1 ALBERTO R. GONZALES Attorney General
2 WAN J. KIM Deputy Assistant Attorney General
3 SHANETTA Y. CUTLAR (CA Bar No. 169849) Chief, Special Litigation Section
4 BENJAMIN O. TAYLOE, JR. (DC Bar No. 422910) LEE R. SELTMAN (CA Bar No. 168857)
5 MARY R. BOHAN (DC Bar No. 420628) WILLIAM G. MADDOX (DC Bar No. 000020540)
6 JACQUELINE CUNCANNAN (DC Bar No. 462985) MATTHEW J. DONNELLY (IL Bar No. 6281308)
7 ANITA C. SNYDER (NY Bar No. 3910494) Trial Attorneys
8 United States Department of Justice Civil Rights Division
9 Special Litigation Section 950 Pennsylvania Avenue, N.W.
10 Washington D.C. 20035 (202) 514-6255
11

12 Attorneys for the United States of America

13 UNITED STATES DISTRICT COURT
14 FOR THE CENTRAL DISTRICT OF CALIFORNIA
15 WESTERN DIVISION
16

17 UNITED STATES OF AMERICA,

) CASE NO.

)

18

Plaintiff

)

v.

) COMPLAINT FOR:

19

)

STATE OF CALIFORNIA; THE

)

1. VIOLATIONS OF THE

20 HONORABLE ARNOLD

)

FOURTEENTH AMENDMENT

SCHWARZENEGGER, Governor of )

TO THE UNITED STATES

21 the State of California, in )

CONSTITUTION;

his official capacity only; )

2. VIOLATIONS OF THE

22 STEPHEN W. MAYBERG, Director )

AMERICANS WITH

of the California Department )

DISABILITIES ACT;

23 of Mental Health, in his

)

official capacity only; SHARON )

24 SMITH NEVINS, Executive

)

Director of Metropolitan State )

25 Hospital, in her official

)

capacity only; and DAVE

)

26 GRAZIANI, Executive Director )

of Napa State Hospital, in his )

27 official capacity only,

)

Defendants.

)

28 ______________________________ )

1

COMPLAINT

2

PLAINTIFF, THE UNITED STATES OF AMERICA (“Plaintiff”), by

3 its undersigned attorneys, hereby alleges upon information and

4 belief:

5 1. The Attorney General files this Complaint on behalf of the

6

United States of America pursuant to the Civil Rights of

7

Institutionalized Persons Act, 42 U.S.C. § 1997, to enjoin

8

the named Defendants from egregiously and flagrantly

9

depriving individuals housed in Metropolitan State Hospital

10

("Metropolitan") and Napa State Hospital (“Napa”) of rights,

11

privileges, or immunities secured and protected by the

12

Constitution and laws of the United States.

13

Jurisdiction and Venue

14 2. This Court has jurisdiction over this action under 28 U.S.C.

15

§§ 1331 and 1345.

16 3. The United States is authorized to initiate this action

17

pursuant to 42 U.S.C. § 1997a.

18 4. The Attorney General has certified that all pre-filing

19

requirements specified in 42 U.S.C. § 1997b have been met.

20

The Certificate of the Attorney General is appended to this

21

Complaint and is incorporated herein.

22 5. Venue in the Central District of California is proper

23

pursuant to 28 U.S.C. § 1391.

24

25

26

27

28

- 2 -

1

Intradistrict Assignment

2 6. The events giving rise to the United States’ claims occurred

3

in Napa and Los Angeles Counties.

4

Defendants

5 7. Defendant State of California owns and operates Metropolitan

6

and Napa (collectively, the “Facilities”) and as such has

7

responsibility for the services and supports provided to

8

patients at the Facilities.

9 8. Each of the Facilities is a State mental hospital.

10 9. Defendant Arnold Schwarzenegger is the Governor of the State

11

of California, and in that capacity, he has responsibility

12

for the operation of the Facilities.

13 10. Defendant Stephen W. Mayberg is the Director of the

14

California Department of Mental Health, which has

15

responsibility for overseeing the operations of the

16

Facilities.

17 11. Defendant Sharon Smith Nevins is the Executive Director of

18

Metropolitan.

19 12. Defendant Dave Graziani is the Executive Director of Napa.

20 13. The individual Defendants named in paragraphs 9 through 12

21

are officers of the State of California and are sued in

22

their official capacity only.

23

Factual Allegations

24 14. Defendants are legally responsible, in whole or in part, for

25

the operation of the Facilities and for the health and

26

safety of the persons residing in the Facilities.

27

28

- 3 -

1 15. The Facilities are institutions within the meaning of

2

42 U.S.C. § 1997(1). The Facilities provide care to

3

psychiatric patients committed civilly or in connection with

4

criminal proceedings.

5 16. Defendants are obligated to operate these Facilities in a

6

manner that does not infringe upon the federal rights, as

7

protected by the Fourteenth Amendment to the Constitution of

8

the United States and by other federal law, of individuals

9

confined to the Facilities.

10 17. Defendants are obligated to provide treatment, supports, and

11

services to individuals confined to the Facilities

12

consistent with the Americans with Disabilities Act and

13

implementing regulations. 42 U.S.C. § 12101 et seq.,

14

28 C.F.R. Part 35.

15 18. At all relevant times, Defendants have acted or failed to

16

act, as alleged herein, under color of state law.

17 19. Individuals are confined to, or reside at, the Facilities

18

because they have been determined by Defendants to have

19

significant mental illness requiring extensive intervention

20

and treatment.

21 20. The Facilities’ supports and services substantially depart

22

from generally accepted professional standards of care,

23

thereby exposing the individuals confined or residing there

24

to significant risk, and in some cases, to actual harm.

25 21. The Facilities’ supports and services substantially depart

26

from generally accepted professional standards of care in

27

28

- 4 -

1

the following specific respects, among others:

2

a. the provision of adequate treatment planning;

3

b. the provision of adequate assessments and

4

diagnoses;

5

c. the provision of adequate psychiatric services;

6

d. the provision of adequate psychological services;

7

e. the provision of adequate nursing services;

8

f. the provision of adequate rehabilitation therapy

9

services;

10

g. the provision of adequate nutritional services;

11

h. the provision of adequate pharmacy services;

12

i. the provision of adequate general medical

13

services;

14

j. the provision of adequate infection control

15

services;

16

k. the provision of adequate dental services; and

17

l. the provision of adequate protections from harm.

18 22. Defendants have failed and continue to fail to assess

19

individuals residing in the Facilities to ascertain whether

20

these individuals are, within the confines of any court-

21

ordered confinement, receiving adequate treatment, supports,

22

and services in the most integrated setting appropriate to

23

their individual needs; that those individuals whom

24

professionals determine should be placed in community

25

programs are placed in such programs, when appropriate; and

26

that these individuals are served in the most integrated

27

setting appropriate to their needs.

28

- 5 -

1

Violations Alleged

2

COUNT ONE:

3 Violations of the Due Process Protections of the Fourteenth

4

Amendment to the United States Constitution

5 23. The United States incorporates by reference the allegations

6

set forth in Paragraphs 1 through 22 as if fully set forth

7

herein.

8 24. The egregious and flagrant acts and omissions alleged in

9

paragraphs 20 and 21 constitute a pattern or practice that

10

violates the federal rights, as protected by the Fourteenth

11

Amendment to the Constitution of the United States and by

12

other federal law, of individuals confined to the

13

Facilities.

14 25. Unless restrained by this Court, Defendants will continue to

15

engage in the egregious and flagrant acts and omissions set

16

forth in paragraphs 20 and 21 that deprive the Facilities’

17

residents of rights, privileges, or immunities secured or

18

protected by the Constitution of the United States and

19

federal law, and will cause irreparable harm to these

20

residents.

21

COUNT TWO:

22

Violations of the Americans with Disabilities Act

23 26. The United States incorporates by reference the allegations

24

set forth in Paragraphs 1 through 22 as if fully set forth

25

herein.

26 27. The egregious and flagrant acts and omissions alleged in

27

paragraph 22 violate the Americans with Disabilities Act and

28

- 6 -

1

implementing regulations. 42 U.S.C. § 12101 et seq.,

2

28 C.F.R. Part 35.

3 28. Unless restrained by this Court, Defendants will continue to

4

engage in the egregious and flagrant acts and omissions set

5

forth in paragraph 22 that deprive the Facilities’ residents

6

of rights, privileges, or immunities secured or protected by

7

federal law, and will cause irreparable harm to these

8

residents.

9

PRAYER FOR RELIEF

10 29. The Attorney General is authorized under 42 U.S.C. § 1997 to

11

seek equitable and declaratory relief.

12

WHEREFORE, the United States prays that this Court enter an

13

order:

14

a. Declaring that the acts, omissions, and practices of

15

Defendants set forth in paragraphs 20-22 above

16

constitute a pattern or practice of resistance to the

17

residents' of the Facilities full enjoyment of rights,

18

privileges or immunities secured or protected by the

19

Constitution or laws of the United States, and that

20

those acts, omissions and practices violate the

21

Constitution and laws of the United States; and

22

b. Permanently enjoining Defendants, their officers,

23

agents, employees, subordinates, successors in office,

24

and all those acting in concert or participation with

25

them, from continuing the acts, omissions, and

26

practices set forth in paragraphs 20-22 above, and that

27

this Court require Defendants to take such actions as

28

- 7 -

1

will ensure lawful conditions of institutionalization

2

are afforded to residents of the Facilities; and

3

c. Granting such other and further equitable relief as the

4

Court may deem just and proper.

5

6

Respectfully submitted,

7

_/_s_/_A_l_b_er_t_o_R_.__Go_n_z_al_e_s__________________

THE HONORABLE ALBERTO R. GONZALES

8

Attorney General of the United States

9

/s/ Wan J. Kim

___________________________________

10

WAN J. KIM

Assistant Attorney General

11

Civil Rights Division

12 _/_s/__S_ha_n_e_tt_a__Y.__C_ut_l_a_r__________________

13

SHANETTA Y. CUTLAR

Chief

14

Special Litigation Section

15

_/s_/__Be_n_j_am_i_n_O_.__Ta_y_l_oe_,__Jr_._______________

16

BENJAMIN O. TAYLOE, JR.

Special Counsel

17

LEE R. SELTMAN

18

MARY R. BOHAN

JACQUELINE K. CUNCANNAN

19

WILLIAM G. MADDOX

MATTHEW J. DONNELLY

20

ANITA C. SNYDER

21

Trial Attorneys

United States Department of Justice

22

Civil Rights Division

Special Litigation Section

23

950 Pennsylvania Avenue, N.W.

24

Washington, D.C. 20035

(202) 514-6255

25

26 Dated: May 2, 2006 27

28

- 8 -

 
 RlGINAL , I Case 2:06-cv-02667-GPS-E Document 9

1"""'1 ~·I

•

\ V"

,

'

t ,.. Filed 02/27/2007 I o ~

Page 1 of 94

1 WAN J. KIM

Assistant Attorney General

2 SHANETTA Y. CUTLAR (CA Bar No. 169849)

Chief, Special Litigation Section

3 BENJAMIN O. TAYLOE, JR. (DC Bar No. 422910)

LEE R. SELTMAN (CA Bar No. 168857)

4 MARY R. BOHAN (DC Bar No. 420628)

WILLIAM G. MADDOX (DC Bar No. 000020540)

5 JACQUELINE CUNCANNAN (DC Bar No. 462985)

MATTHEW J. DONNELLY (IL Bar No. 6281308)

6 Trial Attorneys

United States Department of Justice

7 Civil Rights Division

Special Litigation Section

8

950 Pennsylvania Avenue, N.W.

Washington D.C. 2003~

9

(202) 514-6255

OF CALIFORNIA DePuTY

10 DEBRA W. YANG

United States Attorney

11 LEON W. WEIDMAN

Assistant United States Attorney

12 Chief, Civil Division

GARY L. PLESSMAN

13 Assistant United States Attorney

Chief"Civil Fraud Section

14 HOm:mD~NIE S (CA Bar No. 081764) Ass~t~ Un ted States Attorney

C'? 3Q1J.i.wor h Los Angeles Street

:n:: Fe~~al Building, Room 7516 a.. L<1s..:~ng les, CA 90012

- (4'}.;;;I~ 8 4-4024

C'?_o~

, 't/l
Att~nEi:ys3f the United States of America

o :... ~

19

g....0 rl","r~t.:,t,:J

N

_~t)

.'.~

,.

UNITED STATES DISTRICT COURT

~ FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

WESTERN DIVISION

21 II=~~~~~~~~~~_________ UNITED STATES OF AMERICA,

CASE NO. CV 06-2667 GPS

22

Plaintiff,

23

VS.

AMENDED

CONSENT JUDGMENT

24 STATE OF CALIFORNIA; THE HONORABLE ARNOLD SCHWARZENEGGER,

\

25 Governor of the State of

California, in his official

26 capacity only; STEPHEN W. MAYBERG,

Director of the California

27 Department of Mental Health, in

his official capacity only; 28 SHARON SMITH NEVINS, Executive
Director of Metropolitan

DOCKETED ON eM ,:

State Hospital, in her

FEB 28 2007

L:B:. :.,. lf::b9l::=:;:=-O 10

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 2 of 94

1 official capacity only; OCTAVIO C. LUNA, Executive
2 Director of Patton State Hospital, in his official capacity only;
3 MELVIN E. HUNTER, Executive Director of Atascadero State
4 Hospital, in his official capacity only; and DAVE GRAZIANI,
5 Executive Director of Napa State Hospital,in his official
6 capacity only,
7 _ _ _De_fen_da_nt_ s. _ _ _ _ _ _ __ 11

8

Simultaneously herewith, Plaintiff, the United States of

9 America filed a Complaint under the provisions of 42 U.S.C.

10 § 1997 against the Defendants, seeking to remedy an alleged

11 pattern or practice of conduct that was alleged to deprive

12 patients of Metropolitan State Hospital, in Norwalk, California,

13 Patton State Hospital in Patton, California, Atascadero State

14 Hospital in Atascadero, California, and Napa State Hospital, in

15 Napa, California (collectively, and including any facility that

16 supplements or replaces them, the "State Hospitals") of rights,

17 privileges, and immunities secured or protected by the

18 Constitution or laws of the United States. On the same date, the

19 Parties in this matter filed a Stipulation for Consent Judgment

20 and Agreement ("Stipulation").

21

Noting the general principle that settlements are to be

22 encouraged, particularly settlements between governmental

23 entities, and having considered the Stipulation and the terms of

24 the measures, set forth herein, that the Defendants agree to

25 undertake to improve conditions at the State Hospitals, it is

26 ORDERED, ADJUDGED AND DECREED that pursuant to the Stipulation,

27 and good and reason'able cause appearing therefore, Judgment shall

28

2

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 3 of 94
1 be entered in this matter pursuant to the following terms and 2 conditions: 3
4
5 6 7
8 9
10
11
12
13
14 15 16 17 18 19 20 21 22 23 24
25
26 27
28
3

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 4 of 94

1

PART I

(;:~I

til

2

ENHANCEMENT PLAN

",,"
~E

«:

3 ----------------------------------------------------------------- LJ

4

Table of Contents

5 6 A.
7

Definitions 1. Effective Date

- 6-

8

2. Consistent With Generally Accepted Professional

9

Standards of Care

6

10 B. Introduction . . . . .

11 C. Integrated Therapeutic and Rehabilitation Services

12

Planning

13

1. Interdisciplinary Teams

14

2. Integrated Therapeutic and Rehabilitation Service

15

Planning .

- 9-

16 D. Integrated Assessments

17

I. Psychiatric Assessments and Diagnoses

18

2. Psychological ~ssessments

19

3. Nursing Assessments

- 29 -

20

4. Rehabilitation Therapy Assessments

- 31 -

21

5. Nutrition Assessments

32

22

6. Social History Assessments

- 34 -

23

7. Court ASSessments

24 E. Discharge Planning and Community Integration

- 39 -

25 F. Specific Therapeutic and Rehabilitation Services

- 41 -

26

1. Psychiatric Services .

- 41 -

27

2. Psychological Services

28

4

Case 2:06-cv-02667-GPS-E Document 9
t

,Filed 02/27/2007

Page 5 of 94

1 2
3
4 5 6 7 8
9 G. 10 H.
11 I.
12 13 14 15 J.

3. Nursing Services

4. Rehabilitation Therapy Services

5. Nutrition Services

6. Pharmacy Services

7. General Medical Services

8. Infection Control

9. Dental Services

10. Special Education

..

Documentation

Restraints, Seclusion, and PRN and Stat Medications

Protection From Harm .

1. Incident Management

2. Performance Improvement

3. Environmental Conditions

First Amendment and Due Process

- 56 56
- 58 -
- 60 - 62 - 62 -
66 - 66 - 73 - 75

16 ------------------,---------------------------------------------17 18 19 20

21

22

23 24 25

26

27

28

5

Case 2:06-cv-02667-GPS-E
t

Document 9

,Filed 02/27/2007

Page 6 of 94

1 A. Definitions

2

1. Effective Date

3

The Effective Date will be considered the first day of

4

the month fallowing the date of execution of the agreement

5

by all parties. Unless otherwise specified, implementation

6

of each provision of this Plan shall begin no later than 12

7

months after the Effective Date.

8

2. Consistent With Generally Accepted Professional

9

Standards of Care

10

A decision by a qualified professional that is

11

substantially aligned with contemporary, accepted

12

professional judgment, practice, or standards as to

13

demonstrate that the person responsible based the decision

14

an such accepted professional judgment.

15 B. Introduction

16

Each State Hospital shall use a Recovery philosophy of care

17 and a Psychiatric Rehabilitation model of service delivery.

18 Therapeutic and rehabilitative services provided by each State

19 Hospital shall be based on evidence-based practices and

20 practice-based evidence, shall be age-appropriate, and shall be

21 designed to: strengthen and support individuals' recovery,

22 rehabilitation, and habilitation; enable individuals to grow and

23 develop in ways benefitting their mental health, physical health,

24 and well being; and ensure individuals' reasonable safety,

25 security, and freedom from undue bodily restraint. Relationships

26 between each State Hospital's staff and the individuals whom they

27 serve shall be positive, therapeutic, and respectful.

28

6

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 7 of 94

1

Each individual served by each State Hospital shall be

2 encouraged to participate in identifying his or her needs and

3 goals, and in selecting appropriate treatment options.

4 Therapeutic and rehabilitation services shall be designed to

5 address each individual's needs and to assist individuals in

6 meeting their specific recovery and wellness goals, consistent

7 with generally accepted professional standards of care. Each

8 State Hospital shall ensure clinical and administrative

9 oversight, education, and support of its staff in planning and

10 providing care and treatment consistent with these standards.

11 C. Integrated Therapeutic and Rehabilitation Services Planning

12

Each State Hospital shall provide coordinated,

13 comprehensive, individualized protections, services, supports,

14 and treatments (collectively "therapeutic and rehabilitition

15 services") for the individuals it serves, consistent with

16 generally accepted professional standards of care. In addition

17 to implementing the therapeutic and rehabilitation planning

18 provisions set forth below, each State Hospital shall establish

19 and implement standards, policies, and practices to ensure that

20 therapeutic and rehabilitation service determinations are

21 consistently made by an interdisciplinary team through integrated

22 therapeutic and rehabilitation service planning and embodied in a

23 single, integrated therapeutic and rehabilitation service plan.

24

1. Interdisciplinary Teams

25

The interdisciplinary team's membership shall be

26

dictated by the particular needs and strengths of the

27

individual in the team's care. At a minimum, each State

28

7

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 8 of 94

1

Hospital shall ensure that the team shall:

2

a. Have as its primary objective the provision of

3

individualized, integrated therapeutic and

4

rehabilitation services that optimize the

5

individual's recovery and ability to sus,tain

6

himself/herself in the most integrated,

7

appropriate setting based on the individual's

8

strengths and functional and legal status and

9

support the individual's ability to exercise

10

his/her liberty interests, including the interests

11

of self determination and independence;

12

b. Be led by a clinical professional who is involved

13

in the care of the individual;

14

c. Function in an interdisciplinary fashion;

15

d. Assume primary responsibility for the individual's

16

therapeutic and rehabilitation services, and

17

ensure the provision of competent, necessary, and

18

appropriate psychiatric and medical care;

19

e. Ensure that each member of the team participates

20

appropriately, by competently and knowledgeably

21

assessing the individual on an ongoing basis and

22

by developing, monitoring, and, as necessary,

23

revising the therapeutic and rehabilitation

24

services';

25

f. Ensure that assessment results and, as clinically

26

relevant, consultation results, are communicated

27

to the team members, along with the implications

28

8

Case 2:06-cv-02667-GPS-E Document 9

• Filed 02/27/2007

Page 9 of 94

1

of those results for diagnosis, therapy and

2

rehabilitation by no later than the next review;

3

g. Be responsible for the scheduling and coordination

4

of assessments and team meetings, the drafting of

5

integrated treatment plans, and the scheduling and

6

coordination of necessary progress reviews;

7

h. Consist of a stable core of members, including at

8

least the individual served; the treating

9

psychiatrist; the treating psychologist; the

10

treating rehabilitation therapist; the treating

11

social worker; the registered nurse and

12

psychiatric technician who know the individual

13

best; one of the individual's teachers (for

14

school-age individuals); and, as appropriate, the

15

individual's family, guardian, advocates,

16

attorneys, and the pharmacist and other staff;

17

1. Not include any core treatment team members with a

18

case load exceeding 1:15 in admission teams (new

19

admissions of 90 days or less) and, on average,

20

1:25 in all other teams at any point in time; and

21

j. Not include staff that is not verifiably competent

22

in the development and implementation of

23

interdisciplinary treatment plans.

24

2. Integrated Therapeutic and Rehabilitation Service

25

Planning.

26

Each State Hospital shall develop and implement

27

policies and protocols regarding the development of

28

therapeutic and rehabilitation service plans, referred to as

9

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 10 of 94

1

"We1Iness and Recovery Plans" ("WRP") consistent with

2

generally accepted professional standards of care, to ensure

3

that:

4

a. Individuals have substantive input into the

5

therapeutic and rehabilitation service planning

6

process, including but not limited to input as to

7

mall groups and therapies appropriate to their

8

wRP.

9

b. Therapeutic and rehabilitation service planning

10

provides timely attention to the needs of each

11

individual, in particular:

12

i. initial therapeutic and rehabilitation

13

service plans (Admission Wel1ness and

14

Recovery Plan ("A-WRP")) are completed within

15

24 hours of admission;

16

ii. master therapeutic and rehabilitation service

17

plans (WRP) are completed within 7 days of

18

admission; and

19

iii. therapeutic and rehabilitation service plan

20

reviews are performed every 14 days during

21

the first 60 days of hospitalization and

22

every 30 days thereafter. The third monthly

23

review is a quarterly review and the 12th

24

monthly review is the annual review.

25

c. Treatment, rehabilitation, and enrichment services

26

are goal-directed, individualized, and informed by

27

a thorough knowledge of the individual's

28

10

• Case 2:06-cv-02667-GPS-E

Document 9

• Filed 02/27/2007

Page 11 of 94

1

psychiatric, medical, and psychosocial history and

2

previous response to such services.

3

d. Therapeutic and rehabilitation service planning is

4

based on a comprehensive case formulation for each

5

individual that emanates from interdisciplinary

6

assessments of the individual consistent with

7

generally accepted professional standards of care.

8

Specifically, the case formulation shall:

9

i. be derived from analyses of the information

10

gathered from interdisciplinary assessments,

11

including diagnosis and differential

12

diagnosis;

13

ii. include a review of: pertinent history;

14

predisposing, precipitating and perpetuating

15

factors; previous treatment history; and

16

present status;

17

iii. consider biomedical, psychosocial, and

18

psychoeducational factors, as clinically

19

appropriate, for each category in § C.2.d.ii

20

above;

21

iv. consider such factors as age, gender,

22

culture, treatment adherence, and medication

23

issues that may affect the outcomes of

24

treatment and rehabilitation interventions;

25

v. support the' diagnosis by diagnostic

26

formulation, differential diagnosis, and

27

Diagnostic and Statistical Manual-IV-TR (or

28

the most current edition) checklists; and

11

• Case 2:06-cv-02667-GPS-E

Document 9

• Filed 02/27/2007

Page 12 of 94

1

vi. enable the interdisciplinary team to reach

2

sound determinations about each individual's

3

treatment, rehabilitation, enrichment and

4

wellness needs, the type of setting to which

5

the individual should be discharged, and the

6

changes that will be necessary to achieve

7

discharge.

8

e. The therapeutic and rehabilitation service plan

9

specifies the individual's focus of

10

hospitalization (goals), assessed needs

11

(objectives), and how the staff will assist the

12

individual to achieve his or her goals/objectives

13

(interventions) .

14

f. Therapeutic and rehabilitation service planning is

15

driven by individualized needs, is strengths-based

16

(i.e., builds on an individual's current

17

strengths), addresses the individual's motivation

18

for engaging in wellness activities, and leads to

19

improvement in the individual's mental health,

20

physical health, and well being, consistent with

21

generally accepted professional standards of care.

22

Specifically, the interdisciplinary team shall:

23

i. develop and prioritize reasonable and

24

attainable goals/objectives (e.g., at the

25

level of each individual's functioning) that

26

build on the individual's strengths and

27

address the individual's identified needs

28

12

• Case 2:06-cv-02667-GPS-E

Document 9

• Filed 02/27/2007

Page 13 of 94

1

and, if any identified need is not addressed,

2

provide a rationale for not addressing the

3

need;

4

ii. ensure that the objectives/interventions

5

address treatment (e.g., for a disease or

6

disorder), rehabilitation (e.g.,

7

skills/supports, motivation and readiness),

8

and enrichment (e.g., quality of life

9

activities);

10

iii. write the objectives in behavioral,

11

observable, and/or measurable terms;

12

iv. include all objectives from the individual's

13

current stage of change, or readiness for

14

rehabilitation, to the maintenance stage for

15

each focus of hospitalization, as clinically

16

appropriate;

17

v. ensure that there are interventions that

18

relate to each objective, specifying who will

19

do what, within what time frame, to assist

20

the individual to meet his/her needs as

21

specified in the objective;

22

vi. implement interventions appropriately

23

throughout the individual's day, with a

24

minimum of 20 hours of active treatment per

25

week. Individual or group therapy included

26

in the individual's WRP shall be provided as

27

part of the 20 hours of active treatment per

28

week;

13

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1

vii. maximize, consistent with the individual's

2

treatment needs and legal status,

3

opportunities for treatment, programming,

4

schooling, and other activities in the most

5

appropriate integrated, non-institutional

6

settings, as clinically appropriate; and

7

viii. ensure that each therapeutic and

8

rehabilitation service plan integrates and

9

coordinates all services, supports, and

10

treatments provided by or through the State

11

Hospital for the individual in a manner

12

specifically responsive to the plan's

13

therapeutic and rehabilitation goals. This

14

requirement includes, but is not limited to,

15

ensuring that individuals are assigned to

16

mall groups that link directly to the

17

objectives of the individual's treatment plan

18

and needs;

19

g. Therapeutic and rehabilitation service plans are

20

revised as appropriate to ensure that planning is

21

based on the individual's progress, or lack

22

thereof, ~s determined by the scheduled monitoring

23

of identified criteria or target variables,

24

consistent with generally accepted professional

25

standards of care. Specifically, the

26

interdisciplinary team shall:

27

1. revise the focus of hospitalization

28

objectives, as needed, to reflect the

14

• Case 2:06-cv-02667-GPS-E

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1

individual's changing needs and develop new

2

interventions to facilitate attainment of new

3

objectives when old objectives are achieved

4

or when the individual fails to make progress

5

toward achieving these objectives;

6

ii. review the focus of hospitalization, needs,

7

objectives, and interventions more frequently

8

if there are changes in the individual's

9

functional status or risk factors (i.e.,

10

behavioral, medical, and/or psychiatric risk

11

factors) ;

12

iii. ensure that the review process includes an

13

assessment of progress related to discharge

14

to the most integrated setting appropriate to

15

meet the individual's assessed needs,

16

consistent with his/her legal status; and

17

iv. base progress reviews and revision

18

recommendations on data collected as

19

specified in the therapeutic and

20

rehabilitation service plan.

21

h. Individuals in need of positive behavior supports

22

in school or other settings receive such supports

23

consistent with generally accepted professional

24

standards of care.

25

i. Adequate active psychosocial rehabilitation is

26

provided, consistent with generally accepted

27

28

15

t Case 2:06-cv-02667-GPS-E Document 9

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1

professional standards of care, that:

2

i. is based on the individual's assessed needs

3

and is directed toward increasing the

4

individual's ability to engage in more

5

independent life functionsi

6

ii. has documented objectives, measurable

7

outcomes, and standardized methodologYi

8

iii. is aligned with the individual's objectives

9

that are identified in the individual's WRPi

10

iv. utilizes the individual's strengths,

11

preferences, and interests;

12

v.

focuses on the individual's vulnerabilities

13

to mental illness, substance abuse, and

14

readmission due to relapse, where

15

appropriate;

16

vi. is provided in a manner consistent with each

17

individual's cognitive strengths and

18

limitations;

19

vii. provides progress reports for review by the

20

Interdisciplinary Team as part of the WRP

21

review process;

22

viii. is provided 5 days a week, for a minimum of 4

23

hours a day (i.e., 2 hours in the morning and

24

2 hours in the afternoon each weekday), for

25

each individual or 2 hours a day when the

26

individual is in school, except days falling

27

on state holidays;

28

16

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 17 of 94

1

ix. is provided to individuals in bed-bound

(.":"

2

status in a manner and for a period that is

3

commensurate with their medical status;

4

x.

routinely takes place as scheduled;

5

xi. includes, in the evenings and weekends,

6

additional activities that enhance the

7

individual's quality of life; and

8

xii. is consistently reinforced by staff on the

9

therapeutic milieu, including living units.

10

j. Adequate individualized and group exercise and

11

recreational options are provided, consistent with

12

generally accepted professional standards of care.

13

k. Individuals who have an assessed need for family

14

therapy services receive such services in their

15

primary language, as feasible, consistent with

16

generally accepted professional standards of care

17

and that these services, and their effectiveness

18

for addressing the indicated problem, are

19

comprehensively documented in each individual's

20

chart.

21

1. Each individual's therapeutic and rehabilitation

22

service plan identifies general medical diagnoses,

23

the treatments to be employed, the 'related symptoms

24

to be monitored by nursing staff (i.e., registered

25

nurses ("RNs"), licensed vocational nurses

26

("LVNs"), and psychiatric technicians) and the

27

means and frequency by which such staff shall

28

17

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1

monitor such symptoms, consistent with generally

2

accepted professional standards of care.

3

m. Children and adolescents receive, consistent with

4

generally accepted professional standards of care:

5

1. therapy relating to traumatic family and

6

other traumatic experiences, as clinically

7

indicated; and

8

ii. reasonable, clinically appropriate

9

opportunities to involve their families in

10

treatment and treatment decisions.

11

n. 'Policies and procedures are developed and

12

implemented consistent with generally accepted

13

professional standards of care to ensure

14

appropriate screening for substance abuse, as

15

clinically indicated.

16

o. Individuals who require treatment for substance

17

abuse are provided appropriate therapeutic and

18

rehabilitation services consistent with generally

19

accepted professional standards of care.

20

p. Group facilitators and therapists providing

21

therapeutic and rehabilitation services (in groups

22

or individual therapy) are verifiably competent

23

regarding selection and implementation of

24

appropriate approaches and interventions to address

25

therapeutic and rehabilitation service objectives,

26

are verifiably competent in monitoring individuals'

27

responses to therapy and rehabilitation, and

28

receive regular, competent supervision.

18

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1

q. Group faci~itators and therapists providing

2

therapeutic and rehabilitation services in the

3

field of substance abuse should be certified

4

substance abuse counselors.

5

r. Transportation and staffing issues do not preclude

6

individuals from attending appointments.

7

s. Adequate oversight to treatment, rehabilitation,

8

and enrichment groups is provided to ensure that

9

individuals are assigned to groups that are

10

appropriate to their assessed needs, that groups

11

are provided consiitently and with appropriate

12

frequency, and that issues particularly relevant

13

for this population, including the use of

14

psychotropic medications and substance abuse, are

15

appropriately addressed, consistent with generally

16

accepted professional standards of care.

17

t. Treatment, rehabilitation, and enrichment services

18

are monitored appropriately against rational,

19

operationally-defined target variables and revised

20

as appropriate in light of significant

21

developments, and the individual's progress, or

22

lack thereof.

23

u. Individuals are educated regarding the purposes of

24

their treatment, rehabilitation, and enrichment

25

services. They will be provided a'copy of their

26

WRP when appropriate based on clinical judgment.

27

v. Staff educate individuals about their medications,

28

the expected results, and the potential common

19

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1

and/or serious side effects of medications, and

2

staff regularly ask individuals about common and/or

3

serious side effects they may experience.

4

w. Interdisciplinary teams review, assess, and develop

5

positive clinical strategies to overcome

6

individual's barriers to participation in

7

therapeutic and rehabilitation services.

8 D. Integrated Assessments

9

Each State Hospital shall ensure that, consistent with

. 10 generally accepted professional standards of care, each

11 individual shall receive, promptly after admission to the State

12 Hospital, an accurate and comprehensive assessment of the

13 conditions responsible for the individual's admission, to the

14 degree possible given the obtainable information at the time of

15 admission. Thereafter, each individual shall receive an accurate

16 and comprehensive reassessment of the reasons for the

17 individual's continued hospitalization whenever there has been a

18 significant change in the individual's status, or a lack of

19 expected improvement resulting from clinically indicated

20 treatment. The individual's interdisciplinary team shall be

21 responsible for investigating the past and present medical,

22 nursing, psychiatric, and psychosocial factors bearing on the

23 individual's condition, and, when necessary, for revising

24 assessments and therapeutic and rehabilitation plans in

25 accordance with new information that comes to light. Each State

26 Hospital shall monitor and promptly address deficiencies in the

27 quality and timeliness of such assessments.

28

20

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1

1. Psychiatric Assessments and Diagnoses

2

Each State Hospital shall provide all of the

3

individuals it serves with routine and emergency psychiatric

4

assessments and reassessments consistent with generally

5

accepted professional standards of care; and:

6

a. Each State Hospital shall use the diagnostic

7

criteria in the most current Diagnostic and

8

Statistical Manual of Mental Disorders ("DSM") for

9

reaching the most accurate psychiatric diagnoses.

10

b. Each State Hospital shall ensure that all

11

psychiatrists responsible for performing or

12

reviewing psychiatric assessments:

13

1. are certified by the American Board of

14

Psychiatry and Neurology ("ABPN") or have

15

successfully completed at least three years

16

of psychiatric residency training in a

17

Accreditation Counsel for Graduate Medical

18

Education accredited program; and

19

i1. are verifiably competent (as defined by

20

privileging at initial appointment and

21

thereafter by reprivileging for continued

22

appointment) in performing psychiatric

23

assessments consistent with the State

24

Hospital's standard diagnostic protocols.

25

c. Each State Hospital shall ensure that:

26

i. within 24 hours of an individual's admission

27

to the State Hospital, the individual

28

21

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1

receives an Admission Medical Assessment that

2

includes: '

3

l) a review of systems;

4

2 ) medical history;

5

3) physical examination;

6

4 ) diagnostic impressions; and

7

5) management of acute medical conditions.

8

ii. within 24 hours of an individual's admission

9

to the State Hospital, the individual

10

receives an Admission Psychiatric Evaluation

11

that includes:

12

1) psychiatric history, including a review

13

of presenting symptoms;

14

2 ) complete mental status examination;

15

3) admission diagnoses;

16

4) completed AIMS;

17

5) laboratory tests ordered; and

18

6) consultations ordered.

19

iii. Within 7 days of an individual's admission to

20

the State Hospital, the individual receives

21

an Integrated Psychiatric Assessment that

22

includes:

23

1) psychiatric history, including a review

24

of present and past history;

25

2) psychosocial history;

26

3) mental status examination;

27

4) strengths;

28

5) psychiatric risk factors;

22

• Case 2:06-cv-02667-GPS-E

Document 9

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Page 23 of 94

1

2

3

4

5

6

7

i. clinically justifiable diagnoses are provided

8

for each individual, and all diagnoses that

9

cannot be clinically justified for an

10

individual are discontinued no later than the

11

next review;

12

ii. the documented justification of the diagnoses

13

is in accord with the criteria contained in

14

the most current DSM (as per DSM-IV-TR

15

Checklist);

16

iii. differential diagnoses, "deferred," or

17

"rule-out" diagnoses, and diagnoses listed as

18

"NOS" ("Not Otherwise Specified") are timely

19

addressed (i.e., within 60 days), through

20

clinically appropriate assessments, and

21

resolved in a clinically justifiable manner;

22

and

23

iv. "no diagnosis" is clinically justified and

24

documented.

25

e. Each State Hospital shall ensure that psychiatric

26

reassessments are conducted at a frequency that

27

reflects the individual's clinical needs. At a

28

minimum the reassessments are completed weekly for

23

• Case 2:06-cv-02667-GPS-E

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1

the first 60 days on the admissions units and,

2

monthly on other units.

3

f. Each State Hospital shall ensure that psychiatric

4

reassessments are documented in progress notes that

5

address the following:

6

1. significant developments in the individual's

7

clinical status and appropriate psychiatric

8

follow up;

9

i1. timely and justifiable updates of diagnosis

10

and treatment, as clinically appropriate;

11

iii. analyses of risks and benefits of chosen

12

treatment interventions;

13

iv. assessment of, and attention to, high-risk

14

behaviors (e.g., assaults, self-harm, falls)

15

including appropriate and timely monitoring

16

of individuals and interventions to reduce

17

risks;

18

v. responses to and side effects of prescribed

19

medications, with particular attention to

20

risks associated with the use of

21

benzodiazepines, anticholinergic medications,

22

polypharmacy (use of multiple drugs to

23

address the same condition), and conventional

24

and atypical antipsychotic medications;

25

vi. timely review of the use of ·pro re nata" or

26

"as-needed" ("PRN") and "Stat" (i.e.,

27

emergency psychoactive) medications and

28

24

• Case 2:06-cv-02667-GPS-E

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• Filed 02/27/2007

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1

adjustment of regular treatment, as

2

indicated, based on such use; and

3

vii. verification, in a clinically justifiable

4

manner, that psychiatric and behavioral

5

treatments are properly integrated. The

6

psychiatrist shall review the positive

7

behavior support plan prior to implementation

8

to ensure consistency with psychiatric

9

formulation, document evidence of regular

10

exchange of data or information with

11

psychologists regarding differentiation of

12

learned behaviors and behaviors targeted for

13

psychopharmacological treatments, and

14

document evidence of integration of

15

treatments.

16

g. When individuals are transferred between treatment

17

teams, a psychiatric transfer note shall be

18

completed addressing: review of medical and

19

psychiatric course of hospitalization, including

20

medication trials; current target symptoms;

21

psychiatric risk assessment; current barriers to

22

discharge; 'and anticipated benefits of transfer.

23

2. Psychological Assessments

24

a. Each State Hospital shall develop and implement

25

standard psychological assessment protocols,

26

consistent with generally accepted professional

27

standards of care. These protocols shall address,

28

at a minimum, diagnostic neuropsychological

25

• Case 2:06-cv-02667-GPS-E

Document 9

• Filed 02/27/2007

Page 26 of 94

1

assessments, cognitive assessments, and

2

I.Q./achievement assessments, to guide

3

psychoeducational (e.g., instruction regarding the

4

illness or disorder, and the purpose or objectives

5

of treatments for the same, including medications),

6

educational, rehabilitation, and habilitation

7

interventions, and behavioral assessments

8

(including functional assessment of behavior in

9

schools and other settings), and personality

10

assessments, to inform positive behavior support

11

plans and psychiatric diagnoses.

12

b. Each State Hospital shall require the completion of

13

cognitive and academic assessments within 30 days

14

of admission of all school-age and other

15

individuals, as required by law, unless comparable

16

testing has been performed within one year of

17

admission and is available to the interdisciplinary

18

team.

19

c. Each State Hospital shall ensure that all

20

clinicians responsible for performing or reviewing

21

psychological assessments and evaluations are

22

verifiably competent in the methodology required to

23

conduct the assessment.

24

d. Each State Hospital shall ensure that all

25

psychological assessments, consistent with

26

generally accepted professional standards of care,

27

shall :

28

26

• Case 2:06-cv-02667-GPS-E

Document 9

Filed 02/27/2007 Page 27 of 94

1

i. expressly state the clinical question(s) for

2

the assessment;

3

ii. include findings specifically addressing the

4

clinical question(s), but not limited to

5

diagnoses and treatment recommendations;

6

iii. specify whether the individual would benefit

7

from individual therapy or group therapy in

8

addition to attendance at mall groups;

9

iv. be based on current, accurate, and complete

10

data;

11

v. determine whether behavioral supports or

12

interventions (e.g., behavior guidelines or

13

mini-behavior plans) are warranted or whether

14

a full positive behavior support plan is

15

required;

16

vi. include the implications of the findings for

17

interventions;

18

vii. identify any unresolved issues encompassed by

19

the assessment and, where appropriate,

20

specify further observations, records review,

21

interviews, or re-evaluations that should be

22

performed or considered to resolve such

23

issues; and

24

viii. Use assessment tools and techniques

25

appropriate for the individuals assessed and

26

in accordance with the American Psychological

27

Association Ethical Standards and Guidelines

28

for testing.

27

• Case 2:06-cv-02667-GPS-E

Document 9

Filed 02/27/2007 Page 28 of 94

1

e. Each State Hospital shall ensure that all

2

psychological assessments of all individuals

3

residing at the State Hospital who were admitted

4

there before the Effective Date hereof shall be

5

reviewed by qualified clinicians with demonstrated

6

current competency in psychological testing and, as

7

indicated, revised to meet the criteria in

8

§ D.2.a & d, above.

9

f. Each State Hospital shall ensure that all

10

appropriate psychological assessments shall be

11

provided in a timely manner whenever clinically

12

indicated, consistent with generally accepted

13

professional standards of care, including whenever

14

there has been a significant change in condition, a

15

lack of expected improvement resulting from

16

treatment, or an individual's behavior poses a

17

significant barrier to treatment, therapeutic

18

programming, safety to self or others, or school

19

programming, and, in particular:

20

1. before an individual's therapeutic and

21

rehabilitation service plan is developed, a

22

psychological assessment of the individual

23

shall be performed that will:

24

1 ) address the nature of the individual's

25

impairments to inform the psychiatric

26

diagnosis; and

27

2 ) provide an accurate evaluation of the

28

individual's psychological functioning

28

Case 2:06-cv-02667-GPS-E Document 9

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Page 29 of 94

1

to inform the therapeutic and

2

rehabilitation service planning process;

3

ii. if behavioral interventions are indicated, a

4

structural and functional assessment shall be

5

performed, consistent with generally accepted

6

professional standards of care, by a

7

Rrofessional having demonstrated competency

8

in positive behavior supports; and

9

iii. additional psychological assessments shall be

10

performed, as appropriate, where clinical

11

information is otherwise insufficient, and to

12

address unresolved clinical or diagnostic

13

questions, including differential diagnosis,

14

"rule-out," "deferred," "no-diagnosis" and

15

"NOS" diagnoses.

16

g. For individuals whose primary language is not

17

English, each State Hospital shall endeavor to

18

assess them in their own language; if this is not

19

possible, each State Hospital will develop and

20

implement a plan to meet the individual's

21

assessment needs, including, but not limited to the

22

use of interpreters in the individual's primary

23

language and dialect, if feasible.

24

3. Nursing Assessments

25

a. Each State Hospital shall develop standard nursing

26

assessment protocols, consistent with generally

27

accepted professional standards of care. These

28

protocols shall address, at a minimum:

29

Case 2:06-cv-02667-GPS-E Document 9

• Filed 02/27/2007

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1

i.

a description of presenting conditions;

2

ii. current prescribed medications;

3

iii. vital signs;

4

i v. allergies;

5

v. pain;

6

vi. use of assistive devices;

7

vii. activities of daily living;

8

viii. immediate alerts (e. g., escape risk, physical

9

assault, choking risk, suicidal risk,

10

homicide risk, fall risk, sexual assault,

11

self-injurious behavior, arson, or fire

12

setting); and

13

ix. conditions needing immediate nursing

14

interventions.

15

b. Nursing may use a systems model (e.g., Johnson

16

Behavioral System Model) for the nursing

17

evaluation.

18

c. Each State Hospital shall ensure that all nurses

19

responsible for performing or reviewing nursing

20

assessments are verifiably competent in performing

21

the assessments for which they are responsible.

22

All nurses who are employed at Metropolitan State

23

Hospital shall have graduated from an approved

24

nursing program, shall have passed the NCLEX-RN and

25

shall have a license to practice in the state of

26

California.

27

28

30

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 31 of 94

1

d. Each State Hospital shall ensure that nursing

o

2

assessments are undertaken on a timely basis, and

u

3

in particular, that:

4

1. initial nursing assessments are completed

5

within 24 hours of the individual's

6

admission;

7

ii. Further nursing assessments are completed and

8

integrated into the individual's therapeutic

9

and rehabilitation service plan within 7 days

10

of admission; and

11

iii. nursing assessments are reviewed every 14

12

days during the first 60 days of admission

13

and every 30 days thereafter and updated as

14

appropriate. The 3rd monthly review shall be

15

a quarterly review and the 12th monthly

16

review shall be the annual review.

17

4. Rehabilitation Therapy Assessments

18

a. Each State Hospital shall develop standard

19

rehabilitation therapy assessment protocols,

20

consistent with generally accepted professional

21

standards of care, for satisfying the necessary

22

components of a comprehensive rehabilitation

23

therapy assessment.

24

b. Each State Hospital shall ensure that each

25

individual served shall have a rehabilitation

26

assessment that, consistent with generally accepted

27

professional standards of care:

28

31

• Case 2:06-cv-02667-GPS-E

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1

i. is accurate and comprehensive as to the

2

individual's functional abilities;

3

ii. identifies the individual's current

4

functional status and the skills and supports

5

needed to facilitate transfer to the next

6

level of care; and

7

iii. identifies the individual's life goals,

8

strengths, and motivation for engaging in

9

wellness activities.

10

c. Each State Hospital shall ensure that all

11

clinicians responsible for performing or reviewing

12

rehabilitation therapy assessments are verifiably

13

competent in performing the assessments for which

14

they are responsible.

15

d. Each State Hospital shall ensure that all

16

rehabilitation therapy assessments of all

17

individuals who were admitted to the State Hospital

18

before the Effective Date hereof shall be reviewed

19

by qualified clinicians and, as indicated, revised

20

to meet the criteria in § D.4.b, above.

21

5. Nutrition Assessments

22

Each State Hospital shall provide nutrition

23

assessments, reassessments, and interventions consistent

24

with generally accepted professional standards of care. A

25

comprehensive nutrition assessment will include the

26

following:

27

a. For new admissions with high risk referral (e.g.,

28

type I diabetes mellitus, enteral/parenteral

32

Case 2:06-cv-02667-GPS-E Document 9

• Filed 02/27/2007

Page 33 of 94

1

feeding, dysphagia/recent choking episode), or upon

""",;..)
WJ

2

request by physician, a comprehensive Admission

3

Nutrition Assessment will be completed within 24

4

hours of notification to the dietitcian.

5

b. For new admissions directly into the

6

medica surgical unit, a comprehensive Admission

7

Nutrition Assessment will be completed within 3

8

days of admission.

9

c. For new admissions directly into the skilled

10

nursing facility unit, a comprehensive Admission

11

Nutrition Assessment will be completed within 7

12

days of admission.

13

d. For new admissions with identified nutritional

14

triggers from Nursing Admission Assessment or

15

physician's consult (e.g., for severe food

16

allergies, tube feeding, extensive dental problems

17

or dental surgery, NPO/clear 'liquid diet for more

18

than three days, uncontrolled diarrhea/vomiting

19

more than 24 hours, and MAOI, as clinically

20

indicated), a comprehensive Admission Nutrition

21

Assessment will be completed within 7 days of

22

admission.

23

e. For new admissions with therapeutic diet orders for

medical reasons, a comprehensive Admission

25

Nutrition Assessment will be completed within 7

26

days of admission.

27

f. For individuals with therapeutic diet orders for

28

medical reason after admission, a comprehensive

33

• Case 2:06-cv-02667-GPS-E

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1

Admission Nutrition Assessment will be completed

2

within 7 days of the therapeutic diet order but no

3

later than 30 days of admission.

4

g. For all other individuals, a comprehensive

5

Admission Nutrition Assessment will be completed

6

within 30 days of admission.

7

h. Acuity level of an individual at nutritional risk

8

will be determined by Nutritional Status Type

9

("NST") which defines minimum services provided by

10

a registered dietitian.

11

i. The frequency of a comprehensive Nutrition

12

Assessment Update will be determined by the NST.

13

Updates should include, but not be limited to:

14

subj ecti ve data, weight, body-mass index ("BMI"),

15

waist circumference, appropriate weight range, diet

16

order, changes in pertinent medication, changes in

17

pertinent medical/psychiatric problems, changes in

18

nutritional problem(s), progress toward

19

goals/objectives, effectiveness of interventions,

20

changes in goals/plan, recommendations, and

21

follow-up as needed.

22

j. Every individual will be assessed annually. In

23

addition, individuals will be reassessed when there

24

is a significant change in condition.

25

6. Social History Assessments

26

Each State Hospital shall ensure that each individual

27

has a iocial history evaluation that, consistent with

28

generally accepted professional standards of care:

34

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1

a. Is, to the extent reasonably possible, accurate,

2

current and comprehensive;

3

b. Expressly identifies factual inconsistencies among

4

sources, resolves or attempts to resolve

5

inconsistencies, and explains the rationale for the

6

resolution offered;

7

c. Is included in the 7-day integrated assessment and

8

fully documented by the 30th day of an individual's

9

admission; and

10

d. Reliably informs the individual's interdisciplinary

11

team about the individual's relevant social factors

12

and educational status.

13

7. Court Assessments

14

a. Each State Hospital shall develop and implement

15

policies and procedures to ensure an

16

interdisciplinary approach to the development of

17

court submissions for individuals adjudicated "not

18

guilty by reason of insanity" ("NGI") pursuant to

19

Penal Code Section 1026, based on accurate

20

information and individualized risk assessments.

21

The forensic reports should include the following,

22

as clinically indicated:

23

1. clinical progress and achievement of

24

stabilization of signs and symptoms of mental

25

illness that were the cause, or contributing

26

factor in the commission of the crime (i.e.,

27

instant offense);

28

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1

ii. acts of both verbal and physical aggression

2

and property destruction during the past year

3

of hospitalization and, if relevant, past

4

acts of aggression and dangerous criminal

5

behavior;

6

iii. understanding of potential for danger and

7

precursors of dangerous/criminal behavior,

8

including instant offense;

9

iv. acceptance of mental illness and

10

understanding of the need for treatment, both

11

psychosocial and biological, and the need to

12

adhere to treatment;

13

v. development of relapse prevention plan (i.e.,

14

Personal Wellness Recovery Plan or Wellness

15

Recovery Action Plan) for mental illness

16

symptoms, including the individual's

17

recognition of precursors and warning signs

18

and symptoms and precursors for dangerous

19

acts;

20

vi. willingness to achieve understanding of

21

substance abuse issues and to develop an

22

effective relapse prevention plan (as defined

23

above) ;

24

vii. previous community releases, if the

25

individual has had previous CONREP

26

revocations;

27

viii. social support, financial resources, family

28

conflicts, cultural marginalization, and

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1

history of sexual and emotional abuse, if

I::;.)

2

applicable; and

Z":.1

3

ix. relevant medical issues, all self-harm

.:;rr:;:
U

(/1

4

behaviors, risks for self harm and risk of

5

harm to others, to inform the courts and the

6

facility where the individual will be housed

7

after discharge.

8

b. Each State Hospital shall develop and implement

9

policies and procedures to ensure an

10

interdisciplinary approach to the development of

11

court submissions for individuals admitted to the

12

hospital pursuant to Penal Code Section 1370,

13

"incompetent to stand trial" ("1ST"), based on

14

accurate information and individualized risk

15

assessments. Consistent with the right of an

16

individual accused of a crime to a speedy trial,

17

the focus of the 1ST hospitalization shall be the

18

stabilization of the symptoms of mental illness so

19

as to enable the individual to understand the legal

20

proceedings and to assist his or her attorney in

21

the preparation of the defense. The forensic

22

reports should include the following:

23

1. relevant clinical description of initial

24

presentation, if available, which caused the

25

individual to be deemed incompetent to stand

26

trial by the court;

27

ii. clinical description of the individual at the

28

time of admission to the hospital;

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iii. course of hospital stay, describing any

2

progress or lack of progress, response to

3

treatment, current relevant mental status,

4

and reasoning to support the recommendation;

5

and

6

iv. all self-harm behaviors and relevant medical

7

issues, to inform the courts and the facility

8

where the individual will be housed after

9

discharge.

10

c. Each State Hospital shall establish a Forensic

11

Review Panel ("FRP") to serve as the internal body

12

that reviews and provides oversight of facility

13

practices and procedures regarding the forensic

14

status of all individuals admitted pursuant to

15

Penal Code 1026 and 1370 .. The FRP shall review and

16

approve all forensic court submissions by the

17

Wellness and Recovery teams and ensure that

18

individuals receive timely and adequate assessments

19

by the teams to evaluate changes in their

20

psychiatric condition, behavior and/or risk factors

21

that may warrant modifications in their forensic

22

status and/or level of restriction. The membership

23

of the FRP shall include the Director of Forensic

24

Psychiatry, Facility Director or designee, Medical

25

Director or designee, Chief of Psychology or

26

designee, Chief of Social Services or designee,

27

Chief of Nursing Services or designee, and Chief of

28

Rehabilitation Services or designee. The Director

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1

of Forensic Psychiatry shall serve as the chair and

2

shall be a board certified forensic psychiatrist.

3

A quorum shall consist of a minimum of four FRP

4

members or their designees.

5 E. Discharge Planning and Community Integration

6

Taking into account the limitations of court-imposed

7 confinement, the State shall pursue actively the appropriate

8 discharge of individuals under the State's care at each State

9 Hospital and, subject to legal limitations on the State's control

10 of the placement process, provide services in the most

11 integrated, appropriate setting in which they reasonably can be

12 accommodated, as clinically appropriate, that is consistent with

13 each individual's needs.

