U.S. v. Tennessee

MR-TN-0004-0009
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

UNITED STATES OF AMERICA
V8.
STATE OF TENNESSEE, ET AL

Civil Action No. 3t96-1056 Judge Robert L. Echols

ORDER

Pending before the Court is a Motion by the Plaintiff, United States of America, to Consolidate (Document Entry No. 3 ) . The motion is GRANTED, and this action is hereby consolidated with
i
Civil Action No. 3:95-1227, People First of Tennessee, et al vs. Clover Bottom Developmental Center, et al.
IT IS SO ORDERED.

ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE

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 US. Department of JusticeCivil Rights Division

U.S. v. Tennessee

. DC2

• I V I O I H i a *HIW • • • •••HIBHH • • • • • • ™» • • » • » • H V B I I H H I I B H I H I • • • H I ! • • • • • • ! • • • ! • IIHI • • • » •
MR-TN-004-001
The Honorable Ned Mc'Wherter Governor State of Tennessee State Capitol Nashville, Tennessee 37243-0001

J.J.N. ~2 2~ wg-_f94

Dear -Governor McVherter:

I as writing to advise you that we intend to investigate the clover Bottom Developmental Center, Nashville; the C-ieene Valley Developmental Center, Greeneville; and the Nat T. Winston Developmental Center, 3olivar, Tennessee, to deterr-ir.e vfcether the constitutional and federal statutory rights of develop-entaliy disabled individuals confined in these facilities are being denied. This investigation is pursuant to the: Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 19S7 et sea.

The purpose of this investigation will be to determine, ar.cr.g other things, whether adequate care, education, ar.c training are being afforded to residents of these facilities. As well, we will be focusing on placement issues, including the appropriateness of conr-.unity-based services for the develcpr-entally disabled individuals who are presently confined at these institutions.

The initiation of this investigation does not indicate a prejud.gr.ent en our part that federal constitutional or statutory rights have been violated. Additionally, if as a resuli. ofour investigation any violations are found, we intend to colder with appropriate state officials concerning any appropriate c:c rrective action.

We plan to initiate this investigation as soon as pcssible. In that regard, attorneys fron r.y office will contact tht. Attorney General's office in the near future to arrange tours of these facilities by cur consultants and Civil Rights Di^:sicn personnel. 7'r.e attorney responsible for this r.atter is j^urie J. Weinstein, (202) 514-6408.

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Your cooperation is appreciated.
Sincerely,
Deval L. Patrick Assistant Attorr.ey General
Civil Rights Division
cc: The Honorable Charles W. Burson Attorney General State of Tennessee
Mr. John Redditt Superintendent Clover 3otton Developmental Center
Kr.~ Robert Erb Superintendent Greene Valley Developmental Center
V.z. Pete Davidson Acting Superintendent Kar T. Winston Developcental Center
John H. Roberts, Esquire United States Attorr.ey Middle District of Tennessee
Veronica F. Coler.an, Esquire United States Attorney Western District of Tennessee

i

U.S. Department t ustice

Civil Rights Division

Office of the Auis:ant A::cn-,ey General

Washington. DC. 20530

January 10, 1995
The Honorable Ned McWherter Governor State of Tennessee State Capitol
Nashville, Tennessee' 3721S
Re: Greene Valley Developmental Center
Dear Governor McWherter: On June 23, 19 94, W e advised you of this D e p a r t m e n t ' s intent
to investigate conditions at the Greene Valley Developmental Center ("GVDC") in Greeneville, Tennessee, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, ej: sea. During the week of September 19, 19 94, we toured the facility accompanied by consultants in the fields of medicine, psychology, nursing and physical therapy. We wish to express our appreciation for the cooperation shown by the GVDC staff and the representatives from the Department of Mental Health and Mental Retardation and the Attorney General's office during this investigation. On September 24, 1994, we conveyed to the. facility superintendent and other state officials an initial assessment of deficiencies at the facility. Our full assessment of conditions at GVDC has now been completed.
We regret to advise you that we found numerous conditions at GVDC that violate the constitutional and federal statutory rights of the residents there. Under the Fourteenth Amendment and relevant federal statutes, residents of state-operated facilities for the developmentally disabled and mentally retarded have a right to, inter alia, adequate medical care, reasonably safe conditions, and training sufficient to protect each resident's liberty interests, including training to permit each resident an opportunity to function as independently as possible. Programs must be provided to teach adaptive skills, including self-help, communication, and social skills. In addition, individuals with developmental disabilities must be provided services in community-based programs where appropriate. X/

Act ("ADA"), 42 U.S.C. § 12132, et sea, (and implementing regulations, 23 C.F.R. 35.130(b) (1) , and 28 C.F.R. 35.130(d)3;
(continued . .. .)

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In addition, GVDC is not in compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, e_t sea. , Section 504 cf the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., the substantive provisions of Title XIX of the Social Security Act, 42 U.S.C. § 13 35, .et. sea. , and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 - 1485.
The facts disclosed during the course cf our investigation that support our findings of unconstitutional conditions and violations of federal statutory rights at GVDC are set forth below.
I. Medical Care is Dangerously Deficient.
A. General Medical Care
Due to an inadequate medical care delivery system, especially the failure to provide adequate preventive and chronic care, GVDC residents are subjected to needless fractures, recurrent aspiration, preventable weight loss, recurring seizures, avoidable injuries, and other direct threats to their health. Records of residents reviewed by our medical consultant indicate, for example, repeated fractures over many years absent preventive measures; recurrent aspirations, dysphagia and pneumonias without a coherent management plan to treat and otherwise address these life-threatening ailments; significant, rapid weight loss representing a direct threat to health which was often not acknowledged or acted upon by professional staff; multiple drug use absent adequate justification; and other misdiagnosed or untreated injuries. Significantly, the lack of individual or facility-wide data with respect to these urgent medical needs of residents not only compromises the care of individual residents, but limits the ability of the medical staff and administration to properly allocate resources, develop plans,
1/(...continued) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et sea.; Title XIX of the Social Security Act, 42 U.S.C. § 1356, et sea, (and implementing regulations, 42 C.F.R. § 483.420 480); Younabera v. Romeo, 457 U.S. 307 (1982); United States v. Tennessee, No. 92-2062, slip op. (W.D. Tenn. Feb. 17, 1994); Halderman v. Pennhurst State School & Hospital, No. 874-1345, slip op. (E.D. Pa. March 29, 1994); Jackson v. Fort Stanton Koso. & Training School, 757 F. Supp. 1243 (D.N.M. 1990), rev'd in part on other grounds, 964 F.2d 980 (10th Cir. 1992); Thomas S. bv Brooks v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd 902 F.2d 250 (4th Cir.), cert, denied, 498 U.S. 951 (1990); Clark v. Cohen. 613 F. Supp. 684 (E.D. Pa. 1985), aff'd, 794 F.2d 79 (3d Cir. 1986) cert. denied, 479 U.S. 962 (1986); Gary W. v. Louisiana, 437 F. Supp. 1209 (E.D. La. 1976).

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and ensure critical tr.edical needs are met. In sum, medical care for the most serious needs of the facility's residents is inadequate and fails to comport with generally accepted medical standards.
In addition, medication practices are deficient. There are numerous residents who have been prescribed multiple anticonvulsant and/or psychotropic medications for years. Ir. view of the potential risks associated with many of these medications, including potential for toxicity, tardive dyskir.esia, and reduced cognition, it is generally accepted by medical professionals that polypharmacy or the prescription of multiple medications should be avoided where possible. However, GVDC physicians continue to prescribe such medications absent any rational justification in violation of medical standards. Indeed, psychotropic medications are used on a routine basis at the facility absent adequate rationale or a psychiatric or neuropsychiatric diagnosis. The ubiquitous use of anticonvulsant and psychotropic medication also indicates inadequate consultation with neurologists and psychiatrists. These practices are unacceptable.
The absence of adequate participation of psychiatrists in the treatment of residents is particularly significant. For those dually diagnosed individuals who need both behavioral programming and medication for their mental illness, it is critical that both treatment modalities be integrated properly. The unavailability of adequate psychiatric consultation has severely impeded the ability of GVDC to address the needs of those residents. The inappropriate use of psychotropic medication is a direct result of this deficiency.
Quality control, peer review, and coordination mechanisms for medical care are virtually non-existent. The relationships between physicians and other personnel such as occupational therapists, physical therapists, psychologists, and nurses is ill-defined. Although GVDC's policies require that physicians < order certain therapies, there is no mechanism to ensure that those needing the various therapies receive such orders. Medical staff meetings apparently take place only sporadically. There is no regular morning report among physicians and nurses, and no "on-call" or physician duty logs are regularly kept. Medical records are deficient in that important reports are misfiled and cannot be located. Progress notes are illegible as well. Such lapses in medical care delivery violate basic medical standards.
In the view of our consultants, most of these deficiencies can be attributed to the absence of adequately trained medical professionals, including physicians and nurses. The currer.: physician staff is inadequately trained, organized and supervised to provide adequate medical care. Some of the physicians have little training or experience in working with developmentally .

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disabled persons and few protocols have been developed to provide guidelines to the staff. For example, no protocols or procedures are in place cr. the subjects of tracking or managing emergencies, aspirations, weight loss or gain, dysphagia, or seizures. Policies regarding the frequency-and tracking of tardive dyskinesia screenings and hepatitis vaccinations should be developed. Moreover, there has been little effort to provide medical staff with continuing education. The lack of trained medical staff has significantly compromised medical care at GVDC.
In sum, the medical care system at GVDC is seriously deficient. Serious illnesses are not addressed in a timely manner. Preventable illnesses, unnecessary injuries, and other debilitating conditions occur absent appropriate professional medical intervention.
B. Physical and Nutritional Management
Many residents at "GVDC are nutritionally at risk due to physical disabilities or other medical problems and are not receiving appropriate assistance and training during meals. Failure to appropriately position residents during meals can lead to aspiration, choking, reflux and other health complications. Staff who assist residents at mealtime must receive special training in order to ensure residents' health and safety. Although we observed one meal at which residents were generally being fed appropriately, on many other occasions we observed residents eating in poor positions and the meal plans ("red cards") that were available were often either not followed or not appropriate for the particular resident for whom the plan was developed.
C. Physical Therapy and Positioning of' Physically Handicapped Residents
Physical therapy services at GVDC are seriously deficient. One physical therapist for a population of over 600 residents, many of whom have physical disabilities and a related need for physical therapy services, does not allow the provision of adequate and appropriate physical therapy services. In fact, only 72 residents are currently receiving such services in spite of the large number of residents in the GVDC population who require such services. Ill-trained physical therapy technicians fail to fill the void left by the lack of an adequate number of physical therapists.
Moreover, our physical therapy consultant identified a significant number of dangerous practices being conducted by those few individuals actually engaged in physical therapy activities. For example, technicians routinely failed to take simple precautions such as locking wheelchairs from which residents were transferred to a position for walking. Review of

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incident reports shows that approximately 13 percent of the injuries reported resulted from inappropriate handling of residents during transfer or in use of their wheelchair. No technician ostensibly providing physical therapy was observed endeavoring to teach residents any skills. Technicians used the same walker for multiple residents with broad differences in gait and height. Indeed, deficiencies in addressing the needs of residents with physical disabilities, especially children, are so severe as to represent an active threat to their health and safety.
Appropriate positioning for residents who have multiple physical disabilities is necessary to prevent deterioration of residents' skills, abilities, and health. Our physical therapy consultant ~ade numerous observations of inadequately and improperly positioned residents. Many residents were observed in wheelchairs which did not adequately support them. All sling seat and sling back chairs observed were inappropriate. Chairs were also not appropriately designed and constructed to manage scoliosis and other spinal malalignments. Other chairs were simply too small for the residents using them. Physically disabled residents not in wheelchairs were likewise observed to be placed consistently in inappropriate positions.
Furthermore, accurate and useful documentation of an individual's physical therapy status does not exist, making it impossible to evaluate whether any intervention was effective, ineffective or in need of modification. In fact, many residents reviewed were continued for years on the same programs with little or no progress noted, which would require a modification or at least a re-evaluation of the therapy provided.
In sum, physical therapy services, including the positioning of residents, are so deficient as to represent a direct threat of harm to residents.
II. Residents of GVDC Are Not Adequately Protected From Harm or the Serious Risks of Harm Due to Lack of Supervision.
Direct care staffing is so deficient that many GVDC residents are harmed and are at substantial risk of harm because of the lack of adequate numbers of competent and qualified staff. Our observations and review of documents reveal that numerous injuries occur to residents which staff do not observe as they happen or do observe and fail to prevent. Residents are repeatedly "found with blood" on them from injuries that occur outside of staff supervision. On other occasions, residents' severe injuries are discovered only during bathing or at bedtime. In such instances, the staff report that they are unaware of the cause of the injuries. Such a high degree of unexplained injuries is unacceptable.

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Some residents at GVDC repeatedly engage in self-abusive and other self-injurious behavior, such as serious head slapping or gouging their wounds. For instance, one eleven year old boy apparently lest the sight in one eye from repeated headslappir.g which resulted in a detached retina. Other residents were noted with swollen, disfigured features resulting from years of self-injury. Still others had permanent scars from continual self-mutilation of their faces and arms.
Incident reports detail a variety of unexplained and serious incidents and injuries at GVDC. Although not all accidents can be prevented, many of. the injuries suffered by GVDC residents are preventable products of inadequate staff supervision or intervention. 2./
Over one third of the injuries reported in incident reports -- lacerations, fractures and bruises -- result from residents' behaviors, including sejf-injury and aggression. Many of these incident/injury reports concluded with the notation that the injury was "unavoidable due to resident's behavior," reflecting the facility's lack of confidence in either the residents' ability to learn alternative behaviors or in the facility's capacity to provide appropriate supervision and training. The most frequent recommended response to these incidents is for staff to engage in closer supervision. Such supervision is impossible given current staffing levels.
The number of unexplained injuries reflected in the incident reports is particularly disturbing because staff reported that minor injuries of unknown cause are intentionally not reported. As such, the reported injuries do not reflect the entire range of injuries of unknown origin. Out of a sample of ten residents observed during the tour as exhibiting recent notable injuries, 60 percent of the residents had injuries for which no incident report could be located. Several other reports contained descriptions of injuries that did not accurately reflect the injury observed.
In sum, there is an unacceptable level of injury at GVDC. The level of injuries of unknown origin is also greatly disturbing.
2.1 Approximately 40 percent of incident/injury reports reviewed shewed an injury due to falls. Such injuries can be divided into falls due to seizure activity, falls due to gait or instability problems, particularly in cramped areas, or aggression by other residents. While some seizure-related falls may be difficult to prevent, GVDC is aware of residents whose gait or behavior problems contribute to their falls and should be able to prevent many more of those injuries.

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III. Programs to Reduce Maladaptive Behavior and to Provide Adaptive Skills Are Inadequate or Non-existent, Subjecting Residents to Physical and Mental Harm.
Deficiencies in the program services at GVDC, including both programs designed to eliminate maladaptive and other anti-social behaviors as well as programs to teach residents adaptive and other skills, are significant. Indeed, the deficiencies are so severe that the absence of necessary programs subjects residents to harm and unreasonable risks of harm. Furthermore, services do not provide residents with the necessary skills to enhance their independence or promote and maintain residents' physical and mental health.
A. Psychology Staff is Inadequate to Provide Necessary Services
GVDC currently has^ two doctoral level psychologists and eight masters level "psychological examiners." Psychological examiners are responsible for yearly evaluations of residents andthe design and follow-up of individual behavior programs, including the training of direct care staff in the implementation of all programs. At present, each psychological examiner has a caseload of between 80 and 90 residents -- far too many. In addition, supervision of the psychological examiners by the Ph.D. psychologists is inadequate. At present, there is insufficient professional expertise available at GVDC to develop and implement adequate training and behavior management programs.
B. Behavior Programs Are Not Adequately Designed or Implemented to Train Residents With Maladaptive Behaviors
Significantly, many residents who need behavior programs do not have such programs. Their destructive behaviors remain unaddressed. For example, one resident had large scratches on her face that had been self-inflicted; our consultant psychologist was informed that there was no program to modify or eliminate this unsafe behavior. Staff described the wound on the forehead of another resident as a wound that the resident frequently re-opens; there was no program to correct this behavior and our consultant was advised that staff "just leave it alone." An older gentleman who had a history of pica (eating foreign objects) documented in his record dating back to 1977 was observed eating artificial grass and hitting his face; there is no program to correct these behaviors. The failure of professional staff to develop and implement behavior programs to address these and other dangerous behaviors represents a clear danger to residents, and is unacceptable.
Those behavior programs in place at GVDC, known as "goal plans," fail to comport with generally accepted professional standards in that they are not designed to accomplish changes in

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residents' behavior or functional ability. Few of the goal plans are accompanied by a professionally based functional analysis of the resident's behavior -- a necessary first step in the development of a behavior program. Absent an adequate assessment, an adequate behavior program cannot be developed.
In addition, the behavior programs at GVDC are not individualized to meet the needs of the particular residents for whom they have been developed. Moreover, although staff reported that all behavior programs and skill acquisition programs are modified in the absence of progress, a review of records reflected many programs which had not been modified where no progress had been shown for protracted periods of time. Our consultant also determined that the lack of reliable data or. residents' adaptive and behavioral programs seriously compromised the facility's training programs. Finally, direct care staff have not been adequately trained to implement training programs or to address the self-,injurious behavior exhibited by many residents.
C. Adaptive Skills Training is Inadequate
Similar deficiencies also exist in the programs for the development of functional or adaptive skills. Training programs should focus on the acquisition of functional skills across a range of settings, people, and target behaviors. Training such as that at GVDC, which is often related to meaningless or isolated skills, does not enable the individual to acquire control over his/her environment, affect the individual's quality of life, or promote independence. Communication skills in particular should receive much more emphasis than is currently provided at GVDC and should be integrated throughout the residents' activities. While some of the communication boards and devices were excellent, many individuals who needed suchdevices did not have them. Our observation revealed few instances where opportunity to work on communication skills was presented to the residents and even where such skills were being presented, the training was not individualized to the residents involved. For example, a staff person was attempting to teach residents with no verbal skills the word "fork" without either a picture board or an attempt to teach a sign. Also, while a toilet training team has been developed at GVDC, many residents who could benefit from such training do not receive it.
• •A significant factor to the ineffectiveness of the programming at GVDC is the utter lack of reliable data being collected on residents' adaptive and behavioral programs. During an entire week on-site at GVDC, we observed data being collected on only two occasions. The lack of reliable data makes it impossible to determine the efficacy of programs and forces the residents to lose valuable training time by remaining in ineffective programming.

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The inadequacies in the development and implementation of behavioral and other training programs at GVDC exacerbates self-injurious behaviors, leads to needless injury, and otherwise harms the physical and mental health of residents.
D. Individual With Disabilities Education Act (IDEA)
The school-aged children at the facility fail to receive a free and appropriate public school education as required by the IDEA and its implementing regulations. The IDEA requires that children with disabilities be educated with children who are non-disabled "to the-maximum extent appropriate." The Individual Education Plans (IEPs) at GVDC do not reflect the need for the children who are not educated in the public schools to remain at the institution for educational services. The provision of services for students aged 14-21 in a local elementary school is not an appropriate placement for those individuals. Moreover, physical therapy and other services related to the provision of special education also fall far below accepted professional practices. Physical therapy interventions which directly relate to the goals of students' individual education plans are not integrated into each student's classroom activities. Communication skills are not effectively addressed in current individualized habilitation plans (IHPs) and IEPs. Opportunities for training are also limited inappropriately in that objectives are written to require only limited trials of any particular skill. In addition, many objectives do not appear to have a functional purpose for the individual student.
We note that most states have for many years declined to institutionalize children because institutional environments repeatedly have been demonstrated to be harmful to the full emotional, physical, and intellectual development of developmentally disabled children. Such harm is particularly acute in a facility like GVDC where conditions consistently fail to meet legal and professional standards.
IV. GVDC's Institutional Environment Fails to Meet the Needs of the Residents.
In providing care and services to individuals with developmental disabilities, it is essential to furnish them with an acceptable and responsive environment that ensures safety, and promotes learning, development, and their overall well-being. Such environments must be functional and serve to enhance the quality of life for the individuals. Currently accepted professional standards require that this environment be the least separate, most integrated setting where the individuals needs can be met. It must be safe, stable, and operate to teach and maintain functional skills, to reduce or pre-empt the occurrence of behavior problems, and otherwise promote the independent

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functioning of the individual. GVDC meets none of these requirements.
The environment at GVDC is not fully functional for its residents and may be the cause of some of their problem behaviors. Ironically, it is the presence of these behavior problems, the regression in skills experienced by many residents as the result of inadequate care, and the acuity of their physical disabilities produced by other inadequate services that decreases or delays the individuals' opportunity to live in and participate in community-based programs.
GVDC is an isolated, self-contained environment which necessarily separates its residents with disabilities from the rest of society. As a result, the facility fails to provide its residents treatment in an environment that permits contacts with society and its mainstream social institutions, enables independent functioning,, and facilitates contact with family members. While some few residents enjoy frequent community outings, many others have very few opportunities to participate in community activities and still others apparently never leave the institution at all. The State must provide these disabled residents an opportunity to participate in or benefit from aids, benefits and services equal to that afforded to others outside the institution; more specifically, to those provided to other individuals with disabilities in the State's established community-based programs. The residents are entitled to aids, benefits and services that are as effective in affording them the equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as those served in community-based programs. By confining residents with disabilities at GVDC, the State has failed to provide such services in the least separate, most integrated setting as required by the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, e_t sea. , and section 504 of the Rehabilitation Act Of 1973, 29 U.S.C. § 794, et sea.
The cases reviewed by our consultants indicate that all, or nearly all, of GVDC residents could be successfully placed in the community if provided with adequate supports. This view is not disputed by the professionals at GVDC. Keeping individuals in an institution who have been determined to be capable of living in the community cannot be justified.
V. Remedial Measures
In order to remedy these deficiencies and ensure that the rights of GVDC residents are protected, the following remedial measures need to be implemented promptly.
a. Hire, train and deploy adequate numbers of competent and qualified medical care staff, including physicians and nurses,-to

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meet the medical needs of the residents. Provide enhanced training opportunities to the present physician staff to teach them skills necessary to care for physically disabled, developmentally disabled persons. Increase the number of hours of consulting and contract professionals, especially those for neurology and psychiatry, to a level sufficient to provide adequate care. Arrange for a physiatrist to provide regular consultation. Ensure that enough adequately trained medical professionals, including nurses and pharmacists, are employed to institute appropriate quality assurance mechanisms, especially to oversee the prescription, administration, and monitoring of psychotropic and anticonvulsant medications, and to provide timely prevention, treatment and follow-up of medical problems.
b. Provide adequate and timely medical care, including appropriate services to meet the acute, chronic and emergency medical care needs of residents. Ensure that physicians are immediately available to GVDC residents at night and on weekends. Develop and implement procedures and protocols for tracking sentinel health events and managing acute and chronic illnesses.
c. Residents on psychotropic or anticonvulsant medications should be evaluated to determine the appropriateness of their prescriptions and whether these medications are being prescribed and monitored in accordance with accepted professional standards. Psychotropic medications must not be used without an adequate rationale and a psychiatric or neuropsychiatric diagnosis, nor as punishment, in lieu of a training program for behavior control, nor for the convenience of staff. Residents must not be kept on anticonvulsant medications (or inappropriate doses of those medications) that serve no therapeutic purpose or are otherwise contraindicated. The practice of using standing "PRN" orders for potent medications such as Ativan should be discontinued.
d. Medical records must be kept in a fashion sufficient to allow medical professionals to provide adequate and timely care. Regular communication among medical staff must be established and enhanced. An adequate system must be developed for tracking and monitoring seizure disorders, and medical staff, as well as direct care staff, should be adequately trained in seizure management.
e. GVDC must hire, deploy and train sufficient numbers of specialty service providers, including qualified physical therapists, physical therapy technicians, occupational therapists occupational therapy assistants, and speech pathologists, to ensure that residents are provided appropriate physical and occupational therapy, including positioning, the use of adaptive devices, eating, and ambulation, and other functional skills training, including communication skills.

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f. GVDC must employ and deploy sufficient numbers of competent and trained professional and direct care staff to ensure residents are supervised and adequately protected frc~ harm and provided appropriate training and other services.
g. All residents must be evaluated to determine their individual strengths and weaknesses and to develop appropriate individualized training programs, including behavior manage~=-t and skill acquisition programs. Immediate attention must be given to residents with self-injurious, physically abusive and other destructive behaviors by identifying them and providing necessary training on a priority basis. All interdisciplinary evaluations should review the individual's training needs, utilizing a written descriptive functional analysis for those individuals with problem behaviors, and emphasize alternatives to restraints. Programs should address and develop appropriate strategies to promote the physical, mental, behavioral, and social skills of each resident and permit each resident to function as independently as possible. Such programs must be consistently implemented and procedures developed to ensure appropriate review and revision.
h. GVDC must develop and implement a professionally based, individually appropriate data collection system to measure relevant information about problem behaviors and the conditions under which they occur, including, where appropriate, the frequency, intensity, and duration of the behaviors. GVDC must implement an appropriate data collection system to ensure that adaptive and functional skills training is meeting the needs of the resident involved. Furthermore, GVDC must review and respond to the data collected relating to either behavior programs or skill acquisition programs in a timely and appropriate manner.
i. GVDC must ensure that each school-aged resident is evaluated and provided educational services, included related aids and services, consistent with the requirements of IDEA. Evaluations should be coordinated with the appropriate public school district to ensure that each child receives educational services in the least restrictive, most appropriate, environment outside GVDC. IEPs must be suitably individualized and contain functional objectives.
j. Immediate steps must be taken to develop and implement an overall plan to significantly reduce the size of the facility and to place residents in appropriate, less restrictive, community-based programs. There should be an immediate ban on the admission of children, except in emergency circumstances, and children should be prioritized for placement in alternate, properly supported community-based programs. In the meantime, residents should receive training to assist in their placement and transition to community-based living arrangements. Residents

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should also be adequately assessed to identify services necessary to meet their needs in the community.
Large, congregate residential institutions have been demonstrated to be ill-equipped to provide the care, educatior., and training needed to promote the growth and development of developmentally disabled and mentally retarded persons. See, e.o. , Halderrr.an v. Pennhurst State School & Hospital, No. 741345, slip op. at 1, 4-9 (E.D. Pa. March 29, 1994). The national trend is to serve these individuals in appropriate, alternative community-based programs and facilities which can meet their individual needs. Given the gravity and scope of our experts' findings regarding the deficient care provided at GVDC, the development of more appropriate settings and services for the residents of GVDC is necessary.
Deval L. Patrick Assistant Attorney General
Civil Rights Division
cc: The Honorable Charles W. Burson Attorney General State of Tennessee
Mr. Robert Erb • Superintendent
Greene Valley Developmental Center
Carl K. Kirkpatrick, Esquire United States Attorney Eastern District of Tennessee

 
 U.S. Department i ustice Civil Rights Division

Office of:he AaU:snt Ar.zrr.ey Central

Wez-hinfion. DC. 20530

The Honorable Ned McWherter
•: Nashville, Tennessee 3721S

J a n u a r y 10, 19 95
•••• • I U.S. v.Tennessee «JRI T« | 0JIQ11 IIII Illl I II

Re: Greene Vallev Developmental Center

Dear Governor McWherter:
On June 23, 1S94, Ve advised you of this Department's intent to investigate conditions a. the Greene Valley Developmental Center ("GVDC") in Greeneville, Tennessee, pursuant to the Civil Rights of Institutionalized Persons Act ("CR.IPA"), 42 U.S.C. § 1997, et. sec. During the week of September 19, 1994, we toured the facility accompanied by consultants in the fields of medicine, psychology, nursing and physical therapy. We wish to express our appreciation for the cooperation shown by the GVDC staff and the representatives from the Department of Mental Health and Mental Retardation and the Attorney General's office during this investigation. On September 24, 19 94, we conveyed to the. facility superintendent and other state officials an initial assessment of deficiencies at the facility. Our full assessment of conditions at GVDC has now been completed.
We regret to advise you that we found numerous conditions at GVDC that violate the constitutional and federal statutory rights of the residents there. Under the Fourteenth Amendment and relevant federal statutes, residents of state-operated facilities for the developmentally disabled and mentally retarded have a right to, inter alia, adequate medical care, reasonably safe conditions, and training sufficient to protect each resident's liberty interests, including training to permit each resident an opportunity to function as independently as possible. Programs must be provided to teach adaptive skills, including self-help, communication, and social skills. In addition, individuals with developmental disabilities must be provided services in community-based programs where appropriate. 1/

1/ See, e-c•, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, e_t sea, (and implementing regulations, 23 C.F.R. 35. 130(b) (1) , and 23 C.F.R. 35.130(d));
(continued...)

