Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

LEAH JIMMIE, JOSETTE HALECHKO, :

LEWIS BOWERS, and JANICE SLATER, :

by and through their next friend, Carl

:

Mosier; RONALD PEARSON and

:

WILLIAM SACKS, by and through their :

next friend, Connie Hammann; EDWARD :

NAUSS and BENJAMIN PERRICK, by :

and through their next friend, Akhnaton :

Browne, on behalf of themselves and all :

others similarly situated,

:

:

Plaintiffs,

: Filed via ECF System

:

v.

: Civil Action No. _________

:

DEPARTMENT OF PUBLIC WELFARE : Class Action

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and ESTELLE B.

:

RICHMAN, in her official capacity as :

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

:

Defendants.

:

____________________________________:

COMPLAINT

I. Introduction

1. Plaintiffs are individuals with mental retardation who are institutional-

ized in Pennsylvania’s state psychiatric hospitals. Plaintiffs bring this lawsuit on

behalf of themselves and over 100 other people with mental retardation who are con-

fined in Pennsylvania’s state psychiatric hospitals.

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2. Plaintiffs and many other putative class members are appropriate for placement in community settings and are not opposed to such placements. Defendants, however, have not offered them any alternative to remaining institutionalized, even though the costs of providing community services to them would be far less than the costs of continuing to institutionalize them. Defendants also have not developed or implemented an integration plan with concrete timelines and benchmarks to offer and provide community alternatives to Plaintiffs and other individuals with mental retardation who are unnecessarily institutionalized in state psychiatric hospitals and are not opposed to community placement. These actions and inactions violate Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
3. Defendants also have violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by failing to modify their policies, practices, and procedures to assure that the mental health treatment provided to individuals with mental retardation at state psychiatric hospitals is adapted to meet their needs so as to afford them the same opportunity to benefit from such treatment as individuals who do not have mental retardation.
4. Defendant Richman has failed to assure that Plaintiffs and the putative class members receive appropriate and essential habilitation services at the state psychiatric hospitals and has failed to adapt the mental health treatment provided at
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state psychiatric hospitals to meet the needs of people with mental retardation. Defendant Richman also has failed to implement professional recommendations for community placement. These actions and inactions violate the substantive due process rights of Plaintiffs and putative class members guaranteed by the Fourteenth Amendment of the Constitution by failing to assure that they are safe and free from unnecessary restraints and that they receive minimally adequate or reasonable training to ensure safety and their freedom from undue restraint in accordance with the judgment of qualified treatment professionals.
5. Plaintiffs seek appropriate declaratory and injunctive relief. II. Jurisdiction and Venue
6. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4).
7. Plaintiffs’ claims are authorized by 42 U.S.C. §§ 1983 and 12133, 29 U.S.C. § 794a(a)(1), and 28 U.S.C. §§ 2201 and 2202.
8. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(b) since Defendants reside in this District. III. Parties
9. Plaintiff Leah Jimmie is 28-year-old resident of Luzerne County, Pennsylvania who has been institutionalized in a state psychiatric hospital since 2007.
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She brings this lawsuit by and through her next friend, Carl Mosier, pursuant to Federal Rule of Civil Procedure 17(c).
10. Plaintiff Josette Halechko is a 26-year-old resident of Luzerne County, Pennsylvania who has been institutionalized in a state psychiatric hospital since April 2007. She brings this lawsuit by and through her next friend, Carl Mosier, pursuant to Federal Rule of Civil Procedure 17(c).
11. Plaintiff Lewis Bowers is a 43-year-old resident of Tioga County, Pennsylvania who has been institutionalized in a state psychiatric hospital since 1994. He brings this lawsuit by and through his next friend, Carl Mosier, pursuant to Federal Rule of Civil Procedure 17(c).
12. Plaintiff Janice Slater is a 19-year-old resident of Lackawanna County, Pennsylvania who has been institutionalized in a state psychiatric hospital since 2008. She brings this lawsuit by and through her next friend, Carl Mosier, pursuant to Federal Rule of Civil Procedure 17(c).
13. Plaintiff Ronald Pearson is a 56-year-old resident of Lehigh County, Pennsylvania who has been institutionalized in a state psychiatric hospital since 2006. He brings this lawsuit by and through his next friend, Connie Hammann, pursuant to Federal Rule of Civil Procedure 17(c).
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14. Plaintiff William Sacks is a 49-year-old resident of Lehigh County, Pennsylvania who has been institutionalized in a state psychiatric hospital since 2002. He brings this lawsuit by and through his next friend, Connie Hammann, pursuant to Federal Rule of Civil Procedure 17(c).
15. Plaintiff Edward Nauss is a 59-year-old resident of Delaware County, Pennsylvania who has been institutionalized in a state psychiatric hospital since 1998 He brings this lawsuit by and through his next friend, Akhnaton Browne, pursuant to Federal Rule of Civil Procedure 17(c).
16. Plaintiff Benjamin Perrick is a 65-year-old resident of Philadelphia, Pennsylvania who has been institutionalized in a state psychiatric hospital since 1955. He brings this lawsuit by and through his next friend, Akhnaton Browne, pursuant to Federal Rule of Civil Procedure 17(c).
17. Defendant Department of Public Welfare (DPW) is the Commonwealth agency that is responsible to provide services to Pennsylvanians with mental retardation, including Plaintiffs and putative class members, under the Mental Health and Mental Retardation Act of 1966, 50 P.S.§ 4201(1). DPW operates seven psychiatric hospitals and funds community-based mental retardation and mental health services.
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18. Defendant, Estelle B. Richman, is the Secretary of Public Welfare for the Commonwealth of Pennsylvania. Defendant Richman is responsible to administer and oversee DPW, including its mental health and mental retardation programs. Defendant Richman also is responsible to assure that DPW’s programs and services comply with the United States Constitution and relevant federal laws, including the Americans with Disabilities Act and Rehabilitation Act. IV. Class Action Allegations
19. Plaintiffs, Jimmie, Halechko, Bowers, Slater, Pearson, Sacks, Nauss, and Perrick, by and through their next friends, bring this lawsuit on behalf of themselves and all other persons who have mental retardation and are institutionalized in a stateoperated psychiatric hospital with the exception of those subject to the jurisdiction of the criminal courts.
20. The size of the class makes joinder impracticable. DPW has identified approximately 115 individuals institutionalized in its psychiatric hospitals who have a diagnosis of mental retardation and who are not subject to the jurisdiction of the criminal courts. Individual lawsuits are impracticable due to the geographic dispersion of putative class members, their lack of resources, and their intellectual and mental health disabilities.
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21. There are questions of fact and law common to class members, including, but not limited to:
a. whether Defendants have failed to offer and provide services and supports in more integrated settings to class members who are not opposed to discharge and, if so, whether that failure violates the integration mandates of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;
b. whether Defendants have used methods of administration that have the effect of discriminating against individuals with disabilities and, if so, whether doing so violates Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;
c. whether Defendants have failed to modify their policies, practices, and procedures to adapt the mental health treatment provided at state hospitals to meet the needs of individuals with mental retardation and, if so, whether such failure violates Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;
d. whether Defendants have failed to assure that state psychiatric hospital staff have adequate training and experience to serve individuals with mental retardation and, if so, whether such failure violates the Due Process Clause of the Fourteenth Amendment to the Constitution;
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e. whether Defendants have institutionalized people with mental retardation who do not have mental illness in state psychiatric hospitals and, if so, whether that violates the Due Process Clause of the Fourteenth Amendment to the Constitution;
f. whether Defendants have failed to provide habilitation services to state psychiatric hospital residents with mental retardation and, if so, whether such failure violates the Due Process Clause of the Fourteenth Amendment to the Constitution;
g. whether Defendants have failed to adapt the mental health services they provide in state psychiatric hospitals so that individuals with mental retardation can benefit from it and, if so, whether such failure violates the Due Process Clause of the Fourteenth Amendment to the Constitution; and
h. whether Defendants have failed to provide community mental retardation services to state psychiatric hospital residents with mental retardation whose qualified treatment professionals have recommended such services and, if so, whether such failure violates the Due Process Clause of the Fourteenth Amendment to the Constitution.
22. The claims of the named Plaintiffs are typical of those of all putative class members.
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23. The named Plaintiffs will adequately protect the interests of the class. They have no interests which conflict with other class members. Plaintiffs’ counsel are experienced in litigating class actions, including enforcement of the civil rights of people with disabilities.
24. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate injunctive and declaratory relief with respect to the class as a whole. V. Facts
A. Plaintiffs’ Unnecessary Institutionalization 25. Plaintiff Leah Jimmie is 28 years old and has dual diagnoses of mental retardation and schizoaffective disorder. 26. Ms. Jimmie was involuntarily committed to Clarks Summit State Hospital (CSSH) in October 2007 where she remains involuntarily committed. Ms. Jimmie has been committed to CSSH twice prior to her most recent commitment and has been admitted to community psychiatric hospitals on multiple occasions. 27. Ms. Jimmie does not receive appropriate habilitation services at CSSH to maximize her self-care, functional, and social skills in light of her mental retardation. Ms. Jimmie’s mental retardation undermines her ability to benefit from
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mental health treatment at CSSH because it is not adapted to meet her intellectual disability.
28. Ms. Jimmie’s treatment professionals at CSSH have concluded that, with appropriate supports and services, she can live in the community. CSSH is not the most integrated setting appropriate to meet her needs.
29. Ms. Jimmie wants to be discharged from CSSH and live in the community.
30. Plaintiff Josette Halechko is 26 years old and has dual diagnoses of mental retardation and schizoaffective disorder.
31. Ms. Halechko was involuntarily committed to CSSH in April 2007 where she remains involuntarily committed. Ms. Halechko had been admitted to community psychiatric hospitals on multiple occasions prior to her commitment to CSSH.
32. Ms. Halechko does not receive appropriate habilitation services at CSSH to maximize her self-care, functional, and social skills in light of her mental retardation. Ms. Halechko’s mental retardation undermines her ability to benefit from mental health treatment at CSSH because it is not adapted to meet her intellectual disability.
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33. The treatment professionals at CSSH have determined that Ms. Halechko can live in the community with appropriate services and supports. They have recommended since at least April 2008 that Ms. Halechko should be discharged to a placement for individuals with mental retardation, but she remains institutionalized unnecessarily at CSSH. CSSH is not the most integrated setting appropriate to meet her needs.
34. Ms. Halechko wants to be discharged from CSSH and live in the community.
35. Plaintiff Lewis Bowers is 43 years old and has diagnoses of mental retardation and impulse control disorder NOS (not otherwise specified).
36. Mr. Bowers was involuntarily committed to CSSH in March 1994 where he remains involuntarily committed.
37. A physician at CSSH stated on his admission that he “is a management problem and primarily MR [mental retardation], that he is not psychotic, and inpatient treatment would not be [the] treatment of choice” and that he needs treatment appropriate for his mental retardation.
38. Mr. Bowers does not receive appropriate habilitation services at CSSH to maximize his self-care, functional, and social skills in light of his mental retarda-
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tion. Mr. Bowers’s mental retardation undermines his ability to benefit from mental health treatment at CSSH because it is not adapted to meet his intellectual disability.
39. Mr. Bowers, with appropriate supports and services, could live in the community. The Tioga County MH/MR Program has concluded that he is appropriate for discharge. CSSH is not the most integrated setting appropriate to meet his needs.
40. Mr. Bowers wants to be discharged from CSSH and live in the community.
41. Plaintiff Janice Slater is 19 years old and has diagnoses of mental retardation, bipolar disorder, and post-traumatic stress disorder.
42. Ms. Slater was involuntarily committed to CSSH in July 2008 where she remains involuntarily committed. Prior to her commitment to CSSH, she had been admitted to community psychiatric hospitals on multiple occasions.
43. Ms. Slater does not receive appropriate habilitation services at CSSH to maximize her self-care, functional, and social skills in light of her mental retardation. Ms. Slater’s mental retardation undermines her ability to benefit from mental health treatment at CSSH because it is not adapted to meet her intellectual disability.
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44. On information and belief, Ms. Slater, with appropriate supports and services, could live in the community. CSSH is not the most integrated setting appropriate to meet her needs.
45. Ms. Slater wants to be discharged from CSSH and live in the community. 46. Plaintiff Ronald Pearson is 56 years old and has diagnoses of mental retardation and schizoaffective disorder, bipolar type. 47. Mr. Pearson was admitted to Allentown State Hospital (ASH) in August 2006 where he remains. Mr. Pearson resides on a ward that is locked during weekdays except for limited access to the smoking pavilion. Mr. Pearson signed a document pursuant to 50 P.S. § 7206(a) that provides that ASH may hold him for up to 72 hours after he gives notice that he wants to leave to enable ASH to secure an involuntary commitment t order. On information and belief, ASH would contact the police if Mr. Pearson left ASH without permission and the police would force him to return to ASH. Mr. Pearson is de facto involuntarily committed to state custody. 48. Mr. Pearson does not receive appropriate habilitation services at ASH to maximize his self-care, functional, and social skills in light of his mental retardation. Mr. Pearson’s mental retardation undermines his ability to benefit from mental health treatment at ASH because it is not adapted to his intellectual disability.
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49. Mr. Pearson’s treatment professionals at ASH have concluded since approximately February 2007 that, with appropriate mental retardation and mental health services and supports, he could live in the community. ASH is not the most integrated setting appropriate to meet his needs.
50. Mr. Pearson wants to be discharged from ASH and live in the community.
51. Plaintiff William Sacks is 48 years old and has diagnoses of mental retardation and chronic undifferentiated schizophrenia.
52. Mr. Sacks was involuntarily committed to ASH in October 2002 where he remains involuntarily committed.
53. Mr. Sacks does not receive appropriate habilitation services at ASH to maximize his self-care, functional, and social skills in light of his mental retardation. Mr. Sacks’s mental retardation undermines his ability to benefit from mental health treatment at ASH because it is not adapted to his intellectual disability.
54. Mr. Sacks’s treatment professionals at ASH have concluded that, with appropriate supports and services, he could live in the community. ASH is not the most integrated setting appropriate to Mr. Sacks’s needs.
55. Mr. Sacks wants to be discharged from ASH and live in the community.
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56. Plaintiff Edward Nauss is 59 years old and has diagnoses of mental retardation and schizoaffective disorder.
57. Mr. Nauss was involuntarily committed to Norristown State Hospital (NSH) in September 1998 where he remains. Mr. Nauss has been admitted to psychiatric hospitals on multiple occasions, including several hospitalizations at Haverford State Hospital. Mr. Nauss was admitted to White Haven Center, a stateoperated intermediate care facility for persons with mental retardation at age 14 and was transferred to Pennhurst State School and Hospital until he was discharged at age 18.
58. Mr. Nauss does not receive appropriate habilitation services at NSH to maximize his self-care, functional, and social skills in light of his mental retardation. Mr. Nauss’s mental retardation undermines his ability to benefit from mental health treatment at NSH because it is not adapted to his intellectual disability.
59. Mr. Nauss’s treatment professionals at NSH and in the Delaware County Office of Mental Retardation have concluded that, with appropriate supports and services, he can live in the community. NSH is not the most integrated setting appropriate to meet his needs.
60. Mr. Nauss wants to be discharged from NSH and live in the community.
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61. Plaintiff Benjamin Perrick is 65 years old and has diagnoses of mental retardation and pervasive developmental disorder, an autism spectrum disorder.
62. In December 1955, when he was 12 years old, Mr. Perrick was admitted to NSH where he remains. Mr. Perrick resides on a locked ward at NSH. On information and belief, Mr. Perrick signed a document pursuant to 50 P.S. § 7206(a) that provides that NSH may hold him for up to 72 hours after he gives notice that he wants to leave to enable NSH to secure an involuntary commitment order. On information and belief, NSH would contact the police if Mr. Perrick left NSH without permission and the police would force him to return to NSH. Mr. Perrick, who has been institutionalized at NSH for over 53 years, is de facto involuntarily committed to state custody.
63. Mr. Perrick does not receive appropriate habilitation services at NSH to maximize his self-care, functional, and social skills in light of his intellectual and developmental disabilities. A 1995 Psychological Evaluation of Mr. Perrick noted that his IQ was “substantially lower” than that obtained in his 1959 evaluation and “does indicate that Mr. Perrick’s intellectual functioning has declined over the years.” A 2007 evaluation of Mr. Perrick indicated that his verbal, reading, and drawing skills have deteriorated since his admission to NSH.
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64. Mr. Perrick’s intellectual and developmental disabilities undermine his ability to benefit from mental health treatment at NSH because it is not adapted to those disabilities. The 1995 Psychological Evaluation made a number of recommendations for treatment designed to accommodate his intellectual disabilities and increase his ability to benefit from treatment (e.g., limiting stimulation in his environment; limiting the length of his therapy sessions; participating in tasks that involve the simple discrimination of words and stimuli; having him assist -- with supervision and cuing -- to take care of his clothes; immediately reinforcing positive behavior). On information and belief, these recommendations were not implemented.
65. Mr. Perrick, with appropriate services and supports, could live in the community. At the request of DPW’s Office of Developmental Programs, the Philadelphia Department of Behavioral Health and Mental Retardation assessed Mr. Perrick in 2007 and identified the supports and services that he would need to live in the community. The report was submitted to DPW, but, to date, DPW has not provided Philadelphia with further directions with respect to planning for the development of community services for Mr. Perrick. NSH is not the most integrated setting appropriate to meet his needs.
66. Mr. Perrick wants to be discharged from NSH and live in the community.
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B. DPW’s Failure to Provide Minimally Adequate Training to Plaintiffs and Class Members
67. The Mental Health and Mental Retardation Act of 1966 (MH/MR Act), 50 P.S. §§ 4101-4704, requires DPW “[t]o assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them ....” 50 P.S. § 4201(1).
68. The MH/MR Act requires DPW to operate any state facilities. 50 P.S. § 4202(a).
69. DPW directly operates seven psychiatric hospitals -- Allentown State Hospital in Lehigh County; Clarks Summit State Hospital in Lackawanna County; Danville State Hospital in Montour County; Norristown State Hospital in Montgomery County; Torrance State Hospital in Westmoreland County; Warren State Hospital in Warren County; and Wernersville State Hospital in Berks County.
70. There currently are approximately 1,720 individuals institutionalized in DPW’s seven psychiatric hospitals. Of these 1,720 individuals, approximately 115 have diagnoses of mental retardation in addition to other diagnoses. There are individuals with mental retardation diagnoses in all of the state psychiatric hospitals.
71. The average length of stay for individuals with mental retardation in state psychiatric hospitals exceeds 10 years. More than 30 percent of these individuals have lengths of stay in excess of 10 years.
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72. While mental illness is treated medically, mental retardation is not a medical problem and medical training, by itself, does not qualify staff to work with people with mental retardation. Proper assessment and treatment of individuals with dual diagnoses of mental retardation and mental illness requires professionals who have training and experience in serving this unique population.
73. Mental retardation is treated by habilitation. Habilitation assists individuals with mental retardation to acquire, maximize, and maintain skills for selfcare, social functioning, and functioning in their environment. Habilitation requires individualized, interdisciplinary evaluations and treatment by staff trained in a developmental (not medical) model. Habilitation should be provided in as normal and integrated a setting as possible so that the individuals can learn by observing and participating in everyday life activities. Habilitation includes training and activities in basic self-care skills, community living skills, vocational services, and therapies. Habilitation must be constantly provided to people with mental retardation to avoid regression and loss of skills.
74. People with mental retardation can have behavior disorders that are characterized by self-injury and aggressiveness. Habilitation for such individuals must include behavioral modification plans, developed and implemented in a manner
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that is individualized to take into account the person’s intellectual disability. Such behavioral modification plans can ameliorate these behavioral problems.
75. It is difficult to provide appropriate habilitation services in state psychiatric hospitals. Individuals in these facilities lack access to community activities necessary for habilitation. Indeed, most individuals in Pennsylvania’s state psychiatric hospitals live on locked wards with little, if any, access to community life. In addition, people with mental retardation are likely to model the behaviors exhibited by people with mental illness if they are continually exposed to them.
76. To benefit from mental health services, people with dual diagnoses of mental retardation and mental illness must be provided with those services in a manner that takes into consideration their intellectual disabilities. For example, treatment plans that measure progress toward objectives in terms of weeks or months, as they do in state psychiatric hospitals, will not be of much value to people with mental retardation whose cognitive limitations generally require treatment strategies that have goals and consequences measured in days. In addition, individuals with mental retardation, whose abstract thinking and vocabulary may be limited, generally need to be provided with clear, concrete directions using basic vocabulary, offering explanations where needed, and avoiding use of sarcasm. Yet, the environment at DPW’s state psychiatric hospitals makes it difficult, if not impossible, to assure that
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treatment and interactions with clients with mental retardation are meaningful. The failure to provide meaningful access to mental health services to Plaintiffs and putative class members by adapting those services to their intellectual disabilities makes them more likely to be subject to longer institutional stays or to the “revolving door” of recurrent psychiatric readmissions.
77. On information and belief, DPW’s staff at its state psychiatric hospitals lack the experience and training necessary to make them qualified to: provide appropriate assessment of people with mental retardation; provide necessary habilitation services to people with mental retardation; provide any needed mental health treatment in a manner that is adapted to meet the needs of people with mental retardation; and to determine whether such individuals are appropriate for discharge to community-based mental retardation programs.
78. DPW’s institutionalization of people with no diagnosis of mental illness, such as Mr. Perrick and certain other putative class members, in a state psychiatric hospital is a substantial departure from professional judgment and deprives them of the minimally adequate training necessary to assure that they are safe and free from unnecessary restraints.
79. On information and belief, DPW does not provide state psychiatric hospital residents who have mental retardation, including Plaintiffs and putative class
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members, with necessary and appropriate habilitation services to meet their needs. This constitutes a substantial departure fromprofessional judgment and deprives such individuals of the minimally adequate training necessary to assure their safety and to assure that they are free from unnecessary restraints.
80. On information and belief, Defendants have failed to adapt the mental health services provided at state psychiatric hospitals to meet the unique needs of people with dual diagnoses of mental retardation and mental illness. This constitutes a substantial departure from professional judgment and deprives such individuals of the minimally adequate training necessary to assure their safety and to assure that they are free from undue restraints.
C. DPW’s Failure to Provide Community Alternatives to Plaintiffs and Class Members
81. Plaintiffs and many putative class members, with appropriate services and supports that address all of their disabilities, could live in more integrated settings than the state psychiatric hospitals where they currently are institutionalized.
82. Many of the Plaintiffs and putative class members have been determined by treatment professionals in the state psychiatric hospitals and/or professionals employed by Defendants’ agents at the County Mental Health and Mental Retardation (MH/MR) Programs to be appropriate for discharge to community mental retardation services.
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83. The failure to implement community placement recommendations is a substantial departure from professional judgment and renders these individuals subject to unnecessary restraints and fails to provide them with the minimally adequate training necessary to avoid unnecessary restraints.
84. Those Plaintiffs and many putative class members who have not been determined by treatment professionals in the state psychiatric hospitals to be appropriate for discharge have not received evaluations that accord with professional judgment. Staff are not qualified to assess whether a person with mental retardation can receive community-based mental retardation services and, on information and belief, are influenced by what services are available, rather than what is appropriate to meet the needs of the individuals.
85. Plaintiffs and many putative class members are not opposed to discharge to the community as long as appropriate services and supports are provided.
86. Some putative class members who might currently be opposed to discharge to the community may not be familiar with the types of community services and supports that could be provided and, if they were provided with information and education about such services and supports, they might not be opposed to discharge.
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87. Plaintiffs and putative class members who are appropriate for and not opposed to discharge have not been offered appropriate community mental retardation services by Defendants.
88. The MH/MR Act requires DPW to provide at least 90 percent of the funding for community-based mental retardation services. 50 P.S. § 4509(1).
89. DPW funds an array of home and community-based services for persons with mental retardation. The provision of community-based mental retardation services is administered through Defendants’ agents, the County MH/MR Programs. See 50 P.S. § 4301.
90. On information and belief, Defendants require Supports Coordinators (i.e., case managers) to be provided to all individuals with mental retardation in state psychiatric hospitals. However, the ratio of Supports Coordinators to clients in those institutions is significantly higher than the ratio of Supports Coordinators to clients who live in the community since DPW does not pay for supports coordination services provided to residents of the state psychiatric hospitals. The high ratio, combined with the distance between many Supports Coordinators and the clients living in isolated state psychiatric hospitals, undermines the ability of Supports Coordinators to provide effective services to clients in those facilities.
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91. The average cost to provide services for a resident in DPW’s psychiatric hospitals is approximately $208,000 annually.
92. DPW cannot receive federal Medical Assistance funding for the costs of providing care to residents of state psychiatric hospitals with the exceptions of residents under age 21 and residents age 65 and older. Accordingly, the Commonwealth pays approximately 90 percent of the overall costs to fund state psychiatric hospitals.
93. People with dual diagnoses of mental retardation and mental illness, including the named Plaintiffs and putative class members, are eligible to receive community-based mental retardation services in Pennsylvania.
94. The joint federal-state Medical Assistance program provides nearly 90 percent of the funding for all community-based mental retardation services in Pennsylvania through home and community-based services (HCBS) waivers, including the Consolidated Waiver and the Person/Family Directed Support Waiver.
a. These HCBS Waivers are approved by the federal Centers for Medicare and Medicaid Services (CMS) pursuant to 42 U.S.C. § 1396n(c).
b. With adjustments under the American Recovery and Reinvestment Act of 2009, the federal government currently pays approximately 63.1 percent of the
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costs of Medical Assistance services in Pennsylvania, including the costs of the HCBS Waivers.
95. The Commonwealth could receive an even higher federal Medical Assistance match to fund community-based services to state psychiatric hospital residents through implementation of its “Money Follows the Person” (MFP) Rebalancing Demonstration Project that was approved by CMS. Under this Project, the federal government authorized Pennsylvania to receive an enhanced federal match of approximately 77 percent to provide community alternatives to 165 residents of state psychiatric hospitals who are 65 years old or older (26 in calendar year 2008, 69 in calendar year 2009, and 13 in calendar year 2010). Such an increased match would defray the costs involved in transitioning people from institutional to community services (including the costs of funding, for a short period of time, both institutional and community services for the individuals). On information and belief, DPW has not implemented and has no plans to implement this initiative for state psychiatric hospital residents.
96. The average annual cost of community-based residential services for an individual with mental retardation in Fiscal Year 2008-09 is approximately $80,200. The average annual costs of non-residential community-based services for an individual with mental retardation in Fiscal Year 2008-09 is approximately $15,300.
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Accordingly, the average annual cost of community-based services for a person with mental retardation who receives both residential and non-residential supports is less than $100,000 -- less than 50 percent of the cost of the $208,000 average annual cost of services for an individual in a state psychiatric hospital.
97. Because most community-based mental retardation services are funded by the Medical Assistance program, the Commonwealth pays only about 37 percent of the approximately $100,000 average annual cost of providing community-based mental retardation services. In contrast, for most residents of state psychiatric hospitals, the Commonwealth must pay 100 percent of the costs.
98. There is a waiting list for community-based mental retardation services in Pennsylvania.
a. Defendants divide individuals on the waiting list into three categories: “emergency” (i.e., those who need services immediately); “critical” (i.e., those who need services within two years); and “planning” (i.e., those who are anticipated to need services more than two years but less than five years away).
b. Defendants’ agents give priority to persons living in the community who are on the emergency and critical waiting lists over those, like Plaintiffs and putative class members, who are institutionalized.
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99. Defendants’ agents complete Prioritization of Urgency of Need for Services (PUNS) assessments for each individual with mental retardation who apply for community mental retardation services and are not fully served.
100. PUNS assessments are completed for some state psychiatric hospital residents with diagnoses of mental retardation, but not for all such residents. Most individuals who have received PUNS assessments and are placed on waiting lists are unlikely to be removed from the waiting lists despite their categorization of need.
a. On information and belief, Plaintiffs Perrick and Slater do not have PUNS assessments and, therefore, have not been placed at all on the waiting list for services.
b. On information and belief, Plaintiff Jimmie has had no PUNS assessment after her admission to CSSH and the PUNS assessment completed prior to her admission to CSSH indicated that all of her needs were met so that she was not on the waiting list for services.
c. Plaintiffs Nauss and Bowers have been placed on the “emergency” waiting list based on their PUNS assessments.
d. Plaintiffs Halechko, Pearson, and Sacks have been placed on the “critical” waiting list based on their PUNS assessments.
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101. In at least the past five fiscal years, DPW has sought and received funding for initiatives to provide community-based services for individuals with mental retardation on the waiting list for community services, including: more than 3,400 individuals in FY 2007-08 and more than 1,300 individuals in FY 2008-09. DPW has requested funding for FY 2009-10 to provide community services to nearly 800 persons with mental retardation on the waiting list.
102. On information and belief, more than 1,000 of the approximately 5,500 persons who have received or will receive funding for community services under the waiting list initiatives between FY 2007-08 and FY 2009-10 will receive both residential and non-residential services and supports.
103. In FY 2008-09, DPW funded community mental retardation services through HCBS Waivers for only 16 individuals who had been in the mental health system. For FY 2009-10, DPW has requested funding to provide community mental retardation services through HCBS Waivers for only 3 individuals who are in the mental health system.
104. The costs to Defendants of providing Plaintiffs and putative class members with appropriate, community-based mental retardation services, including residential services, would be less than the cost to Defendants to institutionalize them in state psychiatric hospitals.
29

