−1] (cc: all counsel* ) (jrm) Modified on 06/02/2000 (Entered: 06/02/2000)
06/01/2000 1192 ORDER by District Judge James A. Parker granting defts' motion no.28 for partial disengagement [1177−1] (cc: all counsel*) (jrm) Modified on 06/02/2000 (Entered: 06/02/2000)
06/01/2000 1193 ORDER by District Judge James A. Parker granting defts' motion no.21 for partial disengagement [1175−1] (cc: all counsel*) (jrm) Modified on 06/02/2000 (Entered: 06/02/2000)
06/01/2000 1194 ORDER by District Judge James A. Parker granting defts' motion no.18 for partial disengagement [1173−1] (cc: all counsel*) (jrm) Modified on 06/02/2000 (Entered: 06/02/2000)

06/01/2000 1195 ORDER by District Judge James A. Parker granting defts' motion no.16 for partial disengagement [1171−1] (cc: all counsel* ) (jrm) (Entered: 06/02/2000)
06/01/2000 1196 ORDER by District Judge James A. Parker granting defts' motion no.41 for partial disengagement [1185−1] (cc: all counsel*) (jrm) (Entered: 06/02/2000)
06/01/2000 1197 ORDER by District Judge James A. Parker granting defts' motion no.43 for partial disengagement [1187−1] (cc: all counsel*) (jrm) (Entered: 06/02/2000)
06/13/2000 1198 ORDER by District Judge James A. Parker granting motion for attorney fees and expenses as described herein [1151−1] (cc: all counsel by dm) (jrm) (Entered: 06/14/2000)
06/23/2000 1199 SUPPLEMENTAL ORDER by District Judge James A. Parker as described herein [1198−1] (cc: all counsel) (jrm) (Entered: 06/23/2000)
06/29/2000 1200 MOTION no.45 by defendants for partial disengagement (jrm) (kg). (Entered: 06/29/2000)
06/29/2000 1201 MEMORANDUM brief by defendants in support of motion no.45 for partial disengagement [1200−1] (jrm) (kg). (Entered: 06/29/2000)
07/14/2000 1202 RESPONSE by intervenor ARC of New Mexico to motion no.45 for partial disengagement [1200−1] (jrm) (kg). (Entered: 07/14/2000)
08/01/2000 1203 UNOPPOSED MOTION by defendants to extend time until 8−9−2000 in which to reply to pltfs' response to mtn no.45 for partial disengagement (jrm) (kg). (Entered: 08/01/2000)
08/01/2000 1204 MOTION by defendants for protective order or in the alternative, for dismissal and expedited consideration (jrm) (Additional attachment(s) added on 10/1/2015: # 1 Exhibit A, # 2 Exhibit B − Part 1 of 2, # 3 Exhibit B − Part 2 of 2, # 4 Exhibit C−D, # 5 Exhibit E−F) (kg). (Entered: 08/01/2000)
08/01/2000 1205 MEMORANDUM brief by defendants in support of motion for protective order [1204−1] or in the alternative, motion for dismissal and expedited consideration [1204−2] (jrm) (kg). (Entered: 08/01/2000)
08/03/2000 1206 ORDER by District Judge James A. Parker granting motion to extend time until 8−9−2000 in which to reply to pltfs' response to mtn no.45 for partial disengagement [1203−1] (cc: all counsel*) (jrm) (Entered: 08/03/2000)
08/09/2000 1207 REPLY by defendants to intervenor's response to motion no.45 for partial disengagement [1200−1] (jrm) (kg). (Entered: 08/09/2000)
08/09/2000 1208 NOTICE by plaintiffs of clarification of concurrence in mtn no.45 (jrm) (kg). (Entered: 08/09/2000)
08/15/2000 1209 MOTION no.25 by defendants for partial disengagement (jrm) (kg). (Entered: 08/15/2000)
08/15/2000 1210 MEMORANDUM brief by defendants in support of motion no.25 for partial disengagement [1209−1] (jrm) (kg). (Entered: 08/15/2000)
08/15/2000 1211 MOTION no.36 by defendants for partial disengagement (jrm) (kg). (Entered: 08/15/2000)
08/15/2000 1212 MEMORANDUM brief by defendants in support of motion no.36 for partial disengagement [1211−1] (jrm) (kg). (Entered: 08/15/2000)
08/15/2000 1213 MOTION no.37 by defendants for partial disengagement (jrm) (kg). (Entered: 08/15/2000)
08/15/2000 1214 MEMORANDUM brief by defendants in support of motion no.37 for partial disengagement [1213−1] (jrm) (kg). (Entered: 08/15/2000)
08/16/2000 1215 NOTICE of hearing before Judge James A Parker on motion for protective order [1204−1] @ 9:00 am on 9−6−2000 in Albuquerque (cc: all counsel*) (jrm) (Entered: 08/17/2000)

08/17/2000 1216 ORDER by District Judge James A. Parker granting deft's motion no.37 for partial disengagement [1213−1] (cc: all counsel*) (jrm) (Entered: 08/17/2000)

08/17/2000 1217 ORDER by District Judge James A. Parker granting deft's motion no.36 for partial disengagement [1211−1] (cc: all counsel*) (jrm) (Entered: 08/17/2000)

08/17/2000 1218 ORDER by District Judge James A. Parker granting deft's motion no.25 for partial disengagement [1209−1] (cc: all counsel*) (jrm) (Entered: 08/17/2000)

08/17/2000 1219 RESPONSE by defendants to pltfs' clarification of pltfs' concurrence in mtn no.45 for partial disengagement [1208−1] (jrm) (kg). (Entered: 08/17/2000)

08/17/2000 1220 RESPONSE by intervenor ARC of New Mexico to motion for protective order [1204−1] or in the alternative, motion for dismissal and expedited consideration [1204−2] (jrm) (kg). (Entered: 08/17/2000)

08/18/2000 1221 RESPONSE in opposition by plaintiffs to motion for protective order [1204−1] or in the alternative, motion for dismissal and expedited consideration [1204−2] (jrm) (kg). (Entered: 08/18/2000)

08/30/2000 1222 REPLY by defts to response in opposition to motion for protective order [1204−1] or, in the alternative, motion for dismissal and expedited consideration [1204−2] (jrm) (kg). (Entered: 08/30/2000)

09/06/2000 1223 SUPPLEMENT by intervenor ARC of New Mexico re motion no.45 for partial disengagement [1202−1] (jrm) (kg). (Entered: 09/06/2000)

09/06/2000 1225 CLERK'S MINUTES: before Chief Judge James A. Parker re hrg on mtn no.45 for partial disengaement and protective order [1204−1], [1204−2], [1200−1] C/R: Paul Baca (jrm) (kg). (Entered: 09/12/2000)

09/07/2000

1224

ORDER by Chief Judge James A. Parker denying in part motion for protective order [1204−1] by Fort Stanton Hosp, Los Lunas Center and reserving ruling in part on motion for dismissal and expedited consideration [1204−2] by Fort Stanton Hosp, Los Lunas Center denying w/out prejudice motion for partial disengagement [1200−1] by Fort Stanton Hosp, Los Lunas Center (cc: all counsel*) (jrm) (Entered: 09/08/2000)

09/19/2000 1226 AGREED CONFIDENTIALITY ORDER by Chief Judge James A. Parker as described herein (cc: all counsel) (jrm) (Entered: 09/19/2000)

11/14/2000

TRANSCRIPT OF PROCEEDINGS before Chief Judge James A. Parker held on 9/6/00; (re [1225−1] ) lodged in separate file folder (pg) (Entered: 11/14/2000)

01/19/2001 1227 ORDER by Magistrate Judge Leslie C. Smith setting hrg on all issues relating to deft's mtn for protective order on 2/13/01 @ 12:00 pm in Albuquerque (cc: all counsel*) (jrm) (Entered: 01/23/2001)

01/31/2001 1228 ORDER by Magistrate Judge Leslie C. Smith resetting hrg on all issues relating to defts' mtn for protective order on 3/07/01 @ 10:30 am in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 01/31/2001)

02/08/2001 1229 ORDER by Magistrate Judge Leslie C. Smith resetting hrg on all issues relating to defts' mtn for protective order on 3/08/01 @ 12:00 pm in Albuquerque (cc: all counsel*) (jrm) (Entered: 02/08/2001)

02/28/2001 1230 MOTION NO.64 by defendants for partial disengagement (jrm) (Entered: 02/28/2001)

02/28/2001 1231 MOTION NO.65 by defendants for partial disengagement (jrm) (Entered: 02/28/2001)

02/28/2001 1232 MOTION NO.66 by defendants for partial disengagement (jrm) (Entered: 02/28/2001)

02/28/2001 1233 MOTION NO.67 by defendants for partial disengagement (jrm) (Entered: 02/28/2001)

02/28/2001 1234 MOTION NO.68 by defendants for partial disengagement (jrm) (Entered: 02/28/2001)

02/28/2001 1235 MEMORANDUM brief by defendants in support of mtns for partial disengagement [1234−1], [1233−1], [1232−1], [1231−1], [1230−1] (jrm) (Entered: 02/28/2001)

03/02/2001 1236 AFFIDAVIT of Elin Howe in support of defts' mtn for protective order, or in the alternative for dismissal and expedited consideration (jrm) (kg). (Entered: 03/02/2001)

03/07/2001 1237 THIRD ORDER by Magistrate Judge Leslie C. Smith resetting hrg on all of defts' mtns for protective order for 3/20/01 @ 12:00 pm in Albuquerque (cc: all counsel*) (jrm) (Entered: 03/07/2001)

03/08/2001 1238 ORDER by Chief Judge James A. Parker granting motion for partial disengagement and as further described herein [1233−1] (cc: all counsel*) (jrm) (Entered: 03/08/2001)

03/14/2001 1239 JOINT STIPULATION by parties on attachments to disengagement mtns 64−68 (jrm) (Entered: 03/14/2001)

03/15/2001 1240 MEMORANDUM by plaintiffs in opposition to mtns 64−68 for partial disengagement [1233−1] (jrm) (Entered: 03/15/2001)

03/20/2001 1241 CLERK'S MINUTES: hearing held before Magistrate Judge Leslie C. Smith re motion for protective order [1204−1]; Law Clerk: A Uberti−Molinari present for record taking C/R: Paul Baca (former employee) (Entered: 03/27/2001)

03/28/2001 1244 REPLY by defts to response to mtns (64−68) for partial disengagement [1234−1], [1233−1], [1232−1], [1231−1], [1230−1] (kd) (Entered: 03/30/2001)

03/29/2001 1242 MOTION No. 50 by defendants for order for partial disengagement (sl) (Entered: 03/29/2001)

03/29/2001 1243 MOTION No. 49 by defendants for order for partial disengagement (sl) (Entered: 03/29/2001)

03/30/2001 1246 ORDER by Chief Judge James A. Parker granting defts' motion no. 50 for partial disengagement, as further described herein [1242−1] (cc: all counsel*) (dmw) (Entered: 04/02/2001)

03/30/2001 1245 ORDER by Chief Judge James A. Parker granting defts' motion no. 49 for partial disengagement [1243−1] (cc: all counsel*) (dmw) (Entered: 04/02/2001)

04/02/2001

TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Leslie C. Smith held on 3/20/01; (re [1241−1] ) lodged in separate file folder (pg) (Entered: 04/02/2001)

04/03/2001 1247 STIPULATED ORDER by Chief Judge James A. Parker as described herein (cc: all counsel) (sl) (Entered: 04/03/2001)

04/09/2001

1248

PROTECTIVE ORDER by Magistrate Judge Leslie C. Smith that with the entry of this Protective Order, and the Court having previously ruled in open Court on the remaining aspects of it (Order, 9/7/00 [1224−1]); denying in all other respects the motion for protective order [1204−1] by Fort Stanton Hosp, Los Lunas Center (cc: all counsel*) (jrm) (Entered: 04/09/2001)

04/11/2001 1249 ENTRY OF APPEARANCE for defendant J Alex Valdez by Robert W Becker (jrm) (Entered: 04/11/2001)

04/12/2001 1251 CLERK'S MINUTES: mtns hrg held before Chief Judge James A. Parker [1234−1], [1232−1], [1231−1], [1230−1] C/R: Paul Baca (jrm) (kg). (Entered: 04/16/2001)

04/13/2001 1250 ORDER by Chief Judge James A. Parker granting in part and denying in part mtns for partial disengagement [1234−1], [1232−1], [1231−1], [1230−1] as described herein (cc: all counsel*) (jrm) (Entered: 04/16/2001)

04/18/2001 1252 MOTION by plaintiffs for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 (jrm) (kg). (Entered: 04/18/2001)

04/18/2001 1253 MEMORANDUM brief by plaintiffs in support of motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (jrm) (kg). (Entered: 04/18/2001)

04/18/2001 1254 AFFIDAVIT of Steven J Schwartz re: motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (jrm) (kg). (Entered: 04/18/2001)

04/18/2001 1255 AFFIDAVIT of Cathy E Costanzo re: motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (jrm) (kg). (Entered: 04/18/2001)

04/18/2001 1256 AFFIDAVIT of Colleen Miller re: motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (jrm) (kg). (Entered: 04/18/2001)

04/18/2001 1257 AFFIDAVIT of Peter Cubra re: motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (jrm) (kg). (Entered: 04/18/2001)

04/18/2001 1258 AFFIDAVIT of Ann T Sims re: motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (jrm) (kg). (Entered: 04/18/2001)

04/18/2001 1259 AFFIDAVIT of Philip B Davis re: motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (jrm) (kg). (Entered: 04/18/2001)

04/18/2001 1260 CERTIFICATE of service of affidavits of Steven Schwartz, Cathy Costanzo, Colleen Miller, Peter Cubra, Ann Sims and Philip Davis by plaintiffs to counsel on 4/18/01 (jrm) (kg). (Entered: 04/18/2001)

04/19/2001 1261 NOTICE by intervenor ARC of New Mexico of change of address (jrm) (Entered: 04/19/2001)

04/19/2001 1266 MOTION by defendants for leave to file NUNC PRO TUNC 4/19/01 objections to the protective order entered by Magistrate Judge Leslie C Smith on 4/9/01 and for reconsideration of the Order of 9/7/00 (jrm) Modified on 05/01/2001 (Entered: 05/01/2001)

04/19/2001 1267 MEMORANDUM brief by defendants in support of motion for leave to file NUNC PRO TUNC 4/19/01 objections to the protective order entered by Magistrate Judge Leslie C Smith on 4/9/01 [1266−1], of motion for reconsideration of the Order of 9/7/00 [1266−2] (jrm) (Entered: 05/01/2001)

04/19/2001 1268 MOTION by defendants for order re: objections to the protective order entered by Magistrate Judge Leslie C Smith on 4/9/01 and mtn for consideration of the Order of 9/7/00 (jrm) (Additional attachment(s) added on 10/1/2015: # 1 Exhibit A−F, # 2 Exhibit G−H, # 3 Exhibit I) (kg). (Entered: 05/01/2001)

04/19/2001 1269 BRIEF FILED by defendants in support of motion for order re: objections to the protective order entered by Magistrate Judge Leslie C Smith on 4/9/01 and mtn for consideration of the Order of 9/7/00 [1268−1] (jrm) (Entered: 05/01/2001)

04/24/2001 1262 MOTION No.53 by defendants for partial disengagement (jrm) (Additional attachment(s) added on 10/1/2015: # 1 motion) (kg). (Entered: 04/24/2001)

04/25/2001 1263 NOTICE by defendant Los Lunas Center of change of address (jrm) (Entered: 04/26/2001)

04/27/2001 1264 ORDER by Chief Judge James A. Parker granting defts' motion no. 53 for partial disengagement as further described herein [1262−1] (cc: all counsel) (jrm) (Entered: 04/27/2001)

04/30/2001

1265

ORDER by Chief Judge James A. Parker accepting defts' mtn for leave to file nunc pro tunc and granting defts' motion for leave to file NUNC PRO TUNC [1266−1]; and accepting for further briefing defts' objections and mtn to reconsider as further described herein (see Order for specifics) (cc: all counsel*) (jrm) (Entered: 05/01/2001)

05/14/2001 1270 ENTRY OF APPEARANCE for defendant J Alex Valdez by Robert W Becker (jrm) (Entered: 05/16/2001)

05/25/2001 1271 MOTION for by defts for an Extension until 6/29/01 to respond to pltfs' motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (mjr) (Additional attachment(s) added on 10/1/2015: # 1 Exhibit 1−4) (kg). (Entered: 05/25/2001)

05/25/2001

1272

(MEMORANDUM) BRIEF by plaintiffs in opposition to motion for order re: objections to the protective order entered by Judge Leslie C Smith on 4/9/01 and mtn for consideration of the Order of 9/7/00 [1268−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit 1−4, # 2 Exhibit 5, # 3 Exhibit 6) (kg). (Entered: 05/29/2001)

05/25/2001 1272 MOTION by plaintiffs for reconsideration of the Order of 9/7/00 (jrm) (Entered: 05/29/2001)

05/29/2001 1273 RESPONSE by plaintiffs to defts' mtn for an extension of time until 6/29/01 to respond to mtn for attorney fees and expenses for 12/2000 − 1/2001 in the amount of $43,943.60 (jrm) (Entered: 05/30/2001)

05/29/2001 1274 (MEMORANDUM) BRIEF by intervenor ARC of New Mexico in opposition to defts' motion for order re: objections to the protective order entered by Magistrate Judge Leslie C Smith on 4/9/01 and for consideration of the Order of 9/7/00 [1268−1] (jrm) (Entered: 05/30/2001)

06/01/2001 1275 ORDER by Chief Judge James A. Parker granting defts' mtn for an extension of time until 6/20/01 to respond to pltfs' mtn for attorneys fees and expenses for Dec 2000 − Jan 2001 in the amount of $43,943.60 as further described herein [1271−1] (cc: all counsel*) (jrm) (Entered: 06/04/2001)

06/06/2001 1276 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conferene set for 6/13/01 @ 1:30 pm in Las Cruces (cc: all counsel*) (jrm) (Entered: 06/06/2001)

06/12/2001 1277 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 6/13/01 is VACATED (cc: all counsel*) (jrm) (Entered: 06/12/2001)

06/12/2001 1278 ORDER by Magistrate Judge Leslie C. Smith setting a mediation conference regarding attorney fees for 7/10/01 @ 8:00 am in Albuquerque (cc: all counsel*) (jrm) (Entered: 06/12/2001)

06/20/2001 1279 RESPONSE by the state defts to motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (mjr) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit 1−8) (kg). (Entered: 06/20/2001)

07/02/2001

1280

REPLY by defendants to response to motion for reconsideration of the Order of 9/7/00 [1272−1], motion for order re: objections to the protective order entered by Magistrate Judge Leslie C Smith on 4/9/01 and mtn for consideration of the Order of 9/7/00 [1268−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit A−F) (kg). (Entered: 07/03/2001)

07/05/2001 1281 MOTION by plaintiffs to exceed page limitation on reply to response to motion for attorney's fees & expenses (dmw) (Entered: 07/06/2001)

07/06/2001 1282 MOTION by plaintiffs to strike portions of the affidavits of Bennett Cohn, Joseph Mulloy and Robert Becker (jrm) (Entered: 07/09/2001)

07/06/2001 1283 MEMORANDUM brief by plaintiffs in support of motion to strike portions of the affidavits of Bennett Cohn, Joseph Mulloy and Robert Becker [1282−1] (jrm) (Entered: 07/09/2001)

07/06/2001 1284 REPLY by plaintiffs to response to motion for attorney fees and expenses for December 2000 − January 2001 in the amount of $43,943.60 [1252−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit 1−4) (kg). (Entered: 07/09/2001)

07/09/2001 1285 ORDER by Chief Judge James A. Parker granting pltfs' unopposed motion to exceed page limitation on reply to response to motion for attorney's fees & expenses [1281−1]; reply not to exceed 16 pages (cc: all counsel) (jrm) (Entered: 07/09/2001)

07/10/2001 1286 CLERK'S MINUTES: hearing held before Magistrate Judge Leslie C. Smith re mediation re: attorney fees [1252−1]; Law Clerk: A Lyman present for record taking

C/R: none (former employee) (Entered: 07/11/2001)

08/07/2001

1287

MEMORANDUM, OPINION, AND ORDER: by Chief Judge James A. Parker overruling defts' motion for order re: objections to the protective order entered by Magistrate Judge Leslie C Smith on 4/9/01 and mtn for consideration of the Order of 9/7/00 [1268−1]; and denying motion for reconsideration of the Order of 9/7/00 [1266−2] by Fort Stanton Hosp, Los Lunas Center (cc: all counsel*) (jrm) (Entered: 08/07/2001)

08/22/2001 1288 ORDER by Magistrate Judge Leslie C. Smith setting arbitration pursuant to the attorney fees settlement agreement on 9/06/01 @ 1:30 pm in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 08/22/2001)

09/04/2001 1960 TRANSCRIPT OF PROCEEDINGS before Chief Judge James A. Parker held on 4/12/01; (re [1251−1] ) lodged in separate file folder (pg) (mr). (Entered: 09/04/2001)

09/05/2001 1289 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith Telephonic status conference held; Law Clerk: A Lyman present for record taking C/R: none (former employee) (Entered: 09/05/2001)

09/06/2001 1290 ORDER by Magistrate Judge Leslie C. Smith that the arbitration pursuant to the attorney fees settlement set for 9/6/01 @ 1:30 pm is vacated [1288−1] (cc: all counsel*) (jrm) (Entered: 09/06/2001)

09/06/2001 1291 NOTICE by plaintiffs of withdrawal of mtn for attorneys' fees and expenses for December 2000 − January 2001 (jrm) (Entered: 09/07/2001)

09/14/2001 1292 NOTICE by defendants of plan of action quarterly report (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Part 2 of 4, # 2 Part 3 of 4, # 3 Part 4 of 4) (kg). (Entered: 09/17/2001)

09/26/2001 1293 ORDER by Magistrate Judge Leslie C. Smith setting a telephonic hrg re: Baseball arbitration pursuant to the attorney fees settlement agreement on 10/23/01 @ 1:30 pm (cc: all counsel*) (jrm) (Entered: 09/26/2001)

09/28/2001 1294 ORDER by Magistrate Judge Leslie C. Smith resetting the telephonic Baseball arbitration hrg pursuant to the attorney fees settlement agreement for 10/23/01 @ 11:00 am (cc: all counsel*) (jrm) (Entered: 09/28/2001)

09/28/2001 1295 CERTIFICATE by defendants of service of discovery to counsel on 9/28/01 (eg) (Entered: 10/01/2001)

10/01/2001 1296 CERTIFICATE by defendants of service of 1st post judgment set of interrogs & requests for production of documents to counsel on 9/28/01 (eg) (Entered: 10/01/2001)

10/02/2001 1297 MOTION by plaintiffs to strike quarterly report (jrm) (Entered: 10/02/2001)

10/02/2001 1298 MEMORANDUM brief by plaintiffs in support of motion to strike quarterly report [1297−1] (jrm) (Entered: 10/02/2001)

10/11/2001 1299 RESPONSE by defendants to motion to strike quarterly report [1297−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit A−D) (kg). (Entered: 10/12/2001)

10/22/2001 1300 CERTIFICATE by defendants of service of 2nd post−judgment set of interrogs & request for production to counsel on 10/22/01 (eg) (Entered: 10/23/2001)

10/22/2001 2112 TRANSCRIPT OF PROCEEDINGS before Chief Judge James A. Parker held on 5/4/99; (re [1125−1] ) lodged in separate file folder (pg) (Additional attachment(s) added on 8/8/2016: # 1 Part 2) (kg). (Entered: 10/23/2001)

10/23/2001 1301 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith; telephonic baseball arbitration; Anne Lyman present for note taking (mk) (Entered: 10/24/2001)

10/25/2001 1302 UNOPPOSED MOTION by plaintiffs to extend time until 11/5/01 in which to reply to defts' response to mtn to strike quarterly report (jrm) (Entered: 10/25/2001)

10/30/2001 1303 AGREED ORDER by Chief Judge James A. Parker granting pltfs' unopposed motion to extend time until 11/5/01 in which to reply to defts' response to mtn to strike

quarterly report [1302−1] (cc: all counsel) (jrm) Modified on 10/30/2001 (Entered: 10/30/2001)
11/02/2001 1304 SECOND UNOPPOSED MOTION by plaintiffs to extend time until 11/12/01 in which to reply to defts' response to mtn to strike quarterly report (jrm) (Entered: 11/02/2001)
11/05/2001 1305 AGREED ORDER by Chief Judge James A. Parker granting pltfs' unopposed motion to extend time until 11/12/01 in which to reply to defts' response to mtn to strike quarterly report [1304−1] (cc: all counsel) (jrm) (Entered: 11/05/2001)
11/09/2001 1306 MOTION for Extension by plaintiff to reply to response to motion to strike quarterly report until 11/20/01 [1297−1] (dmw) (Entered: 11/09/2001)
11/14/2001 1307 MOTION NO. 69 by defts for partial disengagement (jrm) (Entered: 11/14/2001)
11/14/2001 1308 MEMORANDUM brief by defendants in support of motion no.69 for partial disengagement [1307−1] (jrm) (Entered: 11/14/2001)
11/14/2001 1309 AGREED ORDER by Chief Judge James A. Parker granting pltfs' unopposed mtn for an extension of time until 11/20/01 in which to reply to defts' response to mtn to strike quarterly report [1306−1] (cc: all counsel) (jrm) (Entered: 11/14/2001)
11/19/2001 1310 UNOPPOSED MOTION by plaintiffs to extend time until 11/27/01 in which to reply to defts' response to mtn to strike quarterly report (jrm) (Entered: 11/19/2001)
11/20/2001 1311 MOTION by intervenor to withdraw attorney Michael Sanchez (jrm) (Entered: 11/20/2001)
11/21/2001 1313 AGREED ORDER by Magistrate Judge Leslie C. Smith granting motion to extend time until 11/27/01 in which to reply to defts' response to mtn to strike quarterly report [1310−1] (cc: all counsel) (js) Modified on 11/21/2001 (Entered: 11/21/2001)
11/21/2001 1312 ORDER by Chief Judge James A. Parker that this Court's oversight of Joint Stipulation on Disengagement Plan of Action, Paragraph Nos. 30 to 37, concerning the Continuous Improvement of Community Services, be and is hereby terminated (cc: all counsel*) (kd) (Entered: 11/26/2001)
11/28/2001 1314 ORDER by Chief Judge James A. Parker granting motion to withdraw attorney Michael Sanchez for intervenors Donald and Marjorie Clingenpeel [1311−1] (cc: all counsel) (jrm) (Entered: 11/28/2001)
11/28/2001 1315 UNOPPOSED MOTION by plaintiffs to extend time until 12/3/01 in which to reply to defts response to mtn to strike quarterly report (jrm) (Entered: 11/29/2001)
11/29/2001 1316 AGREED ORDER by Chief Judge James A. Parker granting pltfs' unopposed motion to extend time until 12/3/01 in which to reply to defts response to mtn to strike quarterly report [1315−1] (cc: all counsel) (jrm) (Entered: 11/29/2001)
11/29/2001 1317 MOTION No. 70 by defendants for partial disengagement (jrm) (Entered: 11/30/2001)
11/29/2001 1318 MEMORANDUM brief by defendants in support of motion no. 70 for partial disengagement [1317−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Rescanned original document in color) (kg). (Entered: 11/30/2001)
11/29/2001 1319 MOTION No. 33 by defendants for partial disengagement (jrm) (Entered: 11/30/2001)
11/29/2001 1320 MOTION No. 8 by defendants for partial disengagement (jrm) (Entered: 11/30/2001)
11/29/2001 1321 JOINT MOTION by parties herein to (amend) modify the Court Order granting defts' mtn no. 69 for partial disengagement (jrm) (Entered: 11/30/2001)
11/30/2001 1322 AMENDED ORDER by Chief Judge James A. Parker amending and superseding the Order filed 11/21/01 as described herein [1312−1] (cc: all counsel*) (jrm) (Entered: 12/03/2001)
12/03/2001 1323 UNOPPOSED MOTION by plaintiffs to extend time until 12/7/01 in which to respond to defts' response to mtn to strike quarterly report (jrm) (Entered: 12/04/2001)

12/06/2001 1324 AGREED ORDER by Chief Judge James A. Parker granting pltfs' motion to extend time until 12/7/01 in which to respond to defts' response to mtn to strike quarterly report [1323−1] (cc: all counsel) (jrm) (Entered: 12/06/2001)
12/06/2001 1325 PLAN OF ACTION QUARTERLY REPORT by defendants (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Part 2 of 3, # 2 Part 3 of 3) (kg). (Entered: 12/06/2001)
12/06/2001 1326 ORDER by Chief Judge James A. Parker that this Court's oversight of the joint stipulation on disengagement's plan of action, appendix 7, behavioral sciences, desired outcome G, activities 1 thru 5, is hereby terminated [1319−1] (cc: all counsel*) (jrm) (Entered: 12/06/2001)
12/06/2001 1327 ORDER by Chief Judge James A. Parker that this Court's oversight of the joint stipulation on disengagement's plan of action, appendix 7, behavioral services, desired outcome C, activities 1 thru 5, is terminated [1320−1] (cc: all counsel*) (jrm) (Entered: 12/06/2001)
12/06/2001 1328 NOTICE by defendants of non−availability of attorney from 12/22/01 thru 1/01/02 (jrm) (Entered: 12/06/2001)
12/07/2001 1329 REPLY by plaintiff to response to motion to strike quarterly report [1297−1] (jrm) (Entered: 12/10/2001)
12/11/2001 1330 NOTICE by defendants of non−availability of attorney from 12/21/01 thru 1/02/02 (jrm) (Entered: 12/11/2001)
12/13/2001 1331 UNOPPOSED MOTION by plaintiffs to extend time until 12/28/01 in which to respond to defts' disengagement mtn no. 70 (jrm) (Entered: 12/13/2001)
12/20/2001 1332 ORDER by Chief Judge James A. Parker granting motion to extend time until 12/28/01 in which to respond to defts' disengagement mtn no. 70 [1331−1] (cc: all counsel) (jrm) (Entered: 12/20/2001)
12/26/2001 1333 CERTIFICATE of service of 3rd request for production by plaintiffs to counsel on 12/21/01 (jrm) (Entered: 12/26/2001)
12/28/2001 1334 RESPONSE in opposition by plaintiffs to motion no. 70 for partial disengagement [1317−1] (jrm) (Entered: 12/28/2001)
01/03/2002 1335 CERTIFICATE of service of 1st post judgment set of interrog(s) to deft NM Department of Health by plaintiffs to counsel on 12/31/01 (jrm) (Entered: 01/03/2002)
01/03/2002 1336 CERTIFICATE of service of 4th post judgment request for production by plaintiffs to counsel on 12/21/01 (jrm) (Entered: 01/03/2002)
01/08/2002 1337 CERTIFICATE by plaintiffs of service of response to 2nd post judgment set of request for production to counsel on 1/7/02 (eg) (Entered: 01/09/2002)
01/08/2002 1338 CERTIFICATE by plaintiffs of service of answers to 2nd post judgment set of interrogs to counsel on 1/7/02 (eg) (Entered: 01/09/2002)
01/08/2002 1339 CERTIFICATE by plaintiffs of service of response to 1st post judgment request for admissions to counsel on 1/7/02 (eg) (Entered: 01/09/2002)
01/08/2002 1340 CERTIFICATE by plaintiffs of service of answers to 1st post judgment set of interrogs to counsel on 1/7/02 (eg) (Entered: 01/09/2002)
01/08/2002 1341 CERTIFICATE by plaintiffs of service of response to 1st post judgment request for production to counsel on 1/7/02 (eg) (Entered: 01/09/2002)
01/09/2002 1342 NOTICE of hearing before Chief Judge James A Parker on motion no. 70 for partial disengagement [1317−1] and motion to strike quarterly report [1297−1] @ 9:00 am on 3/15/02 (cc: all counsel*) (jrm) (Entered: 01/09/2002)
01/14/2002 1343 UNOPPOSED MOTION by defendants to extend time until 1/31/02 in which to reply to pltfs' response to mtn no.70 for partial disengagement (jrm) (Entered: 01/14/2002)

01/14/2002 1345 CERTIFICATE by plaintiffs of service of 1st post judgment set of interrogs to counsel on 12/31/01 (mlk) (Entered: 01/15/2002)

01/15/2002 1344 ORDER by Chief Judge James A. Parker granting defts' unopposed motion to extend time until 1/31/02 in which to reply to pltfs' response to mtn no.70 for partial disengagement [1343−1] (cc: all counsel) (jrm) (Entered: 01/15/2002)

01/18/2002 1346 NOTICE by defendants of withdrawal w/out prejudice mtn no. 70 for partial disengagement (jrm) (Entered: 01/18/2002)

03/06/2002 1347 PLAN OF ACTION QUARTERLY REPORT by defendants (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Part 1 of 4, # 2 Part 2 of 4, # 3 Part 3 of 4, # 4 Part 4 of 4) (kg). (Entered: 03/06/2002)

03/12/2002 1348 MOTION NO 71 by defendants for partial disengagement (dmw) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit A−C, # 2 Exhibit D−G) (kg). (Entered: 03/12/2002)

03/12/2002 1349 MEMORANDUM by defendants in support of motion no 71 for partial disengagement [1348−1] (dmw) Modified on 04/05/2002 (Entered: 03/12/2002)

03/12/2002 1350 MOTION NO 72 by defendants for partial disengagement (dmw) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit A−D) (kg). (Entered: 03/12/2002)

03/12/2002 1351 MEMORANDUM by defendants in support of motion no 72 for partial disengagement [1350−1] (dmw) Modified on 04/05/2002 (Entered: 03/12/2002)

03/12/2002 1353 CERTIFICATE by defendants Alex Valdez, Robin Dozier Otten & Terry Brigance of service of motion for partial disengagement No. 71 & No. 72 & memorandum in support to counsel on 3/12/02 (eg) (Entered: 03/18/2002)

03/15/2002 1352 CLERK'S MINUTES: before Chief Judge James A. Parker motion to strike quarterly report [1297−1]; C/R: Paul Baca (jrm) Modified on 03/19/2002 (Entered: 03/15/2002)

03/20/2002 1354 ORDER by Chief Judge James A. Parker that the three quarterly reports filed by defts (1292, 1325 and 1347) will not be stricken, but pltfs may file responses to those three reports by 4/15/02 [1297−1] (cc: all counsel*) (jrm) (Entered: 03/20/2002)

03/28/2002 1355 RESPONSE in oppositon by plaintiffs to disengagement mtns nos. 71 and 72 for partial disengagement [1350−1], [1348−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit 1−2) (kg). (Entered: 03/28/2002)

04/10/2002 1356 MOTION by defendants to extend time until 4/18/02 in which to file and serve reply memo in support of disengagement mtn nos. 71 and 72 (jrm) (Entered: 04/10/2002)

04/15/2002

TRANSCRIPT OF PROCEEDINGS of motion hearing before Chief Judge James A. Parker held on 03/15/02; (re [1352−1] ) lodged in separate file folder (pg) (Entered: 04/15/2002)

04/15/2002 1357 UNOPPOSED MOTION by plaintiffs to extend time until 4/25/02 in which to respond to quarterly reports (jrm) (Entered: 04/16/2002)

04/16/2002 1358 ORDER by Chief Judge James A. Parker granting defts' motion to extend time until 4/18/02 in which to file and serve reply memo in support of disengagement mtn nos. 71 and 72 (cc: all counsel) (jrm) (Entered: 04/16/2002)

04/17/2002 1359 ORDER by Chief Judge James A. Parker granting pltfs' unopposed motion to extend time until 4/25/02 in which to respond to quarterly reports [1357−1] (cc: all counsel) (jrm) (Entered: 04/17/2002)

04/18/2002 1360 REPLY by defts to pltfs' initial response in opposition to partial disengagement mtns nos. 71 and 72 [1350−1], [1348−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit 1−3) (kg). (Entered: 04/18/2002)

04/25/2002 1361 RESPONSE by plaintiffs to defts' quarterly reports dated 9/14/01, 12/6/01 and 3/6/02 [1347−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit 1) (kg). (Entered: 04/25/2002)

05/17/2002 1362 ORDER by Chief Judge James A. Parker denying w/out prejudice mtns no. 72 [1350−1] and no. 71 for partial disengagement [1348−1] by J Alex Valdez, Fort

Stanton Hospital so that parties may comply w/the requirements set out in paragraph 44 of the joint stipulation of disengagement, doc# 1064 (cc: all counsel*) (jrm) (Entered: 05/17/2002)

06/14/2002

1363

NOTICE OF APPEAL by defendants J Alex Valdez, Secretary, NM Department of Health, Robin Dozier Otten, Secretary Designate, NM Human Services Department and Terry Brigance, Director, NM Vocational Rehabilitation Division from Dist. Court decision [1362−1] ; Fees not paid − Distribution as required. (cc: all counsel) (pg) (Entered: 06/17/2002)

06/27/2002

ACKNOWLEDGEMENT of receipt of preliminary record by USCA on 06/25/02 − USCA Number: 02−2165 (pg) (Entered: 06/27/2002)

07/02/2002

RECEIVED re appeal [1363−1] fee in amount of $ 105.00 ( Receipt # 100 123552) (notice sent to USCA) (pg) (Entered: 07/02/2002)

07/17/2002 1364 TRANSCRIPT Order Form (TOF) from Appellant. Transcript is not necessary for this appeal re [1363−1] (pg) (kg). (Entered: 07/18/2002)

07/18/2002

LETTER sent to USCA record complete transcript of proceedings not necessary for this appeal [1363−1] (pg) (Entered: 07/18/2002)