14

1. Each State Hospital shall identify at the 7-day

15

therapeutic and rehabilitation service planning

16

conference, and address at all subsequent planning

17

conferences, the particular considerations for each

18

individual bearing on discharge, including:

19

a. those factors that likely would foster successful

20

discharge, including the individual's strengths,

21

preferences, and personal life goals;

22

b. the individual's level of psychosocial functioning;

23

c. any barriers preventing the individual from

24

transitioning to a more integrated environment,

25

especially difficulties raised in previously

26

unsuccessful placements; and

27

d. the skills and supports necessary to live in the

28

setting in which the individual will be placed.

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2. Each State Hospital shall ensure that, beginning at the

2

time of admission and continuously throughout the

3

individual's stay, the individual is an active

4

participant in the discharge planning process, to the

5

fullest extent possible, given the individual's level

6

of functioning and legal status.

7

3. Each State Hospital shall ensure that, consistent with

8

generally accepted professional standards of care, each

9

individual has a professionally developed discharge

10

plan that is integrated within the individual's

11

therapeutic and rehabilitation service plan, that

12

addresses his or her particular discharge

13

considerations, and that includes:

14

a. Measurable interventions regarding these discharge

15

considerations;

16

b. The staff responsible for implementing the

17

interventions; and

18

c. The time frames for completion of the

19

interventions.

20

4. Each State Hospital shall provide transition supports

21

and services consistent with generally accepted

22

professional standards of care. In particular, each

23

State Hospital shall ensure that:

24

a. Individuals who have met discharge criteria are

25

discharged expeditiously, subject to the

26

availability of suitable placements; and

27

b. Individuals receive adequate assistance in

28

transitioning to the new setting.

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1 2 3
4
5 6 7 8 9 10
11
12 13 14 15 F. 16
17
18 19 20 21 22 23 24 25 26 27 28

5. For all children and adolescents it serves, each State ,'".. ,.~

Hospital shall: a. Develop and implement policies and protocols that

U......'
::(.~t~..
':":'"
t,j

(,n

identify individuals with lengths of stay exceeding

six months; and

b. Establish a regular review forum, which includes

senior administration staff, to assess the children

and adolescents identified in § E.5.a, above, to

review their treatment plans, and to create an

individualized action plan for each such child or

adolescent that addresses the obstacles to

successful discharge to the most integrated,

appropriate placement as clinically and legally

indicated.

Specific Therapeutic and Rehabilitation Services

1. Psychiatric Services

a. Each State Hospital shall develop and implement

policies and procedures to ensure system-wide

monitoring of the safety, efficacy, and

appropriateness of all psychotropic medication use,

consistent with generally accepted professional

standards of care. In particular, policies and

procedures shall require monitoring of the use of

psychotropic medications to ensure that they are:

i. specifically matched to current, clinically

justified diagnoses or clinical symptoms;

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1

ii. prescribed in therapeutic amounts, as

2

dictated by the needs of the individual

3

served;

4

iii. tailored to each individual's symptoms;

5

iv. monitored for effectiveness against clearly

6

identified target variables and time frames;

7

v. monitored appropriately for side effects;

8

vi. modified based on clinical rationales;

9

vii. not inhibiting individuals from meaningfully

10

participating in treatment, rehabilitation,

11

or enrichment and educational services as a

12

result of excessive sedation; and

13

viii. properly documented.

14

b. Each State Hospital shall monitor the use of PRN

15

and Stat medications to ensure that these

16

medications are administered in a manner that is

17

clinically justified and are not used as a

18

substitute for appropriate long-term treatment of

19

the individual's condition.

20

c. Each State Hospital shall monitor the psychiatric

21

use of benzodiazepines, anticholinergics, and

22

polypharmacy to ensure clinical justification and

23

attention to associated risks.

24

d. Each State Hospital shall ensure the monitoring of

25

the metabolic and endocrine risks associated with'

26

the use of new generation antipsychotic

27

medications.

28

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1

e. Each State Hospital shall ensure regular

",'.-..")

2

monitoring, using a validated rating instrument

1..:J

3

(such as AIMS or DISCUS), of tardive dyskinesia

4

("TD"); a baseline assessment shall be performed

5

for each individual at admission with subsequent

6

monitoring of the individual every 12 months while

7

he/she is receiving antipsychotic medication, and

8

every 3 months if the test is positive, TD is

9

present, or the individual has a history of TD.

10

f. Each State Hospital shall ensure timely

11

identification, reporting, data analyses, and

12

follow up remedial action regarding all adverse

13

drug reactions ("ADR").

14

g. Each State Hospital shall ensure drug utilization

15

evaluation ("DUE") occurs in accord with

16

established, up-to-date medication guidelines that

17

shall specify indications, contraindications, and

18

screening and monitoring requirements for all

19

psychotropic medications; the guidelines shall be

20

in accord with current professional literature. A

21

verifiably competent psychopharmacology consultant

22

shall approve the guidelines and ensure adherence

23

to the guidelines.

24

h. Each State Hospital shall ensure documentation,

25

reporting, data analyses, and follow up remedial

26

action regarding actual and potential medication

27

variances ("MVR") consistent with generally

28

accepted professional standards of care.

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i. Each State Hospital shall ensure tracking of

2

individual and group practitioner trends, including

3

data derived from monitoring of the use of PRNs,

4

Stat medications, benzodiazepines,

5

anticholinergics, and polypharmacy, and of ADRs,

6

DUE, and MVR consistent with generally accepted

7

professional standards of care.

8

j. Each State Hospital shall ensure feedback to the

9

practitioner and educational/corrective actions in

10

response to identified trends consistent with

11

generally accepted professional standards of care.

12

k. Each State Hospital shall ensure integration of

13

information derived from ADRs, DUE, MVR, and the

14

Pharmacy & Therapeutics, Therapeutics Review, and

15

Mortality and Morbidity Committees consistent with

16

generally accepted professional standards of care.

17

1. Each State Hospital shall ensure that all

18

physicians and clinicians are verifiably competent,

19

consistent with generally accepted professional

20

standards of care, in appropriate medication

21

management, interdisciplinary team functioning, and

22

the integration of behavioral and pharmacological

23

treatments.

24

m. Each State Hospital shall review and ensure the

25

appropriateness and safety of the medication

26

treatment, consistent with generally accepted

27

professional standards of care, for:

28

44 •

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1

i. all individuals prescribed continuous

2

anticholinergic treatment for more than two

3

months;

4

ii. all elderly individuals and individuals with

5

cognitive disorders who are prescribed

6

continuous anticholinergic treatment

7

regardless of duration of treatment;

8

iii. all individuals prescribed benzodiazepines as

9

a scheduled modality for more than two

10

months;

11

iv. all individuals prescribed benzodiazepines

12

with diagnoses of substance abuse or

13

cognitive impairments, regardless of duration

14

of treatment;

15

v. all individuals with a diagnosis or

16

evidencing symptoms of tardive dyskinesia;

17

and

18

vi. all individuals diagnosed with dyslipidemia,

19

and/or obesity, and/or diabetes mellitus who

20

are prescribed new generation antipsychotic

21

medications.

22

n. Each State Hospital shall ensure that the

23

medication management of individuals with substance

24

abuse disorders is provided consistent with

25

generally accepted professional standards of care.

26

o. Metropolitan State Hospital shall provide a minimum

27

of 16 hours per year of psychopharmacology

28

instruction, through conferences, seminars,

45

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1

lectures and/or videotapes. Such instruction may

2

be provided either on-site or through attendance at

3

conferences elsewhere.

4

2. Psychological Services

5

Each State Hospital shall provide adequate ~nd

6

appropriate psychological supports and services that are

7

derived from evidence-based practice or practice-based

8

evidence and are consistent with generally accepted

9

professional standards of care, to individuals who require

10

such services; and:

11

a. Each State Hospital shall ensure that it has

12

positive behavior support teams (with 1 team for

13

each 300 individuals, consisting of 1 clinical

14

psychologist, 1 registered nurse, 2 psychiatric

15

technicians (1 of whom may be a behavior

16

specialist), and 1 data analyst (who may be a

17

behavior specialist) that have a demonstrated

18

competence, consistent with generally accepted

19

professional standards of care, in the following

20

areas;

21

i. the development and use of positive behavior

22

support plans, including methods of

23

monitoring program interventions and the

24

effectiveness of the interventions, providing

25

staff training regarding program

26

implementation, and, as appropriate, revising

27

or terminating the program; and

28

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1

ii. the development and implementation of a,

2

facility-wide behavioral incentive system,

3

referred to as "BY CHOICE," that encompasses

4

self-determination and choice by the

5

individuals served.

6

b. Each State Hospital shall ensure that the Chief of

7

Psychology has the clinical and administrative

I

8

responsibility for the Positive Behavior Support

9

Team and the BY CHOICE incentive program.

10

c. Each State Hospital shall ensure that:

11

i. behavioral assessments include structural and

12

functional assessments, and, as necessary,

13

functional analysis;

14

ii. hypotheses on the maladapative behavior are

15

based on structural and functional

16

assessments;

17

iii. there is documentation of previous behavioral

18

interventions and their effects;

19

iv. behavioral interventions, which shall include

20

positive behavior support plans, are based on

21

a positive behavior supports model and do not

22

include the use of aversive or punishment

23

contingencies;

24

v. behavioral interventions are consistently

25

implemented across all settings, including

26

school settings;

27

vi. triggers for instituting individualized

28

behavioral interventions are specified and

47

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1

utilized, and that these triggers include

2

exce5sive use of seclusion, restraint, or

3

psychiatric PRN and Stat medication for

4

behavior control;

5

vii. positive behavior support teams and team

6

psychologists integrate their therapies with

7

other treatment modalities, including drug

8

therapy;

9

viii. all positive behavior support plans are

10

specified in the objectives and interventions

11

sections of the individual's WRP;

12

ix. all positive behavior support plans are

13

updated as indicated by outcome data and

14

reported at least quarterly in the present

15

status 5ection of the case formulation in the

16

individual's WRP;

17

x. all staff has received competency-based

18

training on implementing the specific

19

behavioral interventions for which they are

20

responsible, and performance improvement

21

measures are in place for monitoring the

22

implementation of such interventions;

23

xi. all positive behavior support team members

24

shall have as their primary responsibility

25

the provision of behavioral interventions;

26

and

27

xii. the BY CHOICE point allocation is updated

28

monthly in the individual's WRP.

48

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1

,-.

~ , .

t •J>'

2

d. Each State Hospital shall ensure that it has at

3

least one developmental and cognitive abilities

4

team (consisting of 1 clinical psychologist, 1

5

registered nurse, 1 social worker, 1 psychiatric

6

technician, and 1 data analyst (who may be a

7

behavior specialist)) who have a demonstrated

8

competence, consistent with generally accepted

9

professional standards of care, in: assessing

10

individuals with cognitive challenges/disorders;

11

developing therapeutic interventions (including

12

positive behavior supports); advising therapy and

13

rehabilitation providers on the implementation of

14

interventions at the cognitive level of the

15

individuals; and managing discharge processes for

16

individuals with developmental disabilities and

17

cognitive challenges/disorders. This team shall

18

assume some of the functions of the positive

19

behavior support teams if the individuals they

20

serve also need positive behavior supports.

21

e. Each State Hospital shall develop and implement a

22

Behavioral Consultation Committee, chaired by the

23

Chief of Psychology, and co-chaired by the Chief of

24

Psychiatry, to review the WRP and maladaptive

25

behavior(s) of individuals who have not made timely

26

progress on positive behavior support plans. The

27

Chief of Psychology is responsible for the

28

functions of this committee, together with members

49

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1

of the positive behavior support team (in functions

2

of the committee that relate to individuals under

3

the care of those team members). The committee

4

membership shall include all clinical discipline

5

heads I 'including the medical director, as well as

6

the clinical administrator of the facility.

7

f. Each State Hospital shall ensure that it has

8

sufficient neuropsychological services for the

9

provision of adequate neuropsychological assessment

10

of individuals with persistent mental illness.

11

g. All clinical psychologists with privileges at any

12

State Hospital shall have the authority to write

13

orders for the implementation of positive behavior

14

support plans, consultation for educational or

15

other testing, and behavior plan updates.

16

3. Nursing Services

17

Each State Hospital shall provide adequate and

18

appropriate nursing care and services consistent with

19

generally accepted professional standards of care to

20

individuals who require such services.

21

a. Each State Hospital shall develop and implement

22

policies and protocols regarding the administration

23

of medication, including pro re nata ("PRN") and

24

"Stat" medication (i.e., emergency use of

25

psychoactive medication), consistent with generally

26

accepted professional standards of care, to ensure:

27

1. safe administration of PRN medications and

28

Stat medications;

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1

ii. documentation of the circumstances requiring

2

PRN and Stat administration of medications;

3

and

4

iii. documentation of the individual's response to

5

PRN and Stat medication.

6

b. Each State Hospital shall ensure that all failures

7

to properly sign the Medication and Treatment

8

Record ("MTR"J or the controlled medication log are

9

treated as medication variances, and that

10

appropriate follow-up occurs to prevent recurrence

11

of such variances.

12

c. Each State Hospital shall ensure that all nursing

13

interventions are fully integrated into the

14

therapeutic and rehabilitation service plan and

15

that nursing interventions are written in a manner

16

aligned with the rest of the interventions in the

17

therapeutic and rehabilitation service plan, in

18

particular, in observable, behavioral, and/or

19

measurable terms. No nursing care plans other than

20

the nursing interventions integrated in the

21

therapeutic and rehabilitation service plan are

22

required. No nursing diagnoses other than as

23

specified in the therapeutic and rehabilitation

24

service plan, in terms of the current DSM criteria,

25

are required.

26

d. All nursing staff working with an individual shall

27

be familiar with the goals, objectives, and

28

interventions for that individual.

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1

e. Each State Hospital shall ensure that nursing staff

2

timely monitor, document and report the status of

3

symptoms, target variables, health, and mental

4

health status of individuals in a manner that

5

enables interdisciplinary teams to assess each

6

individual's status and respond to interventions,

7

and to modify, as appropriate, individuals'

8

therapeutic and rehabilitation service plans. Each

9

State Hospital shall ensure that all nursing shift

10

changes include a review of changes in status of

11

individuals on the unit.

12

f. Each State Hospital shall develop and implement a

13

system to monitor nursing staff while administering

14

medication to ensure that:

15

nursing staff are knowledgeable regarding

16

each individual's prescribed medications;

17

ii. education is provided to individuals during

18

medication administration;

19

iii. nursing staff are following the appropriate

20

medication administration protocol; and

21

iv. medication administration is documented in

22

accordance with the appropriate medication

23

administration protocol.

24

g. Each State Hospital shall ensure that individuals

25

remain in a "bed-bound" status only for clinically

26

justified reasons.

27

h. Each State Hospital shall ensure that, before they

28

work directly with individuals, all nursing and

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1

psychiatric technicians have successfully completed

2

competency-based training regarding:

3

i. mental health diagnoses, related symptoms,

4

psychotropic medications and their side

5

effects, monitoring of symptoms and target

6

variables, and documenting and reporting of

7

the individual's status;

8

ii. the provision of a therapeutic milieu on the

9

units and proactive, positive interventions

10

to prevent and de-escalate crises; and

11

iii. positive behavior support principles.

12

i. Each State Hospital shall ensure that, prior to

13

assuming their duties and on a regular basis

14

thereafter, all staff responsible for the

15

administration of medication have successfully

16

completed competency-based training on the

17

completion of the MTR and the controlled medication

18

log.

19

4. Rehabilitation Therapy Services

20

Each State Hospital shall provide adequate,

21

appropriate, and timely rehabilitation therapy services to

22

each individual in need of such services, consistent with

23

generally accepted professional standards of care.

24

a. Each State Hospital shall develop and implement

25

policies and procedures, consistent with generally

26

accepted professional standards of care, related to

27

the provision of rehabilitation therapy services

28

that address, at a minimum:

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1

2

the provision of direct services by

3

rehabilitation therapy services staff; and

4

ii. the oversight by rehabilitation therapists of

5

individualized physical therapy programs

6

implemented by nursing staff.

7

b. Each State Hospital shall provide competency-based

8

training to nursing staff, as appropriate, on the

9

use and care of adaptive equipment, transferring,

10

and positioning, as well as the need to promote

11

individuals' independence.

12

c. Each State Hospital shall ensure that individuals

13

are provided with timely and adequate

14

rehabilitation therapy services.

15

d. Each State Hospital, consistent with generally

16

accepted professional standards of care, shall

17

ensure that each individual who requires adaptive

18

equipment is provided with equipment that meets

19

his/her assessed needs and promotes his/her

20

independence, and shall provide individuals with

21

training and support to use such equipment.

22

5. Nutrition Services

23

Each State Hospital shall provide the individuals it

24

serves, particularly those experiencing weight-related

25

problems, adequate and appropriate dietary services

26

consistent with generally accepted professional standards of

27

care.

28

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1

a. Each State Hospital shall modify policie's and

2

procedures to require that the therapeutic and

3

rehabilitation ser~ice plans of individuals who

4

experience weight problems and/or related health

5

concerns include adequate strategies and

6

methodologies to address the identified problems

7

and that such strategies and methodologies are

8

implemented in a timely manner, monitored

9

appropriately, and revised, as warranted,

10

consistent with generally accepted professional

11

standards of care.

12

b. Each State Hospital shall ensure that one or more

13

treatment team members demonstrate competence in

14

the dietary and nutritional issues affecting the

15

individuals they serve and the development and

16

implementation of strategies and methodologies to

17

address such issues.

18

c. Each State Hospital shall develop and implement

19

policies and procedures to address the needs of

20

individuals who are at risk for aspiration or

21

dysphagia, including but not limited to, the

22

development and implementation of assessments and

23

interventions for mealtimes and other activities

24

involving swallowing.

25

d. Each State Hospital shall ensure that staff with

26

responsibilities for assessments and interventions

27

regarding aspiration and dysphagia have

28

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successfully completed competency-based training

2

Commensurate with their responsibilities.

3

e. Each State Hospital shall develop and implement

4

policies and procedures requiring treatment of the

5

underlying causes for tube feeding placement, and

6

ongoing assessment of the individuals for whom

7

these treatment options are utilized, to determine

8

the feasibility of returning them to oral intake

9

status.

10

6. Pharmacy Services

11

Each State Hospital shall provide adequate and

12

appropriate pharmacy services consistent with generally

13

accepted professional standards of care. Each State

14

Hospital shall develop and implement policies and procedures

15

that require:

16

a. Upon the prescripti'on of a new medication,

17

pharmacists to conduct reviews of each individual's

18

medication regimen and, as appropriate, make

19

recommendations to the prescribing physician about

20

possible drug-to-drug interactions, side effects,

21

and needs for laboratory work and testing; and

22

b. Physicians to consider pharmacists'

23

recommendations, and for any recommendations not

24

followed, document in the individual's medical

25

record an adequate clinical justification.

26

'7. General Medical Services

27

a. Each State Hospital shall provide adequate,

28

appropriate, and timely preventive, routine,

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specialized, and emergency medical care to all

2

individuals in need of such services, consistent

3

with generally accepted professional standards of

4

care. Each State Hospital shall ensure that

5

individuals with medical problems are promptly

6

identified, assessed, diagnosed, treated, monitored

7

and, as monitoring indicates is necessary,

8

reassessed, diagnosed, and treated, consistent with

9

generally accepted professional standards of care.

10

b. Each State Hospital shall develop and implement

11

protocols and procedures, consistent with generally

12

accepted professional standards of care, that:

13

i.

require the timely provision of initial and

14

ongoing assessments relating to medical care,

15

including but not limited to, vision care,

16

dental care, and laboratory and consultation

17

services;

18

ii. require the timely provision of medical care,

19

including but not limited to, vision care,

20

dental care, and laboratory and consultation

21

services; timely and appropriate

22

communication between nursing staff and

23

physicians regarding changes in an

24

individual's physical status; and the

25

integration of each individual's mental

26

health and medical care;

27

iii. define the duties and responsibilities of

28

primary care (non-psychiatric) physicians;

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iv. ensure a system of after-hours coverage by

2

primary care physicians with formal

.:::'

3

psychiatric training (i.e., privileging and

4

proctorship) and psychiatric backup support

5

after hours; and

6

v. endeavor to obtain, on a consistent and

7

timely basis, an individual's medical records

8

after the individual is treated in another

9

medical facility.

10

c. Each State Hospital shall ensure that physicians

11

monitor each individual's health status indicators

12

in accordance with generally accepted professional

13

standards of care, and, whenever appropriate,

14

modify their therapeutic and rehabilitation service

15

plans to address any problematic changes in health

16

status indicators.

17

d. Each State Hospital shall monitor, on a continuous

18

basis, outcome indicators to identify trends and

19

patterns in individuals' health status, assess the

20

performance of medical systems, and provide

21

corrective follow-up measures to improve outcomes.

22

8. Infection Control

23

Each State Hospital shall develop and implement

24

infection control policies and procedures to prevent the

25

spread of infections or communicable diseases, consistent

26

with generally accepted professional standards of care.

27

a. Each State Hospital shall ~stablish an effective

28

infection control program that:

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i.

actively collects data regarding infections

2

and communicable diseases;

3

i1. assesses these data for trends;

4

iii. initiates inquiries regarding problematic

5

trends;

6

iv. identifies necessary corrective action;

7

v. monitors to ensure that appropriate remedies

8

are achieved; and

9

vi. integrates this information into the State

10

Hospital's quality assurance review.

11

9. Dental Services

12

Each State Hospital shall provide individuals with

13

adequate, appropriate and timely routine and emergency

14

dental care and treatment, consistent with generally

15

accepted professional standards of care.

16

a. Each State Hospital shall retain or contract with

17

an adequate number of qualified dentists to provide

18

timely and appropriate dental care and treatment to

19

all individuals it serves;

20

b. Each State Hospital shall develop and implement

21

policies and procedures that require:

22

1. comprehensive and timely provision of dental

23

services;

24

i1. documentation of dental services, including

25

but not limited to, findings, descriptions of

26

any treatment provided, and the plans of

27

care;

28

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iii. use of preventive and restorative care

2

whenever possible; and

3

iv. tooth extractions be used as a treatment of

4

last resort, which, when performed, shall be

5

justified in a manner subject to clinical

6

review.

7

c. Each State Hospital shall ensure that dentists

8

demonstrate, in a documented fashion, an accurate

9

understanding of individuals' physical health,

10

medications, allergies, and current dental status

11

and complaints.

12

d. Each State Hospital shall ensure that

13

transportation and staffing issues do not preclude

14

individuals from attending dental appointments, and

15

individuals' refusals are addressed to facilitate

16

compliance.

17

e. Each State Hospital shall ensure that

18

interdisciplinary teams review, assess, and develop

19

strategies to overcome individuals' refusals to

20

participate in dental appointments.

21

10. Special Education

22

Each State Hospital shall provide the school-age and

23

other residents, as required by law, who qualify for special

24

education ("students"), individualized educational programs

25

that are reasonably calculated to enable these students to

26

receive educational benefits, as defined by applicable law.

27

a. Each State Hospital shall develop and implement

28

uniform systems for assessing students' individual

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educational needs and monitoring their individual

2

progress.

3

b. Each State Hospital shall ensure that all

4

Individual Education Plans ("IEPs") are developed

5

and implemented consistent with the Individuals

6

with Disabilities Education Act, 20 U.S.C. § 1400

7

et seq. (2002) ("IDEA").

8

c. Each State Hospital shall ensure that teachers

9

providing instruction to students at the State

10

Hospital have completed competency-based training

11

regarding teaching and academic instruction,

12

behavioral interventions, monitoring of academic

13

and behavioral progress, and incident management

14

and reporting.

15

d. Each State Hospital shall ensure that students

16

receive instruction and behavioral supports

17

appropriate to their learning abilities and needs,

18

consistent with generally accepted professional

19

standards of care.

20

e. Each State Hospital shall provide appropriate

21

literacy instruction, consistent with generally

22

accepted professional standards of care, for

23

students who show deficits in one or more common

24

areas of reading (e.g., decoding or comprehending).

25

f. Each State Hospital shall, on admission and as

26

statutorily required thereafter, assess each

27

student's capacity to participate, with appropriate

28

supports and services, in an integrated, non-

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institutional, education environment, and provide

2

access to an integrated education environment for

3

those students who can participate in one with

4

appropriate supports and services. Each State

5

Hospital shall ensure that all students receive

6

their education in the least restrictive setting

7

pursuant to the requirements of the IDEA,

8

consistent with their legal and clinical status.

9 G. Documentation

10

Each State Hospital shall ensure that an individual's

11 records accurately reflect the individual's response to all

12 treatment, rehabilitation and enrichment activities identified in

13 the individual's therapeutic and rehabilitation service plan,

14 including for children and adolescents, their education plan,

15 consistent with generally accepted professional standards of

16 care. Each State Hospital shall develop and implement policies

17 and procedures setting forth clear standardS regarding the

18 content and timeliness of progress notes, transfer notes, school

19 progress notes, and discharge notes, including, but not limited

20 to, an expectation that such records include meaningful,

21 accurate, and coherent assessments of the individual's progress

22 relating to treatment plans and treatment goals, and that

23 clinically relevant information remains readily accessible.

24 H. Restraints, Seclusion, and PRN and Stat Medications

25

Each State Hospital shall ensure that restraints, seClusion,

26 psychiatric PRN medications, and Stat medications are used

27 consistent with generally accepted professional standards of

28 care.

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Each State Hospit~l shall revise, as appropriate, and

2

implement policies and procedures regarding the use of

3

seclusion, restraints, psychiatric PRN medications, and

4

Stat medications consistent with generally accepted

5

professional standards of care. In particular, the

6

policies and procedures shall expressly prohibit the

7

use of prone restraints, prone containment and prone

8

transportation and shall list the types of restraints

9

that are acceptable for use.

10

2. Each State Hospital shall ensure that restraints and

11

seclusion:

12

a. Are used in a documented manner and only when

13

individuals pose an imminent danger to self or

14

others and after a hierarchy of less restrictive

15

measures has been considered in a clinically

16

justifiable manner or exhausted;

17

b. Are not used in the absence of, or as an

18

alternative to, active treatment, as punishment, or

19

for the convenience of staff;

20

c. Are not used as part of a behavioral intervention;

21

and

22

d. Are terminated as soon as the individual is no

23

longer an imminent danger to self or others.

24

3. Each State Hospital shall comply with 42 C.F.R.

25

§ 483.360(f), requiring assessments by a physician or

26

licensed clinical professional of any individual placed

27

in seclusion or restraints within 1 hour. Each State

28

Hospital shall also ensure that any individual placed

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in seclusion or restraints is continuously monitored by

2

a staff person who has successfully completed

3

competency-based training on the administration of

4

seclusion and restraints.

5

4. Each State Hospital shall ensure the accuracy of data

6

regarding the use of restraints, seclusion, psychiatric

7

PRN medications, or Stat medications.

8

5. Each State Hospital shall revise, as appropriate, and

9

implement policies and procedures to require the review

10

within 3 business days of individuals' therapeutic and

11

rehabilitation service plans for any individuals placed

12

in seclusion or restraints more than 3 times in any

13

4-week period, and modification of therapeutic and

14

rehabilitation service plans, as appropriate.

15

6. Each State Hospital shall develop and implement

16

policies and procedures consistent with generally

17

accepted professional standards of care governing the

18

use of psychiatric PRN medication and Stat medication,

19

requiring that:

20

a. Such medications are used in a manner that is

21

clinically justified and are not used as a

22

substitute for adequate treatment of the underlying

23

cause of the individual's distress; and

24

b. PRN medications, other than for analgesia, are

25

prescribed for specified and individualized

26

behaviors;

27

c. PRN medications are appropriately time-limited;

28

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d. Nursing staff assess the individual within 1 hour

a

2

of the administration of the psychiatric PRN

L...,,..,_"".-V...

3

medication and Stat medication and documents the

4

individual's response; and A psychiatrist conducts

5

a face-to-face assessment of the individual within

6

24 hours of the administration of a Stat

7

medication. The assessment shall address the

8

reason for the Stat administration, the

9

individual's response, and, as appropriate,

10

appropriateness of adjustment to current treatment

11

and/or diagnosis.

12

7. Each State Hospital shall ensure that all staff whose

13

responsibilities include the implementation or

14

assessment of seclusion, restraints, psychiatric PRN

15

medications, or Stat medications successfully complete

16

competency-based training regarding implementation of

17

all such policies and the use of less restrictive

18

interventions.

19

8. Each State Hospital shall:

20

a. Develop and implement a plan to reduce the use of

21

side rails as restraints in a systematic and

22

gradual way to ensure individuals' safety; and

23

b. Ensure that, as to individuals who need side rails,

24

their therapeutic and rehabilitation service plans

25

expressly address the use of side rails, including

26

identification of the medical symptoms that warrant

27

the use of side rails, methods to address the

28

underlying causes of such medical symptoms, and

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strategies to reduce the use of side rails, if

2

appropriate.

3 1. Protection From Harm

4

Each State Hospital shall provide the individuals it serves

5 with a safe and humane environment and ensure that these

6 individuals are protected from harm.

7

1. Incident Management

8

Each State Hospital shall develop and implement across

9

all settings, including school settings, an integrated

10

incident management system that is consistent with generally

11

accepted professional standards of care.

12

a. Each State Hospital shall review, revise, as

13

appropriate, and implement incident management

14

policies, procedures and practices that are

15

consistent with generally accepted professional

16

standards of care. Such policies, procedures and

17

practices shall require:

18

1. that the State Hospital not tolerate abuse or

19

neglect of individuals and that staff are

20

required to report abuse or neglect of

21

individuals;

22

i1. identification of the categories and

23

definitions of incidents to be reported and

24

investigated; immediate reporting by staff to

25

supervisory personnel and the State

26

Hospital's executive director (or that

27

official's designee) of serious incidents,

28

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including but not limited to, death, abuse,

2

neglect, and serious injury, using

3

standardized reporting across all settings,

4

including school settings;

5

iii. mechanisms to ensure that when serious

6

incidents such as allegations of abuse,

7

neglect, and/or serious injury occur, staff

8

take immediate and appropriate action to

9

protect the individuals involved, including

10

removing alleged perpetrators from direct

11

contact with the involved individuals pending

12

the outcome of the facility's investigation;

13

iv. adequate competency-based training for all

14

staff on recognizing and reporting potential

15

signs and symptoms of abuse or neglect,

16

including the precursors that may lead 'to

17

abuse;

18

v. notification of all staff when commencing

19

employment and adequate training thereafter

20

of their obligation to report abuse or

21

neglect to the State Hospital and state

22

officials. All staff persons who are

23

mandatory reporters of abuse or neglect shall

24

sign a statement that shall be kept with

25

their personnel records evidencing their

26

recognition of their reporting obligations.

27

Each State Hospital shall not tolerate any

28

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mandatory reporter's failure to report abuse

2

or neglect;

3

vi. mechanisms to inform individuals and their

4

conservators how to identify and report

5

suspected abuse or neglect;

6

vii. posting in each living unit and day program

7

site a brief and easily understood statement

8

of individuals' rights, including information

9

about how to pursue such rights and how to

10

report violations of such rights;

11

viii. procedures for referring, as appropriate,

12

allegations of abuse or neglect to law

13

enforcement; and

14

ix. mechanisms to ensure that any staff person,

15

individual, family member or visitor who in

16

good faith reports an allegation of abuse or

17

neglect is not subject to retaliatory action,

18

including but not limited to reprimands,

19

discipline, harassment, threats or censure,

20

except for appropriate counseling, reprimands

21

or discipline because of an employee's

22

failure to report an incident in an

23

appropriate or timely manner.

24

b. Each State Hospital shall review, revise, as

25

appropriate, and implement policies and procedures

26

to ensure the timely and thorough performance of

27

investigations, consistent with generally accepted

28

professional standards of care. Such policies and

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procedures shall:

2

i.

require investigations of all deaths, as well

3

as allegations of abuse, neglect, serious

4

injury, and theft. The investigations shall

5

be conducted by qualified investigators who

6

have no reporting obligations to the program

7

or elements of the facility associated with

8

the allegation and have expertise in

9

copducting investigations and working with

10

persons with mental disorders;

11

ii. ensure that only the State Hospital staff who

12

have successfully completed competency-based

13

training on the conduct of investigations be

14

allowed to conduct investigations of

15

allegations of petty theft and all other

16

unusual incidents;

17

iii. for investigations required by paragraph

18

I.1.b.i, above, provide for the safeguarding

19

of evidence; and

20

iv. for investigations required by paragraph

21

I.1.b.i, above, require the development and

22

implementation of standardized procedures and

23

protocols for the conduct of investigations

24

that are consistent with generally accepted

25

professional standards. Such procedures and

26

protocols shall require that:

27

28

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1) investigations commence within 24 hours

o

2

or sooner, if necessary, of the incident

Lu" Z

3

being reported;

4

2) investigations be completed within 30

5

business days of the incident being

6

reported, except that investigations

7

where material evidence is unavailable to

8

the investigator, despite best efforts,

9

may be completed within 5 business days

10

of its availability;

11

3) each investigation result in a written

12

report, including a summary of the

13

investigation, findings and, as

14

appropriate, recommendations for

15

corrective action. The report's contents

16

shall be sufficient to provide a clear

,

17

basis for its conclusion. The, report

18

shall set forth explicitly and

19

separately:

20

(i) each allegation of wrongdoing

21

inves tiga ted;

22

iii) the names of all witnesses;

23

(iii) the names of all alleged victims

24

and perpetrators;

25

(iv) the names of all persons

26

interviewed· during the

27

investigation;

28

(v) a summary of each interview;

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(vi) a list of all documents reviewed

2

during the investigation;

3

(vii) sources of evidence considered,

4

including previous investigations

5

and their results, involving the

6

alleged victim(s) and

7

perpetrator(s);

8

(viii) the investigator's findings,

9

including findings related to the

10

substantiation of the allegations

11

as well as findings about staff's

12

adherence to programmatic

13

requirements; and

14

(ix) the investigator's reasons for

15

his/her conclusions, including a

16

summary indicating how potentially

17

conflicting evidence was

18

reconciled; and

19

4) staff supervising investigations review

20

the written report, together with any

21

other relevant documentation, to ensure

22

that the investigation is thorough and

23

complete and that the report is accurate,

24

complete, and coherent. Any deficiencies

25

or areas of further inquiry in the

26

investigation and/or report shall be

27

addressed promptly. As necessary, staff

28

responsible for investigations shall be

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provided with additional training and/or

2

technical assistance to ensure the

3

completion of investigations and

4

investigation reports consistent with

5

generally accepted professional standards

6

of care.

7

c. Each State Hospital shall ensure that whenever

8

disciplinary or programmatic action is necessary to

9

correct a situation or prevent reoccurrence, each

10

State Hospital shall implement such action promptly

11

and thoroughly, and track and document such actions

12

and the corresponding outcomes.

13

d. Each State Hospital shall have a system to allow

14

the tracking and trending of investigation results.

15

Trends shall be tracked by at least the following

16

categories:

17

i.

type of incident;

18

ii. staff involved and staff present;

19

iii. individuals directly and indirectly involved;

20

iv. location of incident;

21

v. date and time of incident;

22

vi. cause(s) of incident; and

23

vii. outcome of investigation.

24

e. Each State Hospital shall ensure that before

25

permitting a staff person to work directly with any

26

individual, the State Hospital shall investigate

27

the criminal history and other relevant background

28

factors of that staff person, whether full-time or

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part-time, temporary 'or permanent, or a person who

2

volunteers on a regular basis. Facility staff

3

shall directly supervise volunteers for whom an

4

investigation has not been completed when they are

5

working directly with individuals living at the

6

facility. The facility shall ensure that a staff

7

person or volunteer may not interact with

8

individuals at the State Hospital in instances

9

where the investigation indicates that the staff

10

person or volunteer may pose a risk of harm to such

11

individuals.

12

2. Performance Improvement

13

Each State Hospital shall develop, revise as

14

appropriate, and implement performance improvement

15

mechanisms that enable it to comply fully with this Plan, to

16

detect timely and adequately problems with the provision of

17

protections, treatment, rehabilitation, services and

18

supports, and to ensure that appropriate corrective steps

19

are implemented. Each State Hospital shall establish a risk

20

management process to improve the identification of

21

individuals at risk and the provision of timely

22

interventions and other corrective actions commensurate with

23

the level of risk. The performance improvement mechanisms

24

shall be consistent with generally accepted professional

25

standards of care and shall include:

26

a. Mechanisms for the proper and timely identification

27

of high-risk situations of an immediate nature as

28

well as long-term systemic problems. These

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mechanisms shall include, but not be limited to:

2

i. data collection tools and centralized

3

databases to capture and provide information

4

on various categories of high-risk

5

situations;

6

ii. establishment of triggers and thresholds that

7

address different levels of risk, as set

8

forth in Appendix A of this Plan; and

9

iii. identification of systemic trends and

10

patterns of high risk situations;

11

b. Mechanisms for timely interventions and other

12

corrective actions by teams and disciplines to

13

prevent or minimize risk of harm to individuals.

14

These mechanisms shall include, but not be limited

15

to:

16

i. a hierarchy of interventions by clinical

17'

teams that correspond to triggers and

18

thresholds;

19

ii. timely corrective actions by teams and/or

20

disciplines to address systemic trends and

21

patterns;

22

iii. formalized systems for the notification of

23

teams and needed disciplines to support

24

appropriate interventions and other

25

corrective actions;

26

iv. formalized systems for feedback from teams

27

and disciplines to the standards compliance

28

department regarding completed actions; and

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v.

monitoring and oversight systems to support

2

timely implementation of interventions and

3

corrective actions and appropriate follow up;

1,,'"'-.

4

and

5

c. Utilize, on an ongoing basis, appropriate

6

performance improvement mechanisms to assess and

7

address the facility's compliance with its

8

identified service goals.

9

3. Environmental Conditions

10

Each State Hospital shall develop and implement a

11

system to review regularly all units and areas of the

12

hospital to which individuals being served have access to

13

identify any potential environmental safety hazards and to

14

develop and implement a plan to remedy any identified

15

issues, consistent with generally accepted professional

16

standards of care. such a system shall require that:

17

a. Potential suicide hazards are identified and

18

prioritized for systematic corrective action, and

19

that such action is implemented on a priority basis

20

as promptly as feasible;

21

b. All areas of the hospital that are occupied by

22

individuals being served have adequate temperature

23

control and deviations shall be promptly corrected;

24

c. Each State Hospital reviews, revises, as

25

appropriate, and implements procedures and

26

practices so that individuals who are incontinent

27

are assisted to change in a timely manner;

28

75

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Document 9

• Filed 02/27/2007

Page 76 of 94

1

d. Each State Hospital thoroughly reviews and revis;s,

2

as appropriate, its policy and practice regarding

3

sexual contact among individuals served at the

4

hospital. Each State Hospital shall establish

5

clear guidelines regarding staff response to

6

reports of sexual contact and monitor staff

7

response to incidents. Each State Hospital

8

documents comprehensively therapeutic interventions

9

in the individual's charts in response to instances

10

of sexual contact;

11

e. Each State Hospital develops and implements clear

12

guidelines stating the circumstances under which it

13

is appropriate to utilize staff who are not trained

14

to provide mental health services in addressing

15

incidents involving individuals. Each State

16

Hospital ensures that persons who are likely to

17

intervene in incidents are properly trained to work

18

with individuals with mental health conce,rns: and

19

f. Metropolitan State Hospital will institute roving

20

patrols of treatment units, except for the skilled

21

nursing facility, by Hospital Police Officers on a

22

schedule and frequency to be determined by the

23

hospital administration.

24 J. First Amendment and Due Process

25

Each State Hospital unconditionally permits individuals to

26 exercise their constitutional rights of free speech, including

27 the right to petition the government for redress of grievances

28 without state monitoring and provides them due process.

76

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Document 9

• Filed 02/27/2007

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1

2

ENHANCEMENT PLAN - APPENDIX A

3

4

Tngger

Thresholds

5

6 1.1 Any aggression to self resulting

7

Aggressive Act to Self

in major injury*

8 1.2 2 or more aggressive acts to self

9 in 7 consecutive days

10

1.3 4 or more aggressive acts to self

11

in 30 consecutive days

12

13

14

2.1 Any peer-to-peer aggression

15 Aggressive Act to Others

resulting in major injury

16

2.2 Any aggression to staff resulting

17

in major injury

18

2.3 2 or more aggressive acts to

19

others in 7 consecutive days

20

2.4 4 or more aggressive acts to

21

others in 30

22

23 Alleged Abuse/
24 Neglect/Exploitation
25
26

3.1 Any alleged abuse/neglect/exploitation if minor** or major injury

27

28

77

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Document 9

• Filed 02/27/2007

Page 78 of 94

1
2 Body Weight 3
4

l::r

4.1 Body Mass Index (BMI) of 18.5 or

L.i.:
.",I:~"~

,~j;~~

less (underweight)

«:(

c....t

4.2 Body Mass Index (BMIl between 25

/,/',1

5

and 29.9

(overweight)

6

4.3 Body Mass Index (BMI) between 30

7

and 34.9

(Obesity-Grade I)

8

4.4 Body Mass Index (BMI) between 35

9

and 39.9

(Obesity-Grade II)

10

4.5 Body Mass Index (BMI) 40 or above

11

(Obesity-Grade III)

12

4.6 Weight Change ± 5% in 1 month

13

4.7 Weight Change ± 7.5% in 3 months

14

4.8 Weight Change ± 10% in 6 months

15

4.9 Waist Circumference over 35" for

16

females or over 40" for males

17

18 Combined Pharmacotherapy 5.1 More than 2 intra-class
19 psychotropic medications for
20
psychiatric reasons 21
5.2 More than 3 inter-class 22
psychotropic medications for 23
psychiatric reasons 24

25

26

27

28

78

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Document 9

• Filed 02/27/2007

Page 79 of 94

1
2 Escape/AWOL 3
4 5 6 7
8 Falls
9
10 11
12 13
Illicit Substances 14 15 16 17 18 Medication Variance 19 (Error) 20 21 22 23 24 25 26 27 28

6.1 Any escape attempt/unauthorized absence within facility
I'"n
6.2 Any escape attempt/unauthorized absence outside of facility
7.1 Any fall resulting in major injury
7.2 Three or more falls in 30 consecutive days
8.1 Any incident of an individual testing positive for illicit substance (street drug) use
9.1 Any medication error that results in major injury or exacerbation of a disease or disorder (i.e., prescribing, transcribing, ordering/procurement, dispensing/storage, administration, and documentation)
79

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Document 9

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1

2 Mortality

10.1 Expected deaths

3

10.2 Unexpected deaths

4

5
Non-Adherence to
6
Wellness and Recovery
7
plan (WRP)
8
9
10
11
12

11.1 Non-adherence to WRP for more than 20% of the interventions in 7 consecutive days (Note; For children and adolescents: include non-attendance at school for more than 20% of the time in 7 consecutive days)

13

14 One-to-One Observations 12.1 1:1 for psychiatric/behavioral

15

reasons over 24 hours in 7

16

consecutive days

17

12.2 Any 2:1 for

18

psychiatric/behavioral reasons

19

20 PRN Medications
21
22
23
24

13.1 2 PRNs in 24 hours (for psychiatric/behavioral reasons)
13.2 3 PRNs in 7 consecutive days 13.3 15 PRNs in 30 consecutive days

25

26

27

28

80

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Case 2:06-cv-02667-GPS-E Document 9

• Filed 02/27/2007

Page 82 of 94

1

2 Suicide Attempt

17.1 Any suicide attempt

3

17.2 Any suicide threat or ideations

4

5 * A major injury is an injury that requires treatment of more
6 than basic first aid by medical personnel or any injury resulting

7 from alleged or suspected abuse or any injury judged to have

8 potential for serious harm.
9 ** A minor injury is any injury, other than an injury caused by

10 alleged or suspected abuse, that requires no treatment or only

11 minor first aid and for which the potential for serious harm is

12 judged to have been remote.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

82

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• Filed 02/27/2007

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1

PART II

2

ENFORCEMENT

3 A. Selection of Monitor

4

Mohamed -Sabaawi, M.D. shall be appointed as the expert to

5 monitor the State's implementation of this Agreement (the

6 "Monitor"). The Monitor shall have full authority to assess,

7 review, and report independently on the Defendants'

8 implementation of and compliance with the provisions of the

9 Agreement. No Party, nor any employee or agent of any Party,

10 shall have any supervisory authority over the Monitor's

11 activities, reports, findings, or recommendations. In the event

12 that Dr. El-Sabaawi is unable to serve or continue serving as the

13 Monitor, or in the event that the Parties for any reason agree to

14 discontinue the use of Dr. EI-Sabaawi, the Parties shall meet or

15 otherwise confer within thirty (30) days of being notified of the

16 incapacity or the decision to discontinue use of Dr. El-Sabaawi

17 to select a new Monitor. If the Parties are unable to agree upon

18 a selection, each Party shall submit two names, along with

19 resumes or curricula vitae and cost proposals, to the Court and

20 the Court shall appoint the Monitor from among the names

21 submitted. The procedure described in this paragraph shall apply

22 to all successor Monitors. The Parties agree that the Monitor

23 may use consultants to assist the Monitor. Any such consultants

24 shall be paid~for time, services, and expenses pursuant to the

25 Monitor's existing budget. In collaboration with the Monitor,

26 the Parties shall meet or otherwise confer whenever necessary to

27 agree upon which particular consultant(s) the Monitor shall use

28 to assist the Monitor in his duties as Monitor .. Neither the

83

Case 2:06-cv-02667-GPS-E Document 9

• Filed 02/27/2007

Page 84 of 94

1 Monitor, nor any person or entity hired or retained by the

2 Monitor to assist in furthering any provision of this Consent

3 Judgment, shall be liable for any claim, lawsuit, or demand

4 arising out of the Monitoring of this Consent Judgment. This

5 paragraph does not apply to any proceeding before this Court for

6 enforcement or payment of contracts or subcontracts for

7 monitoring this Consent Judgment.

8 B. Budget of the Monitor

9

The Parties and the Monitor have agreed upon the annual

10 budget for the Monitor's work.

11 c. Reimbursement and Payment Provisions

12

1. The cost of the Monitor, including the cost of any

13

consultant to assist the Monitor, shall be borne by the

14

State in this action. All reasonable expenses incurred

15

by the Monitor or any consultant, in the course of the

16

performance of the duties of the Monitor, pursuant to

17

the budget of the Monitor, shall be reimbursed by the

18

State. The United States will bear its own expenses in

19

this matter.

20

2. The Monitor shall submit monthly invoices to the

21

Defendants, with a copy to the United States, detailing

22

all expenses the Monitor incurred during the prior

23

month. These invoices shall include daily records of

24

time spent and expenses incurred, and shall include

25

copies of any supporting documentation, including

26

receipts. The Defendants agrees to pay each month's

27

invoice in full from the Monitor within thirty (30)

28

days of receipt of the monthly invoice from the

84

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 85 of 94

1
2 3 4 5
6 7 8 9
10 D.
11
12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Monitor. If the Defendants dispute all or part of the invoice, the Defendants shall notify in writing the Monitor and the United States within ten days of receipt of the Monitor's monthly invoice. The Monitor, the Defendants and the United States will endeavor to resolve any invoice disputes promptly and in good
. faith. Where the Monitor and the Parties are unable to
resolve any invoice dispute, the Monitor and/or the Parties may petition the Court to resolve the dispute. Responsibilities and Powers of the Monitor 1. The overall duties of the Monitor shall be to observe, review, report findings, and make recommendations, where appropriate, with regard to the implementation of the foregoing Enhancement Plan at the State Hospitals. The Monitor shall regularly review the therapeutic and rehabilitation services provided to individuals to determine the Defendants' implementation of and compliance with this Consent Judgment. During the Monitor's review, the Monitor shall have full and complete access to all of the State Hospitals' buildings and facilities, staff, patients, patient records, documentation, and information relating to the issues addressed in this Consent Judgment. The State Hospitals' Executive Directors shall direct all employees to cooperate fully with the Monitor. The Monitor shall be permitted to initiate and receive ex parte communications with the Parties. The Monitor shall devote such time as is necessary to fulfill the
85

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 86 of 94

1

purposes of the duties and responsibilities of the

2

Monitor pursuant to this Consent Judgment.

3

2. The Monitor shall consult with the Parties and shall

4

submit a written plan with regard to the methodologies

5

to be used by the Monitor to assess the Defendants'

6

compliance with and implementation of the Consent

7

Judgment. The Monitor's evaluation shall include:

8

regular on-site inspection of the State Hospitals'

9

facilities and programs for patients, interviews with

10

administrators, professional and other staff,

11

contractors, and patients, and detailed review of

12

pertinent documents and patient records. The Parties

13

envision that the Monitor may provide specific

14

recommendations to the Defendants with regard to steps

15

to be taken to come into compliance with the Consent

16

Judgment. However, the Defendants retain the

17

discretion to achieve compliance by any legal means

18

available to them, and may choose to utilize methods

19

other than those that may be proposed by the Monitor or

20

the United States. The Monitor shall not be empowered

21

to direct the Defendants to take, or to refrain from

22

taking, any specific action to achieve compliance with

23

the Consent Judgment. The Parties do not intend for

24

the Monitor to have the role of a "Special Master."

25

The Agreement is the product of two governmental

26

agencies exercising their expertise.

27

3. In any instance in which either party disagrees as to

28

compliance, the Court shall give appropriate deference

86

Case 2:06-cv-02667-GPS-E Document 9

• Filed 02/27/2007

Page 87 of 94

1

to the Monitor's assessment of compliance.

2

4. The Parties envision that the United States and the

3

Monitor shall conduct a "baseline" evaluation of the

l,....1

4

Defendants' compliance with the terms of this Consent

5

Judgment at the State Hospitals within the first 180

6

days after the filing of this Consent Judgment. This

7

initial baseline evaluation is intended to inform the

8

Parties and the Monitor of the status of compliance

9

with this Enhancement Plan. The Monitor shall produce

10

a written report to the Parties with regard to the

11

State's compliance with particular provisions of the

12

Consent Judgment as soon as possible, but at least

13

within 60 days of each visit.

14

5. Following the baseline tour, the Monitor shall conduct

15

subsequent tours of each State Hospital at least

16

semi-annually, upon reasonable notice to the State

17

Hospital, in order to fulfill his or her obligations

18

pursuant to this Consent Judgment. In connection with

19

the baseline tours, the Parties and the Monitor shall

20

attempt to agree upon a schedule of subsequent tours

21

and reports for the upcoming year, to be repeated

22

annually thereafter.

23

6. The Monitor shall provide the Parties with a written

24

report as soon as possible, but at least within 60 days

25

of each tour and shall detail with as much specificity

26

as possible how the State is or is not in compliance

27

with particular provisions of the Consent Judgment.

28

Drafts of the Monitor's reports shall be provided to

87

• Case 2:06-cv-02667-GPS-E

Document 9

• Filed 02/27/2007

Page 88 of 94

1
2
3 4 5 6 7 8 9
10
11
12 13 14 15 16 17 18 19 E. 20 21 22
23 24 25 26
27 28

the Parties for comment at least ten (10) business days prior to issuance of the reports. Upon the achievement of eighteen (18) months of substantial compliance with any substantive paragraph(s) of this Agreement, no further reporting shall be required on that paragraph. 7. The Defendants shall notify the Monitor immediately upon the death of any current State Hospital patient, including any person who died following transfer due to medical condition from a State Hospital to another medical facility. The Defendants shall forward to the Monitor copies of any completed incident reports related to deaths, autopsies and/or death summaries of residents, as well as all final reports of investigations that involve State Hospital patients. The Defendants shall also notify the Monitor immediately if they receive a citation or threat to de-certify a State Hospital from the Centers for Medicaid and Medicare Services. The United States' Access to Information and the State Hospitals 1. The United States shall have full access to, and shall, upon request, receive copies of any documents, records, databases, and information relating to the implementation of this Consent Judgment. The Defendants shall provide any requested documents, records, databases, and information to the United States as soon as possible, but no later than within thirty (30) business days of the request, or
88

Case 2:06-cv-02667-GPS-E Document 9

• Filed 02/27/2007

Page 89 of 94

1

within a time frame negotiated by the parties if the

2

volume of requested material is too great to reasonably

3

produce within thirty days. The United States, upon

4

reasonable notice, shall ha've full access to all of the

5

State Hospitals' buildings and facilities, staff,

6

patients, patients' records, documentation, and

7

information relating to the issues addressed in this

8

Consent Judgment. The State Hospitals' Executive

9

Directors, shall direct all employees to cooperate fully

10

with the United States. The United States may receive

11

and respond to unsolicited calls or contacts from State

12

personnel outside the presence of State

13

representatives.

14

PART III

15

MODIFICATION OF TERMS

16 A. If the Parties reach a subsequent agreement that varies from

17 the Plan, the new agreement shall be reduced to writing, signed,

18 and filed with the Court for approval.

19

PART IV

20

COMPLIANCE AND TERMINATION

21 A. The purpose of this Consent Judgment is that the Defendants

22 will be able to achieve desired outcomes for and provide the

23 necessary protections, supports, and services to the

24 individuals served by the State Hospitals. All of the terms of

25 the Plan set forth in Part I hereof shall be implemented at the

26 State Hospitals within 36 months of the Enhancement Plan's

27 effective date, except that § I.3 of the Plan and all provisions

28 of the Plan having to do with suicide prevention measures shall

89

Case 2:06-cv-02667-GPS-E Document 9

• Filed 02/27/2007

Page 90 of 94

1 be implemented at the State Hospitals upon the effective date of 2 this Consent Judgment. This Consent Judgment will be terminated 3 and the case dismissed five (5) years after the effective date of 4 the Consent Judgment. This Consent Judgment may terminate at an 5 earlier date if the Parties agree that the Defendants are in 6 substantial compliance with each provision of the Consent 7 Judgment, and the State has maintained compliance for at least 8 eighteen (18) months ("maintained sustained compliance") . I f 9 Defendants and the Monitor contend that the Defendants have 10 maintained sustained compliance and the United States disagrees, 11 Defendants may move this Court for an order terminating this 12 Consent Judgment. In any instance in which the parties disagree 13 as to compliance, the Court shall give appropriate deference to 14 the Monitor's assessment of compliance. Noncompliance with mere 15 technicalities, or temporary failure to comply during a period of 16 otherwise sustained compliance shall not constitute failure to 17 maintain substantial compliance. At the same time, temporary 18 compliance during a period of sustained noncompliance shall not 19 constitute substantial compliance. 20 B. At all times, the State shall comply with applicable federal 21 and state licensing requirements. 22 C. If the United States maintains that the Defendants have 23 failed to carry out any requirement of this Consent Judgment, the 24 United Sta~es shall notify the Defendants with specificity of any 25 instance(s) in which it maintains that the Defendants have failed 26 to carry out the requirements of this Consent Judgment. 27 D. With the exception of conditions or practices that pose an 28 immediate and serious threat to the life, health, or safety of
90

, Case 2:06-cv-02667-GPS-E

Document 9

Filed 02/27/2007 Page 91 of 94

1 individuals served by the State Hospitals, the Defendants shall

2 have thirty (30) days from the date of a deficiency notice from

3 the United States to cure the claim of noncompliance. During

4 this period, the Parties shall coordinate and shall discuss areas

5 of disagreement and attempt to resolve outstanding differences.