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105. DPW has no viable integration plan -- with specific time lines and bench marks -- to develop and provide community alternatives to residents of state psychiatric hospitals who have mental retardation.
106. DPW does not have a waiting list that moves at a reasonable pace to provide community alternatives to state psychiatric hospital residents who have mental retardation.
D. Irreparable Harm 107. Plaintiffs and putative class members have suffered irreparable harm as a result of the Defendants’ actions and inactions in this case. VI. Claims A. Violation of Title II of the Americans with Disabilities Act 108. Paragraphs 1 through 107 are incorporated by reference. This Count is brought solely against Defendant Richman in her official capacity for acts and omissions under state law. 109. Plaintiffs and putative class members have mental retardation, an impairment that substantially limits one or more major life activities, including but not limited to, caring for themselves, learning, concentrating, and thinking. Plaintiffs and putative class members also have other impairments, such as schizoaffective disorder, bipolar disorder, pervasive developmental disorder, and impulse control disorder that
30

Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 31 of 39
substantially limit one or more major life activities, including but not limited to, caring for themselves, concentrating, thinking, and interacting with others. As such, they are persons with disabilities protected by the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12102(1)(A), 12102(2)(A).
110. Plaintiffs and putative class members are eligible for community-based mental retardation services and, as such, are qualified persons with disabilities under the ADA. 42 U.S.C. § 12131(2).
111. DPW, operated and administered by Defendant Richman, is a public entity subject to the requirements of Title II of the ADA. 42 U.S.C. § 12131(1)(B).
112. Defendant Richman violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(d), by unnecessarily segregating Plaintiffs and putative class members in institutions, by failing to offer them mental retardation services in the community, which is the most integrated setting appropriate to meet their needs, and by failing to provide such community services to Plaintiffs and those putative class members who are not opposed to discharge.
113. Defendant Richman violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(b)(3), by using methods of administration that subject Plaintiffs and putative class members to discrimination through continued unnecessary segregation and institutionalization, including, but not limited to:
31

Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 32 of 39
a. failing to effectively assess all residents of state psychiatric hospitals who have diagnoses of mental retardation to determine what community supports and services they need and whether, if they received such services and supports, they would be appropriate for discharge;
b. not requiring DPW’s agents to place state psychiatric hospital residents who have mental retardation on the waiting list for community mental retardation services; not placing all such residents who are appropriate for discharge on the emergency waiting list; and not giving priority to those state psychiatric hospital residents who are on the emergency waiting list;
c. not assuring that Plaintiffs and putative class members have access to effective Supports Coordination services to assist them in securing appropriate community services;
d. failing to provide adequate information to state psychiatric hospital residents who have mental retardation and their families about the community placements to enable them to make an informed choice if and when they are offered community services; and
e. failing to have a plan with specific and concrete benchmarks and timelines within which state psychiatric hospital residents who have mental retarda-
32

Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 33 of 39
tion and their families will be offered and, if accepted, provided with community alternatives so that there is a waiting list that moves at a reasonable pace.
114. Defendant Richman violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(b)(7), by failing to make reasonable modifications in its policies, practices, and procedures necessary to enable Plaintiffs and putative class members to avoid discrimination against them based on their mental retardation. Specifically, Defendant has failed to assure that staff at state psychiatric hospitals have appropriate training and experience to provide mental health services to people with mental retardation and has failed to adapt the mental health services DPW provides to people with mental retardation in state psychiatric hospitals so that they can have the opportunity for the same benefit from the services as state psychiatric hospital residents who do not have mental retardation.
B. Violation of Section 504 of the Rehabilitation Act 115. Paragraphs 1 through 114 are incorporated by reference. This Count is brought solely against Defendant DPW. 116. Plaintiffs and putative class members have mental retardation, an impairment that substantially limits one or more major life activities, including but not limited to, caring for themselves, learning, concentrating, and thinking. Plaintiffs and putative class members also have other impairments, such as schizoaffective
33

Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 34 of 39
disorder, bipolar disorder, pervasive developmental disorder, and impulse control disorder that substantially limit one or more major life activities, including but not limited to, caring for themselves, concentrating, thinking, and interacting with others. As such, they are persons with disabilities protected by Section 504 of the Rehabilitation Act (RA). 29 U.S.C. § 705(20)(B).
117. Plaintiffs and putative class members are eligible for community-based mental retardation services and, as such, are qualified persons with disabilities pursuant to Section 504 of the RA.
118. DPW is a recipient of federal financial assistance and, as such, is subject to the requirements of Section 504 of the RA. 29 U.S.C. § 794(b).
119. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(d), by unnecessarily segregating Plaintiffs and putative class members in institutions, by failing to offer them mental retardation services in the community, which is the most integrated setting appropriate to meet their needs, and by failing to provide such services to Plaintiffs and those putative class members who are not opposed to discharge.
120. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(b)(3), by using methods of administration that subject Plaintiffs and
34

Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 35 of 39
putative class members to discrimination through continued unnecessary institutionalization, including, but not limited to:
a. failing to effectively assess all residents of state psychiatric hospitals who have diagnoses of mental retardation to determine what community supports and services they need and whether, if they received such services and supports, they would be appropriate for discharge;
b. not requiring its agents to place state psychiatric hospital residents who have mental retardation on the waiting list for community mental retardation services; not placing all such residents who are appropriate for discharge on the emergency waiting list; and not giving priority to those state psychiatric hospital residents who are on the emergency waiting list;
c. not assuring that Plaintiffs and putative class members have access to effective Supports Coordination services to assist them in securing appropriate community services;
d. failing to provide information to state psychiatric hospital residents who have mental retardation and their families about the community placements to enable them to make an informed choice if and when they are offered community services; and
35

Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 36 of 39
e. failing to have a plan with specific and concrete benchmarks and timelines within which state psychiatric hospital residents who have mental retardation and their families will be offered and, if accepted, provided with community alternatives so that there is a waiting list that moves at a reasonable pace.
121. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794, by failing to make reasonable modifications in its policies, practices, and procedures necessary to enable Plaintiffs and putative class members to avoid discrimination against them based on their mental retardation. Specifically, DPW has failed to assure that staff at state psychiatric hospitals have appropriate training and experience to provide mental health services to people with mental retardation and has failed to adapt the mental health services it provides to people with mental retardation in state psychiatric hospitals so that they can have the opportunity for the same benefit from the services as state psychiatric hospital residents who do not have mental retardation.
C. Violation of the Fourteenth Amendment of the Constitution 122. Paragraphs 1 through 121 are incorporated by reference. This Count is brought solely against Defendant Richman in her official capacity as Secretary of Public Welfare for actions and inactions under color of state law. 123. Defendant Richman has violated the Due Process Clause of the Fourteenth Amendment to the Constitution and 42 U.S.C. § 1983 by failing to provide
36

Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 37 of 39
Plaintiffs and putative class members with minimally adequate or reasonable training to ensure their safety and freedom from undue restraint in accordance with the judgment of qualified treatment professionals by, inter alia:
a. failing to assure that staff at state psychiatric hospitals are qualified to properly assess and treat individuals with mental retardation;
b. institutionalizing individuals with developmental disabilities who do not have diagnoses of mental illness;
c. failing to provide necessary and appropriate habilitation services to state psychiatric hospital residents who have mental retardation; and
d. failing to adapt the mental health treatment provided at state psychiatric hospitals so that residents with mental retardation can benefit from it.
124. Defendant Richman has violated the Due Process Clause of the Fourteenth Amendment to the Constitution and 42 U.S.C. § 1983 by failing to provide appropriate community supports and services to those Plaintiffs and putative class members who, in the opinion of qualified treatment professionals, could live in the community. This constitutes an unreasonable restraint of their liberty and a failure to provide minimally adequate training to assure that they are free from undue restraints on their liberty.
37

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VII. Relief 125. Plaintiffs respectfully request that the Court award the following relief: a. exercise jurisdiction over this action; b. certify this case to proceed as a class action pursuant to Federal
Rule of Civil Procedure 23(b)(2); c. issue appropriate declaratory relief and injunctive relief; d. grant such other relief as may be appropriate, including awarding
reasonable attorneys’ fees, litigation expenses, and costs pursuant to 42 U.S.C. §§ 1988, 12205 and 29 U.S.C. § 794a(b).
Respectfully submitted,

Dated: June 11, 2009

By: /s/ Robert W. Meek Robert W. Meek PA 27870 Mark J. Murphy PA 38564 Robin Resnick PA 46980 Disability Rights Network of PA 1315 Walnut Street, Suite 400 Philadelphia, PA 19107-4798 (215) 238-8070 (215) 772-3126 (fax) RMeek@drnpa.org

38

Case 3:09-cv-01112-CCC Document 1 Filed 06/11/09 Page 39 of 39
Carol Horowitz PA 81660 Disability Rights Network of PA 1901 Law & Finance Building 429 Fourth Avenue Pittsburgh, PA 15219-1505 CHorowitz@drnpa.org Counsel for Plaintiffs
39

 
 Case 3:09-cv-01112-CCC Document 13 Filed 09/02/09 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

_____________________________________

:

LEAH JIMMIE, JOSETTE HALECHKO, :

LEWIS BOWERS, and JANICE SLATER, :

by and through their next friend, Carl

:

Mosier; RONALD PEARSON and

:

WILLIAM SACKS, by and through their :

next friend, Connie Hammann; EDWARD :

NAUSS and BENJAMIN PERRICK, by :

and through their next friend, Akhnaton :

Browne, on behalf of themselves and all :

others similarly situated,

:

:

Plaintiffs,

: Filed via ECF System

:

v.

:

Civil Action No. 3:09-cv-1112-TIV

:

DEPARTMENT OF PUBLIC WELFARE : Class Action

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and ESTELLE B.

: (Judge Vanaskie)

RICHMAN, in her official capacity as

:

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

:

Defendants.

:

____________________________________:

PLAINTIFFS= UNOPPOSED MOTION FOR CLASS CERTIFICATION
Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs,
through their counsel and next friends, submit this Unopposed Motion for Class
Certification. Plaintiffs request that the Court certify this case to proceed on behalf of

Case 3:09-cv-01112-CCC Document 13 Filed 09/02/09 Page 2 of 3

the following class:

All individuals with m ental retardation who are institutionalized in state psychiatric facilities and who are not subject to the jurisdiction of the criminal courts.

In support of this Motion, Plaintiffs subm it a Certificate of Concurrence, a Brief in

Support of Class Certification and Exhibits, which are incorporated by reference in

this Motion.

Respectfully

submitted,

Dated: September 2, 2009
PA Mark PA
PA Disability 1315 Philadelphia, (215) (215)

By: /s/ Robert W. Meek Robert W. Meek 27870 J. Murphy 38564 Robin Resnick 46980 Rights Network of PA Walnut Street, Suite 400 PA 19107-4798 238-8070 772-3126 (fax) RMeek@drnpa.org

PA Disability 429 Pittsburgh,

Carol Horowitz 81660 Rights Network of PA Fourth Ave., Suite 701 PA 15219-1505
CHorowitz@drnpa.org

Counsel for Plaintiffs

Case 3:09-cv-01112-CCC Document 13 Filed 09/02/09 Page 3 of 3
CERTIFICATE OF SERVICE The undersigned hereby certifies that Plaintiffs’ Unopposed Motion for Class Certification, Brief and Exhibits in S upport of that Unopposed Motion for Class Certification, and proposed Order, were served with the Court’s ECF system on the following counsel who consented to electronic service:
Allen C. Warshaw, Chief Counsel Department of Public Welfare 3rd Floor West Health & Welfare Building Harrisburg, PA 17120 Howard Ulan, Deputy Chief Counsel Department of Public Welfare 3rd Floor West Health & Welfare Building Harrisburg, PA 17120
/s/ Robert W. Meek Robert W. Meek

 
 Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

LEAH JIMMIE, JOSETTE HALECHKO, :

LEWIS BOWERS, and JANICE SLATER, :

by and through their next friend, Carl

:

Mosier; RONALD PEARSON and

:

WILLIAM SACKS, by and through their :

next friend, Connie Hammann; EDWARD :

NAUSS and BENJAMIN PERRICK, by :

and through their next friend, Akhnaton :

Browne, on behalf of themselves and all :

others similarly situated,

:

:

Plaintiffs,

:

Filed via ECF System

:

v.

:

Civil Action No. 3:09-cv-1112-TIV

:

DEPARTMENT OF PUBLIC WELFARE : Class Action

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and ESTELLE B.

: (Judge Vanaskie)

RICHMAN, in her official capacity as

:

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

:

Defendants.

:

____________________________________:

BRIEF IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR CLASS CERTIFICATION

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 2 of 25

TABLE OF CONTENTS

Table of Citations...................................................................................................... ii

Introduction ................................................................................................................1

Factual and Procedural Background ..........................................................................1

Questions Involved ....................................................................................................7

Argument....................................................................................................................7

I. This Action Satisfies the Prerequisites of Federal Rule of Civil Procedure 23(a) .....................................................7

A. The Proposed Class Is So Numerous That Joinder of All Members Is Impracticable...................................7

B. There Are Questions Of Law And Fact Common To The Class. .....................................................9

C. Plaintiffs= Claims Are Typical of Class Members. .........................12

D. The Named Plaintiffs Will Fairly And Adequately Represent the Interests of the Class ................................................14

II.