07/19/2002 1365 ORDER by Magistrate Judge Leslie C. Smith setting a settlement conference for 7/22/02 @ 12:30 pm in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 07/19/2002)

07/22/2002

SETTLEMENT CONFERENCE held before US Magistrate Judge Leslie C. Smith; settlement status not stated (js) (Entered: 07/23/2002)

07/23/2002 1366 ORDER by Magistrate Judge Leslie C. Smith setting a settlement conference for 8/26/02 @ 1:30 p.m., in Las Cruces, NM (cc: all counsel*) (pr) (Entered: 07/24/2002)

07/30/2002 1367 ORDER by Magistrate Judge Leslie C. Smith confirming the settlement conference set for 8/26/02 @ 1:30 pm in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 07/30/2002)

08/26/2002

SETTLEMENT CONFERENCE held before US Magistrate Judge Leslie C. Smith; case did not settle; Clerk/Anne Lyman (vd) (Entered: 09/04/2002)

09/13/2002 1368 PLAN OF ACTION QUARTERLY REPORT by defendants (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Part 1 of 5, # 2 Part 2 of 5, # 3 Part 3 of 5, # 4 Part 4 of 5, # 5 Part 5 of 5) (kg). (Entered: 09/13/2002)

09/20/2002 1369 MOTION by defendants for order pursuant to FRCP 60 & paragraph 49 of the joint stipulation on disengagement for partial relief from order approving joint stipulation on disengagement (jrm) (Entered: 09/23/2002)

09/20/2002 1370 MEMORANDUM of law by defendants in support of motion for order pursuant to FRCP 60 & paragraph 49 of the joint stipulation on disengagement for partial relief from order approving joint stipulation on disengagement [1369−1] (jrm) (Entered: 09/23/2002)

09/27/2002 1371 ORDER by Magistrate Judge Leslie C. Smith setting a settlement conference for 3/31/03 @ 1:30 pm in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 09/27/2002)

09/27/2002 1372 OBJECTIONS by plaintiffs to defts' May 2002 quarterly report [1368−1] (jrm) (Entered: 09/30/2002)

10/04/2002 1373 MOTION by defendants for partial relief from order approving joint stipulation on disengagement(doc.1064) based on a change in fact & law or in the alternative for partial satisfaction of remedial order upon which the joint stipulation on disengagement is premised (jrm) (Entered: 10/07/2002)

10/04/2002

1374

MEMORANDUM of law by defendants in support of motion for partial relief from order approving joint stipulation on disengagement(doc.1064) based on a change in fact & law [1373−1] or in the alternative, motion for partial satisfaction of remedial order upon which the joint stipulation on disengagement is premised [1373−2] (jrm) (Entered: 10/07/2002)

10/11/2002 1375 MOTION by defendants to substitute party Jack Callaghan for deft J Alex Valdez (jrm) (Entered: 10/11/2002)
10/11/2002 1376 MEMORANDUM by defendants in support of motion to substitute party Jack Callaghan for deft J Alex Valdez [1375−1] (jrm) (Entered: 10/11/2002)
10/30/2002 1377 ORDER by Chief Judge James A. Parker granting defts' motion to substitute party Jack Callaghan for deft J Alex Valdez [1375−1] terminating as to defendant J Alex Valdez substituting defendant Jack Callaghan (cc: all counsel) (jrm) (Entered: 10/30/2002)
11/08/2002 1378 NOTICE by defendants of withdrawal w/out prejudice of mtn & memo in support for relief from order approving joint stipulation on disengagement [1369−1], [137−1] (jrm) Modified on 11/12/2002 (Entered: 11/12/2002)
11/08/2002 1379 NOTICE by defendants of withdrawal w/out prejudice of mtn for partial relief from order approving joint stipulation on disengagement [1373−1], [137−1] (jrm) (Entered: 11/12/2002)
12/11/2002 1380 MOTION No. 73 by defendants for partial disengagement (jrm) (Entered: 12/11/2002)
12/11/2002 1381 MEMORANDUM brief by defendants in support of motion no. 73 for partial disengagement [1380−1] (jrm) (Entered: 12/11/2002)
12/13/2002 1382 ORDER by Chief Judge James A. Parker granting defts' motion no. 73 for partial disengagement as described herein [1380−1] (cc: all counsel) (jrm) (Entered: 12/13/2002)
12/13/2002 1383 NOTICE by defendants of non−availability of attorney from 12/20/02 thru 1/7/03 (jrm) (Entered: 12/13/2002)
12/17/2002 1384 AMENDED ORDER by Chief Judge James A. Parker as described herein [1382−1] (cc: all counsel*) (jrm) (Entered: 12/17/2002)
01/03/2003 1385 RESPONSE by intervenor ARC of New Mexico to defts' mtn no. 73 for partial disengagement [1380−1] (jrm) (Additional attachment(s) added on 7/8/2016: # 1 Highlighted Exhibit A−B) (kg). (Entered: 01/03/2003)
01/21/2003 1386 REPLY brief in support by defendants to response to mtn no. 73 for partial disengagement [1380−1] (jrm) (Additional attachment(s) added on 7/8/2016: # 1 Original Pleading with Highlighted Portions) (kg). (Entered: 01/21/2003)
02/10/2003 1387 FIRST STIPULATION on 1998 Audit recommendations by parties and approved by Chief Judge Parker as further described herein (bap) (Entered: 02/10/2003)
02/14/2003 1388 NOTICE by deft Los Lunas Center of withdrawal of attorney John H Clough (jrm) (Entered: 02/14/2003)
02/14/2003 1389 COPY of USCA Order: appellant's motion to dismiss is granted; each party shall bear its own costs; oral argument set for 02/10/03 is vacated. [1363−1] (pg) (Entered: 02/14/2003)
02/26/2003 1390 MEMORANDUM, OPINION, AND ORDER: by Chief Judge James A. Parker denying defts' mtn [1380−1] w/respect to paragraph 36, part (e) as it applies to the Southeast Region (cc: all counsel*) (jrm) (Entered: 02/26/2003)
03/10/2003 1391 NOTICE of withdrawal of Becky S. Jiron as counsel for pltfs (dmw) (Entered: 03/10/2003)
03/13/2003 1392 SUBSTITUTION OF COUNSEL: terminating attorney V Colleen Miller for Develop Disabled NM and substituting attorneys Sandra L Gomez & Beverly Ohline (jrm) (Entered: 03/14/2003)
03/24/2003 1393 CLERK'S MINUTES: telephonic status conference held before Magistrate Judge Leslie C. Smith Clerk: A Lyman (rlc) Modified on 03/25/2003 (Entered: 03/25/2003)
03/25/2003 1394 ORDER by Magistrate Judge Leslie C. Smith resetting the settlement conference for 6/30/03 @ 1:30 pm in Las Cruces, NM as further described herein (cc: all counsel*) (jrm) (Entered: 03/25/2003)

03/31/2003 1395 MOTION No. 30 by defts for partial disengagement (jrm) (Entered: 04/01/2003)

03/31/2003 1396 MEMORANDUM brief by defts in support of motion no. 30 for partial disengagement [1395−1] (jrm) (Entered: 04/01/2003)

04/02/2003 1397 ORDER by Chief Judge James A. Parker granting defts' motion no. 30 for partial disengagement as described herein [1395−1] (cc: all counsel) (jrm) (Entered: 04/02/2003)

06/13/2003 1398 ORDER by Magistrate Judge Leslie C. Smith that the settlement conference set for 6/30/03 @ 1:30 pm & continuing on 7/1/03 @ 8:30 am is now vacated (cc: all counsel*) (jrm) (Entered: 06/16/2003)

06/13/2003 1399 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith telephonic status conference held Clerk: A Lyman (rlc) (Entered: 06/17/2003)

08/13/2003 1400 NOTICE of unavailability of counsel from 9−12−03 through 9/21/03 by plaintiffs (emr) Modified on 08/14/2003 (Entered: 08/14/2003)

10/07/2003 1401 ENTRY OF APPEARANCE for defts Los Lunas Center & Fort Stanton Hospital by Susan Sullivan (jrm) (Entered: 10/07/2003)

10/09/2003 1402 ENTRY OF APPEARANCE (amended) for defendants (emr) (Entered: 10/10/2003)

10/20/2003 1403 ENTRY OF APPEARANCE for deft New Mexico Human Services Department by Paul R. Ritzma (mjr) (Entered: 10/21/2003)

10/27/2003 1404 MOTION by defts to vacate joint stipulation on disengagement pursuant to Rule 60(b) (jrm) (Entered: 10/28/2003)

10/27/2003 1405 MEMORANDUM by defts in support of motion to vacate joint stipulation on disengagement pursuant to Rule 60(b) [1404−1] (jrm) (Entered: 10/28/2003)

10/27/2003 1406 MOTION by defts to stay proceedings pending the United States Supreme Court decision in FREW v. HAWKINS (jrm) (Entered: 10/28/2003)

10/29/2003 1407 CLERK'S MINUTES: before Senior Judge James A. Parker re: hrg on recently filed mtns [1406−1], [1404−1] C/R: Paul Baca (jrm) (Entered: 10/29/2003)

10/31/2003

1408

ORDER by Senior Judge James A. Parker denying as prematurely filed w/out prejudice the mtns to stay proceedings pending the United States Supreme Court decision in FREW v. HAWKINS [1406−1] & mtn to vacate joint stipulation on disengagement pursuant to Rule 60(b) [1404−1] by New Mexico Human (cc: all counsel) (jrm) (Entered: 10/31/2003)

11/24/2003 1409 MOTION by defts to withdraw attorney Robert W Becker (jrm) (Entered: 11/25/2003)

12/02/2003 1410 ORDER by Senior Judge James A. Parker granting motion to withdraw attorney Robert W Becker [1409−1] for defts (cc: all counsel) (vv) (Entered: 12/02/2003)

03/31/2004 1411 NOTICE by pltfs of unavailability of counsel from 6/18/04 thru 7/9/04 (jrm) (Entered: 04/01/2004)

05/12/2004 1412 MOTION & supporting memo of law by pltfs for order to show cause & for further relief (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Exhibit 1−6, # 2 Exhibit 7−9) (kg). (Entered: 05/18/2004)

06/03/2004 1413 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 6/15/04 @ 12:10 pm (cc: all counsel*) (jrm) (Entered: 06/03/2004)

06/04/2004 1414 MOTION & memo of law in support by pltfs for order to reengage effective case management, desired outcome under the plan of action (jrm) (Entered: 06/04/2004)

06/09/2004 1415 ENTRY OF APPEARANCE for defts by Gregory L. Biehler, Josh A. Harris & Richard R Salazar Jr (jrm) (Entered: 06/09/2004)

06/09/2004 1416 RESPONSE by defts to motion for order to show cause & for further relief [1412−1] (*) (jrm) (Entered: 06/09/2004)

06/10/2004 1417 STIPULATED MOTION by defts to exceed page limitation for filing response to mtn to show cause (jrm) (Entered: 06/10/2004)
06/14/2004 1418 APPENDIX of exhibits to mtn for order to show cause & for further relief filed by defts [1412−1], [1416−1] (jrm) (Additional attachment(s) added on 10/2/2015: # 1 Part 2 of 2) (kg). (Entered: 06/15/2004)
06/15/2004 1424 CLERK'S MINUTES: status conference before Magistrate Judge Leslie C. Smith; settlement discussions set on 7/26/04 @ 9:00 a.m.; telephonic meeting w/Judge Smith set on 7/19/04 @ 3:00 p.m.; Law Clerk: J. Fritsch (yc) (Entered: 06/18/2004)
06/16/2004 1419 ORDER by Magistrate Judge Leslie C. Smith setting a settlement conference for 7/26/04 @ 9:30 am in Las Cruces, NM & as further described herein Telephonic Status conference set for 7/19/04 @ 3:00 pm (cc: all counsel*) (jrm) (Entered: 06/16/2004)
06/16/2004 1420 CERTIFICATE of service of 3rd post judgment interrog(s) & 3rd post judgment requests for production by defts to counsel on 6/16/04 (*) (jrm) (Entered: 06/17/2004)
06/17/2004 1421 CERTIFICATE of service of 5th post judgment request for production by pltfs to counsel on 6/16/04 (jrm) (Entered: 06/17/2004)
06/17/2004 1422 CERTIFICATE of service of ntc to take depos pursuant to Rule 30(B)(6) to the Long Term Services Division of the New Mexico Department of Health by pltfs to counsel on 6/16/04 (jrm) (Entered: 06/17/2004)
06/18/2004 1423 ORDER by Magistrate Judge Leslie C. Smith granting defts motion to exceed page limitation for filing response to mtn to cause [1417−1] (cc: all counsel) (yc) (Entered: 06/18/2004)
06/21/2004 1425 RESPONSE by defts to mtn for order to reengage effective case management, desired outcome under the plan of action [1414−1]* (pr) Modified on 06/22/2004 (Entered: 06/22/2004)
06/23/2004 1426 MOTION by defts to extend the time to respond to pltfs' 4th request for production untl 7/24/04 * (pr) (Entered: 06/24/2004)
06/24/2004 1427 CERTIFICATE of service by defendants of first set of interrogatories and request for production to counsel on 6/23/04 (sl) Modified on 07/12/2004 (Entered: 06/24/2004)
06/24/2004 1428 CERTIFICATE of service by defendants of fourth set of interrogatories and rquest for production to counsel on 6/23/04 (sl) (Entered: 06/24/2004)
06/24/2004 1429 APPENDIX filed by defendants to response [1425−1] (sl) (Entered: 06/24/2004)
06/24/2004 1430 CERTIFICATE of Service by defts of objections to pltfs' 4th request for production to counsel on 6/24/04* (pr) (Entered: 06/25/2004)
07/06/2004 1431 REPLY by pltfs to response to motion for order to show cause & for further relief [1412−1] (jrm) (Entered: 07/06/2004)
07/06/2004 1432 NOTICE by pltfs of completion of briefing on mtn for an order to show cause & for further relief (jrm) (Entered: 07/06/2004)
07/06/2004 1433 CERTIFICATE of service of reply to defts' response to mtn for an order to show cause & for further relief by pltfs to counsel on 7/6/04 (jrm) Modified on 07/12/2004 (Entered: 07/06/2004)
07/09/2004 1434 MOTION & memo of law in support by intervenor ARC of New Mexico for order to show cause & for further relief (jrm) (Entered: 07/09/2004)
07/12/2004 1435 REPLY by pltf to response to motion for order to reengage effective case management, desired outcome under the plan of action [1414−1] (jrm) (Entered: 07/12/2004)
07/12/2004 1436 NOTICE by pltfs of completion of briefing on mtn for an order to reengage effective case management, desired outcome A under the plan of action (jrm) (Entered: 07/12/2004)

07/16/2004 1437 CERTIFICATE of service of ntc to take depos pursuant to Rule 30(B)(6) to the Long Term Services Division of NM Department of Health by pltf to counsel on 7/12/04 (jrm) (Entered: 07/16/2004)
07/16/2004 1438 CERTIFICATE of service of 6th post judgment request for production by pltfs to counsel on 7/12/04 (jrm) (Entered: 07/16/2004)
07/23/2004 1439 RESPONSE by defts to ARC's motion for order to show cause & for further relief [1434−1] (*) (jrm) (Entered: 07/23/2004)
07/26/2004 1441 SETTLEMENT CONFERENCE held before Magistrate Judge Leslie C. Smith; case did not settle; mediation will continue on 9/10/04 (yc) (Entered: 07/30/2004)
07/28/2004 1440 ORDER by Magistrate Judge Leslie C. Smith: mediation to continue on 9/10/04 @ 9:00 am in Las Cruces, NM as further described herein (cc: all counsel*) (jrm) (Entered: 07/28/2004)
08/02/2004 1442 STIPULATED PROTECTIVE ORDER by Senior Judge James A. Parker as described herein (cc: all counsel) (jrm) (Entered: 08/02/2004)
08/16/2004 1443 NOTICE by intervenor ARC of New Mexico of completion of briefing on mtn for an order to show cause (jrm) (Entered: 08/16/2004)
08/16/2004 1444 ORDER by Magistrate Judge Leslie C. Smith vacating mediation set for 9−10−04 & resetting it for 9−22−04 @ 9:00 am in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 08/16/2004)
08/26/2004 1445 ORDER by Magistrate Judge Leslie C. Smith vacating the mediation set for 9/22/04; parties to meet in Albuquerque Status conference set for 9/24/04 @ 10:00 am (cc: all counsel*) (jrm) (Entered: 08/26/2004)
09/24/2004 1446 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 10/8/04 @ 10:45 am (cc: all counsel*) (jrm) (Entered: 09/24/2004)
10/13/2004 1447 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 11/8/04 @ 1:30 pm (cc: all counsel*) (jrm) (Entered: 10/14/2004)
10/15/2004 1448 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 11/4/04 @ 3:00 pm (cc: all counsel*) (jrm) (Entered: 10/15/2004)
11/04/2004 1450 CLERK'S MINUTES: Status Conference before Magistrate Judge Leslie C. Smith; Law Clerk: Julie Fritsch (yc) (Entered: 11/09/2004)
11/05/2004 1449 ORDER by Magistrate Judge Leslie C. Smith Telephonic status conference reset to 11/15/04 @ 2:30 pm in (cc: all counsel) (js) (Entered: 11/05/2004)
11/16/2004 1451 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 12/6/04 @ 1:30 pm (cc: all counsel*) (jrm) (Entered: 11/16/2004)
12/06/2004 1452 CLERK'S MINUTES: status conference before Magistrate Judge Leslie C. Smith; hrg on ntc of fairness to be set before District Judge Parker as further described herein; Law Clerk: Neera Chatterjee (yc) (Entered: 12/08/2004)
12/22/2004 1453 MEMORANDUM BRIEF FILED by pltfs in support of Order requiring Rule 23(e) notice to the Class & a fairness hearing in regard to the proposed settlement of pending motions to show cause & to re−engage (jrm) (Entered: 12/22/2004)
12/23/2004 1454 (BRIEF) MEMORANDUM of points & authorities by defts on issue of whether Rule 23(E) applies to Court's adoption of joint stipulation (*) (jrm) (Entered: 12/27/2004)
01/11/2005 1455 NOTICE of hearing before Senior Judge James A Parker Status conference set for 1/13/05 @ 9:00 am @ 421 Gold, Av., 6th Floor, Albuquerque (cc: all counsel*) (jrm) (Entered: 01/11/2005)
01/18/2005 1456 NOTICE of submission of proposed ntc to class members by parties herein (jrm) (Entered: 01/19/2005)
01/20/2005 1457 NOTICE of proposed settlement of pending mtns by Matthew J Dykman, Clerk of the Court (jrm) (Entered: 01/20/2005)

01/20/2005

1458

ORDER by Senior Judge James A. Parker that the Court approves the form of ntc provided by the parties to the Court on 1/18/05 & directs that defts send such ntc by regular mail to all members of the pltf class by 1/24/05 & defts shall certify to the Court & opposing counsel of record that they have done so. (cc: all counsel) (jrm) (Entered: 01/20/2005)

01/25/2005 1459 CERTIFICATION of service of a copy of the approved class ntc of settlement to 393 class members by defts on 1/24/05 (*) (jrm) (Entered: 01/25/2005)

02/02/2005 1460 MOTION by pltf for order shortening the time for defts to respond to pltfs' emergency mtn for order requiring defts to give ntc to persons whose class membership is disputed (jrm) (Entered: 02/02/2005)

02/02/2005 1461 EMERGENCY MOTION by pltfs for order requiring defts to give ntc to persons whose class membership is disputed (jrm) (Entered: 02/02/2005)

02/04/2005 1462 NOTICE by pltfs of withdrawal of mtn for order requiring defts to give ntc to persons whose class membership is disputed & mtn for order shortening time [1461−1], [1460−1] (jrm) (Entered: 02/04/2005)

02/04/2005 1463 CLERK'S MINUTES: status conference before Magistrate Judge Leslie C. Smith; Law Clerk: Julie Fritsch; C/R: Sally Rubino (yc) (Entered: 02/08/2005)

02/23/2005 1464 CERTIFICATION by defendants of service of class notice of proposed settlement of pending motions* (dmw) (Entered: 02/24/2005)

02/23/2005 1465 SUBSTITUTION OF COUNSEL: terminating atty Susan Sullivan & substituting atty Jennifer L. Stone for NM Dept of Health (td) (Entered: 02/25/2005)

03/07/2005 1466 ORDER by Magistrate Judge Leslie C. Smith approving the attached form of notice provided by the parties as further described herein; (cc: all counsel) (yc) (Entered: 03/08/2005)

04/12/2005 1467 NOTICE by plaintiff's counsel of non−availability from 4/29−5/27/05 (vv) (Entered: 04/12/2005)

05/09/2005 1468 MOTION by pltfs to enforce the joint stipulation on disengagement & for further remedial relief (jrm) (Entered: 05/10/2005)

05/11/2005 1469 CLERK'S MINUTES: before Senior Judge James A. Parker Telephonic Status confeence held C/R: Paul Baca (*) (seal) (Entered: 05/11/2005)

05/11/2005 1470 NOTICE of hearing before the Honorable James A Parker on pltfs' motion to enforce the joint stipulation on disengagement & for further remedial relief [1468−1] @ 9:30 am on 5/25/05 in Albuquerque (cc: all counsel*) (seal) (Entered: 05/11/2005)

05/18/2005 1471 NOTICE by pltfs of unavailability of counsel on 5/28/05 thru 6/6/05 (jrm) (Entered: 05/18/2005)

05/18/2005 1472 RESPONSE by defts to motion to enforce the joint stipulation on disengagement & for further remedial relief [1468−1] (attachments failed, atty to re−submit manually) (*) (jrm) Modified on 05/19/2005 (Entered: 05/18/2005)

05/20/2005 1473 JOINT STIPULATION by parties on agreed actions to comply w/joint stipulation on disengagement & plan of action & to resolve pending mtns to show cause & to re−engage (jrm) (Entered: 05/20/2005)

05/20/2005 1474 ORDER by Senior Judge James A. Parker adopting joint stipulation [1473−1], [1434−1], [1414−1], [1412−1] (cc: all counsel) (jrm) (Entered: 05/20/2005)

05/20/2005 1475 APPENDIX of exhibits filed by defts re: response to motion to enforce the joint stipulation on disengagement & for further remedial relief [1468−1] (jrm) (Entered: 05/20/2005)

05/23/2005 1476 REPLY by plaintiff to response to motion to enforce the joint stipulation on disengagement & for further remedial relief [1468−1] (vv) (Additional attachment(s) added on 7/8/2016: # 1 Rescan of Original Pleading, # 2 Highlighted Exhibit 1−3, # 3 Highlighted Exhibit 4−8) (kg). (Entered: 05/23/2005)

05/23/2005 1477 NOTICE by plaintiff of completion of briefing of mtn to enforce [1468−1] (vv) (Entered: 05/23/2005)
05/25/2005 1478 CLERK'S MINUTES: before Senior Judge James A. Parker motion to enforce the joint stipulation on disengagement & for further remedial relief [1468−1] ; hearing held − C/R: Paul Baca (*) (jrm) (Entered: 05/25/2005)
05/26/2005 1479 ORDER by Senior Judge James A. Parker granting pltfs' motion to enforce the joint stipulation on disengagement & for remedial relief [1468−1] (cc: all counsel*) (jrm) (Entered: 05/26/2005)
06/29/2005 1480 STIPULATED MOTION by defts to exceed page limitation for filing of defts' mtn & incorporated memo for disengagement of plan of action section: supported employment, desired outcome D (*) (jrm) (Entered: 06/29/2005)
06/29/2005 1481 MOTION & incorporated memo by defts for disengagement of plan of action section: supported employment, desired outcome D (jrm) (Additional attachment(s) added on 7/8/2016: # 1 Exhibit 1, # 2 Exhibit 2−7, # 3 Exhibit 8−12, # 4 Exhibit 13, # 5 Exhibit 14−17) (kg). (Entered: 06/29/2005)
07/01/2005 1482 ORDER by Senior Judge James A. Parker granting the stipulated motion to exceed page limitation for filing of defts' mtn & incorporated memo for disengagement of plan of action section: supported employment, desired outcome D [1480−1] (cc: all counsel) (jrm) (Entered: 07/01/2005)
07/01/2005 1483 CERTIFICATE of service of mtn & incorporated memo for disengagement of plan action section: supported employment, desired outcome D by defts to counsel on 6/30/05 (*) (jrm) Modified on 07/05/2005 (Entered: 07/01/2005)
07/13/2005 1484 ORDER OF THE COURT by Senior Judge James A. Parker granting the stipulated motion for disengagement of plan of action section: supported employment, desired outcome D [1481−1] (cc: all counsel) (jrm) (Entered: 07/13/2005)
07/13/2005 1485 NOTICE by plaintiff's counsel of unavailability from 7/15−8/1/05 (vv) (Entered: 07/13/2005)
10/07/2005 1486 NOTICE by defts of unavailability of counsel on the dates stated herein (jrm) (Entered: 10/11/2005)
10/07/2005 1487 SUBSTITUTION OF COUNSEL: terminating attorney Beverly Sorensen Ohline for Develop Disabled NM and substituting attorney Dennis Drucker (jrm) (Entered: 10/11/2005)
10/28/2005 1488 CERTIFICATE of service of 7th request for production by pltfs to counsel on 10/26/05 (jrm) (Entered: 10/31/2005)
11/28/2005 1489 NOTICE by plaintiffs' counsel of change of address (dmw) (Entered: 11/28/2005)
11/28/2005 1490 CERTIFICATE of service on response to pltf's 7th request for production of documents by defts to counsel on 11/28/05* (jm) (Entered: 11/29/2005)
12/19/2005 1491 MOTION by pltfs to compel production of documents sought in pltfs' 7th request for production of documents (jrm) (Entered: 12/20/2005)
12/19/2005 1492 MEMORANDUM brief by pltfs in support of motion to compel production of documents sought in pltfs' 7th request for production of documents [1491−1] (jrm) (Entered: 12/20/2005)
12/21/2005 1494 NOTICE by defts of non−availability of counsel on 12/19−26/05 (seal) (Entered: 12/22/2005)
12/22/2005 1493 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 1/3/06 @ 2:30 pm (cc: all counsel*) (seal) (Entered: 12/22/2005)
12/28/2005 1495 ORDER by Magistrate Judge Leslie C. Smith amending telephonic setting − status conference will be on Tuesday 1/3/06 (previous order said Monday) [1493−1] (cc: all counsel*) (jrm) (Entered: 12/28/2005)
12/28/2005 1496 JOINT STIPULATED MOTION by defts & pltfs to extend deadline until 1/13/06 for defts to respond to pltfs' mtn to compel (jrm) (Entered: 12/28/2005)

01/03/2006 1497 ORDER by Magistrate Judge Leslie C. Smith granting the joint stipulated motion to extend deadline until 1/13/06 for defts to respond to pltfs' mtn to compel [1496−1] (cc: all counsel) (yc) (Entered: 01/03/2006)
01/03/2006 1498 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith Telephonic Status conference held (*) (jrm) (Entered: 01/03/2006)
01/11/2006 1499 NOTICE by plaintiff's counsel of non−availability from 4/14−5/4/06 (vv) (Entered: 01/11/2006)
01/13/2006 1500 RESPONSE in opposition by defts to motion to compel production of documents sought in pltfs' 7th request for production of documents [1491−1] (*) (jrm) (Entered: 01/13/2006)
01/18/2006 1501 REPLY by pltfs to response in opposition to motion to compel production of documents sought in pltfs' 7th request for production of documents [1491−1] (jrm) (Entered: 01/18/2006)
01/30/2006 1502 ORDER by Magistrate Judge Leslie C. Smith denying motion to compel production of documents sought in pltfs' 7th request for production of documents [1491−1] by pltfs (cc: all counsel*) (jrm) (Entered: 01/30/2006)
02/09/2006 1503 NOTICE by plfts of unavailability of counsel on 3/27−31/06 (jrm) (Entered: 02/09/2006)
02/09/2006 1504 MOTION by pltfs for order re: objection to Magistrate's Order denying mtn to compel production (jrm) (Entered: 02/10/2006)
02/10/2006 1505 NOTICE by pltfs of non−availability of counsel on 4/14/06 thru 5/4/06 (jrm) (Entered: 02/10/2006)
02/22/2006 1506 RESPONSE by deft New Mexico Human to motion for order re: objection to Magistrate's Order denying mtn to compel production [1504−1] (*) (jrm) (Entered: 02/23/2006)
03/09/2006 1507 NOTICE by pltfs of completion of briefing on mtn for order re: objection to Magistrate's Order [1504−1] (jrm) (Entered: 03/09/2006)
03/17/2006 1508 CERTIFICATE by pltfs of Service of 8th request for production of documents to counsel on 03/17/06 (nc) (kg). (Entered: 03/20/2006)
04/19/2006 1509 CERTIFICATE of service of response to 8th request for production by defts to counsel on 4/19/06 (*) (jrm) Modified on 04/20/2006 (Entered: 04/19/2006)
04/27/2006 1510 ORDER by Senior Judge James A. Parker denying pltfs' motion for order re: objection to Magistrate's Order denying mtn to compel production [1504−1] & the rulings by Judge Smith set forth in his Memorandum, Opinion and Order are affirmed (cc: all counsel*) (jrm) (Entered: 04/27/2006)
05/19/2006 1511 ENTRY OF APPEARANCE AND SUBSTITUTION OF COUNSEL: terminating attorney Jennifer L. Stone for New Mexico Human and substituting attorney Judith E Reed (*) (jrm) (Entered: 05/19/2006)
05/19/2006 1512 NOTICE by defts of non−availability of counsel on 8/2−4/06 & 9/7−19/06 (*) (jrm) (Entered: 05/19/2006)
05/25/2006 1513 NOTICE of unavailability by pltf's counsel on 6/30/06 thru 7/24/06 (jrm) (Entered: 05/25/2006)
06/13/2006 1514 MOTION by pltfs to compel production of documents sought in pltfs' 8th request for production of documents to defts (jrm) (Entered: 06/14/2006)
06/13/2006 1515 MEMORANDUM brief by pltfs in support of motion to compel production of documents sought in pltfs' 8th request for production of documents to defts [1514−1] (jrm) (Additional attachment(s) added on 7/8/2016: # 1 Highlighted Exhibit 1−4) (kg). (Entered: 06/14/2006)
06/15/2006 1516 ORDER by Magistrate Judge Leslie C. Smith setting a telephonic hearing on pltfs' motion to compel production of documents sought in 8th request for production of documents to defts [1514−1] @ 2:30 PM on 7/17/06 (cc: all counsel*) (jrm) (Entered:

06/15/2006)

06/27/2006 1517 RESPONSE in opposition by defts to motion to compel production of documents sought in pltfs' 8th request for production of documents to defts [1514−1] (jrm) (Entered: 06/27/2006)

06/27/2006 1518 MEMORANDUM brief in support of opposition by defts to motion to compel production of documents sought in pltfs' 8th request for production of documents to defts [1514−1] (jrm) (Entered: 06/27/2006)

06/29/2006 1519 ORDER by Magistrate Judge Leslie C. Smith re−setting in person hearing on motion to compel production of documents sought in 8th request for production of documents to defts [1514−1] @ 2:00 PM on 8/8/06 in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 06/29/2006)

07/06/2006

1520

REPLY by pltfs to response to motion to compel production of documents sought in pltfs' 8th request for production of documents to defts [1514−1] (jrm) (Additional attachment(s) added on 7/8/2016: # 1 Exhibit 1 − Part 1 of 2, # 2 Exhibit 1 − Part 2 of 2, # 3 Exhibit 2, # 4 Exhibit 3 − Part 1 of 2, # 5 Exhibit 3 − Part 2 of 2) (kg). (Entered: 07/07/2006)

08/09/2006 1521 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith re: pltfs' motion to compel production of documents sought in pltfs' 8th request for production of documents to defts [1514−1] ; hearing held (*) (jrm) (Entered: 08/09/2006)

08/09/2006 1522 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 9/6/06 @ 11:00 AM (cc: all counsel*) (jrm) (Entered: 08/09/2006)

08/09/2006 1523 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 9/28/06 @ 11:00 AM (cc: all counsel*) (jrm) (Entered: 08/09/2006)

08/10/2006 1524 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference reset for 9/5/06 @ 11:00 AM (cc: all counsel*) (jrm) (Entered: 08/10/2006)

08/11/2006 1525 CORRECTED ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference reset for 9/5/06 @ 11:00 AM (cc: all counsel*) (jrm) (Entered: 08/11/2006)

08/31/2006 1526 ORDER by Magistrate Judge Leslie C. Smith denying pltfs' motion to compel production of documents sought in pltfs' 8th request for production of documents to defts [1514−1] (cc: all counsel*) (jrm) (Entered: 08/31/2006)

09/05/2006 1527 ORDER by Magistrate Judge Leslie C. Smith setting an in person conference on 10/6/06 @ 8:30 AM in Las Cruces, NM (cc: all counsel*) (seal) (Entered: 09/05/2006)

09/05/2006 1528 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith Telephonic Status conference held (*) (jrm) (Entered: 09/06/2006)

09/07/2006 1529 ORDER by Magistrate Judge Leslie C. Smith vacating the telephonic status conference set for 9/28/06 (cc: all counsel*) (jrm) (Entered: 09/07/2006)

10/10/2006 1530 ORDER by Magistrate Judge Leslie C. Smith In−Person Status conference reset for 12/13/06 @ 1:30 PM in Las Cruces, NM & a telephonic status conference is set for 11/21/06 @ 9:00 AM (cc: all counsel*) (jrm) (Entered: 10/11/2006)

11/13/2006 1531 NOTICE by pltfs of non−availability of counsel on 12/11−22/06 (jrm) (Entered: 11/14/2006)

11/15/2006 1532 ORDER by Magistrate Judge Leslie C. Smith rescheduling the In−Person Status Conference In−Person Status conference set for 12/13/06 @ 1:30 PM in Albuquerque, NM (cc: all counsel*) (jrm) (Entered: 11/15/2006)

11/21/2006 1533 CLERK'S MINUTES: from 11/21/06 status conference before Magistrate Judge Leslie C. Smith (*) (jrm) (Entered: 11/21/2006)

12/08/2006 1534 MOTION by pltfs for attorney fees & expenses for July−September 2006 (jrm) Modified on 12/13/2006 (Entered: 12/11/2006)

12/08/2006 1535 MEMORANDUM brief by pltfs in support of motion for attorney fees & expenses for July−September 2006 [1534−1] (jrm) Modified on 12/13/2006 (Entered: 12/11/2006)

12/08/2006 1536 AFFIDAVIT of Peter Cubra (jrm) (Entered: 12/11/2006)

12/08/2006 1537 AFFIDAVIT of Nancy Koenigsberg (jrm) (Entered: 12/11/2006)

12/08/2006 1538 AFFIDAVIT of Philip B Davis (jrm) (Entered: 12/11/2006)

12/08/2006 1539 AFFIDAVIT of Ann T. Sims (jrm) (Entered: 12/11/2006)

12/08/2006 1540 DECLARATION of Steven J. Schwartz (jrm) (Entered: 12/11/2006)

12/08/2006 1541 CERTIFICATE of service of affidavits & declaration by pltfs to counsel on 12/8/06 (jrm) (Entered: 12/11/2006)

12/15/2006 1542 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith Status conference held 12−14−06 (*) (jrm) (Entered: 12/15/2006)

12/19/2006 1543 ORDER by Magistrate Judge Leslie C. Smith Tele−Status conference set for 1/16/07 @ 3:30 PM (cc: all counsel*) (jrm) (Entered: 12/19/2006)

12/19/2006 1544 ORDER by Magistrate Judge Leslie C. Smith setting an in−person quarterly meeting in Albuquerque on 4/4/07 @ 8:30 AM (cc: all counsel*) (jrm) (Entered: 12/19/2006)

12/19/2006

Set/Reset Hearings: Telephonic Status Conference set for 1/16/2007 03:30 PM in Las Cruces − Judge Leslie C. Smith Chambers before Leslie C. Smith. (DM) (Entered: 01/04/2007)

12/19/2006

Set/Reset Hearings: Status Conference (quarterly meeting) set for 4/4/2007 08:30 AM in Albuquerque − 340 Pecos Courtroom before Leslie C. Smith. (DM) (Entered: 01/04/2007)

12/22/2006 1545 CERTIFICATE by defendant of service of motion for attorney's fee and expenses and brief in support of their opposition to counsel on 12/22/06 (eh) Modified on 12/29/2006 (Entered: 12/22/2006)

12/22/2006 1546 RESPONSE in opposition by defts to motion for attorney fees & expenses for July−September 2006 [1534−1] & request that the Court impose clearguidelines for the paymentof atty fees (jrm) (Entered: 12/26/2006)

12/22/2006 1547 BRIEF FILED by defts in support of response in opposition to motion for atty fees & expenses for July−September 2006 [1534−1] & request that the the Court impose clear guidelines for the payment of atty fees (jrm) (Additional attachment(s) added on 7/8/2016: # 1 Exhibit A−E) (kg). (Entered: 12/26/2006)

12/26/2006 1548 NOTICE of hearing before Senior Judge James A Parker Status conference set for 1/31/07 @ 12:00 PM in Albuquerque (cc: all counsel*) (seal) (Entered: 12/26/2006)

12/27/2006 1549 ORDER by Magistrate Judge Leslie C. Smith setting an In−Person settlement conference on pltfs' motion for attorney fees & expenses for July−September 2006 [1534−1] @ 1:30 PM on 2/6/07 in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 12/28/2006)

01/04/2007 1550 Unopposed MOTION for Leave to File Excess Pages Re Reply to Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Expenses by Walter Stephen Jackson. (Davis, Philip) (Entered: 01/04/2007)