6 E. Unless specified to the contrary elsewhere herein, in any

7 compliance or other adversarial hearing prior to final dismissal

8 of this action, the burden of proof will be on the Party moving

9 the Court.

10 F. All provisions of this Consent Judgment shall have ongoing

11 effect until the final dismissal of this action. The Court shall

12 retain jurisdiction for all purposes until such time as this

13 action dismissed. Independent of the foregoing, if the United

14 States and the Defendants agree that the State Hospitals have

15 achieved substantial compliance with each section of this Consent

16 Judgment, the Parties shall file a joint motion to dismiss this

17 action.

18

19

20 21 DATED: 22

This 2 'I dayof ~ , 2006.

23

24

25

26

27

28

91

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 92 of 94

1 APPROVED AS TO FORM AND CONTENT: 2
3

5

rney General

6

7

8

ETTA Y. CUTLAR

Special Litigation Section

9

Trial Attorneys
15 United States Department of Justice Civil Rights Division
16

17

1811==~~~~~~:L~_

DE

W. Y"'Nh-,,"'l

19 United ates Attorn

LEON W. WEIDMAN

20 Assistant United States Attorney

Chief, Civil Division

21 GARY L. PLESSMAN

Assistant United States Attorney

22 Chief, Civil Fraud Section

HOWARD DANIELS (CA Bar No. 081764)

23 Assistant United States Attorney

300 North Los Angeles Street

24.

Federal Building, Room 7516

Los Angeles, CA 90012

25

(213)894-4024

26

27

28

92

Case 2:06-cv-02667-GPS-E Document 9 Filed 02/27/2007 Page 93 of 94

1
2 S-Z;;~~~{'::J. ~4 Il-{/
KIMBERLY BELSHE 3 Secretary, State of California
Health and Human Services Agency 4 State of California
Health and Human Services Agency 5 1600 Ninth Street, Room 460
Sacramento, CA 95814
6

7

811~~~-h~~_______________
FURTEK

9 Chie Counsel, State of California

Health and Human Services Agency

10 1600 9th Street, Room 460

Sacram

A 95814

11

12

13

14

15 Health
16

17

18

19

20

unsel, California

f Legal Services

21

153

22

Mental Health

23

24

25

26

27

28

93

• Case 2:06-cv-02667-GPS-E

Document 9

, Filed 02/27/2007

Page 94 of 94

1

PROOF OF SERVICE BY MAILING

.; .....,

2

I am over the age of 18 and not a party to the within action. I am employed by i:;;

~~

3 the Office of United States Attorney, Central District ofCalifomia. My business ::z

c.)

4 address is 300 North Los Angeles Street, Suite 7516, Los Angeles, California 90012. (,,',

5

On October 31, 2006, I served AMENDED CONSENT JUDGMENT on each

6 person or entity named below by enclosing a copy in an envelope addressed as shown

7 below and placing the envelope for collection and mailing on the date and at the place

8 shown below following our ordinary office practices. I am readily familiar with the

9 practice of this office for collection and processing correspondence for mailing. On the

10 same day that correspondence is placed for collection and mailing, it is deposited in the

11 ordinary course of business with the United States Postal Service in a sealed envelope

12 with postage fully prepaid.

13

Date of mailing: October 31, 2006. Place of mailing: Los Angeles, California.

14

Person(s) and/or Entity(ies) to Whom mailed:

15

CY1}thia Rodriguez

Office of Legal Services

16

Califo~ia Department of Mental Health

16009 Street, Room 153

17

Sacramento, CA 95814

18
I declare under penalty of pe~ury under the laws of the United States of America
19
that the foregoing is true and correct.
20
I declare that I am employed in the office of a member of the bar of this court at
21
whose direction the service was made.
22
Executed on: October 31, 2006 at Los Angeles, California.
23

24

25

26

27

28

 
 Case 2:06-cv-02667-GPS-E Document 297-1 Filed 10/03/12 Page 1 of 4 Page ID #:4191

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT FOR THE

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12

13 UNITED STATES OF AMERICA,

14

Plaintiff,

15

v.

16
STATE OF CALIFORNIA, et al.,
17

Defendants.
18

19

) Case No: CV06-2667 GPS (Ex) ) ) ) ORDER ) ) ) Hon. Audrey B. Collins ) United States District Judge ) ) )

20

21

22

23

24

25

26

27

28

Case 2:06-cv-02667-GPS-E Document 297-1 Filed 10/03/12 Page 2 of 4 Page ID #:4192

1

On December 2, 2011, the United States filed a Motion to Enforce the

2 Amended Consent Judgment. (Docket No. 105.) Particularly, the United States’

3 Motion contended that Defendants were non-compliant with several provisions of

4 the Amended Consent Judgment at Metropolitan State Hospital and Napa State

5 Hospital. (Id.) Defendants opposed on January 23, 2012. (Docket No. 251.)

6 After several continuances, the Parties filed supplemental briefs in September 2012

7 pursuant to this Court’s August 15, 2012, Order. (See Docket Nos. 274, 275 &

8 276.) On September 24, 2012, this Court heard oral argument on the United

9 States’ Motion. On September 25, 2012, this Court granted the Motion with

10 respect to the remaining disputed issue over the use of prone restraints at Napa

11 State Hospital, and otherwise denied as moot the rest of the Motion because the

12 United States was no longer pursuing the remaining issues. (Docket No. 296.)

13 Pursuant to that September 25, 2012, Order:

14

The Court TERMINATES all the provisions of the Amended Consent

15 Judgment as they apply to Metropolitan State Hospital. Accordingly, because

16 Atascadero and Patton State Hospitals are also no longer subject to the Amended

17 Consent Judgment, (see Order, Docket No. 64), the executive directors of

18 Metropolitan, Atascadero, and Patton State Hospitals are dismissed as Defendants

19 in this action.

20

The Court TERMINATES the provisions of the Amended Consent

21 Judgment as they apply to Napa State Hospital, except § I.H and any other

22 provision necessary to remedy Defendants’ non-compliance with that section. To

23 that end, §§ II (Enforcement), III (Modification of Terms), and IV (Compliance

24 and Termination) are retained to the extent they do not directly conflict with the

25 specific provisions of this Order below.

26

The Court ORDERS Defendants to modify their policies at Napa State

27 Hospital to prohibit all use of prone restraints, prone containments, and prone

28 stabilizations as called for in the Amended Consent Judgment § I.H.1.

2

Case 2:06-cv-02667-GPS-E Document 297-1 Filed 10/03/12 Page 3 of 4 Page ID #:4193

1

The Court EXTENDS § I.H of the Amended Consent Judgment as it applies

2 to Napa State Hospital for no more than 12 months from the date of this Order.

3 This extension modifies the five-year termination provision stated in § IV.A.

4 During those 12 months, the Monitor shall conduct two evaluations of Defendants’ 5 compliance with § I.H at Napa State Hospital. The Amended Consent Judgment’s 6 term “maintained sustained compliance” is amended to mean that Defendants 7 maintain substantial compliance with § I.H for at least two Monitor evaluations.

8 See Amended Consent Judgment § IV.A. Within one month of the Court’s entry

9 of this Order, the Monitor shall conduct the first evaluation and may conduct the

10 second evaluation within six months after the first evaluation or as shortly

11 thereafter as the Monitor deems appropriate. After any such evaluation, the

12 Monitor shall issue a report of his findings.

13

The Parties are ORDERED to file a joint report updating the Court on the

14 status of the Monitor’s oversight no later than 10 days after the Monitor issues any

15 such evaluation report of Napa State Hospital.

16

17

IT IS SO ORDERED.

18

19

Dated this

day of _________________ 2012.

20

21

22

23

___________________________________________________

24

THE HONORABLE AUDREY B. COLLINS

25

UNITED STATES DISTRICT JUDGE

26

27

28

3

Case 2:06-cv-02667-GPS-E Document 297-1 Filed 10/03/12 Page 4 of 4 Page ID #:4194

1 Presented by:

2

3

THOMAS E. PEREZ Assistant Attorney General

4 JONATHAN M. SMITH (DC Bar No. 396578) Chief, Special Litigation Section

5 BENJAMIN O. TAYLOE (DC Bar No. 422910)

Deputy Chief, Special Litigation Section

6 MATTHEW J. DONNELLY (IL Bar No. 6281308)

7

U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W.

8

Washington, DC 20530

(202) 514-6255 | matthew.donnelly@usdoj.gov

9

ANDRÉ BIROTTE JR.

10 United States Attorney for the Central District of California

TERRENCE M. JONES (CA Bar No. 256603) 11 Assistant United States Attorney

12

300 N. Los Angeles St., Rm. 7516 Los Angeles, CA 90012

13

(213) 894-2879 | terrence.jones@usdoj.gov

14 Attorneys for the United States

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

 
 U.S. Department of Justice Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Avenue, NW Washington, DC 20530
May 2, 2006

The Honorable Arnold Schwarzenegger Governor of California State Capitol Building Sacramento, CA 95814
Re: Patton State Hospital, Patton, California
Dear Governor Schwarzenegger:
I am writing to report the findings of the Civil Rights Division’s investigation of conditions and practices at Patton State Hospital (“Patton”), in Patton, California. On April 9, 2004, we notified you that we were investigating conditions at Patton pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. CRIPA gives the Department of Justice authority to seek remedies for any pattern and practice of conduct that violates the constitutional or federal statutory rights of persons with mental illness who are served in public institutions.
In December 2005,1 we conducted an on-site inspection of Patton. We reviewed a wide variety of relevant State and facility documents, including policies, procedures, and medical and other records relating to the care and treatment of patients. During our visit, we also interviewed Patton administrators, professionals, and staff, and talked to and observed patients in their living units, at activity areas, and during treatment meetings. We were assisted in this exercise by expert consultants in the fields of psychiatry, psychology, medical care, and quality assurance and risk management. In keeping with our pledge of transparency and to provide technical assistance

1

The tour was delayed until the parties resolved the

manner in which they would establish the applicability at Patton

of any remedial measures developed in connection with the

Department's separate investigation of Metropolitan State

Hospital.

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where appropriate regarding our investigatory findings, we conveyed our preliminary findings to State counsel and to certain State and facility administrators and staff during verbal exit presentations at the close of our on-site visit.
As a threshold matter, we commend the administrators and staff of Patton for their helpful and professional conduct during the investigation; we received their full cooperation with our investigation. In particular, facility personnel cooperated fully and expeditiously with our document requests, and worked with us openly and collaboratively. We hope to continue to work with the State of California and officials at Patton in a cooperative manner.
At the time of our December 2005 visit, Patton had a census of over 1,500 patients. Patton primarily provides forensic psychiatric services to patients admitted under a variety of State statutes.
Residents of state-operated facilities have a right to live in reasonable safety and to receive adequate health care, along with habilitation to ensure their safety and freedom from unreasonable restraint, prevent regression and facilitate their ability to exercise their liberty interests. See generally Youngberg v. Romeo, 457 U.S. 307 (1982). Determining whether treatment is adequate focuses on whether institutional conditions substantially depart from generally accepted professional judgment, practices, or standards. Youngberg, 457 U.S. at 323; Sharp v. Weston, 233 F.3d 1166, 1171-72 (9th Cir. 2000). The State also must provide services in the most integrated setting appropriate to individual residents’ needs. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq.; 28 C.F.R. § 35.130 (d) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”); see generally Olmstead v. L.C., 527 U.S. 581 (1999). Additionally, the State must provide persons committed to psychiatric hospitals for an indefinite term with mental health treatment that gives them a realistic opportunity to be cured and released. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (citing Sharp, 233 F.3d at 1172).
It is apparent that many Patton staff are highly dedicated individuals who are genuinely concerned for the well-being of the persons in their care. Nevertheless, there are significant and wide-ranging deficiencies in patient care provided at Patton. Indeed, conditions of care and treatment at Patton in psychiatry, including pharmaceutical services; psychology; medical care,

-3-

including general medical services, infection control, physical and occupational therapy, dietary, and dental care; nursing services; placement in the most integrated setting; and protection from harm and quality assurance, are materially similar to those outlined in the findings letters of 2003 and 2004 regarding Metropolitan State Hospital. Consistent with the statutory requirements of CRIPA, we now write to advise you of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to address the deficiencies we have identified.
I. PROTECTION FROM HARM
Patton fails to provide a reasonably safe environment for its patients. Patient-on-patient violence is commonplace at Patton. For example, Patton reported over 500 patient-on-patient assaults in the six months preceding our visit. In fact, two patient homicides have occurred at Patton since September 2005, allegedly committed by other patients. Not surprisingly, many patients we spoke with report feeling unsafe at Patton.
Patton also fails to keep patients reasonably safe from self-harm. A substantial number of incidents reported at Patton involve self-harm. Of great concern is the high number of suicide attempts by hanging. In a recent one-month review of all reported suicide attempts, the vast majority of incidents involved attempts at suicide by hanging. Sadly, we understand that shortly after our visit, a patient successfully committed suicide at Patton by hanging himself from his bedroom closet.
Patton also fails to maintain an effective incident management system and a related quality improvement (“QI”) system to prevent harmful incidents, and identify and correct deficiencies in care and treatment. While Patton properly tracks incidents and identifies trends, it fails to respond effectively to identified trends and, therefore, fails to prevent future incidents of harm. This is contrary to the very purpose of an effective incident management and QI system, as required by generally accepted professional standards of care. This failure is illustrated by the recent suicide by hanging, which appears to be part of a trend of suicide attempts by hanging at Patton.
The quality of the investigations Patton completes is inadequate. Although special investigators appear to complete timely reports of their investigations, most incidents are only subject to a review of documentation regarding the incident, such as the incident report, not an actual investigation in which witnesses are interviewed and efforts are undertaken to determine

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factors such as what precipitated the incident, was supervision adequate, and what steps might be taken to avoid a reoccurrence. Significantly, most reviews summarily conclude that the staff members involved acted properly in connection with the incident. The notion that, in every instance, staff members unerringly choose the proper course of action strains credulity and suggests that such reviews are not reliable.
Patton patients also are subject to adverse environmental conditions such as potential suicide hazards and the prevalence of illicit drugs. These problems are long-standing and serious. Yet, incident reports and other evidence make clear that the facility has not corrected them. Similarly, Patton fails to adequately address inappropriate sexual contact among individuals served at the facility, including sexual contact between staff and patients. This issue, too, is long-standing.
Consequently, Patton fails to protect its patients from avoidable harm. The harm that Patton patients experience as a result of these deficiencies is multifaceted, including physical and psychological abuse; physical injury; excessive and inappropriate use of physical and chemical restraints; inadequate, ineffective and counterproductive treatment; and excessively long hospitalizations.
II. PSYCHIATRY
Patton's psychiatric supports and services substantially depart from generally accepted professional standards of care and expose patients to a significant risk of harm and to actual harm. Generally, our investigation uncovered problems in three main areas of psychiatry: assessments and diagnoses, medication management, and treatment planning.
Generally accepted professional standards of care require that initial psychiatric diagnoses be based on complete psychiatric assessments in which relevant historical, environmental, biological, social, psychosocial, medical, and neurological factors and influences are evaluated. Once an initial diagnosis is made, ongoing assessments should be conducted to ensure that timely re-evaluation of the resident’s condition is made and treatment adjusted accordingly.
Psychiatric assessments and diagnoses at Patton substantially depart from generally accepted professional standards of care. Psychiatrists routinely diagnose their patients as having psychiatric disorders without conducting an adequate psychiatric assessment.

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Initial assessments at Patton are not individualized and fail to provide a basis for a diagnostic process that has sufficient reliability and validity. Moreover, initial assessments are routinely completed within 24 hours of admission to Patton, before the treating psychiatrist would be able to obtain input from other disciplines. The practice of finalizing assessments within 24 hours deprives the psychiatrist of potentially critical diagnostic information.
Annual update assessments are likewise inadequate. Many are based on outdated information and, therefore, do not provide an accurate guide for the patient’s treatment. In fact, we found that Patton’s overall approach to ongoing psychiatric assessment reflects a lack of critical thinking and clinical inquiry. In many cases we reviewed, the psychiatrist failed to evaluate important developments in a patient’s condition that would suggest that the diagnosis assigned to the patient is not accurate. Without a proper understanding of a patient’s condition, Patton’s psychiatrists cannot make appropriate treatment decisions. Additionally, Patton fails to adequately assess the presence and impact of seizure disorders when formulating psychiatric diagnoses and assessments.
As a result of the deficiencies in psychiatric assessments and diagnoses at Patton, patients’ actual illnesses are not being properly treated and are permitted to progress. Additionally, patients are exposed to potentially toxic treatments for conditions from which they do not suffer, patients are not provided appropriate psychiatric rehabilitation, and patients’ options for discharge are seriously limited.
We understand that Patton is in the process of adopting a new model for integrated assessments. This model, if implemented properly, will facilitate individualized assessments and provide the basis for a recovery model of treatment.
It is a basic tenet of generally accepted professional standards of care that the use of psychiatric medication always should be justified by the clinical needs of a patient. Patton fails to ensure that its patients are afforded appropriate psychopharmacological treatment. Vulnerable patients are routinely prescribed inappropriate or unsafe medications without clinical justification. In fact, we found examples of patients on dangerously high doses of psychiatric medications without a diagnosis that would justify such use, nor any evidence that the prescribed dose provides any benefit to the patient.

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Patton’s monitoring of side effects of medications, particularly its monitoring of the side effect tardive dyskinesia (“TD”), substantially departs from generally accepted standards of care. TD is a serious and potentially irreversible and disabling movement disorder that is associated with prolonged treatment with conventional antipsychotic medications. Patton’s psychiatrists are not accurately tracking patients’ signs and symptoms of TD. For example, we found significant discrepancies between the documentation of TD assessments and the patients’ observable condition. Moreover, Patton fails to modify medications in a timely manner, even when the medications appear to cause harm, and alternative treatments exist. For example, we found patients at Patton with symptoms of TD resulting from longstanding use of one particular psychotropic, haloperidol. Patton failed to detect these symptoms and even consider prescribing other medications with less harmful side effects.
Treatment planning at Patton also represents a substantial departure from generally accepted professional standards of care. Generally accepted professional standards of care instruct that treatment plans should dictate appropriate clinical interventions by integrating the individual assessments, evaluations, and diagnoses of the patient performed by all disciplines involved in the patient’s treatment. Treatment plans should be individualized and should identify and build on the patient’s strengths, interests, preferences, and goals, to optimize the patient’s recovery and ability to sustain himself in the most integrated, appropriate setting.
At Patton, current treatment plans are cursory, not individualized, and not integrated. Additionally, as discussed further in the next section, although the facility has adopted a new treatment planning format that offers an individualized, integrated approach to developing treatment plans, psychiatrists as well as other mental health professionals fail to properly utilize the format.
The preventable, serious harm resulting from these deficiencies takes many forms, among them, inadequate, ineffective and counterproductive treatment; exposure to inappropriate and unnecessary medications posing serious physiological and other side effects; excessively long

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hospitalizations, which compound psychiatric distress; increased risk of relapse after discharge; and an overall lower quality of life.
III. PSYCHOLOGY
Patton's psychological services and behavioral interventions substantially depart from generally accepted professional standards of care and expose the patients to significant risk of harm and to actual harm. Generally, our investigation uncovered deficiencies in psychosocial assessments, treatment planning, treatment programming, and behavioral interventions.
Psychosocial assessments do not comport with generally accepted professional standards. As stated above, although Patton’s treatment planning format provides an effective template for development of an integrated treatment approach, mental health clinicians fail to properly utilize the format, possibly because it is new. We reviewed many treatment plans in which clinicians failed to identify the patients’ current condition and the life skills needed for the patients’ condition to improve. Treatment objectives likewise are not constructive and do not reflect a patient’s actual needs. These deficiencies contribute to misdirected and ineffective interventions and are a substantial departure from generally accepted professional standards.
A fundamental problem at Patton is that the treatment it offers does not address the patients’ actual treatment needs. Patton has adopted a “Treatment Mall” model for treatment delivery. Under this model, patients can choose from classes on topics such as daily life skills, vocational training, education, and social skills to develop the skills necessary for recovery and return to the community.
The Treatment Mall model, when implemented properly, can be an effective method of treatment delivery. Unfortunately, we found serious deficiencies in Patton’s current execution of the Treatment Mall model. Most significantly, the classes made available to individual patients do not address the patients’ specific needs and, therefore, do not provide patients with meaningful or effective treatment. Many patients are assigned to courses they have not chosen and which do not satisfy the patients’ treatment plans. Moreover, most of the Treatment Mall classes do not have an established curriculum, and the class leaders lack the training necessary for the courses to be therapeutic.

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Additionally, Patton’s approach to patients who refuse to attend Treatment Mall fails to comport with generally accepted professional standards. Currently, patients who refuse to attend are sent to the “Enhancement Room.” The Enhancement Room consists of a crowded enclosure in which patients are required to sit in chairs without any activity for the duration of the Mall session. This is not therapeutic and may aggravate the condition of patients already in distress. Patton needs to develop a system for identifying why a patient is not attending his scheduled class, and developing interventions to address identified obstacles.
Patton’s behavior management system does not comport with generally accepted professional standards. To develop an effective behavior program, generally accepted professional practice requires that psychology staff identify the underlying factors that precipitate or cause the patient’s maladaptive behavior (i.e., the “function” of the behavior) through an individualized, formal functional assessment. The functional assessments developed at Patton are seriously deficient and do not accurately identify the function of patients’ maladaptive behaviors. Without a thorough assessment of the function of the resident’s maladaptive behavior, including clearly identified alternative behaviors to supplant the function of the maladaptive behavior, behavior programs will not be successful in modifying the targeted behavior.
Patton also fails to accurately track behavior outcomes for patients on behavior programs. Generally accepted professional standards of care require that facilities collect and record accurate, reliable data regarding patients on behavior programs. These data should be used to evaluate a patient’s progress toward behavior-related goals and to make decisions regarding future treatment. Patton’s failure to adequately track behavior outcomes exposes patients to ineffective, inadequate, and/or unnecessarily restrictive treatment; avoidable injuries related to untreated behaviors and the use of unnecessary restrictive interventions; and potentially dangerous and unnecessary side effects of medications.
Patton’s creation of a “Positive Behavior Support” (“PBS”) team to address patients with challenging behaviors shows great promise. Currently, however, the PBS team is not integrated with the treatment teams, nor are PBS plans integrated with patients’ treatment plans. Lack of integration causes the development of interventions based on incomplete information and possibly in conflict with other treatments and interventions. Lack of integration also causes inconsistent and inadequate

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implementation of interventions, which often must be implemented uniformly throughout the day to be effective. Moreover, with a population of over 1,500 patients, it is likely that the actual need for behavior programs at Patton is significantly higher than the handful of patients who currently have PBS plans.
The harm that the deficiencies identified above present to patients takes many forms, among them, diagnoses that perpetuate their behavioral difficulties; unnecessarily extending their stay in a highly restrictive setting; subjecting them to excessive and unnecessary use of sedating medications and restrictive practices; fostering despair and hopelessness; and, in some cases, depriving them of physical safety.
IV. RESTRAINTS, SECLUSION, AND PRN MEDICATIONS
Patton’s practices with respect to use of restraints and seclusion substantially depart from generally accepted professional standards of care. Patton’s efforts to reduce its use of restraints and seclusion are commendable. Nevertheless, Patton staff frequently use restraints and seclusion in lieu of treatment and as a first course of action with patients exhibiting problematic behaviors, without adequate consideration of whether less restrictive measures would suffice. Moreover, Patton staff are not adequately trained in crisis diversion and de-escalation techniques. For example, incident reports describe unnecessary power struggles between staff and patients which tend to escalate incidents, and fail to include a description of less restrictive interventions that were attempted prior to use of restraints or seclusion.
Patton’s system for use of psychiatric medications on a pro re nata (“PRN”), or as-needed, basis is seriously deficient. The frequency of administration of PRN’s at Patton is strikingly high and inadequately monitored. PRN medications should be used for psychiatric purposes only as a short-term measure to relieve a patient in acute distress. However, Patton staff repeatedly employ PRN medications as a substitute for treatment of the patient’s underlying condition, and/or as a form of chemical restraint but without the documentation and monitoring that use of chemical restraint requires. Moreover, physicians and other treatment professionals are not routinely notified of PRN uses, despite the fact that some patients are receiving PRN medications every four hours. Thus, there is inadequate clinical oversight of the frequency of PRN usage as well as of the implications that such frequency may have for a patient’s treatment goals and interventions.

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V. PHARMACY
Patton fails to provide adequate pharmacy services. Pharmacists fail to adequately review individual patients’ medication regimens, and fail to adequately evaluate drug use at the facility. In fact, pharmacists appear to be wholly disconnected from medication management at Patton.
Additionally, Patton’s system for tracking adverse drug reactions (“ADR’s”) fails to meet generally accepted professional standards of care. Established standards require that facilities identify and track incidents in which patients experience negative reactions to medications (ADR’s) in order to identify problematic trends and their remedies. Patton’s system for tracking ADR’s is seriously deficient. For example, one ADR was reported in the month prior to our tour. In a facility of over 1,500 patients, only one ADR within an entire month is highly suspect and strongly suggests that the system is not reliable. Patton’s system for reporting medication errors is likewise inadequate.
By not providing adequate pharmacy services, Patton places its patients at risk for the misuse of medication, unnecessary side effects from medication, potential drug interactions, general health problems, and excessively long hospitalizations.
VI. GENERAL MEDICAL CARE
Medical care at Patton, including preventative, routine, specialized, and emergency services, substantially departs from generally accepted professional standards of care. In general, medical care at Patton is reactive, and little attention is paid to identifying and responding to significant changes in patients’ physical status, establishing target outcomes, and measuring success of interventions.
Patton’s documentation and medical record keeping practices exacerbate the inadequacy of the care provided. Medical documentation is abundant but fragmented, and it is difficult to determine what course of action, if any, has been taken in a case. In many records, medical diagnoses are not current, and treatment objectives are not identified. Numerous notes in medical records contain directives to “monitor” a patient, without a target outcome identified or any evidence of follow-up to this directive. Dental records are not kept in patients’ charts and do not contain a comprehensive dental assessment.

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In contrast to generally accepted professional standards of care, Patton fails to provide adequate physical, occupational, and speech therapy assessments and services that permit persons evaluated for such services to regain, maintain, or improve functioning. A number of patients at Patton have significant needs, but have not been referred for physical, occupational, and speech therapy. Moreover, the physical, occupational, and speech therapy clinicians are not integrated into the treatment teams. Therefore, therapy interventions are not consistently implemented and reinforced by other staff throughout a patient’s day. In this way, the lack of integration results in poor outcomes, even when patients are referred for such services. Dietary and nutritional services are likewise not adequately integrated and fail to meet the patients’ needs.
By not providing adequate medical services, Patton exposes its patients to a significant risk of harm and actual harm due to the lack of timely, routine and preventative care, causing patient health care to deteriorate.
VII. NURSING
Patton’s nursing services substantially depart from generally accepted professional standards of care and treatment and expose patients to a significant risk of harm and actual harm. As with the medical staff, the nursing staff are not adequately integrated with treatment teams, leading to a fragmented and inadequate delivery of services. Nursing documentation is also voluminous. However, nursing notes do not provide useful information regarding the patient’s current status or plan of care. Treatment objectives and interventions are not adequately identified, measured, or recorded.
VIII. PLACEMENT IN THE MOST INTEGRATED SETTING
Generally accepted professional standards of care and, as set forth above, federal law require that treatment teams, with the leadership of psychiatrists and the support of the hospital administration, actively pursue the timely discharge to the most integrated, appropriate setting that is consistent with patients’ needs and the terms of any court-ordered confinement. In this regard, factors that contributed to previous unsuccessful placements should be identified and addressed. Life skills necessary for successful discharge should be identified soon after admission, and interventions for skill acquisition should be developed and implemented. Patton’s discharge planning process significantly fails to meet these standards of care. Patton fails to identify and address factors that contributed to

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previous unsuccessful placements. Consequently, the process results in unnecessarily extended hospitalizations, poor transitions, and a high likelihood of readmission, all of which result in harm to Patton’s patients.
IX. MINIMUM REMEDIAL MEASURES
The minimum remedial measures required to protect the constitutional and federal statutory rights of the patients at Patton are set forth below and more extensively detailed in the “Enhancement Plan” negotiated between the State and the Department:
A. Integrated Treatment Planning Patton should provide its patients with integrated treatment planning consistent with generally accepted professional standards of care.
B. Assessments Patton should ensure that its patients receive accurate, complete, and timely assessments, consistent with generally accepted professional standards of care, and that these assessments drive treatment interventions.
C. Psychiatry Services Patton should provide adequate psychiatric supports and services for the treatment of the severely and persistently mentally ill population it serves in accordance with generally accepted professional standards of care.
D. Psychology Services Patton should provide psychological supports and services adequate to treat the functional and behavioral needs of its patients according to generally accepted professional standards of care.
E. Restraints, Seclusion, and PRN Medications Patton should ensure that restraints, seclusion, and PRN medications are used in accordance with generally accepted professional standards of care.
F. Pharmacy Patton’s patients should receive pharmacy services consistent with generally accepted professional standards of care.
G. General Medical Care Patton should provide adequate preventative, routine, specialized, and emergency medical services, occupational, physical, and speech therapy, and dental and dietary services, on a timely basis, in accordance with generally accepted professional standards of care.

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H. Nursing Care Patton should provide nursing services to its patients consistent with generally accepted professional standards of care. Such services should result in Patton’s patients receiving individualized services, supports, and therapeutic interventions, consistent with their treatment plans.
I. Documentation of Patient Progress Patton should ensure that patient records accurately reflect patient progress, consistent with generally accepted professional standards of care.
J. Discharge Planning and Placement in the Most Integrated Setting Within the limitations of court-imposed confinement, the State should pursue actively the appropriate discharge of patients and ensure that they are provided services in the most integrated, appropriate setting that is consistent with the patients’ needs.
K. Protection From Harm Patton should provide its patients
 with a safe and humane environment and protect them from
 harm.

*****
We hope to continue working with the State in an amicable and cooperative fashion to resolve our outstanding concerns with regard to Patton. Provided that our cooperative relationship continues, we will forward our expert consultants’ reports under separate cover. Although their reports are their work – and do not necessarily represent the official conclusions of the Department of Justice - their observations, analyses and recommendations provide further elaboration of the relevant concerns, and offer practical assistance in addressing them. We hope that you will give this information careful consideration and that it will assist in your efforts at prompt remediation.
We are obligated to advise you that, in the unexpected event that we are unable to reach a resolution regarding our concerns, within 49 days after your receipt of this letter, the Attorney General is authorized to initiate a lawsuit pursuant to CRIPA, to correct deficiencies of the kind identified in this letter. See 42 U.S.C. § 1997b(a)(1). We would very much prefer, however, to resolve this matter by working cooperatively with

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you. Accordingly, we will soon contact State officials to discuss this matter in further detail.
If you have any questions regarding this letter, please call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-0195.
Sincerely,
/s/ Wan J. Kim
Wan J. Kim Assistant Attorney General
cc: The Honorable Bill Lockyer Attorney General State of California
Stephen W. Mayberg, Ph.D.
 Director
 California Department of Mental Health

Octavio C. Luna
 Executive Director 
 Patton State Hospital

Debra W. Yang, Esq.
 United States Attorney
 Central District of California


 
 June 27, 2005


The Honorable Arnold Schwarzenegger
 Governor of California
 State Capitol Building
 Sacramento, CA 95814

Re: Napa State Hospital, Napa, California

Dear Governor Schwarzenegger:

On January 6, 2004, we notified then-Governor Gray Davis of
 our intent to investigate conditions at Napa State Hospital
 (“Napa”), in Napa, California, pursuant to the Civil Rights of
 Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. I
 write now to provide the statutorily required findings of that
 investigation, the bases for those findings, and the minimum
 remedial measures that we believe are warranted to correct
 deficiencies contributing to conditions that violate the federal
 rights of individuals residing in this facility.

As a threshold matter, we note that State officials have
 declined to cooperate with this investigation. In particular,
 they repeatedly have refused to allow the Department access to
 the facility, most recently stating that access will not be
 provided before sometime in 2006. The State’s conduct is unusual
 in this regard. Most government officials cooperate with CRIPA
 investigations because they recognize that protecting the rights
 of institutionalized citizens warrants a thorough and impartial
 review. Indeed, the State cooperated with the Department
 regarding a previous CRIPA investigation of Napa that was
 resolved via a consent decree in 1990.1 The State also
 cooperated with our investigation of Metropolitan State Hospital
 in June and July 2002 (“Metropolitan”). Since then, however, the
 State has declined our requests for access to Napa and to 
 the State’s other mental health care facilities that we are
 investigating, Patton State Hospital and Atascadero State
 Hospital.2


1

Consent Decree, United States v. California, No. C90­


2641, (N.D. Cal. Sept. 17, 1990).


2

In May 2005, the State did permit Department staff to


interview certain Patton patients and has agreed to provide us


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As we understand it, the State’s position is that permitting
 the Department access to Napa, and its other facilities, before
 sometime next year would excessively divert limited resources at
 a time when the State is undertaking significant reforms. We
 attempted to address the State’s concerns by offering to conduct
 a streamlined tour of Napa, and we reminded the State that we
 were committed to providing technical assistance during the tour
 and to working in a transparent manner. If the State had agreed
 to our proposed investigation procedures, State officials would
 have had an early opportunity to work directly with our experts
 and staff. They also would have had an opportunity to address
 any identified problems on a voluntary basis at an early stage of
 this investigation. Regrettably, the State has maintained its
 opposition to permitting the Department access. 

As we repeatedly advised State officials, however, our
 investigations proceed regardless of whether officials choose to
 cooperate. Indeed, when CRIPA was enacted, lawmakers considered
 the possibility that local officials might not assist a federal
 investigation. Such non-cooperation is a factor that may be
 considered adversely when drawing conclusions about a facility. 
 See H.R. CONF. REP. 96-897, at 12 (1980), reprinted in 1980
 U.S.C.A.A.N. 832, 836. We now draw such an adverse conclusion. 

The State’s non-cooperation is only one factor that we have
 considered in preparing our statutorily-required findings and
 recommendations. We have also considered information from
 several recent on-site surveys conducted by the Centers for
 Medicaid and Medicare Services ("CMS") and by the State's
 Department of Health Services (“DHS”), and conducted interviews
 with professionals, advocates, family members of patients, and
 patients themselves. In doing so, we found evidence of
 significant and wide-ranging deficiencies in Napa’s provision of
 care to its patients. 

Tragically illustrative of the widespread and systemic
 deficiencies that currently exist at Napa is the case of patient
 Q.R.,3 who committed suicide by hanging in December 2004. 


with requested portions of charts from patients who authorized us
 to obtain such records.


3

We use pseudo-initials to refer to individual patients,


in order to protect their privacy. 


- 3 ­

Several months before his suicide, Q.R. attempted suicide (also
 by hanging), which staff told his family was an attention-getting
 behavior, and not a realistic threat. This patient's family was
 in frequent contact with his counselor at Napa, and conveyed to
 the counselor its concern that the patient's escalating episodes
 of violence were uncharacteristic and needed to be treated. On
 the day of Q.R.’s death, a family member who had just spoken with
 Q.R. phoned the nurses' station on his ward to warn that Q.R. was despondent, crying, and in need of attention. Despite this
 specific warning and the patient's history of suicide attempt,
 staff failed to act. Less than an hour later, Q.R. was
 discovered by a peer, hanging by a sheet in his room. Because
 the State denied us access to the facility to investigate these
 allegations, we have no reason not to conclude that the
 contentions are accurate, and that Napa's failure to intervene
 appropriately was a cause of this young man's death. 

The preceding incident is emblematic of the systemic
 deficiencies at Napa. We have received overwhelming information
 that, following the dismissal of the consent decree in 1995,
 significant problems recurred at Napa, including: failure to
 protect patients from harm from assaults and suicide; 
 inappropriate use of seclusion, restraint and PRN (“pro re nata”
 or “as-needed”) psychotropic medications; and inadequate medical,
 nursing and psychiatric care. In addition, we have received
 information evidencing deficient treatment planning, programming,
 and nutritional management; unsanitary conditions; and failure to
 place patients in the most integrated setting as required by the
 Americans with Disabilities Act, 42 U.S.C. § 12132 et seq.
 ("ADA"), and the President's New Freedom Initiative, which
 prioritizes community-based alternatives for individuals with
 disabilities. See Exec. Order No. 13217, §§ 1(a)-(c), 66 Fed.
 Reg. 33155 (June 18, 2001). Our findings, the facts that support
 them, and the minimum remedial steps that we believe are
 necessary to correct deficiencies are set forth below.

I. BACKGROUND

Napa has been in operation since November 1875. It is
 situated on a 138-acre campus and houses almost 1,100 adult
 patients. These individuals are classified as “low to moderate
 risk” and are civilly committed or committed through criminal
 proceedings. In our previous investigation of Napa, we
 identified deficiencies in the facility’s protections from harm,
 use of restraints, and provision of medical care, among other
 areas. These concerns were addressed in a consent decree that


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was dismissed in 1995 based on the Department’s assessment that
 Napa, at that time, was in substantial compliance with the
 decree’s requirements.

II. FINDINGS

A. PROTECTION FROM HARM

Napa is constitutionally required to provide patients
 reasonable protection from harm and freedom from bodily
 restraint. Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). 
 Information from multiple, credible sources leads us to conclude
 that Napa fails to protect patients from harm and abuse. We have
 determined that the harm suffered by Napa’s patients is multi­
 faceted, including physical injury by assault; death by suicide
 due to inadequate suicide precautions; excessive and
 inappropriate use of physical and chemical restraints and
 seclusion; inadequate, ineffective, and counterproductive
 treatment; and exposure to unnecessary environmental hazards. 

A major factor in Napa's failure to protect patients from
 harm is inadequate supervision. As DHS has reported, “[e]ven
 though clients in the facility can be extremely unpredictable and
 violent, they are left unsupervised for long periods of time.” 
 Family members of patients and advocates who frequently visit
 Napa confirm that patients are left unattended, without staff
 observation or interaction. A number of incidents occurred when
 medically required one-to-one staffing was cancelled, apparently
 not due to clinical decisions, but rather staff shortages. 
 Moreover, as a nurse at Napa reported, “there are not enough
 people on hand to subdue [out-of-control patients].... So an
 alarm is set off or the hospital police are called. But it takes
 at least five minutes, sometimes 10 or more to get there, and a
 lot can happen during that time.”

1. Patient-on-Patient Assaults

Napa patients suffer from repeated acts of aggression by
 peers, resulting in serious injuries, and in one case, a
 homicide. In egregious departures from accepted standards, staff
 often fail to intervene and/or fail to report the incidents. 
 Staff likewise do not attempt to prevent repeated assaults by
 addressing the underlying behavior of the aggressors.

Many instances of inappropriate aggression in a psychiatric
 hospital such as Napa result from patients exhibiting symptoms of


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their mental health disorders. Without the benefit of
 appropriate medication and therapeutic interventions, patients
 often lack the means to control such symptoms. Thus, inadequate
 mental health treatment exposes individuals to excessive levels
 of violence. Examples of failures to prevent known aggressors
 from repeated acts of serious aggression include:

• On May 3, 2002, a patient was strangled to death by his
 roommate. The roommate had previously been convicted of
 several violent crimes and had a history of attacking peers,
 including two attacks on sleeping patients. Reportedly,
 there are no bedrooms set aside to house separately patients
 who demonstrate the potential to harm others.

• Between January and June 2003, one patient assaulted other
 patients at least 20 times, including at least 17 incidents
 in which he punched or kicked other patients in the head or
 face. Staff were afraid of this patient and failed to
 intervene to protect other patients. 

• In June 2002, a patient with a history of aggressive
 behavior attacked another patient in the TV room, punching
 him and stabbing him in the neck with a portable radio
 antenna. Staff failed to report the assault to the
 licensing authorities.

• On November 18, 2002, a patient who was ordered to be under
 constant observation by staff assaulted another patient. He
 previously had assaulted two patients on October 3, 2002,
 and one patient on September 18, 2002. In addition, an
 assessment dated September 3, 2002, indicated that he had
 “numerous recent assaults on peers.”

• Two patients known to be “extremely assaultive” were placed
 in a bedroom together where they were not supervised for
 significant periods of time. On August 8, 2001, one patient
 attacked the other, punching him in the nose. The following
 day, that patient retaliated by choking his roommate until
 he passed out. 

Patient advocates and patients themselves tell us that staff
 often fail to intervene with violent patients because the staff
 are afraid. Last fall, Napa's Clinical Administrator confirmed
 to CMS surveyors that "staff become fearful of patients who have
 been assaultive." Examples of staff failing to intervene
 include:


- 6 ­

• On November 11, 2003, one patient stabbed another in the
 face and back with an 11-inch “shank” made from an antenna. 
 Four days earlier, the victim had told staff that he feared
 that he would be attacked. The State’s regulatory agency
 concluded that Napa had failed to investigate the source or
 nature of the threat identified by the victim, and it
 imposed a treble fine on the facility for its failure to
 protect the victim.

• On September 20, 2002, a 38-year-old woman suffered “great
 bodily injury” when she was beaten by three male patients. 
 According to the woman, the other patients “kicked the shit
 out of me.” Staff did not intervene, nor did staff report
 to Napa authorities the significant bruises and injuries to
 this client.4

2. Inadequate Suicide Precautions

Several Napa patients have committed suicide in recent
 years, often using the same method to do so:

• On March 20, 2005, Napa patient M.E. committed suicide by
 hanging himself in a locked bathroom. 

• Napa patient Q.R. committed suicide by hanging in December
 2004. Several months earlier, he had attempted suicide by
 hanging; notwithstanding his history, Napa staff failed to
 intervene or adequately supervise Q.R. when a family member
 called the nurses station on his unit the day of his death
 and informed staff that Q.R. was despondent and crying and
 in need of attention. 

• On July 21, 2003, a man hanged himself from a door using a
 radio cord, on the same ward where another patient committed
 suicide only a month earlier.


4

The failure to report or investigate a serious incident


is not uncommon at Napa, and is a substantial departure from


accepted standards of care. Numerous sources described incidents


to us, including this assault, inappropriate sexual contact


between residents or staff and residents, and illegal drug use,


which were not reported to and/or not investigated by Napa


authorities. 


- 7 ­

• On June 3, 2003, a patient who had previously been reported
 as suicidal hanged himself using a bed sheet.

• On September 4, 2001, a patient committed suicide by hanging
 with a bed sheet in his ward.

• On July 16, 1999, a man known to be suicidal hanged himself
 with bedsheets tied to a light fixture.

In February 2005, CMS cited Napa for failing to complete the
 suicide assessment of a patient for more than six months after
 his admission. CMS found that Napa did not provide translation
 services to complete the suicide assessment of this patient, who
 could not communicate in English. 

The State's own surveyors previously cited Napa for failing
 to identify and address current symptoms of yet another patient
 with a documented history of suicide attempts. In July 2004, DHS
 imposed a treble fine on Napa for failing to assess and treat a
 patient whose suicide attempt was reported to staff by a peer and
 whose records contained numerous observations documenting his
 depression during that time, including: "verbalized feelings of
 depression;" the patient stating that his "spirit was broken;"
 and the patient requesting medication for depression and
 agitation. Notwithstanding this significant evidence of a mental
 health treatment need, the facility’s nursing staff did not
 assess or evaluate the patient, and the treatment team did not
 amend his treatment interventions to address this need. I would
 note that DHS imposes treble fines only when the violation is a
 repeat violation within a short time frame. Napa has been warned
 repeatedly of deficiencies in its suicide prevention practices,
 but has failed to remedy them. 

3. Harmful Contraband

Napa also fails to protect patients from harmful contraband. 
 The State's own Department of Health Services has determined that
 policies requiring investigation of all contraband are not
 followed. Numerous credible allegations corroborate our finding
 that Napa fails to control traffic in harmful contraband,
 including illegal narcotics. We have determined that patients
 have access to illegal drugs, including marijuana and cocaine,
 while residing at Napa. Patients allege, moreover, that staff
 provide illegal drugs to patients in return for cash or sex. 
 Evidence that patients are obtaining access to contraband
 includes:


- 8 ­

• Three different Napa patients overdosed on amphetamines
 and/or cocaine in fall 2004, including one patient who died
 of the overdose. Three other patients obtained and used
 heroin during this time period.

• In September 2004, a Napa physician testified under oath
 that Napa's staff brings drugs into the facility in exchange
 for cash.5

• An independent psychologist who recently examined a Napa
 patient and all of his medical records told us that the
 client, L.A., tested positive for marijuana and other street
 drugs six months after his admission to Napa. 

• In late 2002, the State's own surveyors documented numerous
 indications of drug use by Napa residents that were neither
 investigated by the facility nor addressed by the residents'
 treatment teams. A Napa police staff member told the state
 surveyors, "[W]e don't have the resources to stop the drugs
 [coming into the facility]."

• As described in the discussion above regarding patient-on-
 patient assaults, the patient who strangled his roommate to
 death on May 2, 2002, was a heavy drug user who had tested
 positive for cocaine, amphetamines, and barbiturates in the
 five months prior to the incident, even though he had been
 confined to Napa for two years.

• One patient tested positive for marijuana, cocaine, and
 alcohol while at Napa in 2001 and 2002, and was seen
 injecting another patient with a needle on September 5,
 2002.

4. Seclusion, Restraints and PRN Medications

Generally accepted professional standards of care dictate
 that seclusion and restraints: (a) will be used only when
 persons pose a safety threat to themselves or others and after a
 hierarchy of less restrictive measures has been considered and/or
 exhausted; (b) will not be used in the absence of, or as an
 alternative to, active treatment, as punishment, or for the
 convenience of staff; (c) will not be used as a behavioral


5

This testimony was submitted during a conditional


release hearing for patient L.A. 


- 9 ­

intervention, and (d) will be terminated once the person is no
 longer a danger to himself or others. See Youngberg, 457 U.S. at
 324 (“[The State] may not restrain patients except when and to
 the extent professional judgment deems this necessary to assure
 such safety to provide needed training.”) Generally accepted
 professional standards also instruct that PRN psychotropic
 medications should be used only as a short-term measure to 
 relieve a patient in acute distress, not as means to escape mild,
 possibly healthy, discomfort or as a repeatedly deployed
 substitute for treatment. 

Misuse of seclusion and restraint was a significant area of
 concern during our first CRIPA investigation of Napa. In
 addition to overuse and misuse of physical restraints and
 seclusion, our earlier investigation found an exorbitant number
 of PRN (pro re nata or "as needed") medication orders, suggesting
 that they were used for the convenience of staff to sedate and
 control patients. Substantial evidence shows that misuse of
 seclusion and restraint is a significant area of concern again. 
 Statistics published on the DMH web site show the duration of
 restraint episodes at Napa to be substantially higher than the
 system's average in 2004. The average duration of restraint
 episodes at Napa during each quarter of 2004 was more than double
 those at Metropolitan State Hospital (where we also found
 unconstitutional use of seclusion and restraint) during this same
 time.6 Data comparing administration of emergency psychiatric
 medication7 in the State's four public psychiatric hospitals also


6

February 19, 2004 CRIPA Findings Letter Regarding


Conditions at Metropolitan State Hospital. We currently are


negotiating to reach a resolution of the Metropolitan


investigation. Of the State's four psychiatric hospitals, the


residents at Metropolitan and Napa are the most similar, and


include both civilly-committed and forensic patients. Patton and


Atascadero State Hospitals admit only forensic patients. 


7

We refer to this published data on emergency


medications as an indicator of PRN usage. Although not every


administration of a PRN medication is an emergency use, and vice


versa, in most cases, the two sets of data overlap. The data


generally support the claims of Napa patients and families that


Napa overuses PRN medications. Because the State denied us


timely access to the facility and patient records to conduct our


investigation, we have little choice but to conclude that the


allegations are true. 


- 10 ­

shows that Napa's rate was nearly twice that at Metropolitan.8
 This is a concern because we found the high levels of seclusion,
 restraint and PRN medications at Metropolitan to be evidence of a
 failure to follow generally accepted professional practices. 
 Specifically, frequent resort to seclusion, restraint and PRN
 medication is an indicator that a patient's diagnosis is
 erroneous and/or that the treatment plan is inappropriate and
 should be re-evaluated.

In September 2004, and again in February 2005, Napa was
 cited by CMS for continuing deficiencies in the use of seclusion
 and restraints. In both surveys, CMS found that Napa failed to
 justify the use of restraints; failed to ensure physicians'
 orders and face-to-face assessments in application of restraints;
 and failed to limit use of restraints and seclusion to documented
 emergencies. When interviewed by CMS surveyors regarding
 examples of inappropriate restraint, Napa's Clinical Director
 stated, "[m]aybe our system is not working." Examples of
 inappropriate uses of seclusion or restraint include:

• A patient identified in a February 2005 CMS survey was
 secluded for 30 hours, during which time staff's recorded
 observations included: "appears sleeping," "eating,"
 "drinking," "eyes open staring in space," and "not
 responding." These behaviors do not reflect violence
 requiring seclusion, and there was no evidence that the
 patient was released during these times to see if she could
 control her behavior without being secluded. On a second
 occasion, the same patient was secluded for 36 hours, with
 the following release criteria: "when client is able to
 make eye contact to staff with relaxed muscle tone." During
 this second episode of seclusion, the patient was observed 
 as "not responding to staff," and "covering self with
 blanket, mute," behaviors not indicative of violence
 requiring seclusion.

• The February 2005 CMS survey also identified a patient who
 was admitted while under restraint and continued in
 restraints for more than 48 hours. Documentation shows that


8

Inexplicably, of the four hospitals' statistics, only


Napa's are expressly limited to use of "intramuscular


injections." It appears that Napa's actual use of emergency


medications, including any delivered via methods other than


intramuscular injection, is higher.


- 11 ­

restraint was continued based on past behaviors; current
 behaviors noted in the documentation clearly did not justify
 restraint, including "demanding, whining," "eating dinner,"
 "staring at wall," and "eyes closed." 

• Another patient identified in the February 2005 CMS survey
 was "walking wrist to waist restrained" for 50 hours based
 on a physician order stating, "[w]alking wrist to waist
 restraints when out of his own room. No release criteria
 other than being release criteria [sic] in his own room." 
 The Medical Director, when questioned by CMS whether this
 use of restraints was justified based on an immediate threat
 of violence, stated, "I think it is less restrictive to
 allow the patient out in the milieu in these restraints,
 rather than having to stay in his room." 

• Another patient was restrained on 20 occasions between
 August 2nd and September 21, 2004, for a total of 920.4
 hours, or 75% of her hospital time during this period. One
 episode was for 369 consecutive hours. 

• Another patient, who had Down syndrome and whose primary
 language was not English, was observed by CMS surveyors in
 three-point restraints on September 20, 2004. Records
 showed he had been restrained in three or five-point
 restraints since admission three days earlier. None of the
 information in his charts suggested any justification for
 use of restraints.

• PRNs are used inappropriately, and as a substitute for
 sufficient staff supervision and therapeutic interventions. 
 For example, a patient who pushed away a peer in self
 defense when the peer assaulted her was given a PRN for her
 own "aggression." Generally accepted practices and federal
 regulations, 42 C.F.R. § 482.13, prohibit use of restraints
 (including medications) unless the person poses an immediate
 safety threat to themselves or others and after a hierarchy
 of less restrictive measures has been considered and/or
 exhausted. 

Previous CMS surveys confirm that Napa's misuse of
 restraints and seclusion is a serious and long-standing problem: 

• On February 2, 2001, a patient died while in three-point
 prone restraints in a seclusion room. The patient was
 restrained on his stomach and choked to death while eating. 


- 12 ­

The patient’s chart reflects that he was at increased risk
 of positional asphyxia because he suffered from
 hypertension, obesity, and Huntington’s disease. 
 Inexplicably, this patient was served a meal in this
 position and was monitored only by an audio/video monitor
 that showed the back of his head.

• In three of three records reviewed by CMS in August 2001,
 restraints were used without having been approved in the
 patients' plans of care. A supervisor interviewed by CMS
 was unaware of accepted professional standards requiring
 that patients subject to restraint have plans of care
 expressly addressing the restraints used, including
 assessments addressing the need for restraints, appropriate 
 interventions based on those assessments, evaluation of the
 effectiveness of the interventions, and re-intervention as
 warranted.

Multiple independent sources have alleged that staff at Napa
 goad patients into behaviors that are then punished with
 restraint or seclusion. More particularly, staff frequently
 provoke patients into verbal confrontations to justify placing
 the patients in seclusion. If a patient resists being placed in
 seclusion, the patient is then restrained. Because the State has
 denied us access to the facility to investigate these
 allegations, we are compelled to conclude that they are accurate. 

5. Failure to Control Environmental Hazards

In a facility serving people at risk of harming themselves
 or others, the environment should be kept free of hazards. Napa
 has failed to meet this generally accepted professional standard
 of care. 

Examples of Napa’s breakdown in environmental protections
 include the prevalence of appurtenances and other fixtures upon
 which patients tie off to commit suicide; jagged and broken wall
 tiles; and highly unsanitary bathroom areas. CMS, in fact, has
 determined that staff takes no action, or completely ineffective
 action, to prevent patients from soiling common areas with human
 waste. Exposure to others' wastes is a health hazard. 