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In addition, GVDC is net. in compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, e_t sec. . Section 5C4 cf the Rehabilitation Act of 1973, 29 U.S.C. § 794, et sea., the substantive provisions of Title XIX of the Social Security Ace, 42 U.S.C. § 13 95, e_t_ sea. . and the Individuals v:ith Disabilities Education .Act (IDEA), 20 U.S.C. §§ 1400 - 1485.
The facts disclosed during; the course cf our investigation that support cur findings of unconstitutional conditions and violations of federal statutory rights at GVDC are set forth below.
I. Medical Care is Dangerously Deficient.
A. General Medical Care
Due to an inadequate medical care delivery system, especially the failure to provide adequate preventive and chronic care, GVDC residents are subjected to needless fractures, recurrent aspiration, preventable weight loss, recurring seizures, avoidable injuries, and other direct threats to their health. Records of residents reviewed by our medical consultant indicate, for example, repeated fractures over many years absent preventive measures; recurrent aspirations, dysphagia and pneumonias without a coherent management plan to treat and otherwise address these life-threatening ailments; significant, rapid weight loss representing a direct threat to health which was often not acknowledged or acted upon by professional staff; multiple drug use absent adequate justification; and other misdiagnosed or untreated injuries. Significantly, the lack of individual or facility-wide data with respect to these urgent medical needs of residents not only compromises the care of individual residents, but limits the ability of the medical staff and administration to properly allocate resources, develop plans,
!./(.. .continued) Section 504 of the Rehabilitation Act of 1S73, 29 U.S.C. § 794, et sea.; Title XIX of the Social Security Act, 42 U.S.C. § 1395, et sea, (and implementing regulations, 42 C.F.R. § 483.420 4 80) ; Younaberc" v. Romeo, 457 U.S. 307 (19S2) ; United States v. Tennessee, No. 92-2062, slip op. (W.D. Tenn. Feb. 17, 1994); Kalderrr.an v. Pennhurst State School & Kosoital, No. 874-1345, slip op. (S.D. Pa. March 29, 1994) ; Jackson v. Fort Stanton Koso. & Training School, 757 F. Supp. 1243 (D.N.M. 1990), rev'd in part on other grounds, 964 F.2d 930 (10th Cir. 1992); Thomas S. bv Brooks v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1938), aff'c 902 F.2d 250 (4th Cir.), cert . denied, 498 U.S. 951 (1990); Clark v. Cohen. 613 F. Supp. 6S4 (E.D. Pa. 1S35), aff'd. 794 F.2d 79 (3d Cir. 1986) cere. denied, 479 U.S. 952 (1986); Garv W. v. Louisiana, 437 F. Supp. 12C9 (E.D. La. 1976).

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and ensure critical medical needs are met. In sum, medical care for the mcsc serious needs of the facility's residents is inadequate and fails to comporc with generally accepted medical standards.
In addition, medication practices are deficient. There are numerous residents who have been prescribed multiple anticonvulsant and/or'psychotropic medications for years. In view of the potential risks associated with many of these medications, including potential for toxicity, tardive dyskir.esia, and reduced cognition, it is generally accepted by medical professionals that polypharmacy or the prescription of multiple medications should be avoided where possible. However, GVDC physicians continue to prescribe such medications absent any rational justification in violation of medical standards. Indeed, psychotropic medications are used on a routine basis at the facility absenc adequate rationale or a psychiatric or neuropsychiatric diagnosis. The ubiquitous use of anticonvulsant and psychotropic medication also indicates inadequate consultation with neurologists and psychiatrists. These practices are unacceptable.
The absence of adequate participation of psychiatrists in the treatment of residents is particularly significant. For those dually diagnosed individuals who need both behavioral programming and medication for their mental illness, it is critical that both treatment modalities be integrated properly. The unavailability of adequate psychiatric consultation has severely impeded the ability of GVDC to address the needs of those residents. The inappropriate use of psychotropic medication is a direct result of this deficiency.
Quality control, peer review, and coordination mechanises for medical.care are virtually non-existent. The relationships between physicians and other personnel such as occupational therapists, physical therapists, psychologists, and nurses is ill-defined. Although GVDC's policies require that physicians < order certain therapies, there is no mechanism to ensure that those needing the various therapies receive such orders. Kedical staff meetings apparently take place only sporadically. There is no regular morning report among physicians and nurses, and no "on-call" or physician duty logs are regularly kept. Medical records are deficient in that important reports are misfiled and cannot be located. Progress notes are illegible as well. Such lapses in medical care delivery violate basic medical standards.
In the view of our consultants, most of these deficiencies can be attributed to the absence of adeoruately trained medical professionals, including physicians and nurses. The current: physician staff is inadequately trained, organized and supervised to provide adequate medical care. Sorr.e of the physicians have little training or experience in working with developrr.entally .

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disabled persor.s and few protocols have been developed to provide guidelines to che staff. For example, no protocols or procedures are in place cr. the subjects of tracking or managing emergencies, aspirations, weight loss or gain, dysphagia, or seizures. Policies regarding the frequency and tracking of tardive dyskinesia screenings and hepatitis vaccinations should be developed. Moreover, there has been little effort to provide medical staff with continuing education. The lack of trained medical staff has significantly compromised medical care at GVDC -
In. sum, the' medical care system at GVDC is seriously deficient. Serious illnesses are not addressed in a timely manner. Preventable illnesses, unnecessary injuries, and other debilitating conditions occur absent appropriate professional medical intervention.
3. Physical and Nutritional Management
Many residents at XSVDC are nutritionally at risk due to physical disabilities or other medical problems and are not receiving appropriate assistance and training during meals. Failure to appropriately position residents during meals can lead to aspiration, choking, reflux and other health complications. Staff who assist residents at mealtime must receive special training in order to ensure residents' health and safety. Although we observed one meal at which residents were generally being fed appropriately, on many other occasions we observed residents eating in poor positions and the meal plans ("red cards") that were available were often either not followed cr not appropriate for the particular resident for whom the plan was developed.
C. Physical Therapy and Positioning ofvPhysically Handicapped Residents
Physical therapy services at GVDC are seriously deficient. One physical therapist for a population of over 600 residents, • many of whom have physical disabilities and a related need for physical therapy services, does not allow the provision of adequate and appropriate physical therapy services. In fact, only 72 residents are currently receiving such services in spite of the large number of residents in the GVDC population who require such services. Ill-trained physical therapy technicians fail to fill the void left by the lack of an adequate number of physical therapists.
Moreover, our physical therapy consultant identified a significant number of dangerous practices being conducted by those few individuals actually engaged in physical therapy activities. For example, technicians routinely failed to take simple precautions such as locking wheelchairs from which residents were transferred to a position for walking. Review of

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incident reports shows that approximately 13 percent of the injuries reported resulted from inappropriate handling of residents during transfer or in use of their wheelchair. No technician ostensibly providing physical therapy was observed endeavoring to teach residents any skills. Technicians used the same walker for multiple residents with broad differences in gait and height. Ir.deed, deficiencies in addressing the needs of residents with physical disabilities, especially children, are so severe as to represent an active threat to their health and safety.
Appropriate positioning for residents who have multiple physical disabilities is necessary to prevent deterioration of residents' skills, abilities, and health. Our physical therapy consultant made numerous observations of inadequately and improperly positioned residents. Many residents were observed in wheelchairs which did not adequately support them. All sling seat and sling back chairs observed were inappropriate. Chairs were also not appropriately designed and constructed to manage scoliosis and other spinal malalignments. Other chairs were simply too small for the residents using them. Physically disabled residents not in wheelchairs were likewise observed to be placed consistently in inappropriate positions.
Furthermore, accurate and useful documentation of an individual's physical therapy status does not exist, making it impossible to evaluate whether any intervention was effective, ineffective or in need of modification. In fact, many residents reviewed were continued for years on the same programs with little or no progress noted, which would require a modification or at least a re-evaluation of the therapy provided.
In sum, physical therapy services, including the positioning of residents, are so deficient as to represent a direct threat of harm to residents.
II. Residents of GVDC Are Not Adequately Protected From Harm or the Serious Risks of Harm Due to Lack of Supervision.
Direct care staffing is so deficient that many GVDC residents are harmed and are at substantial risk of harm because of the lack of adequate numbers of competent and qualified staff. Our observations and review of documents reveal that numerous injuries occur to residents which staff do not observe as they happen or do observe and fail to prevent. Residents are repeatedly "found with blood" on them from injuries that occur outside of staff supervision. On other occasions, residents' severe injuries are discovered only during bathing or at bedtirr.e. In such instances, the staff report that they are unaware of the cause of the injuries. Such a high degree of unexplained injuries is unacceptable.

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Seme residents at GVDC repeatedly engage in self-abusi%-e and other self-injurious behavior, such as serious head slapping or gouging their wounds. For instance, one eleven year old boy apparently lest Che sight in one eye from repeated headslapcir.g which resulted in a detached retina. Other residents were noted with swollen, disfigured features resulting from years of self-injury. Still others had permanent scars from continual self-mutilation of their faces and arms.
Incident reports detail a variety of unexplained and serious incidents and injuries at GVDC. Although not all accidents can be prevented, many of. the injuries suffered by GVDC residents are preventable products of inadequate staff supervision or intervention. 2./
Over one third of the injuries reported in incident reports -- lacerations, fractures and bruises -- result from residents' behaviors, including se}.f-injury and aggression. Many of these incident/injury reports concluded with the notation that the injury was "unavoidable due to resident's behavior," reflecting the facility's lack of confidence in. either the residents' ability to learn alternative behaviors or in the facility's capacity to provide appropriate supervision and training. The most frequent recommended response to these incidents is for staff to encage in closer supervision. Such supervision is impossible given current staffing levels.
The number of unexplained injuries reflected in the incident reports is particularly disturbing because staff reported that minor injuries of unknown cause are intentionally not reported. As such, the reported injuries do not reflect the entire range of injuries of unknown origin. Out of a sample of ten residents observed during the tour as exhibiting recent notable injuries, 6 0 percent of the residents had injuries for which no incident report could be located. Several other reports contained descriptions of injuries that did not accurately reflect the injury observed.
In sum, there is an unacceptable level of injury at GVDC. The level of injuries of unknown origin is also greatly disturbing.
2.1 Approximately 40 percent of incident/injury reports reviewed shewed an injury due to falls. Such injuries can be divided into falls due to seizure activity, falls due to gait or instability problems, particularly in cramped areas, or aggression by other residents. While some seizure-related falls may be difficult to prevent, GVDC is aware of residents whose gait or behavior problems contribute to their falls and should be able to prevent many more of those injuries.

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III. Programs to Reduce Maladaptive Behavior and to Provide Adaptive Skills Are Inadequate or Non-existent, Subjecting Residents to Physical and Mental Harm.
Deficiencies in the program services at GVBC, including both programs designed to eliminate maladaptive and other anti-social behaviors as well as programs to teach residents adaptive ar.d other skills, are significant. Indeed, the deficiencies are so severe that the absence of necessary programs subjects residents to harm and unreasonable risks of harm. Furthermore, services do not provide residents with the necessary skills to enhance their independence or promote and maintain residents' physical and mental health.
A. Psychology Staff is Inadequate to Provide NecessaryServices
GVDC currently has^ two doctoral level psychologists and eight masters level "psychological examiners." Psychological examiners are responsible for yearly evaluations of residents andthe design and follow-up of individual behavior programs, including the training of direct care staff in the implementation of all programs. At present, each psychological examiner has a caseload of between SO and 90 residents -- far too many. In addition, supervision of the psychological examiners by the Ph.D. psychologists is inadequate. At present, there is insufficient professional expertise available at GVDC to develop and implement adequate training and behavior management programs.
. B. Behavior Programs Are Not Adequately Designed or • Implemented to Train Residents With Maladaptive Behaviors
Significantly, many residents who need behavior programs do not have such programs. Their destructive behaviors remain unaddressed. For example, one resident had large scratches on her face that had been self-inflicted; our consultant psychologist was informed that there was no program to modify or eliminate this unsafe behavior. Staff described the wound on the forehead of another resident as a wound that the resident frequently re-opens; there was no program to correct this behavior and our consultant was advised that staff "just leave it alone." An older gentleman who had a history of pica (eating foreign objects) documented in his record dating back to 1977 was observed eating artificial grass and hitting his face; there is no program to correct these behaviors. The failure of professional staff to develop and implement behavior programs to address these and other dangerous behaviors represents a clear danger to residents, and is unacceptable.
Those behavior programs in place at GVDC, known as "goal plans," fail to comport with generally accepted professional standards in that they are not designed to accomplish changes in

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residents' behavior or functional ability. Few of the goal plans are accompanied by a professionally based functional analysis of the resident's behavior - - a necessary first step in the development cf a behavior program. Absent an adequate assessment, ar. adequate behavior program cannot be developed.
In addition, the behavior programs at GVDC are not individualized to meet the needs of the particular resider.es for whom they have been developed. Moreover, although staff reported that all behavior programs and skill acquisition programs are modified in the absence of progress, a review of records reflected many programs which had not been modified where no progress had been shown for protracted periods of time. Our consultant also determined that the lack of reliable data or. residents' adaptive and behavioral programs seriously compromised the facility's training programs. Finally, direct care staff have not beer, adequately trained to implement training programs or to address the self-..injurious behavior exhibited by many residents.
C. Adaptive Skills Training is Inadequate
Similar deficiencies also exist in the programs for the development of functional or adaptive skills. Training programs should focus on the acquisition of functional skills across a range of settings, people, and target behaviors. Training such as that at GVDC, which is often related to meaningless or isolated skills, does not enable the individual to acquire control over his/her environment, affect the individual's quality of life, or promote independence. Communication skills in particular should receive much more emphasis than is currently provided at GVDC and should be integrated throughout the residents' activities. While some of the communication boards and devices were excellent, many individuals who needed such devices did not have them. Our observation revealed few instances where opportunity to work on communication skills was presented to the residents and even where such skills were being presented, the training was not individualized to the residents involved. For example, a staff person was attempting to teach residents with no verbal skills the word "fork" without either a picture board or an attempt to teach a sign. Also, while a toilet training team has been developed at GVDC, many residents who could benefit from such training do not receive it.
.A significant factor to the ineffectiveness of the programming at GVDC is the utter lack of reliable data being collected or. residents' adaptive and behavioral programs. During an entire week on-site at GVDC, we observed data being collected on only two occasions. The lack of reliable data makes it impossible to determine the efficacy of programs and forces the residents to lose valuable training time by remaining in ineffective programming.

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The inadequacies in the development and implementation of behavioral and ether training programs at GVDC exacerbates self-injurious behaviors, leads to needless injury, and otherwise harms the physical and mental health of residents.
D. Individual With Disabilities Education Act (IDEA)
The school-aged children at the facility fail to recei\-e a free and appropriate public school education as required by the IDEA and its implementing regulations. The IDEA requires that children with disabilities be educated with children who are non-disabled "to the-maximum extent appropriate." The Individual Education Flar.s (IEPS) at GVDC do not reflect the need for the children who are not educated in the public schools to remain at the institution for educational services. The provision of services for students aged 14-21 in a local elementary school is not an appropriate placement for those individuals. Moreover, physical therapy and other services related to the provision of special education also fall far below accepted professional practices. Physical therapy interventions which directly relate to the goals of students' individual education plans are not integrated into each student's classroom activities. Communication skills are not effectively addressed in current individualized habilitation plans (IHPs) and IEPs. Opportunities for training are also limited inappropriately in that objectives are written to require only limited trials of any particular skill. In addition, many objectives do not appear to have a functional purpose for the individual student.
, We note that most states have for many years declined to institutionalize children because institutional environments repeatedly have been demonstrated to be harmful to the full emotional, physical, and intellectual development of developmentally disabled children. Such harm is particularly acute in a facility like GVDC where conditions consistently fail to meet legal and professional standards.
IV. G V D C s Institutional Environment Fails to Meet the Needs of the Residents.
In providing care and services to individuals with developmental disabilities, it is essential to furnish them with an acceptable and responsive environment that ensures safety, and promotes learning, development, and their overall well-being. Such environments must be functional and serve to enhance the quality of life for the individuals. Currently accepted professional standards require that this environment be the least separate, most integrated setting where the individuals needs can be met. It must be safe, stable, and operate to teach and maintain functional skills, to reduce or pre-empt the occurrence of behavior problems, and otherwise promote the independent

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functioning of the individual. GVDC meets none of these requirements.
The environment at GVDC is not fully functional for its residents and may be the cause of some of their problem behaviors. Ironically, it is the presence of these behavior problems, the regression in skills experienced by many residents as the result of inadequate care, and the acuity of their physical disabilities produced by other inadequate services that decreases or delays the individuals' opportunity to live in and participate in community-based programs.
GVDC is an isolated, self-contained environment which necessarily separates its residents with disabilities from the rest of society. As a result, the facility fails to provide its residents treatment in an environment that permits contacts with society and its mainstream social institutions, enables independent functioning,, and facilitates contact with family members. While some few residents enjoy frequent community outings, many others have very few opportunities to participate in community activities and still others apparently never leave the institution at all. The State must provide these disabled residents an opportunity to participate in or benefit from aids, benefits and services equal to that afforded to others outside the institution; more specifically, to those provided to other individuals with disabilities in the State's established community-based programs.. The residents are entitled to aids, benefits and services that are as effective in affording them the equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as these served in corr.munity-bassd programs. By confining residents with disabilities at GVDC, the State has failed to provide such services in the least separate, rr.ost integrated setting as required by the Americans with Disabilities Act of 1SS0, 42 U.S.C. § 12101, et sea., and section 504 of the Rehabilitation Act of 1S73, 29 U.S.C. § 794, et sea.
The cases reviewed by our consultants indicate that all, or nearly all, of GVDC residents could be successfully placed in the community if provided with adequate supports. This view is not disputed by the professionals at GVDC. Keeping individuals in an institution who have been determined to be capable of living in the comrriunity cannot be justified.
V. Remedial Measures
In order to remedy these deficiencies and ensure that the rights of GVDC residents are protected, the following remedial measures need to be implemented promptly.
a. Hire, train and deploy adequate numbers of competent and qualified medical care staff, including physicians and nurses,-to

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meet the medical needs of the residents. Provide enhanced training opportunities to the present physician staff to teach then skills necessary to care for physically disabled, developmentally disabled persons.. Increase the number of hours of consulting and contract professionals, especially these for neurology and psychiatry, to a level sufficient to provide adequate care. Arrange for a physiatrist to provide regular consultation. Ensure (that enough adequately trained medical professionals, including nurses and pharmacists, are employed to institute appropriate quality assurance mechanisms, especially to oversee the prescription, administration, and monitoring of psychotrcpic and anticonvulsant medications, and to provide timely prevention, treatment and follow-up of medical problems.

b. Provide adequate ar.d timely medical care, including

appropriate services to meet the acute, chronic and emergency

medical care needs of residents. Ensure that physicians are

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c. Residents on psychotropic or anticonvulsant medications should be evaluated to determine the appropriateness of their prescriptions and whether these medications are being prescribed and monitored in accordance with accepted professional standards. Psychotropic medications must not be used without an adequate rationale and a psychiatric or neuropsychiatric diagnosis, nor as punishment, in lieu of a training program for behavior control, nor for the convenience of staff. Residents must not be kept on anticonvulsant medications (or inappropriate doses of those medications) that serve no therapeutic purpose or are otherwise contraindicated. The practice of using standing "FR^I" orders for potent medications such as Ativan should be discontinued.
d. Medical records must be kept in a fashion sufficient to allow medical professionals to provide adequate and timely care. Regular communication among medical staff-must be established and enhanced. An adequate system must be developed for tracking and monitoring seizure disorders, and medical staff, as well as direct care staff, should be adequately trained in seizure management.
e. GVDC must hire, deploy and train sufficient numbers of specialty service providers, including qualified physical therapists, physical therapy technicians, occupational therapists occupational therapy assistants, and speech patholcgists, to ensure that residents are provided appropriate physical ar.d occupational therapy, including positioning, the use of adaptive devices, eating, and ambulation, and other functional skills training, including communication skills.

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f. GVDC -ust employ and deploy sufficient numbers of competent and trained professional and direct care staff to ensure residents are supervised and adequately protected frc~ harm and provided appropriate training and other services.
g. All residents must be evaluated to determine their individual strengths and weaknesses and to develop appropriate individualized training programs, including behavior mar.ager.e-t and skill acquisition programs. Immediate attention must be given to residents with self-injurious, physically abusive and other destructive behaviors by identifying them and providing necessary training on a priority basis. All interdisciplinary evaluations should review the individual's training needs, utilizing a written descriptive functional analysis for those individuals with problem behaviors, and emphasize alternatives to restraints. Programs should address and develop appropriate strategies to promote the physical, mental, behavioral, and social skills of each resident and permit each resident to function as independently as possible. Such programs must be consistently implemented and procedures developed to ensure appropriate review and revision.
h. GVDC must develop and implement a professionally based, individually appropriate data collection system to measure relevant information about problem behaviors and the conditions under which they occur, including, where appropriate, the frequency, intensity, and duration of the behaviors. GVDC must implement an appropriate data collection system to ensure that adaptive and functional skills training is meeting the needs of the ..resident involved. Furthermore, GVDC must review and respond to the data collected relating to either behavior programs or skill acquisition programs in a timely and appropriate manner.
i. GVDC must ensure that each school-aged resident is evaluated and provided educational services, included related aids and services, consistent with the requirements of IDEA. Evaluations should be coordinated with the appropriate public school district to ensure that each child receives educational services in the least restrictive, most appropriate, environment outside GVDC. IEPs must be suitably individualized and contain functional objectives.
j. Immediate steps must be taken to develop and implement an overall plan to significantly reduce the size of the facility and to place residents in appropriate, less restrictive, community-based programs. There should be an immediate bar. en the admission of children, except in emergency circumstances, and children should be prioritized for placement in alternate, properly supported community-based programs. In the meantime, residents should receive training to assist in their placement and transition to community-based living arrange~er.es. Residents

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should also be adequately assessed to identify services necessary to meet their needs in the community.
Large, congregate residential institutions have been demonstrated to be ill-equipped to provide che care, education, and training needed to promote the growth and development of developmentally disabled and mentally retarded persons. See, e.g.. Halderrr.an v. Pennhurst State School & Hospital. No. 741345, slip op. at 1, 4-9 (E.D. Pa. March 25, 1994) . The national trend is to serve these individuals in appropriate, alternative community-based programs and facilities which can meet their individual needs. Given the gravity and scope of our experts' findings regarding the deficient care provided at GVDC, the development of more appropriate settings and services for the residents of GVDC is necessary.
Sincere!"1.:
Deval L. Patrick Assistant Attorney General
Civil Rights Division
cc: The Honorable Charles W. Burson Attorney General State of Tennessee
Mr. Robert Erb • Superintendent
Greene Valley Developmental Center
Carl K. Kirkpatrick, Esquire United States Attorney Eastern District of Tennessee

 
 U.S. Department of i lice Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530
March 10, 1995

The Honorable Don Sundquist
Governor State of Tennessee State Capitol

....,,

U.S. v. Tennessee

"HUM INII I IIII III MlMillII |||| ||
MR-TN-004-003

Nashville, Tennessee 37219

Re: Clover Bottom Developmental Center

Dear Governor Sundquist:
On June 23, 1994, we advised Governor McWherter of this Department's intent to investigate conditions at the Clover Bottom Developmental Center ("CBDC") in Nashville, Tennessee, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. During the weeks of September 26, October 3, and October 10, 1994, we toured the facility accompanied by consultants in the fields of medicine, psychology, psychiatry, nursing and physical therapy. We want to thank the CBDC staff and the representatives from the Department of Mental Health and Mental Retardation and the Attorney General's office for their cooperation during this investigation. Following each of our tours, we conveyed to the facility superintendent and other state officials an initial assessment of deficiencies at the facility. Although we have not yet finished our assessment of the Harold Jordan Center, we have completed our findings with regard to CBDC itself.
We regret to advise you that we found numerous conditions at CBDC that violate the constitutional and federal statutory rights of the residents there. Under the Fourteenth Amendment and relevant federal statutes, residents of state-operated facilities for the developmentally disabled and mentally retarded have a right to, inter alia, adequate medical care, reasonably safe conditions, and training sufficient to protect each resident's liberty interests, including training to permit each resident an opportunity to function as independently as possible. Programs must be provided to teach adaptive skills, including self-help, communication, and social skills. In addition, individuals with developmental disabilities must be provided services in

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community-based programs where appropriate. 1/ CBDC is not in compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq.. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the substantive provisions of Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, et seq.. and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400, e£ seq. Our review also indicates that the rights of the residents guaranteed by Tennessee state law are also being violated. See, e.g.. Tenn. Code Ann. § 33-3-104 and § 33-5-201.
The general facts that support our findings of unconstitutional conditions and violations of federal statutory rights at CBDC are set forth below.
I. CBDC Residents Are Not Adequately Protected From Harm or Serious Risk of Harm Due to the Lack of Supervision and Programming.
The most serious and pervasive health risk to the residents of CBDC is that of injury. Fractures, lacerations, and soft tissue injuries are documented repeatedly in the records and were obvious to our experts as they toured the living units. The lack of adequate direct care staff, the almost total lack of unit activities or stimulation of any kind, and the inability of staff to manage maladaptive or aggressive behaviors, were apparent throughout the tours and undoubtedly contribute to the high rate of injuries suffered at CBDC. Residents with sensory impairment are even further isolated by the lack of attention to their needs. Furthermore, CBDC's investigation and analysis of injuries is not calculated to reduce or eliminate injuries or abuse of residents by staff.
i/ See, e.g.. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132, et seq. (and implementing regulations, 28 C.F.R. 35.130(b)(1), and 28 C.F.R. 35.130(d)); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, et sea. (and implementing regulations, 42 C.F.R. §§ 483.420 - 480); Youngberg v. Romeo. 457 U.S. 307 (1982); United States v. Tennessee. No. 92-2062, slip op. (W.D. Tenn. Feb. 17, 1994); Halderman v. Pennhurst State School & Hospital. No. 874-1345, slip op. (E.D. Pa. March 29, 1994); Jackson v. Fort Stanton Hosp. & Training School. 757 F. Supp. 1243 (D.N.M. 1990), rev'd in part on other grounds. 964 F.2d 980 (10th Cir. 1992); Thomas S. by Brooks v. Flaherty. 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd 902 F.2d 250 (4th Cir.), cert, denied. 498 U.S. 951 (1990); Clark v. Cohen. 613 F. Supp. 684 (E.D. Pa. 1985), aff'd. 794 F.2d 79 (3d Cir. 1986) cert, denied. 479 U.S. 962 (1986); Gary W. v. Louisiana. 437 F. Supp. 1209 (E.D. La. 1976).

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A. Injuries
Many of the injuries suffered by CBDC residents may be related to the dearth of appropriately trained and supervised direct care staff. Document review and observations confirmed that CBDC residents suffer from the chronic under-staffing at the facility. Furthermore, it became apparent that many staff did not have, or were not being required to utilize, the necessary skills to serve developmentally disabled persons. Many injuries occurred, as reported in incident reports, in which the staff person's description of the event indicated that sufficient time existed for staff intervention, but such intervention did not occur. For example, one resident hit another two separate times and after the second assault, the attacked resident retaliated by biting the first resident all over his chest. While this course of events was recorded, it was not interrupted.
C B D C s insufficient staffing results in staff not familiar with residents often working in units other than where actually assigned. Many staff interviewed during our tours were unable to identify the individuals for whom they were providing care and other staff freely admitted that they were not working in a unit where they usually worked. Lack of familiarity with the individuals living in various units creates difficulties for even the best-intentioned staff, who may be unaware of significant issues in their temporarily assigned unit.
While many of the incident reports described injuries that were obviously observed by staff, many other injuries were found only after they had occurred. Such unobserved injuries include serious lacerations, bruises and sprains.
Furthermore, the incident reporting system that CBDC uses does not allow for the kind of analysis that would enable the facility to prevent re-occurrence of avoidable injuries. For instance, in one eight month period, one resident received lacerations serious enough to require stitches on seven separate occasions. For five of those incidents, the injury was described as the result of another resident, unidentified in each instance, pushing or hitting the injured resident. One laceration was of unknown origin and the last was reported to be self-inflicted, apparently by accident. Without more information in the reports, it is impossible to tell whether or not the same resident was responsible for the five assaults. That information is significant for CBDC to analyze in order to prevent future altercations.
In another instance, the incident reports reveal that in one seven month period, a resident received injuries on twenty-six occasions. Many of those injuries were reported to have occurred during fights with other residents, one-third were reported as self-inflicted, several were found on the resident (of unknown

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cause) and one was caused when the resident was being restrained. Half of the injuries were serious enough to require stitches and in one instance the resident lost two teeth. Significantly, several of the incident reports noted the re-opening of earlier wounds that were not represented in earlier incident reports. Therefore, the injury reports summarized here under-represent the true extent of the injuries suffered by this resident. This inaccurate recording extends beyond just this one individual. During our tours, we observed many other residents with injuries for whom no incident report describing that injury could be found. We, therefore, conclude that the documentation of injuries, as the documentation in all other areas, was not complete and that the injuries described in CBDC incident reports do not represent the totality of injuries actually experienced by CBDC residents.
The examples of injuries described above are not isolated, exceptional circumstances, nor the most egregious. Our review of injury documentation and our observations during the tours reveal that CBDC residents suffer injuries and assaults on a regular basis and are at serious risk of harm in their own living units and throughout CBDC.
B. Abuse and Neglect
CBDC does not adequately protect residents from physical and verbal abuse and neglect. While there is a system established to investigate allegations of abuse, we note that the investigations appear to be cursory and typically fail to substantiate abuse allegations even in cases where evidence suggests abuse occurred. Although a number of the abuse investigations we reviewed began when an injury of unknown origin was found on a resident, the incident/injury reports document many more such injuries that were not likewise investigated. There is no way to determine from the documentation why one injury of unknown origin is considered suspected abuse and another is not. Furthermore, given the inadequacies of the incident documentation outlined above, many potential incidents of abuse are never investigated.
Verbal abuse appears prevalent at CBDC. Direct care staff either have not been adequately trained to interact with residents in appropriate ways or have not been adequately supervised. During our tours, we rarely heard a direct care staff person actually provide praise or positive reinforcement while interacting with residents. Many staff did not even speak to the residents for whom they were caring, even while doing such tasks as feeding the resident or taking the resident to be bathed. Abrupt, verbal commands such as "SIT DOWN!" and "STOP!" appear to be the too frequent method by which staff communicate with residents. A number of residents' behavior plans actually instruct direct care staff to use those commands, and it was reported that staff often scream at residents to comply.