01/05/2007 1551 Unopposed MOTION to Vacate and Reset Settlement Conference by Walter Stephen Jackson. (Davis, Philip) (Entered: 01/05/2007)

01/08/2007 1552 ORDER by Judge Leslie C. Smith granting 1550 Motion for Leave to File Excess Pages (dm) (Entered: 01/08/2007)

01/08/2007 1553 ORDER by Judge Leslie C. Smith granting 1551 Motion to Vacate, hearing is reset for 2/22/07 at 1:30 (dm) (Entered: 01/08/2007)

01/08/2007

Set/Reset Hearings: Settlement Conference on Motion for Atttorneys' Fees set for 2/22/2007 01:30 PM in Las Cruces − Judge Leslie C. Smith Courtroom before Leslie C. Smith. (2/6/07 setting is vacated) (dm) (Entered: 01/08/2007)

01/08/2007 1554 REPLY to Response to Motion for Attorneys' Fees and Expenses [1534−1] filed by Walter Stephen Jackson. (Attachments: # 1 Affidavit Supplemental Affidavit of Peter Cubra)(Davis, Philip) Modified on 1/9/2007 (document linkage) (jrm) (Entered: 01/08/2007)

01/08/2007 1555 NOTICE by Walter Stephen Jackson of Completion of Briefing on Plaintiffs' Motion for Attorneys' Fees and Expenses [1534−1] (Davis, Philip) Modified on 1/9/2007 (document linkage) (jrm) (Entered: 01/08/2007)

01/08/2007

Telephone Status Conference set for 1/16/2007 at 03:30 PM in Las Cruces − Judge Leslie C. Smith Chambers. (CB) (Entered: 01/08/2007)

01/16/2007 1556 NOTICE by defts of Non−availability of counsel (Reed, Judith) on 2/12−13/07 Modified on 1/17/2007 (modify docket text) (jrm) (Entered: 01/16/2007)

01/17/2007 1557 Clerk's Minutes for proceedings held before Judge Leslie C. Smith : Status Conference held on 1/17/2007. (Court Reporter Sally Rubino.) (dm) (Entered: 01/17/2007)

01/23/2007

Set/Reset Hearings: Status Conference set for 1/31/2007 12:00 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 01/23/2007)

01/31/2007 1558 ORDER re: production of documents by Judge Leslie C. Smith (dm) (Entered: 01/31/2007)

01/31/2007 1559 Clerk's Minutes for proceedings held before Judge James A. Parker : Status Conference held on 1/31/2007. (Court Reporter John de la Rosa.) (Baca, Chris) (Entered: 01/31/2007)

02/23/2007 1560 ORDER by Judge Leslie C. Smith Telephonic Status Conference set for 3/13/2007 01:30 PM in Las Cruces − Judge Leslie C. Smith Chambers before Magistrate Judge Leslie C. Smith. (dm) (Entered: 02/23/2007)

02/27/2007 1561 MOTION for Leave to File by Los Lunas Center for Persons with Developmental Disabilities. (Reed, Judith) (Entered: 02/27/2007)

02/27/2007 1562 Proposed Pretrial Order Proposed Leave to Amend Order by Los Lunas Center for Persons with Developmental Disabilities. (Reed, Judith) (Entered: 02/27/2007)

02/27/2007 1563 RESPONSE in Opposition Amendment to Response filed by Los Lunas Center for Persons with Developmental Disabilities. (Reed, Judith) (Entered: 02/27/2007)

02/27/2007 1564 CERTIFICATE OF SERVICE by Los Lunas Center for Persons with Developmental Disabilities re 1562 Proposed Pretrial Order, 1563 Response in Opposition to Motion, 1561 MOTION for Leave to File to counsel on 2/27/07 (Reed, Judith) Modified on 2/28/2007 (modify text) (Entered: 02/27/2007)

03/05/2007 1565 ORDER revising order entered on 12/19/06 re: quarterly meeting. by Judge Leslie C. Smith (dm) (Entered: 03/05/2007)

03/06/2007 1566 RESPONSE to Motion re 1561 MOTION for Leave to File Amended Opposition to Plaintiffs' Motion for Attorneys' Fees and Expenses filed by Walter Stephen Jackson. (Davis, Philip) (Entered: 03/06/2007)

03/08/2007 1567 REPLY to Response to Motion re 1561 MOTION for Leave to File filed by Fort Stanton Hospital and Training School. (Reed, Judith) (Entered: 03/08/2007)

03/08/2007 1568 NOTICE of Briefing Complete by Fort Stanton Hospital and Training School re 1561 MOTION for Leave to File filed by Los Lunas Center for Persons with Developmental Disabilities (Reed, Judith) (Entered: 03/08/2007)

03/12/2007 1569 NOTICE by Fort Stanton Hospital and Training School of Non−availability of counsel on 3/29/07, 4/17/07, 4/19/07 & 5/7/07 (Reed, Judith) Modified on 3/13/2007 (modify text) (Entered: 03/12/2007)

03/13/2007 1570 Clerk's Minutes for proceedings held before Judge Leslie C. Smith : In Camera Hearing held on 3/13/2007. (Court Reporter Jan Gibson.) (dkm) (Entered: 03/13/2007)

03/14/2007

TRANSCRIPT of Proceedings held before Judge Smith on March 13, 2007 (pg) (Entered: 03/14/2007)

03/14/2007 1571 ORDER re: documents produced for in camera inspection. by Judge Leslie C. Smith (dkm) (Entered: 03/14/2007)

03/19/2007 1572 NOTICE by Fort Stanton Hospital and Training School of Non−availability of counsel on 4/20/07 (Reed, Judith) Modified on 3/20/2007 (modify text) (Entered: 03/19/2007)

04/05/2007 1573 Clerk's Minutes for quarterly meeting held before Judge Leslie C. Smith : Status Conference held on 4/5/2007. (Court Reporter n/a.) (dkm) (Entered: 04/05/2007)

04/05/2007 1574 ORDER by Judge Leslie C. Smith In person quarterly meeting set for 6/5/2007 11:00 AM before Magistrate Judge Leslie C. Smith. Courtroom will be announced at a later date.Parties are to submit certain materials to Judge Smith as described in this order.(dkm) (Entered: 04/05/2007)

04/26/2007 1575 NOTICE by Walter Stephen Jackson of Non−Availability of Counsel on 7/24/07 through 8/15/07 (Davis, Philip) Modified on 4/27/2007 (modify text) (Entered: 04/26/2007)

05/02/2007 1576 Consent MOTION to Withdraw as Attorney by Los Lunas Center for Persons with Developmental Disabilities. (Reed, Judith) (Entered: 05/02/2007)

05/02/2007 1577 CERTIFICATE OF SERVICE by Los Lunas Center for Persons with Developmental Disabilities re 1576 Consent MOTION to Withdraw as Attorney to counsel on 5/2/07 (Reed, Judith) Modified on 5/3/2007 (modify text) (Entered: 05/02/2007)

05/04/2007 1578 ORDER by Judge James A. Parker granting 1576 Motion to Withdraw as Attorney. Attorney Judith E Reed terminated (dm) (Entered: 05/04/2007)

05/11/2007 1579 MOTION for Attorney Fees and Expenses for October − December 2006 by Walter Stephen Jackson. (Attachments: # 1 Affidavit of Philip B. Davis)(Davis, Philip) (Entered: 05/11/2007)

05/11/2007

1580

MEMORANDUM in Support re 1579 MOTION for Attorney Fees and Expenses for October − December 2006 filed by Walter Stephen Jackson. (Attachments: # 1 Exhibit 1, part 1# 2 Exhibit 1, part 2# 3 Exhibit 1, part 3# 4 Exhibit 2, part 1# 5 Exhibit 2, part 2# 6 Exhibit 2, part 3# 7 Exhibit 2, part 4# 8 Exhibit 3, part 1# 9 Exhibit 3, part 2# 10 Exhibit 3, part 3# 11 Exhibit 3, part 4)(Davis, Philip) (Entered: 05/11/2007)

05/18/2007 1581 NOTICE of Appearance by Kathyleen M Kunkel on behalf of all defendants (Kunkel, Kathyleen) (Entered: 05/18/2007)

05/22/2007 1582 REVISED CONFIDENTIALITY ORDER by Judge James A. Parker as described herein (jrm) (Entered: 05/22/2007)

05/24/2007 1583 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 1580 Memorandum in Support, 1579 Motion for Attorney Fees by all plaintiffs (Davis, Philip) (Entered: 05/24/2007)

05/24/2007 1584 ORDER by Judge James A. Parker granting 1534 Motion for Attorney Fees; granting 1561 Motion for Leave to File (cjb) (Entered: 05/24/2007)

06/29/2007 1585 NOTICE of Appearance by Jerry A. Walz on behalf of Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department (Walz, Jerry) (Entered: 06/29/2007)

07/06/2007 1586 TRANSCRIPT of Status Conferencce Proceedings held on January 31, 2007 before Judge James A. Parker. Court Reporter: J. DeLaRosa. (pg) (Additional attachment(s) added on 10/13/2015: # 1 Part 2 of 2) (kg). (Entered: 07/10/2007)

08/10/2007

1587

NOTICE by pltfs Stanfield, Gonzales, McHenry, Shirley, Fritche, Young, Crockett, Armenta, Van Curen, Walker, Jackson, Lautenschlager, Thomas, Developmentally Disabled New Mexicans, Inc, Supporters of, Nunez,Fuller, Tsosie, Nowak, Willmon, Martinez and Heath of Unavailability from 9/28/2007 through 10/21/2007 (Cubra, Peter) Modified on 8/16/2007 to add dates(pmr). (Entered: 08/10/2007)

08/23/2007 1588 NOTICE of Hearing: Status Conference set for 9/14/2007 10:00 AM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 08/23/2007)

09/06/2007

1589

STIPULATION to Allow Plaintiffs to Exceed Page Limits for their Motion for Further Remedial Relief to Address the Defendants' Noncompliance by Richard Stanfield, Joseph Gonzales, Sean McHenry, Alfred Shirley, James Fritche, Betty Young, Roseann Crockett, Andre Armenta, Kelli Van Curen, Lacey Walker, Walter Stephen Jackson, Kim Lautenschlager, William Thomas, Developmentally Disabled New Mexicans, Inc, Supporters of, Steve Nunez, Ron Fuller, Mildred Tsosie, Mary Katherine Nowak, Lillian Willmon, Andra Martinez, Clinton Heath, Shawn Heath (Cubra, Peter) (Entered: 09/06/2007)

09/06/2007

1590

MOTION to Enforce Settlement Plaintiffs' Motion for Further Remedial Relief to Address the Defendants' Noncompliance by Richard Stanfield, Joseph Gonzales, Sean McHenry, Alfred Shirley, James Fritche, Betty Young, Roseann Crockett, Andre Armenta, Kelli Van Curen, Lacey Walker, Walter Stephen Jackson, Kim Lautenschlager, William Thomas, Developmentally Disabled New Mexicans, Inc, Supporters of, Steve Nunez, Ron Fuller, Mildred Tsosie, Mary Katherine Nowak, Lillian Willmon, Andra Martinez, Clinton Heath, Shawn Heath. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Cubra, Peter) (Entered: 09/06/2007)

09/11/2007 1591 ORDER to Set Telephonic Settlement Conference by Judge Leslie C. Smith (mb) Modified on 9/11/2007 (Murphy, Joe). "DOCUMENT FILED IN ERROR" (Entered: 09/11/2007)

09/19/2007 1592 ORDER by Judge Leslie C. Smith Status Conference set for 9/20/2007 02:30 PM before Magistrate Judge Leslie C. Smith. (mb) (Entered: 09/19/2007)

09/20/2007 1593 Clerk's Minutes for Status Confernece held before Judge Leslie C. Smith on 9/20/2007. (mb) Modified on 10/3/2007 to correct actual date (cbe). (Entered: 09/24/2007)

09/24/2007 1594 ORDER by Judge Leslie C. Smith (mb) (Entered: 09/24/2007)

10/04/2007

1595

CERTIFICATE OF SERVICE by Richard Stanfield, Joseph Gonzales, Sean McHenry, Alfred Shirley, James Fritche, Betty Young, Roseann Crockett, Andre Armenta, Kelli Van Curen, Lacey Walker, Walter Stephen Jackson, Kim Lautenschlager, William Thomas, Developmentally Disabled New Mexicans, Inc, Supporters of, Steve Nunez, Ron Fuller, Mildred Tsosie, Mary Katherine Nowak, Lillian Willmon, Andra Martinez, Clinton Heath, Shawn Heath of Plaintiffs' Ninth Post−Judgment Request for Production of Documents to Defendants (Cubra, Peter) (Entered: 10/04/2007)

10/08/2007

1596

RESPONSE in Opposition re 1590 MOTION to Enforce Settlement Plaintiffs' Motion for Further Remedial Relief to Address the Defendants' Noncompliance filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E)(Walz, Jerry) (Entered: 10/08/2007)

10/08/2007 1597 STIPULATION re 1596 Response in Opposition to Motion, to Exceed Page Limit by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department (Walz, Jerry) (Entered: 10/08/2007)

10/22/2007 1598 ORDER TO SHOW CAUSE by Judge Leslie C. Smith. Show Cause Response due by 11/9/2007. Hearing set for 11/19/2007 01:30 PM before Magistrate Judge Leslie C. Smith. (mb) (Entered: 10/22/2007)

10/22/2007

1599

REPLY to Response to Motion re 1590 MOTION to Enforce Settlement Plaintiffs' Motion for Further Remedial Relief to Address the Defendants' Noncompliance filed by Richard Stanfield, Joseph Gonzales, Sean McHenry, Alfred Shirley, James Fritche, Betty Young, Roseann Crockett, Andre Armenta, Kelli Van Curen, Lacey Walker, Walter Stephen Jackson, Kim Lautenschlager, William Thomas, Developmentally Disabled New Mexicans, Inc, Supporters of, John E Young, ARC of New Mexico, Josephine Rutar, Charles E Woodhouse, Steve Nunez, Frank Terrazas, Mary Terrazas,

Ava Peets, Ron Fuller, Mildred Tsosie, Mary Katherine Nowak, Lillian Willmon, Andra Martinez, Clinton Heath, Shawn Heath. (Attachments: # 1 Exhibit Arnold Order# 2 Exhibit Plaintiffs' Redline Edits)(Costanzo, Cathy) (Entered: 10/22/2007)

10/29/2007 1600 Clerk's Minutes for status conference held before Judge Leslie C. Smith on 10/29/2007. (mb) (Entered: 10/29/2007)

11/08/2007

1601

RESPONSE re 1598 Order to Show Cause filed by Richard Stanfield, Joseph Gonzales, Sean McHenry, Alfred Shirley, James Fritche, Betty Young, Roseann Crockett, Andre Armenta, Kelli Van Curen, Lacey Walker, Walter Stephen Jackson, Kim Lautenschlager, William Thomas, Steve Nunez, Ron Fuller, Mildred Tsosie, Mary Katherine Nowak, Lillian Willmon, Andra Martinez, Clinton Heath, Shawn Heath. (Attachments: # 1 Revised Order of Appointment)(Schwartz, Steven) (Entered: 11/08/2007)

11/08/2007 1602 Unopposed MOTION to Vacate and Reschedule November 19, 2007 Hearing by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department. (Walz, Jerry) (Entered: 11/08/2007)

11/09/2007 1603 Defendants' RESPONSE to the Order to Show Cause re 1598 Order to Show Cause filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department. (Attachments: # 1 Exhibit Exhibit A)(Walz, Jerry) (Entered: 11/09/2007)

11/13/2007 1604 ORDER resetting November 19, 2007 telephonic hearing for November 26, 2007 by Judge Leslie C. Smith (mb) (Entered: 11/13/2007)

11/13/2007 1605 Unopposed MOTION for Order for Partial Disengagement by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Walz, Jerry) (Entered: 11/13/2007)

11/16/2007 1606 ORDER by Judge James A. Parker granting 1605 ORDER on Motion for Order (dm) (Entered: 11/16/2007)

11/19/2007

1607

CERTIFICATE OF SERVICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department for Defendants' Responses to Plaintiffs' Ninth Post−Judgment Request for Production to counsel on 11/19/07 (Walz, Jerry) Modified on 11/20/2007 (Murphy, Joe). (Entered: 11/19/2007)

11/26/2007 1608 Clerk's Minutes for telephonic status conference held before Judge Leslie C. Smith on 11/26/2007. (mb) (Entered: 12/03/2007)

11/28/2007

Set Hearings: Status Conference set for 12/18/2007 10:00 AM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 11/28/2007)

12/19/2007 1609 Clerk's Minutes for proceedings held before Judge James A. Parker : Status Conference held on 12/19/2007. (Court Reporter John de la Rosa.) (cjb) (Entered: 12/19/2007)

12/21/2007 1610 ORDER APPOINTING RULE 706 EXPERT by Judge James A. Parker (dm) (Entered: 12/21/2007)

01/03/2008 1611 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 1590 Motion to Enforce Settlement,, by all plaintiffs (Davis, Philip) (Entered: 01/03/2008)

01/04/2008 1612 ORDER by Judge Leslie C. Smith setting Status Conference for 1/24/2008 10:30 AM before Magistrate Judge Leslie C. Smith. (mb) (Entered: 01/04/2008)

01/24/2008 1613 FILED IN ERROR − Clerk's Minutes for Status Conference held before Judge Leslie C. Smith : Status Conference held on 1/24/2008. (mb) Modified to add error text on 1/24/2008 (rh) (Entered: 01/24/2008)

01/24/2008

FILED IN ERROR − Status Conference set for 2/14/2008 01:30 PM before Magistrate Judge Leslie C. Smith. (mb) Modified to add error text on 1/24/2008 (rh) (Entered: 01/24/2008)

01/24/2008 1614 ORDER by Judge Leslie C. Smith Status Conference set for 2/14/2008 01:30 PM before Magistrate Judge Leslie C. Smith. (mb) (Entered: 01/24/2008)

01/29/2008 1615 NOTICE by Walter Stephen Jackson of Non−Availability of Co−Counsel Philip B. Davis on 5/1−21/08 (Davis, Philip) Modified on 1/30/2008 (Murphy, Joe). (Entered: 01/29/2008)

02/04/2008 1616 Joint MOTION for Order Approving Rule 706 Expert's Budget for January − March 2008 by Walter Stephen Jackson. (Attachments: # 1 Exhibit Rule 706 Expert's Budget for 1−3.08)(Davis, Philip) (Entered: 02/04/2008)

02/06/2008 1617 ORDER by Judge James A. Parker granting 1616 Joint Motion to Approve Budget for Rule 706 Expert for January 1−March 30, 2008. (dm) (Entered: 02/06/2008)

02/06/2008 1618 Joint MOTION for Order , Supplemental, on Rule 706 Expert's Compensation and Payment by Walter Stephen Jackson. (Davis, Philip) (Entered: 02/06/2008)

02/12/2008 1619 ORDER by Judge James A. Parker granting 1618 Joint Motion for Suppl. Order on Rule 706 Expert's Compensation and Payment. (dm) (Entered: 02/12/2008)

02/13/2008 1620 ORDER Vacating Status Conference Set 2/14/08 by Judge Leslie C. Smith (mb) (Entered: 02/13/2008)

03/11/2008 1621 ORDER OF REFERENCE SUA SPONTE REFERRING CASE to Magistrate Judge Karen B. Molzen as co−referral Judge along w/Magistrate Judge Leslie C. Smith by Judge James A. Parker (jrm) Modified on 3/11/2008 (Murphy, Joe). (Entered: 03/11/2008)

03/11/2008

Judge Karen B. Molzen assigned as co−referral Judge (jrm) (Entered: 03/11/2008)

03/21/2008 1622 ORDER on termination of inactive counsel; counsel will be terminated within two weeks of the date of this Order unless there is notification to the contrary by Judge James A. Parker (ln) (Entered: 03/21/2008)

05/19/2008 1623 Unopposed MOTION Partial Disengagement for Plan of Action Appendix 13−Regional Offices by Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Walz, Jerry) (Entered: 05/19/2008)

05/29/2008 1624 ORDER by District Judge James A. Parker granting 1623 Motion for partial disengagement for plan of action, appendix 13−regional offices (ln) (Entered: 05/29/2008)

06/17/2008 1625 NOTICE by plaintiffs Notice of Unavailability from 7/11/2008 through 7/23/2008 (Cubra, Peter) Modified text on 6/19/2008 (bap). (Entered: 06/17/2008)

08/08/2008 1626 NOTICE of Change of Address by Peter Cubra (Cubra, Peter) (Entered: 08/08/2008)

08/18/2008 1627 NOTICE of Appearance by Nancy Koenigsberg on behalf of all plaintiffs (Koenigsberg, Nancy) (Entered: 08/18/2008)

08/26/2008 1628 RULE 706 COURT APPOINTED EXPERT'S REPORT by Sue A. Gant, PhD (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(dmw) (Entered: 08/26/2008)

08/26/2008 1629 Letter to Senior Judge Parker re: Rule 706 Court Appointed Expert's Report by Sue A. Gant PhD (jrm) (Entered: 08/26/2008)

08/27/2008 1630 SUPPLEMENT re 1628 Rule 70 Expert Report (jrm) (Entered: 08/27/2008)

08/27/2008 1631 ORDER by Magistrate Judge Leslie C. Smith Denying as Moot 1602 Motion to Vacate. THIS IS A TEXT ONLY ENTRY. NO OTHER DOCUMENTS ARE ATTACHED. (mcs) (Entered: 08/27/2008)

08/29/2008

1632

NOTICE of unavailability of counsel on 9/11−16/08 and 9/30/08 through 9/11/08 by Richard Stanfield, Joseph Gonzales, Sean McHenry, Alfred Shirley, James Fritche, Betty Young, Roseann Crockett, Andre Armenta, Kelli Van Curen, Lacey Walker, Walter Stephen Jackson, Kim Lautenschlager, William Thomas, Steve Nunez, Ron Fuller, Mildred Tsosie, Mary Katherine Nowak, Lillian Willmon, Andra Martinez, Clinton Heath, Shawn Heath (Koenigsberg, Nancy) (Entered: 08/29/2008)

09/08/2008 1633 Clerk's Minutes for proceedings held before Magistrate Judge Leslie C. Smith: Telephone Conference held on 9/8/2008. (mcs) (Entered: 09/08/2008)

09/15/2008

Set/Reset Hearings: Status Conference set for 9/26/2008 at 12:00 PM in Albuquerque − 380−3 & 4 ADR Conference Rooms before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 09/15/2008)

09/16/2008

Set/Reset Hearings: Status Conference set for 9/26/2008 at 10:00 AM in Albuquerque − 380−3 & 4 ADR Conference Rooms before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 09/16/2008)

09/26/2008 1635 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Status Conference held on 9/26/2008 in Albuquerque, NM. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 10/06/2008)

09/30/2008 1634 MINUTE ORDER reassigning case to Magistrate Judge Karen B. Molzen. Magistrate Judge Leslie C. Smith no longer assigned to case. (nm) (Entered: 09/30/2008)

10/17/2008 1636 NOTICE of Hearing: Status Conference set for 12/10/2008 10:30 AM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 10/17/2008)

10/22/2008 1637 RESPONSE To 706 Report to the Court: January 2008 − June 2008 re 1628 Report filed by Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Walz, Jerry) (Entered: 10/22/2008)

10/28/2008

Set/Reset Hearings: Telephonic Monthly Status Conference set for 11/6/2008 at 11:00 AM in Las Cruces − Judge Karen B. Molzen Courtroom before Magistrate Judge Karen B. Molzen. A Sprint operator will initiate the call to counsel. Please contact Theresa Arguello at 575−528−1480 if you wish to be contacted at a different telephone number than is listed on the court docket. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 10/28/2008)

11/06/2008 1638 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Status Conference held on 11/6/2008. (ta) (Entered: 11/06/2008)

11/06/2008

1639

AMENDED Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Status Conference held on 11/6/2008. Amongst other things, the Court grants Defendants 20 days from today to file objections to Rule 706 Court Appointed Budget Proposal, and, if appropriate, will hold a hearing on the matter. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) Modified text on 11/6/2008 (rg). (Entered: 11/06/2008)

11/07/2008 1640 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Conference with 706 Expert at 9:00 a.m. to prepare for Jackson Monthly Status Conference at 11:00 a.m. on 11/6/2008. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 11/07/2008)

11/17/2008 1641 Letter to USDC − DNM by Kristen W. Schroeder re: Intervenor's illness (jrm) (Entered: 11/18/2008)

11/18/2008

Set Deadlines/Hearings: Status Conference set for 12/10/2008 10:30 AM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 11/18/2008)

11/26/2008

1643

OBJECTIONS to 706 Expert 09/03/2008 Request For Budget Increase by Los Lunas Center for Persons with Developmental Disabilities (Attachments: # 1 Exhibit 706 Expert Interim Budget: Jan 2008 − March 2008, # 2 Exhibit Professional Services Contract Brief, # 3 Exhibit 09/03/2008 Ltr from Gant, Yackel & Associates., Inc.)(Walz, Jerry) (Entered: 11/26/2008)

12/09/2008 1645 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Status Conference held on 12/9/2008. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) Modified to edit filed date on 12/12/2008 (cde) (Entered: 12/11/2008)

12/10/2008 1644 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 12/10/2008. (Court Reporter J. De La Rosa) (jrm) (Entered: 12/11/2008)

12/10/2008 1646 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Continued Quarterly Status Conference held on 12/10/2008. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) Modified to edit filed date on 12/12/2008 (cde) (Entered: 12/11/2008)

01/09/2009 1648 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 1/9/2009, 1:30 p.m. − 3:00 p.m. (ta) (Entered: 01/09/2009)

01/09/2009

1649

Amended Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 1/9/2009, 1:30 p.m. to 3:00 p.m. Participants included: Peter Cubra & Steven Schwartz for Plaintiffs; Maureen Sanders for Intervenor; Jerry Walz, Alfred Creecy, Kathy Kunkel & Dr. Alfredo Vigil for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 01/09/2009)

01/21/2009 1650 ORDER on 706 Expert's Budget July 1, 2008 through June 30, 2009 by Magistrate Judge Karen B. Molzen as further described herein. (jrm) (Entered: 01/21/2009)

02/09/2009

1651

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 2/9/2009, 2:30 p.m. to 4:00 p.m. Participants included: Peter Cubra & Philip Davis for Plaintiffs; Maureen Sanders for Intervenor; Jerry Walz, Alfred Creecy, Kathy Kunkel & Dr. Alfredo Vigil for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 02/09/2009)

02/27/2009

1652

NOTICE by Richard Stanfield, Joseph Gonzales, Sean McHenry, Alfred Shirley, James Fritche, Betty Young, Roseann Crockett, Andre Armenta, Kelli Van Curen, Lacey Walker, Walter Stephen Jackson, Kim Lautenschlager, William Thomas, Developmentally Disabled New Mexicans, Inc, Supporters of, Steve Nunez, Ron Fuller, Mildred Tsosie, Mary Katherine Nowak, Lillian Willmon, Andra Martinez, Clinton Heath, Shawn Heath of Unavailability of counsel on 3/11−18/2009 (Cubra, Peter) (Entered: 02/27/2009)

03/03/2009 1653 ORDER by Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference set for 3/16/2009 at 2:30 PM in Las Cruces − Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen. (ta) (Entered: 03/03/2009)

03/16/2009

1654

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 3/16/2009, 2:30 p.m. to 3:30 p.m. Participants included: Ann Sims & Steven Schwartz for Plaintiffs; Maureen Sanders for Intervenor; Jerry Walz, Kathy Kunkel, Dr. Alfredo Vigil & Santiago Sandoval for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 03/16/2009)

04/01/2009 1655 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting in Albuquerque held on 4/1/2009. (ta) (Entered: 04/03/2009)

04/06/2009

1656

ORDER by Magistrate Judge Karen B. Molzen: Quarterly meeting set for 6/10/2009 at 9:00 AM and Mediation set for 6/10/2009 at 1:00 PM in Albuquerque (accommodations to be determined by participants at a later date) before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 04/06/2009)

04/06/2009 1657 ORDER by Magistrate Judge Karen B. Molzen: Monthly Telephonic Status Conference set for 5/7/2009 at 2:00 PM in Las Cruces − Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen. (ta) (Entered: 04/06/2009)

04/27/2009 1658 NOTICE of Attorney Substitution: Flynn Evelyn Sylvest substituted for Dennis Drucker (Sylvest, Flynn) (Entered: 04/27/2009)

05/07/2009

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Telephonic Status Conference held on 5/7/2009. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 06/25/2009)

05/15/2009

1659

NOTICE by Richard Stanfield, Joseph Gonzales, Sean McHenry, Alfred Shirley, James Fritche, Betty Young, Roseann Crockett, Andre Armenta, Kelli Van Curen, Lacey Walker, Walter Stephen Jackson, Kim Lautenschlager, William Thomas, Developmentally Disabled New Mexicans, Inc, Supporters of, Steve Nunez, Ron Fuller, Mildred Tsosie, Mary Katherine Nowak, Lillian Willmon, Andra Martinez, Clinton Heath, Shawn Heath of Unavailability of counsel on 7/18−25/2009 (Cubra, Peter) Modified on 5/27/2009 (jrm). (Entered: 05/15/2009)

05/20/2009 1660 NOTICE of Appearance by Patrick D Allen on behalf of Marjorie Clingenpeel (Allen, Patrick) (Entered: 05/20/2009)

05/20/2009 1661 MOTION to Withdraw as Class Member by Marjorie Clingenpeel. (Attachments: # 1 Exhibit 1&2)(Allen, Patrick) (Entered: 05/20/2009)

06/04/2009 1662 RESPONSE to Motion re 1661 MOTION to Withdraw as Class Member filed by Walter Stephen Jackson. (Davis, Philip) (Entered: 06/04/2009)

06/15/2009 1663 Unopposed MOTION for Partial Disengagement for Plan of Action, Appendix 7 − Behavior Services by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 06/15/2009)

06/15/2009 1664 ORDER by District Judge James A. Parker granting 1663 Defendant's Unopposed Motion for partial disengagement for plan of action, Appendix 7−Behavior Services. (jrm) (Entered: 06/16/2009)

06/24/2009 1665 SETTLEMENT AGREEMENT − Jackson Plan of Action Agreement to Modify Sexuality Outcomes by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 06/24/2009)

06/25/2009 1666 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly meeting session and Mediation held on 6/10/2009 and continuation of mediation on 6/11/2009. (ta) (Entered: 06/25/2009)

06/26/2009 1667 ORDER by Magistrate Judge Karen B. Molzen: Telephonic Status Conference set for 7/9/2009 at 2:00 PM in Las Cruces − Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen. (ta) (Entered: 06/26/2009)

07/02/2009 1668 REPLY to Response to Motion re 1661 MOTION to Withdraw as Class Member filed by Marjorie Clingenpeel. (Attachments: # 1 Exhibit 3)(Allen, Patrick) (Entered: 07/02/2009)

07/02/2009 1669 NOTICE of Briefing Complete by Marjorie Clingenpeel re 1661 MOTION to Withdraw as Class Member filed by Marjorie Clingenpeel (Allen, Patrick) (Entered: 07/02/2009)

07/09/2009

1670

ORDER by Magistrate Judge Karen B. Molzen re 1669 Notice of Briefing Complete filed by Marjorie Clingenpeel. At today's monthly telephonic conference, the parties provided information regarding expected significant changes to the current monitoring process. I requested that Plaintiffs file a Supplement to their response to Ms. Clingenpeel's Motion setting forth that information and will give her the opportunity to review and respond to Plaintiffs' Supplement within fourteen days of its filing. THIS IS A TEXT ONLY ENTRY − NO DOCUMENTS ARE ATTACHED. (KBM) (Entered: 07/09/2009)

07/09/2009 1671 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Telephonic Status Conference held on 7/9/2009. (ta) (Entered: 07/09/2009)

07/10/2009 1672 ORDER by Magistrate Judge Karen B. Molzen: Monthly Telephonic Status Conference set for 8/13/2009 at 1:30 PM in Las Cruces − Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen. (ta) (Entered: 07/10/2009)

07/14/2009 1673 (MEMORANDUM) SUR−REPLY in Opposition re 1661 MOTION to Withdraw as Class Member − Plaintiffs' Surreply by Leave of Court Order filed by Walter Stephen

Jackson. (Attachments: # 1 Exhibit 1−3)(Davis, Philip) Modified on 7/16/2009 (jrm). (Entered: 07/14/2009)

07/21/2009 1674 Plaintiff/Intervenor Majorie M. Clingenpeel's RESPONSE To Plaintiffs' Counsel's Surreply Regarding Motion to Withdraw re 1673 Memorandum in Opposition, filed by Marjorie Clingenpeel. (Allen, Patrick) (Entered: 07/21/2009)

08/05/2009 1675 Unopposed MOTION for Partial Disengagement by New Mexico Human Services Department. (Attachments: # 1 Exhibit A (2008 Community Practice Review − Draft Metro Regions Findings by Area))(Walz, Jerry) (Entered: 08/05/2009)

08/07/2009 1676 ORDER by District Judge James A. Parker granting 1675 Defendants' Unopposed Motion for Partial Disengagement as further described herein. (jrm) (Entered: 08/07/2009)

08/13/2009

1677

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 8/13/2009. Participants included: Peter Cubra and Ann Sims for Plaintiffs; Maureen Sanders for Intervenor ARC of NM; Jerry Walz and Kathy Kunkel for Defendants; others included Dr. Alfred Vigil, Dr. Karen Armitage, David Rodriguez, Lyn Rucker, and Dr. Sue Gant. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 08/13/2009)

08/17/2009 1678 Unopposed MOTION Partial Disengagement for Plan of Action, Appendix 9− Sexuality by Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A)(Walz, Jerry) (Entered: 08/17/2009)

08/19/2009 1679 ORDER by District Judge James A. Parker for partial disengagement for plan of action, Appendix 9−sexuality 1678 (jrm) (Entered: 08/20/2009)

08/28/2009 1680 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker denying Plaintiff/Intervenor Marjorie M. Clingenpeel's motion to withdraw as Class Member 1661 and as further described herein. (jrm) (Entered: 08/28/2009)

09/09/2009 1681 ORDER by Magistrate Judge Karen B. Molzen: Quarterly meeting set for 9/15−16/2009 at 9:00 AM in Albuquerque, before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.](ta) (Entered: 09/09/2009)

09/16/2009

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 9/15−16/2009 in Albuquerque, NM. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 12/17/2009)

09/25/2009 1682 ORDER by Magistrate Judge Karen B. Molzen: Telephonic Status Conferences set for 10/19/2009 at 2:00 PM AND 11/17/2009 at 2:00 PM − Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen.(ta) (Entered: 09/25/2009)

10/19/2009

1683

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 10/19/2009, 2:00 p.m. to 2:50 p.m. Participants included: Peter Cubra for Plaintiffs; Maureen Sanders for Intervenor; Jerry Walz, Kathy Kunkel, Santiago Sandoval & Dr. Alfredo Vigil for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 10/19/2009)

11/17/2009

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 11/17/2009, 2:00 p.m. Participants included: Peter Cubra and Steven Schwartz for Plaintiffs; Maureen Sanders for Intervenor; Jerry Walz, Kathy Kunkel, Santiago Sandoval & Dr. Alfredo Vigil for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 12/17/2009)

12/01/2009

ORDER by Magistrate Judge Karen B. Molzen: Quarterly meeting set for 12/9−10/2009 in Albuquerque, before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/17/2009)

12/10/2009 1684 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 12/9−10/2009 in Albuquerque, NM. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 12/17/2009)

12/17/2009 1685 ORDER by Magistrate Judge Karen B. Molzen: Monthly Telephonic Status Conference set for 1/7/2010 at 02:00 PM in Las Cruces − Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen. (ta) (Entered: 12/17/2009)

01/07/2010

1686

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 1/7/2010, 2:00 p.m. − 2:45 p.m. Participants included: Peter Cubra and Steven Schwartz for Plaintiffs; Sally Faubian for Intervenor; Jerry Walz, Alfred Creecy, Kathy Kunkel, Santiago Sandoval, Daniel Taylor & Dr. Alfredo Vigil for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (ta) (Entered: 01/07/2010)

01/07/2010 1687 ORDER by Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference set for 2/9/2010 at 2:30 PM in Las Cruces − Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen. (ta) (Entered: 01/07/2010)

02/09/2010

1689

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 2/9/2010, 2:30 p.m. − 3:25 p.m. Participants included: Peter Cubra and Steven Schwartz for Plaintiffs; Maureen Sanders for Intervenor; Jerry Walz, Alfred Creecy, Kathy Kunkel, Santiago Sandoval, Daniel Taylor & Dr. Alfredo Vigil for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(ta) (Entered: 03/03/2010)

02/18/2010 1688 STIPULATION Agreement on Disenagement Process for 1998 Audit Recommendations and Appendix A Areas by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 02/18/2010)

03/01/2010 1690 ORDER by Magistrate Judge Karen B. Molzen: Quarterly meeting set for 3/2−3/2010 in Albuquerque, before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 03/03/2010)

03/03/2010 1691 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 3/2−3/2010 in Albuquerque, NM. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 03/03/2010)

03/03/2010 1692 ORDER by Magistrate Judge Karen B. Molzen: Monthly Telephonic Status Conference set for 4/8/2010 at 02:00 PM in Las Cruces − Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen.(ta) (Entered: 03/03/2010)

03/17/2010 1693 Unopposed MOTION Partial Disengagement of Appendix A, Sexuality by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department. (Walz, Jerry) (Entered: 03/17/2010)

03/17/2010 1694 Unopposed MOTION Partial Disengagement of Appendix A, Behavior by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, Jack Callaghan, New Mexico Human Services Department. (Walz, Jerry) (Entered: 03/17/2010)