B. MEDICAL, NURSING, AND PSYCHIATRIC CARE


- 13 ­

1. Deficiencies in Preventative, Routine, and
 Emergency Medical, Nursing, Dental, and
 Psychiatric Care

The State is required to provide adequate medical care to
 patients, including adequate nursing care. Youngberg, 457 U.S.
 at 315, 322. We find that Napa does not provide adequate medical
 and nursing care to patients. Regulatory agency surveys from
 2001 to as recently as February 2005 indicate persistent
 deficiencies in medical and nursing care: nursing care is not
 provided to all patients who need it; registered nurses do not
 consistently supervise and evaluate the nursing care of each
 patient; the nursing staff does not consistently develop a
 nursing care plan for each patient; staff fail to ensure the
 proper implementation of patients’ care plans; care plans are
 inadequate and outdated; dental care is inadequate; documentation
 and reporting of treatment and symptoms is inadequate; and
 medications are not consistently administered properly. In
 addition, medical care –- including psychiatric assessments –- is
 not consistently timely, responsive, or accurate.

Lapses in medical and nursing care can, and have had, fatal
 consequences for Napa patients. In February 2005, patient B.X.
 complained of breathing problems. Although he used a nebulizer
 for a history of breathing problems, his complaints were not
 addressed by staff. He died sitting in his room and was
 discovered by a peer. Because the State has denied us access to
 the facility and its records in our investigation, we conclude
 that staff's inattention to this patient's serious medical
 complaint was a cause of his death. 

The following additional examples illustrate many systemic
 medical, nursing, and psychiatric service deficiencies and
 demonstrate Napa's substantial departure from generally accepted
 professional standard of care in these critical areas: 

• In May 2005, a patient who suffered a seizure while in the
 cafeteria choked to death. In an inpatient hospital
 setting, it is difficult to imagine why there was no staff
 person with sufficient training available to avert a death
 by choking. 

• In March 2005, a patient waited more than 48 hours for an x-
 ray and treatment for a broken arm.


- 14 ­

• In November 2004, the State's own surveyors cited Napa for
 deficient nursing care involving a client with a history of
 suicide attempts. After being notified of the client's
 expressed plan to harm himself, nursing failed to assess,
 develop a nursing care plan, or even document the incident. 
 Five days later, the client attempted suicide. 

• A court-appointed psychologist testified that a forensic
 patient recommended by Napa's staff for conditional release
 had been given the wrong psychiatric diagnosis and no
 treatment for psychiatric conditions directly affecting his
 suitability for release.

• In 2003, a patient was forced to wait at least seven months
 for surgical repair of his broken hip.

• In November 2002, staff failed to observe whether or not
 patients take their medications, even when care plans
 required observation. The State's own surveyors reported
 that, on November 19, 2002, two individuals walked away
 after they had received their medication without staff
 members observing whether they had taken the medication,
 including one individual who had admitted to selling his
 medications to other patients. Staff members observed by
 DHS on November 20, 2002, failed to crush and dissolve 
 medication for certain patients, as had been ordered by the
 physician to ensure that patients were taking their
 medications.

• According to DHS observations in November 2002, staff failed
 to record the administration of medication in a timely
 manner, resulting in the potential for medication error due
 to the lack of communication of medication administration to
 other medication-administering nurses on the unit.

• On August 5, 2002, a patient attempted to commit suicide by
 taking an overdose of approximately 3000 milligrams of
 medication, when he was prescribed no more than
 310 milligrams of medication per day.

• Based on its November 2002 review of records, the State's
 own surveyors reported that several patients failed to
 receive critical dental treatment, despite poor dental
 health, including patients who had cavities, had lost
 several teeth prior to admission, or who were likely
 candidates for extractions. 


- 15 ­

• A review by the State's own surveyors of a sample of patient
 records dated July through October 2002, indicated that many
 patients had been prescribed numerous psychotropic
 medications that have adverse interactions, yet there was no
 follow-up to review or record these adverse effects.

• Napa records dated September 30, 2002, indicated that one
 patient was prescribed multiple psychoactive medications and
 doses of medication above the recommended maximum doses
 without any apparent justification. He received 2700 mg a
 day of an anticonvulsant while the maximum recommended dose
 is 1800 mg a day; 700 mg a day of another anticonvulsant
 while the recommended maximum dose is 500 mg; 20 mg a day of
 an antipsychotic compared to the usual dosage range of 10 mg
 a day; and 10 mg a day of another antipsychotic with a
 maximum effective dose of 4-6 mg a day. In addition, the
 patient received daily doses of an anti-depressant, an anti­
 anxiety and anticonvulsant medication, and another
 anticonvulsant. These medications have numerous adverse
 effects and cumulative drug interactions, including
 agitation, insomnia, nervousness, hostility, dizziness,
 objectionable behaviors, movement disorders, anxiety, gait
 disturbances, lack of coordination, irritability,
 restlessness, and slurred speech. Records for this patient
 demonstrated the presence of seizures, falls, hostility,
 aggression, agitation, insomnia, restlessness, and
 unpredictable and objectionable behaviors. There was no
 evidence of a system for recording symptoms in a way that 
 would allow the treatment team to differentiate between the
 patient’s symptoms of mental illness and symptoms of adverse
 effects of medication.

• On the skilled nursing facility unit, staff have refused to
 assist patients to the restroom, forcing patients to spend
 up to 12 hours in soiled diapers. Staff have taken up to
 two hours to respond to patients’ call lights, and bathed
 patients as infrequently as once every two to four weeks. 
 Observers reported “a strong stench of urine and feces on
 the unit.”

2. Deficiencies in Provision of Occupational and
 Physical Therapy and Dietary Supports and Services

The care provided at Napa to patients whose needs include
 occupational or physical therapy departs substantially from


- 16 ­

generally accepted professional standards. Napa also
 consistently fails to provide adequate nutritional services, a
 substantial departure from professionally accepted standards that
 may cause serious health problems. For example: 

• In a February 2005 survey, CMS identified two patients who
 required equipment such as portable oxygen and/or
 wheelchairs to attend programming; staff neither encouraged
 nor assisted the patients to use this equipment to attend
 programming but, instead, left the patients in bed in their
 rooms.

• In November 2002, at least six patients' records were
 missing observation data and information relevant to
 necessary dietary supports and services.

• In October 2002, CMS observed Napa staff incorrectly
 administer gastrosomy tube feedings for five of six
 patients, and observed a patient with a care plan that
 included swallowing precautions being fed by staff that was
 not trained and not familiar with the patient's plan. 

The failure to provide physical, occupational, and
 nutritional supports and services to Napa patients may result in
 a loss of mobility and independence, and can also lead to
 preventable medical complications. 

C. PSYCHOLOGY AND TREATMENT PLANNING

The State must also provide persons committed to psychiatric
 hospitals for an indefinite term with mental health treatment
 that gives them a realistic opportunity to be cured and released. 
 Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003)
 (citing Ohlinger v. Watson, 652 F.2d 775, 779 (9th Cir. 1980);
 Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000) (same). 
 Multiple independent sources, including regulatory agencies,
 independent professionals, patients, and patient advocates,
 inform us that Napa fails to provide adequate treatment planning,
 and in particular, fails to plan adequately to address patients'
 assaultive and self-abusive behaviors. In addition to the many
 examples of Napa's failure to address assaultive and suicidal
 behavior, discussed at §§ II.A.1 and 2, above, examples of
 failures to treat include:


- 17 ­

• Napa failed to provide a current psychiatric assessment for
 patient M.E. since sometime before February 2004; this
 patient committed suicide on March 20, 2005. CMS identified
 additional patients without timely psychiatric evaluations,
 including one who had not been evaluated more than six
 months after admission, and another who had no psychiatric
 evaluation for more than two years.

• Napa failed to intervene to address escalating violence by
 patient Q.R., including an assault on a peer that caused
 injury requiring stitches, despite pleas from Q.R.'s family
 members to his treatment team.

• Recent CMS surveys confirm that Napa fails to provide
 structured therapies based on patients' treatment needs;
 fails to develop and document interventions based on
 patients' presenting needs; and fails to develop
 interventions to be provided by a physician. 

• Staff do not encourage patients to attend their few
 scheduled treatment groups, and staff actions often disrupt
 those groups. One patient was left asleep in her bed at the
 time of her scheduled treatment group with no staff
 encouraging her to participate. 

• Napa fails to provide adequate interpretative services to
 enable non-English-speaking patients to understand their
 treatment. One Vietnamese patient was observed to mumble
 and sing throughout his ward's community meeting, during
 which he was frequently "shushed" by the interpreter. When
 interviewed following the meeting, the patient stated he did
 not understand what had occurred. A second Vietnamese
 patient was not evaluated for suicide risk for more than six
 months because no interpreter was available.

• A court-appointed psychologist testified that Napa staff
 failed to address a patient's history of violent assault and
 inappropriate relationships with women, including Napa staff
 members. Notwithstanding this failure to treat, Napa's
 doctors recommended that this forensic patient be
 conditionally released to the community, which the court-
 appointed expert described as a complete lapse in
 professional judgment. 

• The State's regulatory agency reviewed patient records in
 late 2002 and concluded that Napa fails to assess and plan


- 18 ­

interventions for those patients with a history of
 assaultive behavior until after those patients have
 assaulted someone at the facility.

D. DISCHARGE PLANNING AND PLACEMENT IN THE MOST INTEGRATED
 SETTING

Napa fails to comply with the requirement of the ADA and its
 implementing regulations that patients be placed in the most
 integrated, appropriate setting consistent with the patient's
 needs and the terms of any court-ordered confinement. See
 Americans with Disabilities Act, 42 U.S.C. § 12131, which states: 

no qualified individual with a disability shall, by
 reason of such disability, be excluded from
 participation in or be denied the benefits of the
 services, programs, or activities of a public entity,
 or be subjected to discrimination by any such entity.

See also ADA implementing regulations, 28 C.F.R. § 35.130(d) (“A
 public entity shall administer services, programs, and activities
 in the most integrated setting appropriate to the needs of
 qualified individuals with disabilities”); Olmstead v. L.C., 
 527 U.S. 581 (1999); President George W. Bush’s New Freedom
 Initiative, “Community-Based Alternatives for Individuals with
 Disabilities,” Exec. Order No. 13217, 66 Fed. Reg. 33155 
 (June 18, 2001)(the President emphasized that unjustified
 isolation or segregation of qualified individuals with
 disabilities in institutions is a form of prohibited
 discrimination, that the United States is committed to community-
 based alternatives for individuals with disabilities, and that
 the United States seeks to ensure that America’s community-based
 programs effectively foster independence and participation in the
 community for Americans with disabilities).

We have received credible allegations that patients who seek
 to be discharged into community placements are retaliated against
 by Napa staff. According to a patient’s family member, a patient
 was placed on psychotropic medication in late 2002 in retaliation
 for writing letters to the court requesting a discharge hearing. 
 The prescribing doctor reportedly told him that he would not stop
 giving him the medication until he stopped writing the letters. 
 Another patient alleged that she was retaliated against for
 hiring an attorney to seek her release. She alleged that she
 received excessive dosages of medication and was awakened every


- 19 ­

30 minutes at night to deprive her of sleep, until she stopped
 seeking her release. Two other sources stated that patients were
 given large doses of psychotropic drugs before any court
 appearance to inhibit their release from Napa. In addition, in
 November 2001, a staff member alleged that when patients were
 ready for discharge, supervisors instructed the medical staff to
 alter notations in patients’ records to indicate that patients
 were not ready to be discharged. 

Napa also fails to provide sufficient substance abuse
 programs to meet patient needs, even though these are a
 prerequisite to participation in the "conditional release"
 program.9 A patient’s failure to complete the program leads Napa
 to file a petition for an extension of time of commitment. 
 Finally, multiple credible sources state that patients receive
 little or no treatment or interventions to prepare them for
 discharge; discharge planning for patients is essentially "do it
 yourself." 

III. MINIMUM REMEDIAL MEASURES

Because the State has denied us timely access to Napa, we
 are not able to provide remedial measures with the same
 specificity as we provided in our letters dated May 21, 2003 and
 February 19, 2004, regarding Metropolitan State Hospital. 
 However, because the deficiencies at Napa generally mirror the
 deficiencies at Metropolitan, the specific remedies outlined in
 the letters regarding Metropolitan are illustrative of those that
 should be implemented at Napa. To remedy the deficiencies
 discussed above and to protect the constitutional and federal
 statutory rights of the patients at Napa, the State should, at a
 minimum, promptly implement the remedial measures set forth
 below.

A. Protection From Harm

1. To remedy deficiencies that result in excessive patient-on-
 patient assaults, patient suicides, and trafficking in
 contraband, including illegal street drugs, the State must: 

a. Ensure that Napa provide its patients with adequate,
 integrated treatment planning consistent with generally


9

In California, conditional release is similar to parole


for forensic patients. 


- 20 ­

accepted professional standards of care. In
 particular, Napa should:

(1) Develop and implement policies and procedures
 regarding the development of treatment plans
 consistent with generally accepted standards of
 care.

(2) Revise treatment plans as appropriate, based on
 significant developments in patients' conditions,
 including patients' progress, or lack thereof, as
 determined by the scheduled monitoring of
 identified criteria or target variables.

b. Ensure Napa provides its patients with accurate,
 complete, and timely assessments, consistent with
 generally accepted professional standards of care;
 these assessments should drive treatment interventions.

c. Ensure that Napa reviews, revises, as appropriate, and
 implements comprehensive, consistent incident
 management policies and procedures consistent with
 generally accepted professional standards. At a
 minimum, revised policies and procedures shall provide
 clear guidance regarding reporting requirements and the
 categorization of incidents, and address investigation
 of all serious incidents.

d. Ensure that Napa develops and implements a
 comprehensive quality improvement system consistent
 with generally accepted professional standards of care.

2. To remedy deficiencies that result in excessive and
 inappropriate use of seclusion, restraint and PRN
 medications, the State must: 

a. Ensure that seclusion, restraints, and PRN psychotropic
 medications are used at Napa in accordance with
 generally accepted professional standards of care.

b. Ensure that restraints, seclusion, and PRN medications
 are used in a reliably-documented manner and only when
 persons pose an immediate safety threat to themselves
 or others, after a hierarchy of less restrictive
 measures has been considered and/or exhausted, and are


- 21 ­

terminated once the person is no longer an imminent
 danger to himself or others. 

c. Ensure that seclusion, restraints and PRN medications
 are not used in the absence of, or as an alternative
 to, active treatment, as punishment, or for the
 convenience of staff.

d. Ensure that the patient's treatment team, in a
 clinically-justifiable manner, timely reviews the use
 of such interventions, and determines whether to modify
 the patient's treatment plan, and implements the
 revised plan, as appropriate.

3. To remedy deficiencies that result in an unsafe physical
 environment, the State must:

a. Ensure that Napa provides its patients with a safe and
 humane environment and protect them from harm. At a
 minimum, Napa shall conduct a thorough review of all
 units to identify any potential environmental safety
 hazards and develop and implement a plan to remedy any
 identified issues.

B. Medical, Nursing, Dental and Psychiatric Care

1. Napa should provide adequate preventative, routine,
 specialized, and emergency medical services on a timely
 basis, in accordance with generally accepted professional
 standards of care. 

2. Napa should provide nursing and unit-based services to its
 patients consistent with generally accepted professional
 standards of care. Such services should result in Napa's
 patients receiving individualized services, supports, and
 therapeutic interventions, consistent with their treatment
 plans. 

3. Napa should provide adequate psychiatric supports and
 services for the treatment of the severely and persistently
 mentally ill population of adults that it serves in
 accordance with generally accepted professional standards of
 care. At a minimum, the State must ensure that:

a. Napa develops diagnostic practices, guided by current,
 generally accepted professional criteria, for reliably


- 22 ­

reaching the most accurate psychiatric diagnoses for
 each patient.

b. Napa reviews and revises, as appropriate, psychiatric
 assessments of all patients, providing clinically
 justifiable current diagnoses for each patient;
 modifies treatment and medication regimens, as
 appropriate, considering factors such as the patient's
 response to treatment, significant developments in the
 patient's condition, and changing patient needs; and
 ensures that each patient's psychiatric assessments,
 diagnoses, and medications are collectively justified
 in a generally accepted professional manner. 

c. Napa's patients receive pharmacy services consistent
 with generally accepted professional standards of care.

4. Napa should provide its patients with routine and emergency
 dental care and treatment on a timely basis, consistent with
 generally accepted professional standards of care.

5. Napa should implement adequate infection control procedures
 to prevent the spread of infections or communicable
 diseases.

6. Napa should provide its patients with physical and
 occupational therapy consistent with generally accepted
 professional standards of care.

7. Napa should ensure that its patients receive adequate
 dietary services, consistent with generally accepted
 professional standards of care.

C. Psychology and Treatment Planning

1. Napa should provide psychological supports and services
 adequate to treat the functional and behavioral needs of its
 adult patients according to generally accepted professional
 standards of care.

D. Discharge Planning and Placement in the Most Integrated
 Setting

1. Within the limitations of court-imposed confinement, the
 State should pursue actively the appropriate discharge of 


- 23 ­

patients and ensure that they are provided services in the
 most integrated, appropriate setting that is consistent with
 patients' needs.

I invite the State to discuss with us the remedial
 recommendations, with the goal of remedying the identified
 deficiencies without resort to litigation. In the event that we
 are unable to reach a resolution regarding our concerns, the
 Attorney General is empowered to institute a lawsuit pursuant to
 CRIPA to correct deficiencies of the kind identified in this
 letter, 49 days after appropriate officials have been notified of
 them. 42 U.S.C. § 1997b(a)(1).

We would prefer, however, to resolve this matter by working
 cooperatively with you. We have every confidence that we will be
 able to do so in this case. The lawyers assigned to this matter
 will contact your attorneys to discuss this matter in further
 detail. If you have any questions regarding this letter, please
 call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s
 Special Litigation Section, at (202) 514-0195. 

Sincerely,

/s/ Bradley J. Schlozman
Bradley J. Schlozman
 Acting Assistant Attorney General

cc: The Honorable Bill Lockyer
 Attorney General 
 State of California

Stephen W. Mayberg, Ph.D.
 Director
 California Department of Mental Health

Mr. Dave Graziani
 Executive Director
 Napa State Hospital

Kevin V. Ryan, Esq. 
 United States Attorney
 Northern District of California


 
 1 WAN J. KIM
 Assistant Attorney General

2 SHANETTA Y. CUTLAR (CA Bar No. 169849)
 Chief, Special Litigation Section

3 BENJAMIN O. TAYLOE, JR. (DC Bar No. 422910)
 LEE R. SELTMAN (CA Bar No. 168857)

4 MARY R. BOHAN (DC Bar No. 420628)
 WILLIAM G. MADDOX (DC Bar No. 000020540)

5 JACQUELINE CUNCANNAN (DC Bar No. 462985)
 MATTHEW J. DONNELLY (IL Bar No. 6281308)

6 ANITA C. SNYDER (NY Bar No. 3910494)
 Trial Attorneys

7 United States Department of Justice
 Civil Rights Division

8 Special Litigation Section
 950 Pennsylvania Avenue, N.W.

9 Washington D.C. 20035
 202) 514-6255

10
DEBRA W. YANG
 11 United States Attorney

LEON W. WEIDMAN
 12 Assistant United States Attorney

Chief, Civil Division
 13 GARY L. PLESSMAN

Assistant United States Attorney
 14 Chief, Civil Fraud Section

HOWARD DANIELS (CA Bar No. 081764)
 15 Assistant United States Attorney

300 North Los Angeles Street
 16 Federal Building, Room 7516

Los Angeles, CA 90012
 17 213) 894-4024


18 Attorneys for the United States of America


19

UNITED STATES DISTRICT COURT

20

FOR THE CENTRAL DISTRICT OF CALIFORNIA

21

WESTERN DIVISION

22 UNITED STATES OF AMERICA,

)

Plaintiff,

)

23

)

vs.

)

24

)

STATE OF CALIFORNIA; THE

)

25 HONORABLE ARNOLD SCHWARZENEGGER, )

Governor of the State of

)

26 California, in his official

)

capacity only; STEPHEN W. MAYBERG, )

27 Director of the California

)

Department of Mental Health, in )

28 his official capacity only;

)

CASE NO. ______ CONSENT JUDGMENT

1 SHARON SMITH NEVINS, Executive

)

Director of Metropolitan

)

2 State Hospital, in her

)

official capacity only; and DAVE )

3 GRAZIANI, Executive Director of )

Napa State Hospital, in his

)

4 official capacity only,

)

Defendants.

)

5

)

6

Simultaneously herewith, Plaintiff, the United States of

7 America filed a Complaint under the provisions of 42 U.S.C.

8 § 1997 against the Defendants, seeking to remedy an alleged

9 pattern or practice of conduct that was alleged to deprive

10 patients of Metropolitan State Hospital, in Norwalk, California,

11 and Napa State Hospital, in Napa, California (collectively, and

12 including any facility that supplements or replaces them, the

13 "State Hospitals") of rights, privileges, and immunities secured

14 or protected by the Constitution or laws of the United States.

15 On the same date, the Parties in this matter filed a Stipulation

16 for Consent Judgment and Agreement ("Stipulation").

17

Noting the general principle that settlements are to be

18 encouraged, particularly settlements between governmental

19 entities, and having considered the Stipulation and the terms of

20 the measures, set forth herein, that the Defendants agree to

21 undertake to improve conditions at the State Hospitals, it is

22 ORDERED, ADJUDGED AND DECREED that pursuant to the Stipulation,

23 and good and reasonable cause appearing therefore, Judgment shall

24 be entered in this matter pursuant to the following terms and

25 conditions:

26

27

28

2


1

PART I


2

ENHANCEMENT PLAN


3 -----------------------------------------------------------------

4

Table of Contents

5

6 A. Definitions . . . . . . . . . . . . . . . . . . . . . - 5 
­

7

1. Effective Date . . . . . . . . . . . . . . . - 5 
­

8

2. Consistent With Generally Accepted Professional

9

Standards of Care . . . . . . . . . . . . . - 5 ­

10 B. Introduction . . . . . . . . . . . . . . . . . . . . . - 5 
­

11 C. Integrated Therapeutic and Rehabilitation Services

12

Planning . . . . . . . . . . . . . . . . . . . . . . - 6 ­

13

1. Interdisciplinary Teams . . . . . . . . . . - 6 
­

14

2. Integrated Therapeutic and Rehabilitation Service

15

Planning . . . . . . . . . . . . . . . . . . - 8 ­

16 D. Integrated Assessments . . . . . . . . . . . . . . . - 19 
­

17

1. Psychiatric Assessments and Diagnoses . . - 20 ­

18

2. Psychological Assessments . . . . . . . . - 24 
­

19

3. Nursing Assessments . . . . . . . . . . . - 28 
­

20

4. Rehabilitation Therapy Assessments . . . . - 30 ­

21

5. Nutrition Assessments . . . . . . . . . . - 31 
­

22

6. Social History Assessments . . . . . . . . - 33 
­

23

7. Court Assessments . . . . . . . . . . . . - 34 
­

24 E. Discharge Planning and Community Integration . . . . - 38 ­

25 F. Specific Therapeutic and Rehabilitation Services . . - 40 ­

26

1. Psychiatric Services . . . . . . . . . . . - 40 
­

27

2. Psychological Services . . . . . . . . . . - 45 
­

28

3


1

3. Nursing Services . . . . . . . . . . . . . - 49 
­

2

4. Rehabilitation Therapy Services . . . . . - 52 ­

3

5. Nutrition Services . . . . . . . . . . . . - 53 
­

4

6. Pharmacy Services . . . . . . . . . . . . - 55 
­

5

7. General Medical Services . . . . . . . . . - 55 
­

6

8. Infection Control . . . . . . . . . . . . - 57 
­

7

9. Dental Services . . . . . . . . . . . . . - 58 
­

8

10. Special Education . . . . . . . . . . . . - 59 
­

9 G. Documentation . . . . . . . . . . . . . . . . . . . - 61 
­

10 H. Restraints, Seclusion, and PRN and Stat Medications - 61 ­

11 I. Protection From Harm . . . . . . . . . . . . . . . . - 65 
­

12

1. Incident Management . . . . . . . . . . . - 65 
­

13

2. Performance Improvement . . . . . . . . . - 72 
­

14

3. Environmental Conditions . . . . . . . . . - 74 
­

15 J. First Amendment and Due Process . . . . . . . . . . - 75 
­

16 -----------------------------------------------------------------

17

18

19

20

21

22

23

24

25

26

27

28

4


1 A. Definitions

2

1. Effective Date

3

The Effective Date will be considered the first day of

4

the month following the date of execution of the agreement

5

by all parties. Unless otherwise specified, implementation

6

of each provision of this Plan shall begin no later than 12

7

months after the Effective Date.

8

2. Consistent With Generally Accepted Professional

9

Standards of Care

10

A decision by a qualified professional that is

11

substantially aligned with contemporary, accepted

12

professional judgment, practice, or standards as to

13

demonstrate that the person responsible based the decision

14

on such accepted professional judgment.

15 B. Introduction

16

Each State Hospital shall use a Recovery philosophy of care

17 and a Psychiatric Rehabilitation model of service delivery.

18 Therapeutic and rehabilitative services provided by each State

19 Hospital shall be based on evidence-based practices and

20 practice-based evidence, shall be age-appropriate, and shall be

21 designed to: strengthen and support individuals' recovery,

22 rehabilitation, and habilitation; enable individuals to grow and

23 develop in ways benefitting their mental health, physical health,

24 and well being; and ensure individuals' reasonable safety,

25 security, and freedom from undue bodily restraint. Relationships

26 between each State Hospital’s staff and the individuals whom they

27 serve shall be positive, therapeutic, and respectful.

28

5


1

Each individual served by each State Hospital shall be

2 encouraged to participate in identifying his or her needs and

3 goals, and in selecting appropriate treatment options.

4 Therapeutic and rehabilitation services shall be designed to

5 address each individual's needs and to assist individuals in

6 meeting their specific recovery and wellness goals, consistent

7 with generally accepted professional standards of care. Each

8 State Hospital shall ensure clinical and administrative

9 oversight, education, and support of its staff in planning and

10 providing care and treatment consistent with these standards.

11 C. Integrated Therapeutic and Rehabilitation Services Planning

12

Each State Hospital shall provide coordinated,

13 comprehensive, individualized protections, services, supports,

14 and treatments (collectively "therapeutic and rehabilitation

15 services") for the individuals it serves, consistent with

16 generally accepted professional standards of care. In addition

17 to implementing the therapeutic and rehabilitation planning

18 provisions set forth below, each State Hospital shall establish

19 and implement standards, policies, and practices to ensure that

20 therapeutic and rehabilitation service determinations are

21 consistently made by an interdisciplinary team through integrated

22 therapeutic and rehabilitation service planning and embodied in a

23 single, integrated therapeutic and rehabilitation service plan.

24

1. Interdisciplinary Teams

25

The interdisciplinary team's membership shall be

26

dictated by the particular needs and strengths of the

27

individual in the team's care. At a minimum, each State

28

6


1

Hospital shall ensure that the team shall:

2

a. Have as its primary objective the provision of

3

individualized, integrated therapeutic and

4

rehabilitation services that optimize the

5

individual's recovery and ability to sustain

6

himself/herself in the most integrated,

7

appropriate setting based on the individual's

8

strengths and functional and legal status and

9

support the individual's ability to exercise

10

his/her liberty interests, including the interests

11

of self determination and independence;

12

b. Be led by a clinical professional who is involved

13

in the care of the individual;

14

c. Function in an interdisciplinary fashion;

15

d. Assume primary responsibility for the individual's

16

therapeutic and rehabilitation services, and

17

ensure the provision of competent, necessary, and

18

appropriate psychiatric and medical care;

19

e. Ensure that each member of the team participates

20

appropriately, by competently and knowledgeably

21

assessing the individual on an ongoing basis and

22

by developing, monitoring, and, as necessary,

23

revising the therapeutic and rehabilitation

24

services;

25

f. Ensure that assessment results and, as clinically

26

relevant, consultation results, are communicated

27

to the team members, along with the implications

28

7


1

of those results for diagnosis, therapy and

2

rehabilitation by no later than the next review;

3

g. Be responsible for the scheduling and coordination

4

of assessments and team meetings, the drafting of

5

integrated treatment plans, and the scheduling and

6

coordination of necessary progress reviews;

7

h. Consist of a stable core of members, including at

8

least the individual served; the treating

9

psychiatrist; the treating psychologist; the

10

treating rehabilitation therapist; the treating

11

social worker; the registered nurse and

12

psychiatric technician who know the individual

13

best; one of the individual's teachers (for

14

school-age individuals); and, as appropriate, the

15

individual's family, guardian, advocates,

16

attorneys, and the pharmacist and other staff;

17

i. Not include any core treatment team members with a

18

case load exceeding 1:15 in admission teams (new

19

admissions of 90 days or less) and, on average,

20

1:25 in all other teams at any point in time; and

21

j. Not include staff that is not verifiably competent

22

in the development and implementation of

23

interdisciplinary treatment plans.

24

2. Integrated Therapeutic and Rehabilitation Service

25

Planning.

26

Each State Hospital shall develop and implement

27

policies and protocols regarding the development of

28

therapeutic and rehabilitation service plans, referred to as

8


1

"Wellness and Recovery Plans" ("WRP") consistent with

2

generally accepted professional standards of care, to ensure

3

that:

4

a. Individuals have substantive input into the

5

therapeutic and rehabilitation service planning

6

process, including but not limited to input as to

7

mall groups and therapies appropriate to their

8

WRP.

9

b. Therapeutic and rehabilitation service planning

10

provides timely attention to the needs of each

11

individual, in particular:

12

i. initial therapeutic and rehabilitation

13

service plans (Admission Wellness and

14

Recovery Plan ("A-WRP")) are completed within

15

24 hours of admission;

16

ii. master therapeutic and rehabilitation service

17

plans (WRP) are completed within 7 days of

18

admission; and

19

iii. therapeutic and rehabilitation service plan

20

reviews are performed every 14 days during

21

the first 60 days of hospitalization and

22

every 30 days thereafter. The third monthly

23

review is a quarterly review and the 12th

24

monthly review is the annual review.

25

c. Treatment, rehabilitation, and enrichment services

26

are goal-directed, individualized, and informed by

27

a thorough knowledge of the individual's

28

9


1

psychiatric, medical, and psychosocial history and

2

previous response to such services.

3

d. Therapeutic and rehabilitation service planning is

4

based on a comprehensive case formulation for each

5

individual that emanates from interdisciplinary

6

assessments of the individual consistent with

7

generally accepted professional standards of care.

8

Specifically, the case formulation shall:

9

i. be derived from analyses of the information

10

gathered from interdisciplinary assessments,

11

including diagnosis and differential

12

diagnosis;

13

ii. include a review of: pertinent history;

14

predisposing, precipitating and perpetuating

15

factors; previous treatment history; and

16

present status;

17

iii. consider biomedical, psychosocial, and

18

psychoeducational factors, as clinically

19

appropriate, for each category in § C.2.d.ii

20

above;

21

iv. consider such factors as age, gender,

22

culture, treatment adherence, and medication

23

issues that may affect the outcomes of

24

treatment and rehabilitation interventions;

25

v. support the diagnosis by diagnostic

26

formulation, differential diagnosis, and

27

Diagnostic and Statistical Manual-IV-TR (or

28

the most current edition) checklists; and

10

1

vi. enable the interdisciplinary team to reach

2

sound determinations about each individual's

3

treatment, rehabilitation, enrichment and

4

wellness needs, the type of setting to which

5

the individual should be discharged, and the

6

changes that will be necessary to achieve

7

discharge.

8

e. The therapeutic and rehabilitation service plan

9

specifies the individual's focus of

10

hospitalization (goals), assessed needs

11

(objectives), and how the staff will assist the

12

individual to achieve his or her goals/objectives

13

(interventions).

14

f. Therapeutic and rehabilitation service planning is

15

driven by individualized needs, is strengths-based

16

(i.e., builds on an individual's current

17

strengths), addresses the individual's motivation

18

for engaging in wellness activities, and leads to

19

improvement in the individual's mental health,

20

physical health, and well being, consistent with

21

generally accepted professional standards of care.

22

Specifically, the interdisciplinary team shall:

23

i. develop and prioritize reasonable and

24

attainable goals/objectives (e.g., at the

25

level of each individual's functioning) that

26

build on the individual's strengths and

27

address the individual's identified needs

28

11


1

and, if any identified need is not addressed,

2

provide a rationale for not addressing the

3

need;

4

ii. ensure that the objectives/interventions

5

address treatment (e.g., for a disease or

6

disorder), rehabilitation (e.g.,

7

skills/supports, motivation and readiness),

8

and enrichment (e.g., quality of life

9

activities);

10

iii. write the objectives in behavioral,


11

observable, and/or measurable terms;


12

iv. include all objectives from the individual's

13

current stage of change, or readiness for

14

rehabilitation, to the maintenance stage for

15

each focus of hospitalization, as clinically

16

appropriate;

17

v. ensure that there are interventions that

18

relate to each objective, specifying who will

19

do what, within what time frame, to assist

20

the individual to meet his/her needs as

21

specified in the objective;

22

vi. implement interventions appropriately

23

throughout the individual's day, with a

24

minimum of 20 hours of active treatment per

25

week. Individual or group therapy included

26

in the individual’s WRP shall be provided as

27

part of the 20 hours of active treatment per

28

week;

12

1

vii. maximize, consistent with the individual's

2

treatment needs and legal status,

3

opportunities for treatment, programming,

4

schooling, and other activities in the most

5

appropriate integrated, non-institutional

6

settings, as clinically appropriate; and

7

viii. ensure that each therapeutic and

8

rehabilitation service plan integrates and

9

coordinates all services, supports, and

10

treatments provided by or through the State

11

Hospital for the individual in a manner

12

specifically responsive to the plan's

13

therapeutic and rehabilitation goals. This

14

requirement includes, but is not limited to,

15

ensuring that individuals are assigned to

16

mall groups that link directly to the

17

objectives of the individual’s treatment plan

18

and needs;

19

g. Therapeutic and rehabilitation service plans are

20

revised as appropriate to ensure that planning is

21

based on the individual's progress, or lack

22

thereof, as determined by the scheduled monitoring

23

of identified criteria or target variables,

24

consistent with generally accepted professional

25

standards of care. Specifically, the

26

interdisciplinary team shall:

27

i. revise the focus of hospitalization

28

objectives, as needed, to reflect the

13

1

individual's changing needs and develop new

2

interventions to facilitate attainment of new

3

objectives when old objectives are achieved

4

or when the individual fails to make progress

5

toward achieving these objectives;

6

ii. review the focus of hospitalization, needs,

7

objectives, and interventions more frequently

8

if there are changes in the individual's

9

functional status or risk factors (i.e.,

10

behavioral, medical, and/or psychiatric risk

11

factors);

12

iii. ensure that the review process includes an

13

assessment of progress related to discharge

14

to the most integrated setting appropriate to

15

meet the individual's assessed needs,

16

consistent with his/her legal status; and

17

iv. base progress reviews and revision


18

recommendations on data collected as 


19

specified in the therapeutic and


20

rehabilitation service plan.


21

h. Individuals in need of positive behavior supports

22

in school or other settings receive such supports

23

consistent with generally accepted professional

24

standards of care.

25

i. Adequate active psychosocial rehabilitation is

26

provided, consistent with generally accepted

27

28

14


1

professional standards of care, that:

2

i. is based on the individual's assessed needs

3

and is directed toward increasing the

4

individual's ability to engage in more

5

independent life functions;

6

ii. has documented objectives, measurable

7

outcomes, and standardized methodology;

8

iii. is aligned with the individual's objectives

9

that are identified in the individual's WRP;

10

iv. utilizes the individual's strengths,

11

preferences, and interests;

12

v. focuses on the individual's vulnerabilities

13

to mental illness, substance abuse, and

14

readmission due to relapse, where

15

appropriate;

16

vi. is provided in a manner consistent with each

17

individual's cognitive strengths and

18

limitations;

19

vii. provides progress reports for review by the

20

Interdisciplinary Team as part of the WRP

21

review process;

22

viii. is provided 5 days a week, for a minimum of 4

23

hours a day (i.e., 2 hours in the morning and

24

2 hours in the afternoon each weekday), for

25

each individual or 2 hours a day when the

26

individual is in school, except days falling

27

on state holidays;

28

15

1

ix. is provided to individuals in bed-bound

2

status in a manner and for a period that is

3

commensurate with their medical status;

4

x. routinely takes place as scheduled;

5

xi. includes, in the evenings and weekends,

6

additional activities that enhance the

7

individual's quality of life; and

8

xii. is consistently reinforced by staff on the

9

therapeutic milieu, including living units.

10

j. Adequate individualized and group exercise and

11

recreational options are provided, consistent with

12

generally accepted professional standards of care.

13

k. Individuals who have an assessed need for family

14

therapy services receive such services in their

15

primary language, as feasible, consistent with

16

generally accepted professional standards of care

17

and that these services, and their effectiveness

18

for addressing the indicated problem, are

19

comprehensively documented in each individual's

20

chart.

21

l. Each individual's therapeutic and rehabilitation

22

service plan identifies general medical diagnoses,

23

the treatments to be employed, the related symptoms

24

to be monitored by nursing staff (i.e., registered

25

nurses ("RNs"), licensed vocational nurses

26

("LVNs"), and psychiatric technicians) and the

27

means and frequency by which such staff shall

28

16


1

monitor such symptoms, consistent with generally

2

accepted professional standards of care.

3

m. Children and adolescents receive, consistent with

4

generally accepted professional standards of care:

5

i. therapy relating to traumatic family and

6

other traumatic experiences, as clinically

7

indicated; and

8

ii. reasonable, clinically appropriate

9

opportunities to involve their families in

10

treatment and treatment decisions.

11

n. Policies and procedures are developed and

12

implemented consistent with generally accepted

13

professional standards of care to ensure

14

appropriate screening for substance abuse, as

15

clinically indicated.

16

o. Individuals who require treatment for substance

17

abuse are provided appropriate therapeutic and

18

rehabilitation services consistent with generally

19

accepted professional standards of care.

20

p. Group facilitators and therapists providing

21

therapeutic and rehabilitation services (in groups

22

or individual therapy) are verifiably competent

23

regarding selection and implementation of

24

appropriate approaches and interventions to address

25

therapeutic and rehabilitation service objectives,

26

are verifiably competent in monitoring individuals'

27

responses to therapy and rehabilitation, and

28

receive regular, competent supervision.

17

1

q. Group facilitators and therapists providing

2

therapeutic and rehabilitation services in the

3

field of substance abuse should be certified

4

substance abuse counselors.

5

r. Transportation and staffing issues do not preclude

6

individuals from attending appointments.

7

s. Adequate oversight to treatment, rehabilitation,

8

and enrichment groups is provided to ensure that

9

individuals are assigned to groups that are

10

appropriate to their assessed needs, that groups

11

are provided consistently and with appropriate

12

frequency, and that issues particularly relevant

13

for this population, including the use of

14

psychotropic medications and substance abuse, are

15

appropriately addressed, consistent with generally

16

accepted professional standards of care.

17

t. Treatment, rehabilitation, and enrichment services

18

are monitored appropriately against rational,

19

operationally-defined target variables and revised

20

as appropriate in light of significant

21

developments, and the individual's progress, or

22

lack thereof.

23

u. Individuals are educated regarding the purposes of

24

their treatment, rehabilitation, and enrichment

25

services. They will be provided a copy of their

26

WRP when appropriate based on clinical judgment.

27

v. Staff educate individuals about their medications,

28

the expected results, and the potential common

18


1

and/or serious side effects of medications, and

2

staff regularly ask individuals about common and/or

3

serious side effects they may experience.

4

w. Interdisciplinary teams review, assess, and develop

5

positive clinical strategies to overcome

6

individual's barriers to participation in

7

therapeutic and rehabilitation services.

8 D. Integrated Assessments

9

Each State Hospital shall ensure that, consistent with

10 generally accepted professional standards of care, each

11 individual shall receive, promptly after admission to the State

12 Hospital, an accurate and comprehensive assessment of the

13 conditions responsible for the individual's admission, to the

14 degree possible given the obtainable information at the time of

15 admission. Thereafter, each individual shall receive an accurate

16 and comprehensive reassessment of the reasons for the

17 individual's continued hospitalization whenever there has been a

18 significant change in the individual's status, or a lack of

19 expected improvement resulting from clinically indicated

20 treatment. The individual's interdisciplinary team shall be

21 responsible for investigating the past and present medical,

22 nursing, psychiatric, and psychosocial factors bearing on the

23 individual's condition, and, when necessary, for revising

24 assessments and therapeutic and rehabilitation plans in

25 accordance with new information that comes to light. Each State

26 Hospital shall monitor and promptly address deficiencies in the

27 quality and timeliness of such assessments.

28

19


1

1. Psychiatric Assessments and Diagnoses

2

Each State Hospital shall provide all of the

3

individuals it serves with routine and emergency psychiatric

4

assessments and reassessments consistent with generally

5

accepted professional standards of care; and:

6

a. Each State Hospital shall use the diagnostic

7

criteria in the most current Diagnostic and

8

Statistical Manual of Mental Disorders ("DSM") for

9

reaching the most accurate psychiatric diagnoses.

10

b. Each State Hospital shall ensure that all

11

psychiatrists responsible for performing or

12

reviewing psychiatric assessments:

13

i. are certified by the American Board of

14

Psychiatry and Neurology ("ABPN") or have

15

successfully completed at least three years

16

of psychiatric residency training in a

17

Accreditation Counsel for Graduate Medical

18

Education accredited program; and

19

ii. are verifiably competent (as defined by

20

privileging at initial appointment and

21

thereafter by reprivileging for continued

22

appointment) in performing psychiatric

23

assessments consistent with the State

24

Hospital's standard diagnostic protocols.

25

c. Each State Hospital shall ensure that:

26

i. within 24 hours of an individual's admission

27

to the State Hospital, the individual

28

20

1

receives an Admission Medical Assessment that


2

includes:


3

1) a review of systems;


4

2) medical history;


5

3) physical examination;


6

4) diagnostic impressions; and


7

5) management of acute medical conditions.


8

ii. within 24 hours of an individual's admission

9

to the State Hospital, the individual

10

receives an Admission Psychiatric Evaluation

11

that includes:

12

1) psychiatric history, including a review

13

of presenting symptoms;

14

2) complete mental status examination;

15

3) admission diagnoses;

16

4) completed AIMS;

17

5) laboratory tests ordered; and

18

6) consultations ordered.

19

iii. Within 7 days of an individual's admission to

20

the State Hospital, the individual receives

21

an Integrated Psychiatric Assessment that

22

includes:

23

1) psychiatric history, including a review

24

of present and past history;

25

2) psychosocial history;

26

3) mental status examination;

27

4) strengths;

28

5) psychiatric risk factors;

21

1

6) diagnostic formulation;


2

7) differential diagnosis;


3

8) current psychiatric diagnoses;


4

9) psychopharmacology treatment plan; and


5

10) management of identified risks.


6

d. Each State Hospital shall ensure that:

7

i. clinically justifiable diagnoses are provided

8

for each individual, and all diagnoses that

9

cannot be clinically justified for an

10

individual are discontinued no later than the

11

next review;

12

ii. the documented justification of the diagnoses

13

is in accord with the criteria contained in

14

the most current DSM (as per DSM-IV-TR

15

Checklist);

16

iii. differential diagnoses, "deferred," or

17

"rule-out" diagnoses, and diagnoses listed as

18

"NOS" ("Not Otherwise Specified") are timely

19

addressed (i.e., within 60 days), through

20

clinically appropriate assessments, and

21

resolved in a clinically justifiable manner;

22

and

23

iv. "no diagnosis" is clinically justified and

24

documented.

25

e. Each State Hospital shall ensure that psychiatric

26

reassessments are conducted at a frequency that

27

reflects the individual's clinical needs. At a

28

minimum the reassessments are completed weekly for

22


1

the first 60 days on the admissions units and

2

monthly on other units.

3

f. Each State Hospital shall ensure that psychiatric

4

reassessments are documented in progress notes that

5

address the following:

6

i. significant developments in the individual's

7

clinical status and appropriate psychiatric

8

follow up;

9

ii. timely and justifiable updates of diagnosis

10

and treatment, as clinically appropriate;

11

iii. analyses of risks and benefits of chosen

12

treatment interventions;

13

iv. assessment of, and attention to, high-risk

14

behaviors (e.g., assaults, self-harm, falls)

15

including appropriate and timely monitoring

16

of individuals and interventions to reduce

17

risks;

18

v. responses to and side effects of prescribed

19

medications, with particular attention to

20

risks associated with the use of

21

benzodiazepines, anticholinergic medications,

22

polypharmacy (use of multiple drugs to

23

address the same condition), and conventional

24

and atypical antipsychotic medications;

25

vi. timely review of the use of "pro re nata" or

26

"as-needed" ("PRN") and "Stat" (i.e.,

27

emergency psychoactive) medications and

28

23


1

adjustment of regular treatment, as

2

indicated, based on such use; and

3

vii. verification, in a clinically justifiable

4

manner, that psychiatric and behavioral

5

treatments are properly integrated. The

6

psychiatrist shall review the positive

7

behavior support plan prior to implementation

8

to ensure consistency with psychiatric

9

formulation, document evidence of regular

10

exchange of data or information with

11

psychologists regarding differentiation of

12

learned behaviors and behaviors targeted for

13

psychopharmacological treatments, and

14

document evidence of integration of

15

treatments.

16

g. When individuals are transferred between treatment

17

teams, a psychiatric transfer note shall be

18

completed addressing: review of medical and

19

psychiatric course of hospitalization, including

20

medication trials; current target symptoms;

21

psychiatric risk assessment; current barriers to

22

discharge; and anticipated benefits of transfer.

23

2. Psychological Assessments

24

a. Each State Hospital shall develop and implement

25

standard psychological assessment protocols,

26

consistent with generally accepted professional

27

standards of care. These protocols shall address,

28

at a minimum, diagnostic neuropsychological

24


1

assessments, cognitive assessments, and

2

I.Q./achievement assessments, to guide

3

psychoeducational (e.g., instruction regarding the

4

illness or disorder, and the purpose or objectives

5

of treatments for the same, including medications),

6

educational, rehabilitation, and habilitation

7

interventions, and behavioral assessments

8

(including functional assessment of behavior in

9

schools and other settings), and personality

10

assessments, to inform positive behavior support

11

plans and psychiatric diagnoses.

12

b. Each State Hospital shall require the completion of

13

cognitive and academic assessments within 30 days

14

of admission of all school-age and other

15

individuals, as required by law, unless comparable

16

testing has been performed within one year of

17

admission and is available to the interdisciplinary

18

team.

19

c. Each State Hospital shall ensure that all

20

clinicians responsible for performing or reviewing

21

psychological assessments and evaluations are

22

verifiably competent in the methodology required to

23

conduct the assessment.

24

d. Each State Hospital shall ensure that all

25

psychological assessments, consistent with

26

generally accepted professional standards of care,

27

shall:

28

25


1

i. expressly state the clinical question(s) for

2

the assessment;

3

ii. include findings specifically addressing the

4

clinical question(s), but not limited to

5

diagnoses and treatment recommendations;

6

iii. specify whether the individual would benefit

7

from individual therapy or group therapy in

8

addition to attendance at mall groups;

9

iv. be based on current, accurate, and complete

10

data;

11

v. determine whether behavioral supports or

12

interventions (e.g., behavior guidelines or

13

mini-behavior plans) are warranted or whether

14

a full positive behavior support plan is

15

required;

16

vi. include the implications of the findings for

17

interventions;

18

vii. identify any unresolved issues encompassed by

19

the assessment and, where appropriate,

20

specify further observations, records review,

21

interviews, or re-evaluations that should be

22

performed or considered to resolve such

23

issues; and

24

viii. Use assessment tools and techniques

25

appropriate for the individuals assessed and

26

in accordance with the American Psychological

27

Association Ethical Standards and Guidelines

28

for testing.

26

1

e. Each State Hospital shall ensure that all

2

psychological assessments of all individuals

3

residing at the State Hospital who were admitted

4

there before the Effective Date hereof shall be

5

reviewed by qualified clinicians with demonstrated

6

current competency in psychological testing and, as

7

indicated, revised to meet the criteria in

8

§ D.2.a & d, above.

9

f. Each State Hospital shall ensure that all

10

appropriate psychological assessments shall be

11

provided in a timely manner whenever clinically

12

indicated, consistent with generally accepted

13

professional standards of care, including whenever

14

there has been a significant change in condition, a

15

lack of expected improvement resulting from

16

treatment, or an individual's behavior poses a

17

significant barrier to treatment, therapeutic

18

programming, safety to self or others, or school

19

programming, and, in particular:

20

i. before an individual's therapeutic and

21

rehabilitation service plan is developed, a

22

psychological assessment of the individual

23

shall be performed that will:

24

1) address the nature of the individual's

25

impairments to inform the psychiatric

26

diagnosis; and

27

2) provide an accurate evaluation of the

28

individual's psychological functioning

27

1

to inform the therapeutic and

2

rehabilitation service planning process;

3

ii. if behavioral interventions are indicated, a

4

structural and functional assessment shall be

5

performed, consistent with generally accepted

6

professional standards of care, by a

7

professional having demonstrated competency

8

in positive behavior supports; and

9

iii. additional psychological assessments shall be

10

performed, as appropriate, where clinical

11

information is otherwise insufficient, and to

12

address unresolved clinical or diagnostic

13

questions, including differential diagnosis,

14

"rule-out," "deferred," "no-diagnosis" and

15

"NOS" diagnoses.

16

g. For individuals whose primary language is not

17

English, each State Hospital shall endeavor to

18

assess them in their own language; if this is not

19

possible, each State Hospital will develop and

20

implement a plan to meet the individual’s

21

assessment needs, including, but not limited to the

22

use of interpreters in the individual's primary

23

language and dialect, if feasible.

24

3. Nursing Assessments

25

a. Each State Hospital shall develop standard nursing

26

assessment protocols, consistent with generally

27

accepted professional standards of care. These

28

protocols shall address, at a minimum:

28

1

i. a description of presenting conditions;

2

ii. current prescribed medications;

3

iii. vital signs;

4

iv. allergies;

5

v. pain;

6

vi. use of assistive devices;

7

vii. activities of daily living;

8

viii. immediate alerts (e.g., escape risk, physical

9

assault, choking risk, suicidal risk,

10

homicide risk, fall risk, sexual assault,

11

self-injurious behavior, arson, or fire

12

setting); and

13

ix. conditions needing immediate nursing


14

interventions.


15

b. Nursing may use a systems model (e.g., Johnson

16

Behavioral System Model) for the nursing

17

evaluation.

18

c. Each State Hospital shall ensure that all nurses

19

responsible for performing or reviewing nursing

20

assessments are verifiably competent in performing

21

the assessments for which they are responsible.

22

All nurses who are employed at Metropolitan State

23

Hospital shall have graduated from an approved

24

nursing program, shall have passed the NCLEX-RN and

25

shall have a license to practice in the state of

26

California.

27

28

29


1

d. Each State Hospital shall ensure that nursing

2

assessments are undertaken on a timely basis, and

3

in particular, that:

4

i. initial nursing assessments are completed

5

within 24 hours of the individual's

6

admission;

7

ii. Further nursing assessments are completed and

8

integrated into the individual's therapeutic

9

and rehabilitation service plan within 7 days

10

of admission; and

11

iii. nursing assessments are reviewed every 14

12

days during the first 60 days of admission

13

and every 30 days thereafter and updated as

14

appropriate. The 3rd monthly review shall be

15

a quarterly review and the 12th monthly

16

review shall be the annual review.

17

4. Rehabilitation Therapy Assessments

18

a. Each State Hospital shall develop standard

19

rehabilitation therapy assessment protocols,

20

consistent with generally accepted professional

21

standards of care, for satisfying the necessary

22

components of a comprehensive rehabilitation

23

therapy assessment.

24

b. Each State Hospital shall ensure that each

25

individual served shall have a rehabilitation

26

assessment that, consistent with generally accepted

27

professional standards of care:

28

30

1

i. is accurate and comprehensive as to the

2

individual's functional abilities;

3

ii. identifies the individual's current

4

functional status and the skills and supports

5

needed to facilitate transfer to the next

6

level of care; and

7

iii. identifies the individual's life goals,

8

strengths, and motivation for engaging in

9

wellness activities.

10

c. Each State Hospital shall ensure that all

11

clinicians responsible for performing or reviewing

12

rehabilitation therapy assessments are verifiably

13

competent in performing the assessments for which

14

they are responsible.

15

d. Each State Hospital shall ensure that all

16

rehabilitation therapy assessments of all

17

individuals who were admitted to the State Hospital

18

before the Effective Date hereof shall be reviewed

19

by qualified clinicians and, as indicated, revised

20

to meet the criteria in § D.4.b, above.

21

5. Nutrition Assessments

22

Each State Hospital shall provide nutrition

23

assessments, reassessments, and interventions consistent

24

with generally accepted professional standards of care. A

25

comprehensive nutrition assessment will include the

26

following:

27

a. For new admissions with high risk referral (e.g.,

28

type I diabetes mellitus, enteral/parenteral

31


1

feeding, dysphagia/recent choking episode), or upon

2

request by physician, a comprehensive Admission

3

Nutrition Assessment will be completed within 24

4

hours of notification to the dietitcian.

5

b. For new admissions directly into the

6

medical-surgical unit, a comprehensive Admission

7

Nutrition Assessment will be completed within 3

8

days of admission.

9

c. For new admissions directly into the skilled

10

nursing facility unit, a comprehensive Admission

11

Nutrition Assessment will be completed within 7

12

days of admission.

13

d. For new admissions with identified nutritional

14

triggers from Nursing Admission Assessment or

15

physician's consult (e.g., for severe food

16

allergies, tube feeding, extensive dental problems

17

or dental surgery, NPO/clear liquid diet for more

18

than three days, uncontrolled diarrhea/vomiting

19

more than 24 hours, and MAOI, as clinically

20

indicated), a comprehensive Admission Nutrition

21

Assessment will be completed within 7 days of

22

admission.

23

e. For new admissions with therapeutic diet orders for

24

medical reasons, a comprehensive Admission

25

Nutrition Assessment will be completed within 7

26

days of admission.

27

f. For individuals with therapeutic diet orders for

28

medical reason after admission, a comprehensive

32


1

Admission Nutrition Assessment will be completed

2

within 7 days of the therapeutic diet order but no

3

later than 30 days of admission.

4

g. For all other individuals, a comprehensive

5

Admission Nutrition Assessment will be completed

6

within 30 days of admission.

7

h. Acuity level of an individual at nutritional risk

8

will be determined by Nutritional Status Type

9

("NST") which defines minimum services provided by

10

a registered dietitian.

11

i. The frequency of a comprehensive Nutrition

12

Assessment Update will be determined by the NST.