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The obvious staffing difficulties contribute to the neglect of residents who may be left for extended period of time in soiled clothes or engaging in self-injurious behavior unattended.
Finally, there is evidence that staff are not encouraged to
report abuse or neglect and that some staff are intimidated by other staff from reporting such incidents.
II. Programs to Reduce Maladaptive Behavior and to Provide Adaptive Skills Are Inadequate or Non-existent, Subjecting Residents to Physical and Mental Harm.
CBDC does not provide residents with basic, functional, and progressive programming designed to reduce injuries, improve resident living skills, eliminate maladaptive and other antisocial-behaviors, reduce the amount of supervision that they require, prepare them for living in the community, or meet the specific individual needs of the residents. Consequently, residents are at greater risk for injury (e.g., from aggression or self-injury), are more likely to remain institutionalized, are more likely to receive physical or chemical restraints, and more likely to receive medication to control their behavior than might otherwise be necessary. In sum, the programming and psychological services at CBDC are so deficient as to subject residents to serious and continuing harm and risks of harm.
A. Psychology and Direct Care Staff
CBDC currently has one doctoral level psychologist, who is the Director of Psychology, and ten masters level "psychological examiners." Psychological examiners are responsible for yearly evaluations of residents and the design and follow-up of individual behavior programs, including the training of direct care staff in the implementation of all programs. Given the insufficient training of psychology and direct care staff, the inappropriate environment at CBDC and the number of residents presently exhibiting maladaptive behaviors, the caseload of each psychological examiner (between 65 and 120 residents) is far too high. Psychology staff are overworked, have no authority, little or no professional/clinical support, inadequate training, no professional/career development, and no expert Ph.D. involvement. At present, there is insufficient professional expertise available at CBDC to develop and implement adequate training and behavior management programs. In addition, direct care staff, who are primarily responsible for implementing the programs and training, are insufficient in number and inadequately trained to properly carry out appropriate programming and training.

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B. Behavior Programs and Training for Residents With Maladaptive Behaviors
CBDC residents with maladaptive and self-injurious behavior continue to suffer unnecessary injury and restraint, in large part because of CBDC's inadequate behavior programming for these individuals. The necessary precursors to designing adequate behavior programs are proper assessments and functional behavior analyses of the individuals requiring such programs. CBDC does not conduct proper assessments necessary to design effective programs. For example, most of the residents at CBDC have severe communication and language deficits. Improving a person's ability to communicate is important in reducing the occurrence of maladaptive behaviors, developing social relationships, and increasing control over one's own environment. Communication assessments at CBDC provide little useful information and recommendations. In addition, our psychology consultant found no evidence that functional behavior analyses have been conducted for any resident.
The programs themselves, while generally covering the appropriate subject areas, are not individualized for each resident (in some cases the programs are virtually identical), are incomplete in necessary details, contain objectives that do not make up a comprehensive, sensible plan, and are not implemented. Our consultant also determined that the lack of reliable data on residents' adaptive and behavioral programs seriously compromises the facility's training programs. Data recorded on many of the behavior and skill data sheets are identical from day to day, giving the appearance that data is fabricated or recorded at the end of the day, week, or even month, making such data meaningless. Finally, direct care staff have not been adequately trained to implement training programs or to address the self-injurious behavior exhibited by many residents. The emergency physical restraint practiced at CBDC is an inherently risky procedure which puts residents at serious risk of harm or even death. In short, CBDC residents are not being helped, but are allowed to continue harming themselves, peers and sometimes staff day after day, year after year.
Some of these deficiencies at CBDC are illustrated by the events surrounding a recent study conducted by researchers from Vanderbilt University at CBDC to examine the effects of the medication, Naltrexone, upon self-injurious behavior. Although the researchers found that the seven CBDC participants would not or could not benefit from the medication, they made a number of clinical recommendations for at least some of the participants. These recommendations were comprehensive, addressed the function of the self-injury, and applied the latest research in mental retardation to the individual resident. None of these recommendations, however, appear to have been followed

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by CBDC and, moreover, none of the staff members with whom our consultant spoke knew anything about the study or the recommendations. This is an example of CBDC's inability to apply important relevant assessment information for the benefit of the residents. Information which could very well have helped these individuals and prevented further injury and restraint was made available, but was ignored.
C. Adaptive Skills Training
Similar deficiencies also exist in the programs for the development of functional or adaptive skills. Training programs should focus on the acquisition of functional skills across a range of settings, people, and target behaviors. Training such as that at CBDC, which is often related to meaningless or isolated skills, does not enable the individual to acquire control over his/her environment, enhance the individual's quality of life, or promote independence. Staff members do not appear to know how to teach skill development to this population and, in the few cases where they were trying to teach, they were operating under conditions that made it nearly impossible to be effective (e.g., supervising many residents simultaneously, inadequate materials available).
Little communication and language training is conducted at CBDC. Records indicate that only 12 residents have any kind of adapted/augmented communication device. Communication skills must receive much more emphasis and should be integrated throughout the residents' activities. Our observations revealed few instances where opportunities to work on communication skills were presented to the residents and even where such opportunities were being presented, the training was not individualized to the residents involved.
All of our consultants were shocked at the general lack of activity at CBDC. For example, our psychology consultant's observations of 18 different living units and training areas primarily during daylight hours revealed that only 26 to 3 6 percent of the residents were engaged in any activity. The vast majority of residents were observed sitting doing nothing, lying down or sleeping. Resident activity schedules contain large blocks of time labeled, for example, "watch TV," "radio," "table activity," "leisure," "self-help," or "given opportunity to participate in preferred activities" -- all prescriptions for sitting and doing nothing. Staff also did not appear to follow the schedules. Similarly, few appropriate supplies were available for teaching new skills, for leisure time, or for increasing engagement. Many of the materials were broken, missing pieces, or age inappropriate.
The residents' boredom from the lack of meaningful or interesting activities, the lack of adequate staff, and the

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inadequacies in the development and implementation of behavioral and other training programs at CBDC exacerbate self-injurious behaviors, lead to needless injury, and otherwise harm the physical and mental health of residents.
D. Individual With Disabilities Education Act (IDEA)
CBDC is not providing its school-age residents with an appropriate education in accordance with the requirements of the Individual with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1486. The IDEA requires that CBDC develop individualized education plans (IEPs) designed to meet the needs of qualifying children. A review of IEPs developed for children at CBDC showed that they failed to meet this standard. The goals and objectives in the IEPs were extremely limited in their scope. For example, it was common to find only two skills being addressed over a three-year period.
Further, the IDEA'S requirement that sufficient "related services," i.e., physical therapy and behavioral services, be provided to allow children to benefit from the educational program is clearly not being met. For example, the physical therapy staff do not interact at all with the educational staff. In addition, children attending the CBDC school could be educated in lesser restrictive environments; also a requirement of the IDEA. CBDC must enhance its educational and related services and provide for appropriate placement and services in the local public school systems.
Ill. Medical and Psychiatric Care is Dangerously Deficient.
A. General Medical Care
The medical care received by the residents at CBDC is dangerously deficient. Although our consultants reviewed individual instances of appropriate care, medical care generally is characterized by "crisis management," with numerous individuals suffering unnecessary pain, injuries and illnesses. The primary cause of this is the grossly inadequate numbers of trained medical personnel presently employed at CBDC. At the time of our tours, the facility had just hired one additional full-time physician, bringing the total number of physicians to three, which included the acting medical director. In the opinion of the acting medical director, adequate medical care could be provided with five full time physicians and one medical director. This would require hiring three more physicians. Similarly, nursing coverage is woefully inadequate to meet the needs of the residents. According to the CBDC "Resource Plan," the facility would require an additional forty-one Registered Nurses and fifty-nine Licensed Practical Nurses, just to meet the staffing ratio established by the Department of Mental Retardation.

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Moreover, as a general rule, CBDC medical personnel do not have significant experience caring for individuals with developmental disabilities prior to employment at CBDC, and they receive insufficient orientation before starting work and practically no continuing education once they begin work.
This inadequate staffing, coupled with inadequate experience and training, has the greatest impact on the quality of preventive and chronic care. Records at CBDC, as at the Greene Valley Developmental Center, demonstrate that CBDC residents are subjected to repeated fractures over many years absent preventive measures; recurrent aspirations, dysphagia and pneumonias without a coherent management plan to treat and otherwise address these life-threatening ailments; significant, rapid weight loss representing a direct threat to health which was often not acknowledged or acted upon by professional staff; inadequate medication administration; and other misdiagnosed or untreated injuries. Our medical consultants were also struck by the number of serious cases of skin breakdown or decubitus ulcers, which generally indicates that there are too few adequately trained staff to track residents who are at risk for such ulcers and to ensure residents receive good hygiene and are repositioned frequently.
Seizure management is also deficient. In several cases the advice of the consulting neurologist was excellent and the advice was followed by CBDC physicians. However, the charts of a number of other residents indicated that they had not been seen by a neurologist for years, had been maintained on anticonvulsant medications despite having no seizures for years, or had been maintained on grossly subtherapeutic doses of anticonvulsants for many months and sometimes more than a year. Our medical expert found one case where intra-muscular medication was inappropriately used to treat a seizure. In addition, the inconsistent recording of seizures by CBDC staff seriously affects the legitimacy and efficacy of prescribed medications and treatment.
In one representative case, a 48-year-old woman who died in October 1993, was started on an anticonvulsant after having a seizure in the spring of 1993. Lab tests taken over the next seven months showed repeated, substantially subtherapeutic levels of the medication in her blood, despite at least two more seizures. One of the seizures, lasting ten minutes and described as "uncontrolled," prompted the neurologist to recommend increasing the dosage of the anticonvulsant, but the blood level remained subtherapeutic for the next several weeks until her death. (The consultant also noted that this resident had a 70 pound weight loss, but the primary care physician's note from the previous month had not remarked on this weight loss and had stated only that the patient was "doing well.") The woman had another prolonged seizure, was sent to the hospital, and died the

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next day, probably as a result of aspiration during her prolonged seizure. In this case, therapeutic drug levels were not actively pursued by the primary care physician in the face of increasing seizure activity. The resident's dramatic weight loss was also not acted upon.
Emergency care at CBDC is also inadequate. CBDC has no written guidelines as to when 911 should be called. Transportation of residents, who are or may be in need of immediate emergency medical care, from their living units to the medical building by non-medical personnel, such as security officers, is generally not appropriate. Seriously ill or injured residents should be attended and accompanied by trained medical personnel. Residents who are in need of immediate emergency care should be transported from their living units by EMTs directly to the hospital.
Quality control, peer review, and coordination mechanisms for medical care are virtually non-existent. Medical recordkeeping and data collection are also inadequate. Individual medical records are often in disarray, important information is missing, progress notes and plans are cursory, documents are misfiled and important physician notes are illegible. Although CBDC has begun to keep lists of individuals at risk for various ailments, it is clear that there is a general absence of individual or facility-wide data with respect to chronic medical needs of residents. This absence of information collection not only compromises the care of individual residents, but limits the ability of the medical staff and administration to properly allocate resources, develop plans, and ensure critical medical needs are met. Our expert consultants found repeated instances, for example, where residents' conditions or risks were noted, but no plan was in place or implemented to correct those conditions or reduce the risks. In cases where data is kept, it does not appear to be utilized in any useful fashion.
In sum, medical care for the most serious needs of the facility's residents is inadequate. Serious illnesses are not addressed in a timely manner. Preventable illnesses, unnecessary injuries, and other debilitating conditions occur absent appropriate professional medical intervention.
B. Psychiatric Care and the Use of Psychotropic Medication
Psychiatric services for CBDC are seriously deficient. This is due in large part to the inadequate number of psychiatric consultation hours available at the facility. The current consulting psychiatrist spends only seven to ten hours a month at CBDC even though over 100 CBDC residents are receiving medications that require psychiatric supervision. This is simply inadequate given the potential effects and side effects of the psycho-active medications to which CBDC residents are exposed.

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As mentioned above, CBDC's behavioral treatment system is grossly inadequate. In the face of an ineffective behavioral treatment system, the use of medication to control residents' behavior becomes even more problematic. It is essential that, before medications are used on residents, alternative, less-intrusive behavioral therapies are tried and proven to be unsuccessful. However, at CBDC, adequate behavioral therapies are not in place. Thus, medication used to control behavior becomes, per s_e, an inappropriate use of chemical restraint.
Further deficiencies also exist in the practices in use at CBDC concerning behavior-modifying medications. The extensive use of benzodiazapines, which have a high percentage of negative side effects in a developmentally disabled population, is not being adequately monitored. Also, as noted above, behavior data, critical to the analysis of the efficacy of medication, is not appropriately collected, graphed or charted in residents' records. Further, staff members often present conflicting data to the psychiatrist when the psychiatrist performs consults. Without accurate and consistent behavioral data, the use of psycho-active medications is inappropriate.
Additionally, there is no formal, standardized process for approval of residents' medication regimens. Nor is there a physician on CBDC's Behavior Management or Human Rights Committees. Further, CBDC's procedures for tracking medication side-effects is deficient. In sum, the use of behavior control medications at CBDC is unacceptable, does not adequately address residents' needs and represents a danger to residents.
C. Physical and Nutritional Management
Physical and nutritional management at CBDC are deficient. Many CBDC residents, like some of the residents at Greene Valley Developmental Center, are nutritionally at risk due to physical disabilities or other medical problems and are not receiving appropriate assistance and training during meals. Staff who assist residents at mealtime must receive special training in order to ensure residents' health and safety. For example, failure to appropriately position residents during meals can lead to aspiration, choking, reflux and other health complications. Although CBDC documents note the importance of positioning and feeding residents properly during and after mealtimes, our consultants' observations revealed that staff were not doing so and residents were coughing and choking as a result. Several residents who are tube fed were also observed improperly positioned during and following the feedings. (None of the residents currently receiving gastronomy feeding have oral stimulation programs.) Although some residents have individual feeding plans or cardexes' designed to instruct staff on how to properly feed the residents, some residents in need of such plans do not have them, and many of the cardexes are cryptic or outdated.

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CBDC also fails to appropriately identify and treat individuals with unhealthy weight loss, eating disorders, dysphagia or reflux; all of which, if untreated, can become fatal conditions.
D. Physical Therapy and Positioning of Physically Handicapped Residents
Physical therapy services at CBDC are seriously deficient. Direct care and professional staff generally are untrained in how to properly position, transfer or move residents. There is ineffective implementation of the individualized habilitation plan ("IHP") by staff from all services, and functional integration of this plan is lacking. As in other areas, objective data necessary to establish goals and measure progress is generally absent. There is a need for more physical therapy services for patient evaluation, program development, and supervision of program implementation. Additional registered physical therapists need to be hired.
Moreover, our physical therapy consultant identified a significant number of dangerous practices being conducted by those few individuals actually engaged in physical therapy activities. For example, technicians routinely lifted or moved residents by grabbing and pulling on their arms or legs -- which can easily result in broken bones for some of these medically fragile individuals. Staff also failed to take simple precautions such as locking wheelchairs before transferring residents in or out of the chairs.
In other cases, residents were inappropriately placed or allowed to remain in devices or postures which inhibited their ability to function, and, in some cases, may exacerbate their deformities. Many of the adaptive wheelchairs and related equipment are ill-fitting and inappropriate. Few of the nonambulatory individuals were observed to wear shoes. This places them at risk for injury while in their chairs, especially because many of them did not have proper foot rests and their feet were observed to drag along the floor as they were moved in their wheelchairs. Indeed, deficiencies in addressing the needs of residents with physical disabilities, especially children, are so severe as to represent an active threat to their health and safety. Appropriate positioning for residents who have multiple physical disabilities is necessary to prevent deterioration of residents' skills, abilities, and health. Residents languish in carts and ill-fitting wheelchairs, which exacerbate or allow physical deformities to progress - - i n some cases to a point that the deformity may preclude the person from sitting upright in a wheelchair. This seriously diminishes a person's opportunities for socialization and sensory input. Such inappropriate positioning can, among other things, constrict the lungs, cause

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secondary lung disease, make it difficult for the heart to pump, and increase the likelihood of vomiting, reflux and aspiration.
Furthermore, accurate and useful documentation of CBDC residents' individual physical therapy status does not exist, making it impossible to evaluate whether any intervention was effective, ineffective or in need of modification. In fact, many residents reviewed were continued for years on the same programs with little or no progress noted. Such lack of progress should prompt a modification or at least a re-evaluation of the therapy provided.
In sum, physical therapy services, including the positioning of residents, are so deficient as to represent a direct threat of harm to residents. An acceptable physical therapy program must enhance the capacity of the individual to function, i.e.. to help him or her live safely and as independently as possible. Sporadic passive range of motion "therapy" is not sufficient to achieve these goals.
IV. CBDC's Institutional Environment Fails to Meet the Needs of the Residents.
In providing care and services to individuals with developmental disabilities, it is essential to furnish them with an acceptable and responsive environment that ensures safety and promotes learning, development, and their overall well-being. Such environments must be functional and serve to enhance the quality of life for the individuals. Currently accepted professional standards require that this environment be the least separate, most integrated setting where the individuals needs can be met. It must be safe, stable, and operate to teach and maintain functional skills, to reduce or pre-empt the occurrence of behavior problems, and otherwise promote the independent functioning of the individual. CBDC does not meet these requirements.
The environment at CBDC is not fully functional for its residents and may be the cause of some of their problem behaviors. Ironically, it is the presence of these behavior problems, the regression in skills experienced by many residents as the result of inadequate care, and the acuity of their physical disabilities produced by other inadequate services that decreases or delays the individuals' opportunity to live in and participate in community-based programs.
CBDC fails to appropriately provide for and monitor the residents' personal property or to protect it from theft. This disregard for residents' personal possessions is reflective of an environment that devalues the people who are confined at CBDC.

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CBDC is an isolated, self-contained environment which separates its residents with disabilities from the rest of society. As a result, the facility fails to provide its residents treatment in an environment that permits contacts with society and its mainstream social institutions, enables independent functioning, and facilitates contact with family members. While a few residents enjoy frequent community outings, many others have very few opportunities to participate in community activities and still others apparently never leave the institution at all. Data for the fourteen months prior to our tours demonstrate that approximately 40 residents never took a community trip off grounds and many residents had fewer than six outings for the entire year. Data for the summer of 1994 showed that 191 residents never went off grounds for community or recreational outings during that time.
The State must provide these disabled residents an opportunity to participate in or benefit from aids, benefits and services equal to that afforded to others outside the institution; more specifically, to those provided to other individuals with disabilities in the State's established community-based programs. The residents are entitled to aids, benefits and services that are as effective in affording them the equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as those served in community-based programs. By confining residents with disabilities at CBDC, the State has failed to provide such services in the least separate, most integrated setting as required by the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, e_t sea., and section 504 of the Rehabilitation Act Of 1973, 29 U.S.C. § 794.
The cases reviewed by our consultants indicate that all of CBDC residents could be successfully placed in the community if provided with adequate supports. The professionals at CBDC are in general agreement with this view. Keeping individuals in an institution who have been determined to be capable of living in the community cannot be justified.
In those few cases where residents have been placed out of the Center, CBDC documents and our discussions with CBDC staff indicate that essential transitional services and planning has not taken place. For example, a deinstitutionalization plan designating community placement was included in each IHP that our psychology consultant reviewed, but the IHPs themselves did not contain objectives or a plan for, or otherwise focus on, this long-term goal. In addition, CBDC physicians are not involved in discharge planning to the community, and are not asked to provide transfer notes or communicate with community-based physicians regarding the medical status and needs of their patients prior or subsequent to their transfer. Dumping residents into the

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community without adequate planning, services or supports is equally unjustifiable.
V. Remedial Measures
In order to remedy these deficiencies and ensure that the rights of CBDC residents are protected, the following remedial measures need to be implemented promptly.
a. CBDC must immediately employ and deploy sufficient numbers of competent and trained professional and direct care staff to ensure residents are supervised and adequately protected from harm and provided appropriate training and other services. Measures must be taken to ensure the timely and accurate reporting of abuse and neglect, and the effective investigation and resolution of those reports.
b. All residents must be evaluated to determine their individual strengths.and weaknesses and to develop appropriate individualized training programs, including behavior management and skill acquisition programs. Immediate attention must be given to residents with self-injurious, physically abusive and other destructive behaviors by identifying them and providing necessary training on a priority basis. One-to-one staffing must be provided immediately for residents who are at risk of serious injury. All interdisciplinary evaluations should review the individual's training needs, utilizing a written descriptive functional analysis for those individuals with problem behaviors, and emphasize alternatives to restraints. Programs should address and develop appropriate strategies to promote the physical, mental, behavioral, and social skills of each resident and permit each resident to function as independently as possible. Such programs must be consistently implemented and procedures developed to ensure appropriate review and revision. Emphasis should also be placed on teaching residents to communicate. Restraint procedures must be revaluated immediately and changes made to avoid resident injuries and death by choking or asphyxiation.
c. CBDC must develop and implement a professionally based, individually appropriate data collection system to measure relevant information about problem behaviors and the conditions under which they occur, including, where appropriate, the frequency, intensity, and duration of the behaviors. CBDC must implement an appropriate data collection system to ensure that adaptive and functional skills training is meeting the needs of the resident involved. Furthermore, CBDC must review and respond to the data collected relating to either behavior programs or skill acquisition programs in a timely and appropriate manner.
d. Measures must be taken to improve the communication and language training provided to CBDC residents. Similarly, CBDC

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must assess each resident's need for associated or adapted devices including communication devices, and provide these devices for those individuals in need of them. Measures must also be taken to improve physical and nutritional management, including assessing residents at risk for dysphagia, weight loss, eating disorders and reflux, implementing measures to reduce those risks and teaching staff.
e. For each resident, CBDC must reasonably provide for, allow the residents access to, and take steps to protect the resident's personal property.
•• f. CBDC must ensure that each school-aged resident is evaluated and provided educational services, included related aids and services, consistent with the requirements of IDEA. Evaluations should be coordinated with the appropriate public school district to ensure that each child receives educational services in the least restrictive, most appropriate, environment outside CBDC. IEPs must be suitably individualized and contain functional objectives.
g. CBDC must hire, train and deploy adequate numbers of competent and qualified medical care staff, including physicians and nurses, to meet the medical needs of the residents. CBDC must provide enhanced training opportunities to the present physician staff to teach them skills necessary to care for physically disabled, developmentally disabled persons. CBDC must increase the number of hours of consulting and contract professionals, especially those for psychiatry, to a level sufficient to provide adequate care. CBDC should arrange for a physiatrist to provide regular consultation. CBDC must ensure that enough adequately trained medical professionals, including nurses and pharmacists, are employed to institute appropriate quality assurance mechanisms, especially to oversee the prescription, administration, and monitoring of psychotropic and anticonvulsant medications, and to provide timely prevention, treatment and follow-up of medical problems.
h. CBDC must provide adequate and timely medical care, including appropriate services to meet the acute, chronic and emergency medical care needs of residents. CBDC must develop an adequate protocol for emergencies, which, among other things, limits the prior practice of transporting seriously ill or obviously injured or ill residents unaccompanied by trained medical personnel. CBDC must ensure that physicians are immediately available to CBDC residents at night and on weekends. Develop and implement procedures and protocols for tracking sentinel health events and managing acute and chronic illnesses. Measures should be taken to reduce incidents of skin breakdown or decubitus ulcers.

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i. Residents on psychotropic and anticonvulsant medications should be evaluated to determine the appropriateness of their prescriptions and whether these medications are being prescribed and monitored in accordance with accepted professional standards. Psychotropic medications must not be used without an adequate rationale and a psychiatric or neuropsychiatric diagnosis, nor as punishment, in lieu of a training program for behavior control, nor for the convenience of staff. Residents must not be kept on anticonvulsant medications (or inappropriate doses of those medications) that serve no therapeutic purpose or are otherwise contraindicated.
j. Medical records must be kept in a fashion sufficient to allow medical professionals to provide adequate and timely care. An up-to-date problem list specific to each resident should be maintained in each resident's chart. Regular communication among medical staff must be established and enhanced. An adequate system must be developed for tracking and monitoring seizure disorders, and medical staff, as well as direct care staff, should be adequately trained in seizure management. A seizures protocol should be developed, which, among other things, describes the appropriate administration of anticonvulsants.
k. CBDC must hire, deploy and train sufficient numbers of specialty service providers, including qualified physical therapists, physical therapy technicians, occupational therapists occupational therapy assistants, and speech pathologists, to ensure that residents are provided appropriate physical and occupational therapy, including positioning, the use of adaptive devices, eating, and ambulation, and other functional skills training.
1. Immediate steps must be taken to develop and implement an overall plan to significantly reduce the size of the facility and to place residents in appropriate, less restrictivej community-based programs. There should be an immediate ban on the admission of children, except in emergency circumstances, and children should be prioritized for placement in alternate, properly supported community-based programs. In the meantime, residents should receive training to assist in their placement and transition to community-based living arrangements. Residents should also be adequately assessed to identify services necessary to meet their needs in the community. CBDC staff must take a greater role in helping to ensure that residents' placements into the community are appropriate and successful.
Large, congregate residential institutions have been demonstrated to be ill-equipped to provide the care, education, and training needed to promote the growth and development of developmentally disabled and mentally retarded persons. See.
Halderman v. Pennhurst State School & Hospital. No. 74-

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1345, slip op. at 1, 4-9 (E.D. Pa. March 29, 1994). The national trend is to serve these individuals in appropriate, alternative community-based programs and facilities which can meet their individual needs. Given the gravity and scope of our experts' findings regarding the deficient care provided at CBDC, the development of more appropriate settings and services for the residents of CBDC is necessary.
Sincerely,
Deval L. Patrick N^ Assistant Attorney General
Civil Rights Division
cc: The Honorable Charles W. Burson Attorney General State of Tennessee
Ms. Julia Bratcher Superintendent Clover Bottom Developmental Center
John M. Roberts, Esq. United States Attorney Middle District of Tennessee

 
 5/2/95
DLP:AEP:LJW:RCB:VH:LJ:JY:cmw DJ 168-70-22

U.S. v. Tennessee
IIH || IIH || || HI!|1 HI
MR-TN-004-004

May 12, 1995

The Honorable Don Sundquist Governor State of Tennessee State Capitol
Nashville, Tennessee 37219
Re: Nat T. Winston Developmental Center
Dear Governor Sundquist: On June 23, 1994, we advised Governor McWherter of this
Department's intent to investigate conditions at the Nat T. Winston Developmental Center (NTWDC) in Bolivar, Tennessee, pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. During the months of November 1994 and January 1995 we toured the facility with expert consultants to examine conditions of resident care and treatment at the facility. We want to thank the NTWDC staff and the representatives from the Department of Mental Health and Mental Retardation and the Attorney General's office for their cooperation during this investigation. Following each of our tours, we conveyed to the facility superintendent and other state officials an initial assessment of deficiencies at the facility.
As state officials are already aware, we found numerous conditions at NTWDC that violate the constitutional and federal statutory rights of the residents there. As we have set forth in previous findings letters to you, under the Fourteenth Amendment and relevant federal statutes, residents of state-operated facilities for the developmentally disabled and mentally retarded have a right to, inter alia, adequate medical care, reasonably safe conditions, and training sufficient to protect each resident's liberty interests, including training to permit each resident an opportunity to function as independently as possible. Programs must be provided to teach adaptive skills, including self-help, communication, and social skills. In addition, individuals with developmental disabilities must be provided
cc: Records Chrono Peabody Weinstein Bowman Hughes<!>Jackson Yost Hold

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services in community-based programs where appropriate. 1/ NTWDC is not in compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seg., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, et seq., as well as the regulations implementing these federal statutes. Our review also indicates that the rights of the residents guaranteed by Tennessee state law are also being violated. See, e.g.. Tenn. Code Ann. § 33-3-104 and § 33-5-201.
Many of the deficient conditions and practices we identified at NTWDC are similar to those set forth in our earlier findings letters regarding conditions at the Clover Bottom Developmental Center and the Greene Valley Developmental Center. You may wish to review those letters in light of the findings contained in this letter.
The general facts that support our findings of unconstitutional conditions and violations of federal statutory rights at NTWDC are set forth below.
I. NTWDC Residents Are Being Subjected to Harm and Undue Bodily and Chemical Restraint Due to the Lack of Effective Behavioral Treatment Programs .
Many residents of NTWDC have behavioral disorders that require professionally developed behavior treatment programs in order to keep the residents safe from either self-inflicted injury or injury as a result of another resident's behavior, and to prevent the undue use of chemical or bodily restraints as a means of controlling residents. Effective behavioral treatment programs are completely lacking at NTWDC.
i/ See, e.g.. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132, et seg. (and implementing regulations, 28 C.F.R. 35.130(b)(1), and 28 C.F.R. 35.130(d)); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, e_t seq. (and implementing regulations, 42 C.F.R. §§ 483.420 - 480); Youngberg v. Romeo, 457 U.S. 307 (1982); United States v. Tennessee, No. 92-2062, slip op. (W.D. Tenn. Feb. 17, 1994); Halderman v. Pennhurst State School & Hospital, No. 874-1345, slip op. (E.D. Pa. March 29, 1994); Jackson v. Fort Stanton Hosp. & Training School, 757 F. Supp. 1243 (D.N.M. 1990), rev'd in part on other grounds, 964 F.2d 980 (10th Cir. 1992); Thomas S. by Brooks v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd 902 F.2d 250 (4th Cir.), cert, denied, 498 U.S. 951 (1990); Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985), aff'd. 794 F.2d 79 (3d Cir. 1986) cert. denied, 479 U.S. 962 (1986); Gary W. v. Louisiana, 437 F. Supp. 1209 (E.D. La. 1976) .