03/25/2010 1695 ORDER by District Judge James A. Parker for Partial Disengagement of Appendix A, Sexuality 1693 (jrm) (Entered: 03/25/2010)

03/25/2010 1696 ORDER by District Judge James A. Parker for Partial Disengagement of Appendix A, Behavior 1694 (jrm) (Entered: 03/25/2010)

04/08/2010

1697

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 4/8/2010, 2:00 p.m. − 3:45 p.m. Participants included: Peter Cubra and Ann Sims for Plaintiffs; Maureen Sanders for Intervenor; Alfred Creecy, Kathy Kunkel, Santiago Sandoval, Katrina Hotrum & Dr. Alfredo Vigil for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant,

Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(ta) (Entered: 04/09/2010)

04/08/2010 1698 ORDER by Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference set for 5/11/2010 at 2:00 PM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. (ta) (Entered: 04/09/2010)

05/03/2010

1699

Unopposed MOTION Partial Disengagement of Plan of Action, Appendix 7 Desired Outcome Behavior J of the Joint Stipulation on Disengagement by Jack Callaghan, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 05/03/2010)

05/04/2010 1700 ORDER by District Judge James A. Parker granting 1699 Defendants' Unopposed Motion for partial disengagement of plan of action desired outcome behavior−J of the joint stipulation on disengagement. (jrm) (Entered: 05/04/2010)

05/11/2010

1701

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 5/11/2010, 2:00 p.m. − 3:30 p.m. Participants included: Peter Cubra, Steven Schwartz and Ann Sims for Plaintiffs; Sally Faubion for Intervenor; Kathy Kunkel, Santiago Sandoval, Dr. Alfredo Vigil and Greg Lauer (portion) for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ta) (Entered: 05/12/2010)

05/12/2010 1702 ORDER by Magistrate Judge Karen B. Molzen: Quarterly meeting set for 6/2−3/2010 in Albuquerque, before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.](ta) (Entered: 05/12/2010)

05/13/2010 1703 OBJECTIONS and Response to 706 Court Expert Report: Community Incident Management System April 2010 by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 05/13/2010)

06/07/2010 1704 ORDER by Magistrate Judge Karen B. Molzen granting extension of the exhibit limit to what is necessary to brief the Court, and to the stipulations to provide such exhibits to the parties in hard−copy form and to the court on a CD. ta) Modified to correct text as per TA on 6/7/2010 (ctd). (Entered: 06/07/2010)

06/07/2010 1705 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 6/2−3/2010 in Albuquerque, NM. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 06/10/2010)

06/07/2010 1706 ORDER by Magistrate Judge Karen B. Molzen: Monthly telephonic status conference set for 7/13/2010 at 2:00 PM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. (ta) (Entered: 06/10/2010)

06/11/2010 1707 AFFIDAVIT OF JAVIER ACEVES, M.D. by Los Lunas Center for Persons with Developmental Disabilities (Attachments: # 1 Exhibit A)(Walz, Jerry) (Entered: 06/11/2010)

06/11/2010 1708 AFFIDAVIT OF ELIZABETH FINLEY, R.N. by Los Lunas Center for Persons with Developmental Disabilities (Attachments: # 1 Exhibit A, # 2 Exhibit A−2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Walz, Jerry) (Entered: 06/11/2010)

06/11/2010

1709

AFFIDAVIT OF JENNIFER THORNE−LEHMAN by Los Lunas Center for Persons with Developmental Disabilities (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Walz, Jerry) (Entered: 06/11/2010)

06/11/2010 1710 AFFIDAVIT OF ALYA REEVE, M.D. by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 06/11/2010)

06/11/2010 1711 AFFIDAVIT OF DAN MAXWELL by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 06/11/2010)

06/11/2010 1712 AFFIDAVIT OF ROSE HESSMILLER by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 06/11/2010)

06/11/2010 1713 AFFIDAVIT OF CAROL MEROVKA, M.D. by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 06/11/2010)

06/11/2010 1714 AFFIDAVIT OF INGRID NELSON by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 06/11/2010)

06/11/2010 1715 AFFIDAVIT OF TONI BENTON, M.D. by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 06/11/2010)

06/14/2010

1716

Opposed MOTION for Judgment on Partial Findings AND MEMORANDUM IN SUPPORT OF PARTIAL DISENGAGEMENT REGARDING PLAN OF ACTION, APPENDIX 3 L. − MEDICAL SERVICES TRAINING PLAN OF ACTION, APPENDIX 12 − MEDICAL SERVICES by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 06/14/2010)

06/14/2010 1717 Exhibit List FOR DOC. NO. 1716, OPPOSED MOTION AND MEMORANDUM FOR PARTIAL DISENAGEMENT by Los Lunas Center for Persons with Developmental Disabilities.. (Walz, Jerry) (Entered: 06/14/2010)

06/23/2010 1718 Unopposed MOTION Partial Disengagement for Plan of Action, Appendix 8−Crisis Response by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 06/23/2010)

06/23/2010 1719 Unopposed MOTION Partial Disengagement of Appendix A, Crisis by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 06/23/2010)

06/24/2010 1720 ORDER by District Judge James A. Parker granting 1718 the Unopposed Motion for partial disengagement for Plan of Action, Appendix 8−Crisis. (jrm) (Entered: 06/24/2010)

06/24/2010 1721 ORDER by District Judge James A. Parker granting 1719 the Unopposed Motion for partial disengagement of Appendix A, Crisis. (jrm) (Entered: 06/24/2010)

06/24/2010

1722

ORDER by Magistrate Judge Karen B. Molzen: Telephonic Status Conference requested by certain parties set for 6/29/2010 at 10:00 AM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. The only parties that will be contacted are Peter Cubra at 505−256−7690, Phil Davis at 505−242−1904 and Kathy Kunkel at 505−275−1800. Please contact Theresa Arguello at 575−528−1480 if you wish to be contacted at a different telephone number. All others are excused from the hearing. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 06/24/2010)

06/24/2010 1723 Unopposed MOTION for Extension of Time to File Response/Reply re Defendants' Motion for Partial Disengagement (Doc. 1716) by Walter Stephen Jackson. (Davis, Philip) (Entered: 06/24/2010)

06/25/2010 1724 NOTICE by Marjorie Clingenpeel of Withdrawal (Allen, Patrick) (Entered: 06/25/2010)

06/29/2010

1725

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Status Conference held on 6/29/2010 from 10:00 to 11:30 a.m. Participants included Peter Cubra and Phil Davis for Plaintiffs, Maureen Sanders for Intervenor, and Kathy Kunkel and Alfred Creecy for Defendants. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 06/30/2010)

07/01/2010 1726 ORDER by District Judge James A. Parker granting 1723 Plaintiffs' Unopposed Motion for Extension of Time to File Response/Reply to Defendants' Motion for Partial Disengagement (Doc. 1716) Responses due by 7/14/2010 (jrm) (Entered: 07/01/2010)

07/13/2010

1727

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 7/13/2010, 2:00 p.m. − 3:40 p.m. Participants included: Peter Cubra, Ann Sims & Phil Davis for Plaintiffs; Maureen Sanders & Sally Faubion for Intervenor; Kathy Kunkel, Santiago Sandoval, Dr. Alfredo Vigil, Greg Lauer, Daniel Taylor, Alfred Creecy & Gabriella Sanchez−Sandoval for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ta) (Entered: 07/13/2010)

07/13/2010 1728 ORDER by Magistrate Judge Karen B. Molzen: Telephonic Status Conference set for 8/10/2010 at 02:00 PM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. (ta) (Entered: 07/13/2010)

07/14/2010

1729

STIPULATION EXTENSION OF PAGE & EXHIBIT LIMITS by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young (Cubra, Peter) (Entered: 07/14/2010)

07/14/2010 1730 SCHEDULING ORDER by Magistrate Judge Karen B. Molzen on Defendants' Opposed Motion for Partial Disengagement as to Plan of Action Appendix 3−L and Appendix 12 (Doc. 1716). (KBM) (Entered: 07/14/2010)

07/15/2010

1731

Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Cubra, Peter) (Entered: 07/15/2010)

07/15/2010

1732

CERTIFICATE OF SERVICE by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young Discovery re Medical Services (Cubra, Peter) (Entered: 07/15/2010)

07/15/2010

1733

CERTIFICATE OF SERVICE by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young Discovery re Health & Safety & SE (Cubra, Peter) (Entered: 07/15/2010)

07/21/2010 1734 Opposed MOTION for Protective Order by Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Walz, Jerry) (Entered: 07/21/2010)

07/27/2010 1735 Opposed MOTION for Hearing re 1734 Opposed MOTION for Protective Order, Opposed MOTION to Expedite Hearing re Opposed Motion for Protective Order by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 07/27/2010)

07/28/2010

1736

RESPONSE in Opposition re 1735 Opposed MOTION for Hearing re 1734 Opposed MOTION for Protective OrderOpposed MOTION to Expedite Hearing re Opposed Motion for Protective Order filed by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli

Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 07/28/2010)

07/28/2010 1737 STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen B. Molzen. (ta) (Entered: 07/28/2010)

07/29/2010

1738

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Motion Hearing held on 7/29/2010 from 1:30 to 2:12 p.m. Participants included: Peter Cubra, Phil Davis, and Steven Schwartz for Plaintiffs; Maureen Sanders for Intervenors; and Kathy Kunkel and Alfred Creecy for Defendants. (Court Reporter n/a) (mcn) Modified to add text only language on 7/30/2010 (bw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 07/30/2010)

07/30/2010 1739 CERTIFICATE OF SERVICE by Los Lunas Center for Persons with Developmental Disabilities for Defendants' Answers and Responses to Plaintiffs' Interrogatories and Requests for Production regarding Medical Services (Walz, Jerry) (Entered: 07/30/2010)

07/30/2010 1740 ORDER by Magistrate Judge Karen B. Molzen 1735 Motion for Expedited Hearing granted. (mcn) (Entered: 07/30/2010)

08/03/2010

Set/Reset Hearings: Motion Hearing and conference will be held at the United States Courthouse, 333 Lomas Blvd NW, SECOND FLOOR VISTA CONFERENCE ROOM, Albuquerque, NM, on Friday, August 6, 2010 at 02:00 PM before Magistrate Judge Karen B. Molzen. (mcn) (Entered: 08/03/2010)

08/04/2010

1741

MOTION to Amend/Correct Discovery/Briefing Scheduling Order by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 08/04/2010)

08/04/2010

1742

RESPONSE in Opposition re 1734 Opposed MOTION for Protective Order filed by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 08/04/2010)

08/05/2010

1743

ORDER by Magistrate Judge Karen B. Molzen VACATING motion hearing and conference scheduled at the United States Courthouse, 333 Lomas Blvd NW, SECOND FLOOR VISTA CONFERENCE ROOM, Albuquerque, NM, on Friday, August 6, 2010 at 02:00 PM before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 08/05/2010)

08/10/2010

1744

STIPULATION re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance, 1734 Opposed MOTION for Protective Order, 1716 Opposed MOTION for Judgment on Partial Findings AND MEMORANDUM IN SUPPORT OF PARTIAL DISENGAGEMENT REGARDING PLAN OF ACTION, APPENDIX 3 L. − MEDICAL SERVICES TRAINING PLAN OF ACTION, APPENDIX 12 − MEDICAL SERVICES, 1730 Scheduling Order, 1741 MOTION to Amend/Correct Discovery/Briefing Scheduling Order by Walter Stephen Jackson (Davis, Philip) (Entered: 08/10/2010)

08/10/2010

1745

ORDER by Magistrate Judge Karen B. Molzen upon 1744 Stipulation of the parties VACATING 1730 Scheduling Order and finding as moot 1741 Motion to Amend/Correct the now vacated order. THIS IS A TEXT ENTRY ONLY − NO DOCUMENTS ARE ATTACHED. (KBM) (Entered: 08/10/2010)

08/10/2010 1746 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 8/10/2010, 2:00 p.m. − 2:40 p.m.

Participants included: Peter Cubra, Ann Sims & Phil Davis for Plaintiffs; Maureen Sanders & Sally Faubion for Intervenor; Kathy Kunkel, Santiago Sandoval, Dr. Alfredo Vigil, Greg Lauer, Jerry Walz & Alfred Creecy for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 08/10/2010)

08/17/2010 1747 Unopposed MOTION Partial Disengagement of Plan of Action, Appendix 3, Training and Technical Services Desired Outcome L, and Appendix 12, Amended Desired Outcome A of the Joint Stipulation on Disengagement by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 08/17/2010)

08/17/2010 1748 "FILED IN ERROR" CERTIFICATE OF SERVICE by Walter Stephen Jackson of Plaintiffs' Supplemental Interrogatories and Requests for Production on Defendants (Davis, Philip) Modified on 8/18/2010 (jrm). (Entered: 08/17/2010)

08/17/2010 1749 CERTIFICATE OF SERVICE by Walter Stephen Jackson re 1748 Certificate of Service − Corrected − of Plaintiffs' Supplemental Interrogatories and Requests for Production to Defendants (Davis, Philip) (Entered: 08/17/2010)

08/19/2010 1750 ORDER by District Judge James A. Parker for partial disengagement of plan of action Appendix 3 training and technical services desired outcome L and Appendix 12 desired outcome A of the joint stipulation on disengagement 1747 (jrm) (Entered: 08/19/2010)

08/20/2010

1751

Unopposed MOTION Partial Disengagement of Plan of Action, Appendix 5, Individual Service Planning Desired Outcome B: "The Division Will Continue Its Efforts To Improve The Quality of ISP Through Ongoing Quality Improvement Initiatives" by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 08/20/2010)

08/23/2010 1752 ORDER by Magistrate Judge Karen B. Molzen: Quarterly meeting set for 9/8−9/2010 in Albuquerque, before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.](ta) (Entered: 08/23/2010)

08/23/2010 1753 ORDER by District Judge James A. Parker granting 1751 Motion for Partial Disengagement of Plan of Action Appendix 5 Individual Service Planning Desired Outcome B of the Joint Stipulation on Disengagement. (jrm) (Entered: 08/23/2010)

08/23/2010

1754

Unopposed MOTION for Partial Summary Judgment as to PLAN OF ACTION APPENDIX 3 DESIRED OTUCOME L AND PLAN OF ACTION APPENDIX 12 AMENDED OUTCOME A OF THE JOINT STIPULATION ON DISENGAGEMENT by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 08/23/2010)

08/24/2010 1755 AMENDED ORDER by District Judge James A. Parker FOR partial disengagement of plan of action appendix 3 desired outcome L and plan of action appendix 12 amended outcome A of the joint stipulation on disengagement 1747 , 1750 (jrm) (Entered: 08/25/2010)

09/09/2010 1758 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 9/8−9/2010 in Albuquerque, NM; Judge Molzen being present on Thursday, 9/9/2010 from 8:00 AM to 12:30 PM. THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ta) (Entered: 09/14/2010)

09/10/2010 1756 STIPULATION re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance to Allow Defendants' to Exceed Page Limit in Their Response by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 09/10/2010)

09/10/2010 1757 RESPONSE in Opposition re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Walz, Jerry) (Entered: 09/10/2010)

09/23/2010 1759 Unopposed MOTION Partial Disengagement of Joint Stipulation on Disengagement Continuous Improvement Individual Service Plan, Paragraph 35 d − Southeast Region and Continuous Improvement Behavior Supports 36 b Northwest Region by Los

Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 09/23/2010)

09/27/2010 1760 ORDER by District Judge C. LeRoy Hansen granting 1759 Defendants' Unopposed Motion for Partial Disengagement (jrm) (Entered: 09/27/2010)

09/29/2010 1761 ORDER by Magistrate Judge Karen B. Molzen. Telephonic Status Conference set for 10/22/2010 at 02:00 PM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. (ta) (Entered: 09/29/2010)

10/01/2010

1762

REPLY to Response to Motion re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance filed by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 10/01/2010)

10/22/2010

1765

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 10/22/2010, 2:00 p.m. − 3:00 p.m. Participants included: Peter Cubra & Steven Schwartz for Plaintiffs; Maureen Sanders & Sally Faubion for Intervenor; Kathy Kunkel, Santiago Sandoval, Dr. Alfredo Vigil & Greg Lauer for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.](tah) (Entered: 10/25/2010)

10/25/2010

1763

CERTIFICATE OF SERVICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Answers and Responses to Plaintiffs Interrogatories and Requests for Production to The Secretary of The New Mexico Department of Health Regarding Health and Safety and Supported Employment (Walz, Jerry) (Entered: 10/25/2010)

10/25/2010

1764

CERTIFICATE OF SERVICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Supplemented Answers and Responses to Plaintiffs Interrogatories and Requests for Production to The Secretary of The New Mexico Department of Health Regarding Health and Safety and Supported Employment (Walz, Jerry) (Entered: 10/25/2010)

10/25/2010

1766

CERTIFICATE OF SERVICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Answers and Responses to Plaintiffs Supplemental Interrogatories and Requests for Production to the Secretary of The New Mexico Department of Health Regarding Health and Safety and Supported Employment (Walz, Jerry) (Entered: 10/25/2010)

10/25/2010

1767

CERTIFICATE OF SERVICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Interrogatories and Requests for Production to The Plaintiffs Regarding Health and Safety and Supported Employment (Walz, Jerry) (Entered: 10/25/2010)

10/25/2010

1768

CERTIFICATE OF SERVICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Second Supplemented Answers and Responses to Plaintiffs Interrogatories and Requests for Production to The Secretary of The State of New Mexico Department of Health Regarding Health and Safety and Supported Employment (Walz, Jerry) (Entered: 10/25/2010)

10/25/2010

ORDER by Magistrate Judge Karen B. Molzen: Telephonic Status Conference set for 11/16/2010 at 2:00 PM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. Please provide the telephone number you would like to be reached at for this conference to the Court via e−mail address: Theresa_Hall@nmcourt.fed.us. (tah) (Entered: 10/25/2010)

11/15/2010

1769

MOTION to Compel re Plaintiffs' July 15, 2010 Discovery Requests to Defendants by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Attachments: # 1 Exhibit, # 2 Exhibit)(Cubra, Peter) (Entered: 11/15/2010)

11/16/2010

1770

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 11/16/2010, 2:00 p.m. − 2:55 p.m. Participants included: Peter Cubra, Phil Davis & Steven Schwartz for Plaintiffs; Maureen Sanders for Intervenor; Kathy Kunkel, Santiago Sandoval, Dr. Alfredo Vigil & Greg Lauer for Defendants; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 11/17/2010)

11/17/2010 1771 ORDER by Magistrate Judge Karen B. Molzen: Quarterly meeting set for 12/7−8/2010 in Albuquerque, before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.](tah) (Entered: 11/17/2010)

11/22/2010

1772

NOTICE by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young of Unavailability of counsel 12/28/2010−1/12/2011 (Cubra, Peter) Added dates on 11/23/2010 (dmw). (Entered: 11/22/2010)

11/23/2010

1773

ORDER by Magistrate Judge Karen B. Molzen telephonic hearing regarding the dispute in the proposed scheduling order set for 11/24/2010 at 11:00 AM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. My assistant will contact Phil Davis at 505−242−1904, Steven Schwartz at 617−285−4666, and Jerry Walz at 505−275−1800. Please contact Theresa at 575−528−1480 if you wish to be contacted at a different telephone number. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 11/23/2010)

11/24/2010

Set/Reset Hearings: Telephonic hearing regarding the dispute in the proposed scheduling order is VACATED on Wednesday, 11/24/2010 and RESET for Tuesday, 11/30/2010 at 11:00 AM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 11/24/2010)

11/30/2010

1774

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic hearing regarding proposed scheduling order issue held on 11/30/2010 from 11:00 a.m. to 11:27 a.m. Participants included Phil Davis & Steven Schwartz on behalf of Plaintiffs and Kathy Kunkel & Alfred Creecy on behalf of Defendants. The parties shall complete the taking of fact witness depositions no later than April 15, 2011, absent good cause shown and order by the Court. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 11/30/2010)

11/30/2010 1775 STIPULATED REVISED SCHEDULING ORDER SETTING PRETRIAL DEADLINES by Magistrate Judge Karen B. Molzen. (tah) (Entered: 11/30/2010)

12/01/2010 1776 STIPULATION to Exceed Page Limits in Response to Motion to Compel by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 12/01/2010)

12/01/2010 1777 RESPONSE in Opposition re 1769 MOTION to Compel re Plaintiffs' July 15, 2010 Discovery Requests to Defendants filed by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 12/01/2010)

12/02/2010 1779 AMENDED STIPULATED REVISED SCHEDULING ORDER SETTING PRE−TRIAL DEADLINES by Magistrate Judge Karen B. Molzen correcting the deadline for facts that can be used at trial ("facts cut−off date") to 4/15/2011 listed in

paragraph 12. (tah) (Entered: 12/02/2010)

12/08/2010

1780

NOTICE of Hearings: Pretrial Conference set on 6/22/2011 at 01:30 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. Evidentiary Hearing on Plaintiffs' Motion for Further Remedial Relief to Remedy Noncompliance (Doc. 1731) set to begin 7/11/2011 at 01:30 PM with five days anticipated for the hearing in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 12/08/2010)

12/09/2010

1781

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 12/7−8/2010 in Albuquerque, NM; Judge Molzen being present on Wednesday, 12/8/2010 from 8:00 AM to 12:30 PM. THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 12/09/2010)

12/09/2010 1782 ORDER by Magistrate Judge Karen B. Molzen: Monthly Telephonic Status Conference set for 2/9/2011 at 2:00 PM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. (tah) (Entered: 12/09/2010)

12/13/2010 1783 Unopposed MOTION to Vacate and Reset Dates for Filing Pre Trial Order, for Pretrial Conference and for Hearing on Plaintiffs' Motion for Further Remedial Relief by Walter Stephen Jackson. (Davis, Philip) (Entered: 12/13/2010)

12/14/2010

Set/Reset Hearings: Monthly teleconference set for 2/9/2011 at 2:00 PM is canceled and RESET for 2/15/2011 at 2:00 PM − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 12/14/2010)

12/15/2010

1784

ORDER by District Judge James A. Parker granting 1783 Motion to Vacate; the hearing on Plaintiffs' Motion for Further Remedial Relief (Doc. 1731) is reset to 6/13/11 at 1:30 p.m.; the deadline for the Pretrial Order to be provided to the Court is reset to 4/21/11, and the pretrial conference is reset to 4/28/11 at 1:30 p.m. (dm) (Entered: 12/15/2010)

12/15/2010 1785 NOTICE by Walter Stephen Jackson of Stipulation to Allow Plaintiffs to File Reply to Response to Motion to Compel in Excess of Page Limits (Davis, Philip) (Entered: 12/15/2010)

12/15/2010 1786 REPLY to Response to Motion re 1769 MOTION to Compel re Plaintiffs' July 15, 2010 Discovery Requests to Defendants filed by Walter Stephen Jackson. (Davis, Philip) (Entered: 12/15/2010)

12/15/2010

1787

NOTICE of Briefing Complete by Walter Stephen Jackson re 1769 MOTION to Compel re Plaintiffs' July 15, 2010 Discovery Requests to Defendants filed by Andre Armenta, Kim Lautenschlager, Betty Young, Joseph Gonzales, Shawn Heath, Clinton Heath, Andra Martinez, Kelli Van Curen, Richard Stanfield, Lillian Willmon, Mary Katherine Nowak, Ron Fuller, James Fritche, Sean McHenry, William Thomas, Lacey Walker, Alfred Shirley, Developmentally Disabled New Mexicans, Inc, Supporters of, Roseann Crockett, Steve Nunez, Mildred Tsosie, Walter Stephen Jackson (Davis, Philip) (Entered: 12/15/2010)

12/20/2010

1788

CERTIFICATE OF SERVICE by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young Plaintiffs' Answers/Responses to 10/18/10 Discovery Requests (Cubra, Peter) (Entered: 12/20/2010)

01/04/2011

1789

ORDER by Magistrate Judge Karen B. Molzen Setting Hearing on Motion to Compel Plaintiffs' July 15, 2010 Discovery Requests to Defendants by telephone on Thursday, January 6, 2011 at 10:00 a.m. The Court will initiate the call to Phil Davis at 505−242−7690; Cathy Costanzo at 413−586−6024; and Jerry Walz, Kathy Kunkel, Anne Alexander & Santiago Sandoval at 505−275−1800. Please contact Theresa Hall at 575−528−1480 if you would like to be contacted at a different

telephone number. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 01/04/2011)

01/06/2011

1790

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Motion Hearing held on 1/6/2011 from 10:00 a.m. to 11:26 a.m. re 1769 MOTION to Compel re Plaintiffs' July 15, 2010 Discovery Requests to Defendants. Participants included: Phil Davis & Cathy Costanzo for Plaintiffs; Jerry Walz, Kathy Kunkel, Anne Alexander, Santiago Sandoval & Greg Lauer for Defendants. The Court will enter its order at a later date. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 01/06/2011)

01/06/2011 1791 SECOND AMENDED STIPULATED REVISED SCHEDULING ORDER SETTING PRETRIAL DEADLINES by Magistrate Judge Karen B. Molzen. (tah) (Entered: 01/06/2011)

01/07/2011

Set/Reset Hearings: Pretrial Conference set for 6/22/2011 at 01:30 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. Motion Hearing set for 7/11/2011 at 01:30 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker with five days anticipated for the hearing. THIS IS A TEXT ONLY ENTRY. SEE NOTICE OF PRETRIAL CONFERENCE AND MOTION HEARING FILED 12/8/10 (DOC. NO. 1780). (dm) (Entered: 01/07/2011)

01/07/2011

1792

ORDER by Magistrate Judge Karen B. Molzen re 1791 Scheduling Order. The deadlines given in Paragraphs 15−17 are null. Judge Parker's dates for the Pretrial Order, Pretrial Conference and Hearing as set forth in Doc. 1784 are controlling. THIS IS A TEXT ONLY ENTRY − NO DOCUMENTS ARE ATTACHED. (KBM) (Entered: 01/07/2011)

01/13/2011 1793 ORDER by Magistrate Judge Karen B. Molzen granting in part and denying in part 1769 Plaintiffs' Motion to Compel Answers to Plaintiffs' July 15, 2010 Interrogatories and the Production of Documents. (tah) (Entered: 01/13/2011)

01/25/2011 1794 STIPULATION to Exceed Page Limits by Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 01/25/2011)

01/25/2011 1795 MOTION to Compel Plaintiffs to Respond to Discovery by Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A)(Walz, Jerry) (Entered: 01/25/2011)

01/27/2011 1796 MOTION to Expedite Hearing to Request Access for Defendants' Consultants to Interview Jackson Class Members by Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Walz, Jerry) (Entered: 01/27/2011)

01/27/2011 1797 MOTION for Extension of Time to Complete Discovery Pursuant to Plaintiffs' Motion to compel and subsequent order by the Court by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 01/27/2011)

01/27/2011 1798 ORDER by District Judge James A. Parker denying 1731 Plaintiffs' Motion for further relief to remedy noncompliance & as further described herein. (jrm) (Entered: 01/28/2011)

01/31/2011

1799

ORDER by Magistrate Judge Karen B. Molzen Setting Hearing on 1796 MOTION to Expedite Hearing to Request Access for Defendants' Consultants to Interview Jackson Class Members for 2/4/2011 at 2:00 PM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. (tah) (Entered: 01/31/2011)

02/03/2011 1800 ORDER by Magistrate Judge Karen B. Molzen granting 1797 Motion for Extension of Time to Complete Discovery. THIS IS A TEXT ONLY ENTRY − NO DOCUMENTS ARE ATTACHED. (KBM) (Entered: 02/03/2011)

02/03/2011

1801

RESPONSE in Opposition re 1796 MOTION to Expedite Hearing to Request Access for Defendants' Consultants to Interview Jackson Class Members filed by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield,

William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Attachments: # 1 Exhibit)(Cubra, Peter) (Entered: 02/03/2011)

02/04/2011

1802

ORDER by Magistrate Judge Karen B. Molzen granting 1796 Motion to Expedite Hearing to Request Access for Defendants' Consultants to Interview Jackson Class Members as set forth at telephonic hearing held this day. THIS IS A TEXT ONLY ENTRY − NO DOCUMENTS ARE ATTACHED. (KBM) (Entered: 02/04/2011)

02/04/2011

1803

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Motion Hearing held on 2/4/2011 from 2:05 PM to 2:51 PM re 1796 MOTION to Expedite Hearing to Request Access for Defendants' Consultants to Interview Jackson Class Members filed by Los Lunas Center for Persons with Developmental Disabilities. Participants included Peter Cubra & Ann Sims on behalf of Plaintiffs; Maureen Sanders on behalf of Intervenor ARC of NM; and Kathy Kunkel, Al Creecy & Anne Alexander on behalf of Defendants. The Court will permit Defendants' Consultants to interview Jackson Class Members with the with the stipulations provided at today's hearing. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 02/04/2011)

02/08/2011

1804

RESPONSE in Opposition re 1795 MOTION to Compel Plaintiffs to Respond to Discovery filed by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Cubra, Peter) (Entered: 02/08/2011)

02/09/2011 1805 AMENDED ORDER by District Judge James A. Parker 1731 as described herein. (jrm) (Entered: 02/09/2011)

02/14/2011 1806 REPLY to Response to Motion re 1795 MOTION to Compel Plaintiffs to Respond to Discovery filed by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 02/14/2011)

02/15/2011

1807

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Telephonic Monthly Status Conference held on 2/15/2011, 2:00 p.m. − 3:15 p.m. Participants included: Peter Cubra & Steven Schwartz for Plaintiffs; Maureen Sanders for Intervenor; Kathy Kunkel, Santiago Sandoval & Greg Lauer for Defendants; Lyn Rucker, Community Monitor; and Dr. Sue Gant, Rule 706 Expert. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 02/15/2011)

02/16/2011 1808 NOTICE of Hearing on 1795 MOTION to Compel Plaintiffs to Respond to Discovery. Telephonic Motion Hearing set for 2/25/2011 at 11:45 AM in Las Cruces − Telephonic Hearing/Conference before Magistrate Judge Karen B. Molzen. (tah) (Entered: 02/16/2011)

02/16/2011 1809 STIPULATION by Walter Stephen Jackson (Davis, Philip) (Entered: 02/16/2011)

02/16/2011 1810 Joint MOTION for Extension of Time to Complete Discovery as to Depositions of Experts and Medical Doctors by Walter Stephen Jackson. (Davis, Philip) (Entered: 02/16/2011)

02/16/2011 1811 ORDER by Magistrate Judge Karen B. Molzen granting 1810 Motion for Extension of Time to complete discovery for the limited purposed of completing depositions of experts and medical doctors. Deadline is extended from April 15, 2011 to May 2, 2011. (tah) (Entered: 02/16/2011)

02/18/2011 1812 CERTIFICATE OF SERVICE by Los Lunas Center for Persons with Developmental Disabilities Supplemented Answers and Responses to Order to Compel Defendants Answers and Responses to July 15, 2010 Interrogatories and Requests for Production of Documents (Walz, Jerry) (Entered: 02/18/2011)

02/25/2011 1813 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Motion Hearing held on 2/25/2011 from 11:45 a.m. to 1:05 p.m. re 1795 MOTION to Compel Plaintiffs to Respond to Discovery filed by Los Lunas Center for Persons with Developmental Disabilities. Participants included Peter Cubra, Phil Davis &

Steven Schwartz on behalf of Plaintiffs; Maureen Sanders on behalf of Intervenor ARC of NM; and Kathy Kunkel, Santiago Sandoval & Ann Alexander on behalf of Defendants. The Court's ruling will be entered at a later date. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 02/28/2011)

02/28/2011 1814 ORDER by Magistrate Judge Karen B. Molzen granting in part and denying in part 1795 Defendants' Motion to Compel. (KBM) (Entered: 02/28/2011)

03/17/2011

1815

AMENDED NOTICE of Hearing:Pretrial Conference rescheduled on 4/27/2011 at 01:30 PM (from 4/28/2011 at 1:30 PM) in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. All other settings and deadlines remain as previously scheduled in the the Stipulated Order (Doc. No. 1784) filed December 15, 2010. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(dm) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 03/17/2011)

03/27/2011 1816 MOTION for Protective Order and to Quash Depositions by Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B−1, # 3 Exhibit B−2, # 4 Exhibit B−3, # 5 Exhibit B−4, # 6 Exhibit B−5, # 7 Exhibit B−6, # 8 Exhibit B−7)(Walz, Jerry) (Entered: 03/27/2011)

03/27/2011 1817 NOTICE by Los Lunas Center for Persons with Developmental Disabilities re 1816 MOTION for Protective Order and to Quash Depositions of Non−Appearance for Carl Martinez (Walz, Jerry) (Entered: 03/27/2011)

03/27/2011 1818 NOTICE by Los Lunas Center for Persons with Developmental Disabilities re 1816 MOTION for Protective Order and to Quash Depositions of Non−Appearance for Elizabeth Finley (Walz, Jerry) (Entered: 03/27/2011)

03/27/2011 1819 NOTICE by Los Lunas Center for Persons with Developmental Disabilities re 1816 MOTION for Protective Order and to Quash Depositions of Non−Appearance for Janet Simons (Walz, Jerry) (Entered: 03/27/2011)

03/27/2011 1820 NOTICE by Los Lunas Center for Persons with Developmental Disabilities re 1816 MOTION for Protective Order and to Quash Depositions of Non−Appearance for Jennifer Thorne−Lehman (Walz, Jerry) (Entered: 03/27/2011)

03/27/2011 1821 NOTICE by Los Lunas Center for Persons with Developmental Disabilities re 1816 MOTION for Protective Order and to Quash Depositions of Non−Appearance for Mikki Rogers (Walz, Jerry) (Entered: 03/27/2011)

03/27/2011 1822 NOTICE by Los Lunas Center for Persons with Developmental Disabilities re 1816 MOTION for Protective Order and to Quash Depositions of Non−Appearance for Paulette Archibeck (Walz, Jerry) (Entered: 03/27/2011)

03/27/2011 1823 NOTICE by Los Lunas Center for Persons with Developmental Disabilities re 1816 MOTION for Protective Order and to Quash Depositions of Non−Appearance for Alice Maes (Walz, Jerry) (Entered: 03/27/2011)

03/29/2011 1824 RESPONSE in Opposition re 1816 MOTION for Protective Order and to Quash Depositions filed by Walter Stephen Jackson. (Attachments: # 1 Exhibit 1, 1(a), 2 and 3)(Davis, Philip) (Entered: 03/29/2011)

03/30/2011

1826

Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 3/29−30/2011 in Albuquerque, NM; Judge Molzen being present on Wednesday, 3/30/2011 from 8:00 AM to 12:00 PM. THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.](tah) (Entered: 04/01/2011)

03/31/2011

1825

ORDER by Magistrate Judge Karen B. Molzen denying 1816 Motion for Protective Order after review of the briefing and having heard from the parties at the Quarterly Conference on March 30, 2011. If future depositions prove overly redundant, cumulative and/or burdensome, objections can be renewed by calling my assistant and arranging for a telephonic hearing, but the time involved in holding the hearing will be assessed against the complaining party's allocated time for the deposition unless otherwise ordered by the Court.