This Action is Maintainable as a Class Action under

Rule 23(b)(2) Since Defendants Have Acted or Refused

to Act on Grounds Generally Applicable to the Class .........................17

Conclusion ...............................................................................................................19

i

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 3 of 25
TABLE OF CITATIONS
Cases
Anderson v. Dep=t of Public Welfare, 1 F. Supp.2d 456 (E.D. Pa. 1998)………………………………………16
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) cert. denied, 123 S. Ct. 72 (2002)……….12
Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994)…………………………….....10, 12, 13, 14, 17
Bacal v. SEPTA, Civil Action No. 94-6497, 1995 WL 299029 (E.D. Pa. May 16, 1995)…10
Chiang v. Veneman, 385 F.3d 256 (3d Cir. 2004)………………………………………………12
Cureton v. National Collegiate Athletic Ass=n, Civil Action No. 97-131, 1999 WL 447313 (E.D. Pa. July 1, 1999)…………………………………………..8, 9, 14, 15
In re Flat Glass Antitrust Litigation, 191 F.R.D. 472 (W.D. Pa. 1999)…………………………………………10
Frederick L. v. Dep’t of Public Welfare, 422 F.3d. 151, 158-59 (3d Cir. 2005)………………………………6, 16, 18
General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147 (1982)……………………………………………………….14
Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976)…………………………………………18
Hagan v. Rogers, 570 F. 3d. 146 (3d Cir. 2009)………………………………………………13
ii

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 4 of 25
Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988)……………………………………………10, 15
Kathleen S v. Dep’t of Public Welfare, Civil Action No. 97-6610, 1998 WL 83973 (E.D. Pa. Feb. 25, 1998)……………………………………………… 16, 19
Long v. Benson, Civil Action No. 4:08cv26-RH/WCS, 2008 WL 4571904 (N.D. Fla. Oct. 14, 2008)…………………………………………………. 18
Maldonado v. Richman, 177 F.R.D. 311 (E.D. Pa. 1997) aff’d on other grounds, 157 F.3d 179 (3d Cir. 1998), cert denied, 526 U.S. 1130 (1999)………….12
Massie v. U.S. Dep’t of Housing & Urban Dev., 246 F.R.D. 490 (W.D. Pa. 2007)…………………………………………….8
Metts v. Richman, Civil Action No. 97-4123, 1997 WL 688804 (E.D. Pa. Oct. 24, 1997)……………………………………………..9, 15, 16
Richard C. v. Snider, Civil Action No. 89-2038, 1993 WL 757634 (W.D. Pa. June 22, 1993)…………………………………………….. 16, 19
Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993)…………………………………………………9
Serventi v. Bucks Technical High School, 225 F.R.D. 159 (E.D. Pa. 2004)…………………………………………8, 16
Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001), cert. denied, 536 U.S. 958 (2002)…………………………………………………8, 12, 17
T.B. v. School Dist. of Philadelphia, Civil Action No. 97-5453, 1997 WL 786448, (E.D. Pa. Dec. 1, 1997)………………………………………………..12, 14
iii

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 5 of 25
In re Tel-Save Sec. Litigation, Civil Action No. 98-3145, 2000 WL 1005087 (E.D. Pa. July 29, 2000)…………………………………………………….8
Weiss v. York Hosp., 745 F.2d 786 (3d Cir. 1984)……………………………………………14, 17
Williams v. Blagojevich, Civil Action No. 05 C 4673, 2006 WL 3332844 (N.D. Ill Nov. 13, 2006…………………………………………………….18
Statutes, Regulations, and Rules 50 P.S. §§ 4101-4704………………………………………………………………2 50 P.S. § 4201(1)…………………………………………………………………..2 Fed R. Civ. P. 23(a)………………………………………………………………..7 Fed. R. Civ. P. 23(b)(2)………………………………………………………….. 17
iv

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 6 of 25
INTRODUCTION Plaintiffs, through their counsel, submit this Brief in support of their Unopposed Motion for Class Certification. Pl aintiffs respectfully request that the Court certify this case to proceed on behalf of the following class:
All individuals with m ental retardation who are institutionalized in state psychiatric facilities and who are not subject to the jurisdiction of the criminal courts. The criteria of Federal Rules of Civil Pro cedure 23(a) and 23(b)(2) are satisfied in this case, making class certification appropriate.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs Leah Jimm ie, Josette Ha lechko, Lewis Bowers, Janice Slater, Ronald Pearson, Wil liam Sacks, and Edwa rd Nauss are indi viduals with mental retardation who are institutiona lized in Pennsylvania’s state psychiatric hospitals. 1 Compl. ¶¶ 25, 26, 30, 31, 35, 36, 41, 42, 46, 47, 51, 52, 56, 57. Plaintiffs filed t his class action lawsuit to challenge the ac tions and inactions of Defendants, the Department of Publ ic Welfare and the Secr etary of Public Welfare (collectively, DPW), for failing to offer and provide appr opriate mental retardation services in the most integrated setting appropriate to their needs, for failing to provide appropriate habilitation services, and failing to provi de mental health services
1 Plaintiff Benjamin Perrick died in Norristown State Hospital on June 15, 2009, as a result of choking to death on a tuna sandwich. See Notice of Death filed June 24, 2009; Meek Decl. ¶ 6.
1

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 7 of 25
adapted so that people with mental reta rdation can benefit from their services. Id. ¶¶ 112, 113, 114, 119, 120, 121, 123, 124.
The Mental Health and Retar dation Act of 1966 (MH/MR Act), 50 P.S. §§ 4101-4704, requires DPW “to assure within the State the availability and equitable provision of adequate mental health and me ntal retardation services for all persons who need them …” 50 P.S. § 4201(1). Consistent with the requirements of t he MH/MR Act, DPW operates se ven state psychiatric hosp itals located throughout the Commonwealth in order to serve and tr eat individuals with m ental illness. Compl. ¶¶ 68, 69. There ar e approximately 115 i ndividuals with a di agnosis of mental retardation that are institutionalized in the seven state psychiatric hospitals who are not subject to the jurisdiction of the criminal courts. Id. ¶ 70. While mental illness is treated medically, mental retard ation is not a medical problem and is treated by habilitation. Id. ¶¶ 72, 73. Habilitation assi sts individuals to acquire, maximize and maintain skills for self-care, social functioning, and func tioning in their environment. In contrast to the me dical model used to treat individuals with mental illness, habilitation requires individualized, inte rdisciplinary evaluations and treatment by staff trained in a developmental model. Id. ¶ 73. Habilitation should be provided in as inte grated a setting as possible so that individuals have the opportunity to learn by observation and participation in every day activities. In order to avoid regression and loss of skills, hab ilitation must be provide d
2

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 8 of 25
constantly to the individual. Id. ¶ 73. None of the Plai ntiffs receive habilitation services. Id. ¶ 27, 32, 38, 43, 48, 53, 58.2
To benefit from mental health servi ces, people with a dual diagnosis of mental retardation and m ental illness must be provided with those se rvices in a manner that takes into consideration thei r intellectual disabilities. Com pl. ¶ 76. Failure to provi de meaningful access to mental health services by adapting those services to their intellectual disabiliti es makes Plaintiffs and putative class members more likely to be subject to longer institutiona l stays or recurrent psychiatric readmissions. Id. ¶ 76. The average length of stay for indivi duals with mental retardation in state psychiatric hospitals exceeds 10 years. Id. ¶ 71.3
In sum, DPW has failed to provide Plaintiffs and putative class memb ers with necessary and appropriate habilitation services to meet their needs, and has failed to adapt the mental health services provided at state psychiatric hospitals to individuals with intellectual disabilities. Compl. ¶¶ 27, 32, 38, 43, 48, 53, 58, 79, 80. The failure to provide appropriate habilitation and mental health services
2 It is difficult to provide appropriate ha bilitation services in state psychiatric hospitals because i ndividuals residing in such f acilities lack access to the community activities necessary for habilitation. Compl. ¶ 75. 3 Plaintiffs have had varying lengths of stay. For exam ple, Plaintiff Slater is only 19 years of age, but has already spent 11 m onths institutionalized in a state hospital. Compl. ¶¶ 41, 42, 43. Plaintiff Bowers, 43 years of age, has spent the last 15 years in a state hospital Id. ¶ ¶ 35, 36, 37, 38. The now-deceased Plaintiff Perrick spent more than 50 years in a state hospital. Id. ¶ 62.
3

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 9 of 25
constitutes a substantial departure from professional judgment and deprives the Plaintiffs and putative class members of the minimally adequate training necessary to assure their safety and freedom from unnecessary restra ints in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution (Due Process Clause). Id. ¶¶ 79, 80, 123. In a ddition, DPW’s failure to adapt its m ental health services so that state h ospital residents with mental re tardation can benefit from the services violates the Amer icans with Di sabilities Act (ADA) and Rehabilitation Act of 1973 (RA). Id. ¶¶ 114, 121.
In addition, Plaintiffs and many of the putative class members, with appropriate services and suppo rts, could live in m ore integrated settings than state psychiatric facilities. Co mpl. ¶ 81. Ma ny of the Plaintiffs and putative class members desire a chance to live in the co mmunity and have been determ ined by Defendant’s treatment professionals to be appropriate for discharge to comm unity mental retardation services. Id. ¶¶ 28, 29, 33, 34, 39, 40, 45, 49, 50, 54, 55, 59, 60, 82. Yet, these individuals remain institutionalized. 4 Plaintiffs and many of the putative class are not opposed to disc harge to the comm unity, as long as
4 Those Plaintiffs and many putative class members who have not been determ ined by treatment professionals to be approp riate for discharge have not received evaluations that accord with profession al judgment because the staf f in state psychiatric hospitals are not qualified to assess individuals with mental retardation for receipt of appropriate co mmunity-based mental retardation services. Co mpl. ¶ 84.
4

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 10 of 25
appropriate services and supports are provided, but have not been offered appropriate community mental retardation services. Id. ¶¶ 85, 86. 5 Since mos t community-based mental retardation services are funded through the joi nt federalstate Medicaid program , the Comm onwealth pays only about 37 percent of the approximately $100,000 average cost of providing community-based m ental retardation services. Compl. ¶¶ 94, 96, 97. In contrast, for most residents of state psychiatric hospitals, the Commonwealth must pay 100% of the costs, which average approximately $208,000 per person annuall y. Id. ¶¶ 91, 92, 97. The cost of serving Plaintiffs and putative class members in the community is therefore less than the cost to Defendant for keeping these individuals institutionalized. Id. ¶ 104. Despite the lower costs of serving Plain tiffs and putative class m embers through the community mental retardation system and DPW’s significant expansion of community mental retardation services for m any other indivi duals, DPW has not offered such co mmunity alternatives to many state hospital residents. Id. ¶¶ 101104.6 Moreover, DPW has no viable integra tion plan – with specific ti melines and
5 The putative class mem bers that are cu rrently opposed t o discharge to the community may not be fam iliar with community services and supports that coul d be provided. If they were provided w ith information and educated about their options, they might not be opposed to discharge. Compl. ¶ 86. 6 DPW’s policies and practices underm ine any effort to secure comm unity mental retardation services for Plaintiffs and putative class memb ers. For example, DPW’s process to identify pe ople on t he waiting list for co mmunity mental
5

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 11 of 25
benchmarks – to develop and provi de community alternatives to Plaintiffs and
putative class memb ers, Compl. ¶ 101, ev en though the Third Circuit held m ore
than four years ago that the ADA and RA require DPW to have such plans for
individuals who are unnecessarily i nstitutionalized. Compl. ¶ 85; Frederick L. v.
Dep’t of Public Welfare, 422 F.3d. 151, 158-59, 160 (3d Cir. 2005).
DPW’s continued unnecessary segrega tion of and concomitant failure to
offer community alternatives to those Pl aintiffs and putative class memb ers who
are appropriate for and not opposed to discharge violates the ADA and RA.
Compl. ¶¶ 112, 119. DPW also violates the ADA and RA by using methods of
administration that subjects Plaintiffs and putative class members to discriminatory
unnecessary segregation, including, inter alia, failing to provide them with access
to effective case managem ent and failing to have a viable integration plan to
provide community alternatives for state hospital residents with mental retardation.
Id. ¶¶ 113, 120. In addition, DPW’s failu re to im plement community placement
recommendations for Plaintiffs and putative class members also violates the Due
retardation services and to prioritize acce ss to such services is not effective for many of these individuals. See Compl. ¶¶ 98-100. For exampl e, some of these individuals (including Plaintiff Slater and now-deceased Plaintiff Perrick) have not been assessed for placement on the waiting list at all. Id. ¶ 100(a). Others who are on the waiting list are not given priority even though they are unnecess arily institutionalized. See Id. ¶¶ 113(b), 120(b). Moreover, DPW does not assure that these individuals have access to effec tive case management services that are necessary to identify and advocat e for comm unity alternatives. Id. ¶¶ 90, 113(c), 120(c).
6

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 12 of 25

Process Clause. Id. ¶¶ 83, 124.

Plaintiffs seek appropriate declar atory and injunctive relief to rem edy

DPW’s violations of the ADA, RA, and Due Process Clause. Compl. ¶ 125.

QUESTIONS INVOLVED

Should this case be certified to proceed as a class action pursuant to Federal

Rules of Civil Procedure 23(a) and 23(b)(2)?

ARGUMENT

I. THIS ACTION SATISFIES THE PREREQUISITES OF FEDERAL RULE OF CIVIL PROCEDURE 23(a).

Federal Rule of Civil Procedure 23(a) has four requirem ents that m ust be

satisfied in order for a class action to be maintained:

(1) the class must be so numerous that joinder of all members is

im

practicable;

(2) there must be a question of law or fact common to the class;

(3)

the claims or defenses of the representative parties must be

typical

of the claims or defenses of the class; and

(4)

the representative parties must fairly and adequately protect the

interests

of the class.

This case satisfies each of these requirements.

A. The Proposed Class Is So Numerous That Joinder of All Members Is Impracticable.

Federal Rule of Ci vil Procedure 23 (a)(1) requires that a class be so
7

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 13 of 25

numerous that j oinder of the class m embers would be im practicable.

AImpracticability of joinder does not mean im possibility, but rather that the

difficulty or inconve nience of joini ng all members of the putative class calls for

class certification.@ In re Tel-Save Sec. Litigation, Civil Action No. 98-3145, 2000

WL 1005087 at *4 (E.D. Pa. July 29, 2000)(Exh. C); accord Cureton v. National

Collegiate Athletic Ass=n, Civil Action No. 97-131, 1999 W L 447313 at *4 (E.D.

Pa. July 1, 1999)(E xh. D). “No m inimum number of plaintiffs is required to

maintain a suit as a class action, but gene rally if the named p laintiff demonstrates

that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has

been met.” Stewart v. Abraham , 275 F.3d 220, 226-227 (3d Cir. 2001), cert.

denied, 536 U.S. 958 (2002); see also Massie v. U.S. De p’t of Housing & Urban

Dev., 246 F.R.D. 490, 493 (W.D. Pa. 2007) (numerosity satisfied by 52 class

members); Serventi v. Bucks Technical High School , 225 F. R.D. 159, 165 (E.D.

Pa. 2004) (numerosity satisfied by at least 47 class members).

In the instant case, DPW provided pl aintiffs’ counsel wit h a list of the

individuals diagnosed with mental re tardation who are institutionalized in

Pennsylvania state psychiatri c hospitals as of October 31, 2008 (re dacted list

attached as Exh. B). Declarati on of Robert W. M eek ¶ 2 (Exh. A). There are 121

individuals on the l ist, 115 of whom are not subject to the juri sdiction of t he

criminal courts. Joinder of such a

large number of indi viduals is by itself
8

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 14 of 25
impracticable. Other factors t hat weigh in favor of class certification are class dispersion,
ease of identifying the cla ss members, and the ability of individual class members to pursue individual cases. See Robidoux v. Celani, 987 F. 2d 931, 936 (2d Cir. 1993); Cureton, 1999 WL 447313 at *6 (E.D. Pa. July 1, 1999); Metts v. Richman, Civil Action No. 97-4123, 1997 WL 688804 at *2 (E.D. Pa. Oct. 24, 1997)(Exh. E). Here, the mem bers of the class ar e located in seven psychiatri c hospitals dispersed throughout Pennsyl vania. Du e to the time and financial resources required to pursue relief, as well as the cl ass members= disabilities, it is highly unlikely that members of the class will file individual lawsuits. Indeed, individual litigation would result only in the most assertive plaintiffs receiving needed services instead of in the systemic relief that is required to address the issues raised in this action. These factors, along wi th the siz e of the class, make joinder impracticable. Therefore, the Rule 23(a)(1) requirement of numerosity is satisfied.
B. There Are Questions Of Law And Fact Common To The Class.
Rule 23(a) requires that there be ques tions of law and fact comm on to the class. The class members need not have id entical claims, but merely co mmon claims. Hassine v. Jeffes, 846 F.2d 169, 176-77 (3d Cir. 1988). Plainti ffs are not required to show that all questions of law and fact are common. In re Flat Glass
9

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 15 of 25
Antitrust Litigation, 191 F.R.D. 472, 478 (W.D. Pa. 1999). AThe commonality requirement will be satisfied if the named plaintiffs shar e at least one question of fact or law with the grievances of the pr ospective class. Because the requirement may be satisfied by a single common issue, it is easily m et.@ Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (citations omitted). Injunctive actions very often present common questions that satisfy Rule 23(a)(2) because ther e is no need for an inquiry into appropriate damage awards. Baby Neal, 43 F.3d at 57. Class relief is Aespecially appropriate@ where Plaintiffs seek injunctive relief against defendants engaged in a comm on course of con duct affecting the entire class. Bacal v. SEPTA, Civil Action No. 94-6497, 1995 WL 299029 at *3 (E.D. P a. May 16, 1995)(Exh. F).
This case presents clai ms for declar ative and injunctive relief to remedy Defendants’ failure to com ply with the ADA, RA, and the Due Process Clause. Several questions of fact and law common to the named Plaintiffs and members of the putative class arise, including:
a. whether Defendants have failed to offer and provide services and supports in m ore integrated settings to class mem bers who are not opposed t o discharge and, if so, whether that fail ure violates the integration mandates of the ADA and RA; b. whether Defendants have us ed methods of adm inistration
10

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 16 of 25
that have the effect of discri minating against individuals wit h disabilities and, if so, whether doing so violates the ADA an d RA; c. whether Defendants have faile d to m odify their policies, practices, and procedures to adap t the mental health treatment provided at state hospitals to meet the needs of individuals wit h mental retardation and, if so, wh ether such failure violates the ADA and RA; d. whether Defendants have failed to provide habilitation services to state psychiatric hospital residents with m ental retardation and, if so, whether such fai lure violates the Due Process Clause; e. whether Defendants have failed to adapt the mental healt h services they provi de in state psychiatric hospit als so that individuals with mental retarda tion can benefit from it and, if so, whether such failure violates the Due Process Clause; f. whether Defendants have failed to provide community mental retardation services to state ps ychiatric hospital residents wit h mental retardation whose qualified treatment professionals have recommended such services and, if so, whether such failure
11

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 17 of 25
violates the Due Process Clause. “Courts appear to consider ‘comm on’ such challenges based on all eged violations of statutory standards.” Baby Neal, 43 F.3d at 56-57. This case is based on common legal questions and seeks only declaratory and injunct ive relief. Accordingly, Rule 23(a)(2) is satisfied. Chiang v. Veneman, 385 F.3d 256, 265-266 (3d Cir. 2004) (finding comm onality in case involving various discrim ination claims); Maldonado v. Richman, 177 F.R.D. 311, 320-21 (E.D. Pa. 1997) (finding commonality satisfied where ther e were common legal questions), aff’d on other grounds, 157 F.3d 179 (3d Cir. 1998), cert denied, 526 U.S. 1130 (1999).
C. Plaintiffs= Claims Are Typical of Class Members. Typicality is satisfied if the Plaintiffs = claims arise from the same course of conduct that gave rise to the claim s of other class mem bers, and the claim s are based on the same legal theory. See Stewart v. Abraham, 275 F.3d at 228; Baby Neal, 43 F.3d at 58; T.B. v. School Dist. of Philadelphia, Civil Action No. 97-5453, 1997 WL 786448, at *4-*5 (E.D. Pa. Dec. 1, 1997)(Exh. G); Armstrong v. Davis, 275 F.3d 849, 868-69 (9th Cir. 2001) cert. denied, 123 S. Ct. 72 (2002). Claims that challenge conduct that affects the named Plaintiffs as well as the class members, such as the claims in the instant case, Ausually satisfy the typicality requirement irrespective of the varying fact patterns underlying t he individual claims ... Actions requesting declarat ory and injunctive relief to remedy conduct
12