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The foundation upon which all behavioral treatment is based is an adequate assessment of a resident's behavior to determine the cause of the behavior. At NTWDC, however, assessments do not address relevant factors, such as environmental or medical conditions, when considering reasons underlying resident behavior. Further, in those cases where assessments are performed, they are done only on an informal basis, without sufficient, reliable data being taken. Without reliable data, it is simply not possible to develop adequately individualized behavioral treatment programs designed to address the needs of NTWDC residents.
In the absence of adequate assessments, NTWDC typically proceeds on a "trial and error" basis in addressing residents' behavioral treatment needs. As a result of this approach, NTWDC is relying to an excessive degree on a variety of restrictive procedures to control problem behaviors. In fact, almost half of N T W D C s residents on behavioral programs have some form of restrictive procedures included in their programs. We noted that many of the programs were quite similar, containing "boilerplate" language and clearly lacking appropriate individualization.
The monitoring and reviewing of behavioral programs is also seriously deficient. NTWDC places residents on behavioral programs and continues residents on those programs despite the programs' obvious ineffectiveness. Although the psychology staff at NTWDC appear motivated to provide appropriate services, there are too few of them and they lack the necessary experience and training necessary for work with individuals with serious behavior issues or skill deficits. In addition, the psychology staff is not able to ensure that their programs are implemented as designed, which contributes to the ineffectiveness of programs at NTWDC.
NTWDC, because of the ineffectiveness of its behavioral programs, relies on physical and chemical restraints to control residents' behavior. For example, 119 of NTWDC's 150 residents are on neuroleptics for behavioral control. There is no evidence that NTWDC staff are attempting to integrate behavioral and psychopharmacological treatments and there was no one at NTWDC at the time of our tours sufficiently trained in the interactive effects of these different treatment modalities. As noted earlier, the absence of reliable data further prevents facility professionals from having sufficient knowledge about a resident's behavior to develop a program that appropriately interrelates medication and non-medication therapies.
Given the large number of residents at NTWDC with self-injurious or aggressive behaviors, N T W D C s failure to adequately address these behaviors is resulting in actual physical harm to residents. For example, NTWDC's own staff

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have documented hundreds of incidents occurring at the facility, many of them serious behavior-related injuries to residents. Examples of injuries suffered by NTWDC residents include multiple bites, lacerations, broken bones, bruises and abrasions. One individual was injured 25 times, receiving lacerations 11 times, including one six inches long, in an eight-month period. Of 25 injuries another individual received in an eight-month period, 16 were self-inflicted and others resulted from fights with other residents. Several residents were found attempting to cut themselves with knives or razorblades.
Further, N T W D C s program for teaching residents new skills also fails to provide the training necessary for the health, safety and independence of the residents. For example, the current practice at NTWDC is geared toward residents reaching an arbitrary level of skill performance rather than teaching skills in a manner that would actually benefit a resident in living in the community.
We also identified inappropriate restraint practices at NTWDC. For example, some of the physical handling techniques employed by NTWDC, including the straight-arm maneuver, pose risk of injury to residents. Indeed, we examined the record of one resident who suffered a dislocated elbow after a take-down procedure. Although NTWDC may file an incident report for injuries occurring during the use of restraint, each such injury is not investigated as thoroughly as it should be investigated. Although we were informed that the use of time-out rooms will be discontinued, the rooms must be padded to prevent injury to residents during any continued use. Significantly, the facility also places residents face-down in the prone position while in restraint. This is an especially dangerous practice which we requested be terminated immediately at the time of our tour. Further, the facility does not adequately monitor its restraint practices.
In summary, NTWDCs practices in providing behavioral treatment and skill acquisition for its residents are seriously inadequate and violate the residents' constitutional and statutory rights.
II. Medical and Psychiatric Care at NTWDC is Deficient Due, In Large Part, to an Inadequate Number of Trained Medical Staff.
During our investigation of NTWDC, we found that medical staff personnel at the facility lack sufficient training and knowledge to provide adequate medical and psychiatric care to NTWDC residents. Our review of the qualifications of NTWDC medical staff demonstrated that the physicians lack training in treating persons with developmental disabilities and likewise

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lacked expertise in psychopharmacology and neurology, critical deficits considering the resident population at NTWDC.
Further, we also identified numerous deficiencies in the medical services provided by the Medical Officer(s) on Duty (MOD). For example, we identified instances where MODs would order the hospitalization of a resident without ever seeing or examining the resident. NTWDC staff also told us that they often had difficulty locating a physician to attend to the needs of residents. Further, the facility also does not have an adequate medical quality management or physician peer review system in place.
We also identified the need for NTWDC to increase its ability to respond to emergency medical care needs. With regard to emergency medical care, we identified deficiencies in the training being provided NTWDC staff and undue delays in accessing emergency medical supplies. In addition, necessary documentation of residents' medical status was lacking; medical staff often failed to note critical changes in residents' medical status.
Despite the fact that NTWDC is used by the State of Tennessee as a facility for treating persons with a dual diagnosis i.e., mental retardation and a psychiatric illness or disorder, there is no consistent psychiatric service provider at the facility. Psychiatric services are provided sporadically at best by physicians who have no formal training in the unique problems associated in treating persons with dual diagnosis. Our medical consultant concluded that a full-time psychiatrist with experience in mental retardation is "urgently needed" at NTWDC. The vast majority of residents at NTWDC receive some type of psychotropic medications. Further, medications are often administered in unjustifiable combinations or dosage levels, are not adequately monitored, and are administered without sufficient target behaviors or specific goals identified. More intensive psychiatric care is required for the residents of NTWDC.
Therefore, we conclude that medical services at NTWDC, including basic and emergency medical care and psychiatric services, do not meet accepted professional standards.
III. Numerous Environmental Health and Fire Safety Deficiencies at NTWDC Pose Risks to Residents.
During our investigation, we identified numerous environmental health and safety deficiencies that expose residents and staff to health and safety risks. Many of the deficiencies were related to N T W D C s food service and preparation operations.
Sanitary conditions were very poor at the food facility. (Food for NTWDC is prepared in the same kitchen that prepares

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food for the Western Mental Health Institute.) For example, we noted water leakage throughout the facility and some of the leaking water was contaminating food service equipment. Mold and mildew were prevalent throughout the refrigerators and coolers and peeling paint was noted in various areas. Food and utensils were also being improperly stored and there was mice infestation in dry food storage areas. Further, dishwashers were not working properly and we found dirty cookware, even though the items were supposedly clean. In general, the food service area was in poor repair.
We also noted that food was not served to residents at proper temperatures. Once food is prepared in the kitchen area, it is then transported to resident living areas. This process leads to undue delays in servicing the food, which allows the food to cool and exposes it to contamination. NTWDC must improve its food service practices.
We also identified other hazardous conditions such as improper plumbing configurations which could expose the drinking water to contamination. In one bathroom, the water ran an orange color from a sink for approximately one minute, suggesting some type of contamination which must be investigated.
NTWDC must revise and formalize its fire evacuation plans. Numerous inconsistencies and other problems were identified when we reviewed the evacuation plan provided us. Further, staff we spoke with had not been adequately trained on fire safety procedures, notably the proper use of fire extinguishers. We also noted that several doors necessary for fire and smoke separation were not properly maintained. Some of the emergency lights were not working and, at least in one case, there was an opening in the wall above a ceiling through which smoke could invade an adjacent hallway. Our expert was also concerned about the conditions of the emergency generator and whether adequate maintenance was being performed. In sum, a thorough fire safety review must be performed at NTWDC and identified deficiencies immediately corrected.
We also identified other conditions that pose risk to residents. For example, there were many cords hanging from blinds in residents' room and bureaus contained horizontal bars. These are especially dangerous considering the nature of the NTWDC resident population.
In sum, the deficiencies in the adequacy of sanitation and life and health safety conditions at NTWDC expose residents to undue risks to their health and safety.

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IV. NTWDC's Institutional Environment Fails to Meet the Needs of the Residents.
In providing care and services to individuals with developmental disabilities, it is essential to furnish them with an acceptable and responsive environment that ensures safety and promotes learning, development, and their overall well-being. Such environments must be functional and serve to enhance the quality of life for the individuals. Currently accepted professional standards require that this environment be the least separate, most integrated setting where the individuals' needs can be met. It must be safe, stable, and operate to teach and maintain functional skills, to reduce or pre-empt the occurrence of behavior problems, and otherwise promote the independent functioning of the individual. NTWDC does not meet these requirements. The failure to provide adequate services at NTWDC may, in fact, be resulting in the inability of residents to develop those skills necessary for them to live outside the institution. This is simply unacceptable.
The State must provide these residents with disabilities an opportunity to participate in or benefit from services equal to those afforded to others outside the institution; more specifically, to those provided to other individuals with disabilities in the State's established community-based programs. By confining residents with disabilities at NTWDC, the State has failed to provide such services in the least separate, most integrated setting as required by the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seg., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
V. Remedial Measures.
In order to remedy the deficiencies identified herein and ensure that the rights of NTWDC residents are protected, the following remedial measures must be implemented promptly:
a. NTWDC must employ and deploy sufficient numbers of competent and trained professional and direct care staff, including psychologists, to ensure residents are supervised and adequately protected from harm and provided appropriate training and other services.
b. Restraint procedures used at NTWDC must be revaluated immediately. The practice of prone restraint must be terminated to avoid resident injuries and death by choking or asphyxiation and use of the straight-arm maneuver should also be prohibited immediately in light of the past injury. All injuries related to the use of restraints must be fully investigated. While in use, time-out rooms must be padded to protect residents placed in time out. All NTWDC residents must be medically cleared before hands-on procedures to restrain them are used.

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c. All residents must be evaluated to determine their individual strengths and weaknesses and to develop appropriate individualized training programs, including behavior management and skill acquisition programs. Immediate attention must be given to residents with self-injurious, physically abusive and other destructive behaviors by identifying them and providing necessary training on a priority basis. One-to-one staffing must be provided immediately for residents who are at risk of serious injury, including injuries from aggression and pica.
d. All interdisciplinary teams in conducting evaluations should review the individual's training needs, utilizing a functional analysis for those individuals with problem behaviors, and emphasizing alternatives to restraints. Programs should address and develop appropriate strategies to promote the physical, mental, behavioral, and social skills of each resident and permit each resident to function as independently as possible. Such programs must be consistently implemented and appropriately reviewed and revised. Emphasis should also be placed on teaching residents to acquire the skills necessary for them to live in community settings.
e. As part of the provision of appropriate programs, NTWDC must develop and implement a professionally designed, individually appropriate, data collection system to measure relevant information about problem behaviors and the conditions under which they occur, including, where appropriate, the frequency, intensity, and duration of the behaviors. NTWDC must implement an appropriate data collection system to ensure that adaptive and functional skills training is meeting the needs of the resident involved. Furthermore, NTWDC must review and respond to the data collected relating to both behavior programs and skill acquisition programs in a timely and appropriate manner.
f. Measures must be taken to improve the adaptive skills training provided to NTWDC residents, including that for communication and language skills. Similarly, NTWDC must assess each resident's need for adaptive devices, including communication devices, and provide them to those individuals in need of them.
g. NTWDC must hire, train and deploy adequate numbers of competent and qualified medical care staff, including physicians and nurses, to meet the medical needs of the residents. NTWDC must provide enhanced training opportunities to the present physician staff to teach them skills necessary to care for developmentally disabled persons. NTWDC must increase the number of hours of consulting and contract professionals to a level sufficient to provide adequate care. NTWDC must ensure that enough adequately trained medical professionals are employed to institute appropriate quality assurance mechanisms, especially to

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oversee the prescription, administration, and monitoring of psychotropic and anticonvulsant medications, and to provide timely prevention, treatment and follow-up of medical problems. Policies and protocols to guide professional decisions must be developed.
h. NTWDC must immediately hire at least one full-time psychiatrist with experience and training in dual diagnosis.
i. NTWDC must provide adequate and timely medical care, including appropriate services to meet the acute, chronic and emergency medical care needs of residents. NTWDC must ensure that physicians are immediately available to NTWDC residents at night and on weekends. NTWDC must develop and implement procedures and protocols for tracking sentinel health events and managing acute and chronic illnesses.
j. Residents on psychotropic and anticonvulsant medications must be evaluated to determine the appropriateness of their prescriptions and whether these medications are being prescribed and monitored in accordance with accepted professional standards. Psychotropic medications must not be used without an adequate rationale and a psychiatric or neuropsychiatric diagnosis, nor as punishment, in lieu of a training program for behavior control, or for the convenience of staff.
k. Medical records must be kept in a fashion sufficient to allow medical professionals to provide adequate and timely care.
1. An overall plan to assess the need for continued institutionalization of each resident and to place residents in appropriate, less restrictive, community-based programs must be developed and implemented. In the meantime, residents should receive training to assist in their placement and transition to community-based living arrangements. Residents should also be adequately assessed to identify services necessary to meet their needs in the community. NTWDC staff must take a greater role in helping to ensure that residents' placements into the community are appropriate and successful.

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Staff from my office will be contacting representatives from the Attorney General's office soon to negotiate a judicially enforceable settlement to correct deficiencies at NTWDC, as well as those identified at Clover Bottom and Greene Valley Developmental Centers.
Sincerely,
Deval L. Patrick Assistant Attorney General
Civil Rights Division
cc: The Honorable Charles W. Burson Attorney General State of Tennessee
Mr. Stanley B. Lipford Superintendent Nat T. Winston Developmental Center
Veronica Coleman, Esquire United States Attorney Western District of Tennessee

 
 U.S. v. Tennessee

T. 6/12/95 AEP:RB:LW:VH:LJ:JY:cmw DJ 168-71-10

•• •• • •

• • • • • • • • • • • • I • ••

MR-TN-004-005

Placement of Undercover Employee at the Clover Bottom Developmental Center, a Facility for Developmentally Disabled, in Nashville, Tennessee

Richard W. Roberts Chief Criminal Section

Arthur E. Peabody, Jr. Chief Special Litigation Section

We recently met with Al Moskowitz and Tom Perez to discuss

our involvement with four centers for developmentally disabled

individuals run by the state of Tennessee. Evidence at several

of the centers indicates that there has been a pattern of abuse

and neglect of residents there, including some criminal activity.

We have utilized this evidence in our civil action and

investigations, but as we outlined in our meeting, the nature of

the centers, including rigid management control over employees,

the inter-relationship of the employees, poor or fraudulent

'

documentation, and the mental disabilities of the individual

residents suffering the abuse, has limited our ability to uncover

some of the more egregious abuse we believe to be occurring.

Years ago, placement of undercover employees in these types of situations proved fruitful. We believe that this type of operation would be useful here, and would be a good place to reinvigorate our cooperation with the Criminal Section in investigating institutions. We recommend that our offices coordinate with the Office of the United States Attorney and the FBI in Nashville to place an individual undercover at the Clover Bottom Developmental Center ("CBDC") in Nashville.

EXECUTIVE SUMMARY

Our investigations of institutions for developmentally disabled citizens in Tennessee began with the Arlington Developmental Center ("ADC") located outside of Memphis. Following a lengthy trial in 1993, the district court issued a stinging rebuke of the facility and its administrators, and a detailed remedial order is now in place. Although we believe that physical abuse (as well as theft of resident property and drug dealing) may be continuing at the ADC, the facility is now under court order, is reviewed by a court monitor pursuant to the order, has hired three investigators and is being investigated by the Tennessee Bureau of Investigation ("TBI"). The local district attorney's office has indicted at least three ADC

cc: Records Chrono Peabody Bowman Weinstein Hughes>yackson Yost Hold

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employees for the murder of a resident, and five employees for misdemeanor assaults of residents.
With such involvement by local authorities at this facility, an undercover operation may be directed best at one of the other facilities, which our investigations indicate evidence similar patterns of abuse, management cover-up and petty criminal activity. Of the three other Tennessee centers for developmentally disabled individuals under investigation, we recommend that an undercover person be placed at CBDC, because it is the largest of the three other centers, has a reputation over many years as being worse than ADC, and continues to generate a number of allegations of serious abuse.
BACKGROUND
In 1990, at the request to the United States Attorney in Memphis, we began investigating conditions at the Arlington Developmental Center ("ADC"), in Arlington, Tennessee. Approximately 450 developmentally disabled children and adults resided at the facility. After several tours of the facility by our experts and many months of unsuccessful negotiations, we sued ADC for violating the federal statutory and constitutional rights of the citizens residing there. Allegations of verbal and physical abuse, as well as evidence of unexplained injuries and sham investigations, formed part of the case against the facility and its administrators. However, because of the limited ability of most of the residents to communicate, the tight control of ADC management over employees, the extensive familial ties among employees on the units, and poor or falsified documentation, we had difficulty obtaining specific information on individual incidents (e.g., who did this to the resident, on what day, and witnessed by whom?).
After five weeks of trial, on November 22, 1993, the district court found the facility had failed to provide even minimal care to the residents, ruling in our favor on each count. The opinion and findings of fact are attached. The court found that, inter alia, "[j]ob security of employees is consistently placed above the constitutional rights" of residents, employees were intimidated against reporting problems, and administrators performed no meaningful investigations of possible resident abuse. The court issued a preliminary injunction, and, subsequently, a remedial order. These orders gave specific directives regarding improving conditions at ADC. In addition, the court granted our motion to find the State in contempt of the preliminary injunction, and another contempt motion filed by us demonstrating the State's noncompliance with the remedial order is outstanding.
Within the last six months, the ADC investigators, who were hired by ADC pursuant to the requirements of the remedial order,

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have investigated a recent murder and several potential beatings. These matters have been turned over to TBI and the district attorney's office for prosecution.
Throughout our involvement at ADC, we have been told by people knowledgeable of conditions at the various centers in Tennessee that ADC is not the worst of the four centers in the state, and that CBDC has had a long history of resident abuse and mistreatment. In June 1994, we. formally notified the Governor of our intent to investigate CBDC, Greene Valley Developmental Center in Greeneville, and Nat Winston Developmental Center in Bolivar. Based upon tours of each facility with experts from various fields, we found that these centers did indeed have as many, if not more, problems than ADC. We informed the Governor and other state officials of our findings in letters which are attached.
CLOVER BOTTOM DEVELOPMENTAL CENTER
CBDC is a residential facility with over 500 developmentally disabled children and adults. The Jordan Center, which is ostensibly a residential forensic facility for developmentally disabled adults, but which also operates as a dumping ground for individuals with behavior disorders from the other centers, is affiliated with CBDC. It houses approximately 34 individuals.
In general, the facility is grossly understaffed. Many of the residents have lived in barren conditions with little stimulation for years. As a result of this and, in some cases, mental illness, a number of residents have behavior problems. For example, residents may be self-abusive, bite themselves or other residents, eat inedible objects or fight with other residents or staff. These behaviors sometimes result in injuries. Unfortunately, in an institution staffed by untrained and overworked direct care workers, these behaviors provide both the reason and cover for physical abuse. That is, staff sometimes resort to beatings and other inappropriate punishment to "control" the residents. In order to cover up this abuse, or other abuse committed without any provocation, staff blame the resident or other residents for the injuries they received.
Listed below are some examples of abuse or suspected abuse that have been discovered at CBDC over the last few years.1 These examples have been gleaned from documents provided to us recently by CBDC, the Tennessee Protection and Advocacy Agency, and TBI. This list does not include the dozens of examples of unexplained fractures and lacerations that are a weekly occurrence at CBDC. Although a number of the examples below are
1 In addition, as at ADC, there is some indication that resident moneys and property are stolen by staff.

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old, the list evidences an extraordinary amount of serious abuse and a continuing pattern of CBDC investigators or administrators often deflecting blame from the potential abusers to those employees who report the abuse. Moreover, our experience at ADC and other institutions indicates that documented cases of abuse represent only a very small portion of the actual number of abuse cases taking place.
5/23/95 Developmental technician (DT) Reginald Blakey indicted for assaulting 29-year-old male resident.
2/21/95 CBDC reports to TBI that resident may have been beaten with a belt by employee. Discovered at 6am. Further detailed report from TBI forthcoming.
1994 - 1995 Allegations by staff that Superintendent at Jordan Center is using aversive behavior modification techniques in violation of professional practice and state procedures, and has told staff to keep it quiet and not to document this. Anonymous source provided audio tape of meeting wherein Superintendent makes these statements.
7/20/94 Ray Bauker alleges he was sprayed in face with a disinfectant by DT Patricia Chatman. He suffers chemical burns on face and eyes, and is taken to the emergency room. DT denies this, saying that he smeared feces on his own face. Chatman is terminated, though there is no information as to her appeal or whether she was reinstated. Examining physician confirms that it was a chemical burn.
7/94 Protection and Advocacy interviews employee(s) who describe the following ongoing abuse: DT gave lit cigarette to resident and said "watch, he'll eat it" and the resident did; DTs forcing residents to stay in urine-soaked clothes; DTs shoving residents hard enough to make them fall; forcing them to "sit down and shut up"; taking away meals to discipline resident for talking; DTs watched as resident tore up his shirt and ate it.
6/22/94 Tina Mason found with welts resembling shoe tread marks on her buttocks. TBI is investigating.
6/14/94 DT Andrew Henry accused by DT Sheeron Davis of kicking Roy Atwell in his genitals, leaving Hunter Armstrong, Jerry Luck and Gary King on commodes for hours at a time, pushing Mr. Armstrong down, and throwing keys at another resident. CBDC report recommends taking no action against Henry, because Davis, the employee reporting the abuse, is new and has not gone through training! [This represents the same pattern we discovered repeatedly at ADC: abuse only gets reported if a new employee, who has not been indoctrinated into the code of silence, observes it, and then the abuser is not punished, but the new employee is

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reprimanded in some fashion or fired if they are still only probationary employees. See similar cases below.]
5/20/94 Harold McGovern struck in the face with towel, resulting in red welts. DT Walter Flowers, a new probationary employee, is suspected and recommended for termination.
5/19/94 DT Donna West reports that on 4/10/94 she observed DT Belinda Shelby strike Rose Ann •Toombs with a can of hair spray, causing a laceration to Ms. Toomb's head. No discipline of Shelby, but recommended that West be suspended for a day for failure to report incident in timely manner.
5/14/94 Abuse of Robert Morris: verbally abused, thrown on bed and slapped by DT LaRose; observed by new DT; attempt at cover-up by LaRose and Mr. Simmons; papers suggest LaRose was terminated, but later Department of Social Services claims they could not substantiate the abuse. Final disposition is unknown.
Mark Downey punched in stomach by DT David Bridges on 5/13/94. DT terminated.
Booker T. Washington abused repeatedly (e.g., shoved, beaten, stomped on) at various times in 1992 and 1993, by DT Ronald Austin. Two other DTs report separate instances, but CBDC concludes they have a personality conflict with Austin and were only trying to retaliate against him. CBDC does not discipline Austin, but recommends written reprimands for the two DTs who reported the abuse.
12/8/93 Cindy Somerville found with bruises on inner buttocks and white heavy discharge from her vagina. Sexual abuse is suspected. Medical check at hospital is inconclusive. Male DT Obohanson alleged to have been on unit prior to the discovery that day with another male DT, who was not assigned to the unit. No disciplinary action taken. Investigator only recommends that DTs Obohanson and Ms. Pamela Hobert, who were on duty on the unit, receive additional training on communication and bathing residents. Mother, Kathy Somerville, claims physical and sexual abuse to daughter Cindy. Reported Nashville Banner 7/13/94. Protection and Advocacy investigated (see their report).
11/27/93 Valecia Day found with bruises on vulva and vaginal tear requiring sutures. Sexual abuse suspected, but CBDC investigation concludes that injuries were caused by her being dropped during bath time. Female DT received reprimand for improper bathing techniques.
10/19/93 Frances Walker claims bruises on arms resulted from DT Tuesday Sanders hitting her. Sanders is interim employee and is allowed to resign.

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9/16/93 DT Sonya Hawkins reports that DT Dawn Dodd told her that DT Sabrina Barr pulls Anthony Richards around by the nose and sprayed water in his face, making him gag. No disciplinary action taken.
4/6/93 Danny Bryan reports that DT Duane Custard had anal sex with him. Custard admits to this and sex with another resident, James Jaco. He is allowed to resign.
2/24/93 New employee, James King, reports continuing abuse against residents in unit, and states he observed the following: DT Lee Petty threw and kicked John Mason into wall causing laceration on his head; Petty threw lit cigarettes at Mr. Mason who ate them; Petty hit Robert Weaver with hairbrush; Petty sat on Leslie Potter's chest and hit him 5 or 6 times in jaw with his fist; Petty and DT Hilliard force David Romaine to sit for 2 to 3 hours on commode so they don't have to clean him. Petty allowed to resign. No information regarding whether DT Hilliard was disciplined.
Rape of James Barrett on 1/15/93 by DT Joe Jordan: DT caught standing or bending over naked resident who was on his stomach on the bed. DT's pants were down and he had erection. DT fired and criminal charges brought; plead to "sweetheart deal" according to TBI.
Crawthon Bowen found on 1/27/93 with red welts on buttocks and bruising on hips; blamed on new probationary employee, Wayne Stevens, and given his prior history of poor performance, he was terminated.
1/6/93 Ralph Bobbit whipped in face with a coat hanger, perhaps by Doris Dobson. Facility believes it might have been selfinflicted, but TBI determines that it was not. No disciplinary action taken.
1/24/93 Ricky McKinnon communicates that DT David Briggs had sex with him. CBDC concludes there is no evidence, and no action is taken.
1/18/93 Paul Greer discovered with fractured arm. DT reports she observed DT Festus Obasohan handling Greer and other resident roughly, but Obasohan says fracture occurred after Greer fell off the toilet. No disciplinary action taken.
1/10/93 Alonzio Blake tied to a chair by DT Tracey Wilson. One day suspension of Wilson is recommended by CBDC.
2/28/93 DT Bill Foster slapped and shook Hunter Armstrong. Witnessed by Dr. Hensley. No information on discipline.

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2/10/93 Kay Knight reports seeing another resident, Rosie Cannon, be struck by DT Alisha Thorpe in mouth, cutting lip.
CONCLUSION
We propose that we meet with relevant members of your section, as well as attorneys from the Office of the United States Attorney in Nashville to discuss our proposal as soon as possible.
Although your Section, the Nashville United States Attorney, and the FBI will know better how to position an undercover person, and more can be discussed on this point later, a few preliminary observations are in order. First, based upon our knowledge of the administrators, we believe it would be most advantageous to place an individual at the facility without their knowledge, if at all possible. Second, most of the cases of abuse or suspected abuse emanate from the units where residents with behavior problems reside. Thus, it would be ideal to get the undercover person assigned to one of these areas. The best way to assure that that happens is to utilize a large male as the undercover operative. Large males are typically assigned to these units to help "control" the residents. It would also be useful to provide him with a work background as a direct care worker for developmentally disabled individuals with behavior problems.
Attachments

 
 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Washington. D.C. 20035

March 1, 1996

The Honorable Don Sundquist
Governor
State o fTennessee
State Capitol

U.S. v. Tennessee
|||||||||| Millill II II II II Illl Illllll II II II
Mill III I Illllll IIII IIII II Illl Illlllll II I l l l
MR-TN-004-007

Nashville, Tennessee 37219

Re: Harold Jordan Habilitation Center

Dear Governor Sundquist:
On June 23, 1994, we advised Governor McWherter of this Department's intent to investigate conditions at the Clover Bottom Developmental Center (Clover Bottom) in Nashville, Tennessee, pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. On March 10, 1995, we advised you of our investigative findings at Clover Bottom and further advised you that we had not yet concluded our investigation of the Harold Jordan Habilitation Center (Jordan Center), which is a program of Clover Bottom. In May 1995, we conducted an expert tour of the Jordan Center. Following our tour, we conveyed our initial findings to the facility superintendent and other State officials.