THIS IS A TEXT ONLY ENTRY − NO DOCUMENTS ARE ATTACHED. (KBM) (Entered: 03/31/2011)

04/12/2011 1827 ORDER by Chief Magistrate Judge Karen B. Molzen setting telephonic monthly status conference for 5/9/2011 at 2:00 PM in Albuquerque − Telephonic Hearing/Conference before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 04/12/2011)

04/22/2011

Set/Reset Hearings: The monthly status conference set for 5/9/2011 at 2:00 PM will be IN PERSON: 560 Cimarron Courtroom, 333 Lomas Blvd., Albuquerque, NM before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 04/22/2011)

04/22/2011 1828 STIPULATION re 1809 Stipulation, 1775 Scheduling Order setting deadline for Expert Depositions for May 27, 2011 by Fort Stanton Hospital and Training School (Walz, Jerry) (Entered: 04/22/2011)

04/26/2011 1829 STIPULATION for Defendants to exceed page limits for Motion and Memorandum as well as supporting exhibits by Fort Stanton Hospital and Training School (Walz, Jerry) (Entered: 04/26/2011)

04/26/2011

1830

Opposed MOTION for Termination of All Remaining Orders re 1829 Stipulation and Supporting Memorandum by Fort Stanton Hospital and Training School. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Walz, Jerry) Modified text on 4/27/2011 (dmw). (Entered: 04/26/2011)

04/27/2011 1831 Clerk's Minutes for proceedings held before District Judge James A. Parker: Pretrial Conference held on 4/27/2011. (Court Reporter J. De La Rosa) (dmw) (Entered: 04/28/2011)

04/28/2011 1832 PRETRIAL ORDER by District Judge James A. Parker (dmw) (Entered: 04/28/2011)

05/09/2011

1833

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 5/9/2011 from 2:06 p.m. to 2:47 p.m. Participants included Ann Sims & Peter Cubra on behalf of Plaintiffs; Kathy Kunkel & Santiago Sandoval on behalf of Defendants; Maureen Sanders on behalf of Intervenor; Community Monitor Lyn Rucker by telephone; and 706 Expert Dr. Sue Gant by telephone. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 05/09/2011)

05/09/2011 1834 ORDER by Chief Magistrate Judge Karen B. Molzen setting quarterly status conference for 6/30/2011 & 7/1/2011 beginning at 08:30 AM. (tah) (Entered: 05/09/2011)

05/20/2011

1835

ORDER by Chief Magistrate Judge Karen B. Molzen setting telephonic status conference for 5/20/2011 at 3:50 PM in Albuquerque − Telephonic Hearing/Conference before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 05/23/2011)

05/20/2011

1836

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Telephonic status conference held on 5/20/2011 from 3:50 p.m. to 4:20 p.m. Participants included Jerry Walz, Kathy Kunkel and Peter Cubra. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 05/23/2011)

05/27/2011

1837

Witness List by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Cubra, Peter) (Entered: 05/27/2011)

05/27/2011 1838 AMENDED Witness List by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim

Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Cubra, Peter) Modified text on 5/31/2011 (eh). (Entered: 05/27/2011)

05/27/2011 1839 Witness List by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 05/27/2011)

06/01/2011 1840 Witness List by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 06/01/2011)

06/03/2011

1841

MOTION in Limine to Exclude the 2010 and 2011 Reports of Davis Deshaies LLC by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Cubra, Peter) (Entered: 06/03/2011)

06/03/2011

1842

MOTION in Limine to Exclude Testimony and Report of Ric Zaharia, Ph.D. by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Cubra, Peter) (Entered: 06/03/2011)

06/06/2011

1843

MOTION in Limine to Exclude the Testimony of Plaintiffs' Remedy Expert Lewis H. Spence by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Walz, Jerry) (Entered: 06/06/2011)

06/06/2011

1844

TRIAL BRIEF Plaintiff's Trial Memorandum for June 13, 2011 Hearing by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Attachments: # 1 Exhibit)(Cubra, Peter) (Entered: 06/06/2011)

06/06/2011 1845 TRIAL BRIEF Defendants' Memorandum Regarding the June 13, 2011 Evidentiary Hearing by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 06/06/2011)

06/09/2011

1846

NOTICE by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young Plaintiffs' Objections and Counter−Designations to Defendants' Deposition Designations (Cubra, Peter) (Entered: 06/09/2011)

06/09/2011

1847

NOTICE by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young Plaintiffs' Designations of Deposition Testimony (Cubra, Peter) (Entered: 06/09/2011)

06/10/2011

1848

RESPONSE in Opposition re 1843 MOTION in Limine to Exclude the Testimony of Plaintiffs' Remedy Expert Lewis H. Spence filed by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Attachments: # 1 Exhibit, # 2 Exhibit)(Schwartz, Steven) (Entered: 06/10/2011)

06/10/2011 1849 NOTICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department of Defendants' Deposition Designations related to June 13, 2011 Evidentiary Hearing (Walz, Jerry) (Entered: 06/10/2011)

06/10/2011 1850 NOTICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department of Defendants' Counter Designations to Plaintiffs' Deposition Designations (Walz, Jerry) (Entered: 06/10/2011)

06/10/2011

1851

Exhibit List Parties Consolidated List of Trial Exhibits by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, Fort Stanton Hospital and Training School, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Los Lunas Center for Persons with Developmental Disabilities, Andra Martinez, Sean McHenry, New Mexico Human Services Department, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young.. (Walz, Jerry) (Entered: 06/10/2011)

06/10/2011

1852

RESPONSE to Motion re 1842 MOTION in Limine to Exclude Testimony and Report of Ric Zaharia, Ph.D. filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Walz, Jerry) (Entered: 06/10/2011)

06/11/2011

1853

RESPONSE to Motion re 1841 MOTION in Limine to Exclude the 2010 and 2011 Reports of Davis Deshaies LLC filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit M, # 13 Exhibit N)(Walz, Jerry) (Entered: 06/11/2011)

06/12/2011

1854

Exhibit List Amended Joint Exhibit List by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, Fort Stanton Hospital and Training School, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Los Lunas Center for Persons with Developmental Disabilities, Andra Martinez, Sean McHenry, New Mexico Human Services Department, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young.. (Walz, Jerry) (Entered: 06/12/2011)

06/13/2011 1856 Clerk's Minutes for proceedings held before District Judge James A. Parker: Evidentiary Hearing held on 6/13−17/2011. (Court Reporter J. De La Rosa) (jrm) (Entered: 06/23/2011)

06/13/2011 1857 NOTICE of Exhibit and Witness List 1856 (jrm) (Entered: 06/23/2011)

06/15/2011 1855 ORDER by Chief Magistrate Judge Karen B. Molzen VACATING all but the AT/ISP workgroup meeting portion of the quarterly status conference scheduled for 6/30/2011 & 7/1/2011. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 06/15/2011)

07/04/2011 1858 "FILED IN ERROR" NOTICE by Walter Stephen Jackson of Non−Availability (Davis, Philip) Modified on 7/5/2011 (jrm). (Entered: 07/04/2011)

07/04/2011 1859 CORRECTED NOTICE by Walter Stephen Jackson of Non−Availability of counsel on 8/29−31/2011, 9/9−19/2011 & 11/14−25/2011 (Davis, Philip) Modified on 7/5/2011 (jrm). (Entered: 07/04/2011)

07/05/2011 1860 ORDER by Chief Magistrate Judge Karen B. Molzen setting a status conference for 7/21/2011 at 2:00 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 07/05/2011)

07/22/2011

1861

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 7/21/2011 from 2:00 p.m. to 4:00 p.m. Participants included Ann Sims & Peter Cubra on behalf of Plaintiffs; Kathy Kunkel & Santiago Sandoval on behalf of Defendants; Maureen Sanders & Sally Faubion on behalf of Intervenor; and 706 Expert Dr. Sue Gant by telephone. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 07/25/2011)

07/25/2011 1862 ORDER by Chief Magistrate Judge Karen B. Molzen setting a status conference set for 8/12/2011 at 2:30 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 07/25/2011)

08/11/2011 1863 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of EVIDENTIARY HEARING held on 06/13/2011, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Office public terminal within the 90−day period.

Notice of Intent to Request Redaction set for 8/18/2011. Redaction Request due 9/1/2011. Redacted Transcript Deadline set for 9/12/2011. Release of Transcript Restriction set for 11/9/2011.(jdlr) (Entered: 08/11/2011)
08/11/2011 1864 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of EVIDENTIARY HEARING, Volume II, held on 06/14/2011, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Office public terminal within the 90−day period.

Notice of Intent to Request Redaction set for 8/18/2011. Redaction Request due 9/1/2011. Redacted Transcript Deadline set for 9/12/2011. Release of Transcript Restriction set for 11/9/2011.(jdlr) (Entered: 08/11/2011)
08/11/2011 1865 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of EVIDENTIARY HEARING, Volume III, held on 06/15/2011, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed

during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Office public terminal within the 90−day period.

Notice of Intent to Request Redaction set for 8/18/2011. Redaction Request due 9/1/2011. Redacted Transcript Deadline set for 9/12/2011. Release of Transcript Restriction set for 11/9/2011.(jdlr) (Entered: 08/11/2011)
08/11/2011 1866 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of EVIDENTIARY HEARING, Volume IV, held on 06/16/2011, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Office public terminal within the 90−day period.

Notice of Intent to Request Redaction set for 8/18/2011. Redaction Request due 9/1/2011. Redacted Transcript Deadline set for 9/12/2011. Release of Transcript Restriction set for 11/9/2011.(jdlr) (Entered: 08/11/2011)
08/11/2011 1867 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of EVIDENTIARY HEARING, Volume V, held on 06/17/2011, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Office public terminal within the 90−day period.

Notice of Intent to Request Redaction set for 8/18/2011. Redaction Request due 9/1/2011. Redacted Transcript Deadline set for 9/12/2011. Release of Transcript Restriction set for 11/9/2011.(jdlr) (Entered: 08/11/2011)

08/17/2011

1868

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly meeting held on 8/12/2011 from 2:30 p.m. to 5:00 p.m. Participants included Ann McCartney, J. Kate Girard & Peter Cubra on behalf of Plaintiffs; J. Gabrielle Sanchez−Sandoval, Kathy Kunkel, Anne Alexander & Santiago Sandoval on behalf of Defendants; Maureen Sanders on behalf of Intervenor; Community Monitor Lyn Rucker by telephone; and 706 Expert Dr. Sue Gant by telephone. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 08/17/2011)

08/17/2011 1869 ORDER by Chief Magistrate Judge Karen B. Molzen setting a quarterly status conference beginning on 9/7/2011 at 8:30 AM before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 08/17/2011)

08/23/2011 1870 ORDER by Chief Magistrate Judge Karen B. Molzen setting a status conference for 8/26/2011 at 10:00 AM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen. (tah) (Entered: 08/23/2011)

08/26/2011

1871

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Status Conference held on 8/26/2011 from 10:00 a.m. to 10:46 a.m. Participants included Peter Cubra, Maureen Sanders, Kathy Kunkel, J. Gabrielle Sanchez−Sandoval, Anne Alexanter, and via telephone, Dr. Sue Gant, Steven Schwartz and Ann McCartney. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 08/26/2011)

08/26/2011 1872 FILED IN ERROR − wrong case: ORDER by Chief Magistrate Judge Karen B. Molzen setting a settlement conference followup for 10/12/2011 at 9:00 AM in Albuquerque − 320 Rio Grande Courtroom before Chief Magistrate Judge Karen B. Molzen. (tah) Modified to add error text on 8/26/2011 (dds). (Entered: 08/26/2011)

09/08/2011

1873

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 9/7−8/2011 in Albuquerque, NM; Judge Molzen being present on Thursday, 9/8/2011 from 8:30 AM to 12:15 PM. THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 09/08/2011)

09/27/2011 1874 NOTICE of Hearing: Status Conference set for 10/25/2011 at 01:30 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 09/27/2011)

10/03/2011 1875 ORDER by Chief Magistrate Judge Karen B. Molzen setting a monthly status conference for 10/13/2011 at 9:30 AM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 10/03/2011)

10/05/2011 1876 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of PRETRIAL CONFERENCE held on 04/27/2011, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Office public terminal within the 90−day period.

Notice of Intent to Request Redaction set for 10/12/2011. Redaction Request due 10/26/2011. Redacted Transcript Deadline set for 11/7/2011. Release of Transcript Restriction set for 1/3/2012.(jdlr) (Entered: 10/05/2011)

10/06/2011

Status conf. set for 10/25/2011 at 01:30 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 10/06/2011)

10/11/2011 1877 NOTICE by Andre Armenta of Unavailability of counsel on 11/18/2011 through 12/5/2011 (Cubra, Peter) Modified on 10/12/2011 (jrm). (Entered: 10/11/2011)

10/13/2011

1878

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Status Conference held on 10/13/2011 from 9:30 a.m. to 10:46 a.m. Participants included Peter Cubra, Ann Sims, Kathy Kunkel, Anne Alexander, Daniel Taylor, J. Gabrielle Sanchez−Sandoval, and via telephone, Dr. Sue Gant, Lyn Rucker & Maureen Sanders. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 10/13/2011)

10/14/2011 1879 ORDER by Chief Magistrate Judge Karen B. Molzen setting a monthly status conference for 11/9/2011 at 2:00 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 10/14/2011)

10/19/2011 1880 NOTICE of Hearing:Status Conference set for 10/25/2011 at 01:30 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 10/19/2011)

10/25/2011 1881 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 10/25/2011. (Court Reporter J. De La Rosa) (jrm) (Entered: 10/25/2011)

11/02/2011

1882

BRIEF by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 11/02/2011)

11/02/2011

1883

BRIEF by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young (Schwartz, Steven) (Entered: 11/02/2011)

11/02/2011 1884 Proposed Findings of Fact by Walter Stephen Jackson. (Attachments: # 1 Appendix Table, # 2 Appendix Compliance Administrator)(Cubra, Peter) (Entered: 11/02/2011)

11/02/2011 1885 BRIEF Defendants Memorandum Regarding The Courts Authority To Appoint A Jackson Compliance Administrator by Fort Stanton Hospital and Training School (Walz, Jerry) (Entered: 11/02/2011)

11/02/2011 1886 (Proposed Findings of Fact) Post−Trial brief in response by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) Modified on 11/3/2011 (jrm). (Entered: 11/02/2011)

11/09/2011

1889

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly meeting held on 11/9/2011 from 2:00 p.m. to 4:15 p.m. Participants included Peter Cubra on behalf of Plaintiffs; J. Gabrielle Sanchez−Sandoval, Kathy Kunkel, Daniel Taylor & Anne Alexander on behalf of Defendants; Maureen Sanders and Sally Faubion on behalf of Intervenor; 706 Expert Dr. Sue Gant; Community Monitor Lyn Rucker by telephone; and Ann McCartney by telephone. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (tah) (Entered: 11/15/2011)

11/14/2011 1887 ***FILED IN ERROR*** Opposed MOTION Further Remedial Relief to Remedy Noncompliance Renewed 11/14/11 by Walter Stephen Jackson. (Cubra, Peter) Modified text on 11/14/2011 per attorneys call on CM/ECF help desk regarding the formatting and they will refile the document (kg). (Entered: 11/14/2011)

11/14/2011 1888 Opposed MOTION Further Remedial Relief to Remedy Noncompliance re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance RENEWED 11/14/11 by Walter Stephen Jackson. (Cubra, Peter) (Entered: 11/14/2011)

11/21/2011 1890 MOTION to Strike 1883 Brief, by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 11/21/2011)

11/23/2011 1891 MEMORANDUM in Opposition re 1890 MOTION to Strike 1883 Brief, by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean

McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 11/23/2011)

12/06/2011 1892 REPLY to Response to Motion re 1890 MOTION to Strike 1883 Brief, filed by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 12/06/2011)

12/06/2011 1893 NOTICE of Briefing Complete by Los Lunas Center for Persons with Developmental Disabilities re 1890 MOTION to Strike 1883 Brief, filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 12/06/2011)

12/07/2011 1894 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly meeting held on 12/7/2011. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 12/07/2011)

12/07/2011 1895 ORDER by Chief Magistrate Judge Karen B. Molzen setting a monthly status conference for 12/29/2011 at 2:00 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 12/07/2011)

12/09/2011

1896

MEMORANDUM in Support of Motion For Further Remedial Relief filed by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 12/09/2011)

12/14/2011

1897

MEMORANDUM OPINION AND ORDER by District Judge James A. Parker that Defendants' Motion to Strike Plaintiffs' pleading entitled Plaintiffs' Memorandum of Law Regarding whether all remaining obligations of the case should be terminated [Doc. 1883] (Doc.No. 1890) is denied & as further described herein. (jrm) (Entered: 12/14/2011)

12/15/2011

1898

Opposed MOTION Disengagement of Ashton Recommendations by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Walz, Jerry) (Entered: 12/15/2011)

12/23/2011

1899

RESPONSE in Opposition re 1888 Opposed MOTION Further Remedial Relief to Remedy Noncompliance re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance RENEWED 11/14/11 filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 12/23/2011)

12/29/2011 1903 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 12/29/2011. The next monthly status conference will be set on 1/12/2012 at 2:00 p.m. (tah) (Entered: 01/04/2012)

12/30/2011

1900

NOTICE of Briefing Complete by All Plaintiffs re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance filed by Andre Armenta, Kim Lautenschlager, Betty Young, Joseph Gonzales, Shawn Heath, Clinton Heath, Andra Martinez, Kelli Van Curen, Richard Stanfield, Lillian Willmon, Mary Katherine Nowak, Ron Fuller, James Fritche, Sean McHenry, William Thomas, Lacey Walker, Alfred Shirley, Developmentally Disabled New Mexicans, Inc, Supporters of, Roseann Crockett, Steve Nunez, Mildred Tsosie, Walter Stephen Jackson, 1888 Opposed MOTION Further Remedial Relief to Remedy Noncompliance re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance RENEWED 11/14/11 filed by Walter Stephen Jackson (Davis, Philip) (Entered: 12/30/2011)

12/30/2011 1901 AMENDED NOTICE of Briefing Complete by All Plaintiffs re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance filed by Andre Armenta, Kim Lautenschlager, Betty Young, Joseph

Gonzales, Shawn Heath, Clinton Heath, Andra Martinez, Kelli Van Curen, Richard Stanfield, Lillian Willmon, Mary Katherine Nowak, Ron Fuller, James Fritche, Sean McHenry, William Thomas, Lacey Walker, Alfred Shirley, Developmentally Disabled New Mexicans, Inc, Supporters of, Roseann Crockett, Steve Nunez, Mildred Tsosie, Walter Stephen Jackson, 1888 Opposed MOTION Further Remedial Relief to Remedy Noncompliance re 1731 Opposed MOTION to Enforce Settlement & Further Remedial Relief to Remedy Noncompliance RENEWED 11/14/11 filed by Walter Stephen Jackson (Davis, Philip) Modified on 1/3/2012 (bap). (Entered: 12/30/2011)

01/04/2012 1902 NOTICE by Walter Stephen Jackson of Unavailability of counsel on 1/7−17/2012 (Cubra, Peter) Modified on 1/5/2012 (jrm). (Entered: 01/04/2012)

01/04/2012 1904 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Monthly Status Conference for 1/12/2012 at 2:00 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 01/05/2012)

01/06/2012

1905

Opposed MOTION to Dismiss Administratively or in the Alternative, MOTION to Stay re 1898 Opposed MOTION Disengagement of Ashton Recommendations or in the Alternative, MOTION for Extension of Time to File Response/Reply to Motion for Disengagement of Ashton Recommendations by Walter Stephen Jackson. (Davis, Philip) (Entered: 01/06/2012)

01/12/2012 1906 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 1/12/2012. (tah) (Entered: 01/13/2012)

01/13/2012 1907 ORDER by Chief Magistrate Judge Karen B. Molzen setting a monthly status conference for 2/21/2012 at 2:00 PM in Albuquerque − 730 Chief Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 01/13/2012)

01/19/2012

1908

RESPONSE in Opposition re 1905 Opposed MOTION to Dismiss Administratively or in the Alternative MOTION to Stay re 1898 Opposed MOTION Disengagement of Ashton Recommendations or in the Alternative MOTION to Stay re 1898 Opposed MOTION Disengagement of Ashton Recommendations or in the Alternative MOTION for Extension of Time to File Response/Reply to Motion for Disengagement of Ashton Recommendations filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 01/19/2012)

02/06/2012

1910

NOTICE of Briefing Complete by All Plaintiffs re 1905 Opposed MOTION to Dismiss Administratively or in the Alternative MOTION to Stay re 1898 Opposed MOTION Disengagement of Ashton Recommendations or in the Alternative MOTION to Stay re 1898 Opposed MOTION Disengagement of Ashton Recommendations or in the Alternative MOTION for Extension of Time to File Response/Reply to Motion for Disengagement of Ashton Recommendations filed by Walter Stephen Jackson (Davis, Philip) (Entered: 02/06/2012)

02/16/2012 1911 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker as described herein 1898 , 1905 (jrm) (Entered: 02/16/2012)

02/21/2012 1912 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 2/21/2012. The next monthly status conference will be set on 3/22/2012 at 2:00 p.m. (tah) (Entered: 03/02/2012)

02/21/2012 1913 ORDER by Chief Magistrate Judge Karen B. Molzen setting a monthly status conference for 3/22/2012 at 2:00 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 03/02/2012)

03/22/2012 1914 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 3/22/2012. (tah) (Entered: 03/22/2012)

03/23/2012 1915 ORDER by Chief Magistrate Judge Karen B. Molzen setting a quarterly status conference for 4/16/2012 & 4/17/2012 at 8:30 AM in Albuquerque before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 03/23/2012)

04/13/2012 1916 NOTICE by Walter Stephen Jackson of Non−Availability of counsel on May 25, 2012 through June 8, 2012 (Davis, Philip) Modified on 4/16/2012 (jrm). (Entered: 04/13/2012)
04/17/2012 1917 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 4/17/2012. The next monthly status conference will be set on 5/21/2012 at 2:00 p.m. (tah) (tah) (Entered: 04/18/2012)
04/17/2012 1918 ORDER by Chief Magistrate Judge Karen B. Molzen setting a status conference for 5/21/2012 at 2:00 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 04/18/2012)
05/02/2012 1919 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Information Management Conference held on 5/2/2012. (tah) (Entered: 05/03/2012)
05/21/2012 1920 Clerk's MinutesMonthly Status Conference held on 5/21/2012. (tah) (Entered: 05/21/2012)
05/21/2012 1921 ORDER by Chief Magistrate Judge Karen B. Molzen setting the next monthly status conference for 6/25/2012 at 2:00 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 05/21/2012)
06/25/2012 1922 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 6/25/2012. (tah) (Entered: 06/26/2012)
07/17/2012 1923 ORDER by Chief Magistrate Judge Karen B. Molzen setting the quarterly status conference for 7/26/2012 at 8:00 AM before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 07/17/2012)
07/26/2012 1924 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Jackson Quarterly Meeting held on 7/26/2012. (tah) (Entered: 07/27/2012)
07/26/2012 1925 ORDER by Chief Magistrate Judge Karen B. Molzen setting a monthly status conference for 8/29/2012 at 2:00 PM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 07/27/2012)
08/29/2012 1926 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 8/29/2012. (tah) (Entered: 08/29/2012)
08/31/2012 1927 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Monthly Status Conference for 9/26/2012 at 2:00 PM in the 2nd Floor Vista Conference Room, before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 08/31/2012)
09/26/2012 1928 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Status Conference held on 9/26/2012. (tah) (Entered: 09/27/2012)
10/01/2012 1929 ORDER by Chief Magistrate Judge Karen B. Molzen setting quarterly status conference for 10/31/2012 & 11/1/2012 beginning at 8:30 AM before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 10/02/2012)
10/12/2012 1930 FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER by District Judge James A. Parker 1841 , 1842 , 1843 as further described herein.. (jrm) Modified text on 10/12/2012 (jrm). (Entered: 10/12/2012)
10/31/2012 1931 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: First day of quarterly meeting held on 10/31/2012. (tah) (Entered: 11/02/2012)
11/01/2012 1932 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Second day of quarterly meeting held on 11/1/2012. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 11/02/2012)
11/05/2012 1933 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Status Conference for 12/5/2012 at 2:00 PM at the United States Federal Courthouse, 333 Lomas Blvd. NW, in the 2nd Floor Vista Conference Room, before Chief Magistrate Judge Karen B. Molzen. (tah) (Entered: 11/05/2012)

11/12/2012 1934 Unopposed MOTION to Extend (other) Time to File Motion for Attorneys' Fees and Expenses by Walter Stephen Jackson. (Davis, Philip) (Entered: 11/12/2012)

11/14/2012 1935 ORDER by District Judge James A. Parker granting 1934 Plaintiffs' Unopposed on Motion for an extension of time until January 18, 2013 in which to file a motion for attorneys' fees and litigation expenses related to their work on the non−compliance issues.. (jrm) (Entered: 11/14/2012)

11/15/2012

1936

MOTION to Amend/Correct Findings of Fact and Conclusions of Law by Roseann Crockett, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 11/15/2012)

12/03/2012 1937 RESPONSE in Opposition re 1936 MOTION to Amend/Correct Findings of Fact and Conclusions of Law filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 12/03/2012)

12/05/2012 1941 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 12/5/2012. (tah) (Entered: 01/09/2013)

12/12/2012

1938

NOTICE of Briefing Complete by All Plaintiffs re 1936 MOTION to Amend/Correct Findings of Fact and Conclusions of Law filed by Kim Lautenschlager, Betty Young, Joseph Gonzales, Shawn Heath, Clinton Heath, Andra Martinez, Kelli Van Curen, Richard Stanfield, Lillian Willmon, Mary Katherine Nowak, Ron Fuller, James Fritche, Sean McHenry, William Thomas, Lacey Walker, Alfred Shirley, Roseann Crockett, Steve Nunez, Mildred Tsosie, Walter Stephen Jackson (Davis, Philip) (Entered: 12/12/2012)

12/14/2012 1939 Unopposed MOTION to Substitute Attorney by Walter Stephen Jackson. (Gardner, Tim) (Entered: 12/14/2012)

12/17/2012 1940 ORDER by District Judge James A. Parker granting 1939 Plaintiffs' Unopposed Motion to Substitute Attorney. Added attorney Tim Gardner for Plaintiffs. Attorney Flynn Evelyn Sylvest terminated.. (jrm) (Entered: 12/17/2012)

01/11/2013 1942 ORDER APPOINTING JACKSON COMPLIANCE ADMINISTRATOR by District Judge James A. Parker. Dr. Sue Gant is appointed as the Jackson Compliance Administrator as further described herein. (kg) (Entered: 01/11/2013)

01/16/2013 1943 Unopposed MOTION for Extension of Time to File Motion for Attorneys' Fees and Expenses by Walter Stephen Jackson. (Davis, Philip) (Entered: 01/16/2013)

01/18/2013 1944 ORDER by District Judge James A. Parker granting 1943 Plaintiffs' Second Unopposed Motion for Extension of Time until March 7, 2013 in which to File their motion for attorneys' fees and expenses.. (jrm) (Entered: 01/18/2013)

01/31/2013 1945 ORDER by District Judge James A. Parker 1942 allowing Jackson Compliance Administrator to use Court Seal.. (jrm) (Entered: 01/31/2013)

02/01/2013 1946 ORDER by District Judge James A. Parker 1936 as described herein.. (jrm) (Entered: 02/01/2013)

02/05/2013 1947 ORDER OF RECUSAL by Chief Magistrate Judge Karen B. Molzen. (KBM) (Entered: 02/05/2013)

02/05/2013

Magistrate Judge Gregory B. Wormuth assigned. Magistrate Judge Karen B. Molzen no longer assigned to case. (bap) (Entered: 02/05/2013)

02/06/2013

Magistrate Judge Lorenzo F. Garcia assigned as the referral judge. Magistrate Judge Gregory B. Wormuth no longer assigned to case. (bap) (Entered: 02/06/2013)

02/19/2013

1948

Unopposed MOTION For Partial Disengagement Of Joint Stipulation On Disengagement Continuous Improvement Individual Service Plan, Paragraph 35 C Metro Region by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 02/19/2013)

02/21/2013 1949 ORDER by District Judge James A. Parker granting 1948 Defendants' Unopposed Motion for Partial Disengagement as further described herein.. (jrm) (Entered: 02/21/2013)
04/11/2013 1950 ORDER OF REASSIGNMENT by Chief Magistrate Judge Karen B. Molzen. Case reassigned to Chief Magistrate Judge Karen B. Molzen for all further proceedings. Magistrate Judge Lorenzo F. Garcia no longer assigned to case. (tah) (Entered: 04/11/2013)
07/11/2013 1951 REPORT by Walter Stephen Jackson (Cubra, Peter) (Entered: 07/11/2013)
07/11/2013 1952 REPORT by Los Lunas Center for Persons with Developmental Disabilities (Attachments: # 1 Cover Letter)(Walz, Jerry) (Entered: 07/11/2013)
07/12/2013 1953 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Emergency meeting held on 7/12/2013 from 9:30 a.m. to 1:00 p.m. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 07/16/2013)
07/15/2013 1954 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Status Conference held on 7/15/2013 from 2:00 p.m. to 5:15 p.m. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 07/16/2013)
07/24/2013 1955 NOTICE of Hearing: Status Conference set for 8/8/2013 at 09:00 AM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 07/24/2013)
08/21/2013 1956 Clerk's Minutes for status conference/hearing held before Senior District Judge James A. Parker on 8/8/2013. (Court Reporter John de la Rosa) (mw) (Entered: 08/21/2013)
09/03/2013 1957 TRANSCRIPT of Proceedings held on 08/08/2013, before Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us. Transcripts may be purchased from the court reporter and/or viewed (but not copied) at the Clerk's Office public terminal within the 90−day period.

Notice of Intent to Request Redaction set for 9/10/2013. Redaction Request due 9/24/2013. Redacted Transcript Deadline set for 10/4/2013. Release of Transcript Restriction set for 12/2/2013.(jdlr) (Entered: 09/03/2013)

11/06/2013 1958 NOTICE of Hearing: Status Conference set for 11/19/2013 at 01:30 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 11/06/2013)

11/06/2013

Status Conference set for 11/21/2013 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. (cda) (Entered: 11/06/2013)

11/06/2013

1959

NOTICE of Hearing: Status Conference is hereby set for 11/21/2013 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. (cda) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] Modified docket text on 11/6/2013 (jc). (Entered: 11/06/2013)

11/15/2013

Set Deadlines/Hearings: Status Conference set for 11/19/2013 at 01:30 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) (Entered: 11/15/2013)

11/19/2013 1961 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 11/19/2013. (Court Reporter J. De La Rosa) (dmw) (Entered: 11/21/2013)

11/22/2013 1962 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Monthly Compliance Meeting for 1/9/2014 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](am) (Entered: 11/22/2013)

12/27/2013

1964

Unopposed MOTION For Partial Disengagement of Joint Stipulation on Disengagement Continuous Improvement Individual Service Plan, Paragraph 35c Southwest Region; Individual Service Plan, Paragraph 35e Northwest Region; Behavioral Supports Paragraph 36b Southeast Region; Behavioral Supports Paragraph 36e Metro Region; and Behavioral Supports Paragraph 36e Southeast Region by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 12/27/2013)

12/30/2013 1965 ORDER FOR PARTIAL DISENGAGEMENT by District Judge James A. Parker 1964 (dmw) (Entered: 12/30/2013)

01/03/2014 1966 ORDER by Senior District Judge James A. Parker directing Jackson Compliance Administrator to issue recommendations by February 3, 2014, in accordance with Order (Doc. No. 1942). (mw) (Entered: 01/03/2014)

01/06/2014

Terminate conference 01/09/2014 by Chief Magistrate Judge Karen B. Molzen (KBM) (Entered: 01/06/2014)

01/16/2014 1967 NOTICE by Walter Stephen Jackson of Unavailability from February 14, 2014 through March 3, 2014 (Cubra, Peter) Modified on 1/17/2014 TO ADD DATES (vv). (Entered: 01/16/2014)

02/04/2014

1969

ORDER by Chief Magistrate Judge Karen B. Molzen − Jackson Compliance Administrator's filing of − JCA's RECOMMENDATIONS and − JCA's REMEDIAL PLAN (as Attachment 1) as directed by the Court in 1966 Senior District Judge Parker's Order of January 3, 2014. (KBM) (Entered: 02/04/2014)

02/26/2014

1970

MEMORANDUM in Support of Jackson Compliance Administrator's Recommendation and Remedial Plan filed by ARC of New Mexico, Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Ava Peets, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 02/26/2014)

02/26/2014 1971 OBJECTIONS re 1969 Order, Jackson Compliance Administrator's Remedial Plan by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Walz, Jerry) (Entered: 02/26/2014)

03/06/2014

1972

MOTION and Memorandum for Review and Establishment of the Jackson Compliance Administrator's Budget for Fiscal Year January 2014 through June 30, 2014 by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Walz, Jerry) (Entered: 03/06/2014)

03/07/2014 1973 ERRATA re 1971 Objections, by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Walz, Jerry) (Entered: 03/07/2014)

03/11/2014

1974

STIPULATION Allowing Defendants to Exceed the Exhibit Limit in Support of Their Response to Plaintiffs' Memorandum in Support of the Jackson Compliance Administrator's Recommendation and Remedial Plans by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Walz, Jerry) (Entered: 03/11/2014)

03/11/2014

1975

Defendants' RESPONSE to Plaintiffs' Memorandum in Support of the Jackson Compliance Administrator's Recommendation and Remedial Plan re 1974 Stipulation, 1970 Memorandum in Support,, filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Walz, Jerry) (Entered: 03/11/2014)

03/26/2014 1976 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: JCA Budget Mediation held on 3/26/2014. THIS IS A TEXT ONLY ENTRY − NO DOCUMENTS ARE ATTACHED. (KBM) (Entered: 03/26/2014)

04/01/2014 1978 STIPULATED ORDER re The Jackson Compliance Administrator's Budget by District Judge James A. Parker (vv) (Entered: 04/01/2014)

04/03/2014 1979 ORDER by District Judge James A. Parker denying 1972 Motion for review (vv) (Entered: 04/03/2014)

04/15/2014

1980

Unopposed MOTION for Partial Disengagement of Joint Stipulation on Disengagement, Plan of Action Appendix 15 Ashton Recommendations Numbers #1, #2, #9, #10, and #12 by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) Modified on 4/16/2014 (eh). (Entered: 04/15/2014)

04/16/2014 1981 ORDER by District Judge James A. Parker granting 1980 Motion for Partial Disengagement (dmw) (Entered: 04/16/2014)

05/05/2014 1982 NOTICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Notice of Unavailability (Walz, Jerry) (Entered: 05/05/2014)

05/08/2014 1983 Clerk's Minute for proceedings held before Chief Magistrate Judge Karen B. Molzen: Conference held on 5/8/2014. (am) (Entered: 05/08/2014)

06/05/2014

1985

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Settlement Conference held on 6/5/2014. The parties will provide a Joint Status Report to Chief Magistrate Judge Karen B. Molzen within ten days. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 06/05/2014)

07/03/2014

1986

JOINT STATUS REPORT − Approved by Chief Magistrate Judge Karen B. Molzen. On July 24, 2014, the parties are to submit concise simultaneous position statements addressing each of the JCA Recommendations for which no conditional approval has been reached. (Attachments: # 1 Appendix − Chart: Recorded Agreements and Disagreements, # 2 Plaintiffs' Exhibit A − November 2013 Proposal for Matrix of Obligations). (KBM) (Entered: 07/03/2014)

07/23/2014 1987 NOTICE by Walter Stephen Jackson re 1969 Order, Plaintiffs' Position Statements re JCA's Recommendations (Cubra, Peter) (Entered: 07/23/2014)

07/24/2014 1988 NOTICE of Hearing: Status Conference set for 8/8/2014 at 10:00 AM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 07/24/2014)

07/24/2014

1989

NOTICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 1986 Status Report Order, 1969 Order, Memorandum Supporting Defendants' Objections to The JCA Proposed Remedial Plan (Attachments: # 1 Exhibit A)(Walz, Jerry) (Entered: 07/24/2014)

07/28/2014 1990 NOTICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Notice of Withdrawal of Kathyleen M. Kunkel as Co−Counsel for Defendants (Walz, Jerry) (Entered: 07/28/2014)

07/31/2014 1991 MINUTE ORDER by District Judge James A. Parker vacating the status conference scheduled on 8/8/2014 at 10:00 AM; the status conference will be rescheduled at a later date. (dm) (Entered: 07/31/2014)

08/12/2014

1992

Unopposed MOTION for Partial Disengagement of Joint Stipulation on Disengagement Continuous Improvement Staff Trained on BSP Paragraph 36c Northwest Region by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) Modified TEXT on 8/13/2014 (vv). (Entered: 08/12/2014)

08/18/2014 1993 ORDER for partial disengagement by District Judge James A. Parker granting 1992 Motion (vv) (Entered: 08/18/2014)

09/02/2014 1994 NOTICE OF QUARTERLY MEETING set for 9/12/2014 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 09/02/2014)

09/04/2014

1995

Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Status Meeting held on 9/4/2014. Participants included Dr. Sue Gant, Cathy Stevenson, Gabriella Valdez, Jerry Walz, Maureen Sanders, Lyn Rucker, and Peter Cubra. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 09/04/2014)

09/11/2014 1996 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker (Attachments: # 1 Table I, # 2 Table II, # 3 Table III)(bap) (Entered: 09/11/2014)

09/12/2014 1997 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Status Conference held on 9/12/2014. (am) (Entered: 09/12/2014)

09/17/2014 1998 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Status Conference held on 9/17/2014. (am) (Entered: 09/17/2014)

09/24/2014 1999 ORDER OF RECUSAL by Magistrate Judge Karen B. Molzen. (KBM) (Entered: 09/24/2014)

09/24/2014 2000 PLEASE TAKE NOTICE that this case has been reassigned to U.S. Magistrate Judge Kirtan Khalsa as the pretrial judge.

Under D.N.M.LR−Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.

Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.

Chief U.S. Magistrate Judge Karen B. Molzen is no longer assigned to this case. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (mr) (Entered: 09/24/2014)

09/26/2014

2001

Unopposed MOTION to Extend (other) the Exhibit Limit in Support of Defendants' Opposed Motion for Partial Disengagement Seeking Disengagement of Appendix A−DVR by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 09/26/2014)

09/26/2014 2002 ORDER by District Judge James A. Parker granting 2001 Unopposed Motion for Extension on the Exhibit Limit in Support of Defendants' Opposed Motion for Partial Disengagement Seeking Disengagement of Appendix A−DVR (bap) (Entered: 09/26/2014)

09/26/2014 2003 Opposed MOTION for Partial Disengagement Seeking Disengagement of Appendix A−DVR re 2002 Order on Motion to Extend (other) by Fort Stanton Hospital and

Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V)(Walz, Jerry) (Entered: 09/26/2014)
10/08/2014 2004 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 12/12/2014 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](am) (Entered: 10/08/2014)
10/30/2014 2005 NOTICE OF AVAILABILITY by Chief Magistrate Judge Karen B. Molzen. (KBM) (Entered: 10/30/2014)
11/03/2014 2006 ORDER REFERRING CASE to Magistrate Judge Karen B. Molzen by District Judge James A. Parker (bap) (Entered: 11/04/2014)
11/04/2014 2007 PLEASE TAKE NOTICE that this case has been reassigned to U.S. Magistrate Judge Karen B. Molzen as the pretrial judge.

Under D.N.M.LR−Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.

Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.