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 18 of 25
directed at the class clearly fit this mold. @ Baby Neal , 43 F.3d at 58 (citations omitted); accord Stewart v. Abraham , 275 F.3d at 227. “Rul e 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by class m embers, only that the harm complained of be common to the class…” Hagan v. Rogers , 570 F. 3d. 146, 158 (3d Cir. 2009)(emphasis in original).
Here, Plaintiffs' claims are typical of those of the class memb ers since they arise from the same policies and practices a nd course of conduct as those that give rise to the clai ms of the class and are based on the same legal theories, i.e., Defendants’ discrimination against Plaintiffs and putative class members by failing to offer and provi de both m ental health treatment that ta kes account of thei r intellectual disabilities, by faili ng to deliver services in the m ost integrated setting appropriate to their needs, and Defendant’s violat ion of Plaintiffs’ and putative class members due process rights by, inter alia, failing to provide t hem with habilitation services and adapted mental health services in accordan ce with the dictates of sound professi onal judgment, and failure to im plement discharge recommendations in accordance with professional judgment.
Plaintiffs' action for declarator y and injunctive relief to remedy Defendant =s legal violations is typical of the putativ e class since it is "' based on patterns and practices not special or unique to [Plainti ffs,] [and] a signifi cant number of other
13

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 19 of 25
members of the class have b een similarly victimized by the same patterns or practices.'" Cureton, 1999 WL 447313 at *8 (quoti ng Weiss v. York Hosp., 745 F.2d 786, 809 n.36 (3d Cir. 19 84)). Although t here are differences in underlying fact patterns, Plaintiffs and members of both classes are all Avictims of t he same systemic failures.@ T.B., 1997 WL 786448 at *5. Even though each class mem ber may suffer a different inj ury as a resu lt of the pra ctice and conduct of DPW, Aa claim framed as a v iolative practice can support a class action em bracing a variety of injuries so long as those injuries can all be linked to the practice.@ Baby Neal, 43 F.3d at 63; accord General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n.15, (1982).
D. The Named Plaintiffs Will Fairly And Adequately Represent The Interests Of The Class. Rule 23(a)(4) requires that the named Plaintiffs fairly and adequately protect the interests of t he class. The inquiry that a court should make regarding the adequacy of representation includes a dete rmination that: 1) the named Plaintiffs have the ability and incentive to represent the claims of the class vigorously, 2) Plaintiffs have obtained adequate counsel , and 3) there is no conflict between the Plaintiffs= individual claims and those asserted on behalf of the class. Hassine, 846 F.2d at 179. With respect to this requirement, Athe burden is apparently on the party opposing certi fication to demonstrate that the representation is inadequate. @
14

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 20 of 25
Cureton 1999 WL 447313 at *8. Plaintiffs, through their next friends, have demonstrated their interest in fully
and vigorously pursuing t he claims set forth in the Co mplaint. Their incentive is clear. They all have imme diate or ongoing needs for me ntal health treatment that takes into account their inte llectual disabilities and mental retardation services and have not been able to ac cess such treat ment and serv ices. Named Pl aintiffs and class members are all subject to the sa me risk of harm and seek the same declaratory and injunctive relief to end DPW =s violations of the ADA, RA, and the Due Process Clause. The Plain tiffs and the putative class members seek relief that will benefit the class as a whole, and th ere are no individual claim s. “Because the plaintiffs seek the same injunctive relief as all members of the class, the court ‘can find no potential for conflict between the claims of the complainants and those of the class as a whole.’” Metts, 1997 WL 688804 at *4 (quoting Hassine, 846 F.2d at 179).
Plaintiffs= counsel, Robert W. Meek, Mark J. Murphy, Robi n Resnick, and Carol Horowitz of the Disability Rights Network of Pennsylvania (DRN), formerly known as the Disabilities Law Project, are qualified and experienced in federal class action litigation, and th e rights of indivi duals with disabilities, the ADA, the RA, and the Constit ution. see, Decl. Robert W. Meek ¶¶ 3-6. These attorneys have represented p eople with disa bilities in certified class actions. see, e.g.,
15

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 21 of 25
Frederick L. v. Dep’t of Public Welfare , 364 F.3d 487, 489 n.1 (3d Cir. 2004) (noting certification of class of state hos pital residents in ADA lawsuit represented by Robert W. Meek, Mark J. Murphy, and Robin Resnick). Serventi v. Bu cks Technical High School 225 F.R.D. 159, 165-66 (E.D.Pa. 2004) (“the Disabilities Law Project [and co-counsel] are qualified a nd experienced in federal class action litigation involving [ the ADA and Section 504]”); Richard C. v. Snider, Civil Action No. 89-2038, 1993 WL 757634 at *5 (W.D. Pa. June 22, 1993) (finding Mark Murphy of the Disabilities Law Project Aextremely qualified and well able to conduct the proposed litigation.@)(Exh. H); Kathleen S v. Dep’t of Public Welfare , Civil Action No. 97-6610, 1998 WL 83973 at *3 (E.D. Pa. Feb. 25, 1998) (Robe rt Meek, Robin Resnick, and Mark Murphy of the Disabilities Law Project “are qualified, experienced civil rights litigators”)(Exh. I); Anderson v. Dep=t of Public Welfare, 1 F. Supp.2d 456, 462 (E.D. Pa. 1998) (finding the Disabilities Law Project to be Aqualified, experienced, and generally able to conduct the proposed litigation@) ; Metts, 1997 WL 688804 at * 2. (f inding Mark Murphy of t he Disabilities Law Project adequate to represent class);
For all of the reasons stated above, Plaintiffs have satisfied the final requirement of Rule 23(a).
II. THIS ACTION IS MAINTAINABLE AS A CLASS ACTION UNDER RULE 23(b) SINCE DEFENDANT HAS ACTED OR REFUSED TO ACT ON GROUNDS
16

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 22 of 25
GENERALLY APPLICABLE TO THE CLASS. In addition to meeting the prerequisites of Rule 23(a), a party seeking class certification must fall in at least one of the Rule 23(b) categories. Fed. R. Civ. P. 23 (b). Rule 23(b)(2) allows a class action to be maintained if:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby makin g appropriate final injunctive relie f or correspondi ng declaratory relief with respect to the class as a whole[.] Fed. R. Civ. P. 23(b)(2). A[T]his requirement is alm ost automatically satisfied in actions primarily seeking injunctive relief. >When a suit s eeks to define the relationship between the defendant(s) and the world at large, ... (b)(2) certification is appropriate.=@ Baby Neal, 43 F.3d at 58 (quoting Weiss v. York Hospital , 745 F.2d at 811). “[I]t is generally recognized that civil rights actions seeking relief on behalf of classes…norm ally meet the requirem ents of Rule 23(b)(2). Stewart v. Abraham, 275 F.3d at 228; accord Baby Neal, 43 F.3d at 59. AThe writers of Rule 23 intended that subsection (b)(2) foster institutional reform by facilitating suits that challenge widespread rights violati ons of people who are individua lly unable to vindicate their own rights.@ Baby Neal, 43 F.3d at 64. This action readily meets the requireme nts of Rule 23(b)(2). Plaintiffs, through this case, seek to define DP W's obligations under the ADA, RA, and Due Process Clause to indivi duals with mental retardation who are confined in state
17

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 23 of 25

psychiatric hospitals. Plainti ffs seek solely declaratory and inj unctive relief to

assure that DPW implements its federal obligations to assure that these individuals

receive appropriate mental health and mental retardation services in the psychiatric

hospitals and that they have access to se rvices in integrated, comm unity settings

when appropriate. Courts in this Circu it and elsewhere typically have certified

under Rule 23(b)(2) cases, such as this, th at challenge public officials' policies or

practices relating to persons who are in stitutionalized and that seek injunctive

relief. See, e.g., Fr ederick L., 364 F.3d at 489 (noting certification of class of

Norristown State Hospital residents who brought ADA and RA claims to challenge

their unnecessary institutionalization); Goldy v. Beal, 429 F. Supp. 640, 649 (M.D.

Pa. 1976) (three-judge court) (certifying cl ass of persons involuntarily comm itted

to institutions); Long v. Benson , Civil Action No. 4:08cv26-RH/WCS, 2008 W L

4571904 at *3 (N.D. Fla. Oct. 14, 2008) (certifying class of nursing facility

residents in ADA claim that challenged their unnecessary institutionalization)(Exh.

J); Williams v. Blagojevich, Civil Action No. 05 C 4673, 2006 WL 3332844 at *5

(N.D. Ill. Nov. 13, 2006) (certifying cl ass of people with mental illness who

brought ADA and RA claim

s to challenge their unnecessary

institutionalization)(Exh. K); Kathleen S., 1998 WL 83973 at *3 (certifying class

in ADA case chall enging unnecessary institutionalization of persons at Haverford

State Hospital); Richard C., 1993 WL 757634 at *4-*5 (confirming certification of
18

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 24 of 25
class of persons in state-operated m ental retardation institution). This case, too, presents a paradigmatic lawsuit for class certification.
CONCLUSION For all of the above stated reasons, Plai ntiffs respectfully request that this Court certify this case to proceed as a class action.

Respectfully
Dated: September 2, 2009
PA
PA
PA Disability 1315 Philadelphia, (215) (215)
PA Disability 429 Pittsburgh,
Counsel

submitted,
By: /s/ Robert W. Meek Robert W. Meek 27870 Mark J. Murphy 38564 Robin Resnick 46980 Rights Network of PA Walnut Street, Suite 400 PA 19107-4798 238-8070 772-3126 (fax) RMeek@drnpa.org
Carol Horowitz 81660 Rights Network of PA Fourth Ave., Suite 701 PA 15219-1505
CHorowitz@drnpa.org
for Plaintiffs

19

Case 3:09-cv-01112-CCC Document 14 Filed 09/02/09 Page 25 of 25

LOCAL RULE 7.8(B)(2) CERTIFICATE I certify under penalty of perjury that the Brief in Support of Plaintiffs’ Unopposed Motion for Class Certification co mplies with Local Rule 7.8(b)(2) of this Court because, based on t he word processing system used to prepare the Br ief, Microsoft Word , the Brief contains 4130 words (excluding the Table of Contents and Table of Citations).

Dated: September 2, 2009

/s/ Robert W. Meek Robert W. Meek

20

 
 Case 3:09-cv-01112-CCC Document 17 Filed 09/08/09 Page 1 of 4

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

LEAH JIMMIE, JOSETTE HALECHKO, LEWIS BOWERS, and JANICE SLATER, by and through their next friend, Carl Mosier; RONALD PEARSON and WILLIAM SACKS, by and through their next friend, Connie Hammann; EDWARD NAUSS and BENJAMIN PERRICK, by and through their next friend, Akhnaton Browne, on behalf of themselves and all others similarly situated,

Plaintiffs,

: Filed via ECF System

v.

: Civil Action No. 3:09-cv-1l12-TIV

DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA and ESTELLE B. RICHMAN, in her official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania,

: Class Action : (Judge Vanaskie)

Defendants.

ORDER

Upon consideration of Plaintiffs' Unopposed Motion for Class Certification,

S it is hereby ORDERED on this _-"0q"t--"-h___ day of

e~ ~ ~ I A

2009 as follows:

1. Plaintiffs' Motion is GRANTED based on the following findings:

Case 3:09-cv-01112-CCC Document 17 Filed 09/08/09 Page 2 of 4
A. The requirements of Federal Rule of Civil Procedure 23(a) are satisfied:
(1) The class is so numerous as to make joinder impracticable. There are over 100 class members, the class members are dispersed throughout Pennsylvania, and due to their disabilities and limited resources they are unlikely to pursue individual litigation.
(2) There are questions of law and fact common to the named Plaintiffs and the members of both classes, including:
a. whether Defendants have failed to offer and provide serVIces and supports in more integrated settings to class members who are not opposed to discharge and, if so, whether that failure violates the integration mandates of the ADA and RA;
b. whether Defendants have used methods of administration that have the effect of discriminating against individuals with disabilities and, if so, whether doing so violates the ADAandRA;
c. whether Defendants have failed to modify their policies, practices, and procedures to adapt the mental health treatment provided at state hospitals to meet the needs of individuals with mental retardation and, if so, whether such failure violates the
2

Case 3:09-cv-01112-CCC Document 17 Filed 09/08/09 Page 3 of 4
ADA andRA; d. whether Defendants have failed to provide
habilitation services to state psychiatric hospital residents with mental retardation and, if so, whether such failure violates the Due Process Clause;
e. whether Defendants have failed to adapt the mental health services they provide in state psychiatric hospitals so that individuals with mental retardation can benefit from it and, if so, whether such failure violates the Due Process Clause;
f. whether Defendants have failed to provide community mental retardation services to state psychiatric hospital residents with mental retardation whose qualified treatment professionals have recommended such services and, if so, whether such failure violates the Due Process Clause.
(3) The claims of the named Plaintiffs are typical of those of the class members. The legal theories on which Plaintiffs' claims are based are the same as those on which members of the class base their claims and arise out of the same alleged policies, practices, and procedures.
(4) The named Plaintiffs will fairly and adequately prosecute this lawsuit. They have no interests that are in conflict with the class members, and
3

Case 3:09-cv-01112-CCC Document 17 Filed 09/08/09 Page 4 of 4 they have retained qualified counsel to represent them and both classes.
B. The requirements of Federal Rule of Civil Procedure 23(b)(2) are satisfied since final declaratory and injunctive relief will benefit the class as a whole.
2. This case shall proceed on behalf of the following class: All individuals with mental retardation who are institutionalized in state psychiatric facilities and who are not subject to the jurisdiction of the criminal courts.
3. Plaintiffs are hereby certified as the representatives of the Class.
4

 
 Case 3:09-cv-01112-CCC Document 19 Filed 09/17/09 Page 1 of 1

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

LEAH JIMMIE, et al,

:

:

v.

:

DEPARTMENT OF PUBLIC WELFARE,

COMMONWEALTH OF PENNSYLVANIA

and ESTELLE B. RICHMAN

:

NO. 3:09-CV-1112 :
(JUDGE VANASKIE) : : Filed by ECF :

MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12 (b)(6), defendants move all claims be

dismissed for failure to state claims on which relief can be granted.

Respectfully

submitted,

Date: September 17, 2009
Deputy
Office
Health Harrisburg, (717) (717)
PA

/S/ Howard Ulan Howard Ulan
Chief Counsel
Department of Public Welfare of General Counsel
3rd Floor West & Welfare Building PA 17120 783-2800 (phone) 772-0717 (fax)
hulan@state.pa.us #25058

 
 Case 3:09-cv-01112-CCC Document 31 Filed 11/19/09 Page 1 of 2

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

LEAH JIMMIE , By And Through Their

:

Next Friend, Carl Mosier, JOSETTE

:

HALECHKO, By And Through Their Next :

Friend, Carl Mosier, LEWIS BOWERS, By :

And Through Their Next Friend Carl

:

Mosier, JANICE SLATER, By And

:

Through Their Next Friend Carl Mosier,

:

RONALD PEARSON, By And Through

:

Their Next Friend, Connie Hammann,

:

WILLIAM SACKS, By and Through Their

:

Next Friend, Connie Hammann, EDWARD :

NAUSS, By And Through Their Next

:

Friend, Akhnaton Bowne, On Behalf Of

:

Themselves And All Other Similarly

:

Situated, BENJAMIN PERRICK, By And

:

Through Their Next Friend, Akhnaton

:

Browne, On Behalf Of Themselves And

:

All Others Similarly Situated,

:

Plaintiffs

:

:

v.

:

:

DEPARTMENT OF PUBLIC WELFARE OF :

THE COMMONWEALTH OF

:

PENNSYLVANIA, ESTELLE B. RICHMAN, :

In Her Official Capacity As Secretary Of :

Public Welfare Of The Commonwealth :

Of Pennsylvania

:

Defendants

:

3:CV-09-1112
(JUDGE VANASKIE)

ORDER

NOW, THIS 19th DAY OF NOVEMBER, 2009, for the reasons set forth on the record

following oral argument held in the above-captioned matter on this date, IT IS HEREBY

Case 3:09-cv-01112-CCC Document 31 Filed 11/19/09 Page 2 of 2
ORDERED THAT Defendants’ Motion to Dismiss (Dkt. 19) is DENIED. s/ Thomas I. Vanaskie Thomas I. Vanaskie United States District Judge
2

 
 Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

LEAH JIMMIE, JOSETTE HALECHKO, :

LEWIS BOWERS, and JANICE SLATER, :

by and through their next friend, Carl

:

Mosier; RONALD PEARSON and

:

WILLIAM SACKS, by and through their :

next friend, Connie Hammann; EDWARD :

NAUSS and BENJAMIN PERRICK, by :

and through their next friend, Akhnaton :

Browne, on behalf of themselves and all :

others similarly situated,

: Filed via ECF System

:

Plaintiffs,

: Civil Action No. 3:09-cv-1112-CCC

:

v.

: Class Action

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

: (Judge Conner)

PENNSYLVANIA and HARRIET

:

DICHTER, in her official capacity as

:

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

____________________________________:

PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF THE PROPOSED CLASS ACTION SETTLEMENT
AGREEMENT AND FOR APPROVAL OF CLASS NOTICE

Plaintiffs and the Class, through t heir counsel, subm it this Motion for

Preliminary Approval of the Proposed Cla ss Action Settlement Agreement and for

Approval of the Cl ass Notice. The Mo tion is unoppose d as set forth in t he

Certificate of Concurrence submitted with this Motion. In support of t his Motion,

Plaintiffs state as follows:

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 2 of 16
1. Plaintiffs, individuals with diagnoses of mental retardation who were institutionalized in state-operated psychi atric hospitals, filed this class action lawsuit in June 2009. Plain tiffs alleged that Defendants, the Department of Publ ic Welfare and the Secretary of Public Welfar e (collectively, DPW), violated Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134 , and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by, inter alia, failing to offer them mental health and mental re tardation services in the co mmunity, which is the m ost integrated setting appropriate to meet their needs. Plaintiffs also alleged that DP W violated the Due Process Cl ause of the Fourteenth Amendment and 42 U.S.C. § 1983 by, inter alia, failing to provide them with habilitation services to address their mental retardation in the state hospita ls and failing to adapt the m ental health treatment to take into account their mental retardation.
2. Plaintiffs filed an uncontested Mo tion for Class Certificati on. By Order dated September 8, 2009, this Cour t certified this case to proceed on behalf of the following class pursuant to Federal Rule of Civil Procedure 23(b)(2) : "All individuals with m ental retardation who ar e institutionalized in state psychiatric facilities and who are not subject to the jurisdiction of the criminal courts."
3. Defendants filed a Motion to Dism iss, which the Court denied. Defendants subsequently filed an Answer to the Complaint.
2

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 3 of 16
4. The parties began discovery. Plain tiffs requested and received extensive documents, including the treatment records of all of the potential class members identified by Defendants, and also received interrogatory answers. Plaintiffs also retained several potentia l experts, including tw o psychologists who reviewed a sample of the class members' records as well as DPW policies to assess the treatment provided to class members in the state hospitals. Meek Declaration ¶ 2 (Exh. 1).
5. In February 2010, the parties began settlem ent negotiations. Meek Decl. ¶ 3. As part of the negotiation process, the psychologi sts retained by Plaintiffs as experts met with DPW official s and staff to discuss issue s relating to treatment and discharge. Id. ¶ 4.
6. After extensive arm s-length discussions, the parties finalized a Settlement Agreement (Agreement) to resolve this case, Meek Decl. ¶ 5, a copy of which is subm itted as Exhibit 2. The key provisions of the Agreement are summarized as follows:
a. Assessments of Eligibility for Services -- The Agreement requires DPW's Office of Mental Health and Substance Abuse Services (OMHSAS) to identify state hospital residents who ha ve diagnoses of ment al retardation and are not subject to the jurisdiction of the criminal courts. Agreement ¶ III.1. DPW's Office of Developmental Program s (ODP), which is responsible for provi ding
3

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 4 of 16
services to Pennsylvanians with m ental retardation, will assess all persons identified as possible class members to determine whether they meet the eligibility criteria to receive co mmunity mental retardation services. Id. ¶¶ III.2-3. Plaintiffs' counsel can request that an independe nt expert review ODP' s determinations that a particular person does not meet the eligibility criteria for mental retardation services. The independent expert's determinations will be conclusive. Id. ¶ III.7.
b. Funding for Community Mental Retardation Services -- The Agreement requires DPW to request t hat the Governor seek fundi ng from the Legislature to provide appropriate community mental retardation and mental health services for at least 20 class m embers in Fiscal Year (FY) 2010-11, 35 class members in FY 2011-12, and any rema ining class members in FY 2012-13. Agreement ¶¶ IV.B.1.a-c. 1 If the Governor does not request or the Legislature does not appropriate sufficient funds, th e parties will attem pt to negotiate a framework to revise the timelines and, if necessary, will request mediation by a United States Magistrate. Id. ¶ IV.B.4.a-c. If DP W has not provided comm unity services to at least 75 percent of thos e individuals identifi ed as eligible for community mental retardation services by Ju ly 1, 2013, the Plaintiffs m ay seek to reinstate the litigation. Id. ¶ IV.B.4.d.
1 DPW di d seek and the Legislature has appropri ated funding to provide community services to 20 class members this fiscal year.
4