As set forth in our recent findings letters to you regarding Clover Bottom and other Tennessee Developmental Centers, under the Fourteenth Amendment and relevant federal statutes, residents of state-operated facilities for the developmentally disabled and mentally retarded have a right to, inter alia, adequate medical care, reasonably safe conditions, and training sufficient to protect each resident's liberty interests, including training to permit each resident an opportunity to function as independently as possible. Programs must be provided to teach adaptive skills, including self-help, communication, and social skills. In addition, individuals with developmental disabilities must be provided services in community-based programs where appropriate. Our investigation of the Jordan Center identified a number of violations of the constitutional and federal statutory rights of Jordan Center residents that are similar to the violations we identified earlier with respect to Clover Bottom

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residents.1/ Our review also indicates that the rights of the residents guaranteed by Tennessee state law are also being violated. See, e.g., Tenn. Code Ann. § 33-3-104 and § 33-5-201. Violations of these statutes deprive residents of their procedural due process rights.
The general facts that support our findings of unconstitutional conditions and violations of federal law at the Jordan Center, as well as the necessary remedial measures to correct these conditions and violations, are similar to the findings and remedies that we articulated in our March 10, 1995 Clover Bottom findings letter. As such, we set forth our specific findings and remedies with regard to the Jordan Center in summary fashion below.
I. Inadequate Staffing And Protection From Harm At The Harold Jordan Habilitation Center.
The Harold Jordan Habilitation Center is a facility serving approximately 34 residents who have a dual diagnosis of both mental retardation and mental illness. The majority of Jordan Center's residents come to the facility either through the State criminal courts because they have been determined to be incompetent to stand trial, or they arrive from another State mental retardation facility because the other facility has concluded that their behaviors present a danger to themselves or other residents. Thus, Jordan Center residents require intensive psychological and psychiatric therapies. This level of therapy, however, is simply not provided at the Jordan Center.
1/ See, e.g., Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132, et sea, (and implementing regulations, 28 C.F.R. 35.130(b)(1), and 28 C.F.R. 35.130(d)); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, e_t sea. (and implementing regulations, 42 C.F.R. §§ 483.420 - 480); Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400, e_t seq. (and implementing regulations) ; Youngberg v. Romeo, 457 U.S. 307 (1982); United States v. Tennessee, No. 92-2062, slip op. (W.D. Tenn. Feb. 17, 1994) ; Halderman v. Pennhurst State School & Hospital, 154 F.R.D. 594 (E.D. Pa. 1994); Jackson v. Fort Stanton Hosp. & Training School, 757 F. Supp. 1243 (D. N.M. 1990), rev'd in part on other grounds, 964 F.2d 980 (10th Cir. 1992); Thomas S. bv Brooks v. Flaherty, 699 F. Supp. 1178 (W.D. N.C. 1988), aff'd 902 F.2d 250 (4th Cir.), cert, denied, 498 U.S. 951 (1990); Clark v. Cohen. 613 F. Supp. 684 (E.D. Pa. 1985), aff'd, 794 F.2d 79 (3d Cir. 1986) cert, denied. 479 U.S. 962 (1986) ; Gary W. v. Louisiana. 437 F. Supp. 1209 (E.D. La. 1976).

- 3-
Many of the deficiencies outlined below can be traced directly to the Jordan Center's lack of a sufficient number of adequately trained professional and direct care staff. These staffing and treatment deficiencies are placing Jordan Center residents at undue and unreasonable risk of harm and are resulting in injuries.
II. Treatment Programs Do Not Address The Needs Of Residents.
Treatment plans and programs developed by the Jordan Center staff do not address the specific treatment needs of residents. Jordan Center residents require programs that are either specific to their alleged crimes (e.g., arson, sexual battery) or specific to their behavior-related difficulties. Neither is in evidence at the Jordan Center. The Jordan Center training programs are very generic and global, and fail to address the reasons why residents are confined to the Jordan Center.
Further, it appears that some Jordan Center residents are confined to the facility for unjustifiably long periods. For example, a number of Jordan Center residents are placed at the facility by the criminal courts following findings that these individuals are incompetent to stand trial, either because of their mental illness, mental retardation, or a combination of both. We were informed by Jordan Center staff, however, that certain residents who are currently committed to the facility because they were found to be incompetent to stand trial are likely never to gain competency due to the severity of their disabilities. Such prolonged and indeterminate confinement based upon incompetency to stand trial implicates due process rights because the nature and duration of commitment must bear some relation to the purpose for which the individual is committed. Jackson v. Indiana, 406 U.S. 715 (1972). The commitment status of all residents should, therefore, be reviewed for legal sufficiency. Where, as here, treatment is grossly deficient, confinement of these individuals in these circumstances raises serious constitutional issues.
A. Psychological Services Are Inadequate.
Despite the need of Jordan Center residents for intensive psychological services, there is no doctorate-level or similarly qualified psychologist working at the Center. The current psychology staff is simply not equipped, by education and training, to address the needs of residents with severe behavior disorders or criminal behaviors.
Current psychology staff have no forensic training, no knowledge of functional analysis, and no knowledge of the interactions of medication or environmental factors upon resident behavior. Without sufficient expertise among Jordan Center

- 4-
psychology staff, the needs of residents go unmet. Further, a reliable data collection system is not in place upon which Jordan
Center professionals can appropriately base treatment decisions.
B. Psychiatric Services Are Inadequate.
Again, despite the fact that Jordan Center residents require intensive psychiatric care, the psychiatric care that is provided residents is cursory at best. Jordan Center staff freely admit that the amount of psychiatric coverage is inadequate to meet the needs of residents. The current psychiatrist servicing the Jordan Center provides no psychotherapy to residents, nor does she maintain a regular schedule that allows her sufficient on-site time for resident contact. The absence of adequate psychiatric services has a direct and detrimental effect on the mental health, and, ultimately, the physical health and safety of the residents.
Ill. Individuals With Disabilities Education Act (IDEA).
The Jordan Center is not providing its school-aged residents with an appropriate education in accordance with the requirements of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1486. The IDEA requires that the Jordan Center provide adequate individualized education plans, along with sufficient "related services" designed to meet the needs of all school-aged residents. Moreover, education must be provided in the "least restrictive educational environment." The Jordan Center does not have a sufficient number of qualified special education teachers to provide a special education teacher in each classroom and does not provide adequate supportive therapies, such as appropriate psychological services. In addition, because the Jordan Center is a totally self-contained program, there is no opportunity for any of the school-aged children to access educational services in a less-restrictive environment. As we found with regard to Clover Bottom, the Jordan Center must enhance its educational and related services and provide for appropriate placement and" services in the local public school systems, where appropriate.
IV. Jordan Center's Institutional Environment Fails To Meet The Needs Of Residents.
In providing care and services to individuals with developmental disabilities, it is essential to furnish them with an acceptable and responsive environment that ensures safety and promotes learning, development, and their overall well-being. Such environments must be functional and serve to enhance the quality of life for the individuals. Currently accepted professional standards require that this environment be the least separate, most integrated setting where the individual's needs can be met. It must be safe, stable, and operate to teach and

- 5-
maintain functional skills, to reduce or preempt the occurrence of behavior problems, and otherwise promote the independent functioning of the individual. The Jordan Center does not meet these requirements. The State's practice of transferring individuals with the most challenging behaviors from other developmental centers and congregating them at the Jordan Center is inimical to currently accepted professional standards that these individuals should be served in appropriate settings that are specifically tailored to address their unique needs.
V. Remedial Measures.
As the findings set forth above are substantially similar to many of those contained in our March 10, 1995, findings letter to you concerning Clover Bottom, the same remedial measures relevant to. these findings set forth in that letter are applicable to the Jordan Center and those remedies are incorporated herein by reference. Please refer to the Clover Bottom findings letter for a thorough detailing of the required remedial measures.
As a further measure, the State must develop a new model to serve the needs of individuals with particularly challenging behaviors, rather than merely transferring them to the Jordan Center. The State must also ensure that residents committed to the Jordan Center following court proceedings are not confined to the Jordan Center for any longer than is legally justified, based upon the original grounds for that commitment.
Sinperely-y-
Deval L. Patrick Assistant Attorney General
Civil Rights Division
cc: The Honorable Charles W. Burson Attorney General State of Tennessee
Ms. Julia Bratcher Superintendent Clover Bottom Developmental Center
John W. Roberts, Esquire United States Attorney Middle District of Tennessee

 
 U.S. v. Tennessee
• mt m • • • • • • • •
MR-TN-004-008
IN THE UNITED DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF TENNESSEE, Donald Sundquist, Governor of the State of Tennessee; John Ferguson, Commissioner, Tennessee Department of Finance and Administration; Marjorie Nell Cardwell, Commissioner, Tennessee Department of Mental Health and Mental Retardation; Dr. A. Jane Walters, Commissioner, Tennessee Department of Education; Stanley Lipford, Superintendent, Nat T. Winston Developmental Center, O. Stephen Roth, Superintendent, Clover Bottom Developmental Center, Robert Erb, Superintendent, Greene Valley Developmental Center,
Defendants.

Civil Action Complaint Civil Rights

COMPLAINT 1. The Attorney General of the United States brings this action on behalf of the United States of America, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. §§ 1997-1997J, to enjoin the named Defendants from depriving persons residing at the Nat T. Winston Developmental Center, in Bolivar, Tennessee ("NWDC"), the Clover Bottom Developmental Center (including the Harold Jordan Center), in Nashville, Tennessee ("CBDC"), and the Greene Valley Developmental Center, in Greeneville, Tennessee ("GVDC") (collectively, "the Centers") of rights, privileges or immunities

secured or protected by the laws and Constitution of the United States.
JURISDICTION. STANDING AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345. 3. The United States has standing to maintain this action pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The certificate of the Attorney General is appended to this Complaint and is incorporated herein. 5. Venue in the United States District Court for the Middle District of Tennessee is proper pursuant to 28 U.S.C. §§ 1391 and 1392.
DEFENDANTS 6. Defendant STATE OF TENNESSEE ("State") owns and operates the Centers, institutions housing individuals with mental retardation or other developmental disabilities. Some of the individuals are also children, elderly and persons with mental illness. 7. Defendant DONALD SUNDQUIST is the Governor of the State and, in this capacity, heads the Executive Branch of the State's government and, among other duties, reviews and approves budget requests submitted by Executive Branch agencies regarding the Centers. He selects and appoints the Commissioners of the
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Departments of Finance and Administration, Mental Health and Mental Retardation, and Education.
8. Defendant JOHN FERGUSON is the Commissioner of the Department of Finance and Administration and, in this capacity, exercises control over budgetary and administrative matters relating to the Centers.
9. Defendant MARJORIE NELL CARDWELL is the Commissioner of the Department of Mental Health and Mental Retardation and, in this capacity, exercises administrative control of, and responsibility for, the Centers.
10. Defendant DR. A. JANE WALTERS is the Commissioner of the Department of Education and, in this capacity, exercises administrative control of, and responsibility for, educational services for school-age children living in the Centers.
11. Defendant STANLEY LIPFORD is the Superintendent of NWDC, and is responsible for the administration and day-to-day operations of NWDC.
12. Defendant 0. STEPHEN ROTH is the Superintendent of CBDC, and is responsible for the administration and day-to-day operations of CBDC.
13. Defendant ROBERT ERB is the Superintendent of GVDC, and is responsible for the administration and day-to-day operations of GVDC.
14. The individual Defendants named in paragraphs 7 through 13 above are officers of the Executive Branch of the State of Tennessee and are sued in their official capacities.
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15. NWDC, CBDC and GVDC are institutions as that term is defined in 42 U.S.C. § 1997(1) (A) , (1) (B) (i) and (1) (B) (v) .
16. Persons residing at the Centers are individuals with mental retardation or other developmental disabilities, and some of the individuals are also children, elderly and persons with mental illness. Persons residing at the Centers are "qualified individual[s] with a disability" under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, 12131.
17. The State of Tennessee, the Tennessee Department of Mental Health and Mental Retardation, and the Centers are "public entities" under Title II of the ADA, 42 U.S.C. § 12131.
18. Defendants Sundquist, Cardwell, Roth, Lipford, and Erb are legally responsible, in whole or in part, for the operation of and conditions at the Centers, as well as the care and treatment of persons residing at those institutions. Defendant Walters is responsible, in whole or in part, for the education of the school-age children living at the Centers. Defendant Ferguson is responsible, in whole or in part, for financial and administrative oversight over the operation of the Centers.
19. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 20. Defendants have failed and are continuing to fail to provide reasonably safe conditions and to ensure the reasonable safety and personal security of the Centers' residents. 21. Defendants have failed and are continuing to fail to
- 4-

provide adequate medical care and related services, including psychiatric care, and physical and occupational therapy, to the Centers' residents.
22. Defendants have failed and are continuing to fail to ensure that the Centers' residents are free from undue or unreasonable restraint.
23. Defendants have failed and are continuing to fail to ensure that chemical and physical restraints are administered to the Centers' residents by appropriately qualified professionals in keeping with accepted professional standards, and are not used as punishment, in lieu of treatment, or for the convenience of staff.
24. Defendants have failed and are continuing to fail to ensure that medications are prescribed and administered to the Centers' residents by appropriately qualified professionals in keeping with accepted professional standards, and are not used as punishment, in lieu of treatment, or for the convenience of staff.
'25. Defendants have failed and are continuing to fail to provide the Centers' residents with that level of training necessary to protect the Centers' residents' liberty interests, including their right to training sufficient to ensure safety and freedom from undue bodily restraint.
26. Defendants have failed and are continuing to fail to provide a sufficient number of adequately trained staff to render
- 5-

essential care, treatment and training to individuals living at the Centers.
27. Defendants have failed and are continuing to fail to maintain professionally based recordkeeping and record review systems to ensure that resident records contain accurate, up-to-date and relevant information necessary to enable staff to provide adequate care, treatment, and training to the Centers' residents.
28. Defendants have failed and are continuing to fail to ensure that the Centers' residents are adequately evaluated for community placement, that those individual residents who professionals determine should be placed in community programs are placed in such programs, and that all residents are served in the most integrated setting appropriate to each resident's individual needs.
29. Defendants have failed and are continuing to fail to meet the requirements of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 e_t sea. . and the regulations promulgated pursuant thereto, by excluding the individuals living at the Centers, by reason of their disability, from participation in or by denying them the benefits of services, programs, or activities, or by subjecting them to discrimination, and by failing to administer services, programs, and activities in the most integrated setting appropriate to their needs.
30. Defendants have violated and continue to violate the due process rights of the Centers' residents guaranteed under the
- 6-

Fourteenth Amendment to the Constitution of the United States bydenying the Centers' residents their rights under Tennessee state law. See, e.g., Tenn. Code Ann. § 33-3-104 and § 33-5-201.
31. Defendants have failed and are continuing to fail to meet the requirements of the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1486, by failing to educate their school-age children in the least restrictive environment appropriate to their needs and failing to provide these children with, inter alia, appropriate, individualized education plans, and adequate related services, including physical therapy and behavioral services.
VIOLATIONS ALLEGED 32. The acts and omissions alleged in paragraphs 20 through 31 violate the rights, privileges and immunities of residents of the Centers secured or protected by the laws and Constitution of the United States, and deprive the Centers' residents of such rights, privileges and immunities. 33. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 20 through 31 that deprive residents of the Centers of rights privileges, or immunities secured or protected by the laws and Constitution of the United States, and cause irreparable harm to the residents.
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PRAYER FOR RELIEF 34. The Attorney General is authorized under 42 U.S.C. § 1997a to seek only equitable relief. WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, practices and omissions at the Centers set forth in paragraphs 20 through 31 above, and to require Defendants to take such action as will bring Defendants into compliance with federal law and provide Constitutional conditions of care to persons who reside at the Centers. The United States further prays that this Court
- 8-

grant such other and further equitable relief as itmay deem just and proper.
Respectfully submitted,

JOHN M. ROBERTS United States Attorney Middle District of Tennessee

TET RENO Ltorney 'United

V

DEVAL

w

Assistant Attorney General

Civil Rights ""Division

^TMJM?^
STEVEN H. ROSENBAUM Chief Special Litigation Section

ROBINSUE FROHBOESE Deputy Chief Special Litigation Section

RpSERT C. BOWMAN *LAURIE J. WEINSTEIN VERLIN P. HUGHES Senior Trial Attorneys Special Litigation Section U.S. Department of Justice Civil Rights Division Special Litigation Section

- 9-

CERTIFICATE OF THE ATTORNEY GENERAL

I, Janet Reno, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. State of Tennessee, et al.. I have complied with all subsections of 42 U.S.C. § 1997b(a)(1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a)(2). I further certify, pursuant to 42 U.S.C. § 1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the laws and Constitution of the United States.

I further certify that I have the "reasonable cause to believe" set forth in 42 U.S.C. § 1997a to initiate this action. Finally, I certify that all prerequisites to the initiation of suit under 42 U.S.C. § 1997 et seq.. have been met.

Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.

Signed this d f day of
Washington, D.C.

1996 at

JANET RENO /Attorney General / of the United States

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

(hr

tRi^^E^^-,^^,,,O^^FF,CE

NASHVILLE DIVISION

w

PEOPLE FIRST OF TENNESSEE et al.
Plaintiffs
V.
THE CLOVER BOTTOM DEVELOPMENTAL CENTER, et al.
Defendants

1 1 1 1 1
) NO. 3:95-1227 ) Judge Echols
)
)
1 1

oar. U.5. b14r t(/CT C U ~ H

Ma

TEN~-

UNITED STATES OF AMERICA,
" Plaintiff,
STATE OF TENNESSEE, Donald Sundquist, G o v e r n o r of the, State of Tennessee; John Ferguson, Commissioner, Tennessee Department of Finance and Administration; Marjorie Nell Cardwell, Commissioner, Tennessee Department of Mental Health and Mental Retardation; Dr. A. Jane Walters, Commissioner, Tennessee Department of Education; Stanley Lipford, Superintendent, Nat T. Winston Developmental Center, 0. Stephen Roth, Superintendent, Clover Bottom Developmental Center, Robert Erb, Superintendent, Greene Valley Developmental Center,
Defendants.

) )

1

) Civil Action

1

3-96.

1

1051

) Civil Rights
1

JUDGE ECHO:

1

SETTLEMENT AGREEMENT BETWEEN PEOPLE FIRST, THE UNITED STATES, AND THE STATE OF TENNESSEE

SETTLEMENT AGREEMENT

I. II. III. IV.
V.
VI.

SETTLEMENT AGREEMENT INDEX

Scope of Settlement

1

Preamble and Guiding Principles

2

State Planning. Implementation and Oversight . . . . 6

Evaluations and Assessment

9

A. Person-Centered Evaluations of Individual

Citizens

9

B. Assessment of Existing Services and Supports . 10

Development of Plans, Services and Supports . . . . 10

A. Development of Individual Support and Transition

Plans

10

B. Development and Enhancement of Community Programs

and Resources

17

C. Community Development Plan

23

D. Development and Implementation of Quality

Assurance Components

27

E. Employee, Vendor and Community Education . . . 29

Institutional Care and Services

3 0

A. Staffing and Staff Training

30

B. Health Care

32

C. Physical, Occupational and Nutritional Management

and Services

39

D. Active Treatment

42

E. Restraints and Restrictive Behavioral Management

Practices

43

F. Provision of Care to Citizens with Hearing, Vision

or Communication Needs

45

G. Physical Environment

46

H. Resident Property

46

VII.

Protection From Harm

46

VIII.

Education for School Age Citizens

51

IX.

First Amendment Rights

52

X.

Monitoring and Enforcement

53

A. Quality Review Panel

53

B. Reporting and Enforcement

60

Schedule of Implementation - Appendix

69

SETTLEMENT AGREEMENT
I. Scope of Settlement A. This Settlement Agreement is entered into by People
First of Tennessee, the United States of America ("Plaintiffs"), and the State of Tennessee ("State Defendants"). The Plaintiff, People First of Tennessee, asserts a class consisting of all persons who presently reside or will reside at Clover Bottom Developmental Center (including the Harold Jordan Center), Greene Valley Developmental Center or Nat T. Winston Developmental Center, and all persons who have resided there at any time since December 22, 1992. The parties agree to the certification of this class. This Settlement Agreement sets forth provisions for restructuring and enhancing Tennessee's state-wide system for the delivery of services to citizens who reside or have resided as of December 1992, or who will reside in the State's three regional developmental centers: Clover Bottom Developmental Center (including the Harold Jordan Center), Nashville; Greene Valley Developmental Center, Greenville; and Nat T. Winston Developmental Center, Bolivar, Tennessee (hereinafter "citizens"). The State Defendants hereby agree to take the following actions to guarantee protection of the federal statutory and constitutional rights of these citizens.
B. This Agreement draws upon the initial settlement agreement proposed by People First of Tennessee and the remedial plans developed and activities undertaken by State Defendants, including the Tennessee Quality Initiative ("TQI"), and

represents a consensus of the parties as to the most appropriate means of providing services to Tennessee citizens with developmental disabilities.
C. This Agreement, voluntarily entered into by the parties, shall be enforceable as an order of the Court by the parties and any member of the class approved by the Court. This Agreement is legally binding on and judicially enforceable by the parties as provided herein and it shall be applicable to and binding upon all of the parties, their officers, agents, employees, assigns and successors. This Agreement may not be used as evidence of liability in any other civil proceeding and is enforceable only by the parties. II• Preamble and Guiding Principles
The parties enter into this Settlement Agreement recognizing that their overriding common interest is in assuring that Tennessee's citizens with developmental disabilities are provided reasonable opportunities to grow and develop, exercise independence, and lead full and productive lives in a safe environment. This Agreement requires the restructuring and enhancement of Tennessee's state-wide delivery of services to these citizens in a way that recognizes the individuality of each citizen and understands the critical role of family members, guardians, and others who provide support and care. The following guiding principles are intended only to be used to aid in the interpretation of the operative provisions of the Agreement, and are not intended to function as independently
- 2-

enforceable standards for meeting the terms of this Agreement. Toward these ends, the parties acknowledge the following guiding principles.
A. Each citizen must be provided services in the least separate, most integrated setting appropriate to meet his or her individual needs.
B. All decisions regarding services for citizens must be person-centered, driven by the individual citizens, family members, guardians, advocates, and other interested persons, and made on an individualized basis by appropriate interdisciplinary teams of competent and qualified professionals with input from those persons.
C. Tennessee's programs and services must be designed to provide all citizens the reasonable opportunity to grow, develop, exercise independence, and to live full and productive lives.
D. Tennessee recognizes the need to provide services to each citizen in his or her home communities and to provide a broad array of living environments and services, including homes adapted to individual needs, health care and therapy, work at regular, meaningful, and compensated employment, opportunities to develop relationships with family, friends, neighbors, co-workers, helpers and support staff and community organizations, and participation in community activities.
E. All citizens must direct their own lives and be enabled to make meaningful choices about matters that are important to the person. Decisions about services and supports for each
- 3-

citizen shall be made by the citizen with the support of parents, guardians, friends and advocates.
F. All programs developed pursuant to this Agreement shall be fully adequate to meet the needs of citizens served by them. No citizen shall be placed in a program which does not fully meet his or her needs and fully protect his or her health and well-being.
G. All citizens must be provided with adequate and appropriate health care services and such specialized health care services as may be needed to ensure their health and well-being.
H. All citizens must be protected from harm and unreasonable risks of harm and be protected from unnecessary physical and chemical restraint.
I. Each child covered by this Agreement must be provided a free, appropriate public school education in the least restrictive, most integrated setting appropriate to his or her needs in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1485. From the date of filing this Agreement, no child shall be removed from the regular educational environment as long as the child's education can satisfactorily be achieved in a regular class with supplementary aids, services and support.
J. All citizens, their families, guardians, care-givers and support personnel must be educated about their rights and responsibilities, and how to exercise them. All citizens shall be allowed to exercise their constitutional
- 4-

rights. In addition, all of these individuals must be provided current information about all available resources and programs, and how to access them.
K. The quality of supports and services, consumer satisfaction, and the prevention of abuse and neglect is best assured by educated and involved citizens, family members, and other individuals who provide supports and services for the citizens.
L. State Defendants agree that a system of accountability, quality assurance and monitoring necessary to implement this Agreement, including quality control systems with internal monitoring; case management, investigations and data collection, are essential to maintaining quality and obtaining favorable outcomes.
M. Implementation of this Agreement will be most successful if there is good communication and collaboration among citizens, families, advocates, guardians, private service providers and government.
N. Resources and expertise now lacking at Tennessee's institutions need to be developed on an expedited basis to ensure that the rights of citizens are protected.
0. Each citizen will have a reasonable opportunity to choose from appropriate service providers, his or her living environments, his or her roommates, and his or her qualified support staff.
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P. In the event a community placement is inappropriate for a citizen, the State will provide an appropriate alternative placement and service system to meet the citizen's needs. Ill. State Planning, Implementation and Oversight
A. The Tennessee Department of Mental Health and Mental Retardation (DMHMR) will continue to implement the statewide initiative embodied in the TQI. The Director of the TQI shall be a state employee. Within the structure of TQI, one individual will be assigned to coordinate statewide activity in each of the following content areas: Monitoring and Evaluation; Protection from Harm; Medical Care; Physical and Nutritional Management; Behavior Intervention; Habilitation; Physical Environment; Community Placement; Investigations of Alleged Abuse, Serious Accidents and Injuries, and Other Alleged Staff Misconduct; and Educational Services for School Age Children.
B. There will be a TQI Coordinator at each developmental center and at each regional Office of Community Services. The State Defendants shall assure that the central office of DMHMR and its regional Offices of Community Services (OCS) are sufficiently staffed to meet the requirements of this Agreement. To that end, within 30 days of filing this Agreement with the Court, the State Defendants shall conduct a needs assessment and develop a plan for the assignment and/or acquisition of staff for the central and regional offices to meet the requirements of this Agreement.
- 6-

C. The TQI Director will be responsible for coordinating and monitoring compliance with all provisions of this Agreement and will identify variance within the system for timely correction.
D. State Defendants shall identify staff at the central and regional offices who will have responsibility for providing information about implementation of this Agreement and for responding to questions and communications from citizens, families and guardians. State Defendants shall publicize the names, office telephone numbers and responsibilities of these persons to all citizens, their families and guardians, and to all appropriate public agencies and private organizations and their personnel. State Defendants shall coordinate their information and public relations activities at the central and regional level with the DMHMR Office of Public Information and Education (OPIE).
E. State Defendants shall employ within one year of the signing of this Agreement, a well qualified and experienced developmental medicine physician to 1) exercise clinical supervision of the developmental center physicians, 2) participate in the selection, evaluation, and retention of medical specialists and other physicians, 3) provide ongoing in-service and individual consultation to the developmental center physicians and community physicians, and 4) participate in the transition planning for all citizens returning to the community from the developmental centers. This individual will
- 7-

be different from the person identified in paragraph IIIA above who is responsible for Health Care under TQI.
F. State Defendants agree to make all reasonable efforts to pursue all sources of available federal and state funding to support the execution of their responsibilities under this Agreement. In selecting among alternatives that meet 1) the requirements of this Agreement, 2) the requirements of federal statutes, and 3) the professional judgment standard for constitutionally appropriate levels of care, it is agreed that it is appropriate for the State Defendants to consider the availability of resources, the cost-effectiveness of various programmatic and service options, e.g. the State's Home and Community-Based Waiver under Medicaid, and the overall burden on the State's budget.
G. The DMHMR will work with colleges, universities and University Affiliated Programs (UAPs) in the State of Tennessee to facilitate the -establishment of courses of instruction and curricula designed to develop a pool of paraprofessionals and professionals with skills needed to provide effective services to citizens.
H. State Defendants shall collect data, and maintain records and recordkeeping systems adequate and appropriate to effectuate the terms of this Agreement. In this regard, State Defendants shall design and implement a statewide system for tracking outcomes for citizens in the service system, as well as other statewide data collection systems provided for herein.
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IV. Evaluations and Assessment A. Person-Centered Evaluations of Individual Citizens 1. Each individual citizen must receive a
comprehensive person-centered evaluation of all of his or her individual medical, behavioral, habilitation and treatment needs, by competent professionals who are members of the IDT. Each citizen who is not recommended for community placement by the IDT. must also receive an evaluation for community placement conducted by professionals independent of the Department of Mental Health and Mental Retardation who are agreed upon by the parties. Collectively, these evaluations will form the basis for each citizen's Individualized plans, including Individual Support and Transition Plans (described herein at Section V.A.) and the health care and behavioral support plans that supplement the Individual Support and Transition Plans.
2. These person-centered assessments must be comprehensive and must analyze what is important to the citizen, his or her vision of the future, and his or her medical, behavioral, vocational, social and spiritual needs. They must draw upon communications with the individual being evaluated and family members or guardians, discussions with friends, support staff, and professionals familiar with the individual, the known medical, behavioral and social histories of the individual, and, when appropriate, evaluations from expert consultants. All assessments made pursuant to this section shall be based upon the individual needs and choices of the citizen and not on present
- 9-