U.S. Magistrate Judge Kirtan Khalsa no longer assigned to this case. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (iad) (Entered: 11/04/2014)

11/21/2014 2008 Evaluative Components As Directed RESPONSE re 1996 Memorandum Opinion and Order filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Appendix Table of Acronyms)(Walz, Jerry) (Entered: 11/21/2014)

12/01/2014

2009

ORDER RESETTING QUARTERLY MEETING by Chief Magistrate Judge Karen B. Molzen. The Quarterly Meeting set for 12/12/2014 at 08:30 AM is hereby VACATED and is reset for 1/9/2015 at 08:30 AM in Albuquerque − 520 Gila Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](cda) (Entered: 12/01/2014)

12/02/2014

2010

AMENDED ORDER RESETTING QUARTERLY MEETING (as to time only) by Chief Magistrate Judge Karen B. Molzen. The Quarterly Meeting will take place on 1/9/2015 at 09:00 AM in Albuquerque − 520 Gila Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](cda) (Entered: 12/02/2014)

12/08/2014

2011

Unopposed MOTION for Leave to File Excess Pages for Defendants' Motion and Exhibit Limit in Support of Defendants' Opposed Motion for Partial Disengagement Seeking Disengagement of the 1998 Audit Recommendation Numbers 6, 8, 12, 15, 16 (a, e and f), 19, and 24 by Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 12/08/2014)

12/10/2014 2012 ORDER by District Judge James A. Parker granting 2011 Unopposed Motion for Leave to File Excess Pages (bap) (Entered: 12/10/2014)

12/10/2014

2013

MOTION Motion and Memorandum in Support of Opposed Motion for Disengagement of The 1998 Audit Recommendations Numbers 6, 8, 12, 15, 16 (a, e, and f), 19, and 24 by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19

Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit AB, # 29 Exhibit AC, # 30 Exhibit AD, # 31 Exhibit AE, # 32 Exhibit AF, # 33 Exhibit AG, # 34 Exhibit AH, # 35 Exhibit AI, # 36 Exhibit AJ, # 37 Exhibit AK, # 38 Exhibit AL, # 39 Exhibit AM, # 40 Exhibit AN, # 41 Exhibit AO, # 42 Exhibit AP, # 43 Exhibit AQ, # 44 Exhibit AR, # 45 Exhibit AS, # 46 Exhibit AT, # 47 Exhibit AU, # 48 Exhibit AV, # 49 Exhibit AW, # 50 Exhibit AX, # 51 Exhibit AY)(Walz, Jerry) Modified on 6/10/2015 (bap). (Entered: 12/10/2014)

12/12/2014 2014 REPLY Plaintiffs Comments re 2008 Response, filed by Walter Stephen Jackson. (Attachments: # 1 Exhibit Exhibit 1)(Cubra, Peter) (Entered: 12/12/2014)

12/15/2014

AMENDED ORDER RESETTING QUARTERLY MEETING (as to location only) by Chief Magistrate Judge Karen B. Molzen. The Quarterly Meeting will take place on 1/9/2015 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](am) (Entered: 12/15/2014)

12/31/2014 2015 Opposed MOTION for Leave to File Excess Pages by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Walz, Jerry) (Entered: 12/31/2014)

12/31/2014

2016

NOTICE by Chief Magistrate Judge Karen B. Molzen of the filing of the FORMAL RECOMMENDATION by the Jackson Compliance Administrator as to evaluative disengagement criteria (attached hereto). Pursuant to the terms of the Joint Status Report as adopted by Judge Parker, any objections are to be filed no later than January 15, 2015. (Attachment: JCA's EVALUATIVE DISENGAGEMENT CRITERIA)(KBM) (Entered: 12/31/2014)

01/05/2015

2017

MOTION Defendants' Opposed Motion and Memorandum In Support Seeking Partial Disengagement of Appendix A−Case Management by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit AB, # 29 Exhibit AC, # 30 Exhibit AD, # 31 Exhibit AE, # 32 Exhibit AF, # 33 Exhibit AG, # 34 Exhibit AH, # 35 Exhibit AI, # 36 Exhibit AJ)(Walz, Jerry) Modified on 6/10/2015 (bap). (Entered: 01/05/2015)

01/09/2015 2018 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Provider Meeting held on 1/9/2015. (am) (Entered: 01/09/2015)

01/09/2015 2019 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 1/9/2015. (am) (Entered: 01/09/2015)

01/13/2015 2020 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 3/26/2015 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. (am) (Entered: 01/13/2015)

01/15/2015 2021 Unopposed MOTION for Leave to File Excess Pages for Defendants' Objections to the Jackson Compliance Administrator's Proposed Evaluative Components by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 01/15/2015)

01/15/2015 2022 Defendants RESPONSE Objections to Evaluative Components as Proposed by the Jackson Compliance Administrator re 2016 Notice (Other), filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A)(Walz, Jerry) (Entered: 01/15/2015)

01/15/2015 2023 ORDER by District Judge James A. Parker granting 2021 Unopposed Motion for Leave to File Excess Page limit for Defendants' Objections to the Jackson Compliance Administrator's Proposed Evaluative Components (bap) (Entered: 01/16/2015)

01/20/2015 2024 ORDER extending the terms of the April 1, 2014 re 1978 Jackson Compliance Administrator's Budget Order by District Judge James A. Parker (bap) (Entered: 01/20/2015)

01/23/2015 2025 STIPULATION by the Parties and ORDER by District Judge James A. Parker (bap) (Entered: 01/23/2015)

01/27/2015 2027 Clerk's Minutes for proceedings held before District Judge James A. Parker: Telephonic Status Conference re 2022 held on 1/27/2015. (Court Reporter J. De La Rosa) (dmw) (Entered: 01/29/2015)

01/29/2015 2026 NOTICE of Hearing: Status Conference scheduled on 2/11/2015 at 01:00 PM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 01/29/2015)

02/02/2015 2028 REPORT by Walter Stephen Jackson (Attachments: # 1 Exhibit)(Cubra, Peter) (Entered: 02/02/2015)

02/11/2015 2029 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 2/11/2015. (Court Reporter John De La Rosa) (bap) (Entered: 02/13/2015)

02/18/2015

2030

MEMORANDUM OPINION AND ORDER denying defendants' 2003 Opposed MOTION for Partial Disengagement Seeking Disengagement of Appendix A−DVR re 2002 Order on Motion to Extend (other) . Related document(s): 2003 Opposed MOTION for Partial Disengagement Seeking Disengagement of Appendix A−DVR re 2002 Order on Motion to Extend (other) . by District Judge James A. Parker (bap) (Entered: 02/18/2015)

03/03/2015

2031

TRANSCRIPT of STATUS CONFERENCE held on 02/11/2015, before District Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Notice of Intent to Request Redaction set for 3/10/2015. Redaction Request due 3/24/2015. Redacted Transcript Deadline set for 4/3/2015. Release of Transcript Restriction set for 6/1/2015.(jdlr) (Entered: 03/03/2015)
03/19/2015 2032 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker DENYING, without prejudice Defendants' 2003 Opposed MOTION for Partial Disengagement of the 1998 Audit Recommendations Numbers 6, 8, 12, 15, 16 (a,e and f), 19 and 24 (Attachments: # 1 Table 1)(bap) (Entered: 03/19/2015)
03/25/2015 2033 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Provider Meeting held on 3/25/2015. (am) (Entered: 03/25/2015)
03/26/2015 2034 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 3/26/2015. (cda) (Entered: 03/26/2015)
04/03/2015 2035 MEMORANDUM OPINION AND ORDER by District Judge James A. Parker. See Order for further details. (Attachments: # 1 Final Evaluative − Table IV)(kg) (Entered: 04/03/2015)
04/30/2015 2037 STIPULATION re 2017 MOTION Defendants' Opposed Motion and Memorandum In Support Seeking Partial Disengagement of Appendix A−Case Management by

Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Walz, Jerry) (Entered: 04/30/2015)

04/30/2015

2038

STIPULATED ORDER by District Judge James A. Parker granting 2017 MOTION Defendants' Opposed Motion and Memorandum In Support Seeking Partial Disengagement of Appendix A−Case Management filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities (bap) (Entered: 05/01/2015)

05/04/2015

2039

STIPULATION re 2035 Memorandum Opinion and Order by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Attachments: # 1 Proposed changes to Table IV)(Walz, Jerry) (Entered: 05/04/2015)

05/08/2015 2040 Unopposed MOTION for Leave to File Excess Pages by Fort Stanton Hospital and Training School, New Mexico Human Services Department. (Walz, Jerry) (Entered: 05/08/2015)

05/15/2015 2041 NOTICE by Los Lunas Center for Persons with Developmental Disabilities of filing of comprehensive list of outstanding obligations and time table (Attachments: # 1 Timeline of Outstanding Obligations)(Walz, Jerry) (Entered: 05/15/2015)

05/20/2015 2042 ORDER by District Judge James A. Parker granting 2040 Unopposed Motion for Leave to File Excess Page Limit for Defendants' Rule 60(b)5 Motion up to 55 pages (bap) (Entered: 05/20/2015)

05/28/2015 2043 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 6/26/2015 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](cda) (Entered: 05/28/2015)

06/05/2015 2044 ORDER Amending Table IV by District Judge James A. Parker (bap) (Entered: 06/05/2015)

06/11/2015 2045 ORDER by District Judge James A. Parker denying as moot Defendants' 2015 Opposed Motion and Memorandum in Support for Leave to File Excess Pages and Exhibit limits (bap) (Entered: 06/11/2015)

06/12/2015 2046 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department of Filing of Revised Table IV (Walz, Jerry) (Entered: 06/12/2015)

06/25/2015 2047 NOTICE of Change of Address by Ava Peets (dmw) (Entered: 06/25/2015)

06/26/2015 2048 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Provider Meeting held on 6/25/2015. (am) (Entered: 06/26/2015)

06/26/2015 2049 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 6/26/2015. (am) (Entered: 06/26/2015)

06/26/2015 2050 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 9/24/2015 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](am) (Entered: 06/26/2015)

07/01/2015 2051 ORDER extending the terms of April 1, 2014 Jackson Compliance Administrator's Budget order by District Judge James A. Parker (vv) (Entered: 07/01/2015)

08/07/2015 2052 STIPULATION AND ORDER OF DISENGAGEMENT by District Judge James A. Parker (bap) (Entered: 08/07/2015)

08/25/2015

2053

MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v. FSH&TS et al by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry)

(Entered: 08/25/2015)

09/03/2015

2054

Unopposed MOTION for Extension of Time to File Response/Reply as to 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v. FSH&TS et al by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 09/03/2015)

09/03/2015 2055 NOTICE by Los Lunas Center for Persons with Developmental Disabilities Jackson Quarterly Report Status (Walz, Jerry) (Entered: 09/03/2015)

09/16/2015

2056

ORDER by District Judge James A. Parker granting 2054 Motion for Extension of Time to File Response/Reply re 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders Plaintiffs Response due by 10/15/2015 (bap) (Entered: 09/16/2015)

09/21/2015

2057

ERRATA re 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v. FSH&TS et al Withdrawal of Footnote No. 3 by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Walz, Jerry) (Entered: 09/21/2015)

09/22/2015

2058

Opposed MOTION and Memorandum in Support Seeking Partial Disengagement of Continuous Improvement Paragraphs 35d and 35c by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Walz, Jerry) Modified text on 9/23/2015 (bap). (Entered: 09/22/2015)

09/25/2015 2059 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 9/25/2015. (am) (Entered: 09/25/2015)

09/28/2015 2060 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 02/04/2016 at 09:00 AM at a location in Santa Fe to be determined before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](am) (Entered: 09/28/2015)

09/30/2015

2061

Unopposed MOTION for Leave to File Excess Pages by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon, Betty Young. (Schwartz, Steven) (Entered: 09/30/2015)

10/05/2015 2062 ORDER by District Judge James A. Parker granting Plaintiffs' 2061 Unopposed Motion for Leave to File Excess Pages up to 45 pages in length for Response to Defendants' Rule 60(B)(5) Motion (bap) (Entered: 10/05/2015)

10/08/2015

2063

RESPONSE in Opposition re 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v. FSH&TS et al filed by Andre Armenta, Roseann Crockett, Developmentally Disabled New Mexicans, Inc, Supporters of, James Fritche, Ron Fuller, Joseph Gonzales, Clinton Heath, Shawn Heath, Walter Stephen Jackson, Kim Lautenschlager, Andra Martinez, Sean McHenry, Mary Katherine Nowak, Steve Nunez, Alfred Shirley, Richard Stanfield, William Thomas, Mildred Tsosie, Kelli Van Curen, Lacey Walker, Lillian Willmon. (Schwartz, Steven) (Entered: 10/08/2015)

10/21/2015 2064 Unopposed MOTION for Extension of Time to File Response/Reply as to 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v.

FSH&TS et al by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, New Mexico Human Services Department. (Walz, Jerry) (Entered: 10/21/2015)

10/22/2015

2065

ORDER by District Judge James A. Parker granting 2064 Motion for Extension of Time to File Response/Reply re 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v. FSH&TS et al. Reply due by 11/24/2015. (dm) [THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] Modified TEXT on 10/23/2015 (bap). (Entered: 10/22/2015)

11/16/2015 2068 Unopposed MOTION for Leave to File Excess Pages on Defendants' Reply in Support of Their Rule 60(B)(5) Motion by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 11/16/2015)

11/16/2015 2069 STIPULATED ORDER by District Judge James A. Parker granting Defendant's Opposed 2058 Motion for Partial Disengagement of Continuous Improvement Adequate Use of Generic Services Paragraph 35D Metro Region (bap) (Entered: 11/16/2015)

11/18/2015 2070 ORDER by District Judge James A. Parker granting 2068 Motion for Leave to File Excess Pages on Defendant's Reply in Support. (bap) (Entered: 11/18/2015)

11/24/2015

2071

REPLY to Response to Motion re 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v. FSH&TS et al filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 11/24/2015)

11/24/2015

2072

NOTICE of Briefing Complete by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v. FSH&TS et al filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 11/24/2015)

11/24/2015

2073

STIPULATION as to Disengagement Process for Evaluative Components 2046 by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Walz, Jerry) Modified text to add linkage on 11/30/2015 (bap). (Entered: 11/24/2015)

12/01/2015 2074 MEMORANDUM in Opposition re 2058 Opposed MOTION for Disengagement of Continuous Improvement Paragraphs 35d and 35c filed by Walter Stephen Jackson. (McCartney, Ann) (Entered: 12/01/2015)

12/11/2015

2075

Unopposed MOTION for Disengagement of the 1998 Audit Recommendations by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) Modified text on 12/14/2015 (dmw). (Entered: 12/11/2015)

12/14/2015 2076 ORDER by District Judge James A. Parker granting 2075 Motion for Partial Disengagement of the 1998 Audit Recommendations (dmw) (Entered: 12/14/2015)

12/15/2015

2077

REPLY to Response to Motion re 2058 Opposed MOTION for Disengagement of Continuous Improvement Paragraphs 35d and 35c filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 12/15/2015)

12/15/2015 2078 NOTICE of Briefing Complete by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons

with Developmental Disabilities, New Mexico Human Services Department re 2058 Opposed MOTION for Disengagement of Continuous Improvement Paragraphs 35d and 35c filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 12/15/2015)

01/15/2016 2079 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Jackson Quarterly Report for January 15, 2016 (Walz, Jerry) (Entered: 01/15/2016)

01/25/2016 2080 JCA's 01/21/2016 DETERMINATION re: Disengagement Criteria Objective S.1.1.1. (KBM) (Entered: 01/25/2016)

02/09/2016 2083 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 2/4/2016. (am) (Entered: 02/09/2016)

02/09/2016 2084 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 4/28/2016 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.](am) (Entered: 02/09/2016)

02/11/2016 2094 STIPULATED ORDER on Procedure for Extending Timelines by Senior District Judge James A. Parker. (bap) (Entered: 02/11/2016)

02/11/2016 2095 STIPULATED ORDER for Disengagement of Objective S1.1.1 by Senior District Judge James A. Parker. (bap) (Entered: 02/11/2016)

04/15/2016 2101 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Jackson Quarterly Report for April 15, 2016 (Walz, Jerry) (Entered: 04/15/2016)

04/27/2016 2102 MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker denying 2058 Opposed MOTION for Disengagement of Continuous Improvement Paragraphs 35c . (bap) (Entered: 04/27/2016)

06/14/2016 2103 MEMORANDUM OPINION AND ORDER denying 2053 MOTION to Alter Judgment Defendants Verified Rule 60(b)(5) Motion and Supporting Memorandum to Terminate all Remaining Orders in Jackson et al. v. FSH&TS et al by District Judge James A. Parker. (vv) (Entered: 06/14/2016)

07/06/2016

2104

NOTICE OF APPEAL as to 2103 Memorandum Opinion and Order, by Jack Callaghan, Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Filing Fee − Deliver Payment) (Attachments: # 1 Exhibit A−Doc. 2103) (Walz, Jerry) (Entered: 07/06/2016)

07/06/2016

2105

USCA Appeal Fees received $ 505 receipt number ALB033461 re 2104 Notice of Appeal, filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Jack Callaghan, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (ln) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 07/06/2016)

07/07/2016 2106 Transmission of Preliminary Record to US Court of Appeals re 2104 Notice of Appeal (bap) (Entered: 07/07/2016)

07/12/2016

2107

USCA Information Letter with Case Number 16−2172 for 2104 Notice of Appeal, filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Jack Callaghan, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities. (bap) (Entered: 07/12/2016)

07/19/2016 2108 NOTICE of Hearing: Status Conference set for 7/27/2016 at 09:00 AM in Albuquerque − 421 Gold Sixth Floor before District Judge James A. Parker. (dm) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 07/19/2016)

07/27/2016 2109 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 7/27/2016. (Court Reporter John De La Rosa) (bap) (Entered: 07/28/2016)

08/01/2016

2110

TRANSCRIPT ORDER FORM by Jack Callaghan, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department requesting the proceedings held on 12/19/94; 12/15/95; 2/9/96; 3/25/96; 6/13/97; 11/2/98; 5/4/99; 5/25/05; 12/19/07; 12/10/08; 10/25/11; 11/19/13 be transcribed for the 2104 Notice of Appeal, (Walz, Jerry) (Entered: 08/01/2016)

08/01/2016 2111 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Filing of Quarterly Report for August 1, 2016 (Walz, Jerry) (Entered: 08/01/2016)

08/11/2016 2113 NOTICE by Walter Stephen Jackson Unavailibility from 9/8/2016 − 9/25/2016 (Cubra, Peter) Modified text to add dates on 8/12/2016 (bap). (Entered: 08/11/2016)

08/11/2016 2114 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 8/17/2016 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (mlt) (Entered: 08/11/2016)

08/18/2016 2116 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 8/17/2016. (am) (Entered: 08/18/2016)

08/18/2016 2117 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 11/15/2016, at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 08/18/2016)

08/22/2016 2118 Court Reporter John DeLaRosa estimates date of 10/13/2016 for completion of the transcript of hearing(s) held before Judge James A. Parker on various dates as ordered for the Notice of Appeal Re: 2104 Notice of Appeal. (bap) (Entered: 08/23/2016)

08/22/2016 2119 LETTER to USCA re certain transcripts cannot be produced because they do not exist as part of the record. (bap) (Entered: 09/23/2016)

10/03/2016 2120 JCA's 09/29/2016 DETERMINATION re: Disengagement Criteria Objective S1.1.5. (KBM) (Entered: 10/03/2016)

10/04/2016 2121 JCA's 09/30/2016 DETERMINATION re: Disengagement Criteria Objective S1.3.1. (KBM) (Entered: 10/04/2016)

10/12/2016

2122

TRANSCRIPT of STATUS CONFERENCE held on 12/18/2007, before District Judge James A. Parker re 2104 Notice of Appeal. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Notice of Intent to Request Redaction set for 10/19/2016. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017.(jdlr) (Entered: 10/12/2016)
10/12/2016 2123 TRANSCRIPT of STATUS CONFERENCE held on 12/10/2008, before District Judge James A. Parker re 2104 Notice of Appeal. Court Reporter/Transcriber John De

La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Notice of Intent to Request Redaction set for 10/19/2016. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017.(jdlr) (Entered: 10/12/2016)

10/12/2016

2124

TRANSCRIPT of STATUS CONFERENCE held on 10/25/2011, before District Judge James A. Parker re 2104 Notice of Appeal. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Notice of Intent to Request Redaction set for 10/19/2016. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017.(jdlr) (Entered: 10/12/2016)

10/12/2016

2125

TRANSCRIPT of STATUS CONFERENCE held on 11/19/2013, before District Judge James A. Parker re 2104 Notice of Appeal. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Notice of Intent to Request Redaction set for 10/19/2016. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017.(jdlr) (Entered: 10/12/2016)
10/18/2016 2126 NOTICE TO USCA that Record is Complete re #16−2172 re 2104 Notice of Appeal. (bap) (Entered: 10/18/2016)

10/26/2016 2127 JCA's 10/19/2016 DETERMINATION re: Disengagement Criteria Objective S1.1.4. (KBM) (Entered: 10/26/2016) (Entered: 10/26/2016)
11/01/2016 2128 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Jackson Quarterly Report for November 1 2016 (Walz, Jerry) (Entered: 11/01/2016)
11/08/2016 2129 NOTICE of Change of Address by Philip B. Davis (Davis, Philip) (Entered: 11/08/2016)
11/16/2016 2130 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 11/15/2016. (am) (Entered: 11/16/2016)
11/18/2016 2131 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 2/10/2017 at 09:00 AM before Chief Magistrate Judge Karen B. Molzen at a location in Santa Fe to be determined. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 11/18/2016)
01/03/2017 2134 STIPULATION by the Parties by Jack Callaghan, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Attachments: # 1 Exhibit A−Plan of Action) (Walz, Jerry) (Entered: 01/03/2017)
01/27/2017 2137 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Jackson Quarterly Report for January 27 2017 (Walz, Jerry) (Entered: 01/27/2017)
02/10/2017 2138 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 4/27/2017 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 02/10/2017)
02/15/2017 2139 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 2/10/2017. (am) (Entered: 02/15/2017)
02/16/2017 2140 STIPULATED ORDER for Disengagement of Objective S1.1.4 by Senior District Judge James A. Parker. (bap) (Entered: 02/16/2017)
02/16/2017 2141 STIPULATED ORDER for Disengagement of Objective S1.1.5 and S1.3.1 by Senior District Judge James A. Parker. (bap) (Entered: 02/16/2017)
04/19/2017 2142 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Jackson Quarterly Report for April 19 2017 (Walz, Jerry) (Entered: 04/19/2017)
04/27/2017 2143 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 7/19/2017 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (mlt) (Entered: 04/27/2017)
04/27/2017 2144 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 4/27/2017. (am) (Entered: 04/27/2017)
04/28/2017 2145 STIPULATED ORDER for Disengagement of Objective S1.1.6 re 2073 Stipulation by Senior District Judge James A. Parker. (bap) (Entered: 05/01/2017)
06/15/2017 2146 JCA's 06/14/2017 DETERMINATION re: Disengagement Criteria Objective S1.4.1. (KBM) (Entered: 06/15/2017)
06/29/2017 2147 STIPULATED ORDER FOR DISENGAGEMENT OF OBJECTIVE S1.4.1 re 2073 Stipulation by Senior District Judge James A. Parker. (bap) (Entered: 06/29/2017)
07/10/2017 2148 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Jackson Quarterly Report for July 10 2017 (Walz, Jerry) (Entered: 07/10/2017)

07/19/2017

2149

ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 11/2/2017 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. (am) [THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] Modified on 7/20/2017 (bap). (Entered: 07/19/2017)

07/19/2017 2150 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 7/19/2017. (am) (Entered: 07/20/2017)

10/04/2017 2153 JCA's 10/03/2017 DETERMINATION re: Disengagement Criteria Plan of Action Outcome K and Plan of Action Outcome A. (KBM) (Entered: 10/04/2017)

10/18/2017 2154 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Jackson Quarterly Report for October 18 2017 (Walz, Jerry) (Entered: 10/18/2017)

10/19/2017

2155

Unopposed MOTION for Order for Partial Disengagement Plan of Action Assistive Technology Outcome A and Training and Technical Assistance Outcome K by Jack Callaghan, Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 10/19/2017)

10/24/2017 2156 STIPULATED ORDER by Senior District Judge James A. Parker re 2155 Motion for Order for Disengagement of Assistive Technology Outcome A and Training and Technical Assistance Outcome K (Assistive Technology) re 1064 Joint Stipulation for Disengagement (bap) (Entered: 10/24/2017)

11/03/2017 2157 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 11/2/2017. (am) (Entered: 11/03/2017)

11/03/2017 2158 ORDER by Chief Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 2/22/2018 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 11/03/2017)

11/21/2017

2159

ORDER by Chief Magistrate Judge Karen B. Molzen VACATING the Quarterly Meeting set for 2/22/2018 and RESETTING it for 4/24/2018 at 09:00 AM in Albuquerque − 560 Cimarron Courtroom before Chief Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 11/21/2017)

12/14/2017 2161 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Meeting held on 12/14/2017. (cm) (Entered: 12/14/2017)

02/02/2018 2166 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Monthly Meeting held on 2/1/2018. (am) (Entered: 02/02/2018)

02/02/2018 2167 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Attorney Meeting held on 2/1/2018. (am) (Entered: 02/02/2018)

02/08/2018 2168 JCA's 02/08/2018 DETERMINATION re: Disengagement Criteria Objective S5.4. (KBM) (Entered: 02/08/2018)

02/14/2018

2170

NOTICE of Hearing: Status Conference set for 2/26/2018 at 01:30 PM in Albuquerque − 421 Gold, 2nd Floor Courtroom before District Judge James A. Parker. (snn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 02/14/2018)

02/14/2018

2171

NOTICE of Hearing: Status Conference set for 4/24/2018 at 01:30 PM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (snn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 02/14/2018)

02/14/2018 2172 Clerk's Minutes for proceedings held before Chief Magistrate Judge Karen B. Molzen: Meeting held on 2/14/2018. (am) (Entered: 02/14/2018)

02/14/2018

2173

MANDATE of USCA REMANDING back to USDC for further proceedings 2104 Notice of Appeal, filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Jack Callaghan, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (Attachments: # 1 Judgment, # 2 Opinion) (bap) (Entered: 02/14/2018)

02/21/2018 2174 Unopposed MOTION for Supplement to Defendants' Rule 60(b)(5) Motion by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 02/21/2018)

02/22/2018 2175 STIPULATED ORDER by District Judge James A. Parker granting 2174 Unopposed Motion to Supplement (bap) (Entered: 02/22/2018)

02/23/2018

2176

AMENDED NOTICE of Hearing: Status Conference set for 2/26/2018 at 01:30 PM in Albuquerque − 560 Cimarron Courtroom before District Judge James A. Parker. (jmg) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 02/23/2018)

02/26/2018 2180 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 2/26/2018. (Court Reporter John De La Rosa) (bap) (Entered: 03/02/2018)

03/12/2018

2181

TRANSCRIPT of STATUS CONFERENCE held on 02/26/2018, before District Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Notice of Intent to Request Redaction set for 3/19/2018. Redaction Request due 4/2/2018. Redacted Transcript Deadline set for 4/12/2018. Release of Transcript Restriction set for 6/11/2018.(jdlr) (Entered: 03/12/2018)

03/27/2018 2182 Unopposed MOTION for Leave to File Excess Pages for Supplement to Verified 60(b)(5) by Dept. of Vocational Rehab for the State of New Mexico, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 03/27/2018)

03/28/2018 2183 ORDER by Senior District Judge James A. Parker granting 2182 Unopposed Motion for Leave to File Excess Pages on Defendants' Supplement to Their Verified Rule 60(b)(5) Motion (bap) (Entered: 03/28/2018)

03/28/2018 2184 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting held on 03/28/2018. (cm) (Entered: 03/28/2018)

03/28/2018

2185

AMENDED ORDER [amended as to time only] by Magistrate Judge Karen B. Molzen setting the Quarterly Meeting for 04/24/2018 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (cm) (Entered: 03/28/2018)

03/29/2018 2186 STIPULATED ORDER for Disengagement of Objective S5.4 by Senior District Judge James A. Parker. (bap) (Entered: 03/30/2018)

04/02/2018 2187 Unopposed MOTION for Leave to File Excess Pages Exhibits by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los

Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 04/02/2018)

04/02/2018

2188

MOTION for Supplement to Defendants' 60(b)(5) Motion [Doc. 2053] by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y) (Walz, Jerry) (Entered: 04/02/2018)

04/02/2018 2189 Witness List by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 04/02/2018)

04/06/2018 2190 ORDER by Senior District Judge James A. Parker granting 2187 Unopposed Motion for Leave to File Excess Pages up to 451 for exhibits re 2188 Defendants Supplementation to Motion and Supporting Memorandum to Terminate all remaining orders (bap) (Entered: 04/06/2018)

04/10/2018 2191 CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Jackson Quarterly Report (Walz, Jerry) (Entered: 04/10/2018)

04/20/2018 2192 NOTICE by Andre Armenta re 2188 MOTION for Supplement to Defendants' 60(b)(5) Motion [Doc. 2053] (Cubra, Peter) (Entered: 04/20/2018)

04/20/2018 2193 Witness List by Andre Armenta. (Cubra, Peter) (Entered: 04/20/2018)

04/23/2018 2194 Proposed Pretrial Schedule and Discovery Plan by ARC of New Mexico, Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) Modified title of pleading on 4/24/2018 (bap). (Entered: 04/23/2018)

04/23/2018 2196 Amended Proposed Pre−Trial Schedule and Discovery Plan by ARC of New Mexico, Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) Modified text on 4/24/2018 (bap). (Entered: 04/23/2018)

04/24/2018 2197 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 4/24/2018. (am) (Entered: 04/24/2018)

04/24/2018 2198 Clerk's Minutes for proceedings held before Senior District Judge James A. Parker: Status Conference held on 4/24/2018. (Court Reporter John De La Rosa) (bap) (Entered: 04/25/2018)

04/27/2018

2199

ORDER SCHEDULING PRETRIAL CONFERENCE AND SETTING SOME PRETRIAL DEADLINES by District Judge James A. Parker. Proposed Pretrial Order due by 1/3/2019. Pretrial Order due by 1/15/2019. Pretrial Conference set for 1/22/2019 at 10:00 AM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (kg) (Entered: 04/27/2018)

04/30/2018 2200 NOTICE by Walter Stephen Jackson of Joint Stipulation on Pre−trial Schedule and Discovery (Davis, Philip) (Entered: 04/30/2018)

04/30/2018 2201 ORDER ON JOINT STIPULATION ON PRE−TRIAL SCHEDULE AND DISCOVERY by Magistrate Judge Karen B. Molzen. (KBM) (Entered: 04/30/2018)

04/30/2018 2202 STIPULATION AND ORDER on Discovery Protocol by Magistrate Judge Karen B. Molzen. (KBM) (Entered: 04/30/2018)

05/04/2018 2203 CERTIFICATE OF SERVICE by Walter Stephen Jackson for Plaintiffs' Pre−trial Interrogatories and Requests for Production to Defendants (Davis, Philip) (Entered: 05/04/2018)

05/14/2018 2204 MOTION in Limine to Exclude the Jackson Compliance Administrator from Offering Testimony by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton

Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 05/14/2018)

05/15/2018

2205

ERRATA re 2204 MOTION in Limine to Exclude the Jackson Compliance Administrator from Offering Testimony Exhibit A by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Sue A Gant, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Attachments: # 1 Exhibit A) (Walz, Jerry) (Entered: 05/15/2018)

05/30/2018

2206

Unopposed MOTION for Leave to File Excess Pages for Plaintiffs' Response to Defendants' Motion and Memorandum in Support of Excluding the Jackson Compliance Administrator from Offering Testimony [Doc. 2204] and to Extend Page Limits for the Exhibits Thereto by Walter Stephen Jackson. (Davis, Philip) (Entered: 05/30/2018)

05/31/2018 2207 STIPULATED ORDER by Senior District Judge James A. Parker granting 2206 Unopposed Motion for Leave to File Excess Pages for Exhibits to their Response to Motion and Memorandum in Support of Excluding the Jackson Compliance Administrator 2204 (bap) (Entered: 05/31/2018)

06/01/2018 2208 RESPONSE in Opposition re 2204 MOTION in Limine to Exclude the Jackson Compliance Administrator from Offering Testimony filed by Walter Stephen Jackson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Davis, Philip) (Entered: 06/01/2018)

06/04/2018 2209 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting held on 6/4/2018. (am) (Entered: 06/04/2018)

06/05/2018 2211 CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, New Mexico Human Services Department Defendants' Response to Plaintiffs' Pre−Trial Interrogatories and Requests for Production (Walz, Jerry) (Entered: 06/05/2018)

06/13/2018

2212

TRANSCRIPT of STATUS CONFERENCE held on 04/24/2018, before District Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Notice of Intent to Request Redaction set for 6/20/2018. Redaction Request due 7/5/2018. Redacted Transcript Deadline set for 7/16/2018. Release of Transcript Restriction set for 9/11/2018.(jdlr) (Entered: 06/13/2018)

06/15/2018

2213

REPLY to Response to Motion re 2204 MOTION in Limine to Exclude the Jackson Compliance Administrator from Offering Testimony filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A) (Walz, Jerry) (Entered: 06/15/2018)

06/15/2018 2214 CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Defendants' First Interrogatories, Requests for Production and Requests for Admissions to Plaintiffs (Walz, Jerry) Modified spellings

on 6/18/2018 (vv). (Entered: 06/15/2018)

06/19/2018

2215

NOTICE of Briefing Complete by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 2204 MOTION in Limine to Exclude the Jackson Compliance Administrator from Offering Testimony filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 06/19/2018)

06/21/2018

2216

CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Defendants' First Supplemental Response to Plaintiffs' Pre−Trial Interrogatories and Requests for Production (Walz, Jerry) (Entered: 06/21/2018)

06/29/2018 2217 ORDER by Magistrate Judge Karen B. Molzen setting a Monthly Meeting for 7/17/2018 at 08:30 AM in Albuquerque − 340 Pecos Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 06/29/2018)

06/29/2018 2218 ORDER by Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 8/21/2018 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 06/29/2018)

06/29/2018 2220 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting held on 6/29/2018. (am) (Entered: 06/29/2018)

07/12/2018

2221

ORDER by Magistrate Judge Karen B. Molzen VACATING the Quarterly Meeting set for 08/21/18 and RESETTING it for 08/14/2018 at 08:30 AM in Albuquerque − 540 Bonito Courtroom before Magistrate Judge Karen B. Molzen. (cm) THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.>Modified text on 7/16/2018 (bap). (Entered: 07/12/2018)

07/17/2018 2222 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting held on 7/17/2018. (am) (Entered: 07/17/2018)

07/26/2018 2223 MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen on Discovery Dispute on Rule 60(b) Motion. (Attachments: # 1 Exhibit Cubra Letter of 07−13−2018, # 2 Exhibit Walz Letter of 07−20−2018, # 3 Exhibit Cubra Reply Letter) (KBM) (Entered: 07/26/2018)

07/31/2018

2224

CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Defendants' Second Supplemental Response to Plaintiffs' Pre−Trial Interrogatories and Requests for Production (Walz, Jerry) (Entered: 07/31/2018)

08/01/2018

2225

CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Defendants' Response to Plaintiffs' Second Pre−Trial Interrogatories and Requests for Production (Walz, Jerry) (Entered: 08/01/2018)

08/01/2018 2226 CERTIFICATE OF SERVICE by Walter Stephen Jackson of Answers and Responses to First Pre−Trial Interrogatories and Requests for Production (Cubra, Peter) Modified text on 8/2/2018 (bap). (Entered: 08/01/2018)

08/08/2018 2227 CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities Jackson Quarterly Report August 7 2018 (Walz, Jerry) (Entered: 08/08/2018)

08/08/2018 2228 MOTION for Order for Injunctive Relief by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department.