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 5 of 16
c. Discharge Planning -- Specially-trained staff at the state hospitals, together with staff who work in the community mental health and mental retardation systems, will ove rsee discharge planning for class m embers to assure that all of their comm unity service needs -- including needs for community mental retardation services -- are addressed. Agreement ¶¶ IV.A.1-2; Agreement ¶ V.1 (incorporating Protocol ¶¶ V.A- V.F). The Agreement bars inappropriate placements in personal care homes and requires active involvement by providers in transitioning class mem bers to community programs, which provisions will improve the prospe cts for successful comm unity placements. Id. ¶¶ IV.A.3-4. DPW will also establish a Review Co mmittee to address impediments that arise to implementation of discharge plans for class members. Id. ¶ IV.A.5.
d. Gaps in Community Services -- A Statewide Task Force will be created to assess comm unity services for individuals with dual di agnoses of mental illness and mental retardation and to make recommendations to address any gaps in services. Agreement ¶ 5.1 (incorporating Protocol ¶¶ VIII.A-D).
e. Improved Services in State Hospitals -- The Agreement includes a comprehensive Protocol to address the unique needs of i ndividuals with dual diagnoses of mental illness and mental retardation. Agreement ¶ 5.1 & Att. 1.
(i) Integrative Mental Health Treatment Model -- DPW must use an integrative treatment m odel to provide services to individuals with
5

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 6 of 16
dual diagnoses of mental illness and mental retardation. Th is Model integrates mental health treatment with treatm ent to address the individuals' habilitation, psychological, and vocational needs and encompasses therapies, m ethods, and approaches that are designed for the unique needs of individuals who have intellectual disabilities. Protocol ¶¶ IV.A.
(ii) Multidisciplinary Teams for Res idents with Intellectual Disabilities -- DPW will establish a Multidiscipl inary Team for Residents with Intellectual Disabilities (MDIT) at each state hospital that includes specialists from the hospitals and from community mental health and mental retardation programs. Protocol ¶ II.A-II.E. The Teams will have pr imary responsibility to assure that the appropriate treatment is pr ovided to oversee the clini cal and treat ment needs of class members. Id. ¶ II.E.
(iii) Comprehensive Assessments -- Under the MDIT' s oversight, all class members and all persons with mental retardation admitted in the future to state hospitals will receive comprehensive multimodal diagnostic and functional behavioral assessments. Protocol ¶¶ IV.B.
(iv) Individualized Treatment Plans -- Under the MDIT's oversight, all class mem bers and all persons with mental retardation adm itted to state hospitals in the fut ure will have new Individualized Treat ment Plans (ITPs) developed based on the Inte grative Mental Health Treatment Model and include
6

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 7 of 16
treatments that address: patient-specifi c learning, em otional, and motivational features of individuals with mental retardation; specific behavioral difficulties; and the reasons for admission that may repr esent barriers to community placement. Protocol ¶ IV.C.
(v) Behavioral Issues -- For each cl ass member, the incentive/privilege level system that is us ed in state hospitals will be tailored to meet his/her individual needs, cognitive ability, and motivational characteristics as determined by the diagnost ic assessments. Contingencies, reinforcements, and consequences will be dete rmined based on the individual' s ability to understand and modify his/her behavior accordingly. Protocol ¶ IV.D.
(vi) Case Coordination -- The MDIT will be responsible to provide case coordination to class mem bers and future state hospital residents with mental retardation. This includes ongo ing monitoring of t he individuals from intake through discharge planning as well as reviewing all incidents involving the individuals that result in their restrain t or isolation, adm inistration of STAT medication, denial of privileges, and allegations of abuse. Protocol ¶ VI.A-IV.C.
(vii) Staff Training -- DPW will retain an independent contractor to provide specialized training to state hospital cl inical and direct care staff who work with people with mental retardation. The training will focus on the
7

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 8 of 16
integrative mental health treatment m odel and the unique needs of people with mental retardation. Protocol ¶¶ III.A-III.J.
(viii) Independent Monitoring and Evaluation of the Efficacy of Services -- DPW will contra ct with an Inde pendent Monitor to annually assess its implementation of the Protocol. The I ndependent Monitor will issue reports on compliance and rev iew any necess ary plans of correction. The I ndependent Monitor will also develop a tracking system to collect data to evaluate measurable outcomes against best practice standards for individuals with dual diagnoses and the tracking system will be used to monitor services provided to class members and other state hospital residents with dual diagnoses. Protocol ¶¶ VII.A-VII.C.
f. Status Reports -- To assure that the Agreement is being implemented, DPW will provide to Plaintiffs' counsel periodic status reports. Agreement ¶ VII.1-VII.2.
g. Enforcement and Jurisdiction -- If the Court grants fi nal approval to the Agreement, it will retain continuing jurisdiction over the case fo r purposes of interpretation and enforcement of the Agreement. Agreement ¶ VIII.6. Plaintiffs may seek the remedy of specific perform ance, but not contempt sanctions, if Defendants fail to co mply with the terms of the Agreemen t with two exceptions. Id. ¶ VIII.2-3. First, the sole re medy for disagreements concerning DPW's determinations as to class m embers' eligibility for comm unity mental
8

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 9 of 16
retardation services and HCB Waiver servi ces is review by an independent expert. Id. ¶ VIII.2.a. Second, the sole remedy if the Governor fails to subm it or the Legislature declines to appropriate full fu nding to develop community services for class members is to negotiate an extended time line or to reinstate the litigation. Id. ¶ VIII.2.b.
h. Termination of the Agreement -- Absent reinstatement of the litigation, the Agreement will term inate 90 days after the provision of comm unity services to the last person identified as eligible for community mental retardation services under the Agreement. Agreement ¶ VIII.7.
i. Attorneys' Fees, Litigation Expenses, and Costs -- Defendants will pay to Plaintiffs' counsel, subject to the Court's approval pursuant to Federal Rule of Civil Procedure 23(h) , the su m of $210,000 for attorneys' fees, litigation expenses, and costs incurred through the final approval of the Settlem ent Agreement. Agreement ¶ VIII.8.
7. Plaintiffs request that the Court preliminarily approve the propose d Settlement Agreement. “#[I]f the proposed settlement a ppears to be the product of serious, informed, non-collusive negotiations, has no obvi ous deficiencies, does not improperly grant preferential treatment to class representatives or seg ments of the class, and falls within the range of possible approval, t hen the [C] ourt [will] direct that ... notice be given to the cl ass members of a formal fairness hearing. &”
9

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 10 of 16
Kaplan v. Chertoff, Civil Action No. 06-5304, 2008 WL 200108 at * 11 (E.D. Pa. Jan. 24, 2008) (citation omitted); see also Hanlon v. Aramark Sports, LLC , Civil Action No. 09-465, 2010 WL 274765 at *5 (W.D. Pa. Feb. 3, 2010) ; Mehling v. New York Life Ins. Co. , 246 F.R.D. 467, 472 (E.D. Pa. 2007) . Each of these criteria for preliminary approval of the Settlement Agreement is satisfied.
a. First, there can be little doubt that the Agreement is the result of “serious, informed, non-collusive negotiations.” The Agreement was reach ed only after Plaintiffs' counsel received and revi ewed extensive docu ment discovery and interrogatories. In addition, the psychologists retained by Plaintiffs reviewed many class members' treatment records and DP W policies. The parties met on m ultiple occasions to discuss the potential settleme nt, and the psychologists retained by Plaintiffs met with DPW staff and offici als. The negotiatio ns were conducted by experienced counsel at arms-length. See Meek Decl. ¶ 67
b. Second, the Agreement does not give preferential treatment to the class representatives or any particular segments of the class. All class members are treated equally. See Kaplan, 2008 WL 200108 at *11.
c Finally, the Agreement falls within the range of possible approval analyzed in accord ance with the criteria s et forth by the Third Circuit’s decision in Girsh v. Jepson, 521 F.3d 153, 157 (3d Cir. 1975), and its progeny. See
10

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 11 of 16

In re AT & T Corp. , 455 F.3d 160, 164-65 (3d Cir. 2006) ; Kaplan, 2008 WL

200108 at *11.

(1)

The complexity, expense, and likely duration of the

litigation weigh in favor of approval. This case was filed nearly one year ago.

Although the parties have conducted extensive docum ent discovery, additi onal

discovery -- including depositions -- would need to be taken. Dispositi ve motions

would likely follow and, if the Court did not decide the case at summary judgment,

trial would be necessary. Lengthy appeals would li kely ensure regardless of which

side ultimately prevailed in this Court. See Bradburn Parent Teacher Store, Inc. v.

3M (Minnesota Mining & Mfg. Co.), 513 F. Supp. 2d 322, 330-31 (E.D. Pa. 2007).

(2)

The stage of proceedings weighs in favor of the

Agreement. Plaintiffs have conducted substantial document discovery and had

significant input from psychologists they retain ed as potenti al experts. Plaintiffs

and their counsel had the kno wledge they needed to m ake an informed decision

about the merits of the Agreement. See Kaplan, 2008 WL 200108 at *11;

Bradburn Parent Teacher Store, Inc., 513 F. Supp. 2d at 331-32.

(3) The risks of establishing liability weigh in favor of the

Agreement. Although Plaintiffs are confident that they could establish liability, the

case raises complex legal and factual questions that cannot be disregarded.

11

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 12 of 16

(4)

Plaintiffs had to consider the risk t hat they would not be

able to secure great er relief than that afforded by the Agreement, which provide s

Plaintiffs with much of the relief they sought. First, DPW must seek fundi ng for

community services for class members as a top priority with the aim of discharging

all class members within three years. Second, DPW must take steps to improve its

discharge planning for class m embers to increase the like lihood that their

transitions to community services ar e successful and to prevent repeated

hospitalizations. Second, DPW must fundamentally revise the treatment methods

used in its state hospitals for individual s with diagnoses of m ental retardation,

including providing adequate training to staff regarding the new methods and

procedures to be used. Moreover, DPW has already begun to im plement the

Agreement, thus affording Pla intiffs and class members relief far sooner than any

relief they m ight secure follow ing further litigation in this Co urt and subsequent

appeals that could t ake several years. Ac cordingly, the be nefits afforded by the

Agreement far outweigh the potential risk s of seeking further relief through

continued litigation.

(5) Consideration of t he range of reasonableness of the

settlement in light of the best possible recovery and the risks of litigation also

weighs in favor of approval of the Agre ement. The benefits conferred by the

Agreement compare favorably to the best possible recovery that Plaint iffs could

12

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 13 of 16
have secured and fall well within the range of reasonableness. Again, the Agreement provides the Plaintiffs and cla ss members with almost all of the relief that they ultim ately could have secured if they prevailed at the hearing an d following appeals an d if the Court, using its discretion to shap e injunctive relief, afforded the Plaintiffs all of the relief they had sought. Given the attendant risks of litigation (including, but not limit ed to, the delays that would acco mpany further litigation and appeals), the Agreement’s benefits to class members are significant.
8. Rule 23(e)(1) requires th at “[t]he court must direct notice in a reasonable manner t o all class members who would be bound by the proposal.” The Court shoul d consider both the method of dissemination and its content to determine whether the notice is sufficient. Kaplan, 2008 WL 200108 at *11.
a. The parties propose to notify the Class through individual notice in the form submitted as Exhibit 3. The notice summarizes the litigation and the terms of the Agreement (including t he provision relating to attorneys’ fees and the release of claim s); informs class members about the fairness hearing and their right to object to the Agreemen t; affords them information about how to receive a copy of t he Agreement; and provides contact information for class counsel. The content of the notice is thus sufficient. Cf. Kaplan, 2008 WL 200108 at *12; Bradburn Parent Teacher Store, Inc., 513 F. Supp. 2d at 329 (similar).
b. Notice will be provided in the following manner:
13

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 14 of 16
(1) No later than four (4) weeks after the Court approves the notice, an advocate employed by Plaintiffs' counsel, the Disability Rights Network of Pennsylvania and/or the Mental Hea lth Association of Pennsylvania will hand deliver copies of the written notice all class members who remain in the state hospitals. This will provide class m embers with an understandable explanation of the notice and an opport unity to ask questi ons. It shoul d also help t o allay any fears that might arise with the delivery of a legal notice. If the class memb er is unavailable or unwilling to speak with th e advocate, the advocate will have state hospital staff deliver the written notice to him together with contact information for the advocate.
(2) No later than three (3) weeks after the Court approves the notice, DPW will assure that written notices are sent by first class mail, postage prepaid to all class members who no longer reside in state hospitals.
(3) No later than two (2) w eeks after the Court approves the notice, Plaintiffs' counsel will have the notice delivered by first class mail, postag e prepaid to the remaining class representatives (whose addresses DPW will provide) and their next friends.
c. Counsel for Plaintiffs and DPW will file certifications of notice with the Court no later than ten (10) days prior to the date of the hearing on fi nal
14

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 15 of 16

approval of t he proposed Sett lement Agreement to certify their compli ance with

their respective notice obligations.

9. Plaintiffs also request that: (a) th e Court establish a date for the hear-

ing on final approval of the proposed Se ttlement Agreement; (b) that any objec-

tions to the proposed Settlement Agreement and notices of intention to appear be

submitted no later than fourteen (14) days prior to the hearing date; and (c) that

Plaintiffs’ memorandum of law in suppor t of t he final appr oval of the proposed

Agreement be submitted no later than ten (10) days prior to the hearing date.

WHEREFORE, Plaintiffs respectfully request that the Court grant this

Motion.

Respectfully

submitted,

Dated: July 30, 2010
Robert Mark Robin Disability 1315 Philadelphia, 215-238-8070 215-772-3126

By: /s/ Robert W. Meek
W. Meek - PA 27870 J. Murphy - PA 38564 Resnick - PA 46980
Rights Network of PA Walnut Street, Suite 500
PA 19107-4798
(fax) RMeek@drnpa.org

Disability 701 429 Pittsburgh, 412-391-5225

Carol Horowitz Rights Network of PA
Law & Finance Building Fourth Avenue
PA 15219-1505
CHorowitz@drnpa.org

Counsel

for Plaintiffs and the Class

Case 3:09-cv-01112-CCC Document 41 Filed 07/30/10 Page 16 of 16
CERTIFICATE OF SERVICE I, Robert W. Meek, hereby certify th at Plaintiffs' Unopposed Motion for Preliminary Approval of the Class Action Settlement and Approval of Class Notice and proposed Order were filed with the Court’s ECF system on July 30, 2010 and are available for vie wing and downloading from the ECF system by the following counsel who consented to electronic service:
Allen C. Warshaw, Chief Counsel Howard Ulan, Deputy Chief Counsel
Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building
Harrisburg, PA 17120
/s/ Robert W. Meek
Robert W. Meek

 
 Case 3:09-cv-01112-CCC Document 47 Filed 09/02/10 Page 1 of 3

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

LEAH JIMMIE, JOSETTE

:

HALECHKO, LEWIS BOWERS, and :

JANICE SLATER, by and through

:

their next friend, Carl Mosier;

:

RONALD PEARSON and WILLIAM :

SACKS, by and through their next

:

friend, Connie Hammann; and

:

EDWARD NAUSS and BENJAMIN

:

PERRICK, by and through their next :

friend, Akhnaton Browne;

:

on behalf of themselves and

:

all others similarly situated,

:

:

Plaintiffs

:

:

v.

:

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and ESTELLE B.

:

RICHMAN, in her official capacity as :

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

:

Defendants :

CIVIL ACTION NO. 3:09-CV-1112 (Judge Conner)

ORDER

AND NOW, this 2nd day of September, 2010, upon consideration of the

motion (Doc. 41) for preliminary approval of the proposed class action settlement

agreement and for approval of the class notice, it is hereby ORDERED that:

1. The motion (Doc. 41) is GRANTED.

2. The proposed Settlement Agreement (“the Agreement”), (Doc. 41 Ex. 2, or Doc. 41-4), is preliminarily approved as fair, adequate, and reasonable, in accordance with Federal Rule of Civil Procedure 23(e). The Agreement resulted from serious, informed, and non-collusive negotiations among the parties. The Agreement treats all class

Case 3:09-cv-01112-CCC Document 47 Filed 09/02/10 Page 2 of 3
members equally. The Agreement falls within the range of possible approval, given the complexity, expense, and likely duration of the litigation; the stage of proceedings at which the Agreement was reached; the risks of establishing liability and securing relief; and the range of reasonableness of the Agreement in light of the best possible recovery and the risks of continued litigation. See In re AT & T Corp., 455 F.3d 160, 164-65 (3d Cir. 2006); Kaplan v. Chertoff, Civil Action No. 06-5304, 2008 WL 200108 at *11 (E.D. Pa. 2008); Bradburn Parent Teacher Store, Inc. v. 3M (Minnesota Mining & Mfg. Co.), 513 F. Supp. 2d 322, 330 (E.D. Pa. 2007).
3. The Summary Notice of Pendency of Class Action and Notice of Hearing and Proposed Settlement (“the Notice”), (Doc. 41 Ex. 3, or Doc. 41-5), and the plan for notifying class members, comply with Rule 23(e)(1), and they are approved. The content of the notice adequately apprises class members of the litigation: the terms of the Agreement, class members’ right to object, the fairness hearing, and information on how they can receive a copy of the Agreement and contact class counsel. See Kaplan, 2008 WL 200108 at *12. The method to distribute notice also is appropriate. The written notice will be individually delivered to class members either through mail or in-person by advocates who can answer the class members’ questions.
4. On or before Friday, September 17, 2010, plaintiffs’ counsel will have the Notice delivered by first class mail, postage prepaid, to Leah Jimmie, Josette Halechko, Lewis Bowers, Janice Slater, Ronald Pearson, and William Sacks, the remaining class representatives, whose addresses DPW will provide, and their next friends.
5. On or before Friday, September 24, 2010, DPW will assure that written notices are sent by first class mail, postage prepaid, to all class members who no longer reside in state hospitals.
6. On or before Friday, October 1, 2010, an advocate employed by plaintiffs’ counsel, the Disability Rights Network of Pennsylvania, and/or the Mental Health Association of Pennsylvania will hand deliver copies of the written notice all class members who remain in the state hospitals. If the class member is unavailable or unwilling to speak with the advocate, the advocate will have state hospital staff deliver the written notice to him together with contact information for the advocate.
2

Case 3:09-cv-01112-CCC Document 47 Filed 09/02/10 Page 3 of 3
7. Any objections from class members must be received in writing by the Clerk of this Court on or before Monday, November 8, 2010.
8. On or before Monday, November 15, 2010, plaintiffs shall file with the court a memorandum of law in support of final approval of the proposed Settlement Agreement.
9. On or before Monday, November 15, 2010, counsel for plaintiffs and defendants each will provide a certification notice to the court. The certification notice will state when and how the notice to class members required herein was accomplished.
10. A hearing on final approval of the proposed Settlement Agreement will commence at 10:00 a.m. on Wednesday, December 1, 2010, in Courtroom No. 2, Ninth Floor, Federal Building, 228 Walnut Street, Harrisburg, Pennsylvania.
S/ Christopher C. Conner CHRISTOPHER C. CONNER United States District Judge

 
 Case 3:09-cv-01112-CCC Document 49 Filed 11/09/10 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

LEAH JIMMIE, JOSETTE HALECHKO, :

LEWIS BOWERS, and JANICE SLATER, :

by and through their next friend, Carl

:

Mosier; RONALD PEARSON and

:

WILLIAM SACKS, by and through their :

next friend, Connie Hammann; EDWARD :

NAUSS and BENJAMIN PERRICK, by :

and through their next friend, Akhnaton :

Browne, on behalf of themselves and all :

others similarly situated,

: Filed via ECF System

:

Plaintiffs,

: Civil Action No. 3:09-cv-1112-CCC

:

v.

: Class Action

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

: (Judge Conner)

PENNSYLVANIA and MICHAEL

:

NARDONE, in his official capacity as

:

Acting Secretary of Public Welfare of the :

Commonwealth of Pennsylvania,

:

____________________________________:

PLAINTIFFS' UNOPPOSED MOTION FOR FINAL APPROVAL OF THE PROPOSED CLASS ACTION SETTLEMENT AGREEMENT

Pursuant to Federal Rule of Civil Pro cedure 23(e), Plaintiffs and the Cl ass,

through their counsel, submit this Motion for Final Approval of the Proposed Class

Action Settlement Agreement. The Se ttlement Agreement should be approved

because it is fair, adequate, an d reasonable. In support of this Motion, Plaintiffs

submit the accom panying Brief, Exhibits , and Cert ificate of Concurrence, which

are incorporated by reference as if fully set forth herein.