availability of services. Any member of the IDT may make additional recommendations for necessary services for the citizen and such additional recommendation(s) shall be submitted to the Quality Review Panel (as defined in Section X.A. below). The IDT may state its reasons for declining the recommendation(s). In such instances, the Administrator of the institution shall be informed of any necessary treatment decisions.
B. Assessment of Existing Services and Supports 1. State Defendants must make a comprehensive
assessment of the services and supports needed by all citizens and a companion analysis of resources presently available in the community to meet these needs. This analysis shall form the basis of the Community Development Plan (as discussed in V.C.) for expanding or developing the full range of needed services. V. Development of Plans. Services and Supports
A. Development of Individual Support and Transition Plans 1. Each citizen will have a person-centered Individual
Support Plan (ISP) and, if appropriate, an Individual Transition Plan (ITP) (collectively referred to as Individual Support and Transition Plans (ISTPs)). An Individual Support Plan is the document that reflects the person's vision of a desired life. Each ISP shall be based on an individual assessment and include a description of the person's current life, functioning, a statement of the outcomes necessary to achieve the person's desired life, and a description of the actions, supports and services required and the persons and providers responsible for
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achieving the desired outcomes. These plans will be developed byteams consisting of the individual citizen, family members, guardians, knowledgeable support staff, advocates and appropriate professionals, including professionals with expertise in developing and implementing such plans, as well as any person requested by the citizen. The State Defendants shall make reasonable accommodation(s) to include all such persons and must actively seek the input of these persons. The ISP will focus on the individual's needs, reflecting the value of supporting the person with relationships, productive work, participation in community life, personal decision-making, and training to become as self-sufficient as possible. When significant changes occur in a citizen's life situation, corresponding changes shall be made in the citizen's supports and services and shall be reflected in the ISTP.
2. The planning process will result in a written plan containing a detailed description of the identity, location, frequency and duration of the services and supports needed by the individual. Each citizen will choose his or her community service providers from available and qualified community service providers. The process will be coordinated by an Independent Support Coordinator (case manager).
3. Each citizen and his or her parent(s) or legal guardian(s) shall participate in the development of the Individual Support and Transition Plans ("ISTPs") as members of the IDT. As members of the interdisciplinary team, and as
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important participants, the input of citizens and parents or guardians shall be encouraged and respected by the other members of the team.
4. Each citizen and his or her parent(s) or legal guardian(s) shall be informed of the recommendations of the independent evaluation and the IDT, including all feasible alternatives to the provision of services in a developmental center. Each citizen and his or her parent(s) or legal guardian(s) shall be informed of their freedom of choice regarding participation in the Medicaid home and community-based waiver. The State Defendants shall ensure that this freedom of choice is offered and honored as required by federal Medicaid regulations. The State Defendants shall ensure that the citizens are provided services that meet the citizens' individual needs as set out in the ISTP.
5. State Defendants will ensure that citizens are placed in an appropriate and safe manner and that placements in the community are adequate to meet the needs of the individuals as presented in their ISTP. The nature of an individual's disability will not be a factor in the eligibility of that individual for community placement consideration. No citizen will be placed in a nursing home or board and care home unless approved by the Quality Review Panel and agreed to by the parties.
6. Each ISTP shall specify in detail the services and supports needed, including at home, in day activities or work and
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the specialized medical services, to serve the individual citizen in the community. All services and supports shall be integrated into the community to the maximum extent possible to implement effectively the ISTP. Transition services, such as home visits and overnights, as well as any other steps that need to be taken to ensure an orderly and smooth transition for the citizen, must also be included in the ISTP. All staff involved in the transition process must be familiar with the individual who is moving.
7. Pre-service training for community staff must include: (a) First aid, CPR and the Heimlich maneuver; (b) general fire safety and evacuation; (c) incident reporting; (d) training specific to the needs of the individual. Within sixty (60) days of the date of employment, a community staff member's training must include: (a) individual rights and the Americans with Disabilities Act; (b) values and principles of TQI and this Agreement; (c) program planning and implementation; (d) principles of behavioral support; and (e) prevention and reporting of abuse and neglect. No citizen who is medically or behaviorally at risk shall live in a residence unless at least one staff person is on duty who is trained in first aid, CPR and the Heimlich maneuver.
8. For school age children, the ISTP shall also include a statement of the educational program, including related services and transportation services, to be provided each child. No child shall move to the community without an agreed-upon
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Individual Education Program (IEP). Placement notice consistent with the applicable state policy and procedure manual shall be obtained. The State Defendants must ensure that the placement is capable of providing the educational services required by the Individuals with Disabilities Education Act, 20 U.S.C. §§ 14001485 and the citizen's IEP and must coordinate such placement with the local educational agency. Educational services to citizens must comply with all applicable federal and Tennessee state laws with regard to special educational services to disabled children. All placements of children in residential settings must also comply with all applicable Tennessee state laws with -regard to special educational services to disabled children. All children should live with families.
9. State Defendants shall ensure that the community placement for each and every citizen meets the individual needs of the citizen, as identified in the ISTP. Under no circumstances will the speed or type of a placement be governed by anything other than the interests of the citizen being placed. State Defendants may use existing community program vacancies only where they have determined that the program meets the needs of the citizen as identified in the ISTP. State Defendants shall create or contract for a community program that meets the needs of the citizen as identified in the ISTP.
10. The provision of community services and supports to citizens shall be informed/guided by the scope of services provisions and the funding allocations set out in the State's
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Home and Community-Based Waiver under Medicaid which shall be written to support the execution of the State Defendants' responsibilities under this Agreement. The scope of services provisions and funding allocations under the Waiver shall not apply where the community services and supports required by an individual citizen under this Agreement cannot be met through the Waiver, where compliance with this Agreement can be achieved by pursuing other sources of federal funding, or in the event that substantial modifications in the federal Medicaid program significantly change the terms of the Waiver.
11. For each citizen at the developmental centers, an individualized transition profile will be developed by the IDT. The transition profiles will contain at least the following elements: 1) citizen's name, age, and sex; 2) communication ability/method/primary language; 3) diagnoses; 4) intellectual level and adaptive behavior level; 5) mobility; 6) hearing/vision acuity and dental status; 7) mealtime patterns and nutritional status; 8) type and frequency of supervision; 9) environmental adaptations/security needs; 10) general health condition and chronic and emergency health care needs; 11) preferred number and characteristics of housemates; 11) preferred geographic location; 12) a description of the person's important relationships and the name, location and frequency of contact of family and significant others; 13) anticipated adjustment issues; (14) supports and services needed for the individual's safety; (15) the person's vision for the future; (16) a description of the individual's
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personality, skills and interests; 17) the "non-negotiables" for the person, that is, the things that person must have to be happy and that, if not available, would result in obvious distress; 18) the person's spiritual and religious preferences; 19) the person's support needs; and 20) the person's vocational interests.
12. The ISTP and the Independent Support Coordinator's (ISC) placement certification for each citizen will be filed with the Quality Review Panel. The Quality Review Panel will review each individual placement prior to such placement occurring. The Panel shall complete its review and report to the IDT within twenty (20) days of receiving the ISTP and certification from the IDT unless the Panel requests additional time for a particular placement. The Panel's review will include review of relevant supporting documentation and issues raised by members of the IDT. Such reviews shall determine the adequacy of the placement and ensure that the placement meets the individual needs of each citizen. Where the Panel determines that there are major deficiencies with a placement, the placement shall not occur until all the identified major deficiencies are corrected. Any other deficiencies shall be corrected in a timely manner.
13. Community placements shall provide a safe and humane environment in which individuals are provided daily opportunities to learn, develop and maintain skills. All services, including medical and other health related services including, but not limited to, physical therapy, occupational

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•

therapy, necessary technology, dental, speech, visual, hearing, nutrition, and psychology, must be adequate and appropriate to meet the individual needs of the citizens.
B. Development and Enhancement of Community Programs and Resources 1. State Defendants will provide each citizen
appropriate developmental services in the most integrated setting consistent with his or her needs, and in a manner which promotes independence, enhances dignity and is as consistent as possible with the Guiding Principles of this Agreement.
2. State Defendants shall develop community living arrangements for all citizens residing at the institutions for whom such living arrangements are called for by the individualized evaluations set forth in Section IV. A, above, together with the community services necessary to provide the citizens with adequate medical care and supports and services, as defined by the individual person-centered evaluations and planning process that is consistent with professional judgment, until such time as the citizen no longer is in need of such care and services.
3. State Defendants shall develop a support coordination system sufficient to ensure that the needs of each citizen placed in a community-based program pursuant to this Agreement are consistently reviewed and met. A description of this system shall be provided to the parties within thirty (30) days of the filing of this Agreement with the Court. Each citizen shall have an Independent Support Coordinator.
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Independent Support Coordination will be provided by individuals or organizations who are independent of the provision of direct service. No individual Support Coordinator may provide services to more than 30 persons. If a citizen requests a different Support Coordinator, State Defendants will take all reasonable measures to meet that request.
4. State Defendants shall provide or can contract for adequate and appropriate training to the Individual Support Coordinators and to members of interdisciplinary teams in person-centered planning and individual support coordination, and in methods of eliciting active involvement in the process of persons who use services and their families, and in the functions of Individual Support Coordination.
5. Independent Support Coordinators will be in regular, frequent contact with the people on their caseload in their homes, day activities and work sites. Coordinators will observe participation in programs and therapeutic interventions and will evaluate the degree to which services in the individualized plan are being delivered, and whether quality and outcomes are achieved. In no event will ISCs visit each of their assigned citizens less than once every three weeks.
6. State Defendants shall 1) employ expert consultants in the area of specialized transition for individuals with challenging behaviors and dual diagnoses and for individuals with significant medical needs, and 2) implement the recommendations of these experts in the transition process.
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7. State Defendants shall develop and implement a system to evaluate an individual's physical/medical status prior to, during, and after the transition from the developmental centers. State Defendants shall also develop and implement a comprehensive plan for the provision of health care to citizens living in the community. The plan shall specify a variety of strategies to ensure that all citizens are provided adequate medical and related services.
8. State Defendants shall develop and implement a comprehensive plan for mental health services, including inpatient services, medications practice and behavioral support, as well as" the availability of necessary professional services. This plan shall focus on training and developing expertise in this area among professionals, and expanding a crisis intervention system in each region to include emergency response and temporary augmented staff.
9. State Defendants shall develop an emergency respite service system in each region for children and adults. In their first six-month report to the Court and the parties, State Defendants shall include their plan for developing an emergency respite service system in each region for children and adults. This plan shall include specific action steps to be taken to expand any such capacity already available in each region and how that capacity will be accessed and utilized. Wherever possible, emergency respite supports will be provided in the citizen's own home.
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10. The State Defendants shall inform the citizen and/or his or her parent(s) or guardian(s) about his or her option to request a temporary six-month hold on a development center bed. If requested by a citizen and/or his or her parent(s) or guardian(s), at the time of the initial community placement, the State Defendants will hold a bed in a developmental center for six months thereafter, as close to the citizen's home county as possible, for as long as the State continues to provide services at the developmental centers. If the citizen and/or the parent(s) or guardian(s) believes that the community placement or service is not meeting the citizen's needs during this period, then they may request that the State Defendants timely provide a choice of alternative placements or services. The State Defendants will immediately respond to such a request in accordance with the provisions of Section V.B.ll of this Agreement. If, at the end of this six-month period, the community placement continues to meet the individual needs of the citizen, then the State Defendants will cease holding the developmental center bed. All community placements shall be made in accordance with applicable federal law and regulations. The citizen and/or the parent(s)/guardian(s) shall have all the due process and fair hearing rights provided for therein.
11. A request can be made at any time to change a community placement or service based on assertions of inadequate services or harm to the citizen. In response to such a request,
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the State Defendants shall immediately undertake the following actions as necessary to resolve the problem:
a. ensure that the Independent Support Coordinator has taken all reasonable efforts to solve the problem; b. convene the IDT for review and assessment of the current placement and the Individual's ISTP, including an assessment of the support services and of the performance of community providers; c. initiate and/or review efforts to resolve failings and/or perceived failings in the support •" services with the citizen and/or the parent(s)/guardian(s), the community providers, and the State; d. ensure that all alternatives have been and are actively explored, including utilization of the respite services to be developed in accordance with this Agreement, and have been properly assessed for appropriateness; and e. take whatever steps are necessary to resolve the situation either by addressing the failings in the current community placement (including an assessment of the adequacy of provider participation) or by providing or developing an adequate and appropriate alternative placement.
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In addition to the steps enumerated above, if a request is made that a citizen return to a developmental center, the IDT shall determine whether the citizen's current provider is providing adequate services and if not, whether the inability to provide the requisite support services and to protect the citizen's well-being can be resolved. If the inability cannot be resolved, the State Defendants shall, on a priority basis, ensure that the citizen's ISTP is reassessed and begin to develop an appropriate alternative living environment, including the services provided to the citizen. Within 3 0 days of the signing of this Agreement, the State Defendants shall develop policies and procedures (including grievance procedures) addressing changes in community placements and the return by citizens to the developmental centers. These policies and procedures will be reviewed and approved by the Quality Review Panel. The State Defendants shall track complaints regarding adequacy of services by particular providers, shall analyze this data for trends, and shall make this data available to the IDT and the Independent Support Coordinator, and the Quality Review Panel.
12. The State Defendants shall ensure that, for each citizen for whom the IDT has requested an advocate, an advocate is appointed through a process developed by the State Defendants after consultation with the parties, and that, for each citizen who needs a legal guardian, a legal guardian is appointed.
13. State Defendants shall allow and, to the extent possible, facilitate citizens to participate in community
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activities and communicate and meet with other citizens and citizen organizations, advocates, and members of religious and community organizations.
C. Community Development Plan 1. The State will develop a comprehensive
implementation plan to develop the community services and supports consonant with this Agreement (the "Community Development Plan"). The development of this plan shall include a participatory planning process that will encompass representatives of all "stakeholders" in the service system. Stakeholders are those who receive, provide, administer and monitor services and supports, including representatives of the parties to this Agreement, individuals in leadership positions within the State of Tennessee, citizens, family members and guardians, service provider and vendor executives and support staff. The Community Development Plan shall address at least the following areas:
a. Infrastructure (system design, agency roles, governance, resource development)
b. Support Coordination c. Financing and fiscal management d. Service provider and vendor development e. Housing f. Emergency and crisis intervention g. Access to medical care and therapy services h. Mental health/behavioral support
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i. Education for school age children j. Specialized Services k. Employment 1. Transportation m. Citizen monies and personal property n. Recreation and leisure o. Family support p. Quality assurance, data collection, abuse and
neglect prevention, investigations and monitoring q. Advocacy and grievance process -" r. Community involvement and public education 2. The process for developing the State Defendants' quality assurance portion of the Community Development Plan and the quality assurance plan for the developmental centers shall address the following areas: a. High-quality Individual Support Planning and regular review of ISPs. b. Regular monitoring of service delivery and followup by support coordinators. c. Strengthening and empowering citizens with disabilities and their families through effective advocacy and consumer education. d. An easy-to-access process for dispute mediation. e. Standards that express clear expectations for performance.
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f. Increasing competence through training and technical assistance that is timely, practical and truly reflective of emerging knowledge.
g. An administrative structure that enables and promotes the development of quality.
h. Automated management information systems that make timely, accurate and dependable information available to management and field operations.
i. Performance contracting and enforcement of standards through contract compliance.
j. The development of effective mechanisms to detect, investigate and prosecute abuse and neglect.
3. Representatives of these stakeholders shall participate in the establishment of specific and measureable goals in each area that are consistent with the provisions and principles of this Agreement. In each subject area, the implementation plan shall set forth specific objectives, assignments, implementation strategies and target dates. The Plan shall also identify the obstacles to the accomplishment of each goal and the methods and means, including resources, necessary for overcoming those obstacles. "Resources" include funding, personnel, and training and technical support.
4. To assist the participants in planning for support needed by citizens, State Defendants shall invite, encourage and otherwise facilitate participation in the planning process at the local level of individuals and groups from the citizens' home communities with knowledge and expertise in housing,
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transportation, health care and other needs of citizens (e.g.. members of local planning commissions, housing authorities, regional transportation authorities, chambers of commerce, boards of realtors, educators, and health care providers).
5. The State Defendants will establish a Communications System for all stakeholders of this Agreement within 90 days of the signing of this Agreement. The System will include at a minimum the following elements:
a. An "800" phone number for information on all provisions of the Agreement.
b. A monthly newsletter to parents, staff and other interested groups as identified, highlighting progress and updated names and phone numbers for coordinators of each section of this Agreement.
c. A published summary of each Quarterly Status Conference.
d. Presentations by the Advisory groups TMAR, AAMR, and Trade Organizations.
e. A summary annual report detailing areas of progress and areas of difficulty.
The Draft Communications System will be distributed to the parties for comments. All comments will be given good faith consideration.
6. State Defendants shall implement the Community Development Plan once it is developed.
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D. Development and Implementation of Quality Assurance Components
.1. State Defendants shall survey all community-based programs and facilities operated or supported by state funds in which former residents of the centers are placed pursuant to this Agreement at least annually to determine compliance with requirements of this Agreement and their ISTPs. System reviews of the quality of services and supports available to these former center residents also must occur on an annual basis in accordance with the provisions of Section X.A. State Defendants shall ensure that all deficiencies found in community placements are remedied promptly. The requirements of this Agreement shall be reflected in any future contracts or agreements or any renewal or amendment of a contract agreement with service providers and vendors. State Defendants shall address continuing deficiencies in community placements by ensuring compliance by the service providers and vendors with this Agreement.
2. The Director of TQI shall develop and disseminate annually to citizens, their families and guardians a "consumer satisfaction" survey. The first such survey shall be sent out within three months of the filing of this Agreement with the Court. The Director of TQI shall be responsible for collecting and collating the responses to those surveys, and the State Defendants shall take action to resolve concerns expressed in the surveys.
3. All developmental centers, community-based programs and facilities covered by this Agreement shall meet state and
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local licensure requirements, DMHMR regulations and other
applicable codes. State Defendants shall also ensure that all
such community-based programs meet the requirements of State
Defendants' waiver plan and State Defendants' most current
Quality Assurance Guidelines for Community Mental Retardation
Services, consistent with this Agreement.
4. This Agreement contemplates that the quality of
support and services provided in the developmental centers and in
the community will be assured by a variety of formal and informal
means, including:
a. State Defendants' existing policies and procedures;
b. the development and implementation by DMHMR of revised quality assurance policies and guidelines pursuant to TQI and this Agreement/
c. further education of citizens, their families, support staff and the public regarding their rights and responsibilities;
d. the establishment of and oversight by the TQI Director;
e. the establishment of and oversight by the Independent Support Coordinators;
f. the involvement and oversight by advocates;
g. the establishment of and oversight by the Quality Review Panel; and
h. the establishment of and oversight by a statewide network of trained investigators reporting to the Investigations Coordinator in the Office of Investigations.
5. For the first two (2) years following this
Agreement, State Defendants shall conduct a thorough mortality
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review of deaths of any citizen in the community. Thereafter, State Defendants shall conduct thorough mortality reviews of suspicious or unexpected deaths. On a quarterly basis, the Director of TQI shall compile morbidity and mortality data.
E. Employee, Vendor and Community Education 1. Within 120 days of approval of this Agreement,
State Defendants shall develop and submit to the parties and the court a training plan to develop the skills and competencies required for implementation of this Agreement. If any party objects to the plan, the parties shall meet and confer to resolve any objections.
2 . All training required by this Agreement shall be conducted by individuals with demonstrated expertise in the particular field, documented as to time, duration, attendance and results, and all training, unless for good cause, shall be competency-based. State Defendants shall document each training session and identify persons trained. All new employees shall be provided appropriate training in a timely manner.
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VI. Institutional Care and Services A. Staffing and Staff Training 1. State Defendants shall ensure that a sufficient
number of qualified nurses, physicians, psychiatrists, psychologists, registered physical therapists, and other staff are employed at each developmental center to provide adequate and appropriate care and services to the citizens and to fulfill the requirements of this Agreement.
2. State Defendants shall employ a sufficient number of registered and licensed practical nurses to provide adequate nursing services to citizens. The use of temporary staff and staff overtime shall be kept to an absolute minimum. Within three months of the signing of this Agreement, State Defendants shall fill all nursing vacancies. Thereafter, the State Defendants shall use their best efforts to see that vacancies are filled within one month of their occurrence. State Defendants shall ensure that all staff are appropriately trained. This training will include training all clinical and direct care staff to recognize signs of mental illness and training all medical staff and direct care staff in emergency procedures. Nurses will monitor regularly citizens' health status, including changes in activity levels, weight gain or loss, skin tone and color, muscle tone, gait, movement, sleep and unusual incidents. They will coordinate the identification and communication of health concerns, and will teach and train citizens to participate in their own health care and in health care decision-making.
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3. State Defendants will employ a Chief Behavior Analyst at each institution with the following qualifications: a) a Ph.D. in psychology specializing in applied behavioral psychology, and b) experience assessing the behavior treatment needs, including functional analysis, of developmentally disabled persons with severe maladaptive behavior, developing, implementing and evaluating individual Behavior Treatment Programs (BTPs) for such individuals, and supervising other behavior analysts in these professional practices.
4. State Defendants shall employ the services of Masters level behavior analysts sufficient to provide adequate behavioral"services to all citizens. Behavior analysts shall ensure that citizens have behavior plans and adequately trained staff; that behavior programs are implemented and documented; and that outcomes of behavior programs are evaluated and revised by the team when necessary.
5. Absent agreement of the parties, State Defendants shall employ qualified primary care physicians sufficient to at least meet a physician to citizen ratio of 1 to 100 at each regional center. State Defendants shall employ a qualified medical director for each center, who will not be counted in this ratio.
6. State Defendants shall employ or retain the services of qualified medical specialists to provide adequate and appropriate care and services to all citizens who need such care and services.
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7. State Defendants shall employ or retain the services of qualified Physical Therapists (PTs), Occupational Therapists (OTs) and Certified Physical Therapy Assistants (CPTAs)/Certified Occupational Therapist Assistants (COTAs) to provide adequate and appropriate care and services and hands-on interventions to all citizens who need such care and services.
8. State Defendants shall train all medical staff in medical emergency procedures. State Defendants shall also train Development Technician Trainers (DTTs) and Developmental Technicians (DTs) who regularly provide direct care services in basic emergency procedures, i.e., First aid, CPR and the Heimlich maneuver. The State Defendants shall evaluate, through the use of drills, the competence of all participating staff to perform emergency medical procedures, document such evaluations and provide such additional training as the evaluations indicate is necessary to ensure staff competence in emergency procedures. Further, the State Defendants shall make medication and equipment commonly used in emergencies readily available to qualified staff in each residential unit.
B. Health Care 1. State Defendants shall provide to citizens adequate
health care, including adequate and appropriate medical, nursing, dental and mental health care, and physical and nutritional management services, and medical specialty services.
a. State Defendants shall conduct thorough mortality reviews of every citizen death. Absent agreement of
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the parties, the mortality reviews shall be completed within forty-five (45) days of the death, and shall include specific improvement plans as indicated. Each Center's medical director shall be responsible for implementing improvement plans and ensuring that the needed data collection systems are in place.
b. State Defendants shall hire and utilize a consultant to conduct external peer reviews of medical and nursing services at least annually. The results will be used to evaluate State Defendants' medical and nursing practices and training needs.
c. The medical and nursing directors at each center shall develop and implement a bi-monthly internal peer review process. Results of the review will be provided to the center superintendent and the TQI director.
d. State Defendants shall coordinate an interfacility peer review process undertaken by professional staff of the centers touring the other centers. One inter-facility peer review per quarter will be conducted. Each center will send designated physicians and nurses to another center to conduct a peer review of that center. The schedule of such reviews shall be varied so that representatives from each center review all others. Summation conferences will follow each of these internal peer reviews and the results will be submitted to the center administrators and the TQI Director. The results will be used to improve health outcomes of citizens and to evaluate the training needs of medical personnel.
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e. State Defendants shall ensure that primary care physicians are responsible for and oversee the provision of adequate and appropriate health care for the citizens for whom they are responsible. Toward this end, primary care physicians shall, in a timely manner: 1) evaluate each citizen for whom they are responsible; 2) determine what specialized medical services these citizens need and ensure that citizens receive such services; and 3) take appropriate action to respond to recommendations of outside medical specialists and laboratory findings, documenting what action has been taken and the reasons therefor. Physicians also-will assure that citizens have coordinated but minimally intrusive health care; that they have routine side effects screening; that citizens' health changes are brought to the attention of the physician in a timely manner; that citizens have routine blood studies; and that they have regular access to medical care and routine examinations.
f. For each citizen, medical staff shall: (1) Develop a comprehensive problem list and
an annual medical plan that identifies the citizen's health goals and the expected outcomes for care and treatment; and will participate actively in the interdisciplinary team process to prevent health risks to citizens, including, but not limited to, the prevention of injury and abuse.
(2) Provide adequate and appropriate medical management for citizens with feeding disorders, and work cooperatively with the Clinical Nutritional Management Teams,
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appropriate medical and dysphagia specialists and the interdisciplinary team to define and move toward expected eating outcomes, ensure that citizens are fed safely and properly obtain needed medical and/or surgical interventions, and receive adequate nutrition and hydration.
(3) Provide adequate and appropriate medical management, including timely and appropriate interventions or referrals for citizens with acute orthopedic trauma or chronic orthopedic disorders, and work cooperatively with physical and occupational therapists and the interdisciplinary team to prevent citizens from suffering unnecessary pain, disfigurement, or loss of mobility and function, with the understanding that the goal of citizens' physical therapy programs shall be to enhance the capacity of the individual to function, i.e., to enhance the ability of the person to move, sit upright and participate in activities, and to prevent loss of function and range of motion.
(4) Provide adequate and appropriate medical management for citizens with seizure disorders, and work cooperatively with neurology consultants and the interdisciplinary team to ensure the citizens receive treatment that is therapeutic, safe, and effective.
(5) Provide adequate and appropriate medical management for citizens who have behavior disorders or who are receiving psychotropic medications; and work cooperatively with the interdisciplinary team and with staff and consulting psychologists, behavioral analysts, psychiatrists, and mental
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health counselors to ensure citizens receive appropriate and effective treatment services.
(6) Provide adequate and appropriate emergency medical care.
(7) Participate in transition planning and implementation of the transition plan for citizens for whom they are the attending physician, including assessing the medical strengths and weaknesses of the citizen being considered for transition, analyzing the medical resources that the citizen may require in the community, and assisting in the determination of the appropriateness of the community setting chosen for the citizen.
(8) Ensure that all mechanical restraints are safe, medically appropriate for the individuals on whom they are used, reviewed by the team on a regular basis and used consistent with professional judgment.
g. State Defendants will ensure that medical specialists provide adequate and appropriate medical care, and that their recommendations are given prompt and express consideration.
h. Citizens receiving two or more anticonvulsant medications, or citizens who have had five or more seizures in the preceding 12-month period will be examined by a consulting neurologist at least annually. Primary care physicians will refer citizens for neurology consults more often when appropriate.
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i. State Defendants shall ensure that citizens with seizures are prescribed the fewest number of different medications appropriate for effective seizure management. Citizens who have been seizure free for two years or more will be assessed, in consultation with the interdisciplinary team and a neurologist, as to the appropriateness of medication withdrawal. The decision as to the appropriateness of medication withdrawal, as well as any withdrawal plan and results, will be documented in the citizen's medical record.
j. State Defendants shall not administer medications by the intramuscular (IM) route for citizens in status epilepticus. Citizens in status epilepticus shall be immediately transported by ambulance to emergency care at an acute care hospital. Anticonvulsant medications will be administered to citizens in status epilepticus via intravenous (IV) or rectal routes only. Citizens who are potentially at risk for status epilepticus or to periodic prolonged series of seizures will be identified, and a plan developed by the primary care physician and neurologist which sets out planned or recommended treatment for that individual if status or a series of seizures occur.
k. State Defendants shall track seizures by accurately recording each seizure.
1. State Defendants shall develcp, negotiate, and implement agreements with hospitals that routinely serve citizens
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to require the timely transfer of adequate and accurate records to and from acute care hospitals.
m. State Defendants shall ensure that center physicians appropriately prescribe medications and monitor blood levels and drug side effects.
n. State Defendants shall provide citizens with appropriate and adequate dental care. Citizens will have access to preventative and restorative treatment. Staff will be trained to support citizens' dental needs.
2. Mental health care - State Defendants shall provide adequate and appropriate mental health care to citizens who need such care, including psychiatric and behavioral services. State Defendants shall ensure that the use of psychotropic drugs is appropriate and linked to a mental health diagnosis, and that medications of any kind shall not be administered as punishment, in lieu of a training program, or for the convenience of staff.
a. State Defendants shall document that, prior to using the psychotropic medication, other, less restrictive techniques have been systematically tried as part of a training program and have been demonstrated to be ineffective. Such documentation in the citizen's record must include reliable behavioral data and analysis of outcomes for the citizen.
b. Prescription medication may only be administered upon order of a physician and psychotropic medication only upon order of a physician after consultation with
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a psychiatrist, except in case of an emergency use of psychotropic medication, which must be reviewed by the psychiatrist within 24 hours of the order being written. The psychiatric consult shall be obtained to determine whether the use of any medication is supported by a diagnosis of mental illness (or other medical reason), that the diagnosis is justified by the citizen's history as set forth in his/her written record and current symptoms and that the dosage is appropriate. In making this determination, the consulting psychiatrist shall make a complete assessment of the citizen, including observation of the citizen, examination of the citizen's medical and behavioral record, and consultation with the citizen's primary care physician, psychologist, behavior analyst, and other IDT members, including direct care staff.
c. State Defendants shall institute and implement policies which require the recordation in each citizen's record and the separate report to appropriate professional staff of any medication error or adverse drug reaction. This information shall be used for trend analysis, and identification of corrective measures for error rates exceeding professional standards.
C. Physical, Occupational and Nutritional Management and Services 1. State Defendants shall ensure that all citizens who
are nutritionally at risk are fed and otherwise cared for safely, adequately, timely, and appropriately. State Defendants will not allow dangerous feeding practices and any feeding practice that
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poses an undue risk to harm to any citizen. State Defendants will not allow citizens to be fed in any unsafe position or faster than they can safely chew and swallow food.
2. State Defendants will establish one Clinical Nutritional Management Team at each developmental center for every 25 citizens requiring nutritional management.
3. State Defendants shall develop, in accordance with the treatment strategy, and implement a nutritional management plan for each citizen including: positioning the citizen (before, during, and after mealtimes) and specific instructions to the person feeding and/or supervising the citizen, and information to food service staff regarding consistency of diet or other dietary related information.
4. State Defendants shall train the staff who will feed the citizen to competency on each specific feeding technique, procedure, and/or instruction contained in the individual nutritional management plan, including positioning. No staff person shall be allowed to feed a citizen with documented dysphagia or related problems until the staff person has demonstrated competency in the particular feeding techniques, procedures, and/or instruction for the citizen contained in the citizen's individual nutritional management plan.
5. State Defendants shall monitor the staff during mealtimes to ensure that the nutritional management plan is implemented as designed.
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6. State Defendants shall, at least quarterly, have the Nutritional Management team review each citizen's nutritional management plan and the implementation of the plan, assess the effectiveness of the plan, report on progress to the Inter-Disciplinary Team, and make revisions to the plan, as needed, to improve effectiveness and ensure that the citizen is fed safely and properly.
7. State Defendants shall develop and provide, and fabricate if necessary, professionally designed therapeutic support devices and services, including adaptive equipment, positioning, and other assistance necessary to protect each citizen from harm and regression. Devices whose continued use will have the effect of increasing deformity shall not be used, unless expressly permitted by the IDT.
8. State Defendants shall provide adequate and appropriate physical management and occupational therapy services to all citizens who need such services, including proper positioning, adequate equipment, including wheelchairs, and adequate physical therapy interventions. The goal of each citizen's physical therapy program shall be to enhance the capacity of the individual to function, i.e., to enhance the ability of the person to move, sit upright and participate in activities, and to prevent loss of function and range of motion.
9. State Defendants shall ensure that PT, education and direct care staff are trained to enable them to properly position citizens in their wheelchairs or other adaptive
- 41 -

equipment. State Defendants shall initiate regular, professionally designed and taught in-service training for direct care workers and other staff, including orientation training for managers and administrators in positioning, transferring, and implementing physical therapy programs for physically handicapped citizens.
10. State Defendants shall ensure that staff actually monitor and correctly position citizens throughout the day and implement a quality assurance program to monitor that citizens are correctly positioned according to their individual plans throughout the day.
D. Active Treatment 1. State Defendants shall develop and deliver a
professionally designed, consistently and aggressively implemented program of training, treatment, and other services for each citizen to enable him or her to function with the greatest self-determination and independence possible.
2. State Defendants shall provide adequate Applied Behavior Analysis (ABA) services for all developmental center citizens. State Defendants shall develop and implement for each citizen an individualized support plan that is designed by a competent and appropriately constituted IDT, that is based on functional assessment and consistent with the person's vision of his or her future, that develops or maintains his or her functional skills, including skills in the areas of communication, self-help, safety and daily living and that
- 42 -

reduces or eliminates unreasonable risks to personal safety or unreasonable use of bodily restraints.
3. State Defendants shall implement procedures to assess and evaluate each citizen's progress on behavior and training programs, including the collection of reliable data on the target behaviors and necessary staff training.
4. State Defendants shall develop and implement procedures to review the progress of each citizen at least quarterly in order to ascertain the adequacy and effectiveness of the training programs. Review of citizens' progress under a training program that includes a reduction component to reduce aggressive or dangerous behaviors must occur at least monthly, or more frequently in the case of severe self-injury or aggression, in order to ascertain the adequacy and effectiveness of the behavior programs. Programs found upon review to require modification must be modified.
E. Restraints and Restrictive Behavioral Management Practices. 1. State Defendants shall provide a safe environment
for each citizen, and shall ensure that unnecessary or inappropriate restraints are not used on citizens.
2. State Defendants shall ensure that every behavior program that utilizes restraint or time out must specify: i) the behavior(s) that initiates the use of the restraint or time out; ii) positive behavior(s) to be taught to the citizen to replace the behavior(s) that initiates the use of the restraint or time out or other program to reduce or eliminate the use of the bodily
- 43 -

restraint or time out; iii) the restriction, i.e.. restraint or time out authorized, including the restriction's duration; iv) the professional responsible for the program and the direct care workers authorized to implement it; and, v) the frequency with which behavioral data is to be recorded by direct care workers.
3. State Defendants shall, in order for a restrictive procedure to be included in a behavior treatment program, document in the citizen's record that other, less restrictive techniques were systematically employed as part of a professionally designed training program and were ineffective.
4. State Defendants shall document each time restraints or time out is used and the length of time for each use. If emergency restraints are used for a citizen two or more times in one month, the interdisciplinary team shall meet to review the use of emergency restraint. The BMC shall conduct a monthly review of all use of restraint and all use of time out. The Human Rights Committee shall also review restraint usage on a regular basis. Each committee shall make recommendations with respect to the appropriateness of the use and continued use of the restraint. Such recommendations shall be promptly implemented.
5. Prone restraints or take downs shall not be employed.
- 44 -