13

Updates should include, but not be limited to:

14

subjective data, weight, body-mass index ("BMI"),

15

waist circumference, appropriate weight range, diet

16

order, changes in pertinent medication, changes in

17

pertinent medical/psychiatric problems, changes in

18

nutritional problem(s), progress toward

19

goals/objectives, effectiveness of interventions,

20

changes in goals/plan, recommendations, and

21

follow-up as needed.

22

j. Every individual will be assessed annually. In

23

addition, individuals will be reassessed when there

24

is a significant change in condition.

25

6. Social History Assessments

26

Each State Hospital shall ensure that each individual

27

has a social history evaluation that, consistent with

28

generally accepted professional standards of care:

33


1

a. Is, to the extent reasonably possible, accurate,

2

current and comprehensive;

3

b. Expressly identifies factual inconsistencies among

4

sources, resolves or attempts to resolve

5

inconsistencies, and explains the rationale for the

6

resolution offered;

7

c. Is included in the 7-day integrated assessment and

8

fully documented by the 30th day of an individual's

9

admission; and

10

d. Reliably informs the individual's interdisciplinary

11

team about the individual's relevant social factors

12

and educational status.

13

7. Court Assessments

14

a. Each State Hospital shall develop and implement

15

policies and procedures to ensure an

16

interdisciplinary approach to the development of

17

court submissions for individuals adjudicated "not

18

guilty by reason of insanity" ("NGI") pursuant to

19

Penal Code Section 1026, based on accurate

20

information and individualized risk assessments.

21

The forensic reports should include the following,

22

as clinically indicated:

23

i. clinical progress and achievement of

24

stabilization of signs and symptoms of mental

25

illness that were the cause, or contributing

26

factor in the commission of the crime (i.e.,

27

instant offense);

28

34

1

ii. acts of both verbal and physical aggression

2

and property destruction during the past year

3

of hospitalization and, if relevant, past

4

acts of aggression and dangerous criminal

5

behavior;

6

iii. understanding of potential for danger and

7

precursors of dangerous/criminal behavior,

8

including instant offense;

9

iv. acceptance of mental illness and

10

understanding of the need for treatment, both

11

psychosocial and biological, and the need to

12

adhere to treatment;

13

v. development of relapse prevention plan (i.e.,

14

Personal Wellness Recovery Plan or Wellness

15

Recovery Action Plan) for mental illness

16

symptoms, including the individual's

17

recognition of precursors and warning signs

18

and symptoms and precursors for dangerous

19

acts;

20

vi. willingness to achieve understanding of

21

substance abuse issues and to develop an

22

effective relapse prevention plan (as defined

23

above);

24

vii. previous community releases, if the

25

individual has had previous CONREP

26

revocations;

27

viii. social support, financial resources, family

28

conflicts, cultural marginalization, and

35


1

history of sexual and emotional abuse, if

2

applicable; and

3

ix. relevant medical issues, all self-harm

4

behaviors, risks for self harm and risk of

5

harm to others, to inform the courts and the

6

facility where the individual will be housed

7

after discharge.

8

b. Each State Hospital shall develop and implement

9

policies and procedures to ensure an

10

interdisciplinary approach to the development of

11

court submissions for individuals admitted to the

12

hospital pursuant to Penal Code Section 1370,

13

"incompetent to stand trial" ("IST"), based on

14

accurate information and individualized risk

15

assessments. Consistent with the right of an

16

individual accused of a crime to a speedy trial,

17

the focus of the IST hospitalization shall be the

18

stabilization of the symptoms of mental illness so

19

as to enable the individual to understand the legal

20

proceedings and to assist his or her attorney in

21

the preparation of the defense. The forensic

22

reports should include the following:

23

i. relevant clinical description of initial

24

presentation, if available, which caused the

25

individual to be deemed incompetent to stand

26

trial by the court;

27

ii. clinical description of the individual at the

28

time of admission to the hospital;

36


1

iii. course of hospital stay, describing any

2

progress or lack of progress, response to

3

treatment, current relevant mental status,

4

and reasoning to support the recommendation;

5

and

6

iv. all self-harm behaviors and relevant medical

7

issues, to inform the courts and the facility

8

where the individual will be housed after

9

discharge.

10

c. Each State Hospital shall establish a Forensic

11

Review Panel ("FRP") to serve as the internal body

12

that reviews and provides oversight of facility

13

practices and procedures regarding the forensic

14

status of all individuals admitted pursuant to

15

Penal Code 1026 and 1370. The FRP shall review and

16

approve all forensic court submissions by the

17

Wellness and Recovery teams and ensure that

18

individuals receive timely and adequate assessments

19

by the teams to evaluate changes in their

20

psychiatric condition, behavior and/or risk factors

21

that may warrant modifications in their forensic

22

status and/or level of restriction. The membership

23

of the FRP shall include the Director of Forensic

24

Psychiatry, Facility Director or designee, Medical

25

Director or designee, Chief of Psychology or

26

designee, Chief of Social Services or designee,

27

Chief of Nursing Services or designee, and Chief of

28

Rehabilitation Services or designee. The Director

37


1

of Forensic Psychiatry shall serve as the chair and

2

shall be a board certified forensic psychiatrist.

3

A quorum shall consist of a minimum of four FRP

4

members or their designees.

5 E. Discharge Planning and Community Integration

6

Taking into account the limitations of court-imposed

7 confinement, the State shall pursue actively the appropriate

8 discharge of individuals under the State's care at each State

9 Hospital and, subject to legal limitations on the State's control

10 of the placement process, provide services in the most

11 integrated, appropriate setting in which they reasonably can be

12 accommodated, as clinically appropriate, that is consistent with

13 each individual's needs.

14

1. Each State Hospital shall identify at the 7-day

15

therapeutic and rehabilitation service planning

16

conference, and address at all subsequent planning

17

conferences, the particular considerations for each

18

individual bearing on discharge, including:

19

a. those factors that likely would foster successful

20

discharge, including the individual's strengths,

21

preferences, and personal life goals;

22

b. the individual's level of psychosocial functioning;

23

c. any barriers preventing the individual from

24

transitioning to a more integrated environment,

25

especially difficulties raised in previously

26

unsuccessful placements; and

27

d. the skills and supports necessary to live in the

28

setting in which the individual will be placed.

38


1

2. Each State Hospital shall ensure that, beginning at the

2

time of admission and continuously throughout the

3

individual's stay, the individual is an active

4

participant in the discharge planning process, to the

5

fullest extent possible, given the individual's level

6

of functioning and legal status.

7

3. Each State Hospital shall ensure that, consistent with

8

generally accepted professional standards of care, each

9

individual has a professionally developed discharge

10

plan that is integrated within the individual's

11

therapeutic and rehabilitation service plan, that

12

addresses his or her particular discharge

13

considerations, and that includes:

14

a. Measurable interventions regarding these discharge

15

considerations;

16

b. The staff responsible for implementing the

17

interventions; and

18

c. The time frames for completion of the


19

interventions.


20

4. Each State Hospital shall provide transition supports

21

and services consistent with generally accepted

22

professional standards of care. In particular, each

23

State Hospital shall ensure that:

24

a. Individuals who have met discharge criteria are

25

discharged expeditiously, subject to the

26

availability of suitable placements; and

27

b. Individuals receive adequate assistance in

28

transitioning to the new setting.


39


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 F. 16 17 18 19 20 21 22 23 24 25 26 27 28

5. For all children and adolescents it serves, each State Hospital shall: a. Develop and implement policies and protocols that identify individuals with lengths of stay exceeding six months; and b. Establish a regular review forum, which includes senior administration staff, to assess the children and adolescents identified in § E.5.a, above, to review their treatment plans, and to create an individualized action plan for each such child or adolescent that addresses the obstacles to successful discharge to the most integrated, appropriate placement as clinically and legally indicated.
Specific Therapeutic and Rehabilitation Services 1. Psychiatric Services
a. Each State Hospital shall develop and implement policies and procedures to ensure system-wide monitoring of the safety, efficacy, and appropriateness of all psychotropic medication use, consistent with generally accepted professional standards of care. In particular, policies and procedures shall require monitoring of the use of psychotropic medications to ensure that they are: i. specifically matched to current, clinically justified diagnoses or clinical symptoms;
40


1

ii. prescribed in therapeutic amounts, as

2

dictated by the needs of the individual

3

served;

4

iii. tailored to each individual's symptoms;

5

iv. monitored for effectiveness against clearly

6

identified target variables and time frames;

7

v. monitored appropriately for side effects;

8

vi. modified based on clinical rationales;

9

vii. not inhibiting individuals from meaningfully

10

participating in treatment, rehabilitation,

11

or enrichment and educational services as a

12

result of excessive sedation; and

13

viii. properly documented.

14

b. Each State Hospital shall monitor the use of PRN

15

and Stat medications to ensure that these

16

medications are administered in a manner that is

17

clinically justified and are not used as a

18

substitute for appropriate long-term treatment of

19

the individual's condition.

20

c. Each State Hospital shall monitor the psychiatric

21

use of benzodiazepines, anticholinergics, and

22

polypharmacy to ensure clinical justification and

23

attention to associated risks.

24

d. Each State Hospital shall ensure the monitoring of

25

the metabolic and endocrine risks associated with

26

the use of new generation antipsychotic

27

medications.

28

41


1

e. Each State Hospital shall ensure regular

2

monitoring, using a validated rating instrument

3

(such as AIMS or DISCUS), of tardive dyskinesia

4

("TD"); a baseline assessment shall be performed

5

for each individual at admission with subsequent

6

monitoring of the individual every 12 months while

7

he/she is receiving antipsychotic medication, and

8

every 3 months if the test is positive, TD is

9

present, or the individual has a history of TD.

10

f. Each State Hospital shall ensure timely

11

identification, reporting, data analyses, and

12

follow up remedial action regarding all adverse

13

drug reactions ("ADR").

14

g. Each State Hospital shall ensure drug utilization

15

evaluation ("DUE") occurs in accord with

16

established, up-to-date medication guidelines that

17

shall specify indications, contraindications, and

18

screening and monitoring requirements for all

19

psychotropic medications; the guidelines shall be

20

in accord with current professional literature. A

21

verifiably competent psychopharmacology consultant

22

shall approve the guidelines and ensure adherence

23

to the guidelines.

24

h. Each State Hospital shall ensure documentation,

25

reporting, data analyses, and follow up remedial

26

action regarding actual and potential medication

27

variances ("MVR") consistent with generally

28

accepted professional standards of care.

42

1

i. Each State Hospital shall ensure tracking of

2

individual and group practitioner trends, including

3

data derived from monitoring of the use of PRNs,

4

Stat medications, benzodiazepines,

5

anticholinergics, and polypharmacy, and of ADRs,

6

DUE, and MVR consistent with generally accepted

7

professional standards of care.

8

j. Each State Hospital shall ensure feedback to the

9

practitioner and educational/corrective actions in

10

response to identified trends consistent with

11

generally accepted professional standards of care.

12

k. Each State Hospital shall ensure integration of

13

information derived from ADRs, DUE, MVR, and the

14

Pharmacy & Therapeutics, Therapeutics Review, and

15

Mortality and Morbidity Committees consistent with

16

generally accepted professional standards of care.

17

l. Each State Hospital shall ensure that all

18

physicians and clinicians are verifiably competent,

19

consistent with generally accepted professional

20

standards of care, in appropriate medication

21

management, interdisciplinary team functioning, and

22

the integration of behavioral and pharmacological

23

treatments.

24

m. Each State Hospital shall review and ensure the

25

appropriateness and safety of the medication

26

treatment, consistent with generally accepted

27

professional standards of care, for:

28

43


1

i. all individuals prescribed continuous

2

anticholinergic treatment for more than two

3

months;

4

ii. all elderly individuals and individuals with

5

cognitive disorders who are prescribed

6

continuous anticholinergic treatment

7

regardless of duration of treatment;

8

iii. all individuals prescribed benzodiazepines as

9

a scheduled modality for more than two

10

months;

11

iv. all individuals prescribed benzodiazepines

12

with diagnoses of substance abuse or

13

cognitive impairments, regardless of duration

14

of treatment;

15

v. all individuals with a diagnosis or

16

evidencing symptoms of tardive dyskinesia;

17

and

18

vi. all individuals diagnosed with dyslipidemia,

19

and/or obesity, and/or diabetes mellitus who

20

are prescribed new generation antipsychotic

21

medications.

22

n. Each State Hospital shall ensure that the

23

medication management of individuals with substance

24

abuse disorders is provided consistent with

25

generally accepted professional standards of care.

26

o. Metropolitan State Hospital shall provide a minimum

27

of 16 hours per year of psychopharmacology

28

instruction, through conferences, seminars,

44

1

lectures and/or videotapes. Such instruction may

2

be provided either on-site or through attendance at

3

conferences elsewhere.

4

2. Psychological Services

5

Each State Hospital shall provide adequate and

6

appropriate psychological supports and services that are

7

derived from evidence-based practice or practice-based

8

evidence and are consistent with generally accepted

9

professional standards of care, to individuals who require

10

such services; and:

11

a. Each State Hospital shall ensure that it has

12

positive behavior support teams (with 1 team for

13

each 300 individuals, consisting of 1 clinical

14

psychologist, 1 registered nurse, 2 psychiatric

15

technicians (1 of whom may be a behavior

16

specialist), and 1 data analyst (who may be a

17

behavior specialist) that have a demonstrated

18

competence, consistent with generally accepted

19

professional standards of care, in the following

20

areas:

21

i. the development and use of positive behavior

22

support plans, including methods of

23

monitoring program interventions and the

24

effectiveness of the interventions, providing

25

staff training regarding program

26

implementation, and, as appropriate, revising

27

or terminating the program; and

28

45


1

ii. the development and implementation of a

2

facility-wide behavioral incentive system,

3

referred to as "BY CHOICE," that encompasses

4

self-determination and choice by the

5

individuals served.

6

b. Each State Hospital shall ensure that the Chief of

7

Psychology has the clinical and administrative

8

responsibility for the Positive Behavior Support

9

Team and the BY CHOICE incentive program.

10

c. Each State Hospital shall ensure that:

11

i. behavioral assessments include structural and

12

functional assessments, and, as necessary,

13

functional analysis;

14

ii. hypotheses on the maladapative behavior are

15

based on structural and functional

16

assessments;

17

iii. there is documentation of previous behavioral

18

interventions and their effects;

19

iv. behavioral interventions, which shall include

20

positive behavior support plans, are based on

21

a positive behavior supports model and do not

22

include the use of aversive or punishment

23

contingencies;

24

v. behavioral interventions are consistently

25

implemented across all settings, including

26

school settings;

27

vi. triggers for instituting individualized

28

behavioral interventions are specified and

46

1

utilized, and that these triggers include

2

excessive use of seclusion, restraint, or

3

psychiatric PRN and Stat medication for

4

behavior control;

5

vii. positive behavior support teams and team

6

psychologists integrate their therapies with

7

other treatment modalities, including drug

8

therapy;

9

viii. all positive behavior support plans are

10

specified in the objectives and interventions

11

sections of the individual's WRP;

12

ix. all positive behavior support plans are

13

updated as indicated by outcome data and

14

reported at least quarterly in the present

15

status section of the case formulation in the

16

individual's WRP;

17

x. all staff has received competency-based

18

training on implementing the specific

19

behavioral interventions for which they are

20

responsible, and performance improvement

21

measures are in place for monitoring the

22

implementation of such interventions;

23

xi. all positive behavior support team members

24

shall have as their primary responsibility

25

the provision of behavioral interventions;

26

and

27

xii. the BY CHOICE point allocation is updated

28

monthly in the individual's WRP.


47


1

2

d. Each State Hospital shall ensure that it has at

3

least one developmental and cognitive abilities

4

team (consisting of 1 clinical psychologist, 1

5

registered nurse, 1 social worker, 1 psychiatric

6

technician, and 1 data analyst (who may be a

7

behavior specialist)) who have a demonstrated

8

competence, consistent with generally accepted

9

professional standards of care, in: assessing

10

individuals with cognitive challenges/disorders;

11

developing therapeutic interventions (including

12

positive behavior supports); advising therapy and

13

rehabilitation providers on the implementation of

14

interventions at the cognitive level of the

15

individuals; and managing discharge processes for

16

individuals with developmental disabilities and

17

cognitive challenges/disorders. This team shall

18

assume some of the functions of the positive

19

behavior support teams if the individuals they

20

serve also need positive behavior supports.

21

e. Each State Hospital shall develop and implement a

22

Behavioral Consultation Committee, chaired by the

23

Chief of Psychology, and co-chaired by the Chief of

24

Psychiatry, to review the WRP and maladaptive

25

behavior(s) of individuals who have not made timely

26

progress on positive behavior support plans. The

27

Chief of Psychology is responsible for the

28

functions of this committee, together with members

48


1

of the positive behavior support team (in functions

2

of the committee that relate to individuals under

3

the care of those team members). The committee

4

membership shall include all clinical discipline

5

heads, including the medical director, as well as

6

the clinical administrator of the facility.

7

f. Each State Hospital shall ensure that it has

8

sufficient neuropsychological services for the

9

provision of adequate neuropsychological assessment

10

of individuals with persistent mental illness.

11

g. All clinical psychologists with privileges at any

12

State Hospital shall have the authority to write

13

orders for the implementation of positive behavior

14

support plans, consultation for educational or

15

other testing, and behavior plan updates.

16

3. Nursing Services

17

Each State Hospital shall provide adequate and

18

appropriate nursing care and services consistent with

19

generally accepted professional standards of care to

20

individuals who require such services.

21

a. Each State Hospital shall develop and implement

22

policies and protocols regarding the administration

23

of medication, including pro re nata ("PRN") and

24

"Stat" medication (i.e., emergency use of

25

psychoactive medication), consistent with generally

26

accepted professional standards of care, to ensure:

27

i. safe administration of PRN medications and

28

Stat medications;

49

1

ii. documentation of the circumstances requiring

2

PRN and Stat administration of medications;

3

and

4

iii. documentation of the individual's response to

5

PRN and Stat medication.

6

b. Each State Hospital shall ensure that all failures

7

to properly sign the Medication and Treatment

8

Record ("MTR") or the controlled medication log are

9

treated as medication variances, and that

10

appropriate follow-up occurs to prevent recurrence

11

of such variances.

12

c. Each State Hospital shall ensure that all nursing

13

interventions are fully integrated into the

14

therapeutic and rehabilitation service plan and

15

that nursing interventions are written in a manner

16

aligned with the rest of the interventions in the

17

therapeutic and rehabilitation service plan, in

18

particular, in observable, behavioral, and/or

19

measurable terms. No nursing care plans other than

20

the nursing interventions integrated in the

21

therapeutic and rehabilitation service plan are

22

required. No nursing diagnoses other than as

23

specified in the therapeutic and rehabilitation

24

service plan, in terms of the current DSM criteria,

25

are required.

26

d. All nursing staff working with an individual shall

27

be familiar with the goals, objectives, and

28

interventions for that individual.

50


1

e. Each State Hospital shall ensure that nursing staff

2

timely monitor, document and report the status of

3

symptoms, target variables, health, and mental

4

health status of individuals in a manner that

5

enables interdisciplinary teams to assess each

6

individual's status and respond to interventions,

7

and to modify, as appropriate, individuals'

8

therapeutic and rehabilitation service plans. Each

9

State Hospital shall ensure that all nursing shift

10

changes include a review of changes in status of

11

individuals on the unit.

12

f. Each State Hospital shall develop and implement a

13

system to monitor nursing staff while administering

14

medication to ensure that:

15

i. nursing staff are knowledgeable regarding

16

each individual's prescribed medications;

17

ii. education is provided to individuals during

18

medication administration;

19

iii. nursing staff are following the appropriate

20

medication administration protocol; and

21

iv. medication administration is documented in

22

accordance with the appropriate medication

23

administration protocol.

24

g. Each State Hospital shall ensure that individuals

25

remain in a "bed-bound" status only for clinically

26

justified reasons.

27

h. Each State Hospital shall ensure that, before they

28

work directly with individuals, all nursing and

51


1

psychiatric technicians have successfully completed

2

competency-based training regarding:

3

i. mental health diagnoses, related symptoms,

4

psychotropic medications and their side

5

effects, monitoring of symptoms and target

6

variables, and documenting and reporting of

7

the individual's status;

8

ii. the provision of a therapeutic milieu on the

9

units and proactive, positive interventions

10

to prevent and de-escalate crises; and

11

iii. positive behavior support principles.

12

i. Each State Hospital shall ensure that, prior to

13

assuming their duties and on a regular basis

14

thereafter, all staff responsible for the

15

administration of medication have successfully

16

completed competency-based training on the

17

completion of the MTR and the controlled medication

18

log.

19

4. Rehabilitation Therapy Services

20

Each State Hospital shall provide adequate,

21

appropriate, and timely rehabilitation therapy services to

22

each individual in need of such services, consistent with

23

generally accepted professional standards of care.

24

a. Each State Hospital shall develop and implement

25

policies and procedures, consistent with generally

26

accepted professional standards of care, related to

27

the provision of rehabilitation therapy services

28

that address, at a minimum:

52

1

2

i. the provision of direct services by

3

rehabilitation therapy services staff; and

4

ii. the oversight by rehabilitation therapists of

5

individualized physical therapy programs

6

implemented by nursing staff.

7

b. Each State Hospital shall provide competency-based

8

training to nursing staff, as appropriate, on the

9

use and care of adaptive equipment, transferring,

10

and positioning, as well as the need to promote

11

individuals' independence.

12

c. Each State Hospital shall ensure that individuals

13

are provided with timely and adequate

14

rehabilitation therapy services.

15

d. Each State Hospital, consistent with generally

16

accepted professional standards of care, shall

17

ensure that each individual who requires adaptive

18

equipment is provided with equipment that meets

19

his/her assessed needs and promotes his/her

20

independence, and shall provide individuals with

21

training and support to use such equipment.

22

5. Nutrition Services

23

Each State Hospital shall provide the individuals it

24

serves, particularly those experiencing weight-related

25

problems, adequate and appropriate dietary services

26

consistent with generally accepted professional standards of

27

care.

28

53


1

a. Each State Hospital shall modify policies and

2

procedures to require that the therapeutic and

3

rehabilitation service plans of individuals who

4

experience weight problems and/or related health

5

concerns include adequate strategies and

6

methodologies to address the identified problems

7

and that such strategies and methodologies are

8

implemented in a timely manner, monitored

9

appropriately, and revised, as warranted,

10

consistent with generally accepted professional

11

standards of care.

12

b. Each State Hospital shall ensure that one or more

13

treatment team members demonstrate competence in

14

the dietary and nutritional issues affecting the

15

individuals they serve and the development and

16

implementation of strategies and methodologies to

17

address such issues.

18

c. Each State Hospital shall develop and implement

19

policies and procedures to address the needs of

20

individuals who are at risk for aspiration or

21

dysphagia, including but not limited to, the

22

development and implementation of assessments and

23

interventions for mealtimes and other activities

24

involving swallowing.

25

d. Each State Hospital shall ensure that staff with

26

responsibilities for assessments and interventions

27

regarding aspiration and dysphagia have

28

54


1

successfully completed competency-based training

2

commensurate with their responsibilities.

3

e. Each State Hospital shall develop and implement

4

policies and procedures requiring treatment of the

5

underlying causes for tube feeding placement, and

6

ongoing assessment of the individuals for whom

7

these treatment options are utilized, to determine

8

the feasibility of returning them to oral intake

9

status.

10

6. Pharmacy Services

11

Each State Hospital shall provide adequate and

12

appropriate pharmacy services consistent with generally

13

accepted professional standards of care. Each State

14

Hospital shall develop and implement policies and procedures

15

that require:

16

a. Upon the prescription of a new medication,

17

pharmacists to conduct reviews of each individual's

18

medication regimen and, as appropriate, make

19

recommendations to the prescribing physician about

20

possible drug-to-drug interactions, side effects,

21

and needs for laboratory work and testing; and

22

b. Physicians to consider pharmacists'

23

recommendations, and for any recommendations not

24

followed, document in the individual's medical

25

record an adequate clinical justification.

26

7. General Medical Services

27

a. Each State Hospital shall provide adequate,

28

appropriate, and timely preventive, routine,

55


1

specialized, and emergency medical care to all

2

individuals in need of such services, consistent

3

with generally accepted professional standards of

4

care. Each State Hospital shall ensure that

5

individuals with medical problems are promptly

6

identified, assessed, diagnosed, treated, monitored

7

and, as monitoring indicates is necessary,

8

reassessed, diagnosed, and treated, consistent with

9

generally accepted professional standards of care.

10

b. Each State Hospital shall develop and implement

11

protocols and procedures, consistent with generally

12

accepted professional standards of care, that:

13

i. require the timely provision of initial and

14

ongoing assessments relating to medical care,

15

including but not limited to, vision care,

16

dental care, and laboratory and consultation

17

services;

18

ii. require the timely provision of medical care,

19

including but not limited to, vision care,

20

dental care, and laboratory and consultation

21

services; timely and appropriate

22

communication between nursing staff and

23

physicians regarding changes in an

24

individual's physical status; and the

25

integration of each individual's mental

26

health and medical care;

27

iii. define the duties and responsibilities of

28

primary care (non-psychiatric) physicians;

56

1

iv. ensure a system of after-hours coverage by

2

primary care physicians with formal

3

psychiatric training (i.e., privileging and

4

proctorship) and psychiatric backup support

5

after hours; and

6

v. endeavor to obtain, on a consistent and

7

timely basis, an individual's medical records

8

after the individual is treated in another

9

medical facility.

10

c. Each State Hospital shall ensure that physicians

11

monitor each individual's health status indicators

12

in accordance with generally accepted professional

13

standards of care, and, whenever appropriate,

14

modify their therapeutic and rehabilitation service

15

plans to address any problematic changes in health

16

status indicators.

17

d. Each State Hospital shall monitor, on a continuous

18

basis, outcome indicators to identify trends and

19

patterns in individuals' health status, assess the

20

performance of medical systems, and provide

21

corrective follow-up measures to improve outcomes.

22

8. Infection Control

23

Each State Hospital shall develop and implement

24

infection control policies and procedures to prevent the

25

spread of infections or communicable diseases, consistent

26

with generally accepted professional standards of care.

27

a. Each State Hospital shall establish an effective

28

infection control program that:


57


1

i. actively collects data regarding infections

2

and communicable diseases;

3

ii. assesses these data for trends;

4

iii. initiates inquiries regarding problematic

5

trends;

6

iv. identifies necessary corrective action;

7

v. monitors to ensure that appropriate remedies

8

are achieved; and

9

vi. integrates this information into the State

10

Hospital's quality assurance review.

11

9. Dental Services

12

Each State Hospital shall provide individuals with

13

adequate, appropriate and timely routine and emergency

14

dental care and treatment, consistent with generally

15

accepted professional standards of care.

16

a. Each State Hospital shall retain or contract with

17

an adequate number of qualified dentists to provide

18

timely and appropriate dental care and treatment to

19

all individuals it serves;

20

b. Each State Hospital shall develop and implement

21

policies and procedures that require:

22

i. comprehensive and timely provision of dental

23

services;

24

ii. documentation of dental services, including

25

but not limited to, findings, descriptions of

26

any treatment provided, and the plans of

27

care;

28

58

1

iii. use of preventive and restorative care

2

whenever possible; and

3

iv. tooth extractions be used as a treatment of

4

last resort, which, when performed, shall be

5

justified in a manner subject to clinical

6

review.

7

c. Each State Hospital shall ensure that dentists

8

demonstrate, in a documented fashion, an accurate

9

understanding of individuals' physical health,

10

medications, allergies, and current dental status

11

and complaints.

12

d. Each State Hospital shall ensure that

13

transportation and staffing issues do not preclude

14

individuals from attending dental appointments, and

15

individuals' refusals are addressed to facilitate

16

compliance.

17

e. Each State Hospital shall ensure that

18

interdisciplinary teams review, assess, and develop

19

strategies to overcome individuals' refusals to

20

participate in dental appointments.

21

10. Special Education

22

Each State Hospital shall provide the school-age and

23

other residents, as required by law, who qualify for special

24

education ("students"), individualized educational programs

25

that are reasonably calculated to enable these students to

26

receive educational benefits, as defined by applicable law.

27

a. Each State Hospital shall develop and implement

28

uniform systems for assessing students' individual

59


1

educational needs and monitoring their individual

2

progress.

3

b. Each State Hospital shall ensure that all

4

Individual Education Plans ("IEPs") are developed

5

and implemented consistent with the Individuals

6

with Disabilities Education Act, 20 U.S.C. § 1400

7

et seq. (2002) ("IDEA").

8

c. Each State Hospital shall ensure that teachers

9

providing instruction to students at the State

10

Hospital have completed competency-based training

11

regarding teaching and academic instruction,

12

behavioral interventions, monitoring of academic

13

and behavioral progress, and incident management

14

and reporting.

15

d. Each State Hospital shall ensure that students

16

receive instruction and behavioral supports

17

appropriate to their learning abilities and needs,

18

consistent with generally accepted professional

19

standards of care.

20

e. Each State Hospital shall provide appropriate

21

literacy instruction, consistent with generally

22

accepted professional standards of care, for

23

students who show deficits in one or more common

24

areas of reading (e.g., decoding or comprehending).

25

f. Each State Hospital shall, on admission and as

26

statutorily required thereafter, assess each

27

student's capacity to participate, with appropriate

28

supports and services, in an integrated, non­

60

1

institutional, education environment, and provide

2

access to an integrated education environment for

3

those students who can participate in one with

4

appropriate supports and services. Each State

5

Hospital shall ensure that all students receive

6

their education in the least restrictive setting

7

pursuant to the requirements of the IDEA,

8

consistent with their legal and clinical status.

9 G. Documentation

10

Each State Hospital shall ensure that an individual's

11 records accurately reflect the individual's response to all

12 treatment, rehabilitation and enrichment activities identified in

13 the individual's therapeutic and rehabilitation service plan,

14 including for children and adolescents, their education plan,

15 consistent with generally accepted professional standards of

16 care. Each State Hospital shall develop and implement policies

17 and procedures setting forth clear standards regarding the

18 content and timeliness of progress notes, transfer notes, school

19 progress notes, and discharge notes, including, but not limited

20 to, an expectation that such records include meaningful,

21 accurate, and coherent assessments of the individual's progress

22 relating to treatment plans and treatment goals, and that

23 clinically relevant information remains readily accessible.

24 H. Restraints, Seclusion, and PRN and Stat Medications

25

Each State Hospital shall ensure that restraints, seclusion,

26 psychiatric PRN medications, and Stat medications are used

27 consistent with generally accepted professional standards of

28 care.

61


1

1. Each State Hospital shall revise, as appropriate, and

2

implement policies and procedures regarding the use of

3

seclusion, restraints, psychiatric PRN medications, and

4

Stat medications consistent with generally accepted

5

professional standards of care. In particular, the

6

policies and procedures shall expressly prohibit the

7

use of prone restraints, prone containment and prone

8

transportation and shall list the types of restraints

9

that are acceptable for use.

10

2. Each State Hospital shall ensure that restraints and

11

seclusion:

12

a. Are used in a documented manner and only when

13

individuals pose an imminent danger to self or

14

others and after a hierarchy of less restrictive

15

measures has been considered in a clinically

16

justifiable manner or exhausted;

17

b. Are not used in the absence of, or as an

18

alternative to, active treatment, as punishment, or

19

for the convenience of staff;

20

c. Are not used as part of a behavioral intervention;

21

and

22

d. Are terminated as soon as the individual is no

23

longer an imminent danger to self or others.

24

3. Each State Hospital shall comply with 42 C.F.R.

25

§ 483.360(f), requiring assessments by a physician or

26

licensed clinical professional of any individual placed

27

in seclusion or restraints within 1 hour. Each State

28

Hospital shall also ensure that any individual placed

62


1

in seclusion or restraints is continuously monitored by

2

a staff person who has successfully completed

3

competency-based training on the administration of

4

seclusion and restraints.

5

4. Each State Hospital shall ensure the accuracy of data

6

regarding the use of restraints, seclusion, psychiatric

7

PRN medications, or Stat medications.

8

5. Each State Hospital shall revise, as appropriate, and

9

implement policies and procedures to require the review

10

within 3 business days of individuals' therapeutic and

11

rehabilitation service plans for any individuals placed

12

in seclusion or restraints more than 3 times in any

13

4-week period, and modification of therapeutic and

14

rehabilitation service plans, as appropriate.

15

6. Each State Hospital shall develop and implement

16

policies and procedures consistent with generally

17

accepted professional standards of care governing the

18

use of psychiatric PRN medication and Stat medication,

19

requiring that:

20

a. Such medications are used in a manner that is

21

clinically justified and are not used as a

22

substitute for adequate treatment of the underlying

23

cause of the individual's distress; and

24

b. PRN medications, other than for analgesia, are

25

prescribed for specified and individualized

26

behaviors;

27

c. PRN medications are appropriately time-limited;

28

63


1

d. Nursing staff assess the individual within 1 hour

2

of the administration of the psychiatric PRN

3

medication and Stat medication and documents the

4

individual's response; and A psychiatrist conducts

5

a face-to-face assessment of the individual within

6

24 hours of the administration of a Stat

7

medication. The assessment shall address the

8

reason for the Stat administration, the

9

individual's response, and, as appropriate,

10

appropriateness of adjustment to current treatment

11

and/or diagnosis.

12

7. Each State Hospital shall ensure that all staff whose

13

responsibilities include the implementation or

14

assessment of seclusion, restraints, psychiatric PRN

15

medications, or Stat medications successfully complete

16

competency-based training regarding implementation of

17

all such policies and the use of less restrictive

18

interventions.

19

8. Each State Hospital shall:

20

a. Develop and implement a plan to reduce the use of

21

side rails as restraints in a systematic and

22

gradual way to ensure individuals' safety; and

23

b. Ensure that, as to individuals who need side rails,

24

their therapeutic and rehabilitation service plans

25

expressly address the use of side rails, including

26

identification of the medical symptoms that warrant

27

the use of side rails, methods to address the

28

underlying causes of such medical symptoms, and

64

1

strategies to reduce the use of side rails, if

2

appropriate.

3 I. Protection From Harm

4

Each State Hospital shall provide the individuals it serves

5 with a safe and humane environment and ensure that these

6 individuals are protected from harm.

7

1. Incident Management

8

Each State Hospital shall develop and implement across

9

all settings, including school settings, an integrated

10

incident management system that is consistent with generally

11

accepted professional standards of care.

12

a. Each State Hospital shall review, revise, as

13

appropriate, and implement incident management

14

policies, procedures and practices that are

15

consistent with generally accepted professional

16

standards of care. Such policies, procedures and

17

practices shall require:

18

i. that the State Hospital not tolerate abuse or

19

neglect of individuals and that staff are

20

required to report abuse or neglect of

21

individuals;

22

ii. identification of the categories and

23

definitions of incidents to be reported and

24

investigated; immediate reporting by staff to

25

supervisory personnel and the State

26

Hospital's executive director (or that

27

official's designee) of serious incidents,

28

65


1

including but not limited to, death, abuse,

2

neglect, and serious injury, using

3

standardized reporting across all settings,

4

including school settings;

5

iii. mechanisms to ensure that when serious

6

incidents such as allegations of abuse,

7

neglect, and/or serious injury occur, staff

8

take immediate and appropriate action to

9

protect the individuals involved, including

10

removing alleged perpetrators from direct

11

contact with the involved individuals pending

12

the outcome of the facility's investigation;

13

iv. adequate competency-based training for all

14

staff on recognizing and reporting potential

15

signs and symptoms of abuse or neglect,

16

including the precursors that may lead to

17

abuse;

18

v. notification of all staff when commencing

19

employment and adequate training thereafter

20

of their obligation to report abuse or

21

neglect to the State Hospital and state

22

officials. All staff persons who are

23

mandatory reporters of abuse or neglect shall

24

sign a statement that shall be kept with

25

their personnel records evidencing their

26

recognition of their reporting obligations.

27

Each State Hospital shall not tolerate any

28

66


1

mandatory reporter's failure to report abuse

2

or neglect;

3

vi. mechanisms to inform individuals and their

4

conservators how to identify and report

5

suspected abuse or neglect;

6

vii. posting in each living unit and day program

7

site a brief and easily understood statement

8

of individuals' rights, including information

9

about how to pursue such rights and how to

10

report violations of such rights;

11

viii. procedures for referring, as appropriate,

12

allegations of abuse or neglect to law

13

enforcement; and

14

ix. mechanisms to ensure that any staff person,

15

individual, family member or visitor who in

16

good faith reports an allegation of abuse or

17

neglect is not subject to retaliatory action,

18

including but not limited to reprimands,

19

discipline, harassment, threats or censure,

20

except for appropriate counseling, reprimands

21

or discipline because of an employee's

22

failure to report an incident in an

23

appropriate or timely manner.

24

b. Each State Hospital shall review, revise, as

25

appropriate, and implement policies and procedures

26

to ensure the timely and thorough performance of

27

investigations, consistent with generally accepted

28

professional standards of care. Such policies and

67


1

procedures shall:

2

i. require investigations of all deaths, as well

3

as allegations of abuse, neglect, serious

4

injury, and theft. The investigations shall

5

be conducted by qualified investigators who

6

have no reporting obligations to the program

7

or elements of the facility associated with

8

the allegation and have expertise in

9

conducting investigations and working with

10

persons with mental disorders;

11

ii. ensure that only the State Hospital staff who

12

have successfully completed competency-based

13

training on the conduct of investigations be

14

allowed to conduct investigations of

15

allegations of petty theft and all other

16

unusual incidents;

17

iii. for investigations required by paragraph

18

I.1.b.i, above, provide for the safeguarding

19

of evidence; and

20

iv. for investigations required by paragraph

21

I.1.b.i, above, require the development and

22

implementation of standardized procedures and

23

protocols for the conduct of investigations

24

that are consistent with generally accepted

25

professional standards. Such procedures and

26

protocols shall require that:

27

28

68


1

1) investigations commence within 24 hours

2

or sooner, if necessary, of the incident

3

being reported;

4

2) investigations be completed within 30

5

business days of the incident being

6

reported, except that investigations

7

where material evidence is unavailable to

8

the investigator, despite best efforts,

9

may be completed within 5 business days

10

of its availability;

11

3) each investigation result in a written

12

report, including a summary of the

13

investigation, findings and, as

14

appropriate, recommendations for

15

corrective action. The report's contents

16

shall be sufficient to provide a clear

17

basis for its conclusion. The report

18

shall set forth explicitly and

19

separately:

20

(i) each allegation of wrongdoing

21

investigated;

22

(ii) the names of all witnesses;

23

(iii) the names of all alleged victims

24

and perpetrators;

25

(iv) the names of all persons


26

interviewed during the


27

investigation;


28

(v) a summary of each interview;

69

1

(vi) a list of all documents reviewed

2

during the investigation;

3

(vii) sources of evidence considered,

4

including previous investigations

5

and their results, involving the

6

alleged victim(s) and

7

perpetrator(s);

8

(viii) the investigator's findings,

9

including findings related to the

10

substantiation of the allegations

11

as well as findings about staff's

12

adherence to programmatic

13

requirements; and

14

(ix) the investigator's reasons for

15

his/her conclusions, including a

16

summary indicating how potentially

17

conflicting evidence was

18

reconciled; and

19

4) staff supervising investigations review

20

the written report, together with any

21

other relevant documentation, to ensure

22

that the investigation is thorough and

23

complete and that the report is accurate,

24

complete, and coherent. Any deficiencies

25

or areas of further inquiry in the

26

investigation and/or report shall be

27

addressed promptly. As necessary, staff

28

responsible for investigations shall be

70


1

provided with additional training and/or

2

technical assistance to ensure the

3

completion of investigations and

4

investigation reports consistent with

5

generally accepted professional standards

6

of care.

7

c. Each State Hospital shall ensure that whenever

8

disciplinary or programmatic action is necessary to

9

correct a situation or prevent reoccurrence, each

10

State Hospital shall implement such action promptly

11

and thoroughly, and track and document such actions

12

and the corresponding outcomes.

13

d. Each State Hospital shall have a system to allow

14

the tracking and trending of investigation results.

15

Trends shall be tracked by at least the following

16

categories:

17

i. type of incident;

18

ii. staff involved and staff present;

19

iii. individuals directly and indirectly involved;

20

iv. location of incident;

21

v. date and time of incident;

22

vi. cause(s) of incident; and

23

vii. outcome of investigation.

24

e. Each State Hospital shall ensure that before

25

permitting a staff person to work directly with any

26

individual, the State Hospital shall investigate

27

the criminal history and other relevant background

28

factors of that staff person, whether full-time or

71


1

part-time, temporary or permanent, or a person who

2

volunteers on a regular basis. Facility staff

3

shall directly supervise volunteers for whom an

4

investigation has not been completed when they are

5

working directly with individuals living at the

6

facility. The facility shall ensure that a staff

7

person or volunteer may not interact with

8

individuals at the State Hospital in instances

9

where the investigation indicates that the staff

10

person or volunteer may pose a risk of harm to such

11

individuals.

12

2. Performance Improvement

13

Each State Hospital shall develop, revise as

14

appropriate, and implement performance improvement

15

mechanisms that enable it to comply fully with this Plan, to

16

detect timely and adequately problems with the provision of

17

protections, treatment, rehabilitation, services and

18

supports, and to ensure that appropriate corrective steps

19

are implemented. Each State Hospital shall establish a risk

20

management process to improve the identification of

21

individuals at risk and the provision of timely

22

interventions and other corrective actions commensurate with

23

the level of risk. The performance improvement mechanisms

24

shall be consistent with generally accepted professional

25

standards of care and shall include:

26

a. Mechanisms for the proper and timely identification

27

of high-risk situations of an immediate nature as

28

well as long-term systemic problems. These

72


1

mechanisms shall include, but not be limited to:

2

i. data collection tools and centralized

3

databases to capture and provide information

4

on various categories of high-risk

5

situations;

6

ii. establishment of triggers and thresholds that

7

address different levels of risk, as set

8

forth in Appendix A of this Plan; and

9

iii. identification of systemic trends and


10

patterns of high risk situations;


11

b. Mechanisms for timely interventions and other

12

corrective actions by teams and disciplines to

13

prevent or minimize risk of harm to individuals.

14

These mechanisms shall include, but not be limited

15

to:

16

i. a hierarchy of interventions by clinical

17

teams that correspond to triggers and

18

thresholds;

19

ii. timely corrective actions by teams and/or

20

disciplines to address systemic trends and

21

patterns;

22

iii. formalized systems for the notification of

23

teams and needed disciplines to support

24

appropriate interventions and other

25

corrective actions;

26

iv. formalized systems for feedback from teams

27

and disciplines to the standards compliance

28

department regarding completed actions; and

73

1

v. monitoring and oversight systems to support

2

timely implementation of interventions and

3

corrective actions and appropriate follow up;

4

and

5

c. Utilize, on an ongoing basis, appropriate

6

performance improvement mechanisms to assess and

7

address the facility's compliance with its

8

identified service goals.

9

3. Environmental Conditions

10

Each State Hospital shall develop and implement a

11

system to review regularly all units and areas of the

12

hospital to which individuals being served have access to

13

identify any potential environmental safety hazards and to

14

develop and implement a plan to remedy any identified

15

issues, consistent with generally accepted professional

16

standards of care. Such a system shall require that:

17

a. Potential suicide hazards are identified and

18

prioritized for systematic corrective action, and

19

that such action is implemented on a priority basis

20

as promptly as feasible;

21

b. All areas of the hospital that are occupied by

22

individuals being served have adequate temperature

23

control and deviations shall be promptly corrected;

24

c. Each State Hospital reviews, revises, as

25

appropriate, and implements procedures and

26

practices so that individuals who are incontinent

27

are assisted to change in a timely manner;

28

74


1

d. Each State Hospital thoroughly reviews and revises,

2

as appropriate, its policy and practice regarding

3

sexual contact among individuals served at the

4

hospital. Each State Hospital shall establish

5

clear guidelines regarding staff response to

6

reports of sexual contact and monitor staff

7

response to incidents. Each State Hospital

8

documents comprehensively therapeutic interventions

9

in the individual’s charts in response to instances

10

of sexual contact;

11

e. Each State Hospital develops and implements clear

12

guidelines stating the circumstances under which it

13

is appropriate to utilize staff who are not trained

14

to provide mental health services in addressing

15

incidents involving individuals. Each State

16

Hospital ensures that persons who are likely to

17

intervene in incidents are properly trained to work

18

with individuals with mental health concerns; and

19

f. Metropolitan State Hospital will institute roving

20

patrols of treatment units, except for the skilled

21

nursing facility, by Hospital Police Officers on a

22

schedule and frequency to be determined by the

23

hospital administration.

24 J. First Amendment and Due Process

25

Each State Hospital unconditionally permits individuals to

26 exercise their constitutional rights of free speech, including

27 the right to petition the government for redress of grievances

28 without state monitoring and provides them due process.

75


1

2

ENHANCEMENT PLAN - APPENDIX A


3

4

Trigger

Thresholds

5

6

1.1 Any aggression to self resulting

7

Aggressive Act to Self

in major injury*

8

1.2 2 or more aggressive acts to self

9

in 7 consecutive days

10

1.3 4 or more aggressive acts to self

11

in 30 consecutive days

12

13

14

2.1 Any peer-to-peer aggression

15 Aggressive Act to Others

resulting in major injury

16

2.2 Any aggression to staff resulting

17

in major injury

18

2.3 2 or more aggressive acts to

19

others in 7 consecutive days

20

2.4 4 or more aggressive acts to

21

others in 30

22

23 Alleged Abuse/
24 Neglect/Exploitation
25
26

3.1 Any alleged abuse/neglect/exploitation if minor** or major injury

27

28

76


1

2 Body Weight

4.1 Body Mass Index (BMI) of 18.5 or

3

less (underweight)

4

4.2 Body Mass Index (BMI) between 25

5

and 29.9

(overweight)

6

4.3 Body Mass Index (BMI) between 30

7

and 34.9

(Obesity-Grade I)

8

4.4 Body Mass Index (BMI) between 35

9

and 39.9

(Obesity-Grade II)

10

4.5 Body Mass Index (BMI) 40 or above

11

(Obesity-Grade III)

12

4.6 Weight Change ± 5% in 1 month

13

4.7 Weight Change ± 7.5% in 3 months

14

4.8 Weight Change ± 10% in 6 months

15

4.9 Waist Circumference over 35” for

16

females or over 40” for males

17

18 Combined Pharmacotherapy 5.1 More than 2 intra-class
19 psychotropic medications for
20 psychiatric reasons
21 5.2 More than 3 inter-class
22 psychotropic medications for
23 psychiatric reasons
24

25

26

27

28

77


1 2 Escape/AWOL 3 4 5 6 7 8 Falls 9 10 11 12 13
Illicit Substances 14 15 16 17 18 Medication Variance 19 (Error) 20 21 22 23 24 25 26 27 28

6.1 Any escape attempt/unauthorized absence within facility
6.2 Any escape attempt/unauthorized absence outside of facility
7.1 Any fall resulting in major injury
7.2 Three or more falls in 30 consecutive days
8.1 Any incident of an individual testing positive for illicit substance (street drug) use
9.1 Any medication error that results in major injury or exacerbation of a disease or disorder (i.e., prescribing, transcribing, ordering/procurement, dispensing/storage, administration, and documentation)
78

1

2 Mortality

10.1 Expected deaths

3

10.2 Unexpected deaths

4

5 Non-Adherence to
6 Wellness and Recovery
7 Plan (WRP)
8
9
10
11
12

11.1 Non-adherence to WRP for more than 20% of the interventions in 7 consecutive days (Note: For children and adolescents: include non-attendance at school for more than 20% of the time in 7 consecutive days)

13

14 One-to-One Observations 12.1 1:1 for psychiatric/behavioral

15

reasons over 24 hours in 7

16

consecutive days

17

12.2 Any 2:1 for

18

psychiatric/behavioral reasons

19

20 PRN Medications
21
22
23
24

13.1 2 PRNs in 24 hours (for psychiatric/behavioral reasons)
13.2 3 PRNs in 7 consecutive days 13.3 15 PRNs in 30 consecutive days

25

26

27

28

79


1 2 Restraint 3 4 5 6 7 8 9 10 11
Seclusion 12 13 14 15 16 17 18 19 20 21 Stat Medications 22 23 24 25 26 27 28

14.1 Restraint for more than 4 hours for adults (Note: more than 4 hours for adolescents and 2 hours for children)
14.2 More than 3 episodes of restraint in 7 consecutive days
14.3 More than 5 episodes of restraint in 30 consecutive days
15.1 Seclusion for more than 4 hours for adults (Note: more than 4 hours for adolescents and 2 hours for children)
15.2 More than 3 episodes of seclusion in 7 consecutive days
15.3 More than 5 episodes of seclusion in 30 consecutive days
16.1 2 Stat medications in 24 hours 16.2 3 Stat medications in 7
consecutive days 16.3 15 Stat med in 30 consecutive
days
80


1

2 Suicide Attempt

17.1 Any suicide attempt

3

17.2 Any suicide threat or ideations

4

5 * A major injury is an injury that requires treatment of more

6 than basic first aid by medical personnel or any injury resulting

7 from alleged or suspected abuse or any injury judged to have

8 potential for serious harm.

9 ** A minor injury is any injury, other than an injury caused by

10 alleged or suspected abuse, that requires no treatment or only

11 minor first aid and for which the potential for serious harm is

12 judged to have been remote.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

81


1

PART II


2

ENFORCEMENT


3 A. Selection of Monitor

4

Mohamed El-Sabaawi, M.D. shall be appointed as the expert to

5 monitor the State's implementation of this Agreement (the

6 "Monitor"). The Monitor shall have full authority to assess,

7 review, and report independently on the Defendants'

8 implementation of and compliance with the provisions of the

9 Agreement. No Party, nor any employee or agent of any Party,

10 shall have any supervisory authority over the Monitor's

11 activities, reports, findings, or recommendations. In the event

12 that Dr. El-Sabaawi is unable to serve or continue serving as the

13 Monitor, or in the event that the Parties for any reason agree to

14 discontinue the use of Dr. El-Sabaawi, the Parties shall meet or

15 otherwise confer within thirty (30) days of being notified of the

16 incapacity or the decision to discontinue use of Dr. El-Sabaawi

17 to select a new Monitor. If the Parties are unable to agree upon

18 a selection, each Party shall submit two names, along with

19 resumes or curricula vitae and cost proposals, to the Court and

20 the Court shall appoint the Monitor from among the names

21 submitted. The procedure described in this paragraph shall apply

22 to all successor Monitors. The Parties agree that the Monitor

23 may use consultants to assist the Monitor. Any such consultants

24 shall be paid for time, services, and expenses pursuant to the

25 Monitor’s existing budget. In collaboration with the Monitor,

26 the Parties shall meet or otherwise confer whenever necessary to

27 agree upon which particular consultant(s) the Monitor shall use

28 to assist the Monitor in his duties as Monitor.

82


1 B. Budget of the Monitor

2

The Parties and the Monitor have agreed upon the annual

3 budget for the Monitor's work.

4 C. Reimbursement and Payment Provisions

5

1. The cost of the Monitor, including the cost of any

6

consultant to assist the Monitor, shall be borne by the

7

State in this action. All reasonable expenses incurred

8

by the Monitor or any consultant, in the course of the

9

performance of the duties of the Monitor, pursuant to

10

the budget of the Monitor, shall be reimbursed by the

11

State. The United States will bear its own expenses in

12

this matter.

13

2. The Monitor shall submit monthly invoices to the

14

Defendants, with a copy to the United States, detailing

15

all expenses the Monitor incurred during the prior

16

month. These invoices shall include daily records of

17

time spent and expenses incurred, and shall include

18

copies of any supporting documentation, including

19

receipts. The Defendants agrees to pay each month's

20

invoice in full from the Monitor within thirty (30)

21

days of receipt of the monthly invoice from the

22

Monitor. If the Defendants dispute all or part of the

23

invoice, the Defendants shall notify in writing the

24

Monitor and the United States within ten days of

25

receipt of the Monitor's monthly invoice. The Monitor,

26

the Defendants and the United States will endeavor to

27

resolve any invoice disputes promptly and in good

28

faith. Where the Monitor and the Parties are unable to

83


1 2 3 D. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

resolve any invoice dispute, the Monitor and/or the Parties may petition the Court to resolve the dispute. Responsibilities and Powers of the Monitor 1. The overall duties of the Monitor shall be to observe, review, report findings, and make recommendations, where appropriate, with regard to the implementation of the foregoing Enhancement Plan at the State Hospitals. The Monitor shall regularly review the therapeutic and rehabilitation services provided to individuals to determine the Defendants' implementation of and compliance with this Consent Judgment. During the Monitor's review, the Monitor shall have full and complete access to all of the State Hospitals' buildings and facilities, staff, patients, patient records, documentation, and information relating to the issues addressed in this Consent Judgment. The State Hospitals' Executive Directors shall direct all employees to cooperate fully with the Monitor. The Monitor shall be permitted to initiate and receive ex parte communications with the Parties. The Monitor shall devote such time as is necessary to fulfill the purposes of the duties and responsibilities of the Monitor pursuant to this Consent Judgment. 2. The Monitor shall consult with the Parties and shall submit a written plan with regard to the methodologies to be used by the Monitor to assess the Defendants' compliance with and implementation of the Consent Judgment. The Monitor's evaluation shall include:
84

1

regular on-site inspection of the State Hospitals'

2

facilities and programs for patients, interviews with

3

administrators, professional and other staff,

4

contractors, and patients, and detailed review of

5

pertinent documents and patient records. The Parties

6

envision that the Monitor may provide specific

7

recommendations to the Defendants with regard to steps

8

to be taken to come into compliance with the Consent

9

Judgment. However, the Defendants retain the

10

discretion to achieve compliance by any legal means

11

available to them, and may choose to utilize methods

12

other than those that may be proposed by the Monitor or

13

the United States. The Monitor shall not be empowered

14

to direct the Defendants to take, or to refrain from

15

taking, any specific action to achieve compliance with

16

the Consent Judgment. The Parties do not intend for

17

the Monitor to have the role of a "Special Master."

18

The Agreement is the product of two governmental

19

agencies exercising their expertise.

20

3. In any instance in which either party disagrees as to

21

compliance, the Court shall give appropriate deference

22

to the Monitor’s assessment of compliance.