Case 3:09-cv-01112-CCC Document 49 Filed 11/09/10 Page 2 of 3

Respectfully
Dated: November 9, 2010 Robert Mark Robin Disability 1315 Philadelphia, 215-238-8070 215-772-3126
Disability 701 429 Pittsburgh, 412-391-5225
Counsel

submitted,
By: /s/ Robert W. Meek
W. Meek - PA 27870 J. Murphy - PA 38564 Resnick - PA 46980
Rights Network of PA Walnut Street, Suite 500
PA 19107-4798
(fax) RMeek@drnpa.org
Carol Horowitz Rights Network of PA
Law & Finance Building Fourth Avenue
PA 15219-1505
CHorowitz@drnpa.org
for Plaintiffs and the Class

2

Case 3:09-cv-01112-CCC Document 49 Filed 11/09/10 Page 3 of 3
CERTIFICATE OF SERVICE I, Robert W. Meek, hereby certify th at Plaintiffs' Unopposed Motion for Final Approval of the Proposed Class Acti on Settlement Agreement, Exhibits, and proposed Order were filed with the C ourt’s ECF system on November 9, 2010 and are available for vie wing and downloading from the ECF system by the following counsel who consented to electronic service:
Allen C. Warshaw, Chief Counsel Howard Ulan, Deputy Chief Counsel
Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building
Harrisburg, PA 17120
/s/ Robert W. Meek
Robert W. Meek

 
 Case 3:09-cv-01112-CCC Document 56 Filed 12/01/10 Page 1 of 5

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

LEAH JIMMIE, JOSETTE

:

HALECHKO, LEWIS BOWERS, and :

JANICE SLATER, by and through

:

their next friend, Carl Mosier;

:

RONALD PEARSON and WILLIAM :

SACKS, by and through their next

:

friend, Connie Hammann; and

:

EDWARD NAUSS and BENJAMIN

:

PERRICK, by and through their next :

friend, Akhnaton Browne;

:

on behalf of themselves and

:

all others similarly situated,

:

:

Plaintiffs

:

:

v.

:

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and ESTELLE B.

:

RICHMAN, in her official capacity as :

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

:

Defendants :

CIVIL ACTION NO. 3:09-CV-1112 (Judge Conner)

ORDER

AND NOW this 1st day of December, 2010, Upon consideration of Plaintiffs’

Unopposed Motion for Final Approval of the Proposed Class Action Settlement

Agreement (Doc. 49) and, following the fairness hearing held on December 1, 2010,

it is hereby ORDERED as follow:

Case 3:09-cv-01112-CCC Document 56 Filed 12/01/10 Page 2 of 5
1. Plaintiffs’ Motion is GRANTED. 2. The class notice scheme and the contents of the class notice satisfied the requirements of due process and the Federal Rule of Civil Procedure. All class members received personal notice either by hand delivery (for those class members who remain institutionalized in state hospitals) or by first class mail, postage prepaid. All notices were delivered by October 1, 2010, affording class members approximately 40 days to submit any comments on or objections to the Settlement Agreement. 3. The Settlement Agreement is approved as fair, adequate and reasonable as required by Federal Rule of Civil Procedure 23(e). In support of this conclusion, the Court makes the following findings:
a. The complexity and likely duration of the litigation weighs in favor of approval of the Settlement Agreement. Further litigation of this case would prove complex and costly, given the vigorously disputed factual issues and the strongly contested legal issues. Further litigation also would require a substantial expenditure of time (including additional discovery, trial, and appeals), which could delay benefits to members of the Class.
b. The reaction of the class members to the Settlement Agreement weighs in favor of approval. There have been no significant objections to the settlement.
2

Case 3:09-cv-01112-CCC Document 56 Filed 12/01/10 Page 3 of 5
c. The stage of the proceedings and the amount of discovery completed weigh in favor of approval. The parties only entered into this Agreement after Plaintiffs’ counsel received and reviewed substantial document discovery and retained experts who reviewed relevant materials and provided Plaintiffs’ counsel with input. In addition to the discovery, Plaintiffs had explored many of the key legal issues in briefing and arguing the motion to dismiss and in negotiations with Defendants. Also, Plaintiffs’ expert psychologists met with Defendants’ officials and staff and that meeting was informed the settlement discussions. In sum, Plaintiffs had sufficient information to assess the relative strengths and weaknesses of their case and to make an informed judgment regarding the settlement.
d. The risks of establishing liability weigh in favor of approval. Defendants vigorously contested the factual and legal issues involved in this case. Since many of the issues are novel and complex, there is a risk that Plaintiffs might not succeed on the merits at trial or on appeal.
e. The risk of not securing full relief also weighs in favor of approval. While Plaintiffs might have secured a general injunction if they prevailed at trial and on appeal, they may not have secured a detailed order that provides concrete and detailed steps to improve the delivery of institutional and community services to class members. The Agreement provides Plaintiffs and class members with much of the relief that they had
3

Case 3:09-cv-01112-CCC Document 56 Filed 12/01/10 Page 4 of 5
sought and it does so far sooner than any relief that they could have secured after years of litigation and appeals.
f. The risk of class decertification, though small, cannot be discounted entirely and weighs in favor of settlement.
g. Defendants’ ability to withstand a greater judgment also militates in favor of settlement. Although the Plaintiffs sought only injunctive relief, compliance requires the Defendants to expend financial resources. Given the current budgetary constraints faced by the Commonwealth, this factor weighs in favor of approval of the settlement.
h. The range of reasonableness of the Settlement Agreement in light of the best possible recovery weighs in favor of approval. The Agreement provides Plaintiffs and class members with much of the relief they had sought, including: (1) a process to identify persons with dual diagnoses in the state hospitals; (2) a time line for Defendants to seek funding for community mental retardation services for class members; (3) changes to the discharge planning process to facilitate more successful transitions; (4) comprehensive and detailed reforms of the treatment provided to individuals with dual diagnoses in the state hospitals; and (5) establishment of a task force to review community services for persons with dual diagnoses and to make recommendations to address any gaps in service.
4

Case 3:09-cv-01112-CCC Document 56 Filed 12/01/10 Page 5 of 5
i. The range of reasonableness of the Settlement Agreement in light of the attendant risks of litigation also supports approval of the settlement. The risks of proceeding to trial and through appeals on complex factual and legal issues are not insignificant. Aside from the risks relating to establishing liability, the Agreement also eliminates the risk that any relief afforded would not be as comprehensive as that provided by the Agreement and that class members would have to wait years for any potential relief rather than securing relief through settlement now. 4. The Settlement Agreement is incorporated into this Order. The Court shall retain continuing jurisdiction over this case in accordance with the terms of the Settlement Agreement for purposes of interpretation and enforcement of the Agreement.
S/ Christopher C. Conner CHRISTOPHER C. CONNER United States District Judge
5

 
 Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 1 of 34
EXHIBIT2

' Case 3:09-cv-01112-CCC Docume.·nt 41-4 Filed 07/30/10 Page 2 of 34

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

LEAH JIMMIE, JOSETTE HALECHKO, LEWIS BOWERS, and JANICE SLATER, by and through their next friend, Carl
Mosier; RONALD PEARSON and WILLIAM SACKS, by and through their next friend, Connie Hammann; EDWARD NAUSS and BENJAMIN PERRICK, by and through their next friend, Akhnaton Browne, on behalf of themselves and all
others similarly situated,

Plaintiffs,

:Civil Action No. 3:09-cv-1112-CCC

v.

: Class Action

DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA and HARRIET DICHTER, in her official capacity as Secretary of Public Welfare of the
Commonwealth of Pennsylvania,

:(Judge Conner)

SETTLEMENT AGREEMENT
I. Introduction WHEREAS on June 11, 2009, Plaintiffs filed this class action lawsuit
alleging, inter alia, that Defendants violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by unnecessarily segregating class members in state psychiatric hospitals and violated the Due Process Clause of the Fourteenth Amendment to the Constitution by failing to

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 3 of 34
provide them with constitutionally adequate treatment m state psychiatric hospitals;
WHEREAS the District Court certified this case pursuant to Federal Rule of Civil Procedure 23(b) to proceed as a class action.
WHEREAS the Defendants, after the District Court denied their Motion to Dismiss, filed an Answer that denied liability;
WHEREAS Plaintiffs and Defendants desire to resolve this lawsuit amicably and to avoid the risks and expense of further litigation;
NOW, THEREFORE, Plaintiffs and Defendants enter into this Settlement Agreement. II. Definitions
1. "AEs" means the Administrative Entities that contract with the Department of Public Welfare to administer the community mental retardation system in specific geographic areas.
2. "Base services" means community mental retardation services funded with state and local appropriations.
3. "Class members" means all individuals with mental retardation who, on or after September 8, 2009 were institutionalized in state psychiatric facilities and were not subject to the jurisdiction of the criminal courts. Individuals who have been determined incompetent to stand trial or who have been adjudicated not
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guilty by reason of insanity or guilty but mentally ill are not class members. Individuals on parole and those who have pending charges are class members unless at some point in the future they are adjudicated in the criminal justice system.
4. "Class representatives" for purposes of this Agreement means Plaintiffs Leah Jimmie, Josette Halechko, Janice Slater, Lewis Bowers, Ronald Pearson, and Williams Sacks.
5. "CSP" means the Community Support Plan that identifies the community service needs of a state hospital resident.
6. "DPW" means the Department of Public Welfare, its officials, employees, and agents, and their successors.
7. "HCSIS" means the Home and Community Services Information System.
8. "ICF/l\1R" means intermediate care facility for persons with mental retardation.
9. "ISP" means the Individual Support Plan that identifies community mental retardation supports and services for individuals with mental retardation.
10. "ITP" means the Individual Treatment Plan that sets forth the treatment goals and objectives and strategies to meet those goals and objectives for residents of the state hospitals.
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11. "Mental Retardation Waiver programs" means the Medical Assistance home and community-based services programs administered by ODP, i.e., the Consolidated Waiver and Person/Family Directed Support Waiver.
12. "ODP" means DPW's Office of Developmental Programs, its officials, employees, and agents, and their successors.
13. "OJ\tf.HSAS" means DPW's Office of Mental Health and Substance Abuse Services, its officials, employees, and agents, and their successors.
14. "State hospitals" means the state psychiatric hospitals operated by OJ\tf.HSAS. III. Mental Retardation Eligibility and Waiver Program Assessments
1. On or before February 28, 2010, OMHSAS will identify all class members described in Section 11.3
2. ODP will have a team of Ph.D-level psychologists and Qualified Mental Retardation Professionals review the class representatives and class members identified by OMHSAS pursuant to Section III.1 to assess whether they meet the eligibility criteria for community mental retardation services m Pennsylvania usmg the standards and processes set forth in 55 Pa. Code § 4210.101a. ODP will complete these assessments no later than May 30, 2010.
3. For all class representatives and class members determined by ODP pursuant to Section III.2 to be eligible for community mental retardation services,
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ODP will determine whether they need an ICF/MR. level of care so as to be eligible for services under the Mental Retardation Waiver programs. DPW will use the standards set forth in ODP Bulletin 00-08-04 (May 2008) to make that assessment. ODP will complete these determinations no later than June 30, 2010.
4. On or before July 31, 2010, DPW will provide Plaintiffs' counsel with lists of the following:
a. all class representatives and class members identified as eligible for community mental retardation services and needing an ICF/MR level of care; and
b. all class representatives and class members who have been determined by ODP not to be eligible for community mental retardation services and the reasons for those determinations; and
c. all class representatives and class members identified as eligible for community mental retardation services, but not needing an ICF/MR. level of care and the reasons for those determinations.
5. No later than September 15, 2010, Plaintiffs' counsel will notify Defendants' counsel as to which, if any, determinations made pursuant to Section 111.2 or 111.3 they want to be reviewed by an independent expert.
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6. If Plaintiffs' counsel makes any challenges pursuant to Section 111.5, DPW will retain and pay an independent expert to review those determinations. In identifying an independent expert, Plaintiffs' counsel may make recommendations to DPW. DPW, however, will have the authority to select the independent expert subject to the approval of Plaintiffs' counsel which will not be unreasonably withheld. Unless otherwise agreed by the parties, the independent expert will be retained no later than October 31, 2010.
7. The independent expert will complete his or her review of any challenged determinations and provide the parties with a written report of his or her determinations no later than December 31, 20 10 unless otherwise agreed by the parties.
8. The independent expert's determinations will be conclusive and the parties agree to abide by them.
9. All individuals with mental retardation diagnoses admitted to state hospitals after the evaluations required by Sections 111.1-111.3 are completed will be assessed to determine if they are eligible for mental retardation services pursuant to Section 111.2 and need the level of care provided by an ICFIMR pursuant to Section 111.3. DPW will notify Plaintiffs' counsel in the status reports required by Section VII of this Agreement regarding these determinations.
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IV. Discharge Planning, Community Services, and Funding A. Identification of Appropriate Community Services 1. DPW will develop CSPs for all individuals who are determined to be
eligible for mental retardation services pursuant to the process set forth in Section III. The CSPs will identify, as appropriate, community mental retardation and mental health services which the individual needs and for which he or she is eligible. Staff from OMHSAS, ODP, and the AEs will be involved in the development of the CSPs.
2. DPW will assure that the AEs develop ISPs for all individuals who are determined to be eligible for mental retardation services pursuant to the process set forth in Section III. The ISPs will identify all appropriate mental retardation and mental health services the individuals need and for which they are eligible. For any individuals determined not to be eligible for the Mental Retardation Waiver programs, the ISPs will identify appropriate base services subject to available funding.
3. DPW will not discharge to a personal care home any individual determined to be eligible for Mental Retardation Waiver programs, provided, however, that Plaintiffs' counsel may waive this prohibition if qualified professionals recommend placement of an individual in a special program that is licensed as a
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personal care home (e.g., programs for people with brain injuries or people with mental illness who are medically fragile).
4. DPW will assure that residential serv1ce providers identified for individuals must be actively involved with the discharge planning process and the transition from hospital to community services.
5. Within ninety (90) days of the execution of this Agreement, DPW will establish a Review Committee, comprised of a person designated by ODP and a person designated by OMHSAS, with authority to act on behalf of DPW to address impediments (other than funding-related impediments) to the discharge of class representatives and class members who have been identified as appropriate for discharge (e.g., if an AE refuses to develop a community program for an individual based on its conclusion that he or she is not appropriate for discharge). A class representative or class member, his or her advocate or family, members of his or her treatment team, DPW officials or staff, or Plaintiffs' counsel can request that the Review Committee intervene to overcome these non-funding-related impediments to discharge.
6. Any individual identified as eligible for Mental Retardation Waiver programs pursuant to the process set forth in Section III but who is or has been discharged from a state hospital before funding for such services under this
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litigation is available remains eligible to receive such Waiver services under this Agreement.
a. DPW will enroll in HCSIS or future computerized tracking systems all individuals identified as eligible for Mental Retardation Waiver programs pursuant to Section III.
b. DPW will assure that there is ongoing participation of both the OMHSAS and ODP systems as part of the treatment/ habilitation support teams for eligible individuals.
c. DPW will assure that, when funding becomes available, the AEs offer such services to eligible persons who have been discharged.
B. Funding for Community Services 1. DPW will request that the Governor seek funding from the Legislature sufficient to provide appropriate community mental retardation and mental health services as follows:
a. m Fiscal Year 2010-2011, funding to provide community services to least 20 individuals identified as eligible for community mental retardation services pursuant to Section III ;
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b. m Fiscal Year 2011-2012, funding to provide community services to at least 35 individuals identified as eligible for community mental retardation services pursuant to Section III;
c. in Fiscal Year 2012-2013, funding to provide community services to all remaining individuals identified as eligible for community mental retardation services pursuant to Section III.
2. For each fiscal year in which the Legislature appropriates funding requested by DPW pursuant to Section IV.B.1, DPW will provide community services to the number of persons identified in that Fiscal Year.
3. IfDPW chooses to close a state hospital or downsize a unit where one or more class members reside during the term of this Agreement, it will use the funds available due to that closure or downsizing to provide community services to those class members.
4. For any fiscal year that the Governor does not include the funding requested by DPW pursuant to Section IV.B.1 or the Legislature does not appropriate sufficient funds to implement Section IV.B.1, the process set forth in this sub-section will be utilized by the parties.
a. Within sixty (60) days of the Governor signing the budget, Defendants' counsel will provide written notice to Plaintiffs' counsel to identify the amount of funds available for
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Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 12 of 34
implementation of the plan and to describe how DPW will use available funds to implement the plan and the expected number of individuals to be served in the fiscal year. b. Within twenty (20) days of receipt of notification, the parties will meet to discuss the funding shortfall and will attempt to reach consensus to revise the time frames for discharges and service development set forth in Section IV.B.1. If the parties cannot reach consensus on revised time frames, they will ask a United States Magistrate Judge to mediate the dispute. c. No later than 120 days after fmal approval of the budget by the Legislature, the parties will execute an addendum that reflects the final revisions of the time frames for discharges and service development in Section IV.B.l. The addendum will be incorporated by reference in this Agreement. d. Plaintiffs can choose to reinstate the litigation, rather than continue to use the alternative dispute resolution process set forth in Section IV.B.4(a)-(c), if by July 1, 2013 DPW has not provided community services to at least 75 percent of the persons identified as eligible for community mental retardation
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Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 13 of 34
services under Section III or some other percentage to which the parties have agreed. V. Enhanced Services in State Hospitals 1. DPW will implement the Protocol to Improve Services to Class Members (Attachment 1) that is incorporated by reference in this Agreement. VI. Incident Reporting 1. DPW will provide Plaintiffs' counsel with copies of incident reports concerning class representatives or class members no later than five (5) business days of the occurrence of the incidents. The incident reports will include the date of the incidents, the individual(s) involved, the nature of the incidents, and what, if any, actions were taken in response to the incidents (e.g., use of restraints, PRN medication, change in privilege level, investigation). DPW also will provide Plaintiffs' counsel with copies of any investigation reports relating to any incidents reported under this Section within five (5) business days of the completion of the investigation reports. VII. Status Reports 1. Beginning July 1, 2010 and every twelve (12) months thereafter, DPW will issue status reports to Plaintiffs' counsel that describe the status of the following activities:
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Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 14 of 34
a. funding requests by DPW to the Governor for services under Section IV.B.1; and
b. inclusion of funding m the Governor's Executive Budget submitted to the Legislature for services under Section IV.B.1.
2. Beginning July 1, 2010 and every six (6) months thereafter, DPW will issue status reports to Plaintiffs' counsel that describe the status of the following activities:
a. discharge of class representatives and class members, including information on the services provided at discharge and funding sources for those services (e.g., name and address of community residential placement);
b. admissions of persons with mental retardation diagnoses to the state hospitals and determinations required by Section III; and
c. implementation of the Protocol to Improve Services to Class Members (Attachment 1).
VIII. Approval, Enforcement, Jurisdiction, and Attorneys' Fees 1. Plaintiffs will petition the District Court for preliminary approval of
the Settlement Agreement and for permission to provide class notice and to schedule a fairness hearing. If the District Court grants preliminary approval, Plaintiffs will petition for fmal approval of the Settlement Agreement.
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2. Plaintiffs may file a motion for specific performance to enforce alleged violations of the Settlement Agreement except as to the following issues:
a. Plaintiffs' sole remedy for disagreements relating to class representatives' and class members' eligibility for community mental retardation services, including Mental Retardation Waiver programs, is to submit the issues to the independent expert pursuant to Sections III.5-III.8.
b. Plaintiffs' sole remedy when the Governor fails to submit or the Legislature declines to appropriate full funding for the development of community services pursuant to Section IV.B.l is the alternative dispute resolution process set forth in Section IV.B.4(a)-(c) or reinstatement of the litigation if the criteria set forth in Section IV.B.4(d) is satisfied.
Defendants reserve the right to assert any available defenses to a claim for specific performance.
3. This Settlement Agreement is not nor is it to be construed as a Consent Decree and does not operate as an adjudication on the merits of the litigation. Plaintiffs may not seek a remedy of contempt of court for any violation of the Agreement.
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Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 16 of 34
4. By entering into this Settlement Agreement, Defendants do not admit any liability and Plaintiffs do not concede the validity of any defense.
5. The Settlement Agreement will be binding on all parties, as well as their successors, only if the Agreement is approved by the District Court, provided, however, that Defendants agree to comply with the terms of the Agreement, including the attached Protocol to Improve Services to Class Members, pending the Court's ruling on approval of the Agreement. If the Court denies approval of the Agreement or if final approval is overturned on appeal, the litigation will be reinstated in the same procedural posture as it was at the time of the Agreement.
6. If the District Court approves the Settlement Agreement, it will retain continuing jurisdiction over this matter for purposes of interpretation and for purposes of enforcement to the extent permitted by Section VIII.2.
7. The Settlement Agreement will terminate ninety (90) days after the provision of community services to the last person identified as eligible for community mental retardation services pursuant to Section III of this Agreement or upon reinstatement of the litigation, whichever is earlier.
8. Defendants will pay Plaintiffs' counsel, subject to the District Court's approval, the sum of $210,000 for attorneys' fees, litigation expenses, and costs incurred through final approval of the Settlement Agreement. Nothing in this Agreement should be construed to entitle or preclude payment to Plaintiffs' counsel
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Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 17 of 34
of attorneys' fees, litigation expenses, and costs incurred in this matter after the date of final approval of the Agreement.

tft.obert W. Meek MarkJ. Murphy Disability Rights Network ofPA 1315 Walnut Street Suite 500 Philadelphia, PA 19107 215-238-8070
Counsel for Plaintiffs and Class
Dated: July 251,2010

Allen C. Warshaw Chief Counsel Department ofPublic Welfare Office of General Counsel Health & Welfare Building 3rd Floor West Harrisburg, PA 17120 717-783-2800
Counsel for Defendants
Dated: July 2~, 2010