6. Unless approved by the Human Rights Committee, citizens' personal property and freedoms shall not be used as contingencies for behavior management programs.
F. Provision of Care to Citizens With Hearing, Vision or Communication Needs 1. State Defendants shall provide adequate and
appropriate hearing, vision, and communication services and necessary technology to citizens.
2. State Defendants shall assess, evaluate, develop, and implement programs, including the use of augmentive devices as needed, for each citizen with communication deficits, including deaf or hearing impaired citizens, to teach appropriate communication skills. For hearing impaired citizens for whom amplification is effective, amplification devices shall be provided, along with any training necessary to allow the citizen to use or become accustomed to wearing such devices. On units housing a citizen who is being taught sign language, the State Defendants shall make best efforts to have at least one direct care staff person on each shift who knows or is learning sign language.
3. State Defendants shall assess and evaluate each citizen with a vision impairment to determine his or her need for eyeglasses. Where needed, eyeglasses shall be provided along with training designed to ensure the citizen can and does wear them. State Defendants must provide training and services for individuals who are blind and provide assistive devices, such as canes or other trailing devices.
- 45 -

G. Physical Environment 1. State Defendants shall provide for each citizen a
safe environment that meets the needs of the citizen and ensures the greatest amount of freedom and opportunity with the least amount of risk.
2. State Defendants shall ensure that all local, state and federal codes and regulations governing fire safety, health, infection control and sanitation are complied with.
3. State Defendants shall ensure that the environment is adequately hazard free, clean and in good repair.
4. State Defendants shall comply with the quality assurance mechanisms outlined in State Defendants' TQI.
H. Resident Property 1. State Defendants will ensure citizens' right to
own, keep and use reasonably personal possessions and property. VII. Protection From Harm
A. State Defendants shall immediately act to ensure safe and humane living environments for citizens and protect citizens from abuse, mistreatment and neglect.
B. The State Defendants shall identify immediately all citizens who are at risk of serious harm or causing serious harm to others, because of significant health care needs, selfinjurious or aggressive behavior, or any other cause. Those persons' teams shall meet immediately to develop strategies and interventions to reduce the risk of harm. The team shall review the actions taken and the outcomes for the person at least
- 46 -

monthly and revise the person's plan and services if indicated. The Chief Behavior Analyst or consulting behavior analyst,
the interdisciplinary team or a physician shall require adequate staffing to ensure safety. The assigned staff shall be specially trained in the appropriate behavior management and teaching techniques applicable to the citizen for whom they are providing the coverage.
C. State Defendants will provide adequately trained and supervised direct care staff to meet a 1:4 (day), 1:4 (evening) and 1:8 (night) staff-to-client ratio at each developmental center. All direct care staff will be trained to recognize and report abuse, neglect, and mistreatment. This ratio shall be calculated by counting only staff actually on duty at each center. Staff engaged in housekeeping or other chores may not be counted to meet the staffing ratio. Furthermore, staff assigned to 1:1 interaction with a particular citizen may not be counted in the staffing ratio for the other citizens in the area.
D. State Defendants shall design and implement a data collection system for tracking incidents of injury and suspected or alleged abuse or neglect statewide.
E. State Defendants shall prepare a monthly injury report for each center that describes type of injury, citizen(s) involved, location, shifts and staff present or on duty for the purpose of identifying factors leading to such injuries. All reports, including recommendations to reduce the incidence of injury, shall be provided to the Investigators and reviewed by
- 47 -

the Abuse and Neglect Prevention Committee and the Behavior Management Committee of each facility for that facility's injuries.
F. State Defendants shall ensure citizens are protected from abuse, neglect, and preventable injuries, unnecessary restraint and restrictive procedures, and unnecessary medication through prevention, reporting, investigating and resolution techniques. Prevention includes elements of staff training and supervision. Systematic review of information about abuse, neglect and injuries shall occur. The causes of abuse, neglect and injuries shall be identified so that the conditions and practices contributing to the occurrence of such incidents will be eliminated.
G. The State Defendants shall establish and adequately staff an Office of Investigations (01). The 01 will have an Investigations Coordinator who will coordinate all investigations in the community and in the institutions. The Investigations Coordinator must have experience in investigations and law enforcement, and will report directly to the Assistant Commissioner for Mental Retardation Services. The Investigations Coordinator shall establish regular communications with the Tennessee Bureau of Investigation, the Tennessee Comptroller's Office and local and federal law enforcement. Toward this end, the Investigations Coordinator shall submit quarterly reports on the activities of the 01 to TBI for at least the first two years after the signing of this Agreement unless otherwise shortened by
- 48 -

the parties. Confidential copies of these quarterly reports shall also be provided to counsel for the parties. The Investigations Coordinator, at his or her discretion, may redact from the copies sent to the parties any information the release of which the Investigations Coordinator believes may compromise an ongoing investigation. The United States Department of Justice, under its responsibilities as a law enforcement agency, reserves the right to request and obtain any redacted information.
H. State Defendants shall assure that the Office of Investigations is sufficiently staffed at the regional level to promptly and fully investigate all allegations of abuse and neglect. The investigators will be responsible for investigating abuse, mistreatment, and neglect, including injuries they suspect may have resulted from abuse, mistreatment, or neglect and all serious injuries of an unknown cause. For purposes of this section, the terms abuse, mistreatment and neglect shall be interpreted broadly. The Regional Investigators shall report directly to the Investigations Coordinator.
I. The qualifications of Investigators will include: 1. Professional training and experience in conducting investigations; 2. Demonstrated skill in investigation techniques and in interviewing; and
- 49 -

3. Training on conducting investigations in institutions serving developmentally disabled persons.
Such qualifications and training may be obtained after an Investigator is hired, but before the Investigator is assigned a case to investigate.
J. Investigators will publish prominently their names, phone numbers, and current photographs in all residential, program, and office areas and distribute relevant written materials to all citizens, staff, vendors, parents or guardians, advocates, and appropriate law enforcement and community groups. Investigators will report in writing all allegations of abuse, mistreatment, or neglect and the Investigator's determination that the allegation was founded or unfounded to the Investigations Coordinator, and the center's Superintendent and Abuse and Neglect Prevention Committee, or the DMHMR regional director and the head of the responsible community service provider.
K. The State Defendants will form an appropriately constituted Abuse and Neglect Prevention Committee at each of the regional centers to provide effective review of abuse and neglect allegations and make recommendations for corrective actions.
L. All direct care staff will be trained to appropriately supervise citizens in order to reduce abuse, neglect and mistreatment. All direct care staff will be trained to recognize and report abuse, neglect and mistreatment.
- 50 -

VIII. Education for School Age Citizens A. The State Defendants shall, within the time frames set
forth, take the following measures to comply fully with the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. §§ 1400 et seq., and applicable state law. The requirements of this section of the Agreement shall apply to all school-age children currently or formerly residing at the developmental centers.
B. State Defendants shall retain the services of a consultant(s) with proven expertise in the field of special education services to evaluate and make recommendations regarding school services to citizens. State Defendants shall implement those recommendations to the extent possible and provide the consultant reports to each involved local education agency (LEA's). State Defendants will assist LEA's in learning and accessing current practices in education under the IDEA and its implementing regulations.
C. The State Defendants shall assure that students are placed in the least restrictive environment appropriate for each individual child and assure the availability of supplementary aids and services to each student/child when appropriate including modification and adaptation of the regular curriculum, integrated therapies and support from paraprofessionals.
D. The State Defendants' consultant's study shall include the appropriateness and practicality of providing extended school
- 51 -

year services and contracting with the local educational agency on services for students with challenging behavior.
E. Upon entry of the Order approving this Agreement, State Defendants shall place all school age children in appropriate educational programs as specified in their IEPs. Whenever appropriate and consistent with the child's IEP and placement in the least restrictive environment, the child shall be educated in local public school systems. State Defendants shall provide sufficient consultation expertise to the LEAs. IX. First Amendment Rights
A. A citizen, advocate, guardian or state employee may not be precluded or discouraged from exercising his or her rights under the First Amendment to the Constitution of the United States.
B. State Defendants shall develop and implement within 3 0 days, in consultation with the parties, a policy on enabling class members to communicate, associate and assemble with others of their choice, and enabling class members to meet and speak privately with friends and others of their choice.
C. State Defendants shall immediately communicate this policy to all staff members at state developmental centers and to contract community services agencies and shall include a provision as a requirement in all future contracts (including amendments) with community services agencies serving class members, which provision shall provide that community services
- 52 -

agencies agree not to preclude or discourage class members from exercising their First Amendment rights.
D. State Defendants shall within thirty (30) days establish a process of disciplinary sanctions for staff members who violate this policy by including such violations as an offense for which disciplinary action may be taken under State Defendants' personnel policies.
E. State Defendants shall allow class representatives, other advocates and members of religious organizations and community organizations reasonable opportunities to communicate with all class members and shall afford all class members reasonable- opportunities to participate in community activities. X. Monitoring and Enforcement
A. Quality Review Panel 1. The Quality Review Panel (Review Panel or Panel)
shall be constituted by three individuals mutually agreed upon by the parties with recognized expertise in the field of developmental disabilities, transitional and community services. Two members will work part-time. The third member will Chair the Panel and will work full-time in that position for at least the first two years following the Court's entry of this Agreement. For selection of the members of the Panel, each party may submit a list of three names with their respective resumes. The parties shall consult on all of the names submitted and agree upon the three members for the Panel. If the parties are unable to agree, the Court (Magistrate Judge) shall select a panel of experts from
- 53 -

the persons nominated by the parties. If any of the Panel members are unable to continue to serve, his or her replacement shall be selected in the same manner as described above.
2. The purpose of this Panel is to assist in the implementation of this Agreement. The Panel will have two primary functions: i) to review placement decisions and planning; and ii) to assist in monitoring the implementation of this Agreement. It is intended that the Panel will pursue a problem-solving approach so that litigation and disagreements can be minimized and the energies of all interested persons can be focused on the task of meeting the needs of the citizens and achieving the outcomes required by this Agreement. To these ends, the Review Panel shall develop a set of policies and procedures consistent with this Agreement and professional standards, within 3 0 days of the seating of the Panel, in conjunction with the parties and subject to their agreement. These policies and procedures shall be documented in writing and distributed to all parties and the Court (Magistrate Judge). The Review Panel may modify these policies and procedures, including the methodologies for reviews discussed below, as appropriate to meet the requirements of different stages of the implementation of this Agreement. Any party may recommend such modifications to the Review Panel. All modifications of these policies and procedures must be made in writing and are subject to the parties' agreement. Any disputes concerning these policies and procedures that cannot be resolved shall be addressed first
- 54 -

through mediation conference with Court/Magistrate Judge with notice to all parties.
3. The Panel will operate as follows: a. The Panel will meet at least quarterly to
carry out its responsibilities as outlined in X.A.2. and shall meet at such other times as it deems appropriate. The State agrees to provide the Review Panel with sufficient resources to perform its functions under this Agreement, including resources to employ experts and staff. Within 45 days of the appointment of the full Review Panel, the Panel shall submit an annual budget to the State for review and approval, and, thereafter, shall submit a budget on an annual basis two months prior to the beginning of the proposed funding period. This budget will show the resource needs and costs associated with planned activities of the Review Panel for the coming year. This budget should provide sufficient detail such that proposed amounts for spending and resource allocation by area of activity are set out. These planned activities will be consistent with the responsibilities and duties of the Review Panel as described in this Agreement.
The State and the Review Panel shall agree on methods for clear documentation and accountability regarding Review Panel expenditures including procedures for ensuring that Review Panel members receive timely compensation from the State. Review Panel members shall receive appropriate and timely compensation from the State Defendants and shall be promptly reimbursed by State Defendants for services and reasonable out-of-pocket expenses
- 55 -

incurred in performing their duties. Reimbursement rates for out-of-pocket expenses, including travel, shall be consistent with existing State regulations. The annual cost of the activities of the Review Panel will not exceed a cap of $550,000 without an approved modification. In the event that unanticipated circumstances give rise to the need for budget modifications during the year, the Review Panel shall submit to the State requests for modifications of its annual budget. Budget modifications include substantial changes or increases in spending and resource allocations in the existing budget as well as expenses that will exceed the annual cap amount. Total requests for modification shall not exceed 20% of the annual budget amount. The State also agrees to provide the Panel with additional $50,000 of "in-kind" services and support (copying, phones, office materials and space) annually. If the State and the Review Panel are unable to resolve budget and related issues, they will pursue resolution through mediation conference with the Court (Magistrate Judge) with notice to all parties. If the Review Panel feels that its ability to perform its duties is being constrained by the State's actions concerning budget and related issues, then the Review Panel may seek immediate review and relief through the mediation process herein described with the Court (Magistrate Judge) with notice to all parties.
b. The State agrees that the duties of the TQI Coordinator at each developmental center shall include assisting the Review Panel in the performance of its functions. If this
- 56 -

arrangement proves to be insufficient, the State and the Review Panel shall determine a mutually agreeable alternative for providing the services of an ombudsperson at each developmental center.
c. Consistent with section V.A.9 of this Agreement, the ISTP and Independent Support Coordinator's placement certification for each citizen will be filed with the Panel. The Panel will review each individual placement prior to such placement occurring. The Panel shall complete its reviews and report to the IDT within twenty (20) days of receiving the ISTP and certification from the IDT, unless the Panel requests additional.,time for a particular placement. The Panel's review will include review of relevant supporting documentation and issues raised by members of the IDT. Such reviews shall determine the adequacy of the placement and ensure that the placement meets the individual needs of each citizen. Where the Panel determines that there are major deficiencies with a placement, the placement shall not occur until all the identified major deficiencies are corrected. Any other deficiencies shall be corrected in a timely manner.
For the first six months following the seating of the Panel, such reviews will be conducted by all three members of the Panel, but thereafter such reviews may be conducted only by the Chair, consulting as the Chair deems appropriate with the other members of the Panel. Reviews shall be reduced to writing in any case where deficiencies are identified and such deficiencies shall be
- 57 -

specified with particularity. State Defendants shall correct such deficiencies in a timely manner.
d. The Panel will assist in monitoring compliance with this Agreement. System reviews of the quality of all services and supports provided to the citizens in each of the developmental centers and in the community shall be conducted by the Panel on an annual basis. These reviews shall be conducted separately and staggered every six months, with the first review of all the institutions occurring within six months of the entry of this Agreement and the first review of the community services provided to each citizen occurring six months thereafter.
Within two months of the seating of the Review Panel, the Panel shall develop, in conjunction with the Parties and subject to their agreement, a written, professionally-based, evaluation methodology to be used for their annual system reviews of the quality of all services and supports provided to citizens in the developmental centers and in the community. This methodology shall include at least the following items: 1) the number and type of experts the Panel anticipates will assist in evaluating compliance; 2) the sampling approach and data collection methods; 3) the approach and procedures for site visits, site visit preparation, and on-site data collection; 4) the anticipated number of days and types of activities conducted on-site to evaluate compliance; 5) the anticipated types of documents that will be reviewed; and 6) methods for measuring and assessing compliance and progress with this Agreement. The State shall
- 58 -

have this methodology for at least four months before the Review Panel conducts the initial review of either the institutions or the community. This methodology is intended to give a framework for the Panel's reviews, but shall in no way operate to amend, alter or otherwise displace the requirements of this Agreement. The Review Panel may modify their methodology. The provisions set out above in Section X.A.2. regarding modifications of the Panel's policies and procedures shall apply to modifications of the review methodology.
In conducting their reviews, the Review Panel shall work cooperatively with the State and, to the extent possible, notify the State of their observations and conclusions as reviews take place. The Review Panel shall submit to the parties and to the Court a written report for each review that details their methodology, findings and recommendations. The focus of these reports shall be on compliance with this Agreement, but the reports shall also contain appraisals of the progress made by State Defendants during the review period. The State shall ensure that all deficiencies are remedied promptly. The parties may wish to discuss these reports within the context of the provisions of scheduled quarterly status conferences with the Court. If disputes arise as to the scope, findings, or recommendations of these reports, the parties shall make every effort to resolve these informally. Any disputes that cannot be resolved shall be addressed through the processes described in section B.I. of this section, below.
- 59 -

e. There shall be no ex parte communications between the Review Panel and the Court. Ex parte communications among the Review Panel and the parties are permitted.
f. In the event that the State has concerns about whether the activities of the Review Panel are unreasonable or inconsistent with the terms of this Agreement and is unable to resolve these concerns informally with the Review Panel, the State shall seek to address these concerns through mediation conference with the Court/Magistrate Judge with notice to all parties.
B. Reporting and Enforcement 1. If any party believes that State Defendants are
failing to comply with this Agreement, or with any part thereof, the party must confer with State Defendants in a good faith effort to attempt to reach an agreement regarding corrections of any of the alleged deficiencies prior to bringing an enforcement action. If the parties are unable to agree, any party shall request a mediation conference with the Magistrate Judge assigned to this case. This requirement is subject, however, to the following emergency exception. Any party may bring an action for immediate injunctive relief if the party believes that there exists an imminent or continuing risk of serious harm to any citizen that is not being addressed appropriately by State Defendants.
2. Nothing in this Agreement shall prevent a party from ultimately seeking redress with the Court in the event that
- 60 -

efforts at conciliation and mediation are unsuccessful. If mediation or further injunctive relief prove unsuccessful, a party may seek additional relief from the Court.
3. The parties shall hold quarterly status conferences with the Magistrate Judge assigned to this case to review State Defendants' compliance with the Schedule of Implementation, incorporated as Attachment A to this Agreement.
4. State Defendants shall provide to the parties and the Panel copies of the TQI internal and external peer review reports, and any annual surveys, including the surveys of the community-based programs and facilities referenced in V.D.I. State Defendants shall provide to the parties and the Panel on a monthly basis: primary documentation regarding deaths (including death certificates, death summaries, discharge papers, investigative reports, and preliminary and completed autopsies); statistical summaries of incidents and injuries; relevant summary information on hospitalizations and code blues; summaries of restraint usage; completed abuse and neglect investigation reports and documentation of any disciplinary or follow-up actions taken. State Defendants shall immediately notify the parties and the Panel of any deaths or allegations of serious abuse or neglect involving serious injuries or incidents.
5. The Panel, the parties to this Agreement and their attorneys, consultants and agents shall have reasonable access to all information, records, buildings and areas, including those of providers, and shall be permitted to interview any citizen,
- 61 -

employee of State Defendants or of any provider, at reasonable times and places. The Panel and the parties are not required to give State Defendants advance notice of their intent to visit any facility. State Defendants may seek relief from the Court in the event that State Defendants believe the Panel or any party's monitoring activities are unreasonable or inconsistent with this Settlement Agreement.
6. State Defendants shall bear all costs related to copying or otherwise supplying the parties or the Review Panel with documents requested by the parties or the Panel that relate to the State Defendants' compliance with this Agreement. The identities-of citizens shall be kept confidential, and neither the names nor likenesses of citizens shall be publicized without their permission except that the parties may refer to a citizen by the citizen's first name and last initial.
7. Nothing in this Agreement shall preclude any party from conducting additional discovery pursuant to the Federal Rules of Civil Procedure, such as, but not limited to, depositions or requests for admissions, on matters relating to enforcement or compliance with the Agreement. State Defendants may seek relief from the Court in the event that State Defendants believe a party's discovery activities are unreasonable or inconsistent with this Settlement Agreement.
8. Retaliation against any individual, employee, family member or citizen based on communication with the Panel or any party or party representative is strictly prohibited. A
- 62 -

notice to this effect must be posted in all locations where citizens live and employee and public notices are posted. The falsification of records, data, correspondence or other information required for determining the State Defendants' compliance with this Agreement is strictly prohibited and will be a violation of this Agreement, subjecting State Defendants to contempt sanctions by the Court. A notice to this effect will be posted in all locations where employee and public notices are posted.
9. At least for the first three years following the signing of this Agreement, the Tennessee Comptroller's Office shall conduct or shall contract for two annual audits. The first audit will focus on the regional centers and will consist of two parts: an audit of citizen monies and personal property; and an audit of the operation of the centers. The second audit will consist of the same two parts, but will be focused on the community placements, including the services and supports. The results of the two annual audits shall be provided to the Court, and the parties.
10. The Court shall retain jurisdiction of this action for all purposes under this Agreement until this action is dismissed.
11. Any party to this Agreement may move to modify, amend or alter this Agreement at any time after entry of the Order adopting this Agreement.
- 63 -

12. After this Agreement has been in effect for at least three years, the State Defendants may petition this Court for termination of this Agreement on grounds that they have achieved and demonstrated their ability to maintain compliance with its provisions. Upon filing of such a petition, the parties shall have 90 days within which they may tour and respond. If no response is forthcoming, or if the parties agree, then the Agreement shall terminate. If any party does respond, the Review Panel thereafter will conduct a review of the compliance issues raised by the petition and response(s), and report to the Court and the parties on the results of that review. The Court will conduct a hearing as soon as practicable thereafter. The State Defendants will bear the burden of showing that they have achieved and demonstrated their ability to maintain compliance with this Agreement.
After this Agreement has been in effect for at least two years, the State Defendants may petition this Court for termination of this Agreement in part. Such petition for partial termination shall be available only for demonstrating the achievement and maintenance of compliance with all of the provisions of Sections VI., Institutional Care and Services, and VII, Protection from Harm, with respect to institutional conditions at one or more of the three developmental centers covered by this Agreement. The procedures and burden of proof for such a petition shall be the same as those described in the preceding paragraph.
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THIS SETTLEMENT AGREEMENT IS HEREBY AGREED TO: FOR THE STATE OF TENNESSEE:
DIANNE STAMEY Senior Counsel
KATHLEEN MALOY Assistant Attorney General CIVIL DIVISION Office of the Attorney General State of Tennessee Cordell Hull Building, 2nd Floor 426 5th Avenue North Nashville, TN 37243-0499

FOR THE UNITED STATES OF AMERICA:

JOHN M. ROBERTS U.S. Attorney Middle District of
Tennessee

DEVAL LT PATRICK Assistant Attorney General Civil Rights Division

ROBERT C. WATSON
Chief, Civil Division Office of the U.S. Attorney Middle District of
Tennessee

ROBINSUE FROHBOESE Deputy Chief Special Litigation Section Civil Rights Division

C. BOWMAN LAURIE J. WEINSTEIN VERLIN P. HUGHES Senior Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice

FOR PEOPLE FIRST OF TENNESSEE, INC., ET AL.:

EDWARD SEWELL President People First of Tennessee, Inc.

-^>{a»^--x:C-&v—v //•\

JUDITH A. GRAN O

v^

Public Interest Law Center of Philadelphia

JffCK DERRYBERRY «t 5p/O

Ward, Derryberry & Thompson

EDWARD G. CONNETTE, JR.

Lesesne & Connette

EARLE J. SCHWARZ

Waring & Cox

COUNSEL FOR PEOPLE FIRST OF TENNESSEE, INC., ET AL,

Done and Ordered this Nashville, Tennessee.

day of

ROBERT L. ECHOLS U.S. District Court Judge

, 1996 at

SCHEDULE OF IMPLEMENTATION

Appendix

State Planning, Administration and Oversight

Timeline

Status Conference

A.

3 months

I

B.

3 months - TQI Coord./Plan Write

I

7 months - Plan Implemented

m

C.

6 months

II

D.

3 months

I

E.

12 months

IV

G.

6 months

n

H.

9 months

m

IV. Evaluation and Assessment

Timeline

6 months - 25% of class

9 months - 50% of class

12 months - 75% of class

15 months - 100% of class

B.

3 months

Status Conference
n m rv
V i

V. Development of Plans A.I. A.2.

Timeline
6 months - 25 % of class 12 months - 50% of class 18 months - 75% of class 21 months - 100% of class 12 months - 25% of class 24 months - 50% of class 36 months - 75 % of class 48 months - 100% of class

69

Status Conference
n
IV VI
vn
IV VIII

Appendix

V. Development of Plans (cont.) Timeline

Status Conference

A.7. A.8. A.13. B.I. B.2.
B.3. B.4. B.6. B.7. B.8. •B.9. B.IO. B.ll. C.I. C.6. D.I.
D.2. D.3. D.5. E.I. E.2.

60 days and as done

I

21 months

vn

6 months(start immediately)

n

Immediately

i

12 months - 25% of class

IV

24 months - 50% of class

vm

36 months - 75% of class

48 months - 100% of class

9 months

m

9 months

m

90 days

i

As done all within 9 months

m

9 months

m

6 months

ii

6 months

n

Immediately

i

6 months

n

9 months (3 months post-approval)

m

Within 12 months after

IV

the agreement is signed

3 months

i

Immediately

i

6 months

n

120 days

n

9 months

in

VI. Institutional Care anc1 Services

A.I. A.2. 1st Section A.2. 2nd Section
A.3.

Timeline
9 months 6 months 12 months 6 months

Status Conference
m n rv n

70

Appendix

VI. Institutional Care and Services (cont.)

Timeline

Status Conference

A..4 A.5. A.6. A.7. A.8. 1st Section A.8. 2nd Section
B.I. B.l.a. B.l.b. B.l.c. B.l.d. B.l.e. B.l.f.(l) B.l.f.(2) B.l.f.(3) B.l.f.(4) B.l.f.(5) B.l.f.(6) B.l.f.(7)
B.l.f.(8) B.l.g. B.l.h. B.l.i. B.l.j. B.l.k. B.I.I. B.l.m. B.l.n. B.2. B.2.a. B.2.b. B.2.c.