23

4. The Parties envision that the United States and the

24

Monitor shall conduct a "baseline" evaluation of the

25

Defendants' compliance with the terms of this Consent

26

Judgment at the State Hospitals within the first 180

27

days after the filing of this Consent Judgment. This

28

initial baseline evaluation is intended to inform the

85


1

Parties and the Monitor of the status of compliance

2

with this Enhancement Plan. The Monitor shall produce

3

a written report to the Parties with regard to the

4

State's compliance with particular provisions of the

5

Consent Judgment as soon as possible, but at least

6

within 60 days of each visit.

7

5. Following the baseline tour, the Monitor shall conduct

8

subsequent tours of each State Hospital at least

9

semi-annually, upon reasonable notice to the State

10

Hospital, in order to fulfill his or her obligations

11

pursuant to this Consent Judgment. In connection with

12

the baseline tours, the Parties and the Monitor shall

13

attempt to agree upon a schedule of subsequent tours

14

and reports for the upcoming year, to be repeated

15

annually thereafter.

16

6. The Monitor shall provide the Parties with a written

17

report as soon as possible, but at least within 60 days

18

of each tour and shall detail with as much specificity

19

as possible how the State is or is not in compliance

20

with particular provisions of the Consent Judgment.

21

Drafts of the Monitor's reports shall be provided to

22

the Parties for comment at least ten (10) business days

23

prior to issuance of the reports. Upon the achievement

24

of eighteen (18) months of substantial compliance with

25

any substantive paragraph(s) of this Agreement, no

26

further reporting shall be required on that paragraph.

27

28

86


1 2 3 4 5 6 7 8 9 10 11 12 13 14 E. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7. The Defendants shall notify the Monitor immediately upon the death of any current State Hospital patient, including any person who died following transfer due to medical condition from a State Hospital to another medical facility. The Defendants shall forward to the Monitor copies of any completed incident reports related to deaths, autopsies and/or death summaries of residents, as well as all final reports of investigations that involve State Hospital patients. The Defendants shall also notify the Monitor immediately if they receive a citation or threat to de-certify a State Hospital from the Centers for Medicaid and Medicare Services.
The United States' Access to Information and the State Hospitals 1. The United States shall have full access to, and shall,
upon request, receive copies of any documents, records, databases, and information relating to the implementation of this Consent Judgment. The Defendants shall provide any requested documents, records, databases, and information to the United States as soon as possible, but no later than within thirty (30) business days of the request, or within a time frame negotiated by the parties if the volume of requested material is too great to reasonably produce within thirty days. The United States, upon reasonable notice, shall have full access to all of the State Hospitals' buildings and facilities, staff, patients,
87


1

patients' records, documentation, and information

2

relating to the issues addressed in this Consent

3

Judgment. The State Hospitals' Executive Directors

4

shall direct all employees to cooperate fully with the

5

United States. The United States may receive and

6

respond to unsolicited calls or contacts from State

7

personnel outside the presence of State

8

representatives.

9

PART III


10

MODIFICATION OF TERMS


11 A. If the Parties reach a subsequent agreement that varies from

12 the Plan, the new agreement shall be reduced to writing, signed,

13 and filed with the Court for approval.

14

PART IV


15

COMPLIANCE AND TERMINATION


16 A. The purpose of this Consent Judgment is that the Defendants

17 will be able to achieve desired outcomes for and provide the

18 necessary protections, supports, and services to the

19 individuals served by the State Hospitals. All of the terms of

20 the Plan set forth in Part I hereof shall be implemented at the

21 State Hospitals within 36 months of the Enhancement Plan's

22 effective date, except that § I.3 of the Plan and all provisions

23 of the Plan having to do with suicide prevention measures shall

24 be implemented at the State Hospitals upon the effective date of

25 this Consent Judgment. This Consent Judgment will be terminated

26 and the case dismissed five (5) years after the effective date of

27 the Consent Judgment. This Consent Judgment may terminate at an

28 earlier date if the Parties agree that the Defendants are in

88


1 substantial compliance with each provision of the Consent 2 Judgment, and the State has maintained compliance for at least 3 eighteen (18) months ("maintained sustained compliance"). If 4 Defendants and the Monitor contend that the Defendants have 5 maintained sustained compliance and the United States disagrees, 6 Defendants may move this Court for an order terminating this 7 Consent Judgment. In any instance in which the parties disagree 8 as to compliance, the Court shall give appropriate deference to 9 the Monitor's assessment of compliance. Noncompliance with mere 10 technicalities, or temporary failure to comply during a period of 11 otherwise sustained compliance shall not constitute failure to 12 maintain substantial compliance. At the same time, temporary 13 compliance during a period of sustained noncompliance shall not 14 constitute substantial compliance. 15 B. At all times, the State shall comply with applicable federal 16 and state licensing requirements. 17 C. If the United States maintains that the Defendants have 18 failed to carry out any requirement of this Consent Judgment, the 19 United States shall notify the Defendants with specificity of any 20 instance(s) in which it maintains that the Defendants have failed 21 to carry out the requirements of this Consent Judgment. 22 D. With the exception of conditions or practices that pose an 23 immediate and serious threat to the life, health, or safety of 24 individuals served by the State Hospitals, the Defendants shall 25 have thirty (30) days from the date of a deficiency notice from 26 the United States to cure the claim of noncompliance. During 27 this period, the Parties shall coordinate and shall discuss areas 28 of disagreement and attempt to resolve outstanding differences.
89


1 E. Unless specified to the contrary elsewhere herein, in any

2 compliance or other adversarial hearing prior to final dismissal

3 of this action, the burden of proof will be on the Party moving

4 the Court.

5 F. All provisions of this Consent Judgment shall have ongoing

6 effect until the final dismissal of this action. The Court shall

7 retain jurisdiction for all purposes until such time as this

8 action dismissed. Independent of the foregoing, if the United

9 States and the Defendants agree that the State Hospitals have

10 achieved substantial compliance with each section of this Consent

11 Judgment, the Parties shall file a joint motion to dismiss this

12 action.

13 G. This case shall be treated administratively as inactive.

14 However, the Court retains jurisdiction to enforce the terms of

15 this Order.

16

17

18 DATED: This 2 day of

May

, 2006.

19

20
/s/
21 UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

90


1 APPROVED AS TO FORM AND CONTENT:

2

3
/s/ Wan J. Kim
4 ________________________________ WAN J. KIM
5 Assistant Attorney General

6

7 _/_s_/_S_h_a_ne_t_t_a _Y_._C_u_t_la_r_______________
8 SHANETTA Y. CUTLAR Chief, Special Litigation Section
9 /s/ Jacqueline Cuncannan
/s/ Benjamin O. Tayloe, Jr. /s/ William G. Maddox
10 /s/ Lee R. Seltman
/s/ Matthew J. Donnelly /s/ Anita C. Snyder
11 _/s_/__Ma_r_y_R_.__Bo_h_a_n ___________________ BENJAMIN O. TAYLOE, JR.
12 LEE R. SELTMAN MARY R. BOHAN
13 WILLIAM G. MADDOX JACQUELINE CUNCANNAN
14 MATTHEW J. DONNELLY ANITA C. SNYDER
15 Trial Attorneys United States Department of Justice
16 Civil Rights Division
/s/ Debra W. Yang
17 /s/ Leon W. Weidman

18 /s/ Gary L. Pressman

_/_s/__H_ow_a_r_d_D_a_ni_e_l_s__________________

19 DEBRA W. YANG

United States Attorney

20 LEON W. WEIDMAN

Assistant United States Attorney

21 Chief, Civil Division

GARY L. PLESSMAN

22 Assistant United States Attorney

Chief, Civil Fraud Section

23 HOWARD DANIELS (CA Bar No. 081764)

Assistant United States Attorney

24

300 North Los Angeles Street

Federal Building, Room 7516

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Los Angeles, CA 90012

(213)894-4024

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2 __/_s/__K_im_b_e_rl_y__Be_l_s_he___________________ KIMBERLY BELSHÉ
3 Secretary, State of California Health and Human Services Agency
4 State of California Health and Human Services Agency
5 1600 Ninth Street, Room 460 Sacramento, CA 95814
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/s/ Frank S. Furtek
8 __________________________________ FRANK S. FURTEK
9 Chief Counsel, State of California Health and Human Services Agency
10 1600 9th Street, Room 460 Sacramento, CA 95814
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13 _/_s_/_S_t_e_ph_e_n_W_.__Ma_y_b_er_g_________________
14 STEPHEN W. MAYBERG Director, California Department
15 Of Mental Health California Department of Mental Health
16 1600 9th Street Sacramento, CA 95814
17
18
/s/ Cynthia Rodriguez
19 __________________________________ CYNTHIA RODRIGUEZ
20 Chief Counsel, California Department of Mental Health Office of Legal Services
21 California Department of Mental Health 1600 9th Street, Room 153
22 Sacramento, CA 95814
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 May 13, 2003
The Honorable Gray Davis Governor of California State Capitol Building Sacramento, CA 95814
Re: Metropolitan State Hospital, Norwalk, California
Dear Governor Davis:
On March 21, 2002, we notified you that we were investigating conditions at Metropolitan State Hospital (“Metropolitan”), in Norwalk, California, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. During the weeks of June 24 and July 8, 2002, we visited the facility. Our first tour, “Metropolitan I,” focused on the care and treatment provided to the facility’s child and adolescent patients, all of whom are in Metropolitan’s Program 1. Our second tour, “Metropolitan II,” addressed the care and treatment provided to the facility’s adult patients. At exit interviews conducted at the end of each facility visit, we verbally conveyed our preliminary findings to counsel and facility officials. Consistent with the requirements of CRIPA, we are now writing to apprise you of our findings regarding the child and adolescent patients. We will transmit our findings regarding the facility’s adult patients when our Metropolitan II investigation is complete.
As a threshold matter, we wish to express our appreciation for the cooperation and assistance provided to us by the administrators and staff of Metropolitan. In particular, facility personnel cooperated fully with our document requests. We hope to continue to work with the State of California and officials at Metropolitan in a cooperative manner.
We conducted our investigation by reviewing medical and other records relating to the care and treatment of approximately 70 patients; interviewing administrators and staff; speaking with patients; and conducting on-site surveys of the facility. We

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were assisted in this exercise by expert consultants in the fields of child psychiatry, child psychology, psychiatric nursing, and special education.
At the time of our June 2002 visit, Metropolitan had a census of approximately 825 patients. Program 1, the hospital’s Child and Adolescent Program, had a census of approximately 100 patients. These patients, who range in ages from 11 to 17, suffer from serious mental health disorders and histories of severe traumatization. Many also have significant cognitive or academic impairments and/or health-related concerns. The majority also had an average of 10 to 12 failed out-of-home placements prior to their placement at Metropolitan. In many respects, these children and adolescents are the most psychiatrically and emotionally disturbed in the State’s system of care. Because Metropolitan is the only public mental health institution for this population in the State, these children and adolescents are referred to Metropolitan by counties throughout the State of California.
Residents of state-operated facilities have a right to live in reasonable safety and to receive adequate health care, along with habilitation to ensure their safety and freedom from unreasonable restraint, prevent regression and facilitate their ability to exercise their liberty interests. See Youngberg v. Romeo, 457 U.S. 307 (1982). Similar protections are accorded by federal statute. See, e.g., Title XIX of the Social Security Act, 42 U.S.C. § 1396; 42 C.F.R. Part 483 (Medicaid Program Provisions). The State also is obliged to provide services in the most integrated setting appropriate to individual residents’ needs. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq.; 28 C.F.R. § 35.130 (d); see Olmstead v. L.C., 527 U.S. 581 (1999).
It was apparent that many Metropolitan staff are highly dedicated individuals who are genuinely concerned for the well­ being of the persons in their care. Generally speaking, it appeared that staff promptly intervened to prevent or minimize injury after patients became physically aggressive. Further, Metropolitan repeatedly has demonstrated its proficiency in complying with many procedural aspects of care. Also, the facility commendably has initiated mechanisms to address some problematic aspects of its care, such as the use of restraints and seclusion. Nevertheless, there are significant and wideranging deficiencies in patient care provided at Metropolitan.

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Our Child and Adolescent Program findings, the facts supporting them, and the minimum remedial steps that we believe are necessary are set forth below.
I. PSYCHIATRY
Program 1's psychiatric supports and services substantially depart from generally accepted professional standards of care and expose the children and adolescents there to a significant risk of harm and to actual harm. Specifically, Metropolitan fails to provide clinically justified evaluations and diagnoses of psychiatric disorders; fails to provide adequate and appropriate treatment planning; fails to identify and address cognitive and academic deficits; fails to prescribe clinically justified psychotropic medications; fails to assess appropriately the side effects of medications; and fails to provide an appropriate therapeutic environment. The harm to these children and adolescents takes many forms, among them, inadequate, ineffective and counterproductive treatment, exposure to inappropriate and unnecessary medications posing serious physiological and other side effects, and excessively long hospitalizations, which compound psychiatric distress.
A. Psychiatric Evaluation and Diagnosis
Each individual’s psychiatric evaluation and diagnoses should be justified in a generally accepted professional manner. Specifically, there should be a close relationship amongst a patient’s diagnoses, identified problems in the treatment plan, daily clinical descriptions by staff, and the medications administered. Program 1 does not meet these minimum standards of care. Psychiatric evaluations and diagnoses are woefully inadequate. Psychiatrists chronically diagnose patients with psychiatric disorders without any clinical justification or any documentation of signs or symptoms required for such diagnoses. The number of clinically unjustified diagnoses strongly indicates that psychiatrists deliberately make psychiatric diagnoses to justify the use of psychotropic medication. Indeed, multiple psychiatrists indicated to us that they have assigned psychiatric diagnoses for this reason.
Not only do psychiatrists diagnose patients with disorders for which there is little or no clinical justification, they also routinely fail to diagnose patients with disorders for which patients do exhibit signs or symptoms. For example, abandonment

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issues and past trauma are nearly universal problems for the patients in Program 1. However, psychiatrists frequently ignore these disorders in diagnosing patients. Consequently, these disorders often are not identified as a focus of treatment. Such missed diagnoses are a grave deficiency, because without proper evaluation and diagnosis, it is virtually impossible for patients to receive adequate treatment. Moreover, improper diagnosis and treatment affect opportunities for patients to be placed in the most integrated setting appropriate to meet their needs.
The evaluations are also incomplete in that they routinely fail to include information about the patients’ medication histories, medications at time of admission, recommended medication regimens to be utilized for treatment, or general medical diagnoses. This information is crucial in guiding treatment. In particular, existing medical problems should be a significant determinant when choosing a psychotropic medication regimen so as to avoid interactions and exacerbations of individuals’ mental health or medical disorders.
There were many examples of these diagnostic problems. For instance, one patient, D.S.,1 was placed upon admission on numerous medications, none of which corresponded with his diagnoses. Two other patients, B.S. and N.C., were diagnosed with Bipolar Disorder and Bipolar Disorder II Depressed with Psychotic Features, respectively. Both were prescribed medications appropriate to treat acute mania. Neither patient, however, had any documentation in their evaluation to support these diagnoses, nor did they have identified problems in their treatment plans consistent with these diagnoses. Moreover, N.C.’s symptoms were more consistent with post-traumatic stress disorder than the Bipolar diagnosis. E.Z.’s evaluation contained no information about the dosages of previously prescribed medications, how those medications affected his symptoms, or his current medication regimen. Further, Attention Deficit Hyperactivity Disorder (ADHD) was not listed as an Axis I diagnosis to be ruled out despite the fact that E.Z. had a past diagnosis of ADHD and the evaluation stated that more information was required to confirm this diagnosis. The medical diagnosis of
1In this letter, to protect patients’ privacy, we identify patients by initials other than their own. We will separately transmit to the State a schedule cross referencing the initials with patient names.

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asthma noted in his evaluation was also not listed under the Axis III diagnoses. Similarly, the psychiatrist for another patient, U.C., failed to assess the possibility of Traumatic Brain Injury or to diagnose her with Post Traumatic Stress Disorder, despite her history of head trauma, prenatal exposure to drugs, sexual abuse, and neglect, including an incident resulting in her being seriously burned. Her evaluation also failed to list her past medication history or medications at the time of admission.
Separately, Metropolitan’s procedure calls for a preliminary psychiatric evaluation on the day of admission to Program 1 and a second evaluation once the patient is admitted to a specific unit. For several patients, including E.Z., B.P., L.M., X.N., C.H., Bc.O., J.U., B.H., and N.T., the information contained in the initial evaluation either was not included in, or conflicted with, the information contained in the second evaluation. This is of particular concern given that the evaluations were conducted within one or two days of each other. Contrary to generally accepted professional standards, there was no indication that the physicians who conducted these evaluations communicated about their significantly different findings.
B. Treatment Planning
According to generally accepted professional standards of care, treatment plans should be individualized and should, at a minimum: (a) identify patients’ diagnoses and symptoms; (b) provide interventions to address each diagnosed psychiatric disorder and the associated symptoms; (c) include medication plans; (d) provide interventions and treatments to address deficits in cognitive, academic and adaptive functioning, and address any other significant treatment or medical needs; (e) provide for monitoring of treatment efficacy; (f) provide for monitoring of medication side effects; (g) include plans to educate patients about their medications and other treatment interventions; and (h) identify the barriers to placement in the most integrated appropriate setting and the specific steps to overcome such barriers. Metropolitan’s treatment plans often fail to include this information and are not updated on a timely basis. More fundamentally, because Metropolitan fails to evaluate or diagnose adequately its patients, it is nearly impossible for it to develop appropriate treatment plans.
1. Diagnoses and Symptoms

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It is a serious concern that many patients have psychiatric disorder diagnoses although their treatment plans did not identify any problems related to psychosis. Only one of two conclusions results from these practices: either the diagnoses are appropriate and treatment teams therefore fail to identify the symptoms of patients’ most serious psychiatric disorders, or patients are not experiencing symptoms of psychiatric disorder diagnoses and thus the assigned diagnoses are unjustified. Neither possibility is clinically acceptable.
2. Interventions
We found that nearly every Program 1 treatment plan lists the same generic interventions. Treatment plans should be tailored to meet the individualized needs of the patients, and should take into account factors such as the patient’s functioning level, cognitive level, history of trauma, and medical conditions. None of the plans that we reviewed were individualized or sufficiently detailed. Generic statements such as “chemotherapy” or “group therapy” do not offer the level of detail necessary to allow teams to provide adequate treatment. For instance, X.N.’s treatment plan consisted of general interventions: “chemotherapy, individual therapy, group therapy, recreational therapy, IT assignment, and special educational programs.” The interventions listed for L.M. and N.Q. contained similar generic statements.
Further, none of the plans that we reviewed included any treatment for, or acknowledgment of, the patients’ severe traumatization and multiple out-of-home placements. The plans also provided no differentiation between major psychiatric and behavioral problems that were the reason for a patient’s hospitalization and relatively trivial problems not requiring hospitalization (such as aches and pains).
The use of highly restrictive interventions, including the use of seclusion, restraints and/or as-needed (so-called pro re nata or “PRN”) medication, should trigger a review of the effectiveness of a patient’s treatment plan. Metropolitan, however, does not routinely review treatment plans based upon these events, thereby exposing patients to ongoing restrictive interventions and ineffective treatment.
3. Cognitive, Academic and Adaptive Functioning

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Psychiatrists must be aware of and take into account patients’ cognitive, adaptive and academic levels of functioning to make accurate evaluations and diagnoses and for treatment to be appropriate and effective. A patient’s cognitive abilities will influence significantly her response to Program 1's expectations and the appropriateness of her treatment plans and criteria for discharge. Her cognitive abilities also will affect her understanding of the medications that she is prescribed.
Systematically, Metropolitan fails to identify and address patients’ cognitive, adaptive and academic deficits. Of the patients reviewed who had significant cognitive and/or academic deficits listed in their charts, none had any remediation or accommodation for these deficits in their treatment plans. Treatment teams seemed unfamiliar with the results of such testing, and they did not express concern that cognitive or academic deficits were reported to have changed from one 90-day evaluation to the next. In many cases, the only reason such testing appeared to be performed was to determine supports and services needed for discharge placement; in particular, to determine whether the patient could be transferred into California’s system of care for mentally retarded individuals.
The following examples are representative of Program 1's failure to identify and address cognitive and academic deficits. First, K.N.’s diagnosis changed from “Rule Out Mental Retardation” in November 1998, to “Moderate Mental Retardation” in January 2001, to “Borderline Intellectual Functioning” in April 2002. No member of his treatment team could explain these changing diagnoses to us, nor did the team include the patient’s cognitive/academic deficits as part of his treatment plan. Second, B.Q. had the diagnosis of “Mild Mental Retardation by history” on admission. This diagnosis was changed to “Borderline Intellectual Functioning” on her first 90-day evaluation without any new cognitive testing. Cognitive testing finally was performed over one year after admission for the purpose of determining discharge placement. The results of these tests were not available at the time of our tour, two months after testing had been completed. Third, D.S. was admitted with a cognitive disorder diagnosis. He, however, did not have cognitive testing until one and a half years after admission, at which time discharge was being considered. The fact that the results of D.S.’s test were in the mildly mentally retarded range did not result in any change in his treatment plan.

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Program 1's practice is to review treatment plans at 90-day intervals, after an initial 14-day hospitalization. This excessively long time period between treatment team meetings does not comport with generally accepted professional standards of care, which call for such meetings at a minimum of every 4 weeks, and contributes to excessively long hospitalizations. The infrequency of treatment team meetings exposes patients to heightened psychiatric distress, both from long-term institutionalization and from potentially deleterious treatments, the effects of which the treatment team is not in a position to timely detect and correct.
It is also critical that patients have genuine input into and understand their treatment plans and their implementation. Although Program 1 patients generally sign their treatment plans, there is no evidence that they have any meaningful input into, or agreement with, the plans. We observed treatment teams ignore significant self-initiated input from patients regarding their treatment during treatment team meetings. Moreover, there is no evidence that patients are educated about or understand the purposes of their prescribed medication, medication side effects, or the length of time it takes medication to take effect. As explained below at Section II, nursing and unit staff do not have the knowledge to assist the facility’s children and adolescents in understanding these issues. As a result, medications sometimes are changed without clinical justification because patients report that the medications are not working, although the prescribed medications may not have had time to work. In these cases, no documentation was found in the patients’ charts to show that staff had educated the patients about the time that needed to elapse before results could be expected.
Finally, treatment plans do not reflect an interdisciplinary provision of services. In part this is because Metropolitan has not identified a team member to coordinate the interdisciplinary treatment process. As a result, no one is accountable or responsible for coordinating patients’ overall treatment. No one ensures that treatment plans are developed and reviewed as necessary or that the various disciplines work together to develop and implement one coordinated, comprehensive plan. Similarly, communication and coordination among treatment team members and between treatment teams and the school is poor or non-existent. Staff whom we interviewed stated that various disciplines communicate informally. In any event, whatever communication takes place is not properly documented.

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The care provided to F.Q. illustrates several unacceptable aspects of Program 1's psychiatric evaluations, diagnoses, treatment planning, and treatment implementation. During or subsequent to a treatment team meeting for F.Q. that we attended, the team: (a) focused on whether she had a diagnosis of anorexia nervosa, notwithstanding that, given her excess weight, this diagnosis was not clinically possible, and that her desire to lose weight was reasonable; (b) failed to discuss a number of her psychiatric, Axis I, diagnoses or any specific symptoms supporting these diagnoses; (c) could not provide clinical data to support her diagnosis of Bipolar Disorder; (d) failed to identify or discuss her apparent sedation or Parkinsonian appearance, acknowledging that they had not evaluated her for side effects of medication; (e) failed to address her numerous self–initiated comments regarding her problems, needs and interests; (f) appeared unsurprised that she did not know the members of her treatment team; (g) acknowledged that they had no plans to evaluate her cognitive or academic functioning, despite the diagnosis of “Rule Out Borderline Intellectual Functioning”; and (h) could not explain the dramatic increase in her medication, conceding that a decrease in dosage may be indicated. Regrettably, from our observations, interviews, and document review, F.Q.’s treatment team meeting exemplifies the deficient treatment generally provided in Program 1.
C. Psychotropic Medication
The use of psychotropic medication always should be justified by the clinical needs of a patient. However, as previously explained, Program 1's use of psychotropic medication rarely is justified in that patients frequently are medicated based upon clinically unjustified diagnoses. Documentation does not support the types of medications being prescribed, the doses prescribed, or either the extended lengths of time that medications are prescribed in some cases or the rapid change of medications in others. Rather, several of the psychiatrists’ notes give the impression that there is little or no analysis conducted when choosing the patients’ medication regimens.
Furthermore, many patients are routinely prescribed inappropriate medications. Numerous patients, such as M.D. and N.H., were prescribed medications that are appropriate for chronically mentally ill adults, not children or adolescents. Psychiatrists also commonly prescribed older antipsychotic

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medications, such as Thorazine and Haldol, as part of patients’ regular medication regimens or as medication to be used as a PRN. In view of the fact that these older antipsychotic medications have a host of serious side effects that the newer atypical antipsychotic medications do not have, the use of these medications in an adolescent population is an outdated, potentially harmful, medication practice. Moreover, these medications were prescribed for at least 21 children and adolescents without any documented clinical justification. It appears that these medications are prescribed to control individuals’ behaviors in lieu of an appropriate medication regimen and/or of therapeutic treatment interventions.
Also, although modification of medications is appropriate at times, Metropolitan’s psychiatrists often recommend medication changes frequently and abruptly without any documented rationale for the change. This practice is unsafe, given that such changes can exacerbate or precipitate an individual’s symptoms.
Further, it is generally accepted that, in most instances, psychotropic medication should be used to treat psychosis. When psychotropic medication is prescribed to treat symptoms other than psychosis, this practice should be documented clearly with a specific plan for minimizing the dosage and duration of the use of the medication. As indicated above, more than one Program 1 psychiatrist acknowledged prescribing psychotropic medication to reduce aggression and agitation rather than to treat psychosis, and acknowledged manufacturing diagnoses to justify this practice. Assigning psychiatric diagnoses to patients who do not meet the diagnostic criteria for such diagnoses in order to justify the use of psychotropic medication is an unacceptable medical practice.
Psychiatrists also prescribe medication for purposes that have no mention in current or past literature and for which their use has no known pharmacological basis. This form of so-called “off-label” medication usage is considered speculatively experimental, should be practiced ethically only under the supervision of an institutional review board, and requires a patient’s and/or guardian’s clear consent. Program 1 does not meet any of these requirements. For example, a number of patients are prescribed Naltrexone, a psychotropic, to treat a host of different behavioral problems. Metropolitan’s medical administration appeared unaware that this was occurring. Although documentation reflected that the off-label usage of this

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medication was approved by the Pharmacy and Therapeutics (“P&T”) Committee, there is no institutional review board to provide oversight, there is no experimental design to monitor this practice, and there has been no effort to obtain patients’ and/or guardians’ informed consent.
Despite the fact that many of the medications that are prescribed for Program 1's children and adolescents have potentially serious, and often irreversible side effects, such as tardive dyskinesia, Metropolitan has no standardized instrument in place to assess regularly these side effects. Similarly, treatment plans do not include plans for monitoring potential side effects. Without objective measures in place to identify medication side effects at an early stage, Program 1's children and adolescents are at risk of developing potentially irreversible complications.
When potential side effects of psychotropic medication are identified, Metropolitan’s response is inadequate and inappropriate. For instance, E.Z.’s physical examination indicated that he had gynecomastia (development of prominent breast tissue in a male), a potential side effect of one of his medications. There was no indication, however, that this was ever addressed or evaluated further. Similarly, several individuals suffer constipation related to psychotic medication use. Rather than reassess the medications for these individuals, clinicians rely on the chronic administration of stool softeners and laxatives, an unacceptable medical practice for this population.
D. Therapeutic Environment
As part of its psychiatric treatment, generally accepted professional standards of care dictate that Program 1 should provide a therapeutic environment that minimizes the deleterious effects of institutionalization (namely, the compounding of childrens’ and adolescents’ psychiatric problems such that their developmental trajectory is further compromised) and is conducive to the treatment of severely psychiatrically disturbed and traumatized children and adolescents. In providing a therapeutic environment, there should be a structure comprised of community rules, meetings, and social interactions that help patients learn adaptive coping skills, improve self-esteem, and develop positive skills (“milieu structure”). The environment in Program 1 does

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not meet any of these goals. Rather, Program 1 is characterized by a great shortage of staff-initiated, positive interactions.
We saw few positive, spontaneous, therapeutic interactions in which staff initiated and facilitated a patient’s expression of feelings, connected a patient’s behavior with feelings, employed a “teachable moment” technique, or started a meaningful, positive staff-to-patient or patient-to-patient exchange. Staff typically failed to use natural social experiences, such as distribution of snacks, doing chores, or engaging in recreational activities, to promote positive social functioning. Rather, staff’s interactions with the individuals on the units were mainly reactive and/or directive in nature, and at times resulted in power struggles with patients, exacerbating crisis situations. Similarly, we observed a lack of staff-facilitated, age appropriate patient-to-patient interactions. Patients appeared bored, over-medicated, ignored and/or upset. Program 1's failure to provide an appropriate health-promoting environment is unacceptable and does not meet generally accepted professional standards of care.
Program 1's milieu structure is largely based upon a Point and Level System. Staff appear to believe that this system motivates patients to the extent that simply the interaction between patients and the system constitutes active milieu therapy. We found numerous serious deficiencies with this system.
The Point System is a complex process that neither patients nor staff are likely to understand adequately. The system does not allow for consistent, accurate or individualized application of points across residential units and/or schools. Points are not distributed contingent upon the occurrence of behaviors, and they are not distributed frequently and immediately in association with those behaviors. Consequently, their intended therapeutic effect is negated. The number of points that students can earn at school - ten percent of their total daily points - significantly undervalues the educational portion of their lives. Most significantly, points are not utilized in a therapeutic way to connect a patient’s behaviors with feelings or to identify more effective coping strategies.
Similarly, the Level System is very complex. Children and adolescents who are severely mentally ill and traumatized, many of whom have cognitive impairments, are highly unlikely to

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understand it. Procedures by which patients’ levels are dropped or raised are not defined clearly. It is virtually certain that, in light of their histories of abuse and trauma, many Program 1 patients will experience the system as arbitrary and punitive, thereby negating any therapeutic effect. The fact that this system is a key component to determining patients’ attainment of discharge criteria makes it even more troubling.
Program 1's physical environment is also deficient. Given Program 1's population, the physical environment should, within the bounds of safety, promote privacy, individuality, creativity, and the opportunity for recreational activities to minimize the effects of institutionalization and promote positive social behavior. However, we found problems in all of these areas.
As a primary matter, patients’ rights to privacy and confidentiality are breached by the public distribution of medication and the posting of patient-specific information on publically visible boards. More broadly, recreational equipment was limited to televisions, damaged basketball nets, and oftenviolent video games. The courtyards, which appear to be used rarely by patients, are in disrepair and poorly equipped. Although the facility has a fenced playing field, not once during our multiple trips around facility grounds during our two fiveday visits did we see any children or adolescents on it.
Many of Program 1's problems in providing adequate psychiatric services are the result of a lack of leadership and direction by psychiatrists and senior administration. There is no evidence of medical staff providing leadership in treatment teams or during periods in which patients are experiencing acute psychiatric distress. Indeed, there was scant acknowledgment, at leadership and administrative levels, that extended institutionalization frequently exacerbates existing psychiatric problems of children and adolescents. In important respects, the administration’s focus lies elsewhere; various Metropolitan documents identify the facility’s “clients” as, not the children themselves, but rather the counties from which they come.
II. NURSING
Program 1's nursing services substantially depart from generally accepted professional standards of care and treatment and expose the children and adolescents there to a significant risk of harm and actual harm. These deficits derive from nursing

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and unit staff’s: (a) failure to identify, monitor and report patients’ symptoms and side effects of medications; (b) unfamiliarity with mental health diagnoses, associated symptoms, and appropriate treatments and interventions; (c) lack of knowledge regarding their patients; and (d) ineffective participation in the treatment team process.
Many nursing and unit staff appear to lack adequate support, training and supervision. Metropolitan leadership does not encourage Program 1 nursing and unit staff to communicate with other team members to solve problems proactively. As a result, nursing and unit staff respond to patient needs in a largely reactive way. This, in turn, exposes Program 1's children and adolescents to excessive and inappropriate uses of medication; seclusion, and restraints; inadequate and ineffective therapeutic interventions; and unnecessary institutionalization.
A. Monitoring and Reporting of Patients’ Symptoms
Generally accepted professional practice requires that patients’ treatment plans identify the interventions and strategies to be utilized by nursing and unit staff to address the symptoms of patients’ diagnoses, the symptoms to be monitored, and the frequency with which the symptoms are to be monitored. It is essential for nursing and unit staff to monitor, document and report patients’ symptoms for the treatment team to determine if the implemented interventions are adequate or require modification. The psychiatrists who prescribe medications and the psychologists and social workers who oversee other therapeutic interventions rely on nursing and unit staff to collect and report this information. Nursing and other unit staff are on the unit 24-hours a day, seven days a week; they can and should record and report this information. Program 1 nursing and unit staff do not properly monitor, document and report such information. In part, this is because Program 1's treatment plans generally do not identify the symptoms to be monitored or the frequency with which staff should monitor them.
Metropolitan does not appear to have a system in place to collect and analyze such information on a regular basis or to utilize such information in the reassessment and treatment plan revision process. Without objective measures in place to determine the effectiveness of the interventions being used, Program 1's patients are likely to receive inappropriate and ineffective treatment interventions for long periods of time, and

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to be exposed to excessive or inappropriate uses of medications, seclusion, and/or restraints.
Staff who administer medication should know what the medication is for, know what results it is intended to achieve and when, and know the symptoms of the disorder that the medication is supposed to address. As a general matter, the Program 1 nurses are unfamiliar with the purposes of the medication they administer, and a number of nurses we interviewed were unable to identify the symptoms associated with the disorder for which a particular medication was prescribed. This lack of basic clinical knowledge contributes to nursing staff’s failure to monitor and report patients’ symptoms.
B. Monitoring of Medication Side Effects
Generally accepted professional practice requires that nursing staff monitor patients for potential side effects of medications. However, Metropolitan nursing staff responsible for the day-to-day care of patients do not monitor, document or report evidence of side effects on a regular basis. This is in part because, as stated above, treatment plans do not include plans for monitoring potential side effects. Even when nursing staff do identify patients who are experiencing side effects, they do not take adequate action to notify the prescribing physicians and to ensure that appropriate follow-up occurs. The charts of a number of patients included notes indicating that nursing staff had witnessed side effects such as drooling, but they failed to report this to the prescribing physician and/or document the symptom on a more formal basis, such as through standarized instruments that measure and record medication side effects.
C. Participation in Treatment Team Process
Nursing and unit staff consistently demonstrated a lack of knowledge regarding the therapeutic process. Many could not provide essential information about the individuals on their units such as the level of family involvement, issues being pursued in therapy, symptoms of Axis I disorders, reasons for medication changes, or options for discharge. Without nurses’ knowledge of this crucial information, the units cannot function adequately as therapeutic environments.

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It is generally accepted professional practice for nursing staff, as well as other staff who provide direct support to patients, to participate as active members of the treatment team. Because these staff work on a daily basis with the children and adolescents of Program 1, they likely know the patients best. However, Program 1 nursing and unit staff do not participate meaningfully in the treatment team process. Generally speaking, Program 1 nursing and unit staff do not appear to understand therapeutic tools or how to implement them. Nursing staff do not know the children’s and adolescents’ histories, especially the family histories, which is where mental health issues often start. Nurses do not appear to understand their role as psychiatric nurses.

This lack of knowledge and skills places nurses and other unit staff at a disadvantage in the team process. Without adequate knowledge and skills, nursing and unit staff cannot contribute meaningfully to the development of treatment plans and interventions; cannot challenge other team members to consider alternative diagnoses, medications or interventions when those in place do not appear to be correct; cannot implement interventions effectively; and cannot provide a therapeutic milieu. This ultimately results in the children and adolescents of Program 1 receiving inadequate treatment and care.

III.

PSYCHOLOGY

Program 1's psychological services and behavioral interventions substantially depart from generally accepted professional standards of care and expose the children and adolescents of Program 1 to significant risk of harm and to actual harm. The deficiencies include inadequate clinical assessments; insufficient, inappropriate active treatment; and inadequate behavioral interventions. The harm to these children and adolescents takes many forms, among them, perpetuating their emotional behavioral difficulties; unnecessarily extending their stay in a highly restrictive setting; diminishing their sense of self worth; subjecting them to excessive use of seclusion, restraints, or sedating medications; fostering despair and hopelessness; and, in some cases, depriving them of physical safety.

A. Psychological Evaluations

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In attempting to determine the psychological problems and needs of children and adolescents, it is critical that psychologists and direct care staff observe and assess them on a regular basis. However, clinical staff infrequently observe and directly assess the children and adolescents in their care. Consequently, in making treatment decisions, clinicians fail to consider important aspects of both the patients’ clinical status and their level of functioning. This deficiency is exacerbated by the lack of a hospital policy dictating when psychological evaluations are to be updated.
Psychological evaluations should identify and address psychiatric issues when such issues are present. Program 1 evaluations frequently fail to do so. For instance, although M.C.’s psychological evaluation on admission identified no psychiatric issues, he subsequently was psychiatrically diagnosed with Bipolar Disorder with Psychotic Features. Notwithstanding that psychiatric diagnosis, his psychological evaluation was not updated. Consequently, either M.C.’s psychiatric diagnosis was wrong or his psychological evaluation was significantly deficient.
Similarly, as discussed in Section I, psychological evaluations should identify and address functional abilities. In this regard, “Mental Retardation” and “Borderline Intellectual Functioning” are distinct categories of intellectual assessment that should trigger different treatment interventions. Metropolitan’s psychological evaluations often do not recognize this distinction. For example, K.N. was admitted to Metropolitan with a diagnosis of “Rule Out Mental Retardation,” and shortly thereafter was assessed as having a full-scale IQ of 54 – well into the range of mental retardation. Nevertheless, without documented justification, his diagnosis was changed to “Borderline Intellectual Functioning.”
Psychological evaluations also must address relevant components of particular disorders, but Program 1's evaluations frequently do not. For instance, O.N. was diagnosed with Autistic Disorder, but nowhere in his chart was it evident that his speech and language had been evaluated, notwithstanding that an understanding of an autistic patient’s communication abilities is essential in shaping appropriate interventions.
Questions generated in psychological evaluations should be answered, not left unresolved for extended periods of time.

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Failure to address promptly questions fundamental to a correct psychological evaluation undercuts the evaluation’s efficacy. Nevertheless, a Metropolitan psychologist informed us that it was not unusual for unresolved diagnoses (so-called “rule out diagnoses”) to remain open for 10 to 12 months. For example, E.H. was admitted in April 1999 with “Rule Out Mild Mental Retardation.” That unresolved diagnosis was in place when we toured the facility more than three years later. In fact, a number of patients went through their entire treatment regimen and were discharged with one or more unresolved diagnoses. This problem is exacerbated by nursing and unit staff’s failure to monitor, document and report patients’ symptoms as discussed above.
The foregoing deficiencies signal that Program 1 treatment teams undervalue psychological evaluations. Evidence of this comes from various charts, such as S.N.’s and F.U.’s, that do not even contain a psychological evaluation. The evaluations apparently had been removed from the active charts in contravention of facility policy. Further evidence that the facility disregards the importance of psychological evaluations is its failure to use Spanish-language testing tools for patients whose primary language is Spanish. Metropolitan identified 11 such patients at the time of our tour.
These problems lead to inaccurate, incomplete, and unreliable evaluations, which in turn leave the appropriateness of the psychological interventions to chance. This is a substantial departure from generally accepted professional standards of care that subjects Program 1 patients to the risk of harm and actual harm, in the form of untreated psychological disorders and psychological disorders that are worsened through inappropriate treatment.
B. Active Treatment
Generally accepted professional standards of care call for evidence-based psychotherapeutic interventions, that is, interventions that are empirically supported as effective. Program 1 policy does not reflect such a standard. Instead, it unspecifically states that “[e]ach patient shall be provided with an individualized program of treatment activity which reflects the program’s highest level of performance and the optimal level of patient participation.”

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In any event, activity logs indicate that a number of children and adolescents receive virtually no active treatment. That is, they have scant participation in individual and group therapy or in activities of leisure and recreation.
Attendance records indicate that some children receive as little as one-half hour of individual therapy and 30 total hours of structured therapeutic activity, a month. One patient received no recorded therapeutic activities for a 12-day period, other than participation in 30-minute group meetings at which the patients’ points for behavior, treatment and school participation are announced. Metropolitan staff could not identify any current active treatment for patient T.T.’s primary diagnosis of Post Traumatic Stress Disorder. Further, although T.T. also carries a diagnosis of polysubstance abuse, she reportedly has attended a substance abuse group only once and apparently is receiving no other substance abuse interventions. Moreover, most patients we reviewed receive no family therapy, despite the fact that many have significant traumatic family histories.
Further, as explained in Section I, above, there is little evidence of spontaneous, positive social interactions, especially interactions initiated by staff. There is also little evidence that the courtyards and free time are used constructively to enhance patients’ lives. In summary, the amount of active treatment that Program 1 patients actually receive is alarmingly low.
Separately, there are a number of concerns with the quality of individual and group therapy. To be effective, individual psychological therapy should be available to patients in their primary language. Moreover, Metropolitan is a provider of health and social services that receives federal financial assistance from the U.S. Department of Health and Human Services. As such, it is required to provide Limited English Proficient (“LEP”) persons such language assistance as is necessary to afford them meaningful access to these services, free of charge. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.; 45 C.F.R. § 80.3(b). See also Policy Guidance on the Prohibition Against National Origin Discrimination as It Affects Persons with Limited English Proficiency, 65 Fed. Reg. 52762 (Aug. 30, 2000)(“Health and social service providers must take adequate steps to ensure that [LEP] persons receive the language assistance necessary to afford them meaningful access to their services, free of charge.”); 28 C.F.R. § 42.405 (d)(1) (“ Where a

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significant number or proportion of the population eligible to be served or likely to be directly affected by a federally assisted program . . . needs service or information in a language other than English in order effectively to be informed of or to participate in the program, the recipient shall take reasonable steps, considering the scope of the program and the size and concentration of such population, to provide information in appropriate languages to such persons.”) Notwithstanding these obligations, Metropolitan has a significant number of primarily Spanish-speaking patients, such as F.U., whose therapists do not speak Spanish.
In any event, there is also little indication that the therapy sessions have an effective impact on individuals’ outcomes. For example, inconsistent documentation indicates that J.U. received somewhere between 6 and 12 hours of individual therapy from February to May 2002. From late April to late May, she received five psychotropic PRNs and was placed in seclusion and/or restraints on 16 occasions. Similarly, T.T. received approximately 4½ hours of individual therapy from March to May 2002. She received no family therapy despite her issues regarding family dysfunction and her family’s active visitation. From early April to early May, she received 12 psychotropic PRNs and was placed in seclusion and/or restraints on 11 occasions. These examples reflect Metropolitan’s failure to provide the necessary therapeutic interventions to treat appropriately and effectively the children and adolescents in its care.
The group therapy provided at Metropolitan is inadequate. Only 9 of the 157 group therapy/activity protocols that we reviewed for Program 1 contained interventions or approaches that were empirically supported as effective. Groups are provided too infrequently and inconsistently. In particular, Metropolitan is not providing adequate substance abuse or medication groups -­ critical groups for this population given that all of the patients are taking psychotropic medications and many have drug and alcohol issues.
Further, the lack of clinical oversight of group therapy raises serious concerns. Generally accepted professional standards of care require that such oversight be provided to: (a) determine a patient’s readiness to participate in a group; (b) identify the group(s) that will provide therapeutic value to the individual; and (c) follow the patient’s progress in the group(s) and regularly re-assess the appropriateness of the

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group(s) based on the patient’s individualized needs. Program 1's group therapy lacks any such clinical oversight, thereby exposing its patients to serious risk of harm. For example, many of the children and adolescents served by Program 1 have histories of being subjected to abuse. By placing these patients in groups in which subjects such as abuse are discussed prior to assessing their readiness to participate in such a group, Metropolitan is potentially re-traumatizing these children and adolescents. This is further exacerbated by making attendance at groups a requirement for earning points in the point system and ultimately for being considered for placement in a more integrated setting.
The quality of milieu programs (which are programs applicable to all patients and are to help them learn adaptive coping skills, improve self-esteem, and develop positive skills) appears also to be inadequate, as evidenced by the number of patients, such as Ui.N., Bc.O., I.X., and D.C., who have opted to miss almost as much as a month of school, and the many patients who “refuse to participate” in group therapy, according to their charts. High rates of treatment refusal convey a message regarding the quality of the treatment and should trigger an urgent assessment of programming and/or the patient, but this does not occur at Program 1. Moreover, patients whose group therapy attendance qualifies them for desirable activities, such as weekly community outings, are sometimes told that they cannot participate in these activities because of staffing constraints, which diminishes whatever therapeutic effectiveness group programming might have.
The efficacy of psychological treatments is further undercut by the use of excessive sedation for several Program 1 patients. During our tour, we frequently observed patients sleeping in day rooms during free time, sleeping in school classes, and sleeping during group activities. Many other patients were awake but showed signs of heavy sedation. Excessive sedation does not comport with generally accepted professional standards of care. Rather, it indicates inappropriate reliance on medication to manage patient behavior and restricts participation in treatment and educational programming. It also fosters a mentality that behavior cannot be internally and voluntarily controlled. Further, it prolongs patients’ stay in a highly restrictive environment.

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Independent of the quality of therapy, the documentation of individual and group therapy and group activities is fundamentally insufficient, stating neither the nature of the interventions employed nor the patients’ responses. For example, documentation regarding I.X. is limited to general statements in the nursing notes, such as “has been . . . attending group,” and various lists of the groups in which I.X. has participated. Similarly, the notes for B.S. by the physician, social worker, and psychologist do not even mention group treatment, and the nurse’s notes contain only general statements, such as “[p]atient participates in groups.” Consequently, it is not possible to gauge accurately the efficacy of particular treatments or assess the patient’s progress relative to those treatments. In addition, patients’ records often indicated that individual therapy was provided when therapy progress notes did not. These discrepancies call into question the integrity of the documentation as well the actual provision of services.
In any event, the dearth of effective active treatment interventions predictably contributes to poor patient progress in meeting treatment goals and discharge criteria. E.H. is illustrative. E.H. was admitted to the facility in April 1999. During our tour, personnel on his unit contemplated relaxing the standard discharge criteria, such that E.H. could be discharged if he maintained Level 3, the highest level of performance, for one month. Even this standard fails to recognize the ineffectiveness of E.H.’s treatments; in the more than three years that E.H. has resided at Metropolitan, this patient has achieved Level 3 one time.
E.H. illustrates the predicament of many of Metropolitan’s children and adolescents. The failure to reach benchmarks that Metropolitan has determined to be achievable for patients like him primarily reflects, not his personal failings, but rather the shortcomings of the treatments he receives; E.H. is not receiving treatments that will allow him to maintain Level 3 long enough to leave the facility.
In summary, it is apparent that Program 1's active treatment interventions are too infrequent, are of inadequate quality, and are insufficiently documented. These deficiencies result in unnecessarily extended hospital stays, and they likely exacerbate psychological symptoms and increase feelings of hopelessness and emotional distress.

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C. Behavioral Interventions
Behavioral intervention is a fundamental component of any appropriate treatment program for children and adolescents with emotional and behavioral disorders. Behavioral intervention occurs in milieu, or structural, context and on an individual level. In general terms, the objective of behavioral intervention is to facilitate other forms of treatment by controlling environmental conditions and shaping responses to environmental conditions. Shaping of responses occurs most typically through the consistent, comprehensible imposition of consequences that increase desirable behavior and decrease undesirable behavior. Virtually every aspect of Program 1's behavioral treatment programs is profoundly below generally accepted professional standards of care.
1. Milieu Programs
Generally accepted professional standards of care for behavioral programming call for the identification of specific, “operationally defined” “target” behaviors and the provision of consistent responses across settings to those behaviors. (In general terms, “operationally defined” means behaviors that are specified with particularity such that different observers can agree whether the behavior has occurred, and “target” behaviors means behaviors identified for treatment.) Behavioral programming that departs from these standards is virtually certain to fail and may exacerbate behavioral problems.
Perhaps the most prominent aspect of Program 1's milieu programs is its Point and Level System, the deficiencies of which are discussed above, at Section I. Independent of the Point and Level System, target behaviors in Program 1 behavior programs were stated in vague terms. Many patients’ behavior programs included one target behavior for the unit, addressed only in the unit, and a different target behavior for the school, addressed only in the school. Thus, contrary to generally accepted professional standards of care, Program 1 does not ensure that responses to targeted behaviors are consistent across environments. Further, in at least one unit, the treatment team’s review of, and changes to, target behaviors were not documented. In this regard, there was no effective means of tracking patient progress relative to the targeted behavior.

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These problems severely restrict any benefit of the milieu programs and serve to frustrate and confuse patients.
2. Individual Behavioral Planning
Generally speaking, individual behavioral assessment is the careful examination of patient behaviors and the settings and circumstances in which they occur for purposes of developing appropriate interventions for undesirable behaviors and reinforcing desirable behaviors. Under generally accepted professional standards of care, this assessment is done through a functional analysis or functional assessment, which determines the purpose of the behavior and helps identify appropriate replacement behaviors.
As an initial matter, it is not clear that psychologists are aware of relevant behavioral data, including episodes of seclusion and restraints, which is essential in developing appropriate behavior support. Facility chart “thinning” guidelines dictate that the most recent three months of clinical data must be kept in the active chart, but we reviewed active charts from which recent instances of seclusion and/or restraints had been removed. T.T. is an example. Data regarding 15 episodes of seclusion or seclusion/restraints occurring in the three months just before our tour were “thinned” from T.T.’s active chart and placed in another chart intended to store dated information. Further, as indicated in Section II, Metropolitan does not have procedures in place to ensure that nursing and unit staff reliably monitor, document and report patients’ symptoms and behaviors.
Program 1 behavioral supports are prepared without an adequate analysis of undesirable behaviors. The individual behavior treatment plans for F.U., I.X., D.Q., and N.Q., were prepared without a functional analysis or assessment of the behaviors which the plans are to address. One unit psychologist acknowledged that he had received no training in conducting functional behavioral assessments and was not aware of any tools for performing such assessments. The psychologist on another unit stated that systematic tools for conducting functional assessments were not available in the hospital.
The Program 1 individual behavior treatment plans are identified interchangeably as “special treatment plans” or “behavioral treatment plans.” It appears that they are prepared

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without adherence to specific criteria regarding methodologies or required components; the plans that we reviewed lack a common structure or approach. Their lack of functional analysis, of consistent, justifiable methodology, and of uniform components are shortcomings that significantly depart from generally accepted professional standards of care.
Separately, the triggers for performing behavioral assessments are poorly conceived. Consequently, individual behavior treatment plans are developed too rarely. In this regard, generally accepted professional standards of care require a clearly defined behavioral response, such as a behavioral treatment plan, to repeated episodes of highly restrictive interventions. However, Metropolitan policy requires individualized behavioral treatment plans only after the use of one-to-one supervision for 72 hours, due to harmful, or potentially harmful, behaviors.
Indeed, many patients are placed in seclusion and restraints repeatedly without triggering a behavioral assessment. Although T.T. was placed in seclusion and restraints 17 times over the 90day period reviewed, and was subjected to PRN psychotropic medications 13 times over the 85-day period reviewed, T.T. did not have an individual behavior treatment plan. An intervention, of sorts, had been in place, but that was limited to T.T. reporting hourly to the nursing staff and was terminated because T.T. reportedly was uncooperative. Similarly, O.I. had 19 episodes of seclusion or restraints and 18 episodes of PRN medication in the period of slightly less than three months immediately preceding our Program 1 tour, but O.I. did not have an individual behavior treatment plan. Program 1 personnel indicated to us that, as a general matter, the decision to begin tracking individual behaviors was made informally.
Further, when behavioral interventions were developed, in at least some cases they were prepared with inordinate delay. Ui.N.’s chart indicates that a functional analysis of U.N.’s behavior was conducted in July 2001, followed by behavior tracking in October 2001 and the development of a “Special Treatment Plan” dated May 7, 2002. This example highlights not only a significant delay in treatment, but also another serious, more fundamental problem, which is that the facility is lackadaisical in responding to children and adolescents who are in need of urgent care and for whom extended institutionalization itself causes harm, by compounding their psychiatric problems.