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PROTOCOL TO IMPROVE SERVICES TO CLASS MEMBERS
I. Placement of State Hospital Residents with Intellectual Disabilities (ID)
A. Initially, services and supports for class members in state hospitals will be provided on the units where they reside; they will not be placed into separate or specialized units.
B. Within ninety (90) days of the execution of the Settlement Agreement (Agreement), the Multidisciplinary Teams for Residents with Intellectual Disabilities, created pursuant to Section II of this Protocol, will review each individual class member's treatment needs to consider the appropriateness of moving him/her to another living area for continued treatment. The decision to relocate any class member will be based on the individual's clinical treatment and support needs.
C. The Multidisciplinary Teams for Residents with Intellectual Disabilities will review persons with ID admitted to the state hospitals in the future to determine their appropriate placement within the facility.
II. Multidiscipli.nary Teams for Residents with Intellectual Disabilities (MTIDs)
A. DPW will create a Multidisciplinary Team for Residents with Intellectual Disabilities (MTIDs) at each state hospital.
B. The Members of the MTIDs will receive training (as described in Section II of this Protocol).
C. Within forty-five (45) days of the execution of the Agreement, DPW's Office of Mental Health and Substance Abuse (OMHSAS) and Office of Developmental Programs (ODP), in consultation with each state hospital, will designate MTID members at each state hospital, and identify a lead for each MTID. The MTIDs will include members from the state hospitals, including at minimum a psychiatrist, a physician, a psychologist, a nurse, a vocational therapist, an occupational therapist, and a social worker, and from community mental health and mental retardation programs. Peers, family members, and advocates will be included. The MTID members within a state hospital may or may not all work on the same state hospital living area.
ATTACHMENT 1

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 19 of 34
D. The MTIDs will have primary responsibility to implement this Protocol for all class members regardless of the living area where they live, for the duration of their hospitalization. The MTIDs will also be responsible for implementing these approaches in this Protocol for individuals with ID who may be admitted to state hospitals in the future.
E. The MTIDs will implement and oversee the clinical and treatment supports for those individuals. The roles and responsibilities of the MTIDs will include:
1. comprehensive, multimodal, diagnostic and functional behavioral assessments for all class members, including compiling biopsychosocial histories as needed (see Section IV.B);
2. case coordination (see Section VI);
3. participation in the development of individualized treatment/ habilitation plans, including assuring that treatment plans are based on the results of the multimodal diagnostic assessment information (see Section IV.C)
4. participation in the development of Community Support Plans (CSPs) and Individual Support Plans (ISPs). The CSPs and ISPs will include active and ongoing discharge planning for all class members (see Section V).
III. Staff Training
A. DPW will assure that all state hospital direct care and clinical staff members are provided with specialized training before working directly with class members.
B. Within ninety (90) days of the date of execution of the Agreement, DPW (OMHSAS and ODP) will issue a Request for Proposals (RFP) for a Comprehensive Dual Diagnosis Training Plan for all staff members at the state hospitals who may come into contact with individuals with a dual diagnosis. The RFP will detail the minimum training requirements that must be conducted under this Section. The RFP also will require the contractor to be available for consultation with the MTIDs as needed for a period of at least two (2) years after the execution of the Agreement. This RFP will be issued in
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conjunction with an RFP for Independent Monitoring and Evaluation (see Section VII below). Respondents may submit proposals for one or both components of this combined RFP.
C. DPW will provide a draft of the RFP to counsel for Plaintiffs for their input no later than sixty (60) days after the date of execution of the Agreement.
D. DPW will issue the RFP no later than ninety (90) days after the date of execution of the. Agreement and will enter into a contract for the RFP to provide training no later than 180 days after the execution of the Agreement.
E. The Training Plan will consist of multiple levels in which the training topics are geared to the staff members' roles, addressing the unique responsibilities of each type of staff person as set forth in Section II.F.
F. The Training Plan will include mandatory introductory training for all new state hospital staff members as part of their orientation.
G. Training topics to be covered will include (but not be limited to):
1. For direct care staff: Overview of ID and dual diagnoses of people with mental illness/ID; learning and treatment challenges of residents with ID; the integrative mental health treatment model; trauma-informed care and positive approaches to management of psychiatric and behavioral challenges; objective means of evaluating treatment outcome data.
2. For physicians: the integrative mental health treatment model; Medical Characteristics of Individuals with ID and how they can contribute to psychiatric/behavioral challenges.
3. For medical and pharmacy staff that prescribe and/or monitor effects or side effects of psychotropic medication: the integrative mental health treatment model; psychopathology in persons with ID; appropriate candidates for psychotropic drug therapy; treatment, management, and control of behavioral symptoms; selecting specific psychotropic drug regimens; use of multiple drugs in the same patient; measurement and documentation of side effects; maintenance therapy; and use of PRN medications.
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4. For staff who conduct intake and diagnostic assessments: the integrative mental health treatment model; multimodal diagnostic assessments; selection of treatment targets based on assessment data; assessment of psychological pathologies in persons with ID; objective means of evaluating treatment outcome data.
5. For psychologists: the integrative mental health treatment model; psychopathology in persons with ID; psychotropic drug therapies and side effects; empirically-based psychosocial therapies for people with ID; objective means of evaluating treatment outcome data.
6. For staff involved in development and monitoring of Individual Treatment Plans: the integrative mental health treatment model; diagnostic-intervention relationships; objective means of evaluating treatment outcome data.
7. For case coordination staff: the integrative mental health treatment model; pscyhopathology in persons with ID; psychotropic drug therapies and side effects; empirically-based psychosocial therapies for people with ID; community resources for people with ID and mental illness; objective means of evaluating treatment outcome data.
H. The Training Plan will specify core competencies and describe skills that will be demonstrated by staff as a result of the training.
I. All staff assigned to the MDITs will receive initial training and annual specialty training.
J. Training will begin no later than seven (7) months from the date of execution of the Agreement. Training of MDIT members will be completed no later than nine (9) months from the date of execution of the Agreement and training of all staff will be completed within 18 months from the date of execution of the Agreement.
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IV. Assessment and Treatment
A. Integrative mental health treatment model
1. All class members, as well as other individuals with ID who may be admitted to state hospitals in the future, will receive treatment consistent with an integrative mental health treatment model that integrates their individual mental health treatment needs, habilitation treatment needs, and their vocational treatment needs and uses therapies, teaching, and training methods and approaches that are designed for individuals with ID. This Model will be implemented through:
(a) Extensive individualized multimodal diagnostic assessments;
(b) Functional analysis of problem behaviors that resulted in admission, contribute to continued institutionalization, or present barriers to discharge;
(c) An assessment process that is designed to identify the individual's psychological resources and strengths as well as his/her pathologies;
(d) Individualized treatment plans that address patientspecific needs for support.
(e) Treatment and supports that incorporate the principles of Positive Approaches/Positive Practices and traumainformed care.
B. Multimodal Diagnostic and Functional Behavioral Assessments
1. Comprehensive, multimodal diagnostic and functional behavioral assessments of all class members will be conducted by the appropriately trained and credentialed members of the MDITs within one (1) year of the execution ofthe Agreement.
2. These assessments will be conducted by staff members previously trained pursuant to Section III.
3. Any individual with a diagnosis of intellectual/developmental disabilities admitted to a state hospital in the future will receive
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individualized, multimodal diagnostic and functional behavioral assessments within fifteen (15) days of admission. These assessments will be performed by the appropriately credentialed and trained members of the MDITs. To the extent that individuals are admitted prior to the training of the MDITs, the MDITs will review their assessments under this sub-section within one (1) year of the execution of the Agreement.
C. Individualized Treatment Plans (ITPs)
I. All class members will have new Individualized Treatment Plans (ITPs) developed within one (1) year of the execution of the Agreement. The ITP is the document that outlines the comprehensive approach to habilitation and mental health and other treatment supports the individual is to receive while residing at the state hospital. The ITP contains details of each service to be provided, treatment plan goals, and expected outcomes.
2. All individuals with intellectual/developmental disabilities admitted to a state hospital in the future will have ITPs developed within thirty (30) days of admission. To the extent that individuals are admitted prior to the training of the MDITs, the MDITs will review their ITPs under this sub-section within one (1) year of the execution of the Agreement and revise them as needed.
3. ITPs will incorporate the results of the multimodal diagnostic and functional behavioral assessments.
4. The ITPs will be based on an integrative mental health treatment model and reflect therapies, teaching, and training methods and approaches that are designed for people with ID.
5. All ITPs will be developed in accordance with state hospital policies and procedures and accreditation/certification agency requirements.
6. For all class members, the ITPs will be created with input from and review by the MDITs and will include specialized content specific to dual diagnosis issues.
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(a) The ITPs will include treatments that address patientspecific learning, emotional, motivational, and related features of individuals with ID.
(b) The ITPs will address any specific behavioral difficulties, including specific proactive treatment supports based on a functional analysis of biomedical, psychological, and social/environmental conditions involved m the behavioral issues.
(c) The ITPs will address the reasons for admission (both psychiatric and behavioral) that may represent barriers to community placements, as well as any symptoms or behaviors acquired since admission that may represent barriers to discharge.
7. The ITPs will be routinely reviewed by the treatment teams and the MTIDs to assure ongoing evaluation of the efficacy of treatment using objective, outcome-based measures and to make adjustments as needed.
D. Approaches to Challenging Behavior
1. Incentive/privilege level systems are documented as part of the ITPs and as such will be reviewed and modified accordingly for each class member and all other state hospital residents with ID within nine (9) months of the execution of the Agreement, in accordance with Section IV.C.
2. For class members and other state hospital residents with ID, these incentive systems will be tailored to meet their individual needs, based on each person's level of cognitive ability and motivational characteristics, as determined by the results of the multimodal diagnostic and functional behavioral assessments (see Section IV.B).
3. State hospital staff members will inform class members and other-s state hospital residents with ID of the incentive system in a manner designed to ensure they understand expectations and incentives for participation and accomplishment of goals.
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4. Contingencies, reinforcements and consequences will be determined based on the individual's ability to understand and modify behavior accordingly. For example: If a class member or other individual with ID participates successfully in a day program, vocational program, or other activity, that activity should not be withheld as a consequence for problematic or challenging behavior that occurs in the living area or elsewhere.
5. The MTIDs are responsible to oversee the modification of incentive/privilege levels for class members and other state hospital residents with ID; to assure that the incentive/ privilege levels are understood by these individuals; to monitor the implementation of the incentive/privilege levels; to evaluate their success for each individual; and to refine them as needed.
V. Discharge Planning: The Community Support Plan (CSP) Process
A. Discharge planning for class members and others state hospital residents with ID will be accomplished through the Community Support Plan (CSP) process now utilized by DPW in all state hospitals. Community Support Plans (CSPs) for class members will be initiated or reviewed within thirty (30) days of the date of execution of the Agreement. The MTIDs will review the CSPs of class members and other state hospital residents with ID within nine (9) months of the execution of the Agreement and, if needed, will make appropriate modifications to the CSPs.
B. The CSP process is a comprehensive team approach to discharge planning, transition planning, and identifying and securing the supports and resources necessary for the individual to successfully return to the community. The CSP process includes a Peer to Peer assessment, a Family to Family assessment and a clinical assessment. Peer and Family advocates, as well as DRN advocates or their designees, will be included in all aspects of the CSP process whenever possible for class members. Class members will be encouraged to invite Peer Supporters to participate in their planning meetings.
C. For class members, participants from the community programs will be included in the CSP process. Specifically, representatives from the individual's Administrative Entity and/or County l\1H/MR program and Supports Coordination unit, as well as representatives from ODP,
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will participate in the CSP process. The CSP process will be conducted jointly with the Individualized Support Plan (ISP) process which is currently utilized by DPW to develop service plans for persons with ID. ISPs contain descriptions of all services and supports the individuals need to be successful in the community as well as the costs of the services to be provided.
D. All CSPs will include discharge plans with specific measurable criteria that interface with the treatment provided.
E. Members of the MDITs will participate in the CSP process. MDIT members will provide information from the individual's ITP and other clinical feedback to identify the individual's strengths, needs, and goals for discharge. The MDIT will review all completed CSPs. Each MDIT will designate a lead community representative who will be responsible for monitoring CSPs for all class members and other state hospital residents with ID. Functioning as an advocate, this lead community representative will ensure that the discharge and transition process moves forward, supporting the outcome of timely discharge to the community.
F. All class members will be provided support and an opportunity to develop a Wellness Recovery Action Plan (WRAP) and a Mental Health Advance Directive. Biographical timelines will be conducted for class members as recommended by the Multidisciplinary Transition Teams.
VI. Case Coordination
A. At each state hospital, the MTID will assume responsibility for monitoring the treatment and discharge of class members and other state hospital residents with ID. This includes, but is not limited to: ongoing review of intake; completion of multimodal diagnostic and functional behavioral assessments; review of ITPs; oversight of incentives/privilege levels; and coordination with CSP/ISP (discharge/transition plan) development.
B. The MTIDs will assure that all necessary assessments and treatment plans are undertaken in accordance with the timelines and standards of this Protocol and any other applicable DPW regulations and policies.
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C. The MTIDs will review all incidents concerning class members that result in restraint or isolation, administration of STAT medications, denials of privileges, and all incidents of alleged abuse (whether by staff or other patients) on an ongoing basis to assure timely modification of ITPs. The l\.1DITs also will review that incident reports and responses involving class members meet all Performance Improvement and Risk Management requirements.
VII. Independent Monitoring and Evaluation of Efficacy of Services to Class Members
A. Within ninety (90) days of the execution of the Agreement, DPW will issue a Request for Proposals (RFP) for Independent Monitoring and Evaluation services, to monitor and assess compliance with the implementation requirements of this Protocol. The RFP will require applicants to address the specific requirements that must be met under this Section. This RFP will be issued in conjunction with the Comprehensive Dual Diagnosis Training Plan RFP described in Section III above. Respondents may submit proposals for one or both components of this combined RFP.
B. DPW will provide a draft of the RFP to counsel for Plaintiffs for their input no later than sixty (60) days after the date of execution of the Agreement.
C. The contractor selected for the Independent Monitoring and Evaluation project will be responsible for the following activities:
1. Development and implementation of a tracking system that collects objective data to evaluate measurable outcomes against best practice standards for care to assess the services provided to class members and other state hospital residents with ID;
2. Identification of criteria to measure outcomes and development of survey tools to gauge compliance and quality; Criteria for outcomes measures will be identified, and survey tools will be developed to gauge compliance and quality.
3. Assessment of DPW's compliance with this Protocol will be reviewed one (1) year after the execution of this Agreement and annually thereafter for four (4) years. The annual assessments will include:
10

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 28 of 34
(a) Review of records of at least a representative sample of class members and other state hospital records with ID.
(b) On-side visits to one or more state hospitals.
(c) Patient and staff interviews.
(d) Other activities determined to be necessary by the contractor and agreed upon by DPW.
4. Submission of written report of findings to DPW's Statewide Task Force (see Section VIlLA below) and to Plaintiffs' counsel. The initial report will be submitted no later than 15 months after the execution of the Agreement and every 12 months thereafter. The findings will note areas of compliance and/or non-compliance with Sections I through VI of the Agreement. For any areas of non-compliance, DPW will provide a written plan of correction that the contractor will evaluate and approve, making any necessary changes.
5. Review of implementation of any plans of correction within six (6) months after they are approved and submission of written reports within thirty (30) days of whether DPW has cured any deficiencies.
D. DPW is responsible to take the steps necessary under this Section to support the Independent Monitoring and Evaluation, including:
1. issuing an RFP for the Independent Monitoring and Evaluation project within ninety (90) days after execution of the Agreement;
2. entering into a contract pursuant to the RFP no later than 180 days after execution of the Agreement;
3. developing plans of correction in response to any findings of non-compliance by the contractor; and
4. implementing the plans of correction as ultimately approved by the contractor.
11

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 29 of 34
VIII. Assessment of Community Resources and Services
A. Statewide Task Force
I. DPW will appoint a statewide Dual Diagnosis Task Force to oversee a comprehensive assessment of Pennsylvania's community resources and services for individuals with dual diagnoses of ID and mental illness. The Task Force will include representatives of ODP and Ol\tiHSAS as well as representatives from the Disability Rights Network of Pennsylvania, the Administrative Entities or county mental health and mental retardation programs, peers, family members, and other stakeholders that DPW determines to be appropriate.
2. The members of the statewide Task Force will be appointed within forty-five (45) days from the date of execution of the Agreement.
3. The functions of the Task Force will include (but not be limited to):
(a) Development and undertaking of a statewide resource assessment regarding supports for individuals with dual diagnosis in the community programs of both Ol\tiHSAS andODP.
(b) Collaboration with expert consultants.
(c) Review/oversight of implementation of expert consultants' recommendations as deemed appropriate.
(d) Development of program evaluation tools to support ongoing quality improvement in dual diagnosis services in the community programs.
(e) Review of monitoring reports of class members' treatment in state hospitals pursuant to Section VII above.
(f) Review of class members' status and progress in community programs after they are discharged from state hospitals.
12

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 30 of 34
(g) Statewide oversight and review of ongomg implementation of this Protocol.
(h) Documentation of all reviews and recommendations.
(i) Provision of feedback to DPW leadership regarding results of reviews and progress of Settlement Agreement implementation.
B. In furtherance of the Task Force's assessment of community services, DPW will require the county mental health and mental retardation programs to identify in their needs-based assessments for FY 20112012 any gaps in services for individuals with dual diagnoses of mental illness and ID.
C. Within one (1) year of the execution of the Agreement, the Statewide Task Force will issue a written report to DPW and to Plaintiffs' counsel regarding community services for individuals with dual diagnoses of mental illness and ID in all regions ofPennsylvania. The report will identify any gaps in services (either statewide or at the local level), the impact of those gaps, and recommendations for addressing those gaps.
D. Within three (3) months of receipt ofthe written report under Section VIII.C, DPW will issue a written response to the report to address how it intends to address any gaps in services and provide a copy of that report to Plaintiffs' counsel.
E. Beginning one (1) year after the execution of the Agreement and every six (6) months thereafter during the term of the Agreement, the Statewide Task Force will issue a written report to Plaintiffs' counsel that identifies all class members who have been in state hospitals for longer than one (1) year and that identifies for each class members what efforts, if any, have been made to discharge the individual, and the reason(s) for the individual's continued hospitalization.
IX. DPW Policy for Support for Dual Diagnosis Initiatives
A. Ol\.1HSAS and ODP will develop an Operating Agreement (OA) to delineate the roles and responsibilities of both agencies in providing services and supports to individuals with dual diagnoses, both in the community programs and in state facilities. The OA will describe
13

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 31 of 34
DPW's process for program planning, program development, quality management and oversight. The OA will also clearly describe the process and expectations related to respective funding responsibilities. The OA will be published no later than six (6) months from the date of the execution of the Agreement. B. O:I\.1HSAS and ODP will jointly develop a statewide protocol to respond to potential referrals for state hospital or state center admission of individuals with intellectual/developmental disabilities and mental health treatment needs. This protocol will incorporate the functions and activities of the existing Positive Practices Resource Team (PPRT) and will specify methods used to divert from admission to appropriate community based services and supports. This protocol will be included in the OA pursuant to section IX.A. This protocol will be implemented no later than six (6) months from the date of the execution of the Agreement. C. OMHSAS and ODP will publish a joint Bulletin on Dual Diagnosis to disseminate information and delineate expectations for providers regarding services and supports available to individuals with intellectual/developmental disabilities and mental health treatment needs, both in the communities and in the state hospitals and state centers. The joint Bulletin will include requirements for implementation of the OA pursuant to Section IX.A. The joint Bulletin will be published no later than six (6) months from the date of the execution of the Agreement.
14

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 32 of 34

X. Implementation Timeline

1&8!B

~<:J'tlc::>:Nto 13ltt~N

30 days

Community Support Plans (CSPs) for class members initiated or reviewed (section V.A.)

60 days

Draft Request for Proposals (RFPs) submitted to Plaintiffs' counsel for review and comment (sections IILC and VILB)

45 days

Members of the Statewide Task Force appointed by ODP and OMHSAS (section VIlLA)

45 days

ODP and OMHSAS designate team members/identify leads for Multidisciplinary Teams for Residents with Intellectual Disabilities (MTIDs) at each state hospital (section ILC)

90 days

Requests for Proposals (RFP) for a Comprehensive Dual Diagnosis Training Plan issued by DPW (section IILB)

90 days

Requests for Proposals (RFP) for Independent Monitoring and Evaluation issued by DPW (section VILA)

90 days

State hospitals review class members' treatment needs, and consider the appropriateness of moving to another living area for continued treatment (section LB)

120 days

Deadline for proposals for both RFPs (section IILD)

180 days

Contracts awarded for both RFPs (section IILD)

6 months

ODP/OMHSAS Operating Agreement published (section IX.A)

6 months

ODP/OMHSAS protocol for state facility and state center diversion published (section IX.B)

6 months

ODP/OMHSAS joint Bulletin on Dual Diagnosis published section IX.C)

7 months

Training begins for all state hospital staff (section IILJ)

9 months

Incentive/privilege level systems reviewed and modified as needed for each class member (section IV.D)

15

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 33 of 34

!t~1~~~~1llit-ittAGiREfEMiENoT fli 1

00;A"z.!.<~'.:.:~:.:.:~.:.-.:.:.,.;,:.;.:~,;.,.;,.;,,,0.:.0A,~,; ,;,:, ...:.~' ...