3 months

I

6 months

n

6 months

n

9 months

m

3 months

i

6 months - 25% of staff

n

9 months - 50% of staff

m

12 months - 75% of staff

IV

15 months - 100% of staff

V

18 months

VI

3 months

I

3 months

I

3 months

I

3 months

I

3 months

I

All within 15 months

V

6 months

n

3 months

i

6 months

H

9 months

m

3 months

i

6 months - begin immediately

n

review after development of plan

3 months

i

6 months

n

9 months - begin immediately

HI

6 months

II

Immediately

i

3 months

i

3 months

i

3 months

i

6 months

II

6 months

II

6 months

II

6 months

II

3 months

i

71

Appendix

VI. Institutional Care and Services (cont.) Timeline

Status Conference

C.I. C.2. C.3. C.4. C.6. C.I.
C.8.
C.9.
CIO. D.I.
D.2.
D.3. D.4. E.I. E.4.

Immediately

I

6 months

n

1 month after

n

Assessment/all within 6 months

12 months - begin immediately

IV

3 months after plan is written

i

6 months - 25 % of class

n

12 months - 50% of class

IV

18 months - 75% of class

VI

24 months - 100% of class

vm

Persons at highest risk done first

6 months - 25 % of class

n

9 months - 50% of class

m

12 months - 75% of class

IV

15 months - 100% of class

V

6 months - 25% of staff

n

9 months - 50% of staff

in

12 months - 7 5 % of staff

IV

15 months - 100% of staff

V

6 months

n

Persons at highest risk done first

6 months - 25% of class

n

9 months - 50% of class

m

12 months - 75% of class

IV

15 months - 100% of class

V

Persons at highest risk done first

6 months - 25 % of class

n

9 months - 50% of class

ni

12 months - 75% of class

IV

15 months - 100% of class

V

3 months

i

6 months

n

6 months

n

3 months

i

72

VI. Institutional Care and Services (cont.)

Appendix

Timeline

Status Conference

E.5.

Immediately

I

E.6.

3 months

I

F.I.

6 months - 2 5 % of class

n

9 months - 5 0 % of class

m

12 months - 75% of class

IV

15 months - 100% of class

V

F.2.

3 months - staff sign language competent I

6 months - 25 % of class 9 months - 50% of class

nin

12 months - 75% of class

IV

15 months - 100% of class

V

F.3.

6 months

n

G.I.

Immediately

i

G.2.

Immediately

i

G.3.

Immediately

i

G.4.

3 months

i

H.

Resident's property-3 months

i

VII. Protection from Harm
A. B. C. D. E. F. G. H. I. J. K. L.

Timeline
Immediately Immediately 3 months Immediately Immediately Immediately Immediately Immediately Immediately Immediately 3 months 12 months - begin immediately

Status Conference
I I I I I I I I I I I IV

73

Appendix

V i a . Education for School-Age Children

eline

Status Conference

B.

6 months

n

D.

12 months

IV

E.

All children placed within 21 months

VH

IX. First Amendment Rights

Timeline

B. C. D. _

30 days 30 days 30 days

Status Conference
I I I

74

 
 CASE−CLOSED,CASE−MANAGER−GRIFFIN,MEMBER−CASE−FOR−TRIAL
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:96−cv−01056

USA v. Tennessee, State of, et al Assigned to: Senior Judge Robert Echols Demand: $0 Lead case: 3:95−cv−01227 Member case: (View Member Case) Cause: 42:1997 Civil Rights of Institutionalized Persons Act
Plaintiff

Date Filed: 11/15/1996 Date Terminated: 03/18/2002 Jury Demand: None Nature of Suit: 444 Welfare (DISCONTINUED) Jurisdiction: U.S. Government Plaintiff

USA

represented by Aileen M. Bell Department of Justice Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 TERMINATED: 10/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Picciotti−Bayer U.S. Department of Justice Civil Division 601 D Street, NW P O Box 66400 Washington, DC 20004 (202) 514−6441 TERMINATED: 03/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darcey Kathleen Donehey Department of Justice Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David R. Rocah Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 TERMINATED: 10/22/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine Scott Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 TERMINATED: 06/27/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:96-cv-01056 As of: 07/24/2014 11:48 AM CDT 1 of 5

Laurie Weinstein Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 TERMINATED: 03/08/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Jonas Geissler Department of Justice Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 Email: jonas.geissler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert C. Bowman Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 TERMINATED: 07/06/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert C. Watson unknown address LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shelley R. Jackson U.S. Department of Justice Civil Division 601 D Street, NW P O Box 66400 Washington, DC 20004 (202) 514−6441 TERMINATED: 10/02/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Hildreth Goggin Office of the United States Attorney 110 Ninth Avenue, S Suite A961 Nashville, TN 37203−3870 (615) 736−5151 TERMINATED: 03/03/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deval L. Patrick Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530−5968 (202) 616−9510 ATTORNEY TO BE NOTICED
Michelle A. Jones
Case: 3:96-cv-01056 As of: 07/24/2014 11:48 AM CDT 2 of 5

Department of Justice−Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305−3642 Fax: (202) 514−6273 Email: michelle.jones2@usdoj.gov ATTORNEY TO BE NOTICED
Nicole Porter Department of Justice Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 TERMINATED: 05/21/2004 ATTORNEY TO BE NOTICED
Robinsue Frohboese Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 ATTORNEY TO BE NOTICED
Samantha Kay Trepel Department of Justice−Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305−3204 Email: samantha.trepel@usdoj.gov ATTORNEY TO BE NOTICED
Steven H. Rosenbaum Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 ATTORNEY TO BE NOTICED
Todd Schneider Department of Justice Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514−6255 Email: todd.j.schneider@usdoj.gov ATTORNEY TO BE NOTICED
V.
Defendant
Tennessee, State of
Defendant
Donald Sundquist Governor of the State of Tennessee
Case: 3:96-cv-01056 As of: 07/24/2014 11:48 AM CDT 3 of 5

Defendant
John Ferguson Commissioner, TN Department of Finance and Administration
Defendant
Marjorie Nell Cardwell Commissioner, TN Department of Mental Health and Mental Retardation
Defendant
A. Jane Walters Dr., Commissioner, TN Department of Education
Defendant
Stanley Lipford Superintendent, Nat T. Winston Developmental Center
Defendant
O. Stephen Roth Superintendent, Clover Bottom Developmental Center
Defendant
Robert Erb Superintendent, Greene Valley Developmental Center

Date Filed 11/15/1996 11/15/1996
11/15/1996
11/25/1996
12/02/1996 04/19/1999 03/07/2000 03/24/2000 10/02/2000

# Docket Text
1 COMPLAINT (NO Summons(es) issued) (af) (Entered: 11/18/1996)
2 NOTICE of Initial Case Management Conference Case referred to Magistrate Judge William J. Haynes Jr. , Case Management Conference set for 10:00 1/2/97 (af) (Entered: 11/18/1996)
3 MOTION &MEMORANDUM by pltf USA to consolidate cases 3:96−1056 w/ 3:95−1227 w/ att'd copy of Settlement Agreement in Case No. 3:95−1227 (af) (Entered: 11/18/1996)
4 ORDER by Magistrate Judge William J. Haynes Jr.: Case Management Conference is reset for 9:00 on 2/14/97. EOD 11/25/96 (cc: all counsel) (gi) (Entered: 11/25/1996)
5 ORDER by Judge Robert L. Echols granting motion to consolidate case 3:96−1056 w/ 3:95−1227 [3−1]. EOD 12/2/96 (cc: all counsel) (gi) (Entered: 12/02/1996)
ATTORNEY APPEARANCE for pltf USA by Shelley R. Jackson filed in lead case 3:95−1227 [264−1] (jb) Modified on 04/19/1999 (Entered: 04/19/1999)
NOTICE OF APPEAL by Comm Rehab of TN filed in lead case 3:95−1227 (af) (Entered: 03/13/2000)
NOTICE by pltf USA of filing of consultants' Selected Findings and Recommendations (attached) (mg) (Entered: 03/27/2000)
ORDER by Judge William J. Haynes Jr. withdrawing attorney Shelley R. Jackson for USA (Order docketed in lead case 3:95−1227 DE#432) (cc: all counsel) EOD 10/2/00 (mg) Modified on 10/03/2000 (Entered: 10/02/2000)

Case: 3:96-cv-01056 As of: 07/24/2014 11:48 AM CDT 4 of 5

02/08/2002 02/11/2002 04/22/2003 03/23/2004 12/29/2009 01/04/2010 01/04/2010 12/30/2010 01/06/2011

7 MANDATE issued 10/10/91 from 6th CCA affirming the decision of the District Court [0−1] filed 8/8/01 (mg) (Entered: 02/11/2002)
ATTORNEY APPEARANCE for pltf USA by Janine Scott per notice [627−1] in lead case 3:95−1227. (rls) (Entered: 02/13/2002)
ATTORNEY APPEARANCE for pltf USA by Todd Schneider filed in lead case #3:95−1227 (km) (Entered: 04/22/2003)
ATTORNEY APPEARANCE for pltf USA by R. Jonas Geissler filed in lead case 3:95−1227 (km) Modified on 03/24/2004 (Entered: 03/24/2004)
8 NOTICE of Appearance by Samantha Kay Trepel on behalf of USA (Trepel, Samantha) (Entered: 12/29/2009)
Bar status for attorney Samantha Trepel, NY verified as active this date. (km) (Entered: 01/04/2010)
Note to Filer Samantha Trepel re DE #8: All pleadings should be filed in the lead case 3:95cv1227. This document needs to be re−filed.(km) (Entered: 01/04/2010)
9 NOTICE of Appearance by Michelle A. Jones on behalf of USA (Jones, Michelle) (Entered: 12/30/2010)
Note to filer re 9 : This document has been scanned. Documents generated from a word processor (Word of WordPerfect) should NOT be scanned, but rather printed directly to PDF via a PDF writer. Future scanned pleadings of this nature may require refiling. (rd) (Entered: 01/06/2011)

Case: 3:96-cv-01056 As of: 07/24/2014 11:48 AM CDT 5 of 5

 
 260 F.3d 587 (2001)
UNITED STATES of America, Plaintiff-Appellee, Community Rehabilitation Agencies of Tennessee, Inc., Proposed Intervenor-Appellant,
People First of Tennessee, Intervenor-Appellee, v.
State of TENNESSEE, Defendant-Appellee. People First of Tennessee, on behalf of its members; Bonnie Chaffee, by her next friend, Crystal Goodman; Dowell Harris, by his next friend, Rocky Akin; Effie Estelle Pippin, by
her next friend, Frances Hamblen; Sandra Jo Proctor, by her next friend, Evelyn McCormack; Cynthia Dawn Sommerville, by her parents and natural guardians, Jeff and Kathy Sommerville; Kevin Troupe, by his next friend, Charles Hall; Juanita Wright, by her
next friend, William A. Goodman, Jr., Mary Ann Avery, by her next friend, Jason Elam; Audriniece Hollister, by her next friend, Ethyl Ervie; Kenneth Lee; Eddie Jones; Larry
Wayne Vaughn; Charles Wilhoite; Carolyn Britt; Rebecca Workman; Jenny Belle Greenwood; David Balthrop; Terry Beaty; United States of America, Plaintiffs-Appellees,
v. Clover Bottom Developmental Center; Don Sundquist, in his official capacity as Governor
of the State of Tennessee; Julie Bratcher, in her official capacity as Superintendent of Clover Bottom Developmental Center; Tennessee Department of Mental Health and Mental
Retardation; Tennessee Department of Health; Rusty Seibert, in his official capacity as Assistant Commissioner of TennCare; Comcare, Inc.; Fredia S. Wadley, M.D., in her
official capacity as Commissioner of Health; Greene Valley Developmental Center; Nat T. Winston Developmental Center; O. Stephen Roth, in his official capacity as
Superintendent of Clover Bottom Developmental Center; Robert Erb, in his official capacity as Superintendent of the Greene Valley Developmental Center; Pete Davidson; Ben Dishman; Thomas Sullivan; John Ferguson, in his official capacity as Commissioner
of Finance and Administration, Defendants-Appellees, Community Rehabilitation Agencies of Tennessee (CMRA), Proposed Intervenor-
Appellant.
Nos. 00-5342, 00-6514
United States Court of Appeals, Sixth Circuit.
Argued: April 27, 2001. Decided and Filed: August 8, 2001. Rehearing Denied October 1, 2001.
58990 *589 *590 ARGUED: William M. Barrick, WEED, HUBBARD, BERRY & DOUGHTY, Nashville, Tennessee, for Appellants.
Judith A. Gran, PUBLIC INTEREST LAW CENTER OF PHILADELPHIA, Philadelphia, Pennsylvania, Dianne Stamey Dycus, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, Kevin K. Russell, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, Washington, D.C., for Appellees.
ON BRIEF: William M. Barrick, William B. Hubbard, WEED, HUBBARD, BERRY & DOUGHTY, Nashville, Tennessee, for Appellants.

Judith A. Gran, PUBLIC INTEREST LAW CENTER OF PHILADELPHIA, Philadelphia, Pennsylvania, Dianne Stamey Dycus, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, Kevin K. Russell, Mark L. Gross, Lisa Wilson Edwards, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, Washington, D.C., Jack W. Derryberry, Jr., WARD, DERRYBERRY & THOMPSON, Nashville, Tennessee, for Appellees.
Before: NELSON and BATCHELDER, Circuit Judges; FEIKENS, District Judge.[*]
Rehearing En Banc Denied October 1, 2001
Pursuant to Sixth Circuit Rule 206
OPINION
FEIKENS, District Judge.
The above captioned cases have been consolidated for purposes of this appeal. Community Rehabilitation Agencies of Tennessee (CMRA) appeals the decisions of the two district courts that denied its petitions to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a). Because CMRA's petitions are untimely and it has not advanced any substantial right to intervene, its appeals are denied.
591 *591 I. BACKGROUND
CMRA is an association of nonprofit agencies that provide services to retarded persons and those with mental disabilities in community placements. These services include case management, residential medical support, supported living, transportation, day services, and other services. CMRA represents the interests of the community-based service provider industry in legislative, executive, and judicial matters. CMRA has 75 members, including most of the community agencies in the State of Tennessee. The vast majority of these community agencies is nonprofit, formed in local communities, and receives funding from the State and federal government.
CMRA appeals the decisions of Judge Robert L. Echols in People First of Tennessee v. Clover Bottom Developmental Center and Judge Jon P. McCalla in United States v. State of Tennessee, that denied its motions to intervene in the present litigation.[1] The two cases have been consolidated for purposes of this appeal. The underlying lawsuits were brought by the United States and private plaintiffs against the State of Tennessee regarding the operation of its mental health system. In each case, CMRA alleged in its petition that the State of Tennessee had violated the constitutional and statutory rights of individuals who are mentally retarded and developmentally disabled. It attempted to intervene as of right and permissively in both cases pursuant to Federal Rule of Civil Procedure 24(a) and 24(b). CMRA only appeals the decisions that denied them the ability to intervene as of right pursuant to Federal Rule of Civil Procedure 24(a).
We will rely on the ample factual background provided in previous opinions in these two cases to describe the events leading up to CMRA's attempt to intervene. See United States v. State of Tennessee, 181 F.3d 105 (Table), 1999 WL 357785 (6th Cir.1999); People First of Tenn. v. Arlington Developmental Ctr., 145 F.3d 1332 (Table), 1998 WL 246146 (6th Cir.1998); United States v. State of Tennessee, 925 F.Supp. 1292 (W.D.Tenn. 1995); People First of Tenn. v. Arlington Developmental Ctr., 878 F.Supp. 97 (W.D.Tenn.1992).
II. ANALYSIS
CMRA contends that it was improperly denied the right to intervene in the two cases pursuant to Federal Rule of Civil Procedure 24(a). Under Federal Rule of Civil Procedure 24(a), an outsider may intervene as of right:
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the

applicant is so situated that the disposition of the action may as practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
The criteria that must be satisfied before intervention as of right will be granted are: (1) timeliness of the application to intervene, (2) the applicant's substantial legal interest in the case, (3) impairment of the applicant's 592 ability to protect that interest in the absence of intervention, and (4) inadequate representation of that interest *592 by parties already before the court. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997).
A district court's denial of intervention as of right is reviewed de novo, except for the timeliness element, which is reviewed for an abuse of discretion. See Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir.1999) (citing Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir.1990)).
A.Timeliness
CMRA contends that now is the appropriate time to intervene and that it filed its motions timely because it learned shortly prior to bringing its motions that its interests were not being represented by the existing parties. We have identified several factors to be established in determining whether a request for intervention is timely:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.
Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989). "The determination of whether a motion to intervene is timely should be evaluated in the context of all relevant circumstances." Jansen, 904 F.2d at 340. We will find an abuse of discretion only when left with the "definite and firm conviction that the court ... committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors" or where it "improperly applies the law or uses an erroneous legal standard." Huey v. Stine, 230 F.3d 226, 228 (6th Cir.2000) (citations and internal quotations omitted).
1. Stage of the Proceeding
CMRA contends that the district judges abused their discretion when they denied the motions to intervene. CMRA argues it did not become aware of its independent interest to intervene until the implementation of the settlement agreements required its members to provide community-based services to individuals without a guarantee of sufficient payment by the State of Tennessee. CMRA cites to Grubbs and Linton v. Commissioner, 973 F.2d 1311 (6th Cir.1992), for the proposition that intervenors can timely appeal during the remedial stages of a consent decree. See Grubbs supra; Linton, supra.
We have recently stated that the time of intervention is not the determining factor but rather that "all circumstances" must be examined to determine the substantive progress that has occurred in the litigation. See Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir.2000) ("The propriety of intervention in any given case, however, must be measured under `all circumstances' of that particular case.") (citing NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973)). If the litigation has "made extensive progress in the district court before the appellants moved to intervene" then this factor weighs against intervention. Id.
In these cases, there was very little for either district judge to do when CMRA filed its petitions for intervention. In People First, Judge Echols had conditionally approved the initial settlement; the parties had prepared the 593 Community Development Plan required by him. He had approved this plan, and the motion for *593 final approval of the settlement was already pending before him. In United States v. Tennessee, Judge McCalla had approved several remedial orders to bring the mental health system into compliance with the Civil Rights of Institutionalized

Persons Act (42 U.S.C. § 1997) and had approved the Community Plan. All substantive issues had been resolved by both judges at the time of CMRA's filing for intervention and all that was required was final approval by the judges. This factor weighs strongly against allowing intervention by CMRA. See Stupak-Thrall, 226 F.3d at 475.

2. Purpose of the Intervention

CMRA states that it simply requests the opportunity to be an active party in future remedial proceedings. CMRA would like the opportunity to participate in the implementation of the settlement agreements, to advocate and protect the regulatory and economic interests of community providers and to assure that sufficient other resources are provided in the community in a timely manner so that individuals receive timely and appropriate services. CMRA contends that throughout the remedial phase the courts and the parties will address matters which will directly implicate the scope, quality, timing and funding of services to be performed by CMRA members.
In People First, Judge Echols found that this argument did not state an adequate "purpose for the intervention." He stated, "Because it is the State's responsibility to assure that `resources are provided in the community' and `individuals receive timely and appropriate services,' intervention by CMRA would not accomplish these aims. Finally, should CMRA hope, through intervention, to obtain higher rates and fewer obligations for community providers, this forum is not the appropriate forum to seek such relief."
In United States v. State of Tennessee, Judge McCalla held that "These stated purposes do not rise to the level requiring intervention." He held that, "The State of Tennessee is responsible for ensuring that these interests are protected and CMRA agencies are already participating in the implementation of the Remedial Order by providing services to the class members."
The interests asserted by CMRA for seeking intervention are not compelling. This factor also weighs against a finding of timely intervention.

3. The length of time preceding the application during which the Applicant knew or should have known of its interest in the case.

CMRA admits it knew of the litigation in both cases at all stages and it also knew that its members had an interest in the outcome of the litigation. It contends that it believed that the existing parties to the two cases adequately represented its interest initially, and thus, it was not required to intervene in the lawsuits. It now claims that it only recently became apparent that these parties were not adequately representing its interest.

In People First, Judge Echols found that CMRA knew of the litigation at all stages and did not attempt to intervene when it knew that the interests of the community providers were affected by the litigation and proposed settlement agreement. He stated:

It is undisputed that CMRA has been aware of the lawsuits, the time-consuming negotiations

between the parties and interest groups, the disputed issues concerning the types, quality,

594

location, and accessibility of the proposed community *594 health care services, along with the

critical role of the community health care providers in providing these services to the State of

Tennessee for the benefit of the Plaintiffs. Investigations, reports, judicial settlement conferences,

and hearings have been conducted.

He held that this factor weighed against allowing intervention.

In United States v. State of Tennessee, Judge McCalla also found that this factor weighed against allowing CMRA to intervene. He stated:

CMRA's interest developed, at the latest date, when the Community Plan was entered, which was in 1997. The fiscal crisis of the State and other referenced broken promises of the State do not

change the fact that CMRA's interests, even broadly construed, were apparent, at the latest date, when the Community Plan went into effect.
He held that CMRA waited too long before intervening.
We agree with the decisions of the district courts. An entity that is aware that its interests may be impaired by the outcome of the litigation is obligated to seek intervention as soon as it is reasonably apparent that it is entitled to intervene. See NAACP v. New York, 413 U.S. at 367, 93 S.Ct. at 2604; Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 396 (6th Cir.1993); Stotts v. Memphis Fire Dep't, 679 F.2d 579, 584 & n. 3 (6th Cir.1982) (applicants "should have attempted to intervene when they first became aware of the action, rather than adopting a `wait-and-see' approach"). Given that the settlement agreements specifically address training and the delivery of services in the community, "it would not have required unusual prescience on the part of the intervenors to recognize that their interests were implicated" when the decree was first proposed. Cuyahoga Valley Ry. Co., 6 F.3d at 396. This factor weighs against timely intervention by CMRA.
4. Prejudice to the Parties
CMRA claims that there is no prejudice to the parties because CMRA does not dispute any issues in the present settlement agreements. The district judges concluded that allowing intervention at this late stage of the proceeding would add a complicated issue to the litigation. They held that the issues raised by CMRA went beyond the scope of the suit's initial focus on the constitutional issue and statutory rights of developmentally disabled residents of state facilities and would require considerable time and expense unnecessary in light of CMRA's access to other fora for resolution of its concern. While CMRA has agreed not to dispute the terms of the settlement agreements, it has not made the same promise as to the remedial plans, the drafting of which involved the participation of more than 2100 stakeholders over many months. There is a risk, to the extent CMRA seeks to intervene to discuss reimbursement rates, payment methodologies, or any other items on its list of grievances, that prejudice against the other parties will occur; such attempts may force the parties into collateral litigation over economic issues in cases that have already settled the merits of plaintiffs' claims. See Bradley v. Milliken, 828 F.2d 1186, 1194 (6th Cir.1987). This factor also weighs against CMRA's intervention.
5. Unusual Circumstances
In People First, CMRA admits that there are no unusual circumstances supporting intervention. In United States v. Tennessee CMRA contends there are unusual circumstances because of the pending appeals and active 595 proceedings concerning compliance with the district court's orders. However, nothing in these *595 proceedings has any effect on CMRA directly. The State of Tennessee, not the CMRA, is ultimately responsible for the funding of its mental health system to comply with the United States Constitution, federal statutes, and the courts' orders.
CMRA has not shown that any of the factors that determine timeliness of intervention weigh in favor of allowing it to intervene this late in either lawsuit. Therefore, we are left with a "definite and firm conviction that the courts ... did not commit a clear error of judgment." Huey, 230 F.3d at 228.
B. Whether CMRA has a substantial legal interest in the subject matter of the pending litigation, which may be impaired.
CMRA claims that it has a substantial interest in this litigation because of its economic interest in how community service programs are funded and because of the lock-in procedure established in the settlement agreements that affect how community-based services are provided. We have held, that:
[I]n this circuit we subscribe to a "rather expansive notion of the interest sufficient to invoke intervention of right." Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997). For example, an intervenor need not have the same standing necessary to initiate a lawsuit. See id.; Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir.1991). We have also "cited with approval

decisions of other courts `rejecting the notion that Rule 24(a)(2) requires a specific legal or equitable interest.'" Miller, 103 F.3d at 1245 (quoting Purnell, 925 F.2d at 948). "The inquiry into the substantiality of the claimed interest is necessarily fact specific." Id.
Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir.1999). We review the decisions of the district courts de novo to determine whether they properly held that CMRA did not establish a substantial interest in the litigation. See Stupak-Thrall, 226 F.3d at 471.
First, CMRA points to its economic interest in assuring adequate funding for implementation of the settlement agreements and its contractual rights in agreements with the State to provide community-based services. The parties to these lawsuits have entered into consent decrees aimed at guaranteeing that Tennessee provide at least the minimum level of care to developmentally disabled individuals required by federal law. CMRA does not challenge the terms of these agreements or contend that they fall below what federal law requires. CMRA is only concerned with the level of funding provided by the State to community-based service providers. CMRA's claimed interest does not concern the constitutional and statutory violations alleged in the litigation, but rather how much its members get paid for providing services. CMRA has an interest in the economic component of the settlement but the consent decrees obligate the State, not CMRA, to fund community services adequately. By the terms of the settlement agreements, it is the responsibility of the State of Tennessee to provide adequate and appropriate community services to members of the plaintiff class. Implementation of the settlement agreement does not alter CMRA's economic interests with the State to provide support and services to the class members nor its ability to negotiate the terms of these contracts. Further, as found by both district court judges, CMRA can protect its economic interests in contract negotiations with the State by lobbying the legislative and executive 596 branches for favorable funding *596 arrangements, and in state courts by suing to enforce its contractual rights.
Second, CMRA claims to have a sufficient interest in the litigation because of the lock-in provision in the Provider Agreement. The Provider Agreement provision at issue states:
Once a Contractor is serving a person on the supported living medical, supported living enhanced or supported living behavioral rates, the Contractor must continue to provide services and may not discharge or deny services to that person without permission of the State pursuant to TCA 33-1-202(c).
Provider Agreement ¶ E.17. CMRA relies on this court's decision in Linton v. Commissioner of Health and Environment, 30 F.3d 55 (6th Cir.1994), where we held that intervention was appropriate because individual nursing homes had a substantial interest in a suit involving a State plan to remedy violations of the Medicaid Act. In Linton, contracts between the State and nursing homes contained a lock-in provision that prohibited providers from opting out of the State's Medicaid system until the last patient voluntarily left the nursing home. Id. at 1315-16. This provision effectively precluded the nursing homes from terminating their membership in Medicaid. Id. at 1317. We reversed the district court in Linton and held that the effect of the lock-in violated the contractual and statutory rights of nursing homes and gave the nursing homes a substantial interest in the litigation to justify intervention. Id. at 1315-16, 1319.
In People First and the United States v. State of Tennessee, the district judges held that the lock-in provision in their cases did not have the same effect as in Linton and did not justify a substantial interest in this case to allow intervention. First, the agreements in these cases allow the service provider to petition the State to terminate or modify services to the mentally retarded or those with mental disabilities, and thereby do not create a permanent obligation as is the case in Linton. Second, the lock-in provision in the cases before us does not establish an indefinite obligation on service providers to contract with the State as in Linton. Third, the community-based service providers voluntarily entered into contracts with the State and remain free to renegotiate all aspects of its contracts with the State of Tennessee.
CMRA's economic interest and its interest in the lock-in provision do not reach the level of requisite substantial interest required to intervene.

III. CONCLUSION
CMRA has not satisfied the requirements to intervene as of right because it was not timely in bringing its motions and did not establish an adequate substantial interest in either lawsuit. Because it has not established these necessary elements, we do not analyze the claims of impairment of the applicant's ability to protect its interest in the absence of intervention, and whether CMRA's interest is inadequately represented by the parties already before the court. See Michigan State AFL-CIO, 103 F.3d at 1245.
The judgments of the district courts are AFFIRMED.
[*] The Honorable John Feikens, United States District Judge for the Eastern District of Michigan, sitting by designation.
[1] In People First, Judge Echols held that CMRA did not timely file its motion to intervene and, even if it had, the organization has no substantial interest in the litigation. In United States v. Tennessee, Judge McCalla held that CMRA lacked a substantial interest in the litigation, and in the alternative, held that the organization had not timely filed its motion to intervene. For purposes of this appeal this distinction makes little difference.
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 People First v. Clover Bottom Developmental Ctr.
United States Court of Appeals for the Sixth Circuit October 1, 2001, Filed 00-5342/00-6514

Reporter: 2001 U.S. App. LEXIS 29309 PEOPLE FIRST OF TENNESSEE, ON BEHALF OF ITS MEMBERS, ET AL., Plaintiffs-Appellees, v. CLOVER BOTTOM DEVELOPMENTAL CENTER, ET AL., Defendants-Appellants.
Prior History: United States v. Tennessee, 260 F.3d 587, 2001 U.S. App. LEXIS 17666 (6th Cir. Tenn., 2001)

The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original panel.

Judges: [*1] BEFORE: NELSON and BATCHELDER, Circuit Judges; and FEIKENS, * District Judge.
Opinion

The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.

ORDER

* Hon. John Feikens, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.