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When developed, the behavioral interventions are deficient in nearly every significant respect. They: (a) frequently are not prepared based on a functional analysis of behaviors, as in the plans of I.X., D.Q., Bc.O. and N.Q.; (b) describe target behaviors too broadly for the behaviors to be identified and tracked consistently, as in the plans for Ui.N., I.X., D.Q. and N.Q.; (c) do not sufficiently prescribe which environmental and consequential factors should be altered, as in the plans for Ui.N., I.X., D.Q., Bc.O., F.N. and N.Q.; (d) are internally inconsistent, as in the plans for Ui.N. and I.X.; (e) lack a reliable method to insure integrity of implementation, as in the plans for Ui.N., I.X. and D.Q.; and (f) lack criteria for revision or termination, as in the plans for Ui.N., I.X., D.Q. and N.Q.
Although Metropolitan has a Behavioral Treatment Review Committee charged with evaluating and approving behavioral treatments before they are implemented and with providing guidance to the psychologists preparing behavioral interventions, it is clear from the foregoing discussion that this committee is not functional. In fact, we could find no committee minutes for March and April 2002. The lack of quality control, guidance and leadership emanating from this committee conveys a message of indifference to the persons charged with providing adequate psychological care, indifference to the therapeutic importance of that care, and indifference to the children and adolescents who need but are not receiving adequate psychological care. That message of indifference contributes to the deficient psychological care at Program 1 and the resulting harm to its patients.
D. Use of Seclusion, Restraints and “As-Needed” 
 Medications

Program 1's use of seclusion, restraints and “as-needed” (also known as pro re nata or “PRN”) medications substantially departs from generally accepted professional standards of care and exposes the children and adolescents there to excessive and unnecessary restrictive interventions. It is generally accepted professional practice that seclusion and restraints will only be used when a person is a danger to self or others and when all other less restrictive measures have been attempted but failed. It also is generally accepted professional practice that seclusion and restraints will not be used in the absence of treatment or as punishment and will be terminated as soon as the

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person is no longer a danger to himself or others. Finally, according to generally accepted professional medication practices, PRN medications should be used for psychiatric purposes only as a short-term measure to relieve a patient in acute distress, not as means to escape mild, possibly healthy, discomfort or as a repeatedly deployed substitute for treatment of the patient’s underlying condition.
Metropolitan Program 1 staff use seclusion, restraints and/or PRN medications in the absence of adequate treatment and/or as punishment. Many episodes of seclusion, restraints and/or PRN medication use occur as a result of Program 1 patients exhibiting symptoms of their mental health disorders. Without the benefit of appropriate medication and therapeutic interventions, the children and adolescents are unable to control such symptoms. As a result of inadequate mental health treatment, children and adolescents are exposed to excessive use of seclusion, restraints, and/or PRN medications.
Moreover, we found numerous incidents in which patients exhibited behaviors that initially were not a danger to themselves or others, but because nursing and unit staff exacerbated their behaviors, the patients were ultimately subjected to seclusion, restraints and/or PRN medications. Because many Program 1 staff are not skilled in de-escalating their patients’ behaviors, and because the patients lack adequate behavior support plans, staff frequently engage in power struggles with the patients. The documentation that is intended to reflect the interventions that staff attempted to use before seclusion, restraints and/or PRN medications does not indicate that staff had attempted other, less restrictive interventions.
Whenever a seclusion, restraint and/or PRN medication is used, it is generally accepted professional practice for the interdisciplinary team to reassess interventions and, as necessary, to modify the treatment plan to ensure that adequate proactive measures are identified and implemented. Frequent use of seclusion, restraints and/or PRN medications is an indicator that an individual’s diagnosis is erroneous and/or that the treatment plan is inappropriate. Program 1 is failing to review patients’ treatment plans after such episodes. There were numerous patient charts that, on one hand, identified frequent seclusion, restraint and/or PRN medication episodes but, on the other, contained no documentation that the team had reviewed the treatment plan or considered alternative interventions. For

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example, J.U. was placed in seclusion and/or restraints on 19 occasions between April 16 and June 17, 2002. O.I. was placed in seclusion and/or restraints on 20 occasions between April 4 and May 30, 2002. S.N. was placed in seclusion and/or restraints on 18 occasions between April 2, 2002 and June 29, 2002. We found no evidence that any of these patients’ treatment plans were reassessed or that other interventions were utilized before restraints. Moreover, staff frequently failed to document any information about the patients’ status before, after or between episodes of seclusion, restraint and/or PRN medication use, making it difficult to improve the treatment plans.
Although Program 1 has made efforts to address its high rates of seclusion and restraints, those rates remain excessive. According to Metropolitan’s statistics, for the 85 days immediately preceding our tour, there were 359 episodes of seclusion, restraints, or seclusion and restraints. Metropolitan statistics indicate that the average Program 1 census during our tour was 96. Together, these figures yield 43.99 episodes per 1,000 patient days, which is almost double the national aggregate data for adolescent psychiatric inpatient programs of 24.49 episodes per 1,000 patient days. See Association of Maryland Hospitals & Health Systems’ Quality Indicators Project (2000) at http://www.qiproject.org/publicdata/psych/ (national comparative study).
Further, it appears that Metropolitan’s statistics under­ report the actual amount of seclusion and restraints that is being used. A random check of “Seclusion/Restraint” forms (form MSH 1172) uncovered numerous instances of seclusion and restraints not included in the summary seclusion and restraints data that Metropolitan provided to us. Examples of seclusion and restraints not captured in this summary data include:
(a) K.C. seclusion/restraints on 4/25/02, 18:0519:30;
(b) K.S. seclusion/restraints on 4/28/02, 19:0020:30;
(c) L.M. seclusion/restraints on 4/7/02, 14:2016:10;
(d) P.B. seclusion/restraints on 4/13/02, 12:3513:30;
(e) F.S. seclusion/restraints on 4/1/02, 15:1517:15;

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(f) S.N. seclusion/restraints on 4/24/02, 15:1517:15; and
(g) E.G. seclusion/restraints on 5/7/02, 9:0511:00.
The excessive use of PRN medications is also of great concern. For the 85 days immediately preceding our tour, PRN medications were administered 392 times. Based on a census of 96, this yields a rate of 48.04 episodes of PRN use per 1,000 patient days, which is an excessive rate.
There are numerous specific examples of excessive use of PRN psychotropic medications. U.C. received 20 PRN doses of Haldol between April 3 and June 16, 2002. Strikingly, 11 of these PRNs were administered by injection at U.C.’s request because “it was faster.” Ub.N. received 22 psychotropic medication PRNs from April 6 to June 23, 2002, ten by injection. More than half of the PRNs were Haldol and Thorazine. Over approximately the same two month period, at least nine other individuals received between seven and 15 antipsychotic PRNs each. Many of these PRNs were for Haldol or Thorazine and/or were administered by injection.
The documentation indicates that patients frequently request and receive PRN medications when they are feeling “anxious.” The facility appears to permit the use of PRN medications as a substitute for sound therapeutic intervention, thereby contributing to patients’ medication dependency and dysfunction. In our review of charts of patients requesting PRNs, there was little indication that patients were provided proactive, supportive interventions before or after the administration of these medications. It does not appear that staff use such opportunities to teach children and adolescents the coping skills necessary to live independently in the community. Moreover, as discussed in Section I above, the use of the older antipsychotic medications raises a host of other serious risks to these patients’ health.
IV. PHARMACY
It is standard practice for pharmacists to review individual patient’s medication regimens. Such a review should encompass all of the medications prescribed (not just psychiatric drugs and PRN medications) and should include documentation of any communication between the pharmacists and physicians regarding

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concerns, potential medication interactions, and the need for laboratory testing. Pharmacists, by the nature of their education and licensure, are the facility’s experts regarding medications and medication interactions and share responsibility with physicians regarding medication decisions. We found no evidence that Metropolitan pharmacists perform these crucial roles. This is particularly troubling given the outdated and unjustified combinations of medications that are prescribed for these children and adolescents. By not providing adequate pharmacy services, Metropolitan places Program 1 patients at risk for the misuse of medication, unnecessary side effects from medication, potential drug interactions, general health problems, and excessively long hospitalizations.
V. GENERAL MEDICAL CARE
There are numerous instances in which Metropolitan fails to provide necessary medical care to the children and adolescents in Program 1. A number of children, including U.C., E.Z., S.K., C.H., Ui.N. and T.T., waited one to two months for an evaluation after complaining of vision problems and an additional one to three months to receive their glasses. U.C. experienced nighttime incontinence and received 15 doses of Motrin over two months for headaches. Neither problem was evaluated. The results of an x-ray for E.Z. were not noted by his physician for over one month. Similarly, C.H.’s physician did not initial his x-ray for more than two months.
VI. INFECTION CONTROL
In an institutional setting such as Metropolitan, it is standard practice for infections and communicable diseases to be tracked and trended. When analysis of trends reveals potential problems, it is standard practice for corrective action plans to be developed and implemented. Metropolitan has two infection control nurses on staff, but they only monitor individual patient infections. Metropolitan completes no systemic tracking or trending of infections or communicable diseases in Program 1 or throughout the hospital. As a result, Metropolitan’s patients are at increased risk for infections and/or communicable diseases. Because no tracking or trending information was available for our review, it was impossible to determine if such infections had occurred or diseases had been allowed to spread without the benefit of corrective action plans.

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VII. DENTAL SERVICES

Generally accepted professional standards of care require that dental care and treatment be provided in a timely manner. Program 1 patients, however, experience delays of several months in receiving needed dental care and treatment or do not receive treatment at all. This problem was noted in the April and May 2002 minutes of Metropolitan’s CNS/NC Committee, which stated that individuals were not seen by a dentist in a timely manner and the “backlog” of dental patients required attention. At the time of our tour, the dentist assigned to Program 1 was on extended leave and the dentist for Metropolitan’s adult population, an additional 800 or so individuals, was covering the Program 1 caseload. This coverage is insufficient to ensure timely and appropriate dental care. Even when Program 1 patients do receive dental services, documentation of these services is grossly incomplete, often failing to indicate the individual’s current dental status and leaving numerous sections of the evaluation blank.

VIII.

DIETARY

Program 1's dietary services substantially depart from generally accepted professional standards of care and expose the children and adolescents there to significant risk of harm. The facility’s dietician estimated that eighty percent of Program 1's patients are obese, an estimate consistent with our own observations and review of patient records. Many of the medications these children and adolescents receive exacerbate weight problems. These patients’ obesity, which is very severe in several cases, places them at increased risk for physical health problems, such as high blood pressure, and other deleterious effects, such as decreased self-esteem, that worsen existing mental health problems. Notwithstanding these significant consequences, virtually every one of the several nutritional evaluations that we reviewed indicated that the facility was not pursuing dietary interventions because the patient “refused [a] weight reduction program” that consisted almost entirely of receiving a smaller portion of the same meals served to other patients. We found no evidence that the facility was actively promoting viable alternative interventions to address patients’ severe weight problems. Our record review of Program 1’s exercise group, for instance, indicated that the group rarely met. Whether or not these children and adolescents arrived at Metropolitan greatly overweight, the facility is not

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implementing meaningful interventions to address their serious weight problems or related self-esteem issues.
IX. PLACEMENT IN THE MOST INTEGRATED SETTING
Generally accepted professional standards of care and federal law require that treatment teams, with the leadership of psychiatrists and the support of the hospital administration, actively pursue the timely discharge to the most integrated, appropriate setting that is consistent with patients’ needs. In this regard, factors that contributed to previous unsuccessful placements should be identified and addressed. Program 1's discharge planning process fails to meet these standards of care. Consequently, the process results in unnecessarily extended hospitalizations, poor transitions, and a high likelihood of readmission, all of which result in harm to Program 1's children and adolescents.
The excessive length of numerous patients’ hospitalizations is alarming. As of the week of our visit, the average length of stay was reported to be 350 days, with 30 percent of the current patients having been at Program 1 more than one year and 14 percent more than two years. Staff appear to take little responsibility for the discharge process, stating that excessively long stays are unavoidable. Despite the fact that some children and adolescents remain at Program 1 for years, Program 1 has not developed any mechanism to identify and review those patients having extremely lengthy hospitalizations. Given that there is no mechanism to identify patients who are stalled in their discharge implementation, senior administration seems to have no understanding that children and adolescents remaining institutionalized for years constitute a systemic crisis, nor do they demonstrate any influence over this process.
Metropolitan’s discharge criteria and the portions of treatment plans addressing discharge are also inappropriate and contribute to patients’ lengthy hospitalizations. Plans fail to identify clearly the barriers to discharge to the most integrated setting, and the actions that staff and/or the patient needs to take to overcome these barriers. Plans also do not contain measurable action steps, persons responsible for discharge steps, and time frames for the completion of those steps.
Further, discharge criteria in the majority of cases are identical. Most patients are required to maintain nearly 100

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percent compliance with most aspects of Program 1 rules and to maintain discharge criteria for 90 days prior to the facility seeking a placement. Thus, even after the point at which an individual achieves discharge criteria, he or she is typically not discharged for many months. For instance, Ui.N.’s April 2002 treatment plan stated that he had met discharge criteria, but his estimated discharge date read “three to six months.” The fact that discharge plans routinely have broad estimated time frames for discharge rather than a specific date as the estimated date of discharge favors such easily extendable discharge dates.
As a general matter, Metropolitan’s approach to the discharge process is passive, as illustrated by the case of N.Q. This patient had met all of the facility’s discharge criteria. Nevertheless, he remained there because his receiving program would not accept him without an updated audiological evaluation, and Metropolitan had not scheduled one. Moreover, discharge summaries for a number of patients included no appointments for follow-up care. Failure to ensure follow-up care places these children and adolescents at marked risk of re-hospitalization.
Metropolitan’s shortcomings regarding N.E. illustrate many of these problems. Despite the fact that she met discharge criteria for 90 days, that her family was willing to care for her, and that a court, at N.E.’s insistence, ordered her discharged, the treatment team was so entrenched in their view of discharge planning that they discharged her “against medical orders” to her family, because they wanted her sent, instead, to a group home. The discharge form indicated that N.E. was frustrated over the period of time she had waited to be discharged, stating “you guys won’t do anything so I have to.” Indeed, many aspects of Metropolitan’s approach to discharge planning reflect an attitude that the children, and not the facility, bear responsibility for improving their health.
In part, the problems with the discharge process are due to the diffusion of authority and responsibility for the provision of discharge services between the facility and California counties; the facility typically determines when a patient is ready for discharge and recommends a setting for placement, but the resident’s county of origin determines the actual placement setting. Also, social workers, who are required to organize the discharge process with little administrative support from Metropolitan, have a limited ability to influence many of the decisions regarding placement. Discharge planning, however,

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cannot be disconnected from treatment and based solely upon funding and resource availability. One social worker expressly stated to us that these factors posed obstacles to discharge. Metropolitan must take necessary actions in the discharge process to treat its patients adequately and appropriately and to comply with federal law.
X. SPECIAL EDUCATION
Metropolitan’s provision of special education substantially departs from generally accepted professional standards of care and from federal law in that it fails to provide children and adolescents adequate habilitation to prevent regression and to facilitate their ability to exercise their liberty interests. See Youngberg v. Romeo, 457 U.S. 307 (1982). California is also failing to meet its more specific obligation to provide individualized educational programs that are reasonably calculated to enable the children and adolescents of Metropolitan to receive educational benefits. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
Federal law conditions federal financing of State special education programs upon the State’s provision of a free and appropriate public education (“FAPE”). Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. (2002). In this regard, the IDEA requires educational agencies to develop an individualized education program (“IEP”) for each child having a disability. The required elements of the IEP include, but are not limited to: (a) present levels of educational performance; (b) annual goals and short-term objectives; (c) specific educational services that are to be provided; and (d) statements of how progress toward annual goals are to be measured. 20 U.S.C. § 1414(d) (2002). The IDEA further requires such “related services” as are necessary to permit the child to benefit from instruction, including psychological services. Id. at §§ 1401(22), 1414(d)(2002). Thus, the IDEA requires “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Rowley, 458 U.S. at 201.
Metropolitan does not provide “specialized instruction and related services which are individually designed,” id., nor has it developed clear statements of how progress toward annual goals

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are to be measured, see 20 U.S.C. § 1414(d)(2002). Its deficiencies in this regard cause harm to most of its Program 1 patients, who are entitled to a free and appropriate education, but do not receive it.
Inadequate direction is a common component of many of the problems in this area. School administration is not effective in supervising teachers, overseeing instruction, or ensuring that procedures, such as the recording of attendance, are appropriately followed. For example, the principal of the Allen Young School, which is the on-campus school serving Metropolitan patients under age 18, appeared largely unaware of what happened in his classrooms; he was unable to identify which students were doing well or even recall significant incidents of violence and suspensions that recently had occurred in the school.
A. Individual Education Programs
Metropolitan’s IEPs substantially depart from generally accepted professional standards of care and do not comply with federal law. Based on our review of 15 plans, it is apparent that they are formulaic. Many plans vary by only a few words from student to student. Further, they reflect poor assessments of students’ individual levels of educational performance. Metropolitan’s assessments of unique educational needs are unreliable. They frequently are based on assessment tools that are greatly outdated and that do not evaluate students in their non-English native languages. Consequently, the IEPs do not correctly identify students’ current levels of education performance.
Further, although the IEPs do contain nominally “specific education services” to be provided to each student, the identified services are, in substance, largely generic among students. Specificity regarding the unique educational needs of the individual student is mostly absent. As a consequence of these deficiencies, the identified annual goals and short-term objectives of students often are not appropriate. For that matter, the IEPs generally do not contain individualized goals.
For many of Program 1's students, behavioral supports are necessary “related services” that are not currently being provided. Without such services, students are unable to benefit from instruction. Given the population enrolled in the Allen Young School, it is troubling that only one of the IEPs reviewed

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indicated a need for functional behavioral assessment. Even when assessments and behavioral plans are included in the IEPs, they are inadequate for many of the reasons discussed at Section III, above, including their lack of individualization, specificity or objective data. It is also of great concern that there appears to be no coordination between the behavior support plans at the school and those on the residential units. The children and adolescents are likely to be confused by disparate plans, thereby negating their intended therapeutic effect.
Finally, although the IEPs should include appropriate, objective criteria for determining whether instructional objectives are being achieved, they do not. In this regard, two teachers acknowledged to us that they have no formal system for assessing progress, and most teachers indicated that they use informal, subjective estimates of students’ progress. Thus, Metropolitan’s IEPs neither comply with the IDEA nor have significant utility in identifying and providing for individuals’ education needs.
B. Instruction
One of the most critical elements of the IEP is that it be reasonably calculated to enable the child to receive educational benefits. See Rowley, 458 U.S. at 206-07. It is axiomatic that, for students to receive educational benefits, they must receive adequate instruction. Generally accepted professional standards regarding special education instruction call for teacher-directed lessons, provided in small, homogeneous groups, composed of frequent teacher questions and student answers, progressing in small increments, with abundant teacher feedback. Although we saw some elements of such instruction in three classes, no such instruction was evident in another five classes that we attended. Generally speaking, Metropolitan’s classroom instruction is not effective in conveying the educational benefits to which its special education students are entitled.
C. Literacy
Metropolitan’s records clearly show that some special education students lack basic reading and writing skills. These skills are the most fundamental educational benefit to which special education students are entitled. Although some IEPs contained literacy objectives, we found no evidence that literacy instruction was, in fact, provided. We saw no literacy

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instruction during our tour, nor records of planning for fundamental literacy instruction. Teachers we interviewed indicated that they had adult readers assist students having reading difficulties, but they did not provide remedial reading instruction. One school staff person stated that the speech therapist provided remedial reading instruction, but the speech therapist told us that she was not teaching reading. Consequently, it appears that Metropolitan is not providing the most basic academic skills to the special education students who lack them. This is a substantial departure from generally accepted professional standards of care that is harmful to these students in that it deprives them of educational tools that are essential to function adequately in society.
D. Least Restrictive Environment
The IDEA requires that,
[t]o the maximum extent possible, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412 (5)(A). See also Rowley, 458 U.S. at 202 (“The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible.”) None of Metropolitan’s children and adolescents participates in any offgrounds schooling, with non-institutionalized children. Metropolitan does not meaningfully assess each child and adolescent to determine whether he or she, when provided adequate supervision and supports, is capable of participating in at least some regular school activities with non-disabled peers. Although many patients’ disorders may preclude any participation in a regular educational environment, other patients, especially those approaching discharge, may be capable of at least some integrated education, with appropriate supports. Metropolitan’s failure to assess continuously each of its child and adolescent patients to determine whether he or she requires separate schooling, and its

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failure to provide access to a regular school environment for those patients who could participate, with reasonable supports, is in violation of the IDEA.
XI. PROTECTION FROM HARM
During the Metropolitan II exit interview, we outlined facility-wide issues relating to protection from harm and quality assurance, and we will address these facility-wide issues in connection with our findings regarding Metropolitan’s adult units. Regarding Program 1, in particular, the foregoing discussion makes evident that Metropolitan fails to protect the children and adolescents it serves from harm.
Further, as we pointed out in the presence of facility administrators who toured Program 1 units with us, the vents and window grills on several units contained holes large enough for patients to thread a sheet or other cloth through them, placing them at risk for suicide by hanging. In this regard, a number of the units had metal window frames with space between the frame and the ceiling which could be potential suicide hazards. Likewise, some of the vents in Program 1 were not covered. This presented a hazard in that patients could access wires and other potentially dangerous items. Several of the units contained other hazards, such as wires holding down seclusion beds that, if accessed by patients, could be used to hurt oneself or others.
In addition, one of Unit 101's seclusion rooms did not have mirrors properly positioned, creating a blind spot and preventing staff from monitoring patients who have been placed in the room. Further, some of the seclusion room restraints were worn, placing patients who are restrained at risk of abrasions and skin breakdown.
In at least one instance, Metropolitan did not take steps to ameliorate known risks. On January 23, 2002, patient I.X. attempted to commit suicide by tying a shoelace through openings on the under side of her bed and strangling herself. Less than 4 months later, on May 17, 2002, she again attempted suicide using the same methodology.
Further, frequent instances of same-sex sexual contact among patients were labeled by Metropolitan as “consensual” when it appeared that the facility was making insufficient effort to ensure that patients were not being coerced into sexual activity.

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A staff member on Unit 107 estimated that there had been 10 such instances on the unit over the preceding year, but our search for documentation of these instances uncovered a record of only one. Separately, as to a patient who had made a documented claim that he had been raped, we found no evidence in the chart that a physician had examined him physically, and no responsive interventions were undertaken, according to the chart, apart from moving the involved boys to separate bedrooms.
These examples and much of the foregoing discussion raise concerns regarding Metropolitan’s ability to protect patients from harm and its incident management system, including the tracking and trending of unusual incidents, the quality of the investigations being completed, and the identification and implementation of corrective actions. As indicated above, we will elaborate on those concerns in our findings addressing Metropolitan’s adult units.
XII. FIRST AMENDMENT AND DUE PROCESS
Prior to our tours of Metropolitan, the State indicated that it would refuse to allow Program 1 patients to speak with the Department of Justice or its expert consultants unless persons acting at the direction of the State were present. During our tours of Metropolitan, the State maintained this position, and State representatives participated in all of our discussions with patients. The State’s effort to circumscribe our access to Metropolitan patients and to information regarding their care and well being is troubling.
As the State is aware, the United States District Court for the Central District of California has ruled that CRIPA preempts a jurisdiction’s invocation of procedural hurdles to “restrict or deny the DOJ access to [a juvenile facility], the juveniles held therein and their records.” United States v. County of Los Angeles, 635 F. Supp. 588, 594 (C.D. Cal. 1986). More fundamentally, by denying its patients the right to speak confidentially to attorneys from, or expert consultants acting for, the Department of Justice, the State impermissibly has constrained its patients’ constitutional rights to: (a) free speech, including the right to petition the government for redress of grievances; and (b) due process. See United States Constitution Amendments I, XIV; Johnson v. Avery, 393 U.S. 483, 485 (1969)(stating that even state prisoners retain the freedom to petition for redress of grievances); Gary W. v. Louisiana, 437

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F. Supp. 1209, 1224 (E.D. La. 1976), aff’d, 622 F.2d 804 (5th Cir. 1980)(stating that children institutionalized for treatment enjoy the First Amendment right to free communication, and the State may monitor such children’s communications only under “carefully circumscribed conditions,” when “necessary to prevent serious harm to the child”); In re Quarles 158 U.S. 532, 535-36 (1895)(discussing the rights of citizens to communicate with federal law enforcement officials regarding violations of federal law). By imposing itself on communications between the federal government and its citizens, California wrongfully abridges these rights.

Further, California’s position violates the protections that it itself affords to persons institutionalized in its mental health hospitals, in its Code of Mental Health Patients’ Rights. See Cal. Welf. & Instit. Code § 5325 (2002). Under California law, all State mental health patients are entitled to certain rights, that must be posted in English and Spanish throughout the institution, and that include the right to engage in communications that are confidential. Id. The right to confidential communication provided by California law –­ especially communication with one’s government regarding matters of important public interest, such as conditions of care at a state institution -- is one of real substance, the State’s encumbrance of which implicates the due process clause of the United States Constitution. In placing its own interests in limiting its exposure to a federal investigation of a State facility over the constitutional interests of the patients residing in that facility, the State has further harmed those patients.

XIII.

MINIMUM REMEDIAL MEASURES

To remedy the deficiencies discussed above and to protect the constitutional and federal statutory rights of the children and adolescents in Program 1 of Metropolitan, California promptly should implement the minimum remedial measures set forth below.

A. Psychiatric Services

Metropolitan should provide psychiatric supports and services to provide adequate treatment for chronically and severely mentally ill and traumatized children and adolescents. More particularly, Metropolitan should:

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1. Ensure that each individual’s psychiatric evaluation, diagnoses, and medications are justified in a generally accepted professional manner.
2. Ensure that all physicians and clinicians can demonstrate competence in appropriate psychiatric evaluation and diagnosis.
3. Develop standard psychiatric evaluation protocols for reliably reaching psychiatric diagnoses.
4. Review and revise, as appropriate, psychiatric evaluations of all individuals currently residing in Program 1, providing clinically justifiable current diagnoses for each individual, and removing all diagnoses that cannot be clinically justified. Modify treatment and medication regimen, as appropriate.
5. Develop and implement policies and procedures regarding the development of treatment plans consistent with generally accepted professional standards of care.
6. Review and revise, as appropriate, each individual’s treatment plan so that it is current, individualized, and consistent with generally accepted professional standards of care.
7. Develop appropriate protocols that require the completion of cognitive and academic assessments of all Program 1 patients within 30 days of admission, unless valid testing has been completed within one year of admission.
8. Develop and implement a plan of remediation in both treatment and educational plans for any identified cognitive and academic deficits of current Program 1 children and adolescents.
9. Develop policies and protocols to ensure patients have genuine input into their treatment plans, including education regarding the purposes and side effects of medication.

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10. Increase the frequency of treatment team meetings and discharge plan reviews from every 90 days to a minimum of every 30 days, and more frequently, as appropriate.
11. Ensure that all psychotropic medications are appropriate for Program 1's population, are specifically matched to current, clinically justified diagnoses, are prescribed in therapeutic amounts, are monitored for efficacy against clearly-identified target variables and time frames, are modified based on clinical rationales, and are properly documented.
12. Develop and implement protocols and procedures consistent with generally accepted professional standards of care regarding the use of psychotropic medications to treat symptoms other than psychosis, including that this practice be clearly documented with a specific plan for minimizing the dosage and the duration of the medication.
13. Develop and implement protocols and procedures consistent with generally accepted professional standards of care regarding off-label medication usage, including the establishment of an institutional review board to supervise this practice, the development of research protocols, and policies to obtain appropriate informed consent from minors and/or guardians.
14. Develop and implement protocols and procedures to ensure that each patient’s treatment plan includes a plan to monitor, document, report and properly address potential side effects of prescribed medications.
15. Develop and implement formal tools to be used program-wide for each person at risk of experiencing medication side effects in accordance with generally accepted professional standards.

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16. Make appropriate attempts to use newer psychotropic medications with fewer, less serious side effects, rather than older psychotropic medications.
17. Use a milieu structure for Program 1 that is consistent with generally accepted professional standards of care. Ensure that it is applied to patients in a consistent, comprehensible and therapeutic manner, and ensure that staff implementing milieu programs first have successfully completed competency-based training in implementing such programs.
18. Remedy those aspects of Program 1's physical environment that inhibit appropriate psychiatric treatment, including, but not limited to, the violation of individual’s privacy, the lack of individualization, and the lack of appropriate recreational facilities.
B. Nursing
Metropolitan should provide nursing services to the children and adolescents it serves that are consistent with generally accepted professional standards of care. Such services should result in Program 1's patients receiving individualized services, supports and therapeutic interventions. At a minimum, Metropolitan should:
1. Develop and implement a treatment planning policy that ensures that each patient’s treatment plan identifies the Axis I diagnoses and the related symptoms to be monitored by nursing and other unit staff and the frequency by which staff need to monitor such symptoms. This policy should include requirements for staff to monitor, document and report such symptoms and for treatment teams to analyze the information collected and to modify, as appropriate, treatment plans based upon this data.
2. Develop and implement a policy consistent with generally accepted professional standards of care

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regarding psychotropic medication side effects monitoring.
3. Ensure that, before they work directly with patients, all nursing and other unit staff have successfully completed competency-based training in mental health diagnoses, related symptoms, psychotropic medications, and the identification of side effects of psychotropic medications.
4. Ensure that, before they work directly with patients, all nursing and other unit staff have successfully completed competency-based training in the provision of a therapeutic milieu on the units.
5. Ensure that, before they work directly with patients, all nursing and other unit staff have successfully completed competency-based training in proactive, positive interventions to prevent and de-escalate crises.
C. Psychology
Metropolitan should provide psychological supports and services adequate to treat the emotional and behavioral disorders experienced by Program 1 children and adolescents according to generally accepted professional standards of care. More particularly, Metropolitan should:
1. Where clinical information is insufficient, increase the use of direct clinical assessment of patients to provide a comprehensive clinical picture, and when additional clinical questions are raised, including so-called “Rule Out” and deferred diagnoses, implement appropriate clinical assessments to answer the questions promptly.
2. Ensure that clinically relevant information remains readily accessible in the active chart.
3. For patients whose primary language is not English, provide comprehensive psychological assessments in the patients’ primary language.

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4. Ensure that psychologists communicate and interpret psychological assessment results to the treatment team, along with the implications of those results for diagnosis and treatment.
5. Develop and implement policies and procedures, in accordance with generally accepted professional standards of care, regarding the necessary and sufficient components of a comprehensive psychological evaluation.
6. Ensure that patients in need of individual, group and/or family therapy services receive such services in accordance with generally accepted professional standards, and that these services are provided in a patient’s primary language.
7. Document the provision of individual and group therapy services each time they occur, including clear descriptions of the problem being addressed, the focus of the session, the intervention provided by the therapist, and the patient’s response to the intervention.
8. Provide adequate clinical oversight to therapy groups to ensure that patients are assigned to groups that are appropriate to their individual needs, that groups are provided frequently and consistently, and that issues particularly relevant for this population, including the use of psychotropic medications and substance abuse, are addressed in group therapy.
9. Ensure that all group leaders are competent regarding selection and implementation of appropriate approaches and interventions to address group therapy objectives, are competent in monitoring patient responses to group therapy, and are supervised by clinical staff.
10. Ensure the consistent implementation of reinforcement and behavior programs.

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11. Ensure that patients are not denied, because of excess sedation, the full benefit of behavioral treatment and educational interventions.
12. Ensure that all psychologists can demonstrate competence in the development and implementation of milieu behavioral programs that are consistent with generally accepted professional standards of care, including the monitoring of patient progress in such programs and program revision as monitoring warrants.
13. Ensure that all responsible program staff demonstrate competence in implementing individual behavioral programs.
14. Ensure that, before they work with patients, all psychologists have successfully completed competency-based training, in accordance with generally accepted professional standards of care, in conducting a functional analysis of behavior, preparing individualized behavior interventions and positive behavior support plans, designing methods of monitoring the program intervention and the effectiveness of the intervention, providing staff training regarding program implementation, and, as appropriate, revising or terminating the program.
15. Specify and utilize, in accordance with generally accepted professional standards of care, triggers for instituting individualized behavior treatment plans.
16. Continue to reduce the use of seclusion, restraints and psychotropic PRN medications.
17. Ensure the accuracy of seclusion, restraints, and psychotropic PRN medications data.
18. Revise and implement policies and procedures to prohibit the use of seclusion, restraints and/or psychotropic PRN medications as an alternative to adequate treatment and/or as punishment. Include requirements for staff to utilize and document the

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use of proactive, positive, and less restrictive methods before using seclusion, restraints and/or psychotropic PRN medication. Ensure that staff demonstrate competence in the implementation of such policies.
19. Revise and implement policies and procedures to require the review and modification, if necessary, of patients’ treatment plans after any use of seclusion, restraints and/or psychotropic PRN medication.
20. Develop and implement a policy consistent with generally accepted professional standards of care governing the use of psychotropic PRN medication for psychiatric purposes in child and adolescent patients and ensuring, in particular, that such medications are used on a limited basis and not as a substitute for adequate treatment of the underlying cause of the patient’s distress.
D. Pharmacy
Metropolitan’s Program 1 patients should receive pharmacy services consistent with generally accepted professional standards of care. Specifically, Metropolitan should:
1. Develop and implement policies and procedures that require pharmacists to complete monthly reviews of patients’ medication regimens, and, as appropriate, to make recommendations to the treatment team, including the prescribing physician, about possible medication changes. Such a review process should include medical and psychotropic drugs.
2. Develop and implement policies and procedures that require pharmacists to track the use of psychotropic PRN medications, and, whenever appropriate, notify the prescribing physician of problematic trends.

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E. General Medical Care
Metropolitan should provide adequate preventative, routine, specialized and emergency medical services on a timely basis, in accordance with generally accepted professional standards of care. More particularly, Metropolitan should:
1. Develop and implement protocols and procedures to ensure the timely provision of medical care, including but not limited to, evaluation of vision care, dental care, and x-ray services.
2. Render appropriate medical treatment on a timely basis.
3. Monitor patients’ health status indicators in accordance with generally accepted professional standards of care, and, whenever appropriate, modify their treatment plans to address any problematic changes in health status indicators.
F. Infection Control
Metropolitan should implement adequate infection control procedures to prevent the spread of infections and/or communicable diseases. More specifically, Metropolitan should:
1. Revise infection control policies and procedures to include the tracking and trending of infections and communicable diseases as well as the development and implementation of corrective action plans.
2. Establish an effective infection control program that: (a) actively collects data with regard to infections and communicable diseases; (b) assesses these data for trends; (c) initiates inquiries regarding problematic trends; (d) identifies necessary corrective action; (e) monitors to ensure that appropriate remedies are achieved; and (f) integrates this information into Metropolitan’s quality assurance review.
G. Dental Services

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Patients should be provided with routine and emergency dental care and treatment on a timely basis and in a manner consistent with generally accepted professional standards of care. More specifically, Metropolitan should:
1. Retain an adequate number of adequately qualified dentists to provide timely and appropriate dental care and treatment to Metropolitan patients.
2. Develop protocols and procedures that require the comprehensive and timely provision of dental services and the documentation of such services.
H. Dietary
Metropolitan Program 1 patients should receive adequate dietary services, particularly patients who experience weightrelated problems. Specifically, Metropolitan should:
1. Modify treatment planning policies and procedures to require that the treatment plans of children and adolescents who experience weight problems and/or related health concerns include adequate strategies and methodologies to address the identified problems and that such strategies and methodologies are implemented in a timely manner.
2. Ensure that treatment team members demonstrate competence in the dietary and nutritional issues affecting children and adolescents and the development and implementation of strategies and methodologies to address such issues.
3. Increase the availability of individualized and group exercise and recreational options for the children and adolescents in Program 1.
I. Placement in the Most Integrated Setting
Metropolitan should pursue actively the appropriate discharge of patients and ensure that they are in the most integrated, appropriate setting that is consistent with patients’ needs. More particularly, Metropolitan should:

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1. Ensure that discharge planning begins at the time of admission and that all patients have realistic and individualized discharge criteria. Ensure that each patient has a professionally developed
discharge plan, including measurable action steps, persons responsible and time frames for completion.
2. Ensure that patients who have met discharge criteria are discharged expeditiously and with appropriate supports.
3. Develop and implement a policy and protocol that identifies patients with lengths of stay exceeding six months. Establish a regular review forum, including senior administration, to review these patients, their treatment plans, and obstacles to successful discharge to the most integrated, appropriate setting. Create an individual action plan for each individual being reviewed.
4. Consolidate responsibility for discharge planning with the authority to provide the supports and services that discharge planning indicates are necessary.
5. Ensure that all Program 1 staff, including senior administration, provide care and treatment to mitigate the dangers of long-term institutionalization for the children and adolescents in their care.
6. Provide transition and follow-up supports and services consistent with generally accepted professional standards of care.
J. Special Education
Metropolitan should ensure that all of its child and adolescent patients who qualify for special education receive individualized educational programs that are reasonably calculated to enable these patients to receive educational benefits. More particularly, Metropolitan should:

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1. Ensure that all Individualized Education Programs are developed and implemented consistent with the requirements of the Individuals with Disabilities Act, 20 U.S.C. §§ 1400 et seq. (2002)(“IDEA”).
2. Ensure that special education students receive instruction appropriate to their needs and learning abilities, consistent with generally accepted professional standards of care.
3. Provide appropriate literacy instruction for students with significant deficits in reading and/or writing.
4. Provide appropriate supplemental education for students whose individualized education programs at the facility have not been reasonably calculated to enable them to receive educational benefits.
5. Continuously assess each student’s capacity to participate, with appropriate supports and services, in a regular, non-institutional, education environment, and provide access to a regular education environment for those students who can participate in one with appropriate supports and services.
6. Ensure that all students receive their education in the least restrictive setting pursuant to the requirements of the IDEA.
K. Protection from Harm
Metropolitan should provide its patients with a safe and humane environment and protect them from harm. At a minimum, Metropolitan should:
1. Conduct a thorough review of the units within Program 1 to identify potential safety hazards, and develop and implement a plan to remedy any identified issues.
2. Thoroughly review and, as appropriate, revise hospital policy, and Program 1 practice, regarding

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sexual contact between patients. Establish clear guidelines regarding staff responses to reports of sexual contact and monitor staff responses to incidents. Comprehensively document therapeutic interventions in patient charts in response to instances of sexual contact.
3. Develop and implement a comprehensive quality assurance plan consistent with generally accepted
professional standards of care, including but not limited to an effective incident management system.
L. First Amendment, Access to Courts and Due Process
The State should permit Metropolitan Program 1 patients to exercise their constitutional rights of: (a) free speech, and, in particular, the right to petition the government for redress of grievances without State monitoring; and (b) due process. More particularly, the State should:
1. Permit patients to speak with representatives of the federal government outside the presence of persons acting for the State.
2. Permit patients to engage in confidential communications.
*****
The collaborative approach that the parties have taken thus far has been productive. We hope to continue working with the State in this fashion to resolve our significant concerns regarding the care and services provided at this facility.
We will forward our expert consultants’ reports under separate cover. Although their reports are their work – and do not necessarily represent the official conclusions of the Department of Justice - their observations, analyses and recommendations provide further elaboration of the relevant concerns, and offer practical assistance in addressing them. We hope that you will give this information careful consideration

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and that it will assist in facilitating a dialogue swiftly addressing areas requiring attention.
In the unexpected event that the parties are unable to reach a resolution regarding our concerns, we are obligated to advise you that the Attorney General may initiate a lawsuit pursuant to CRIPA, to correct deficiencies or to otherwise protect the rights of Metropolitan’s patients, 49 days after the receipt of this letter. 42 U.S.C. § 1997b(a)(1). Accordingly, we will soon contact State officials to discuss in more detail the measures that the State must take to address the deficiencies identified herein.
Sincerely,
/s/ Ralph F. Boyd, Jr.
Ralph F. Boyd, Jr. Assistant Attorney General
cc: The Honorable Bill Lockyer Attorney General State of California
Stephen W. Mayberg, Ph.D.
 Director
 California Department of Mental Health

Mr. William G. Silva
 Executive Director
 Metropolitan State Hospital

Debra W. Yang, Esq. 
 United States Attorney
 Central District of California

The Honorable Roderick R. Paige
 Secretary
 United States Department of Education


 
 February 19, 2004
The Honorable Arnold Schwarzenegger Governor of California State Capitol Building Sacramento, CA 95814
Re: Metropolitan State Hospital, Norwalk, California
Dear Governor Schwarzenegger:
On March 21, 2002, we notified then Governor Davis that we were investigating conditions at Metropolitan State Hospital (“Metropolitan”), pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. During the weeks of June 24 and July 8, 2002, we visited the facility. Our first tour, “Metropolitan I,” focused on the care and treatment provided to the facility’s child and adolescent patients, all of whom are in Metropolitan’s Program I. Our second tour, “Metropolitan II,” addressed the care and treatment provided to the facility’s adult patients. At exit interviews conducted at the end of each facility visit, we verbally conveyed our preliminary findings to counsel and facility officials. Consistent with the requirements of CRIPA, we wrote to Governor Davis on May 13, 2003, to apprise him of our findings regarding the child and adolescent patients. We are writing now to transmit our findings regarding the care and treatment of the facility’s adult patients.
As we noted in our previous letter, we appreciate the cooperation and assistance provided to us by the administrators and staff of Metropolitan. We hope to continue to work with the State of California and officials at Metropolitan in a cooperative manner.
We conducted our investigation by reviewing medical and other records relating to the care and treatment of approximately 150 of Metropolitan’s adult patients; interviewing administrators and staff; speaking with patients; and conducting on-site surveys of the facility. We were assisted in our investigation by expert consultants in the fields of psychiatry, psychology, psychiatric nursing, and incident management and quality assurance.

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As of the time of our July 2002 visit, Metropolitan had a census of approximately 825 patients, ranging in age from 11 to more than 80, roughly 725 of whom were adults. Metropolitan’s adult patients are placed in one of five treatment programs, based on a mix of factors, primarily: (a) the nature of their admission (civil or forensic); (b) their gender; (c) the severity of their illness, (d) their assessed ability to participate in psychological and social rehabilitation (“psychosocial rehabilitation”); (e) their need for skilled nursing care; and (f) their language and cultural needs. Each of these treatment programs, identified as Programs II through VI, operates semiindependently, with its own director, nurse coordinator, and senior psychiatrist.
Residents of state-operated facilities have a right to live in reasonable safety and to receive adequate health care, along with habilitation to ensure their safety and freedom from unreasonable restraint, prevent regression, and facilitate their ability to exercise their liberty interests. See Youngberg v. Romeo, 457 U.S. 307 (1982). Similar protections are accorded by federal law. See, e.g., Title XIX of the Social Security Act, 42 U.S.C. § 1395hh, and implementing regulations, 42 C.F.R. Parts 482-483 (Medicaid and Medicare Program Provisions). The State also is obliged to provide services in the most integrated setting appropriate to individuals’ needs. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq.; 28 C.F.R. § 35.130 (d); see Olmstead v. L.C., 527 U.S. 581 (1999).
As was the case with Metropolitan’s Program I, which serves the facility’s child and adolescent patients, it was apparent that many Metropolitan staff are highly dedicated individuals who are genuinely concerned for the well-being of the persons in their care. In particular, certain staff display admirable dedication to the patients whom they serve, and undertake significant, largely self-initiated, efforts to provide effective rehabilitation to their patients. Further, again as is true of Program I, Metropolitan’s adult programs are demonstrably proficient in many procedural aspects of care. Nevertheless, it is also the case that significant and wide-ranging deficiencies exist in Metropolitan’s provision of care to its adult patients, and that the First Amendment rights of its patients are being violated. Our findings, facts that support them, and the minimum remedial steps that we believe are necessary to correct deficiencies are set forth below.

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I.

INTEGRATED TREATMENT PLANNING

The planning of treatments and interventions (“treatment planning”) for Metropolitan’s adult patients substantially departs from generally accepted professional standards of care. Generally accepted professional standards of care instruct that treatment plans should integrate the individual assessments, evaluations, and diagnoses of the patient performed by all disciplines involved in the patient’s treatment; be individualized; and identify and build on the patient’s strengths, interests, preferences, and goals, to optimize the patient’s recovery and ability to sustain herself in the most integrated, appropriate setting.

As a threshold matter, Metropolitan’s treatment planning format does not recognize that adequate treatment planning is dependent upon a logical sequence: first and foremost, the formulation of an accurate diagnosis; subsequently, the utilization of the diagnosis to identify the fundamental problems that are caused by the diagnosed illness; the development of specific, measurable goals that are designed to ameliorate problems and promote functional independence; the interventions that will guide staff as they work toward those goals; and, finally, ongoing assessment and, as warranted, revision of the plan.

Almost uniformly, the document entitled “Treatment Plan” in Metropolitan charts bears no resemblance to a comprehensive, integrated plan for the provision of treatment addressing individual patient needs. It is often redundant, burdensome, and confusing for staff to follow. Although there was some slight variation in the structure of the plans between units, in no instance, among approximately 150 charts reviewed, did we see an individualized plan of treatment.

Diagnoses listed on the plan often differ from diagnoses listed in the physician documentation section of the patient’s chart. Similarly, identified problems often differ with other components in the plan, and the patient’s medication plan often is not integrated into the overall treatment plan.

The primary reason for hospitalization is not identified and addressed carefully, and documentation of the need for continued hospitalization is not individualized or valid. Short- and longterm goals are typically generic, overly broad, not attainable, do not account for the patient’s level of functioning, likes,

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preferences and goals, and do not include measurable outcomes regarding objectives such as developing a skill, altering a behavior or experiencing a reduction in symptoms. Further, information about the anticipated length of stay is not linked to achievable outcomes.
Treatment interventions are determined and implemented arbitrarily and indiscriminately. Further, treatment plans do not identify in rational, operationally defined terms the symptoms or problems to be monitored or the frequency with which such monitoring and reporting should occur. Consequently, symptoms and problems are not reliably monitored or reported. In this regard, Metropolitan does not regularly collect or analyze information regarding patient progress relative to target symptoms and problems, or utilize such information in the reassessment and revision of treatment plans. In fact, based on our review, it is rare for the facility to modify treatment plans because of a patient’s lack of progress under an existing plan. This is fundamentally at odds with generally accepted professional standards of care.
Numerous examples illustrate these problems. Diagnoses listed in the treatment plans differed from those listed in psychiatric assessments in the cases of S.B.,1 N.Cj., and T.E. Further, S.B. had an April 2002 treatment plan indicating “no progress” with a problem that was listed as closed in October 2001 on his master treatment plan. Another problem identified at S.B.’s admission was not identified in the treatment plan until almost two years after admission. Further, the treatment plan indicated “no change” in the patient’s goals, although numerous changes, in fact, had been documented elsewhere.
Similarly, N.Cj.’s treatment plan includes problems that are listed as “discontinued” or “revised” on another form dated the same date. In fact, as to each of the listed problems, three successive treatment plans stated, “Goals not achieved, goals not changed, interventions not changed.” T.E.’s short-term goal for anger management deficit was not revised as of October 2002, although her chart indicates that she accomplished this goal in early 2001.
Medication compliance was listed as an intervention and/or a criteria for discharge for T.E. and F.I. even though this is not
1 In this letter, to protect patients’ privacy, we identify patients by initials other than their own. We will separately transmit to the State a schedule cross-referencing the initials with patient names.

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identified as a problem for either of these patients. In contrast, medication compliance is not listed as a problem for U.C., a patient who was noncompliant with her medication when she committed an assault with a deadly weapon. C.Hb. was prescribed medications for anxiety and depression, but there is no mention of either problem as targets in his treatment plan.
I.C.’s psychiatrist started him on Risperdol (a psychotropic medication) and stated, in the treatment plan, "patient will be involved in different unit teaching activities." The treatment groups to which this patient was assigned appear to have little purpose beyond occupying his time. In this regard, the psychiatrist’s clinical description of this patient makes no references to impulse control problems nor impairments in social problem solving skills. In fact, the master interdisciplinary treatment plan of the hospital from which this patient was transferred states that, even when he was acutely delusional, "Mr. [C.’s] strength is social competence.” Nevertheless, many of the groups to which this patient was assigned were to teach “impulse control” and “socially approved problem solving techniques.” Further, although this patient has little previous institutional history, his treatment plan emphasizes socializing him to the role of a psychiatric hospital resident (attending groups), rather than reinforcing the patient's own stated desire to “get back to work.” Thus, the harm to patients from Metropolitan’s treatment planning practices goes beyond a failure to provide care. It includes fostering the institutionalization of its patients. This is a gross deviation from generally accepted professional standards of care.
N.D. is an 18-year-old patient who was transferred from a juvenile facility with assaultive and self-injurious behavior, and a history of brutal sexual abuse and neglect apparently beginning at age two. Apart from medications, which a neurologist identified as being at toxic levels at one point, the chart provides no evidence that N.D. is receiving any treatment on her unit, which constitutes a substantial departure from generally accepted professional standards of care. Further, N.D.’s chart describes her as a nonpsychotic individual of at least average intelligence. Notwithstanding that N.D. has the cognitive ability to engage in such a discussion, we could not locate anything in N.D.’s chart indicating that any staff member had ever talked with her about her personal goals and objectives for a life outside of an institution. It appears that developing such goals, or even the skills needed to achieve such goals, is not part of her treatment plan. In fact, her chart does not articulate any long-term goals. Such failures are inconsistent with federal regulations that require the development of adequate treatment plans. See 42 C.F.R. § 482.61(c).

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Treatment plans are not tailored to the needs of patient subpopulations, such as patients with cognitive impairments, persistent dangerous behaviors, and substance abuse, and patients who have been found not guilty by reason of insanity (“NGRI”). Metropolitan assigns generic interventions to these patients rather than developing targeted interventions geared toward their particular needs.
Like the treatment plans in Program I, treatment plans in the adult units are completed and reviewed after unacceptably long delays. The infrequency of treatment team meetings leads to delayed treatment, poor interdisciplinary communication, inability to modify treatment in a timely manner, and unnecessarily prolonged hospitalization.
Adequate treatment planning also requires that patients have genuine input into and understand their treatment plans and their implementation. Metropolitan’s documentation reflects that the patients do not meaningfully participate in their treatment. For instance, during the treatment team meetings that we observed for C.D., S.G., and P.P., team members talked about the patients in the third person in front of them, frequently interrupted the patients, failed to discuss the patients’ goals in front of them, and/or ignored the patients’ legitimate concerns. During one of these meetings, staff’s response to S.G.’s inquiry regarding his placement options was, “I wish I were a fortune teller” and “Your mom has to find a place.” Similarly, S.G.’s psychiatrist entirely ignored S.G.’s repeated statement that he needed his medication changed. Our expert consultant subsequently confirmed that changes in S.G.’s medication regimen were clinically warranted.
Further, Metropolitan’s treatment teams often are uncoordinated, disorganized, and unstable. Also, while some teams carry comparatively light loads, others have many more than 24 patients. More fundamentally, Metropolitan’s treatment teams often appear to lack a common understanding of the patients’ symptoms or problems that should drive treatment interventions. Treating psychiatrists do not verify that psychiatric and other interventions, particularly behavioral treatments, do not conflict. Also, many of the treatment team meetings that we observed concluded without an agreement among the team members on the modifications that had been or should be made to the treatment plan or any dialogue indicating a common understanding of, or response to, the patient’s status.
Metropolitan also has no mechanism to address patients’ risk factors. The current procedure, whereby staff check a box on the admission risk assessment form to indicate if a patient is

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suicidal, homicidal, an elopement risk, or a fire-setter, is not performed consistently. More importantly, these risk factors are not then tracked by treatment teams or integrated into the treatment plans.

For instance, “fire-setter” or “homicidal” are identified in admission risk assessments for T.C., S.B., O.U., and Z.F., but these risks are neither addressed in the treatment plans nor tracked by the treatment teams. Z.F.’s admission risk assessment fails to identify suicidal behavior as a risk factor, although this patient had jumped off of a building approximately two years earlier. T.Eb.’s preliminary psychiatric evaluation does not contain a formalized risk assessment, despite his long history of psychotic illness, substance abuse, proclivity to assault others, and attempted elopement. Similarly, K.P.’s preliminary psychiatric evaluation lists no risk factors, notwithstanding his admission as a danger to others and his prior elopement from Metropolitan during a previous hospitalization. Further, there is no reference to the admission risk factors in the discharge notes. In general, Metropolitan lacks an adequate procedure to identify or track patterns of high-risk behavior or to establish thresholds to ensure early and timely intervention to reduce ongoing risk.

In summary, Metropolitan’s treatment planning for its adult patients substantially departs from generally accepted professional standards of care. These deficiencies subject patients to treatment that: (a) prolongs their psychiatric distress; (b) needlessly worsens or prolongs their difficulties with problem solving, memory, or attention, thereby exacerbating their disability; (c) unnecessarily exposes those with substance abuse problems to additional drug dependency; (d) needlessly extends their institutionalization; (e) exposes them to an increased risk of relapse after discharge; and (f) contributes to an overall lower quality of life.

II.

ASSESSMENTS

Adequate assessment of a mental health patient for treatment planning purposes requires input from various disciplines, under the active direction and guidance of the treating psychiatrist, who is responsible for assuring that relevant patient information is obtained and considered. At Metropolitan, as at many mental health facilities, assessments typically are reflected in: (a) psychiatric assessments and diagnoses; (b) psychological assessments; (c) rehabilitation assessments; and (d) social history evaluations.

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A. Psychiatric Assessments and Diagnoses
In many respects, psychiatric assessments are the main vehicle establishing the patient’s diagnoses, establishing safe and effective treatment, and providing direction for treatment planning. Yet, it appears that Metropolitan psychiatrists routinely diagnose their adult patients as having psychiatric disorders without clinical justification. As a result, patients’ actual illnesses are not being properly treated, patients are exposed to potentially toxic treatments for conditions from which they do not suffer, patients are not provided appropriate psychiatric rehabilitation, and patients’ options for discharge are seriously limited.
In the majority of cases that we reviewed, the information gathered during the assessment process does not justify the patient’s diagnoses. For instance, F.I. was diagnosed with schizoaffective disorder, although nothing in her history, her mental status examination, or her psychiatric progress note dated the week after admission indicated that she had any psychotic symptoms. Similarly, N.Cj.’s chart contained no support for his diagnosis of schizoaffective disorder. Apart from his reported illiteracy, his diagnosis of mental retardation was also unsupported.
Metropolitan psychiatrists diagnosed K.Sf. with, and prescribed two antidepressants for, a mood disorder, even though his records consistently indicated no evidence of a mood disorder of any kind. However, this patient does suffer from Huntington’s Chorea, a degenerative neurological disease causing ever increasing dementia and severe abnormal movements. Although his chart identifies numerous occurrences of falls, poor balance, clumsy movement and poor gait, recorded by different staff within days of an ostensibly detailed psychiatric evaluation of his abnormal involuntary movements, that evaluation inexplicably identified no abnormal movements whatsoever. In numerous other cases, including D.I., L.E., I.Q., N.E., and S.G., the information gathered by facility psychiatrists during the assessment process did not justify the patients’ diagnoses.
Separately, many of Metropolitan’s adult patients receive tentative and unspecific diagnoses (often referred to as “rule out” (“R/O”) or “not otherwise specified” (“NOS”) diagnoses), without being further assessed, at least as evidenced in their charts, to finalize these open diagnoses. For instance, U.E. has had a diagnosis of “psychotic disorder, NOS” since his admission to Metropolitan in 1997. His treating psychiatrist stated that no diagnostic work-up was performed to resolve this diagnosis because “that is the diagnosis [U.E.] came in with,” an assertion

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at odds with a psychiatrist’s duty to attempt to identify the nature of his patient’s illness.
Erroneous and untimely psychiatric evaluations and diagnoses can lead to the wrong mix of treatments and interventions, thereby causing harm through ineffective, potentially deleterious treatment, and the withholding of appropriate interventions. It is clear that Metropolitan’s practices are irreconcilable with generally accepted professional standards of care in this area, and that its patients experience harm and a significant risk of harm as a result.
B. Psychological Assessments and Evaluations
Like the other forms of patient assessments and evaluations at Metropolitan, psychological assessments and evaluations, with few exceptions, are inaccurate, incomplete, and uninformative. These poor assessments and evaluations contribute directly to bad treatment choices that, in turn, expose patients to actual or potential harm. In the context of patients’ needs for psychological supports and adequate life skills, this harm takes the form of prolonged and/or exacerbated behavioral disorders and functional disabilities that, in turn, needlessly prolong patients’ confinement in a highly restrictive environment and block their successful re-entry into the community.
Metropolitan’s policies generally provide that psychological assessments (which involve formal testing) and psychological evaluations (which do not involve formal testing) are to be performed when “clinically indicated.” Yet, we found numerous instances where assessments and evaluations were warranted but not performed. Examples include M.H. and N.T.
In fact, generally accepted professional standards of care for facilities such as Metropolitan dictate that, before a patient’s treatment plan is developed, facility psychologists provide a thorough psychological assessment of the patient to assist the treating psychiatrist in reaching an accurate diagnosis and provide an accurate evaluation of the patient’s psychological needs. As indicated above, this does not happen at Metropolitan. Moreover, as needed, additional psychological assessments should be performed early in the patient’s hospitalization to assist with any psychiatric disorders that may need further study, such as “Rule Out,” deferred, and “NOS” diagnoses. However, this rarely occurs at Metropolitan. As noted above, it is common for patients there to carry open, or unresolved, diagnoses for several years, which is a gross deviation from generally accepted professional standards of care that also contributes to ineffective, even harmful, treatments.