~¢TJQNTQ.:Q)!3tAl<'EN

9 months

CSPs will be reviewed by MDITs for class members

9 months

Training completed for all MDIT members (section III.J)

1 year

Multimodal Diagnostic and Functional Behavioral Assessments of all class members conducted by appropriately trained and credentialed members of the MDITs (per section IV.B)

1 year

All class members will have new Individualized Treatment Plans (ITPs) developed (per section IV.C)

1 year (and annually for each of Initiation of Independent Monitoring/Program Evaluation

the next 4 years)

Review

1 year

Statewide Task Force will provide Plaintiffs' counsel with a list that identifies all class members who have been hospitalized longer than one year, efforts to discharge them, and obstacles to discharge

1 year

Statewide Task Force will submit to DPW and Plaintiffs' counsel a written report to identify gaps m community services and make recommendations to address those gaps

15 months (and annually Independent Monitor will submit to Statewide Task Force

thereafter for .each of the next 4 and Plaintiffs' counsel written report on compliance with the

years)

Protocol

15 months

DPW will issue a written report, copied to Plaintiffs' counsel, to respond to the report on gaps m community services submitted by the Statewide Task Force

16 months (and annually DPW will submit written plan of correction to the

thereafter for each of the next 4 Independent Monitor, as needed, to address any compliance

years)

Issues

18 months

Training completed for all state hospital staff

22 months (and annually Independent Monitor will assess implementation of any plan thereafter for each of the next 4 of correction years)

16

Case 3:09-cv-01112-CCC Document 41-4 Filed 07/30/10 Page 34 of 34

23 months (and annually Independent Monitor will submit written report to DPW that

thereafter for each of the next 4 states whether deficiencies have been cured by plan of

years)

correction

17

 
 Case: 3:09-cv-1112 As of: 01/31/2013 04:08 PM EST 1 of 10
CLOSED,COMPLEX,MM,SCR
United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:09−cv−01112−CCC

Jimmie et al v. Department of Public Welfare of the Commonwealth of Pennsylvania et al Assigned to: Honorable Christopher C. Conner Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff

Date Filed: 06/11/2009 Date Terminated: 12/22/2010 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Leah Jimmie by and through their next friend, Carl Mosier

represented by Allen C. Warshaw Rhoads &Sinon LLP One South Market Square, 12th Floor Harrisburg, PA 17108−1146 717−237−6768 Fax: 717−238−8623 Email: awarshaw@rhoads−sinon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Horowitz Disability Rights Network of PA 429 Fourth Ave. Suite 701 Pittsburgh, PA 15219 412−258−2131 Fax: 412−391−4496 Email: chorowitz@drnpa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Murphy Disability Rights Network of PA 1315 Walnut Street Suite 400 Philadelphia, PA 19107−4798 215−238−8070 Fax: 12157723126 Email: mmurphy@drnpa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek Disability Rights Network of Pennsylvania 1315 Walnut St Suite 400 Philadelphia, PA 19107−4798 215−238−8070 Fax: 12157723126 Email: rmeek@drnpa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Resnick Disability Rights Network of Pennsylvania 1315 Walnut St Suite 1315 Philadelphia, PA 19107−4798 215−238−8070 Email: RResnick@drnpa.org

Case: 3:09-cv-1112 As of: 01/31/2013 04:08 PM EST 2 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Josette Halechko by and through their next friend, Carl Mosier

represented by Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Lewis Bowers by and through their next friend, Carl Mosier

represented by Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Janice Slater by and through their next friend Carl Mosier

represented by Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Horowitz (See above for address)

Case: 3:09-cv-1112 As of: 01/31/2013 04:08 PM EST 3 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ronald Pearson by and throught their next friend, Connie Hammann

represented by Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
William Sacks by and through their next friend, Connie Hammann

represented by Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:09-cv-1112 As of: 01/31/2013 04:08 PM EST 4 of 10

Plaintiff Edward Nauss by and theought their next friend, Akhnaton Browne, on behalf of themselves and all others similarly situated
Plaintiff Benjamin Perrick by and through their next friend, Akhnaton Browne, on behalf of themselves and all others similarly situated

Robin Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol A. Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol A. Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

represented by

Case: 3:09-cv-1112 As of: 01/31/2013 04:08 PM EST 5 of 10

Department of Public Welfare of the Commonwealth of Pennsylvania

Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Ulan PA Office of General Counsel Health &Welfare Bldg. 3rd Floor West Harrisburg, PA 17120 717.783.0881 Fax: 17177720717 Email: hulan@state.pa.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Estelle B. Richman in her official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania

represented by Allen C. Warshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Ulan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/11/2009
06/11/2009 06/11/2009 06/12/2009 06/16/2009
06/18/2009
06/22/2009
06/23/2009

# Docket Text
1 COMPLAINT against Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman ( Filing fee $350, Receipt Number 1597908), filed by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko. (Attachments: # 1 Civil Cover Sheet)(cw, ) (Entered: 06/11/2009)
Summons Issued as to Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman and provided to Atty Meek for service on Defendant(s). (cw, ) (Entered: 06/11/2009)
This case has been assigned to Judge Vanaskie (jwadmin, ) (Entered: 06/15/2009)
SPECIAL ADMISSION FORM SENT to Robin Resnick. (jc) (Entered: 06/12/2009)
2 LETTER The above−referenced action has been assigned to me. To ensure that the Case Management Conference is conducted in a timely manner, you are directed to file a written report within thirty (30) days as to whether service has been effected or a waiver of service obtained. Signed by Honorable Thomas I. Vanaskie on 6/16/09. (jfg) (Entered: 06/16/2009)
3 SUMMONS Returned Executed by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko. Department of Public Welfare of the Commonwealth of Pennsylvania served on 6/17/2009, answer due 7/7/2009; Estelle B. Richman served on 6/17/2009, answer due 7/7/2009. (Meek, Robert) (Entered: 06/18/2009)
4 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Robin Resnick on behalf of all plaintiffs Attorney Robin Resnick is seeking special admission. Filing fee $ 25, receipt number 03140000000001605567.. (Resnick, Robin) (Entered: 06/22/2009)
DOCKET ANNOTATION: Robin Resnick is approved and confirmed for special admission (bg, ) (Entered: 06/23/2009)

Case: 3:09-cv-1112 As of: 01/31/2013 04:08 PM EST 6 of 10

06/23/2009
06/24/2009 07/01/2009 07/07/2009 07/30/2009 07/31/2009 08/06/2009 08/26/2009 09/02/2009 09/02/2009
09/02/2009 09/08/2009 09/08/2009 09/17/2009 09/17/2009

5 ORDER re 4 Petition for Special Admission − Pro Hac Vice filed by Ronald Pearson, Janice Slater, William Sacks, Lewis Bowers, Josette Halechko, Leah Jimmie, Benjamin Perrick, Edward Nauss. Special Admission granted for Robin Resnick. Signed by Honorable Thomas I. Vanaskie on 6/22/09. (jfg) (Entered: 06/23/2009)
6 NOTICE by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko Notice of Death (Meek, Robert) (Entered: 06/24/2009)
7 MOTION for Extension of Time to within which to respond to complaint by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Ulan, Howard) (Entered: 07/01/2009)
8 ORDER granting 7 Motion to Extend Time. Response to the complt is now due not later than 8/6/09. Signed by Honorable Thomas I. Vanaskie on 7/7/09 (jfg) (Entered: 07/07/2009)
9 Second MOTION for Extension of Time to Respond to the Complaint by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Ulan, Howard) (Entered: 07/30/2009)
10 ORDER granting 9 Motion to Extend Time. A response is due 9/14/09 provided that if the response is a motion, a brief shall be filed concurrently. Signed by Honorable Thomas I. Vanaskie on 7/31/09 (jfg) (Entered: 07/31/2009)
11 ORDER: Case Management Conference set for 10/13/2009 08:30 AM in Scranton before Honorable Thomas I. Vanaskie.Signed by Honorable Thomas I. Vanaskie on 8/6/09. (jfg) (Entered: 08/06/2009)
12 NOTICE of Appearance by Allen C. Warshaw on behalf of all defendants (Warshaw, Allen) (Entered: 08/26/2009)
13 Unopposed MOTION to Certify Class by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko. (Attachments: # 1 Proposed Order)(Horowitz, Carol) (Entered: 09/02/2009)
14 BRIEF IN SUPPORT of Class Certfication re 13 Unopposed MOTION to Certify Class filed by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko. (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B and C, # 3 Exhibit(s) Exhibit D and E, # 4 Exhibit(s) Exhibit F and G, # 5 Exhibit(s) Exhibits H and I, # 6 Exhibit(s) Exhibits J K and L)(Horowitz, Carol) (Entered: 09/02/2009)
15 EXHIBIT List by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko re 14 Brief in Support,. (Horowitz, Carol) (Entered: 09/02/2009)
16 ORDER THAT the parties shall be prepared to address the issue of notice pursuant to Federal Rule of Civil Procedure 23(c)(2) at the Case Management Conference on Tuesday, October 13, 2009.Signed by Honorable Thomas I. Vanaskie on 9/8/09. (jfg) (Entered: 09/08/2009)
17 ORDER granting 13 Motion to Certify Class. Signed by Honorable Thomas I. Vanaskie on 9/8/09 (jfg) (Entered: 09/08/2009)
18 MOTION for Extension of Time to respond to complaint by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Ulan, Howard) (Entered: 09/17/2009)
19 MOTION to Dismiss All Claims by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order, # 3 Brief in support of motion to dismiss)(Ulan, Howard) (Entered: 09/17/2009)

Case: 3:09-cv-1112 As of: 01/31/2013 04:08 PM EST 7 of 10

09/18/2009 09/22/2009 09/23/2009 09/28/2009 10/05/2009 10/13/2009 10/13/2009 10/13/2009
11/02/2009
11/19/2009
11/19/2009 12/01/2009

20 ORDER granting 18 Motion to Extend Time to respond to the the complaint. Response is due by September 18, 2009, provided that if the response is by motion, a brief be concurrently filed.Signed by Honorable Thomas I. Vanaskie on 9/18/09 (ga, ) (Entered: 09/18/2009)
21 MOTION to Exceed Page Limitation to Respond to Defendants' Motion to Dismiss by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko.(Meek, Robert) (Entered: 09/22/2009)
22 ORDER granting 21 Motion for Leave to File Excess Pages. That pltfs have leave to file an overlength brief not to exceed 7,000 characters in oppsition to defts motion to dismiss. Signed by Honorable Thomas I. Vanaskie on 9/23/09 (jfg) (Entered: 09/23/2009)
23 BRIEF IN OPPOSITION re 19 MOTION to Dismiss All Claims filed by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E, # 6 Proposed Order)(Meek, Robert) (Entered: 09/28/2009)
24 CASE MANAGEMENT PLAN by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman, Josette Halechko. (Meek, Robert) (Entered: 10/05/2009)
25 REPLY BRIEF re 19 MOTION to Dismiss All Claims filed by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman.(Ulan, Howard) (Entered: 10/13/2009)
27 ORDER: THAT oral argument on Defendants Motion to Dismiss (Dkt. 19) shall be held on Thursday, November 19, 2009, at 2:30 p.m. in the William J. Nealon Federal Building and U.S. Courthouse, 235 North Washington Avenue, Scranton, PA 18501. Signed by Honorable Thomas I. Vanaskie on 10/13/09. (jfg) (Entered: 10/13/2009)
28 ORDER − CASE PLACED ON COMPLEX CASE MANAGEMENT TRACK. All fact discovery shall be commenced in time to be completed by August 1, 2010. All dispositive motions along with supporting briefs shall be filed by September 1, 2010. On or before July 1, 2010, plaintiff shall provide the Court with a written report concerning the status of discovery. Signed by Honorable Thomas I. Vanaskie on 10/13/09. (jfg) (Entered: 10/13/2009)
29 ORDER: THAT the oral argument previously scheduled for Thursday, November 19, 2009 at 2:30 p.m. has been rescheduled to Thursday, November 19, 2009 at 10:30 a.m. in the William J. Nealon Federal Building &U.S. Courthouse, 235 North Washington Avenue, Scranton, Pa. 18501. The Oral argument shall be held in a courtroom to be designated by the Clerk of Court. Counsel can obtain information on courtroom assignments by contacting the Clerks office the Friday before the scheduled appearance. Signed by Honorable Thomas I. Vanaskie on 11/2/09. (jfg) (Entered: 11/02/2009)
30 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Oral argument before Judge Vanaskie on 11/19/09. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Vanaskie on 11/19/09. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr, ) (Entered: 11/19/2009)
31 ORDER denying 19 Motion to Dismiss. Signed by Honorable Thomas I. Vanaskie on 11/19/2009 (bg, ) (Entered: 11/19/2009)
DOCKET ANNOTATION: Pursuant to TC from Cnsl's Office Document # 33 − STIPULATION AND ORDER by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman, Josette Halechko, filed by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Department of Public Welfare of

Case: 3:09-cv-1112 As of: 01/31/2013 04:08 PM EST 8 of 10

12/01/2009
12/02/2009 12/10/2009 06/29/2010 07/07/2010 07/14/2010 07/30/2010 08/05/2010 08/16/2010 08/20/2010 08/20/2010 09/02/2010

the Commonwealth of Pennsylvania, Estelle B. Richman, Josette Halechko.(Warshaw, Allen) (Entered: 12/01/2009, will be REFILED with "s/" on signature line. Document #33 will be deleted upon successful refiling. (kjn ) (Entered: 12/01/2009)
34 STIPULATION AND ORDER by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman, Josette Halechko, filed by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman, Josette Halechko.(Warshaw, Allen) (Entered: 12/01/2009)
35 ANSWER to 1 Complaint, by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman.(Warshaw, Allen) (Entered: 12/02/2009)
36 Order approving re 34 Stipulation, Signed by Honorable Thomas I. Vanaskie on 12/10/09. (jfg) (Entered: 12/10/2009)
37 VERBAL ORDER − Case Reassigned to Honorable Christopher C. Conner. Honorable Thomas I. Vanaskie no longer assigned to the case. (admin, ) (Entered: 06/29/2010)
38 SCHEDULING ORDER setting Telephone Status Conference for 7/14/2010 @ 10:00 AM to review pretrial/trial schedule − cnsl for pltfs shall initiate the call. (See order for complete details.) Signed by Honorable Christopher C. Conner on 07/07/10. (ki) (Entered: 07/07/2010)
40 ORDER − It is hereby ORDERED that the pretrial/trial schedule in 10/13/09 CMO 28 is suspended &parties to file joint status report re: progress of settlement discussions by 8/16/10. (See order for complete details.) Signed by Honorable Christopher C. Conner on 07/14/10. (ki) (Entered: 07/14/2010)
41 MOTION to Approve Consent Judgment by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Josette Halechko. (Attachments: # 1 Certificate of Concurrence, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Proposed Stipulated Order)(Meek, Robert) (Entered: 07/30/2010)
42 SCHEDULING ORDER setting Telephone Conference re: motion 41 &settlement &fairness hearing on 8/30/2010 @ 10:00 AM − cnsl for pltfs shall initiate the call. (See order for complete details.) Signed by Honorable Christopher C. Conner on 08/05/10. (ki) (Entered: 08/05/2010)
43 SCHEDULING ORDER RESCHEDULING Telephone Conference from 8/30/10 to 8/24/2010 @ 12:00 PM − cnsl for pltfs to initiate call. (See order for complete details.) Signed by Honorable Christopher C. Conner on 08/16/10. (ki) (Entered: 08/16/2010)
44 SCHEDULING ORDER RESCHEDULING Telephone Conference from 8/24/10 to 8/30/2010 @ 11:00 AM. (See order for complete details.) Signed by Honorable Christopher C. Conner on 08/20/10. (ki) (Entered: 08/20/2010)
45 SCHEDULING ORDER RESCHEDULING Telephone Conference from 8/30/10 to 9/2/2010 @ 09:00 AM. (See order for complete details.) Signed by Honorable Christopher C. Conner on 08/20/10. (ki) (Entered: 08/20/2010)
47 ORDER: 1. Granting Motion for preliminary approval of the proposed class action settlement agreement anf for approval of the class notice 41 . 2. The proposed Settlement Agreement is preliminarily approved as fair, adequate, and reasonable, in accordance with FRCP 23(e).The Agreement resulted from serious, informed, and non−collusivenegotiations among the parties. The Agreement treats all classmembers equally. The Agreement falls within the range of possibleapproval, given the complexity, expense, and likely duration of thelitigation; the stage of proceedings at which the Agreement wasreached; the risks of establishing liability and securing relief; and therange of reasonableness of the Agreement in light of the best possiblerecovery and the risks of continued litigation. 3. The Summary Notice of Pendency of Class Action and Notice ofHearing and Proposed Settlement and the plan for notifying class members, comply with Rule 23(e)(1), and they are

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approved. The content of the notice adequately apprises class members of the litigation: the terms of the Agreement,class members right to object, the fairness hearing, and informationon how they can receive a copy of the Agreement and contact classcounsel. The method to distribute notice also is appropriate. The written notice will be individually delivered to class members either through mail or in−person by advocates who can answer the class members questions.4. On or before Friday, September 17, 2010, plaintiffs counsel will havethe Notice delivered by first class mail, postage prepaid, to Leah Jimmie, Josette Halechko, Lewis Bowers, Janice Slater, Ronald Pearson, and William Sacks, the remaining class representatives, whose addresses DPW will provide, and their next friends.5. On or before Friday, September 24, 2010, DPW will assure that writtennotices are sent by first class mail, postage prepaid, to all classmembers who no longer reside in state hospitals.6. On or before Friday, October 1, 2010, an advocate employed byplaintiffs counsel, the Disability Rights Network of Pennsylvania,and/or the Mental Health Association of Pennsylvania will handdeliver copies of the written notice all class members who remain inthe state hospitals. If the class member is unavailable or unwilling tospeak with the advocate, the advocate will have state hospital staffdeliver the written notice to him together with contact information forthe advocate.7. Any objections from class members must be received in writing by theClerk of this Court on or before Monday, November 8, 2010.8. On or before Monday, November 15, 2010, plaintiffs shall file with thecourt a memorandum of law in support of final approval of theproposed Settlement Agreement.9. On or before Monday, November 15, 2010, counsel for plaintiffs anddefendants each will provide a certification notice to the court. Thecertification notice will state when and how the notice to classmembers required herein was accomplished.10. A hearing on final approval of the proposed Settlement Agreementwill commence at 10:00 a.m. on Wednesday, December 1, 2010, inCourtroom No. 2, Ninth Floor, Federal Building, 228 Walnut Street,Harrisburg, Pennsylvania.Signed by Honorable Christopher C. Conner on 9/2/10 (ma, ) (Entered: 09/02/2010)
Set/Reset Hearings: Settlement Hearing set for 12/1/2010 @ 10:00 AM in Harrisburg − Courtroom 2 before Honorable Christopher C. Conner. (ma, ) (Entered: 09/02/2010)
48 CERTIFICATE of of Notice by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Josette Halechko re 47 Order on Motion to Approve Consent Judgment,,,,,,,,,,,,. (Meek, Robert) (Entered: 10/01/2010)
49 Unopposed MOTION to Approve Consent Judgment by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate of Concurrence, # 4 Proposed Order, # 5 Brief in Support of Plaintiffs' Motion for Final Approval of Proposed Settlement Agreement)(Meek, Robert) (Entered: 11/09/2010)
50 Unopposed MOTION for Attorney Fees Litigation Expenses and Costs by Lewis Bowers, Janice Slater, Leah Jimmie, Ronald Pearson, William Sacks, Edward Nauss, Benjamin Perrick, Josette Halechko. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Proposed Order, # 13 Certificate of Concurrence)(Meek, Robert) (Entered: 11/09/2010)
51 CERTIFICATE of by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Warshaw, Allen) (Entered: 11/09/2010)
52 OBJECTION of Edmund F. Dinsmore, pro se, The Legal Guardian of Plaintiff Lynn Herr Dinsmore to The Proposed Settlement Agreement. (pjr) (Entered: 11/29/2010)
53 COURT REPORTER NOTES OF PROCEEDINGS, filed by Wes Armstrong, of fairness hearing before Judge Conner on 1 December 2010. In accordance with 28 U.S.C. Section 753(b) I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Conner on 1 December 2010. By: s/ Wes Armstrong. (Court Reporter Notes are viewable by court staff only) (Entered: 12/01/2010)

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55 CERTIFICATE of Counsel re 49 Unopposed MOTION to Approve Consent Judgment, 48 Certificate of Notice by Robert W. Meek on behalf of Lewis Bowers, Josette Halechko, Leah Jimmie, Edward Nauss, Ronald Pearson, Benjamin Perrick, William Sacks, Janice Slater (Attachments: # 1 Attachment A)(Meek, Robert) (Entered: 12/01/2010)
56 ORDER granting pltfs' unopposed motion for final approval of prop class action settlement agreement 49 . (See order for complete details.) Signed by Honorable Christopher C. Conner on 12/01/10. (ki) (Entered: 12/01/2010)
57 ORDER granting pltfs' motion for attys' fees, litigation expenses &costs 50 , awarding pltfs' cnsl sum of $210,000... to be paid to Disability Rights Network of PA by 1/31/11, setting forth findings of fact &conclusions of law re: same. (See order for complete details.) Signed by Honorable Christopher C. Conner on 12/02/10. (ki) (Entered: 12/02/2010)