(Attachments: # 1 Exhibit A) (Walz, Jerry) (Entered: 08/08/2018)

08/13/2018

2229

AMENDED ORDER by Magistrate Judge Karen B. Molzen setting a Quarterly Meeting (amended as to location only). The Quarterly Meeting set for 08/14/2018 at 8:30 a.m. in Albuquerque in 540 Bonito Courtroom is RELOCATED to 560 Cimarron Courtroom. [THIS IS A TEXT ONLY ENTRY − NO DOCUMENTS ARE ATTACHED.] (cm) (Entered: 08/13/2018)

08/14/2018 2230 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 8/14/2018. (am) (Entered: 08/14/2018)

08/21/2018 2233 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Discovery Conference held on 8/21/2018. (am) (bap). (Entered: 08/21/2018)

08/24/2018

2236

NOTICE of Hearing on Motion 2228 MOTION for Order for Injunctive Relief : Motion Hearing set for 9/6/2018 at 10:00 AM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. Response should be filed on or before 8/27/2018 and a Reply if any to be filed by 8/31/2018. (jmg)
[THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.]
(Entered: 08/24/2018)

08/24/2018 2237 Unopposed MOTION for Extension of Time to File Answer and to Vacate and Reschedule Hearing by Walter Stephen Jackson. (Gardner, Tim) (Entered: 08/24/2018)

08/29/2018

2238

NOTICE of Hearing on Motion 2204 MOTION in Limine to Exclude the Jackson Compliance Administrator from Offering Testimony, 2228 MOTION for Order for Injunctive Relief : Motion Hearing set for 10/4/2018 at 01:30 PM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (snn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 08/29/2018)

08/29/2018 2239 ORDER by Senior District Judge James A. Parker granting Defendants' 2237 Unopposed MOTION for Extension of Time until 9/10/2018 to Respond to Defendant's Motion for Injunctive Relief 2228 and to Vacate and Reschedule Hearing filed by Walter Stephen Jackson (bap) (Entered: 08/29/2018)

08/31/2018

2240

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen following 2233 Discovery Hearing and letter briefs. Defendants may produce the databases in an anonymized format as long as they include a reliable indication of disability level for each individual. (Attachments: # 1 Supplement Costanzo Letter of August 28, 2018, # 2 Supplement Grubel Letter of August 30, 2018) (KBM) (Entered: 08/31/2018)

09/05/2018 2242 NOTICE of Change of Address by Josephine Rutar (bap) (Entered: 09/05/2018)

09/07/2018 2243 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Meeting with Counsel held on 9/6/2018. (am) (Entered: 09/07/2018)

09/10/2018

2244

RESPONSE in Opposition re 2228 MOTION for Order for Injunctive Relief PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR INJUNCTIVE RELIEFS filed by Walter Stephen Jackson. (Attachments: # 1 Exhibit Exhibit #1, # 2 Exhibit Exhibit #2, # 3 Exhibit Exhibit #3, # 4 Exhibit Exhibit #4) (McCartney, Ann) (Entered: 09/10/2018)

09/13/2018 2245 REPLY to Response to Motion re 2228 MOTION for Order for Injunctive Relief filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Walz, Jerry) (Entered: 09/13/2018)

09/17/2018 2246 JCA's 09/17/2018 DETERMINATION re: Disengagement Criteria Objective S1.1.2. (KBM) (Entered: 09/17/2018)

09/19/2018 2247 NOTICE of Briefing Complete by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 2228 MOTION for Order for Injunctive Relief filed by Dept. of Vocational Rehab for the

State of New Mexico, Fort Stanton Hospital and Training School, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (Walz, Jerry) (Entered: 09/19/2018)

09/21/2018 2249 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting held on 9/21/2018. (am) (Entered: 09/21/2018)

09/21/2018 2250 ORDER by Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 12/19/2018 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 09/21/2018)

09/28/2018 2251 STIPULATED ORDER FOR DISENGAGEMENT OF OBJECTIVE S1.1.2 by District Judge James A. Parker. (meq) (Entered: 09/28/2018)

10/04/2018 2253 Clerk's Minutes for proceedings held before District Judge James A. Parker: Motions Hearing held on 10/4/2018 re 2228 MOTION for Order for Injunctive Relief and 2204 MOTION in Limine to Exclude the Jackson Compliance Administrator from Offering Testimony (Court Reporter John De La Rosa) (bap) (Entered: 10/05/2018)

10/09/2018 2254 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Discovery Conference held on 10/9/2018. (am) (Entered: 10/09/2018)

10/12/2018 2255 STIPULATION AND ORDER by Magistrate Judge Karen B. Molzen extending discovery deadlines and setting forth Court's rulings from October 9, 2018 hearing on discovery disputes. (KBM) (Entered: 10/12/2018)

10/12/2018 2256 ORDER by Senior District Judge James A. Parker granting 2204 Motion in Limine excluding the Jackson Compliance Administrator from Offering Testimony; denying 2228 Motion for Order for Injunctive Relief (bap) (Entered: 10/12/2018)

10/15/2018 2257 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting held on 10/15/2018. (cm) (Entered: 10/15/2018)

10/26/2018 2259 STIPULATED QUALIFIED PROTECTIVE ORDER by Magistrate Judge Karen B. Molzen. (KBM) (Entered: 10/26/2018)

10/31/2018

2260

CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 2240 Memorandum Opinion and Order, All Databases Produced as Ordered (Walz, Jerry) (Entered: 10/31/2018)

11/08/2018

2262

TRANSCRIPT of MOTION HEARING held on 10/04/2018, before District Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Notice of Intent to Request Redaction set for 11/15/2018. Redaction Request due 11/29/2018. Redacted Transcript Deadline set for 12/10/2018. Release of Transcript Restriction set for 2/6/2019.(jdlr) (Entered: 11/08/2018)
12/18/2018 2265 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting held on 12/18/2018. (am) (Entered: 12/19/2018)

12/19/2018

2267

ORDER by Magistrate Judge Karen B. Molzen setting a Monthly Meeting (Health) for 1/25/2019 at 01:30 PM in Albuquerque − 560 Cimarron Courtroom before Magistrate Judge Karen B. Molzen; a Monthly Meeting (Safety) for 2/26/2019 at 08:30 AM in Albuquerque − 730 Judge Karen B. Molzen Chambers before Magistrate Judge Karen B. Molzen; a Monthly Meeting (Employment) for 3/28/2019 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Magistrate Judge Karen B. Molzen; and a Quarterly Meeting for 4/12/2019 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 12/19/2018)

12/19/2018 2268 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 12/19/2018. (am) (Entered: 12/19/2018)

12/20/2018 2269 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Notice of Withdrawal of James J. Grubel as attorney for all Defendants (Grubel, James) (Entered: 12/20/2018)

12/21/2018 2270 Opposed MOTION to Clarify Regarding Court's Ruling on Scope and Nature of Dr. Gant's Trial Testimony [Doc. 2256] by Walter Stephen Jackson. (Attachments: # 1 Exhibit 1) (Davis, Philip) (Entered: 12/21/2018)

12/26/2018 2271 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Scheduling Conference held on 12/26/2018. (am) (Entered: 12/26/2018)

12/31/2018 2272 STIPULATION re 2200 Notice (Other) [Amended Joint Stipulation on Pre−Trial Schedule and Discovery] by Walter Stephen Jackson (Davis, Philip) (Entered: 12/31/2018)

01/03/2019

2274

ORDER by Senior District Judge James A. Parker approving 2272 AMENDED JOINT STIPULATION on Pre−Trial Schedule and Discovery filed by Walter Stephen Jackson Pretrial Conference set for 7/26/2019 at 01:30 PM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. Proposed Joint Pretrial Order due by 7/19/2019. (bap) (Entered: 01/04/2019)

01/04/2019 2273 NOTICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities Agreed Upon Extension of Time to Respond to Motion for Clarification (Walz, Jerry) (Entered: 01/04/2019)

01/04/2019

2275

RESPONSE in Opposition re 2270 Opposed MOTION to Clarify Regarding Court's Ruling on Scope and Nature of Dr. Gant's Trial Testimony [Doc. 2256] filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Sue A Gant, Los Lunas Center for Persons with Developmental Disabilities. (Walz, Jerry) (Entered: 01/04/2019)

01/07/2019 2276 MINUTE ORDER: Pretrial Conference RESET for 7/24/2019 at 01:30 PM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. [THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (rg) (Entered: 01/07/2019)

01/28/2019 2277 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting (Health) held on 01/25/2019. (cm) (Entered: 01/28/2019)

01/28/2019 2278 CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School Ninth Request for Production (Walz, Jerry) (Entered: 01/28/2019)

01/29/2019

2279

AMENDED ORDER [AS TO LOCATION OF MEETING ONLY] by Magistrate Judge Karen B. Molzen setting the Monthly Meeting (Safety) for 2/26/2019 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Magistrate Judge Karen B. Molzen.[THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 01/29/2019)

02/26/2019 2280 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Monthly Meeting held on 2/26/2019. (am) (Entered: 02/26/2019)

02/26/2019 2281 ORDER by Magistrate Judge Karen B. Molzen VACATING the Monthly Meeting set for 3/28/2019. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 02/26/2019)

03/13/2019 2282 ORDER by Magistrate Judge Karen B. Molzen VACATING the Quarterly Meeting scheduled for 4/12/2019. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 03/13/2019)

03/13/2019 2284 ORDER by Senior District Judge James A. Parker denying as moot re 2270 Motion for Clarification Regarding Court's Ruling on Scope and Nature of Dr. Grant's Trial Testimony (bap) (Entered: 03/13/2019)

03/15/2019 2285 ORDER by Magistrate Judge Karen B. Molzen a Quarterly Meeting for 05/07/2019 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (cm) (Entered: 03/15/2019)

03/25/2019 2286 Joint MOTION to Amend/Correct 2274 Order,, Set Scheduling Order Deadlines, by Walter Stephen Jackson. (Cubra, Peter) (Entered: 03/25/2019)

03/27/2019 2287 ORDER by Senior District Judge James A. Parker granting 2286 Joint MOTION to Extend Deadlines filed by Walter Stephen Jackson. Pretrial Conference set for 9/25/2019 at 10:00 AM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (bap) (Entered: 03/28/2019)

04/17/2019 2288 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Settlement Conference held on 4/17/2019. (am) (Entered: 04/17/2019)

04/17/2019 2289 Joint MOTION to Approve Settlement [Motion to Preliminarily Approve Settlement Agreement] by Walter Stephen Jackson. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Davis, Philip) (Entered: 04/17/2019)

04/17/2019

2290

NOTICE of Hearing on Motion 2289 Joint MOTION to Approve Settlement [Motion to Preliminarily Approve Settlement Agreement] : Motion Hearing set for 4/18/2019 at 10:00 AM in Albuquerque − 340 Pecos Courtroom before District Judge James A. Parker. (epc) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 04/17/2019)

04/18/2019 2291 Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 4/18/2019 re 2289 Joint MOTION to Approve Settlement [Motion to Preliminarily Approve Settlement Agreement] filed by Walter Stephen Jackson. (Court Reporter John De La Rosa) (vv) (Entered: 04/22/2019)

04/19/2019 2292 ORDER PRELIMINARILY APPROVING SETTLEMENT AGREEMENT by Senior District Judge James A. Parker re 2289 Joint MOTION to [ Preliminarily Approve Settlement Agreement] filed by Walter Stephen Jackson (bap) (Entered: 04/23/2019)

04/19/2019

Set Hearing on Final Approval of the Settlement Agreement for 6/12/2019 at 10:00 AM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (bap) (Entered: 04/23/2019)

04/23/2019 2293 ORDER by Magistrate Judge Karen B. Molzen VACATING the Quarterly Meeting set for 05/07/2019. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 04/23/2019)

04/24/2019 2294 ORDER STAYING Pretrial Deadlines until 6/12/2019 by Senior District Judge James A. Parker. (bap) (Entered: 04/24/2019)

05/01/2019 2295 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Settlement Conference Follow−up held on 5/1/2019. (KBM) (Entered: 05/02/2019)

05/24/2019 2297 COMMENTS of pro se Intervenor Ava Peets re: Jackson Settlement Agreement. (KBM) (Entered: 05/24/2019)

05/29/2019 2298 TRANSCRIPT of MOTION HEARING held on 04/18/2019, before District Judge James A. Parker. Court Reporter/Transcriber John De La Rosa, Telephone number (505) 348−2249. Tape Number: n/a. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the

deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at https://www.nmd.uscourts.gov.

Notice of Intent to Request Redaction set for 6/5/2019. Redaction Request due 6/19/2019. Redacted Transcript Deadline set for 7/1/2019. Release of Transcript Restriction set for 8/27/2019.(jdlr) (Entered: 05/29/2019)

06/04/2019 2299 Joint MOTION to Approve Settlement by Walter Stephen Jackson. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Exhibit Declaration) (Schwartz, Steven) (Entered: 06/04/2019)

06/04/2019 2300 MEMORANDUM in Support re 2299 Joint MOTION to Approve Settlement filed by Walter Stephen Jackson. (Schwartz, Steven) (Entered: 06/04/2019)

06/12/2019 2303 Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 6/12/2019 re 2299 Joint MOTION to Approve Settlement Agreement filed by Walter Stephen Jackson. (Court Reporter John De La Rosa) (bap) (Entered: 06/21/2019)

06/21/2019 2304 MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 2299 Parties Joint MOTION to Approve Settlement Agreement and Approves the Settlement Agreement as revised [2299−1]; and as further described herein. (bap) (Entered: 06/24/2019)

07/01/2019

2306

ORDER by Magistrate Judge Karen B. Molzen. Quarterly Meeting set for Wednesday, October 9, 2019 at 08:30 AM in Albuquerque − 480 Chama Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (KBM) (Entered: 07/01/2019)

07/18/2019 2307 NOTICE by Walter Stephen Jackson of Withdrawal (Koenigsberg, Nancy) (Entered: 07/18/2019)

07/23/2019 2309 NOTICE of Appearance by Debra D Poulin on behalf of All Plaintiffs (Poulin, Debra) (Entered: 07/23/2019)

08/01/2019 2310 NOTICE of Appearance by Christopher D Woodward on behalf of All Defendants (Woodward, Christopher) (Entered: 08/01/2019)

08/01/2019 2311 NOTICE by Jack Callaghan, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Attachments: # 1 Exhibit Exhibit A to Notice) (Woodward, Christopher) (Entered: 08/01/2019)

08/08/2019 2312 Plaintiffs' RESPONSE to Defendants' Notice of Compliance re 2311 Notice (Other), filed by Walter Stephen Jackson. (Davis, Philip) (Entered: 08/08/2019)

08/22/2019 2313 MINUTE ORDERVACATING the Pretrial Conference set for 9/25/2019. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED (jmg) (Entered: 08/22/2019)

09/12/2019 2314 NOTICE of Appearance by Alfred A Park on behalf of Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Park, Alfred) (Entered: 09/12/2019)

09/17/2019 2315 NOTICE of Appearance by Taylor Sauer Rahn on behalf of Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los

Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department (Rahn, Taylor) (Entered: 09/17/2019)

10/02/2019

2317

CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Notice of Compliance with Paragraphs 7 and 8 of the Settlement Agreement (Rahn, Taylor) (Entered: 10/02/2019)

10/03/2019

2318

Opposed MOTION for Preliminary Injunction Defendants' Motion for Injunctive Relief regarding Actions of Community Monitor by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Rahn, Taylor) (Entered: 10/03/2019)

10/03/2019

2319

Opposed MOTION for Order to delcare IQR Reviewer as Qualified by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Grubel, James) (Entered: 10/03/2019)

10/07/2019 2320 NOTICE of Appearance by Nancy L. Simmons on behalf of Nancy L. Simmons (Simmons, Nancy) (Entered: 10/07/2019)

10/08/2019

2321

Unopposed MOTION for Order Unopposed Motion to Disengage Paragraph 16 of the Settlement Agreement by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rahn, Taylor) (Entered: 10/08/2019)

10/09/2019 2322 ORDER by Senior District Judge James A. Parker granting Defendants' 2321 Unopposed Motion for Order for Partial Disengagement of Paragraph 16 of the Settlement Agreement (bap) (Entered: 10/09/2019)

10/09/2019

2323

NOTICE of Hearing before District Judge James A. Parker: Parties are directed to submit briefs on ripeness, with Plaintiff's brief due on 10/21/2019 and Defendant's brief due on 10/25/19. Hearing set for 10/30/2019 at 10:00 AM in Albuquerque − 421 Gold, 6th Floor Courtroom. (snn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 10/09/2019)

10/10/2019 2324 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 10/9/2019. (am) (Entered: 10/10/2019)

10/10/2019 2325 ORDER by Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 1/10/2020 at 08:30 AM in Albuquerque − 340 Pecos Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 10/10/2019)

10/21/2019 2326 RESPONSE in Opposition re 2319 Opposed MOTION for Order to delcare IQR Reviewer as Qualified filed by Walter Stephen Jackson, Mary Katherine Nowak, Steve Nunez, Richard Stanfield, Kelli Van Curen, Betty Young. (Attachments: # 1 Exhibit) (Schwartz, Steven) (Entered: 10/21/2019)

10/21/2019

2327

NOTICE of Hearing on Motion 2318 Opposed MOTION for Preliminary Injunction Defendants' Motion for Injunctive Relief regarding Actions of Community Monitor : Motion Hearing set for 11/14/2019 at 10:00 AM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (Cooper, Logan) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 10/21/2019)

10/25/2019

2328

REPLY to Response to Motion re 2319 Opposed MOTION for Order to delcare Individual Quality Review and Declare a Reviewer as Qualified filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Grubel, James) Modified text on 10/28/2019 (bap).

(Entered: 10/25/2019)

10/25/2019

2329

NOTICE of Briefing Complete by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 2319 Opposed MOTION for Order to delcare IQR Reviewer as Qualified filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (Grubel, James) (Entered: 10/25/2019)

10/28/2019

2330

MINUTE ORDER VACATING THE HEARING SCHEDULED 10/30/19 AT 10:00 AM [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (lfc) (Entered: 10/28/2019)

10/30/2019 2331 RESPONSE in Opposition re 2318 Opposed MOTION for Preliminary Injunction Defendants' Motion for Injunctive Relief regarding Actions of Community Monitor filed by Walter Stephen Jackson, Mary Katherine Nowak, Steve Nunez, Richard Stanfield, Kelli Van Curen, Betty Young. (Schwartz, Steven) (Entered: 10/30/2019)

11/06/2019 2332 CERTIFICATE OF SERVICE by Walter Stephen Jackson of Plaintiffs' Interrogatories and Requests for Production to Defendant New Mexico Department of Health related to Defendant's Motion for Injunctive Relief Regarding Actions of Community Monitor (Poulin, Debra) (Entered: 11/06/2019)

11/06/2019 2333 MINUTE ORDER Vacating the Hearing set for November 14, 2019 by District Judge James A. Parker. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (snn) (Entered: 11/06/2019)

11/06/2019

2334

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting and denying in part 2319 Opposed MOTION for Order to Enforce the Settlement Agreement as to the Operation of the Individual Qualify Review and Declare Reviewer Qualified; and denying as moot 2318 Opposed MOTION for Injunctive Relief regarding Actions of Community Monitor. (bap) (Entered: 11/06/2019)

11/15/2019

2335

CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Notice of Compliance with paragraphs 11B and 11C of the Settlement Agreement (Rahn, Taylor) (Entered: 11/15/2019)

11/15/2019

2336

Unopposed MOTION for Order to Disengage Paragraph 8 of the Settlement Agreement by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Rahn, Taylor) (Entered: 11/15/2019)

11/18/2019

2337

CERTIFICATE OF SERVICE − Notice of Compliance with paragraphs 9 and 10 of the Settlement Agreement − by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department . (Rahn, Taylor) Modified text on 11/19/2019 (cmm). (Entered: 11/18/2019)

12/02/2019 2338 NOTICE of Change of Address by Josephine Rutar (bap) (Entered: 12/03/2019)

12/04/2019 2339 STIPULATED ORDER by Senior District Judge James A. Parker granting 2336 Unopposed Motion for Order to Disengage Paragraph 8 of the Settlement Agreement (bap) (Entered: 12/04/2019)

12/10/2019 2340 Joint MOTION for Order Qualified Protective Order by Fort Stanton Hospital and Training School. (Grubel, James) (Entered: 12/10/2019)

12/10/2019 2341 STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen B. Molzen − granting 2340 Motion for entry of the stipulated protective order. (KBM) (Entered: 12/10/2019)

12/23/2019

2342

Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K) (Rahn, Taylor) (Entered: 12/23/2019)

01/03/2020

2343

Unopposed MOTION for Extension of Time to File Response/Reply as to 2342 Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement by Walter Stephen Jackson, Mary Katherine Nowak, Steve Nunez, Richard Stanfield, Kelli Van Curen, Betty Young. (Schwartz, Steven) (Entered: 01/03/2020)

01/09/2020 2344 ORDER by Senior District Judge James A. Parker granting 2343 Motion for Extension of Time to File Response/Reply re 2342 Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement Responses due by 2/7/2020 (bap) (Entered: 01/09/2020)

01/13/2020 2345 Clerk's Minutes for proceedings held before Magistrate Judge Karen B. Molzen: Quarterly Meeting held on 1/10/2020. (KBM) (Entered: 01/13/2020)

01/14/2020 2346 ORDER by Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 4/17/2020 at 08:30 AM in Albuquerque − 420 Mimbres Courtroom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ATTACHED.] (am) (Entered: 01/14/2020)

01/21/2020 2347 Mail Returned as Undeliverable re 2346 Order, Set Hearings. Mail sent to Donald Clingeopeel (bap) (Entered: 01/21/2020)

01/21/2020 2348 Mail Returned as Undeliverable re 2346 Order, Set Hearings. Mail sent to Marjorie Clingenpeel (bap) (Entered: 01/21/2020)

01/23/2020 2349 Unopposed MOTION for Leave to File Excess Pages and File Pleadings Under Seal by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Grubel, James) (Entered: 01/23/2020)

01/23/2020 2350 Unopposed MOTION for Order to Disengage Paragraph 10 of the Settlement Agreement by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Rahn, Taylor) (Entered: 01/23/2020)

01/24/2020 2351 STIPULATED ORDER by Senior District Judge James A. Parker granting 2350 Unopposed Motion for Order to Disengage Paragraph 10 of the Settlement Agreement. (bap) (Entered: 01/24/2020)

01/28/2020

2352

RESPONSE in Opposition re 2342 Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement filed by Walter Stephen Jackson, Mary Katherine Nowak, Steve Nunez, Richard Stanfield, Kelli Van Curen, Betty Young. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Schwartz, Steven) (Entered: 01/28/2020)

01/28/2020 2353 NOTICE by Walter Stephen Jackson (Simmons, Nancy) (Entered: 01/28/2020)

01/29/2020 2354 CERTIFICATE OF SERVICE by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department Notice of Compliance with paragraph 11A of the Settlement Agreement (Rahn, Taylor) (Entered: 01/29/2020)

01/30/2020 2355 ORDER by Senior District Judge James A. Parker granting 2349 Unopposed Motion for Leave to File Excess Pages Under Seal (bap) (Entered: 01/30/2020)

01/31/2020 2357 Unopposed MOTION to Withdraw as Attorney for Plaintiffs by Andre Armenta. (Poulin, Debra) (Entered: 01/31/2020)

02/10/2020 2358 Unopposed MOTION for Leave to File Excess Pages for Defendants' Reply in Support of Motion to Disengage Paragraph 7 of the Settlement Agreement by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Rahn,

Taylor) (Entered: 02/10/2020)

02/10/2020 2359 MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Disengage 2356 by Nancy L. Simmons. (Simmons, Nancy) Modified text on 2/11/2020 (bap). (Entered: 02/10/2020)

02/11/2020 2360 RESPONSE in Opposition re 2359 MOTION for Extension of Time to File Response/Reply filed by Fort Stanton Hospital and Training School. (Grubel, James) (Entered: 02/11/2020)

02/11/2020 2361 ORDER by Senior District Judge James A. Parker granting 2358 Motion for Leave to File Excess Page Limits on Defendants' Reply in Support of Motion to Disengage Paragraph 7 of the Settlement Agreement (bap) (Entered: 02/11/2020)

02/12/2020 2362 REPLY to Response to Motion re 2359 MOTION for Extension of Time to File Response/Reply filed by Nancy L. Simmons. (Simmons, Nancy) (Entered: 02/12/2020)

02/12/2020 2363 NOTICE of Briefing Complete by Nancy L. Simmons re 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities (Simmons, Nancy) (Entered: 02/12/2020)

02/12/2020

2364

NOTICE of Hearing on Motion 2359 MOTION for Extension of Time to File Response/Reply : Motion Hearing set for 2/19/2020 at 02:00 PM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (snn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 02/12/2020)

02/12/2020 2365 ORDER by Senior District Judge James A. Parker granting 2357 Unopposed Motion to Withdraw as Attorney for Plaintiffs. Attorney Debra D Poulin terminated (bap) (Entered: 02/12/2020)

02/13/2020 2366 Unopposed MOTION for Extension of Time to File Response/Reply as to 2342 Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Grubel, James) (Entered: 02/13/2020)

02/18/2020

2367

REPLY to Response to Motion re 2342 Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement Reply in Support of Motion to Disengage Paragraph 7 of the Settlement Agreement filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Appendix A) (Rahn, Taylor) (Entered: 02/18/2020)

02/18/2020

2368

NOTICE of Briefing Complete by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 2342 Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (Rahn, Taylor) (Entered: 02/18/2020)

02/19/2020

2369

MINUTE ORDER In accordance with the agreement reached by the parties the Motion Hearing set for 2/19/2020 at 2:00 PM is VACATED. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (jmg) (Entered: 02/19/2020)

02/19/2020 2370 ORDER by Senior District Judge James A. Parker granting 2359 Motion for Extension of Time to File Response/Reply re 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement Responses due by 3/2/2020 (bap) (Entered: 02/19/2020)

02/19/2020 2371 STIPULATED ORDER by Senior District Judge James A. Parker granting 2366 Motion for Extension of Time to File Response/Reply in Support of Defendants'

Motion to Disengage Paragraph 7 of the Settlement Agreement (bap) (Entered: 02/19/2020)

02/25/2020 2372 MOTION for Extension of Time to File Response/Reply as to 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement by Nancy L. Simmons. (Simmons, Nancy) (Entered: 02/25/2020)

02/26/2020 2373 ORDER by District Judge James A. Parker granting 2372 Motion for Extension of Time to File Response/Reply. (cmm) (Entered: 02/26/2020)

02/28/2020

2374

Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M) (Rahn, Taylor) (Entered: 02/28/2020)

02/28/2020

2375

CERTIFICATE OF SERVICE by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department of Notice of Compliance with paragraph 14 of the Settlement Agreement (Rahn, Taylor) Modified text on 3/2/2020 (bap). (Entered: 02/28/2020)

03/05/2020 2392 Opposed MOTION for Extension of Time to File Response/Reply as to 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement by Walter Stephen Jackson. (Davis, Philip) (Entered: 03/05/2020)

03/05/2020

2393

NOTICE of Hearing: Status Conference set for 4/10/2020 at 10:00 AM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (snn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 03/05/2020)

03/09/2020 2394 NOTICE of Appearance by Robert E. Hanson on behalf of All Plaintiffs (Hanson, Robert) (Entered: 03/09/2020)

03/12/2020 2395 Unopposed MOTION for Leave to File Excess Pages for Reply in Support of Motion to Disengage Paragrpah 9 by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Grubel, James) (Entered: 03/12/2020)

03/12/2020

2396

RESPONSE in Opposition re 2392 Opposed MOTION for Extension of Time to File Response/Reply as to 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement Defendants Response to Plaintiffs Opposed Motion for Extension of Time filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L) (Rahn, Taylor) (Entered: 03/12/2020)

03/13/2020 2397 ORDER by Senior District Judge James A. Parker granting 2395 Motion for Leave to File Excess Pages on Defendants' Reply in Support of Motion to Disengage Paragraph 9 of the Settlement Agreement (bap) (Entered: 03/13/2020)

03/16/2020

2398

REPLY to Response to Motion re 2392 Opposed MOTION for Extension of Time to File Response/Reply as to 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement filed by Nancy L. Simmons. (Attachments: # 1 Exhibit, # 2 Exhibit) (Simmons, Nancy) (Entered: 03/16/2020)

03/16/2020 2399 Unopposed MOTION for Extension of Time to File Response/Reply as to 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Grubel, James) (Entered: 03/16/2020)

03/17/2020 2400 NOTICE of Briefing Complete by Walter Stephen Jackson re 2392 Opposed MOTION for Extension of Time to File Response/Reply as to 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement filed by Walter Stephen Jackson (Davis, Philip) (Entered: 03/17/2020)

03/19/2020 2402 ORDER by Senior District Judge James A. Parker granting 2399 Motion for Extension of Time to File Response/Reply re 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement Replies due by 3/23/2020. (bap) (Entered: 03/19/2020)

03/20/2020 2403 ORDER by Senior District Judge James A. Parker granting 2392 Motion for Extension of Time to File Response/Reply re 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement Responses due by 4/15/2020 (bap) (Entered: 03/20/2020)

03/26/2020

2404

MOTION for Protective Order Motion for Protective Order from Discovery by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rahn, Taylor) (Entered: 03/26/2020)

03/27/2020 2405 Second MOTION for Extension of Time to File Response/Reply as to 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement by Walter Stephen Jackson. (Attachments: # 1 Exhibit 1) (Davis, Philip) (Entered: 03/27/2020)

03/30/2020 2407 RESPONSE to Motion re 2404 MOTION for Protective Order Motion for Protective Order from Discovery filed by Walter Stephen Jackson. (Davis, Philip) (Entered: 03/30/2020)

03/31/2020

2408

TRANSCRIPT of MOTION HEARING held on June 12, 2019, before District Judge James A. Parker and Magistrate Judge B. Karen Molzen. Court Reporter/Transcriber John De La Rosa, Telephone number 505−280−8895. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at https://www.nmd.uscourts.gov.

Notice of Intent to Request Redaction set for 4/7/2020. Redaction Request due 4/21/2020. Redacted Transcript Deadline set for 5/1/2020. Release of Transcript Restriction set for 6/29/2020.(dxz) (Entered: 03/31/2020)

03/31/2020

2409

RESPONSE to Motion re 2405 Second MOTION for Extension of Time to File Response/Reply as to 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement Defendants' Response to Plaintiffs' Second Opposed Motion for an Extension of Time filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Rahn, Taylor) (Entered: 03/31/2020)

04/01/2020

2410

REPLY to Response to Motion re 2404 MOTION for Protective Order Motion for Protective Order from Discovery Defendants' Reply in Support of Motion for Protective Order from Discovery filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Rahn, Taylor) (Entered: 04/01/2020)

04/01/2020

2411

NOTICE of Briefing Complete by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 2404 MOTION for Protective Order Motion for Protective Order from Discovery filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (Rahn, Taylor) (Entered: 04/01/2020)

04/02/2020 2412 MOTION to Set Aside 2401 Reply to Response to Motion, by Nancy L. Simmons. (Attachments: # 1 Exhibit) (Simmons, Nancy) (Entered: 04/02/2020)

04/03/2020 2413 REPLY to Response to Motion re 2405 Second MOTION for Extension of Time to File Response/Reply as to 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement filed by Walter Stephen Jackson. (Davis, Philip) (Entered: 04/03/2020)

04/03/2020 2414 NOTICE of Briefing Complete by Walter Stephen Jackson re 2405 Second MOTION for Extension of Time to File Response/Reply as to 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement filed by Walter Stephen Jackson (Davis, Philip) (Entered: 04/03/2020)

04/05/2020 2415 MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 2342 Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement. (bap) (Entered: 04/06/2020)

04/08/2020

2416

NOTICE: For status conference scheduled on Friday, April 10, 2020 at 10:00 a.m., counsel will appear electronically by calling Judge Parker's AT&T conference line,888−363−4734, and using access code 4668596. (snn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 04/08/2020)

04/09/2020 2417 NOTICE of Appearance by Sara Nathanson Sanchez on behalf of All Plaintiffs (Sanchez, Sara) (Entered: 04/09/2020)

04/09/2020 2418 NOTICE of Appearance by Charles Robert Peifer on behalf of All Plaintiffs (Peifer, Charles) (Entered: 04/09/2020)

04/10/2020 2419 Clerk's Minutes for proceedings held before District Judge James A. Parker: Status Conference held on 4/10/2020. (Court Reporter Mary Loughran) (meq) (Entered: 04/10/2020)

04/10/2020

2420

ORDER Setting New Deadlines by Senior District Judge James A. Parker granting 2412 Motion to Set Aside (Disregard) Reply doc. 2401; granting in part 2405 Second Motion for Extension of Time to File Response/Reply re 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement; denying as moot 2404 Motion for Protective Order; Responses due by 5/4/2020 (bap) (Entered: 04/13/2020)

04/13/2020

2421

NOTICE of Hearing on Motion 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement : Motion Hearing set for 5/12/2020 at 01:30 PM in Albuquerque − 421 Gold, 6th Floor Courtroom before District Judge James A. Parker. (snn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 04/13/2020)

04/14/2020

2422

MOTION for Order Motion to Disengage Paragraph 14 of the Settlement Agreement by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M) (Rahn, Taylor) (Entered: 04/14/2020)

04/20/2020

2424

Clerk's Minutes for proceedings held by Magistrate Judge Karen B. Molzen: Quarterly Meeting held via FedRamp−Compliant Zoom on 4/17/2020. Participants included Steven Schwartz, Cathy Costanza, Nancy Simmons, Peter Cubra, Ann McCartney, Tim Gardner, and Carrisa Tashiro for Plaintiffs; Maureen Sanders and Jacquie Mader for Intervenor; Taylor S. Rahn, James Grubel, Scott Doan, Sally Karingada, Jason Cornwell, and Shadee Brown for Defendants; and Lyn Rucker,

Community Monitor. The following participants for Plaintiffs attended the supported employment section by phone: Anna Krieger, Karen Detmers, and Michael Kendrick. The Court will set the next Quarterly Meeting for Monday, 7/20/2020, at 8:30 a.m. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 04/20/2020)

04/20/2020 2425 ORDER by Magistrate Judge Karen B. Molzen setting a Quarterly Meeting for 7/20/2020 at 08:30 AM via FedRamp−Compliant Zoom before Magistrate Judge Karen B. Molzen. [THIS IS A TEXT−ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (am) (Entered: 04/20/2020)

04/20/2020

2426

ADDENDUM to Motion to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (Rahn, Taylor) Modified text on 4/21/2020 (bap). (Entered: 04/20/2020)

04/22/2020 2427 MOTION for Extension of Time to File by Nancy L. Simmons. (Simmons, Nancy) (Entered: 04/22/2020)

04/22/2020 2428 ORDER by Senior District Judge James A. Parker granting 2427 Motion for Extension of Time to File a Surreply by April 28, 2020 (bap) (Entered: 04/22/2020)

04/27/2020 2429 MOTION for Leave to File Excess Pages by Nancy L. Simmons. (Simmons, Nancy) (Entered: 04/27/2020)

04/27/2020 2430 RESPONSE to Motion re 2422 MOTION for Order Motion to Disengage Paragraph 14 of the Settlement Agreement filed by ARC of New Mexico, Walter Stephen Jackson, Mary Katherine Nowak, Steve Nunez, Richard Stanfield, Mary Terrazas, Kelli Van Curen, Betty Young. (Costanzo, Cathy) (Entered: 04/27/2020)

04/29/2020 2432 MOTION for Leave to File Excess Pages by Nancy L. Simmons. (Simmons, Nancy) (Entered: 04/29/2020)

05/06/2020 2434 STIPULATED ORDER by Senior District Judge James A. Parker granting 2422 Unopposed MOTION to Disengage Paragraph 14 of the Settlement Agreement (bap) (Entered: 05/06/2020)

05/07/2020

2435

NOTICE of Public Access. Public Access to the hearing set 5/12/2020 at 1:30 PM call be obtained by calling the following number +16692545252 and entering the following Telephonic Identification numbers when prompted. Meeting ID: 161 516 0567 Password: 633686 THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (jmg) (Entered: 05/07/2020)

05/12/2020

2437

Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 5/12/2020 re 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement filed by Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities. (Court Reporter Paul Baca) (bap) (Entered: 05/19/2020)

05/19/2020 2436 MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 2429 MOTION for Leave to File Excess Pages and denying 2356 Opposed MOTION for Order Disengaging Paragraph 9 of the Settlement Agreement. (bap) (Entered: 05/19/2020)

05/22/2020

2439

Unopposed MOTION for Leave to File Excess Pages on Defendants' Reply to Response to Motion to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Rahn, Taylor) (Entered: 05/22/2020)

05/26/2020

2440

REPLY to Response to Motion re 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement filed by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rahn, Taylor) (Entered: 05/26/2020)

05/26/2020

2441

NOTICE of Briefing Complete by Dept. of Vocational Rehab for the State of New Mexico, Fort Stanton Hospital and Training School, Los Lunas Center for Persons with Developmental Disabilities, New Mexico Human Services Department re 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement filed by Fort Stanton Hospital and Training School, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities (Rahn, Taylor) (Entered: 05/26/2020)

06/15/2020 2442 NOTICE of Hearing on Motion 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement : Motion Hearing set for 6/23/2020 at 03:00 PM in Remote via Zoom before District Judge James A. Parker. (jmg)

NOTE:

1. This proceeding will be held via Zoom Video/Web Conferencing with all participants appearing remotely; the Zoom ID and Passcode will be provided separately to the participants email address of record.

2. Participants should connect to the proceeding 15 minutes prior its scheduled start time to allow time for trouble−shooting of any connectivity issues.

3. To ensure the record is of the best quality participants are encouraged to utilize a headset to reduce static and background noise; if not using a headset participants must ensure the audio feed at their location is muted when not speaking.

*** REMINDER: Recording or broadcasting of this hearing is prohibited. ***

[THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 06/15/2020)

06/23/2020

2444

Clerk's Minutes for proceedings held before District Judge James A. Parker: Motion Hearing held on 6/23/2020 re 2374 Opposed MOTION for Order to Disengage Paragraphs 11A, 11B, and 11C of the Settlement Agreement filed by Fort Stanton Hospital and Training School, New Mexico Human Services Department, Los Lunas Center for Persons with Developmental Disabilities. (Court Reporter Julie Goehl) (Magistrate Judge Karen B. Molzen also present) (bap) (Entered: 07/01/2020)

06/27/2020

2443

TRANSCRIPT of MOTIONS HEARING held on June 23, 2020, before District Judge James A. Parker. Court Reporter/Transcriber Julie Goehl, Telephone number 505−348−2209; Julie_Goehl@nmd.uscourts.gov. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at https://www.nmd.uscourts.gov.

Notice of Intent to Request Redaction set for 7/6/2020. Redaction Request due 7/20/2020. Redacted Transcript Deadline set for 7/28/2020. Release of Transcript Restriction set for 9/25/2020.(jg) (Entered: 06/27/2020)

 
 964 F.2d 980 (1992)

Walter Stephen JACKSON, by his parents and next friends, Walter and Helen Jackson, Steve Nunez, by his guardian and next friend, Mary Kathryn Reed, Ron Fuller, by his mother and next friend, Josephine Boughton, Mildred Tsosie, by her next friend, Polly
Arango, Mary Katherine Nowak, by her next friend, James W. Ellis, Esq., Lillian Willmon, by her next friend, Arthur Grumblatt, Andra Martinez, by her next friend, Paula Duvall,
Clinton and Shawn Heath, by their mother and next friend, Belva Heath, Richard Stanfield, by his father and next friend, The Reverend Clyde Stanfield, Joseph Gonzales, by his
981 mother and next friend, Charlotte Gonzales, Sean McHenry, by *981 his next friend, Robert Desiderio, Esq., Alfred Shirley, by his next friend, Frederick Hart, Esq., James Fritche, by his next friend, Sally Dehon, Betty Young, by her next friend, Mary Dudley, Ph.D., Roseann Crockett, by her next friend, Robert McNeill, Esq., Andre Armenta, by his mother and next friend Loretta Armenta, Kelli Van Curen, by her parents and next friends, Ted and Sallie Van Curen, Lacey Walker, by her mother and next friend, Sandra Walker, Kim Lautenschlager, by her mother and next friend, Dale Lautenschlager, and William Thomas, by his parents and next friends, James and Elizabeth Thomas, Virgil Addison, Roberto Atilano, Felicia Botello, Joseph Baca, Melinda Conway, Daniel Garcia, Viola Gurule, Thomas Harkins, Robert Hynes, Damon Keeswood, Sharon Koons, Garry Martinez, Jose Martinez, Robert McHenry, Marcelino Moya, Ted Nichols, Margaret Romero, Loriann Strickland, Beth Thomas, Albert Vasquez, Edwin Vasquez, Benito Arguello, Benjamin Romero, on behalf of themselves and all others similarly situated, and Supporters of Developmentally Disabled New Mexicans, Inc., on behalf of its members, PlaintiffsAppellees, v. FORT STANTON HOSPITAL AND TRAINING SCHOOL, Los Lunas, Hospital and Training School, New Mexico Health and Environment Department, Larry Gordon, individually and in his official capacity as Secretary of the New Mexico Health and Environment Department, Carolyn Klintworth, individually and in her official capacity as Acting Administrator, Los Lunas Hospital and Training School, Ervin Aldaz, individually and in his official capacity as Administrator, Fort Stanton Hospital and Training School, New Mexico Human Services Department, Lou Gallegos, individually and in his official capacity as Secretary of the New Mexico Human Services Department, New Mexico Department of Education, New Mexico Board of Education, Catherine Smith, Lynn Medlin, Rudy Castellano, John W. Bassett, L. Grady Mayfield, Herman Wisenteiner, Maria Chavez, Melvin Martinez, David McMann, Millie Pogna, Gerald Thomas, Emmalou Rodriguez, J. James Sanchez, Virginia Trujillo and Gordon King, individually and in their official capacities as members of the New Mexico Board of Education, Alan Morgan, individually and in his official capacity as the New Mexico Superintendent of Public Instruction, Elie Gutierrez, individually and in his official capacity as Director of Special Education for the State of New Mexico, Los Lunas Public Schools, Los Lunas Board of Education, Richard Lovato, Dottie Silver, Ismael Gurule, Laurel C. Edenburn and Anthony Apodaca, individually and in their official capacities as members of the Los Lunas Board of Education, Capitan Public Schools, Capitan Board of Education, James McDaniel, Thomas Trost, Preston Stone, Hollis Fuchs and Kenneth Cox, individually and in their official capacities as members of the Capitan Board of Education, Defendants-Appellees, and

John E. Young and Iris Young, legal guardians and parents of Rita Kay Young; Dora L. and Araristo Romero, legal guardians and parents of Roy Romero; Marion Livingston, legal guardian of Willie King; Albino V. Tarasci, legal guardian and parent of Benjamin Tarasci; Theresa M. Allen, legal guardian of Joann Iller; Carolyn A. Neeper, legal guardian and
parent of Monte S. Neeper; Robert L. and Margaret L. Stryker, legal guardians and parents of Patricia K. Stryker; Madeline V. Martinez, legal guardian of Eduardo Valerio; Louisa Hensley, legal guardian and parent of Paul Ray Hensley, Jr.; Malone Peterson, legal guardian of Donald Eugene Peterson; Lavada Philpott, legal guardian and parent of
Charles Gordon Philpott; Mary L. McIntyre, legal guardian and parent of Cliff L. Blackwell; 982 William and Oneta *982 Dye, legal guardians and parents of Rodney Dye; Glenda F. Miries,
legal guardian of Sybil Jetton; Andrew E. and Marianne Martinez, parents of Andra Marie Martinez; Fidel Lopez and Grace Lopez, legal guardians and parents of Joann Therese
Lopez; Victor Jiron, legal guardian and parent of Angeina Jiron; Willard C. and Ima Copper, legal guardians and parents of Calvin Ray Cooper; Manuela and Angel B. Alverado, legal guardians and parents of Theresa Alverado; Lisa Bonney, legal guardian and parent of Joseph A. Cordova; Christine Garcia, legal guardian and parent of Susan Garcia; Charlie T. and Juanita P. Jones, legal guardians and parents of Nada Ann Jones; Palmeria Vigil, legal guardian of Marie Pamela Vigil; George H. and Ruth Graham, legal guardians of Cynthia Gayle Graham; Marian F. Henricks, legal guardian of Glenn Henricks; Tiodora Madrid, parent of Raul Madrid; Herman L. Tapley, legal guardian of Benny Tapley; Juanita J. Montoya, legal guardian and parent of Diana K. Montoya; Mr. and Mrs. Tommy Trujillo, legal guardians of Linda Trujillo; Dolores L. Gonzales, legal guardian of Mary Lou Lucero; Theodore Jiron, brother of Darion Jiron; Robert and Maureen Dawney, parents of Christopher A. Downey; Mary M. Schneider, legal guardian of Bryan G. Schneider; Benito Pacheco, legal guardian of Richard Anthony Pacheco; Trancito J. Candelaria, legal guardian of Ramon Candelaria; Tomasista and Ramon Aragon, parents of Carmela Maldonado; Thomas J. Thompson, legal guardian of Fidel Thompson; Phillip N. Dodd and Judy E. Dodd, parents of Angela C. Dodd; Mary Ann Terrazas, parent, and Theresa Ann Gallegos, legal guardian, of Mark A. Terrazas; Kenneth A. Barnes, legal guardian of Kenneth J. Barnes; Frank C. and Delfa Matta, parents of Frank Matta, Jr.; Lupita S. Garcia, legal guardian of Norma Jean Garcia; Bernaidita Gutierrez, legal guardian and parent of Patsy Gutierrez; Dorothy Ohmart, legal guardian and parent of Victor Ohmart; Billie O'Bryan Finley, legal guardian of Alice Ruth O'Bryan; Rosa M. Lopez, parent of Rosa Delores Bernardo; Ethel L. Lowe and Clara Lindstrom, legal guardians of Dennis Ray Lowe; Henry and June L. Bryant, legal guardians and parents of Henry Lynn Bryant; Diega Olivarez, legal guardian of Louis Olivarez; William W. Hoffman, legal guardian of Ellen Kathryn Hoffman; Irene Senutovitch, legal guardian of Christine Senutovitch; Robert and Susan Horning, legal guardians of Lisa Horning; Ladonna Powell, legal guardian of April Powell; Patrick L. and Sarah F. Murphy, legal guardians of Daniel E. Murphy; Dora T. Sena, legal guardian of Antonia Sena; Thomas F. Sullivan, Jr., legal guardian of Sheila Mary Sullivan; Lupe Martinez, parent of Ignacita; Orcelia Romero, parent of Benjamin Chavez Romero; Al Farinelli, brother of Nick Farinelli; Mary R. Michiels, legal guardian of Camille Tena; Jack L. and Louise Kite, parents of Jackie Kite; Antonia Segura, parent of Ruby Martinez; Kenneth A. and Mildred L. Barnes, legal guardians of Joey Barnes; Sylvia and Kay Sensanbugher, legal guardians of Rex Sensanbaugher; Doris J. Harrison, legal guardian of Dale Harrison; Marianne K. Newton,

legal guardian of David William Kern; Santiago and Annie Gutierrez, legal guardians of Jose S. Gutierrez; Floyd and Dorothy Hobbs, parents of Denise Hobbs; Manuel and Maria Longoria, parents of Maria deRosario and Cruz Alberto; Homer L. Hailey, parent and legal
guardian of Charles Ray Hailey; Mary L. Russell, legal guardian of and parent of Neva Russell; Harry Thompson, Jr., legal guardian of Rodger Marc Thomason; Andreita
Cordero, legal guardian of Maria R. Cordero; Cornelia A. Mendenhall, legal guardian of Barry Thomas Mendenahall; Allan K. and Ruby W. Buttke, parents of Linda Kay Buttke;
Max W. and Mary Ann Sanchez, legal guardians and conservators of James Howard 983 Sanchez; Jack and Mabel Sherwood, legal guardians *983 and parents of Leroy Sherwood;
Arlene E. Stanley, legal guardian and parent of Linda Jo Staley; Flora Sandoval, legal guardian and parent of Ralph Sandoval; Wilber F. Offtermatt, legal guardian of Edward G.
Offtermatt; Cassius C. Martin, legal guardian of Sandra Sue Martin; David H. Nez, legal guardian of Barbara Nez; Wayne H. and Elizabeth L. Trump, legal guardians and parents of David Wayne Trump; Carmel Sanchez Norris, legal guardian and parent of Counsuelo
C. Sanchez; Gilbert and Margaritta L. Aragon, legal guardians of John Schevei Kart; Patrick F. Jewell, legal guardian of Kathleen M. Jewell; Alice Coslin, legal guardian of JoAnn Roper; Nicholas and Juana Reyes, parents of Araceli Reyes; W.P. Shunkey, legal
guardian of David L. Shunkey; Majorie Clingeupeil, legal guardian of Cynthia Ann Clingepeil; Dominga Martinez, legal guardian of Dora Ramirez; Thomas W. and Jane E. Newton, legal guardians of Henry S. Newton; James R. and Laverne Newcomer, parents of Lynette Newcomer; Raymond R. and Mayre Binyon, parents of Donna F. Binyon; Victor Jiron, legal guardian of Angelina Jiron; Josephine Rutar, legal guardian of Celeste Rutar; Paula M. Trujillo, legal guardian of Beverly Jean Heck; Dora L. Romero, legal guardian and parent of Ray Daniel Romero; Hoyt C. and Annise Mae Evans, parents of Sharon Kay Evans; Rosenda Bravo, legal guardian of Anthony Marquez; Joe L. and Lillian B. Lente, legal guardians and parents of Joanne Sue Lente; Andres and Valeria Salas, parents of
Anthony Salas; Charles E. Woodhouse, legal guardian and parent of Ann Marie Woodhouse; Kenneth D. and Thelma E. Osborne, legal guardians and parents of Warren J. Osborne; Ola Mae Tidwell, legal guardian of Doyle Wayne Tidwell; Majorie F. Miller, legal guardian and parent of Leslie Eugene Miller; Greg A. Abeyta and Sylvia B. Abeyta, legal guardians of Michael Abeyta; Mary Ava Peet, legal guardian of Robert Todd Sherman; A.R. and Dora H. Serna, parents of Sandra Serna; Jim A. and Sandy S. Ehler, parents of Clinton Ehler; Henry and Rosita A. Sena, parents of H. Anthony Sena, Jr.; John P. Cosaus, legal guardian of Johnny Ray and Fabian Cosaus; Rore Marquez and Augustina Montoya, legal guardians of Ernesto Hurbina; I.L. Zaleski, parent of Melody Zaleski; Julian and Marie E. Lovato, legal guardians of Shirley Lovato; Freddie F. and Annie Segura, legal guardians of Christella Segura; Mary A. Gonzales, legal guardian of Issac Apodaca; Carmen C. Garcia,
legal guardian of Manuel Garcia; Gus and Pilar Gandora, parents of Gregory James Gandara; Elsie M. Mead, legal guardian of Charles L. Franklin; Margaret G. Weitzel, legal guardian of Joe Raymond Gallegos; Isabel H. Ruiz, legal guardian of Alberto David Ruiz;
Brenda Grogan, parent of Michael W. Grogan, Intervenors-Appellants.
No. 91-2027.
United States Court of Appeals, Tenth Circuit.
May 18, 1992.
984

985 *984 *985 Kent Winchester (Roberta Beyer and Vernon W. Salvador, of Albuquerque, N.M., with him on the brief), for the intervenors-appellants.
Robert Tabor Booms (Tom Udall, Atty. Gen. of N.M., and Nancy Alma Taylor, Asst. Atty. Gen. of N.M., were with him on the brief), Asst. Atty. Gen. of N.M., for the defendants-appellees.
Frank J. Laski (Philip B. Davis, of Albuquerque, N.M.; Peter Cubra, of the Protection & Advocacy System, of Albuquerque, N.M.; and Judith A. Gran, of the Public Interest Law Center of Philadelphia, Philadelphia, Pa., were with him on the brief), of the Public Interest Law Center of Philadelphia, Philadelphia, Pa., for plaintiffs-appellees.
Before LOGAN and TACHA, Circuit Judges, and COOK, District Judge.[*]
TACHA, Circuit Judge.
Intervenors appeal from a district court order that requires the parties to submit a plan to correct deficiencies at Fort Stanton Hospital and Training School (FSH & TS) and Los Lunas Hospital and Training School (LLH & TS), requires defendants to prepare a plan of transfer to a community setting for each resident of FSH & TS and LLH & TS whose interdisciplinary treatment team (IDT) recommends or has recommended transfer, and permanently enjoins defendants from permitting the IDTs to take into account the availability of community facilities when making a recommendation as to whether a resident should be transferred to a community setting. Jackson v. Fort Stanton Hosp. & Training Sch., 757 F.Supp. 1243 (D.N.M.1990). On appeal, intervenors contend that the district court erred in holding that section 504 of the Rehabilitation Act of 1973 and the Due Process Clause of the Fourteenth Amendment require that defendants transfer residents whose IDTs recommend community placement. They also contend that the court erred in holding that the Due Process Clause forbids the IDTs from considering the availability of community settings when making placement recommendations. We exercise jurisdiction under 28 U.S.C. § 1292(a)(1) over only the portion of the district court's order that issues permanent injunctive relief, and we reverse.
BACKGROUND
In July 1987, twenty-one developmentally disabled individuals brought this civil rights class action suit on behalf of themselves and others similarly situated to challenge the institutionalization of developmentally disabled persons at FSH & TS and LLH & TS, both of which are operated by the State of New Mexico. In their complaint, plaintiffs sought to correct the constitutional and statutory deficiencies of the conditions at FSH & TS and LLH & TS. In addition, plaintiffs sought relief allowing developmentally disabled persons at FSH & TS and LLH & TS to live in integrated, family-like settings within the community. Thirteen of the original twenty-one named plaintiffs acted as representatives of the class.
In June 1988, the district court allowed more than 125 parents and guardians of residents at FSH & TS and LLH & TS to intervene. Seeking to bring the conditions at the institutions into compliance with constitutional and statutory mandates, intervenors filed a complaint in intervention. Intervenors also opposed plaintiffs' efforts to require mandatory transfer of the institutions' residents to community-based facilities.
On May 23, 1989, the district court certified a class of all persons who at that time resided at FSH & TS or LLH & TS, all persons who would become residents of the institutions during the pendency of the action, and all persons who had been transferred from these two institutions to other facilities funded by defendants. The court also divided the class into two subclasses pursuant to Fed.R.Civ.P. 23(c)(4)(B). The thirteen named representatives of 986 the original plaintiffs represented a subclass that *986 sought both closure of FSH & TS and LLH & TS and community placement of the residents. Intervenors comprised the other subclass seeking to improve the conditions at the institutions, but opposing mandatory transfers of the institutions' residents.
After an eight-week trial, at which evidence was presented as to the original thirteen plaintiffs and as to conditions at the institutions, the district court entered an extensive Memorandum Order and Opinion on December 28, 1990. The court made detailed findings of fact regarding almost every aspect of the conditions at FSH & TS and

LLH & TS. It found that the conditions at the institutions were statutorily and constitutionally deficient in many ways. Accordingly, the court ordered the parties to confer and to submit to the court a plan for correcting the institutions' deficiencies.[1]
In its December 28, 1990 order, the district court also made various findings of fact with respect to defendants' implementation of the IDTs' recommendations that certain residents be placed in community settings. The court held that defendants' manner of implementing 0907 and in many cases failure to implement 0907 these communityplacement recommendations violated both the residents' rights under section 504 of the Rehabilitation Act of 1973 and also their substantive due process rights guaranteed by the Fourteenth Amendment of the Constitution. The court's holding divides into three separate parts. First, the district court held that defendants discriminated against residents with severe handicaps in violation of section 504 by excluding them "from qualitatively different facilities which are being provided to their less severely handicapped peers, despite IDT determinations that particular severely handicapped residents can live in community settings if defendants make reasonable accommodations in those settings." Second, the court held that the defendants violated the residents' substantive due process rights because they failed to implement recommendations by IDTs 0907 consisting of qualified professionals 0907 that certain of these residents should be placed in community settings. Third, the court held that defendants violated residents' substantive due process rights by considering the present availability of community services when determining whether to recommend the residents for community placement.
The district court fashioned two forms of relief based on its findings and legal conclusions regarding defendants' community placement processes. First, the court permanently enjoined defendants "from permitting IDTs to take into account the availability or lack of availability of community services in reaching a recommendation as to whether a resident should be served in the community." The second form of relief granted by the district court involved the process of making and carrying out community placement recommendations. The court ordered defendants, by March 1, 1991, to "prepare a written plan of transfer to an appropriate community setting for each resident whose IDT has recommended placement in a community setting." The district court encouraged plaintiffs and intervenors, after receiving defendants' plans, to confer with defendants immediately "in a good faith effort to resolve their concerns" and to amend the plans accordingly. The court also afforded plaintiffs and intervenors the opportunity to "file with the court and serve on defendants a statement of any remaining objections they may have to, and their proposals for amending, any particular plan."
With respect to residents whose IDTs had made recommendations against community placement based on the unavailability of adequate community services, the court ordered defendants 0907 by April 1, 1991 0907 to "convene IDT meetings to reconsider and to make recommendations about community placement that do not take into 987 account the present availability or unavailability of community services." The court *987 ordered defendants 0907 by no later than June 10, 1991 0907 to prepare transfer plans for those residents whose IDTs, upon reconsideration, make new recommendations for community placement. The court provided plaintiffs and intervenors the same opportunity to participate in and object to these transfer plans.[2]
Defendants did not appeal from the district court's Memorandum Order and Opinion of December 28, 1990, but instead elected to attempt to comply with the planning and corrections process ordered by the district court. Defendants generally contend that the issues ruled on by the district court are not yet ripe for appeal. Intervenors, on the other hand, filed a notice of appeal from the December 28, 1990 order and contend that the district court erred with respect to its holding that section 504 of the Rehabilitation Act and the Due Process Clause of the Fourteenth Amendment require transfer of certain residents at FSH & TS and LLH & TS. They also contend that the court erred by enjoining defendants from considering the present availability of community facilities when deciding whether to recommend a resident for community placement. Therefore, on this appeal, we are faced with the rather unusual situation in which defendants have not appealed from an order granting the relief requested by plaintiffs; instead, intervenors, who also sought certain relief granted by the district court, appeal from a portion of the relief granted against defendants.
DISCUSSION

I. Appellate Jurisdiction
As an initial matter, we must determine whether we have jurisdiction to decide the issues on appeal. McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 953 (10th Cir.1989) (an appellate court has a duty to inquire into its own jurisdiction). It is clear that we have jurisdiction to review the portion of the district court order that permanently enjoins defendants from allowing the IDTs to consider the availability of community settings when making placement recommendations. Under 28 U.S.C. § 1292(a)(1), we "have jurisdiction of appeals from ... [i]nterlocutory orders of the district courts of the United States ... granting ... injunctions." However, we must still determine whether we have jurisdiction over the remainder of the issues on appeal. We first address both whether the remainder of the order itself is a final order (appealable under § 1291) and also whether the portions of the order requiring the submission of remedial plans are tantamount to an injunction (appealable under § 1292 (a)(1)). Because we hold that the order is not final and that the portions of the order requiring the submission of plans are not tantamount to an injunction, we also must determine whether the otherwise nonappealable issues raised by appellants fall within our jurisdiction as issues related to the permanent injunction issued by the district court.
A. Appealability of Issues Other Than the District Court's Explicit Permanent Injunction
In their brief on appeal, intervenors state that our jurisdiction is based on 28 U.S.C. § 1291. Section 1291 vests appellate court jurisdiction only "from final decisions of the district courts" (emphasis added). In this circuit, we have not yet directly addressed whether, and under what circumstances, a district court order requiring parties to submit a remedial plan is a final order. Most circuits conclude that remedial plan orders generally do not 988 constitute final orders appealable under § 1291. See Balla v. Idaho State Bd. of *988 Corrections, 869 F.2d 461, 464-65 (9th Cir. 1989); Sherpell v. Humnoke Sch. Dist. No. 5, 814 F.2d 538, 539-40 (8th Cir.1987); Groseclose v. Dutton, 788 F.2d 356, 358-61 (6th Cir.1986); Liddell v. Board of Educ., 693 F.2d 721 (8th Cir.1981); Spates v. Manson, 619 F.2d 204, 208-11 (2d Cir.1980); Hoots v. Pennsylvania, 587 F.2d 1340, 1346-47 (3d Cir.1978); Reed v. Rhodes, 549 F.2d 1050 (6th Cir.1976) (relying on Bradley v. Milliken, 468 F.2d 902, 902-03 (6th Cir.), cert. denied, 409 U.S. 844, 93 S.Ct. 45, 34 L.Ed.2d 83 (1972), cert. denied, 414 U.S. 1038, 94 S.Ct. 538, 38 L.Ed.2d 329 (1973)); Taylor v. Board of Educ., 288 F.2d 600, 601-02 (2d Cir.), aff'd 294 F.2d 36 (2d Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961). In addition, most circuits hold that a district court's order to submit a remedial plan is not tantamount to an injunction appealable pursuant to § 1292(a)(1). Newsom v. Norris, 888 F.2d 371, 379-80 (6th Cir.1989); Hendrickson v. Griggs, 856 F.2d 1041, 1043-44 (8th Cir. 1988); Sherpell, 814 F.2d at 539-40; Groseclose, 788 F.2d at 359-61; Hoots, 587 F.2d at 1348-51; Bradley, 468 F.2d at 902-03; Taylor, 288 F.2d at 604-05.
Several circuits, however, recognize exceptions to the general rule that district court orders that require the preparation and submission of remedial plans are not appealable. One obvious exception to the general rule occurs when the district court order for a plan clearly contains injunctive relief; such relief is appealable under § 1292(a)(1). See, e.g., Hendrickson, 856 F.2d at 1044. As noted above, because the district court permanently enjoined defendants from allowing IDTs to consider available services when making community placement decisions, that portion of the order is appealable under § 1292(a)(1).
Several courts also recognize an exception to the general rule of nonappealability when the district court's "order specifie[s] the nature, requirements and extent of the relief to be afforded by the plan to be submitted." Hoots, 587 F.2d at 1349 (holding that the nature and content of an order requiring a plan for school desegregation was not sufficiently specific to make the order appealable as an injunction); see also Spates, 619 F.2d at 209-10 (order requiring prison officials to file plan for improved legal assistance to inmates not sufficiently specific to be appealable); Groseclose, 788 F.2d at 360-61 (order requiring prison to submit plan for improved conditions of confinement not sufficiently specific as to content of the plan); cf. United States v. Alabama, 828 F.2d 1532, 1537-38 (11th Cir. 1987) (order requiring plan of desegregation in institutes of higher learning was appealable

where district court had "already `substantially prescribed' the remedial plan"), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988). In Hoots, the Third Circuit explained the rationale underlying this exception:
In a case in which the district court has, in its order, determined the nature and extent of the injunctive relief which the final decree will grant, all that remains for the parties is to propose the mechanics for the implementation of that relief. The issues in such a case are ready for appellate consideration, because the precise plan which ultimately will be adopted by the district court will do no more than determine how the injunctive relief will be accomplished as contrasted with the nature and extent of that relief. Therefore, any actions that may thereafter be taken by the district court will not change or affect the legal issues raised by the appeal.
Hoots, 587 F.2d at 1352. The general rule 0907 that orders requiring a plan are not appealable 0907 and its recognized exceptions are consistent with the policy underlying rules of finality that, where possible, appellate courts should avoid interfering with trial court proceedings until the trial court receives a full opportunity to develop the record, resolve disputed issues, and grant an appropriate remedy. See 15A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3907, at 274-78 (1991).
Based on these principles, we conclude that the portions of the district court's order of December 28, 1990 989 requiring that defendants submit plans both for the correction of deficiencies at FSH & TS and *989 LLH & TS
and also for the transfer of residents whose IDTs recommend community placement are not independently appealable. Naturally, the district court's order is not completely devoid of specifics. However, the court did not outline in detail the nature and content of these plans. Instead, the court determined that the constitutional and statutory rights of residents at the two institutions had been violated and gave substantial latitude to the parties to determine, acting together in good faith, the most appropriate method to remedy those violations. For example, in the portion of its order that addressed plaintiffs' claims under section 504 of the Rehabilitation Act of 1973, the district court held that "where reasonable accommodations in community programs can be made, defendants' failure to integrate severely handicapped residents into community programs which presently serve less severely handicapped residents violates § 504." The district court did not specifically describe either the nature of accommodations that should be made or how defendants should comply with section 504. Instead, the court allowed defendants, with input from plaintiffs and intervenors, significant discretion to prepare and implement a plan to make these reasonable accommodations.
Since the December 28, 1990 order, defendants have interacted with the court, with plaintiffs, and with intervenors to create and begin implementation of a plan for overarching systemic changes at FSH & TS and LLH & TS. Although this interaction has been less than ideal, the record indicates that significant progress has been made in the planning process. The plan's evolution during the many months since the district court's order further underscores that the order did not rigidly impose the nature and content of a plan for remedying constitutional and statutory violations at the two institutions.[3]
B. Discretionary Jurisdiction Over Issues Related to the Injunction
Although we conclude that 0907 except for that part of the district court's order that grants a permanent injunction 0907 issues addressed in the December 28, 1990 order are otherwise nonappealable, jurisdiction may still arise in two situations. First, we "have jurisdiction to consider those matters which are closely related to the grant ... of the injunction." Colorado v. Idarado Min. Co., 916 F.2d 1486, 1491 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1584, 113 L.Ed.2d 648 (1991). Second, "[w]e also have discretionary jurisdiction to consider `rulings that are related but not essential to the validity of the injunction.'" Id. (quoting Asset Allocation & Management Co. v. Western Employers Ins. Co., 892 F.2d 566, 569 (7th Cir.1989) and citing Tri-State Generation & Transmission, Ass'n Inc. v. Shoshone River Power, Inc., 874 F.2d 1346, 1352-53 (10th Cir.1989)). In deciding whether to exercise such discretionary jurisdiction, the following factors inform our decision:
(1) whether the otherwise nonappealable issue is sufficiently developed, both factually and legally, for our review, (2) whether review of the appealable issue involves consideration of factors closely related or relevant to the otherwise nonappealable issue, and (3) whether judicial economy will be

990

better served by resolving the otherwise nonappealable issue, *990 notwithstanding the federal

policy against piecemeal appeals.

Id. Our discretion to hear issues otherwise not appealable should be exercised "cautiously." Tri-State, 874 F.2d at 1352.

Initially, we conclude that the otherwise nonappealable issues were not "a basis for," Tri-State, 874 F.2d at 1352, or "closely related to," Idarado Mining Co., 916 F.2d at 1491, the district court's decision to enjoin defendants from permitting IDTs to consider what community settings are available when they make community placement recommendations. In their appellate brief, intervenors raise two issues that are otherwise nonappealable: first, whether defendants discriminated against severely handicapped residents under section 504 by not transferring them to community facilities; and second, whether defendants violated residents' substantive due process rights by not transferring them after their IDTs recommended community placement. Both of these issues deal with administrative decisions that are made after the IDTs recommend placement. Thus, neither of these two issues directly relates to recommendations made by the qualified professionals that make up the IDTs, and jurisdiction is not appropriate under Idarado's "closely related" test.

We also conclude that we should not exercise our discretion at this time to address these otherwise nonappealable issues. A district court remedy that involves a plan inherently remains subject to a changing or evolving record. The Federal Rules of Civil Procedure explicitly give courts authority to modify their interlocutory orders, see Fed.R.Civ.P. 54(b); Balla, 869 F.2d at 465, so that even the order itself remains subject to change. Because the court allowed each of the parties to provide substantial input into creation of the plans, the parties may strike an accord that addresses each party's interests and obviates the need for an appeal. Further, in the more than one year that has passed since the district court entered its order, the parties and the court appear to have postponed their efforts related to community placement efforts, and instead have worked to develop and implement a plan to correct constitutional and statutory violations related to the conditions at FSH & TS and LLH & TS. Based on our review of the record, we have every reason to believe that the court and the parties will undertake the same type of coordinated developmental process in the area of community placement recommendations and transfers. For these reasons, we conclude that our discretion is best exercised by allowing the district court to further "resolve[] the remedial issue[s] consistent with" the statutory and constitutional violations it has identified at the two institutions. Idarado Min. Co., 916 F.2d at 1492.

II. The Permanent Injunction Issued by the District Court

The district court ordered that "[d]efendants are hereby enjoined from permitting IDTs to take into account the availability or lack of availability of community services in reaching a recommendation as to whether a resident should be served in the community." The following excerpt from the district court's order explains the legal reasoning underlying the injunction:
Professional judgment must be based on what is appropriate, not upon what resources are available.... Institutional confinement which results from an absence of appropriate alternatives is not based on professional judgment.
Many residents of LLH & TS and FSH & TS are not recommended for community placement because of the unavailability of proper community services for those residents.... The residents are entitled to treatment recommended by qualified professionals whose judgment is unsullied by consideration of the fact that the state does not provide funding for appropriate service in community settings.
Although the district court did not clearly specify the constitutional or statutory grounds for its determination that the IDTs cannot consider the availability of community resources when they make community placement 991 decisions, this excerpt of the opinion was located within the section entitled, "B. Constitutional Claims 0907 1. *991 Substantive Due Process." Therefore, we assume that the district court based its legal reasoning 0907 and the injunctive relief that followed from that reasoning 0907 on the Due Process Clause of the Fourteenth Amendment.[4]

In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Supreme Court determined that the substantive aspect of the Fourteenth Amendment's Due Process Clause imposes two types of obligations on states with respect to the care and training they provide to disabled persons who are institutionalized or wholly dependent on the state. First, the Due Process Clause imposes on the states a duty to provide safe living conditions, freedom from bodily restraint, and minimally adequate training. Id. at 315-22, 102 S.Ct. at 2457-61 (citing Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), as establishing the right to safe conditions and Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), as recognizing the right to freedom from bodily restraint). The Court provided specific instructions for courts to follow in evaluating whether these constitutional minimums are met with respect to adequate training. In determining whether the state meets these minimal training obligations, the court "must show deference to the judgment exercised by a qualified professional" unless the decision made by the professionals "is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. 457 U.S. at 322-23, 102 S.Ct. at 2462.
Second, Youngberg established that the state must ensure professional judgment is in fact exercised in making care and training decisions:
We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraint. He would have held that "the Constitution only requires that the courts make certain that professional judgment in fact was exercised."
Id. at 321, 102 S.Ct. at 2461 (quoting Romeo v. Youngberg, 644 F.2d 147, 178 (3d Cir.1980) (Seitz, C.J., concurring)); see also Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1089 (2d Cir.1990) ("the issue is not whether the optimal course of treatment as determined by some experts was being followed, but whether `"professional judgment in fact was exercised"'"); Lelsz v. Kavanagh, 807 F.2d 1243, 1250 (5th Cir.) ("we may rule only on whether a decision to keep residents at SDC [Suffolk Developmental Center] is a rational decision based on professional judgment"), cert. dismissed, 483 U.S. 1057, 108 S.Ct. 44, 97 L.Ed.2d 821 (1987).
In the portion of the district court's opinion that supports the injunctive relief issued, the court's analysis clearly focuses on the second substantive due process obligation imposed on the state by Youngberg 0907 the obligation to ensure the exercise of professional judgment in making care and training decisions. We conclude that the mere fact that the IDTs consider the availability or unavailability of community services when they make care and training recommendations does not, alone, support a conclusion that the IDTs 0907 and thus the state 0907 fail to exercise reasonable judgment.
In Youngberg, the Court concluded that "the State is under a duty to provide respondent with such training as an 992 appropriate *992 professional would consider reasonable to ensure his safety and to facilitate his ability to
function free from bodily restraints." Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462 (emphasis added). A reasonable consideration must necessarily incorporate a cost analysis. A professional determination that excludes all considerations of costs and available resources could easily become impossible for a state to implement within justifiable budgetary limitations. A professional determination that includes an analysis of cost is reasonable and does not constitute "such a substantial departure from accepted professional judgment ... to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323, 102 S.Ct. at 2462. Thus, as the Fourth Circuit explained, "qualified professionals, to whom the courts owe deference, may consider the burden on the state when they prescribe treatment." Thomas S. v. Morrow, 781 F.2d 367, 375 (4th Cir.) (citation omitted), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 90 L.Ed.2d 673, cert. denied, 479 U.S. 869, 107 S.Ct. 235, 93 L.Ed.2d 161 (1986).
We recognize that, by imposing overly extensive cost restrictions in individual cases, the state could so limit the range of recommendations available to professionals that their judgment would be rendered inadequate to meet constitutional standards. In such a case, the court might have to enter an order that would implicate

appropriations decisions. The injunction in this case, however, in effect forbids the state from placing cost limitations on one specific treatment alternative 0907 community placement. The injunction is tantamount to a holding that such a restriction renders professional judgment inadequate in all individual cases. Community placement is only one of various possible ways in which the state may comply with its constitutional obligations to adequately care for and train involuntarily committed individuals. Consideration by the IDTs of the limited availability of community services does not mean that the IDTs fail to exercise professional judgment with respect to other alternatives by which the state may satisfactorily meet its constitutional obligations. Therefore, we hold that the district court erred in ruling that the Due Process Clause of the Fourteenth Amendment requires that defendants be enjoined from permitting IDTs to consider the availability of community services when making treatment decisions.
The role of the federal courts in this important area is a limited one: to make sure that the state and the qualified professionals that the state enlists to assist in the exercise of professional judgment meet the constitutional threshold of protection granted to disabled persons by the Due Process Clause. Above that constitutional threshold may exist many constitutionally acceptable alternatives from which the state may legitimately choose. Inevitably, some of these alternatives may take into account the availability of treatment options or indeed the resources necessary to supply some of these options.
When the district court ordered by injunction that the IDTs could not consider available alternatives, the court went too far 0907 it exceeded its appropriate constitutional role. Youngberg inserts the federal courts into these treatment and placement decisions only to ensure the state's compliance with the minimum standards required by the federal Constitution. The choice of alternatives within the universe of constitutionally acceptable choices is to be left to the states and their "qualified professionals." Nowhere are the federal courts empowered to say that states may not consider available resources or facilities. When a court does so, it thrusts itself into the unconstitutional role of making decisions that are reserved to the states under the Constitution and, worse, into the role of driving state resource allocation beyond those resources necessary to meet minimum constitutional standards.
The appropriateness of the district court's permanent injunction is a discrete question separable from the other issues on appeal. Our resolution of this question will shape the development of community placement plans 993 ordered by the district court. Having reviewed the record, including the *993 progress made by the district court and the parties since the district court issued its order, we are confident that our decision today will aid 0907 without unduly infringing upon 0907 the process of arriving at an appropriate remedial plan for compliance with constitutional and statutory standards. Accordingly, we REVERSE in part and REMAND for proceedings consistent with this opinion.
[*] The Honorable H. Dale Cook, Senior District Judge for the United States District Court for the Northern District of Oklahoma, sitting by designation.
[1] Because the relief granted by the district court regarding the correction of these deficiencies has not been raised on appeal, we do not discuss in detail the nature of the deficiencies or why the district court held that the deficiencies violated the Constitution and applicable federal statutes. See Jackson v. Fort Stanton Hosp. & Training Sch., 757 F.Supp. 1243 (D.N.M.1990).
[2] The district court also set deadlines for accomplishing the transfer of each resident to a community facility. The court stated that defendants should make transfers within 200 days after an IDT recommends the resident for placement or within 200 days after a transfer plan is completed. However, the district court later suspended the transfer plan deadlines contained in the December 28, 1990 order and stated that deadlines will be reset once the defendants complete their systemic interagency planning process. From our review of the record, it is apparent that most of the interaction between the parties and the court since the December 28, 1990 order has focused on efforts to create and implement a plan for correcting deficiencies at FSH & TS and LLH & TS.
[3] Our holding today does not conflict with our decision in Board of Educ. v. Dowell, 375 F.2d 158, cert. denied, 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 993 (1967). In Dowell, the district court ordered the Oklahoma City Board of Education "to prepare and submit a plan [for racial desegregation] substantially identical to that set out"

in a plan previously prepared by a court-appointed panel of experts. Id. at 164 (emphasis added). In that case, the district court's order clearly specified the exact nature and content of the plan and thus fell within the exception to the general rule of nonappealability now recognized by most circuits. See Spates, 619 F.2d at 210 (citing Dowell and recognizing that the order was appealable because the district court had outlined the nature and content of the ordered plan); Hoots, 587 F.2d at 1349 (jurisdiction in Dowell was predicated on "the crucial element ... that the order from which appeal was taken specified the overall content or outline of the plan to be submitted"). Because the district court's order in this case has left many of the specifics of the ordered plans to the discretion and negotiation of the parties, the order is very different 0907 and easily distinguishable 0907 from the very specific order in Dowell.
[4] The district court's reasoning also appears to be based on substantive due process principles because the court quoted and cited Clark v. Cohen, 613 F.Supp. 684, 704 & n. 13 (E.D.Pa. 1985), aff'd 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986), and Lelsz v. Kavanagh, 673 F.Supp. 828, 835 (N.D.Tex.1987). The portions of those cases cited by the court discuss a mentally retarded person's substantive due process right to "minimally adequate training" under Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
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