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Further, based on our review of numerous patient charts, the psychological assessments and evaluations that were performed were generally strikingly poor, and more likely to lead to bad or ineffective interventions than good ones. The psychological assessment of N.Cj., for example, contains glaring weaknesses that render it of little use. The total analysis of this patient’s intelligence is, “[p]atient said he never went to school and doesn’t read or write.” Regarding the patient’s “strengths and coping style,” the analysis is blank. Although it states that the patient has a history of assaultive behaviors and property destruction at the hospital, it provides no analysis of the antecedents, circumstances, causes, or consequences of this behavior, notwithstanding that these are the core elements of behavioral analysis. Thus, it provides none of the information essential to understand and correctly address his behavioral disorders. Similarly, the May 2, 2002 psychological assessment of N.E. advances numerous factual inaccuracies, various unintelligible statements, and a psychiatric diagnosis contrary to that used by the rest of the treatment team, with no apparent justification or explanation.
A December 3, 2001 psychology assessment of K.Q. concludes, without support, that this patient’s schizophrenia is not the cause of his dementia because his cognitive deficits “appear to exceed those associated with schizophrenia,” notwithstanding that the opposite is likely true. Further, the assessment recommends that K.Q. undergo neurological testing, because the last such testing ostensibly had occurred 15 years earlier. In fact, K.Q.’s chart makes clear that he had undergone a thorough neurological exam at Metropolitan the previous month.
A subsequent, October 10, 2002 “Functional Evaluation of Behavior” for K.Q., performed by two other Metropolitan psychologists, also is significantly flawed. Its analysis of “reenforcers,” or factors that support various behaviors, lists items that K.Q. reportedly enjoys but provides no analysis as to how they affect his behaviors. Similarly, the summary and conclusion of the report list various factors that might contribute to the patient’s negative behaviors but provide no analysis as to how or whether any of them actually have any relationship with those behaviors. Notwithstanding its stated purpose as a “functional evaluation” of this patient’s behavior, the report is devoid of any evaluation or other support for its conclusion regarding this patient’s behavioral disorders.
Further, many Metropolitan patients suffer from acquired brain damage or primary neurological diseases, resulting, for instance, from motor vehicle accidents or strokes that affect cognitive function in a manner not typical of primary psychiatric

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disorders. Nevertheless, Metropolitan lacks staff possessing an expertise in neuropsychology. Consequently, these patients receive inadequate or no assessments of their injuries, their treatment teams do not understand the nature of their cognitive deficits, and they receive misguided, ineffective treatments and interventions.
M.C., for instance, is an 80-year-old patient who has a history of stroke and possible bipolar disorder. It was apparent from our interview of two psychologists who have worked with M.C. over several years that they do not know whether he had experienced one or multiple strokes, where in the brain the stroke(s) had occurred, or what the likely relationship is between the stroke(s) and this patient’s cognitive and behavioral problems, one of which is “aggression.” Although M.C.’s aggression strongly appears to be the result of behavioral disinhibition (often thought of as loss of “impulse control”), which is a phenomenon occurring in many victims of significant brain injury, the hospital’s intervention is classes in anger management and coping skills – highly inappropriate treatments where brain injury produces, first, aggression resulting from behavioral disinhibition, rather than “anger,” and, second, cognitive impairments that interfere with skill acquisition.
Similarly, T.Q. suffered a traumatic brain injury from a motorcycle accident, and experiences significant short-term memory problems, difficulty concentrating, and explosive, unpredictable outbursts that are described as impulsive motor outbursts with little association to his actual emotional state. Notwithstanding that it is fundamental, in such cases, to perform a neuropsychological examination to determine the nature of the patient’s memory deficits and to assist in identifying alternative learning methods to address severe cognitive deficits, the facility has not performed such an examination. Further, although he cannot remember, has difficulty concentrating, and has outbursts that probably are not caused by his temper, the facility has placed him in anger management classes.
C. Rehabilitation Assessments
Effective psychiatric rehabilitation derives from accurate and complete rehabilitation assessments. Rehabilitation assessments should identify the patient’s life skills, cognitive abilities, and distinct strengths, weaknesses, likes, and dislikes. This information is fundamental to developing adequate treatment. Generally speaking, Metropolitan’s rehabilitation assessments substantially depart from generally accepted professional standards of care.

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A few of the rehabilitation assessments at Metropolitan provide good descriptions of patients’ interests and skills. Typically, however, assessments fail to address patients’ rehabilitation needs. In fact, the assessments indicate that many of Metropolitan’s rehabilitation therapists lack even a basic understanding of psychiatric illnesses. Consequently, the assessments generally do not provide information that is necessary in developing appropriate rehabilitation goals and interventions.
The February 22, 2002 rehabilitation assessment for K.P., for example, states that “[t]he patient has fair to poor treatment potential at this time due to the patient’s attitude and lack of motivation to attend and participate in his treatment groups and also his response to his treatment plan.” The assessment’s focus on this patient’s “attitude” and “lack of motivation” is troubling. This patient’s record clearly identifies activities that he voluntarily undertakes, such as reading a certain genre of novels, but these are not identified in the assessment as potential bases for rehabilitation activities. Rather than serving as a basis for appropriate treatment, K.P.’s rehabilitation assessment saddles him with a negative prognosis for recovery.
Major portions of S.G.’s rehabilitation assessments of February 7, 2002, and August 20, 2002, are incoherent. Further, the sections that are understandable reflect no knowledge of appropriate rehabilitation objectives. Finally, more than half of the August assessment, including its most incoherent portions, is identical to the February assessment.
D. Social History Evaluations
The social history evaluation should reliably inform the psychiatrist and other treatment team members regarding such fundamental factors as the circumstances surrounding the onset of the patient’s illness, the history of the illness, and relevant family information, because these factors are often essential to forming an accurate diagnosis and developing adequate treatments and interventions. Additionally, an adequate social history evaluation permits treatment teams to learn from previously attempted interventions and to plan effectively for the patient’s discharge.
Some Metropolitan social history evaluations were thorough and complete. However, most contained significant factual omissions, apparent errors, or unresolved internal inconsistencies. Consequently, patients’ social history evaluations were generally unreliable and often fostered

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inadequate interventions around psychiatric needs, behavioral problems, and important life skill deficits. This is irreconcilable with generally accepted professional standards of care.
For instance, the latest social history evaluation of U.C. states that “patient does not have a history of arrest prior to the instant case.” Yet, it separately indicates that the patient had been arrested and convicted numerous times, including separate instances of “battery on a peace officer,” “assault with a deadly weapon with great bodily harm,” and “assault on a peace officer.” The evaluation also indicates that the patient’s mother had been mentally ill and had committed suicide when the patient was a child. Then, with no attempt to reconcile the previous observation, it suggests that the mother was last known to be living in a nursing home. Although patient histories inevitably will involve incomplete and sometimes inconsistent facts, the evaluator’s failure to recognize and attempt to resolve facts having important treatment implications – such as whether the patient has a history of assaults and a mother who committed suicide – compromises diagnoses and treatment decisions, and exposes patients to harm and a significant risk of harm.
The social history evaluation of N.D. contains similar obvious gaps and significant, unaddressed inconsistencies. Although the patient was 18-years-old as of the most recent social evaluation history, it irreconcilably states that “patient has had a long and serious history of dangerous behavior since age 18.” Nowhere does this report detail the dangerous behaviors, discuss possible precipitants, or otherwise set forth information shedding light on this problem.
E. Court Assessments
A number of Metropolitan’s adult patients are committed due to a not guilty by reason of insanity status (“NGRI”). Metropolitan prepares court reports assessing these patients, the content and quality of which are instrumental in shaping the court’s decision whether to release the patient to a lower level of care. The format and content of the court reports, however, fail to provide the court adequate and accurate information and, consequently, contribute to needlessly maintaining patients in a highly restrictive setting when they qualify for a less restrictive environment.
For instance, Metropolitan’s court reports regarding M.C. did not recommend him for the conditional release program (“CONREP”) although his chart indicates that he consistently met

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CONREP’s criteria – “person would not pose a substantial danger of physical harm to others if released into the community” – since February 1999.

Similarly, all of U.T.’s records and court reports indicate his cooperativeness, compliance, and participation, but he failed to meet CONREP’s criteria for release due to his reported lack of understanding of his illness and ability to cope with anger. Yet, U.T.’s treatment plan did not focus on either of these two issues. These patients are exposed to unnecessarily restrictive treatment so long as the court’s decisions are based on incomplete and inaccurate analyses of the patients’ condition, and the facility fails to provide treatments focused on the reasons for its patients’ hospitalization.

III.

DISCHARGE PLANNING AND PLACEMENT IN THE MOST INTEGRATED SETTING

Within the limitations of court-imposed confinement, federal law, as interpreted through generally accepted professional standards of care, requires that treatment teams, with the leadership of psychiatrists and the support of the hospital administration, actively pursue the timely discharge of patients to the most integrated, appropriate setting that is consistent with patients’ needs. Olmstead v. L.C., 527 U.S. 581 (1999). From the time of admission, the factors that likely will foster viable discharge for a particular patient should be identified expressly, through professional assessments, and should drive treatment interventions.

The discharge planning process for Metropolitan’s adult patients falls well short of these standards of care. Consequently, patients are subjected to unnecessarily extended hospitalizations, poor transitions, and a high likelihood of readmission, all of which result in harm.

Metropolitan’s various policies indicate that planning for a patient’s discharge is an interdisciplinary effort that starts the day the patient arrives. However, in practice, Metropolitan’s discharge planning is done by the social worker alone, near the end of the anticipated Metropolitan tenure, and typically is limited to finding a residential facility that will take the patient and arranging for a clinical appointment after discharge. In a few instances, individual staff make exceptional efforts to overcome largely bureaucratic discharge issues, but such individual efforts are not sufficient to offset the facility’s more systemic shortcomings.

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Based on our extensive chart review, treatment team discussion of discharge is generally limited to the type of setting to which the patient is likely to go. Apart from obvious factors, such as the absence of psychiatric symptoms, assaultive behaviors, and fundamental deficits in the activities of daily living, criteria for discharge are rarely considered or integrated in treatment planning. For instance, the causes of previously failed discharges or particular reasons for the patient’s admission to a psychiatric institution are seldom considered and addressed. Also, the patient’s strengths, preferences, and personal goals play virtually no meaningful role in discharge planning.
Preparation for discharge while in the hospital appears to be almost nonexistent. In no instance could we determine that a treatment team actually had prepared a patient to transition to, or succeed in, a new setting. In fact, the provision of transition supports almost never was discussed in the numerous patient records that we extensively reviewed. Further, rehabilitation goals are couched – and functional recovery is evaluated – on the basis of patients' ability to engage in group therapy and leisure activities, not on expressed and demonstrated skills in work, school, or independent living. Finally, the patient plays virtually no significant role in the discharge process.
Examples of these deficiencies can be found in many patient charts. K.C.’s discharge plan, for instance, is limited to a boilerplate discussion of housing issues. E.B.’s plan consists of a facility placement to an Institute for Mental Disease (typically a locked facility, oriented towards maintenance, with less oversight of patients than Metropolitan provides) “until she is able to get her self-destructive behavior under control and is less resistive to treatment . . . . The patient will be assisted to get independently [sic] living skills training for herself. It is also hoped that the patient will enroll herself into vocational rehabilitation for continued schooling alternative [sic]."
In many respects, this patient’s discharge plan underscores a failure within Metropolitan to accept responsibility for helping patients to recover and to gain behavioral control. The plan instead makes this a treatment goal for the next provider, while Metropolitan is to address “living skills.”
The discharge plan for D.D. is simply a list of generic criteria (e.g., “for 90 days will comply with meds, attend 70% of groups, comply with [activities of daily living], and free of [danger to self, danger to others] and AWOL attempts.”) The plan

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could apply to virtually every adult Metropolitan patient with any history of dangerousness; it is not individualized and says nothing about meaningful activity following discharge.

N.T.’s discharge plan is limited to placement in a less restrictive environment. The paucity of care reflected in this plan is particularly glaring; this patient was readmitted to Metropolitan after only nine weeks of living in the community following her previous discharge, and although her treatment team should have focused in discharge planning on identifying and addressing the causes of her previously failed placement, it did not do so. The discharge plans for C.Hb. and N.D. similarly are essentially nonexistent.

Metropolitan’s failure to provide adequate, individualized discharge planning, that is integrated in treatment decisions, significantly deviates from generally accepted professional standards of care and contributes to unnecessarily prolonged hospitalization and to inappropriate, unsuccessful placements in other settings. As a consequence, patients are harmed or exposed to the risk of harm by the effects of prolonged institutionalization and by being denied a reasonable opportunity to live successfully in the most integrated, appropriate setting.

IV.

SPECIFIC TREATMENT SERVICES

The provision of effective interventions for patients in care settings such as Metropolitan requires the integrated participation of various treatment services, the exact configuration of which is dictated by the individual patient’s needs. As noted at Section I, above, Metropolitan’s ability to provide integrated treatment is deficient. Further, many of these services, standing alone, substantially depart from generally accepted professional standards of care.

A. Psychiatry Services

Metropolitan’s psychiatric supports and services grossly deviate from generally accepted professional standards of care, exposing patients to harm and a significant risk of harm. Generally speaking, Metropolitan’s psychiatrists fail to direct their treatment teams adequately, which is an essential requirement of a mental health facility. More specifically, as discussed herein, they fail to exercise adequate and appropriate medical management and monitor appropriately medication side effects. Also, as discussed in more detail, at Sections I and II, above, and at Section IV.B.2., below, these psychiatrists fail to plan adequate and appropriate treatments, fail to integrate properly psychiatric, behavioral, and other services,

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and fail to provide clinically justified assessments and diagnoses of psychiatric disorders. The resultant harm to the patients takes many forms, among them, inadequate and counterproductive treatment, serious physiological and other side effects from inappropriate and unnecessary medications, and excessively long hospitalizations.
1. Medication Management
It is a basic tenet of generally accepted professional standards of care that the use of psychotropic medication always should be justified by the clinical needs of a patient. Metropolitan fails to ensure that its adult population is afforded appropriate pharmacological treatment.
In this regard, vulnerable patients are routinely prescribed inappropriate or unsafe medications without justification. Patients, for instance, who have documented diagnoses of alcohol and/or other substance abuse frequently receive high doses of benzodiazepines, psychotropic drugs which are professionally well-known to have a high potential for addiction. T.E., a patient with severe and persistent alcoholism for almost 30 years, was prescribed Lorazepam, a benzodiazepine used for anxiety disorders. When interviewed, the treating psychiatrist was unable to state the side effects of this medication. It is widely known by professionals that the regular administration of Lorazepam is habit-forming and that Lorazepam is detrimental for patients, such as T.E., with a history of severe alcohol abuse.
Similarly, benzodiazepines and anticholinergic agents carry a professionally well-known potential side effect of exacerbating cognitive decline. Nevertheless, numerous patients who suffer from memory or other cognitive deficits routinely receive these medications at Metropolitan. Similarly, Metropolitan’s diabetic patients, obese patients, and patients with hyperlipidemia (the presence of excess fats or lipids in the blood) are prescribed medications professionally well-known to aggravate these conditions. Based upon documentation and interviews, it does not appear that these medications are justified or that the psychiatrists have considered safer and equally effective medications for these patient populations.
In this regard, numerous Metropolitan patients, such as L.I. and U.H., have received older, so-called “typical” antipsychotic medications, such as haldol decanoate and lithium, for several years, without either improvement in their condition or documentation in their chart indicating that other, more commonly used “atypical” antipsychotic medications were considered or attempted. As a group, atypical antipsychotic medications are

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generally regarded as equally effective as conventional antipsychotics, while having a lower propensity to produce movement disorders, such as drug-induced Parkinsonism (muscular rigidity, tremors, restricted speech, and gait disturbance), dystonia (uncontrollable muscle spasms), and tardive dyskinesia (“TD”) (involuntary, aimless movements of the tongue, face, mouth, jaw, or other body parts). Further, atypicals are generally considered to have a lower risk of producing cognitive dysfunction and akathisia (restlessness, subjective distress and agitation), than conventional medications, and, in some instances, may have therapeutic effects on TD. Accordingly, as a general matter, atypicals are the first choice among antipsychotic medications, and it is a gross deviation from generally accepted professional standards of care, absent individual considerations, to initiate a patient on conventional antipsychotic medications.
Further, the use of multiple medications to address the same condition (“polypharmacy”), while possibly appropriate in some circumstances, always should be clinically justified. In many cases, including those of T.E., F.I., and S.G., Metropolitan’s use of polypharmacy is unjustified. Unjustified polypharmacy can potentially harm patients by exposing them to, among others risks, unnecessary medication, harmful side effects, and harmful drug-to-drug interactions.
Independent of the fact that patients frequently are medicated based upon clinically unjustified diagnoses, we note that Metropolitan’s medication guidelines do not meet generally accepted professional standards of care. See 42 C.F.R. § 482.25(b). Significant protocols for medication usage and management of side effects are outdated and incomplete. We would also flag for the State’s consideration that generally accepted professional standards of care dictate that facilities such as Metropolitan use appropriate procedures to ensure patients are afforded safe and effective pharmacological treatment, including mechanisms to: (a) monitor practitioners’ adherence to drug medication guidelines (“drug utilization evaluation” or “DUE”); (b) report and analyze adverse drug reactions (“ADR”); and (c) report, analyze, and document actual and potential variances in medication use (“medication variance reporting” or “MVR”). See Id. Metropolitan fails to meet these standards of care.
Adding to this lack of protections, the functions of the two committees that are to provide oversight of medication use at Metropolitan - the Pharmacy & Therapeutics Committee (“P&T”) and the Therapeutics Review Committee(“TRC”) – are poorly coordinated, overlapping, and disconnected. As a result, neither committee performs the critical, comprehensive review of

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medication practices that is essential at a facility such as Metropolitan to assure adequate and safe treatment.
2. Side Effect Monitoring
Metropolitan fails to assess or monitor adequately side effects of medications and in particular the side effect TD. TD is associated with prolonged treatment with conventional antipsychotic medications. Metropolitan’s psychiatrists are not adequately tracking patients’ signs and symptoms of TD, nor are they adhering to appropriate precautions. In fact, without justification, these psychiatrists prescribe medications that are professionally known to be the main causes of TD to patients with a diagnosis and history of TD. This practice is a substantial departure from generally accepted professional standards of care. Relatedly, the hospital’s internal pharmacological consultant agreed that certain medications, in particular anticholinergic agents, are over-prescribed at Metropolitan and that their use risks aggravating patients’ TD.
Moreover, Metropolitan’s psychiatrists often appear to be confused as to which medications are associated with particular side effects. For example, N.S.’s psychiatrist told us that “Cogentin protects from TD,” when this medication actually is professionally well-known to be detrimental for patients with TD, because it masks TD symptoms. When asked if Clozapine has any effects on the cardiovascular system, S.E.’s psychiatrist responded “[i]t is missing my mind [sic].” Cardiovascular effects are, in fact, the most common side effect of treatment with Clozapine. Moreover, Metropolitan’s psychiatrists appear to confuse their role in monitoring side effects. One psychiatrist stated that he had sought a neurology consultation to rule out TD, although the detection of TD is generally accepted among professionals to be a core psychiatric competency.
B. Psychology Services
Metropolitan’s provision of psychological services to its adult patients is fundamentally at odds with generally accepted professional standards of care. As discussed at Section II, above, assessments and evaluations that should shape psychological and other supports and services frequently are incomplete, inaccurate, and outdated and, consequently, are unreliable in identifying important elements of the patient’s condition and shaping adequate interventions. Interventions often do not address assessed needs regarding functional skills and maladaptive behaviors, and those interventions actually addressing such needs typically are poorly conceived, excessively generic, and untherapeutic. The stated goals of psychological

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interventions, which should serve to measure patient progress, are frequently inappropriate and unmeasurable. Further, the implementation of interventions is inconsistent and essentially unmonitored. For these reasons, interventions are not revised to account for patient progress or lack thereof. These deficiencies are irreconcilable with generally accepted professional standards of care and expose patients to harm and to risk of harm.
1. Psychosocial/Rehabilitative Interventions
The purpose of psychosocial and rehabilitative interventions is to improve a patient’s ability to engage in more independent life functions, so that he can better manage the consequences of psychiatric distress and avoid decompensation in more integrated settings. To be effective, these interventions should address the patient’s needs and should build on the patient’s existing strengths. Further, according to generally accepted professional standards of care, they should occur at regular, frequent intervals. Nevertheless, it appears from our extensive chart review that, at Metropolitan, rehabilitative and psychosocial interventions are largely driven by what is available on a particular unit, not what is appropriate for a given patient, and occur on an irregular and infrequent basis. Metropolitan’s offunit Stepping Stones and Psychosocial Rehabilitation programs were exceptions to this, but they are unavailable to the bulk of the facility’s population.
On the units themselves, patients most typically are assigned to groups depending upon what is available and what staff feel the patient can tolerate, regardless of need or indication. In this regard, many patients have a critical need for specialized treatment for problems such as substance abuse, a recognized psychiatric disorder, in addition to their underlying mental illness. The failure to provide specialized treatment for these dually diagnosed patients is a substantial departure from generally accepted professional standards of care. Nevertheless, Metropolitan often fails to identify and assess dually diagnosed patients. For instance, F.I. was not diagnosed with substance abuse although her psychiatric assessment included information that she has a history of this problem. Similarly, N.T.’s psychiatric assessment indicated an extensive history of substance abuse, with sobriety for the past four years. The psychiatrist, however, did not identify her substance abuse history.
Even when identified and assessed, treatment plans do not address the needs of these patients. Substance abuse groups, for instance, were not scheduled for some patients in serious need of such interventions while relatively stable patients with remote

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histories but no recent substance abuse were scheduled for this. For example, C.Nj., a 27-year-old man whose parents were both substance abusers and who himself has a long history of polysubstance dependence, had no interventions addressing this problem in his treatment plan, and there were no substance abuse groups on his schedule. I.Q. was not assigned to a substance abuse group in spite of the fact that his Axis I diagnosis is alcohol-induced persisting dementia.
Metropolitan patients are expected to attend the groups on their schedule, and, for the majority of patients, group attendance is the short-term, and often, long-term treatment goal. However, without a specific goal, or intended outcome, for a particular treatment, it is not possible to determine whether the treatment’s objective is achieved. Further, patients’ responses to treatment were virtually never recorded in treatment plans, social work evaluations, or rehabilitation assessments. Thus, with respect to on-unit rehabilitation, which is all the rehabilitation that the majority of Metropolitan patients receive, it is clear that psychiatric rehabilitation activities serve little purpose other than to fill the day and structure the unit’s operations. This is an extraordinary failure of care.
In addition, on-unit rehabilitation groups are not reliably offered as scheduled. We sampled 23 patients, from different units, at a mid-morning or mid-afternoon time point other than mealtime. Of these patients, only two clearly could be determined to be engaged in an activity. Very few groups occurred as scheduled, representing a very small proportion of patients on each unit. Patients spend strikingly little time in a treatment or rehabilitation program.
2. Behavioral Supports
Generally accepted professional standards of care dictate that patients receive appropriate behavioral interventions when: (a) their behaviors place them or others at risk of harm or otherwise significantly limit their ability to function in a noninstitutional setting; and (b) these behaviors are driven by factors that are susceptible to effective behavioral interventions. A determination whether behavioral supports are clinically warranted begins with an assessment of the challenging behavior and why it occurs.
For instance, to the extent that a patient’s behaviors are purely the result of delusions or hallucinations, behavioral interventions are less likely to be appropriate. Often, however, challenging behaviors are driven by factors as simple as a need for attention or an aversion to a noisy environment, factors

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readily susceptible to effective behavioral interventions. In any case, without an adequate assessment of why challenging behaviors occur, it is not possible to determine whether behavioral interventions are necessary and appropriate and, if so, the form those interventions should take.
By contrast, Metropolitan’s approach is to provide behavioral supports, in the form of a “Special Treatment Plan,” for patients experiencing high rates of seclusion, restraint, or one-to-one supervision. However, those patients who are not disruptive but nevertheless have significant behavioral needs – such as extreme withdrawal, isolation, anxiety, and avoidance behaviors – rarely, if ever, receive behavioral supports. Further, our expert consultants identified numerous patients who, given their high rates of seclusion, restraint, or one-to-one supervision, warranted behavioral supports, even according to Metropolitan’s practice, but nevertheless did not receive them.
More particularly, a sizable number of patients suffer from chronic illnesses that are resistant to traditional treatment, such as schizoaffective disorder and polysubstance abuse (e.g., L.I.), persistent disruptive or maladaptive behaviors (e.g., N.D.), cognitive impairments with deficits in self-care (e.g., T.P.), lack of motivation to participate in treatment or be discharged to a lower level of care (e.g., T.Eb.), and severe and persistent self-abuse (e.g., F.I.) and aggression (e.g., N.Cj.; D.I.), that clearly clinically warranted the development of behavioral plans which, in fact, were not developed.
K.P.’s chart indicates that he has been at Metropolitan for most of the past 12 years, is extremely violent at times and does not have a Special Treatment Plan, apparently because the previous plan was ineffective and therefore discontinued. N.T. has made several suicide attempts and repeatedly has engaged in self-injurious behavior, but she does not have a Special Treatment Plan to help her to address these behaviors. According to her chart, D.N.H. has a history of yelling and screaming, hitting other patients and staff, and self-abusive behaviors. She also may have mental retardation. Her chart indicates that she does not have a Special Treatment Plan, and it does not identify any other interventions to assist her in addressing these behaviors. Metropolitan clearly is not identifying and providing adequate behavioral supports for a large number of its patients having significant behavioral needs, and this is wholly inconsistent with generally accepted professional standards of care.
Even when behavioral plans are developed, they typically are poorly coordinated with other interventions and, on their face,

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are inadequate. Analyses of behaviors are inadequate, individual psychotherapy is not goal-directed or individualized, and the plans are too simplistic to make a difference in patients who have persistent and severe mental illness. Documentation indicates that psychiatrists are not aware of their patients’ behavioral plans, nor is there any integration of these plans and the patients’ pharmacological treatment. N.Cb.’s Special Treatment Plan highlights this lack of integration. It systematically withdraws his access to treatment groups which he enjoys and which presumably are intended to help him, independent of his behavioral control problems.
Patients in need of this treatment are not only denied adequate treatment and, consequently, exposed to prolonged hospitalization, but also exposed to potentially serious risks of physical harm. In 2001, D.S. swallowed batteries, screws, packets of mustard, and paper, resulting in surgery in December 2001 to remove these objects. So long as D.S. is denied adequate and effective treatment, he is at continued risk of this behavior. Similarly, so long as D.D., who has a history of aggression, does not receive effective, integrated treatment, both he and his fellow patients are at continued risk of assaultive behavior, and he likely will be subject to ongoing restraint and seclusion as a result of this behavior. K.Ej. is at continued risk of self-abusive behaviors so long as she does not receive a behavioral therapy program.
C. Nursing and Unit-Based Services
Metropolitan’s adult unit nursing services are irreconcilable with generally accepted professional standards of care and treatment. Nursing and other unit staff fail to adequately: (a) monitor, document, and report patients’ symptoms; (b) document the administration of medications; (c) provide a therapeutic environment; and (d) participate in the treatment team process. These deficiencies expose patients to harm and a significant risk of harm.
Many nursing and unit staff appear to lack adequate support, training, and supervision. Metropolitan leadership does not encourage these staff to communicate with other team members to anticipate and minimize problems. Consequently, nursing and unit staff respond to patient needs in a largely reactive way, often subjecting Metropolitan’s patients to excessive and inappropriate uses of medication, seclusion and restraints, inadequate and ineffective therapeutic interventions, and needlessly long hospitalization.

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1. Monitoring, Documenting, and Reporting Symptoms
As indicated in Section I, above, for the treatment team to evaluate the adequacy of implemented interventions, staff must monitor, document, and report patients’ symptoms. For psychiatrists to prescribe medications and psychologists and therapists to properly oversee therapeutic interventions, they must rely upon nursing and other unit staff to document and report symptomology.
As noted at Section I, above, Metropolitan treatment plans do not adequately define the criteria or target variables by which treatments and interventions are to be assessed, nor do the plans identify how and when these factors should be monitored. Consequently, nursing and unit staff do not monitor patients’ problems and symptoms adequately, and treatment teams lack significant information regarding the efficacy of interventions.
Further, we found no formal documentation system or objective exchange of substantive information between staff during shift changes or at other relevant times. Without a reliable system of recording and tracking patients’ progress relative to identified goals and problems, chart entries regarding a patient’s status have little value. Metropolitan’s lack of substantive documentation and information regarding patient progress hinders the provision of adequate treatment, needlessly exposing patients to potentially ineffective interventions and prolonging their institutionalization.
2. Medication Administration
Generally accepted professional standards of care require that staff properly complete the Medication Administration Records (“MARs”). MARs list the current medications, dosages, routes, and times that medications are to be administered. Generally accepted professional standards of care also dictate that staff sign the MARs at the time the medication is administered. Completing the MARS properly is fundamental to maintaining patient safety and reducing the likelihood of medication errors and adverse drug effects. If staff members fail to document the medications they are administering, it may result in patients not receiving medications or receiving medications multiple times. Further, generally accepted professional standards of care require that all “controlled” substances be signed out on the control log and that there be an accurate count at all times of such medications.
During our tours, we observed a number of instances in which staff failed to sign the MARs for medications that reportedly had

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been administered. In addition, controlled medications were administered without staff signing the control log. Staff’s failure to properly sign the MARs or the control log should be considered a medication error and documented as such, and followup should occur to reduce the likelihood that such errors will continue to occur. However, Metropolitan fails to follow such procedures.
Moreover, generally accepted professional standards of care dictate that staff who administer medication know: (a) what the medication is for; (b) its expected results and their timing; and (c) the symptoms of the disorder that it is targeting. Metropolitan’s nurses generally are unfamiliar with the purposes of the medication they administer and unable to identify the expected results or their timing. Also, a number of nurses we interviewed were unable to identify the symptoms associated with the disorder for which a particular medication was prescribed. If nurses do not understand patients’ disorders or the purposes of the medications that they are administering, they lack information fundamental to their responsibilities to assess and report their patients’ progress. This shortcoming is a substantial departure from generally accepted professional standards of care, and places residents at risk of harm from ineffective or inappropriate treatment interventions.
Finally, while not necessarily rising to the level of a violation of federal law, we flag for the State’s consideration that staff administering medications were not observed to properly educate patients about their medications, the expected effects or the expected side effects. These failures are not consistent with generally accepted professional standards of care.
3. Provision of Therapeutic Activity
At Metropolitan, nursing and unit staff generally do not appear to understand their roles in the therapeutic process, nor do they appear to be familiar with basic therapeutic tools or treatment modalities. In this regard, we observed a number of skilled nursing facility (“SNF”) unit patients in their beds during the day time with the privacy curtains pulled around them and their doors closed. It appeared that they had not had contact with anyone for hours. From our observations, Metropolitan was not providing any stimulation or therapeutic activities for these individuals. This complete lack of interaction for patients such as these, with cognitive and memory deficits, causes harm in that it exacerbates their symptoms.

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Even more critically, some patients, such as E.D. and K.E., are bed-bound. We saw no indication that Metropolitan staff assisted them to get out of bed on a daily basis. Generally accepted professional standards of care require that patients be assisted out of bed on a daily basis, unless there is a medically justified and documented reason to maintain the person in a “bed bound” status. We did not find such justification for either of these patients. Among other concerns, prolonged periods in a supine position places patients at serious risk of skin breakdown. This failure is at odds with generally accepted professional standards of care.
D. Pharmacy
It is generally accepted professional practice for pharmacists to review individual patients’ medication regimens on a regular, at least quarterly, basis. Such a review should encompass all of the medications prescribed (not just psychiatric drugs and “as-needed” (also known as “pro re nata” or “PRN”) medications) and should include documentation of any communication between the pharmacists and physicians regarding concerns, potential medication interactions, and the need for laboratory testing. Metropolitan pharmacists review patients’ medication regimens, for example, when new medication orders are issued or lab results are returned. However, they are not systematically reviewing patients’ medication regimens. Moreover, when pharmacists’ review of medications does identify problems, adequate follow-up does not occur to ensure that physicians have reviewed the pharmacists’ recommendations and taken appropriate action. Numerous Pharmacy Intervention forms we reviewed identified problems and actions that needed to be taken, such as the completion of laboratory work. However, we were unable to confirm from the documentation provided that such actions actually were taken in a timely manner. This is a significant deviation from generally accepted professional standards of care. These failures are particularly troubling, given the unjustified and outdated combinations of medications that often are prescribed for Metropolitan’s patients.
E. General Medical Services
Generally accepted professional standards of care dictate that patients be provided adequate and timely preventative, routine, specialized, and emergency medical services. Metropolitan’s provision of general medical care, however, deviates substantially from these standards. Metropolitan has not adequately defined the primary care physicians’ responsibilities, nor the triggers for initial assessments,

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ongoing care, and re-assessments. It has not established protocols governing physician-nurse communication, or mechanisms integrating patients’ mental health and medical care.
Because staff fail to monitor, document, and report patients’ symptoms, treatment teams lack objective data to determine whether treatments addressing patients’ general medical issues should be modified. Many patients receive unspecific or vague diagnoses that contribute to inadequate, inappropriate, or no medical treatment. For instance, diagnoses such as “Other Convulsions,” given to K.D., K.Eb., M.C., E.D., K.E., Ep.G., and U.O., and “Paralysis, Unspecified,” given to M.C. and X.F., are not adequate to guide treatment. Further, Metropolitan lacks a means to obtain medical records consistently from hospitals providing treatment to Metropolitan patients.
Separately, Metropolitan’s after-hours medical coverage places patients at serious risk of harm in the case of a psychiatric emergency. It is a generally accepted professional standard of care in an in-patient facility such as Metropolitan that at least one psychiatrist be on-site at all times or, at a minimum, be available by telephone and able to come to the facility as needed. At Metropolitan, after-hours medical coverage (typically from 5 p.m. - 8 a.m.) is provided by primary care physicians without any psychiatry support. Moreover, according to the chairman of psychiatry and six staff psychiatrists, these physicians have not been formally “privileged” in psychiatry. Rather, “they basically learn on the job.” Physicians who are not “privileged” in psychiatry have not received critical training in psychiatry or in dealing with psychiatric emergencies, including the assessment of dangerousness, suicidality, or behavioral disorders that may require restrictive interventions. Such a practice assumes that psychiatric emergencies do not occur after-hours, is a gross deviation from generally accepted professional standards of care, and places patients at great risk of harm.
There are numerous instances in which Metropolitan has failed to provide necessary medical care to its patients. For example, T.N. inserted a metal object into her abdomen. The object was never removed, causing an abscess on her abdomen and severe abdominal pain. E.E., an ambulatory patient, fell in April, 2001, while at Metropolitan, fracturing his right femur. The community hospital determined that he was “not a candidate” for repair of his femur. That hospital also detected a mass in his left lung but failed to perform a biopsy. As of May, 2002, Metropolitan had never questioned the community hospital’s determinations or ordered a biopsy. Further, since this injury,

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E.E. has been permanently bed-bound, has experienced multiple bouts of pneumonia, has been placed on a feeding tube and has had numerous pressure sores, ranging in severity from Stage II (which involve a partial loss of skin layer that presents clinically as an abrasion, blister, or shallow crater) to Stage IV (meaning soft tissue is exposed to the bone, the most severe classification of pressure ulcers).
F. Infection Control
Generally accepted professional standards of care require that infections and communicable diseases be tracked and trended in an institutional setting such as Metropolitan. When analysis of trends reveals potential problems, it is standard practice for corrective action plans to be developed and implemented.
After we stated in our May 13, 2003 letter that Metropolitan does not systemically track or trend infections or communicable diseases, the State referred us to infection control committee minutes indicating that Metropolitan does track infections and communicable diseases. However, neither in our interview of one of the facility’s two infection control nurses nor in any documentation that we reviewed, including the infection control committee minutes, were we able to detect that the facility takes appropriate interventions to minimize the risk of infections.
For instance, we saw no evidence that the facility monitors living units for infectious contaminants and takes measures to eliminate or prevent such contaminants, although generally accepted professional standards of care dictate that this be performed as part of a standard infection control program. In fact, the infection control nurse told us that infections are addressed on an individual basis (although, here again, we saw no documentation in the numerous charts that we reviewed indicating that nurses had provided treatment or education to an individual patient to resolve an infection and prevent its reoccurrence). In this regard, as noted in Section VII, below, we saw urinesoaked laundry on the floors of patients’ bedrooms and in uncovered bins in patient-inhabited areas. The obvious presence of such potential infection sources in living units is at odds with adequate infection controls and places patients at risk of harm from infection. We further note that it also did not appear that the facility’s quality assurance system amalgamated and assessed its infection control data.

G. Dental Services

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At Metropolitan, dental care substantially departs from generally accepted professional standards. Consequently, patients experience harm and are at risk of harm.

Many Metropolitan patients’ dental health deteriorates because of long delays in, or the complete absence of, dental treatment. These deficiencies appear to be caused by, among other factors, Metropolitan’s failure to: (a) take patients to dental appointments; (b) identify and address the causes for patient refusals to participate in dental appointments; and (c) follow-up on recommendations made by the dentist. Patients whose dental care appears to have been compromised because of these factors include Tu.Q., E.H., K.N., Q.C., Kb.N., F.E., Kp.E., Mz.H., Dm.D., O.U., X.F., X.X., M.C., C.Hb., T.N., U.O., K.B., C.W., K.Ep., and I.Q.

Generally accepted professional standards of care also dictate that appropriate efforts be made to restore patients’ natural teeth before resorting to the irreversible extraction of teeth. However, several Metropolitan patients, including K.P., M.C., B.M., S.N., U.H., Tu.Q., N.G., and E.H., have had teeth extracted without adequate clinical justification to support such decisions.

Further, to avoid medical complications, it is essential that the dentist take account of diseases, medications, and physical disabilities that have a major impact on dental health. Individuals with diabetes, for example, may be at increased risk for developing mouth infections. They may also take longer to heal from dental procedures, increasing their risk of infection. Individuals with certain cardiovascular conditions, such as mitral valve prolapse, need to receive certain antibiotics prior to undergoing dental procedures to prevent an infection of the lining of the heart, which can be life-threatening. However, Metropolitan often fails to document significant health information in its patients’ dental records that would indicate that its dentists have accounted for such important factors in providing treatment. In addition, it is a generally accepted professional standard of care that dentists document their findings and their plan of care. Metropolitan rarely maintains adequate documentation in these areas. As a result, patients are at risk of receiving inadequate treatment and/or treatment that jeopardizes their physical health.

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H. Physical and Occupational Therapy
Generally accepted professional standards of care provide that patients who require physical therapy (“PT”) or occupational therapy (“OT”) to regain, maintain, or improve functioning receive such services in a timely manner in accordance with an individualized plan of care. This plan of care should be integrated into the patient’s overall treatment plan. In addition to the direct services provided by the physical and/or occupational therapists, PT and OT programs should be incorporated into patients’ daily activities, whenever appropriate.
As with other treatment plan goals and objectives, it is a generally accepted professional standard of care that PT and OT goals and objectives be measurable, observable, and functional. Although many of Metropolitan’s OT goals appear to meet this criteria, many of its PT goals do not, making it impossible to determine if patients have met their goals or if the goals are appropriate to meet their needs. Moreover, generally accepted professional standards of care require that physical and occupational therapists provide staff with clear, individualized guidelines regarding positioning and transferring patients who cannot complete these activities independently. This is essential to both patient and staff safety. Metropolitan has no such guidelines. These deficiencies depart largely from generally accepted professional standards of care.
Other impediments to patients receiving adequate PT and OT services are Metropolitan’s failures to take them to scheduled appointments, provide adequate staffing, or address appropriately patients’ refusals to participate in PT and/or OT sessions. Numerous appointments for numerous patients are cancelled due to a lack of transportation, patient refusals, or patients or staff being “unavailable” at the time of the appointments. Examples of patients who experienced these issues include B.N., N.Q., S.Q., Ef.H., D.B., Cj.D., E.H., and O.K.
Staff on certain units stated that they require patients to use wheelchairs because they are afraid that walkers and canes could be used as weapons. However, we found no evidence that Metropolitan had completed assessments to determine whether individual patients could use canes and walkers safely on their units, or if the patients could be placed on another unit where such adaptive equipment could be used safely. Other patients, such as S.M., are blind and could utilize walking canes to increase their level of independent mobility, but Metropolitan has not provided them with the equipment or the requisite

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training. Rather than promoting patients’ independence, Metropolitan’s practices are fostering their functional decline.
Wheelchairs need to be fitted properly for the individuals using them. A number of patients, such as M.C. are in wheelchairs that do not fit them and, consequently, provide inadequate postural support and body alignment that can result in injury or medical complications. For instance, patients diagnosed with Huntington’s Chorea are at risk of contracting respiratory diseases. When placed in a wheelchair providing incorrect postural support, their risk may be significantly increased. We observed one such patient, S.U., seated in a wheelchair with his posture collapsed, making it more difficult for him to breathe.
I. Dietary Services
Metropolitan’s dietary services substantially depart from generally accepted professional standards of care, which require that patients’ weight and other dietary issues be addressed comprehensively by their treatment teams. Medical conditions such as hypertension or Chronic Obstructive Pulmonary Disease (“COPD”) can be exacerbated by obesity, and many of the medications that Metropolitan frequently uses, such as Depakote, Thorazine, and Haldol can cause significant weight gain. Further, the charts of several Metropolitan adult patients prescribed such medications, such as E.E., Mz.H., Q.C., N.K., and F.E., indicate that these patients are at risk of significant health problems because of their weight. However, most of the treatment plans that we reviewed for patients appearing to have significant weight problems did not address their weight. Further, the treating psychiatrist and the treatment teams did not appear to consider a patient’s weight when determining which psychotropic medications to prescribe.
Generally accepted professional standards of care dictate that individuals at risk of aspirating be evaluated adequately and have mealtime protocols developed by their treatment team that include specific instructions for staff on topics such as the texture of the food, the patient’s position during and immediately after meals, and the level of supervision staff need to provide. These protocols also should address other activities involving swallowing, such as tooth brushing, dental appointments, and medication administration. Finally, staff responsible for implementing these protocols must be able to do so correctly. Metropolitan’s services in this regard substantially depart from generally accepted professional standards of care.

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It appears that a number of Metropolitan patients with aspiration problems, such as X.F., B.M., E.E., Q.C., E.T., D.N.H., N.K., H.S., Kv.Q., M.C., C.K., S.U., E.D., and T.T., lack these protections. In some cases, evaluations had been completed which clearly identified serious problems, but Metropolitan had failed to follow-up on the resulting recommendations. It appears that no specific, individualized mealtime protocols are available for staff who are assisting patients to eat, and we saw no mechanism enabling staff to identify those patients who are at high risk for aspiration. Nor was there any indication that such patients are adequately monitored. We also found no individualized written instructions regarding other activities involving swallowing for patients at risk for aspiration. Consequently, it appears that Metropolitan’s patients with aspiration problems are at risk of harm.

In addition, at the time of our visit, there were six patients on the SNF units who were fed by tubes. Generally accepted professional standards of care for such individuals require that efforts be made to address the underlying causes of the person’s inability to eat by mouth so that these feeding tubes, which, among other concerns, pose infection risks, can be removed. However, we found no evidence these activities were occurring at Metropolitan. As a result, these patients are at risk of long-term, unjustified use of feeding tubes.

V.

DOCUMENTATION OF PATIENT PROGRESS

As noted in Section II.A, above, Metropolitan’s psychiatrists do not chart their patients’ progress with sufficient frequency. Further, the substance of the psychiatrists’ progress notes at Metropolitan grossly departs from generally accepted professional standards of care. Psychiatrists often fail to: (a) document significant developments in their patient’s condition; (b)describe target symptoms; (c) identify a patient’s response to treatments; (d) document rationales for changes in pharmacological treatment; (e) identify medication side effects; (f) assess the use of PRN medications; (g) explain changes in diagnoses; (h) explain the rationale for polypharmacy; and (i) assess the patient’s competence on an ongoing basis. These deficiencies directly impede adequate assessment of patients’ progress and evolving needs during hospitalization and indirectly lead to ineffective and even harmful treatment.

In fact, the progress notes of Metropolitan’s psychiatrists often suggest unfamiliarity with patients’ status. For instance, on numerous occasions F.I.’s psychiatrist wrote that she was

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stable, without noting that she had been in seclusion and/or restraints that same month for being assaultive or self-abusive. Similarly, in August 2002, N.Cj. reportedly swallowed batteries and was referred to a medical consultant. The psychiatrist’s subsequent progress notes ignore this event and report nothing about the status of the medical follow-up. The 2001 monthly progress notes for K.E. contain no justification for the patient’s medication regimen, fail to mention a number of his medications, and include no discussion of his frequent use of “as-needed” (also known as pro re nata or “PRN”) medication or his response to treatment.

VI.

RESTRAINTS, SECLUSION AND “AS-NEEDED” MEDICATIONS

Metropolitan’s use of seclusion, restraints, and “as-needed” medications for its adult patients substantially departs from generally accepted professional standards of care and exposes those patients to excessive and unnecessarily restrictive interventions. Generally accepted professional standards of care dictate that seclusion and restraints: (a) will be used only when persons pose an immediate safety threat to themselves or others and after a hierarchy of less restrictive measures has been considered and/or exhausted; (b) will not be used in the absence of, or as an alternative to, active treatment, as punishment, or for the convenience of staff; (c) will not be used as a behavioral intervention, and (d) will be terminated as soon as the person is no longer a danger to himself or others. Generally accepted professional standards also instruct that PRN psychotropic medications should be used only as a short-term measure to relieve a patient in acute distress, not as means to escape mild, possibly healthy, discomfort or as a repeatedly deployed substitute for treatment.

Metropolitan uses seclusion, restraints, and PRN medications for its adult patients in the absence of adequate treatment and, in some instances, as punishment. Many instances of seclusion, restraints, or PRN medication result from adult patients exhibiting symptoms of their mental health disorders. Without the benefit of appropriate medication and therapeutic interventions, patients lack the means to control such symptoms. Thus, inadequate mental health treatment exposes patients to excessive use of seclusion, restraints, or PRN medications. Moreover, we found numerous incidents in which patients exhibited behaviors that initially were not a danger to themselves or others, but which escalated with staff involvement into dangerous situations. We also found that documentation often did not show that staff first attempted less restrictive interventions before using seclusion, restraints, or PRN medications.

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When seclusion, restraints or PRN medications are frequently used, it is generally accepted professional practice for the treatment team to reassess interventions and, as necessary, modify the treatment plan to ensure that adequate measures are identified and implemented. Frequent use of seclusion, restraints and/or PRN medications is an indicator that an individual’s diagnosis is erroneous and/or that the treatment plan is inappropriate. Metropolitan fails to review routinely its adult patients’ treatment plans after such episodes.
Numerous patient charts identify frequent episodes of seclusion, restraint, or PRN medication without related documentation indicating that the team adequately assessed the patient, developed and/or reviewed the treatment plan, or considered alternative interventions. For example, D.I. was in walking restraints 24-hours-a-day for almost the entire month of March 2002, and was in restraints another 41 times between April 7 and November 11, 2002. T.N. was placed in wrist and ankle walking restraints continuously April 27 through 29, 2002, and again from April 30 through May 9, 2002. U.H. was placed in seclusion and/or restraints on 25 occasions between February 8 and November 13, 2002, with restraint episodes lasting between 30 minutes and 23 hours. D.D. was kept in walking restraints 24hours-a-day April 1 through May 3, 2002, and again May 9 through 12, 2002. For over six months between January and July 2002, C.X. was kept in walking restraints during waking hours and placed in a locked seclusion room to sleep. It appears that no mechanism was in place to alert treatment teams to these incidents of seclusion and restraint, and that treatment teams did not meet routinely to review and modify, as appropriate, the treatment interventions of these patients. We also could not locate documentation indicating that other, less restrictive alternatives had been attempted prior to restraining or secluding patients.
Further, Metropolitan fails to comply with generally accepted professional standards of care that require physicians or other licensed medical practitioners to conduct face-to-face assessments of patients placed in seclusion or restraints within one hour of the initiation of the seclusion and/or restraints. D.I.’s chart indicates that he was placed in seclusion and/or restraints at least five times in October 2001 without a signed physician’s order denoting a face-to-face assessment within the required time frame, and on February 2, 2002, he was kept in seclusion and/or restraints for more than 11 continuous hours without a timely assessment by a physician. L.T. was placed in physical restraints seven times between November 10 and December 29, 2001, without a physician’s assessment, including one episode

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that lasted 24 hours. U.Cs. was placed in seclusion and restraints at least 14 times between February 25 and September 8, 2001, without evidence in his chart of any face-to-face assessments.
According to generally accepted professional standards of care, bed side rails constitute physical restraints. Patients, particularly those experiencing significant cognitive difficulties, can become entangled in side rails when attempting to exit beds, and can be severely injured or killed, as a result. Where side rails are used, they must be part of a patient’s treatment plan that reflects that they are the least restrictive intervention then available and that alternative interventions are being explored to obviate their need. During our tours of the SNF units during the day, evening, and night shifts, most patients had their side rails up when they were in bed. None of the treatment plans reviewed for these patients documented that they were the least restrictive intervention. Moreover, there was no indication that Metropolitan had attempted to reduce the use of side rails and/or identify other, less dangerous alternatives. This places patients at risk of harm. Likewise, vest and soft wrist restraints should not be used without proper assessments that justify the need for them, and without treatment plans that include interventions designed to eliminate or minimize their use. Metropolitan is regularly using vest and soft wrist restraints with patients on the SNF units without proper justification and/or treatment planning.
Separately, as indicated in Section IV.A, above, Metropolitan has no parameters governing the use of PRN medication. Because Metropolitan’s psychiatrists frequently fail to review critically the use of PRN medications and patients’ reactions to them, they are unable to refine patients’ diagnoses and adjust routinely administered medications. Without adequate monitoring by psychiatrists of PRN medications, patients are at risk of being overly and/or improperly medicated.
For example, psychiatrists’ failure to review adequately the use of PRNs was evident in the chart of K.E., who was prescribed one PRN medication for insomnia and two PRN medications for agitation. This patient’s psychiatric progress notes fail to justify the use of these medications, neglect even to mention one of them, do not describe the frequency of the PRN medication use, and do not provide the patient’s response to these medications. This is particularly concerning because, during the period when this patient was prescribed a PRN medication for agitation, his chart reports that he was “weak” and “bed bound” and indicates that any agitation he may have had was limited to occasional

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verbal outbursts in response to hands-on care. Similarly, during the treatment team meeting for S.G., a nurse reported that this patient had received eight PRN medications over the previous month and repeatedly had requested a change in his medication, but the psychiatrist did not critically review the use of S.G.’s PRN medications or his reactions to them.

VII.

PROTECTION FROM HARM

We indicated in our May 13, 2003 letter that we would address protection from harm issues on a facility-wide basis in this letter. It is an essential component of generally accepted professional standards of care in congregate care facilities such as Metropolitan, to maintain an effective incident management system and a related quality assurance system to prevent harmful incidents and identify and correct deficiencies in care. However, Metropolitan’s systems are themselves deficient and fail to protect its patients from avoidable harm.

Metropolitan also fails to provide its patients a safe living environment. As was true of Program I, Metropolitan’s adult units contain environmental hazards, some of which pose risks of serious injury, illness, and death. The harm that Metropolitan’s patients experience as a result of these deficiencies is multi-faceted, including physical and psychological abuse; physical injury; excessive and inappropriate use of physical and chemical restraints; inadequate, ineffective, and counterproductive treatment; and excessively long hospitalizations.

A. Incident Management

It is a generally accepted professional standard that, to ensure that patients are provided a reasonably safe environment, facilities such as Metropolitan maintain an effective incident management system, including mechanisms for: reporting; investigating thoroughly; tracking and trending; and identifying and monitoring implementation of appropriate corrective and preventative action. Metropolitan’s incident management system is at odds with generally accepted professional standards of care and exposes its patients to actual and potential harm.

Facility records indicate that, in Program I, which serves approximately 100 children and adolescents, for the period between May 1, 2001, and March 31, 2002, there were 131 patientagainst-patient assaults, 169 incidences of patients abusing themselves, and 74 accidental injuries. Between May 1, 2001, and April 30, 2002, there were 27 allegations of staff abuse.

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In addition, based on an incomplete list provided by Metropolitan, between May 1, 2001, and April 30, 2002, there were six allegations of rape and an additional 28 instances of inappropriate sexual contact between children and adolescents. Of the 28 incidents of inappropriate sexual contact, an aggressor and/or victim was identified in 21 of them, indicating they were not consensual. During this same time period, 15 suicide attempts and 23 elopements and/or attempted elopements occurred.
Metropolitan’s adult patients are also frequently exposed to harmful incidents. Between April 1, 2001, and March 31, 2002, Metropolitan’s adult patients were involved in 475 patient-against-patient assaults, 310 incidences of patients abusing themselves, 304 accidental injuries, and 11 incidents of elopement or attempted elopement. In addition, between May 1, 2001, and April 30, 2002, there were 42 allegations of patient abuse by staff.
Many of these incidents left patients in need of medical treatment. Between April 1, 2001, and March 31, 2002, patients required first aid on 749 occasions, more extensive medical treatment on 114 occasions, and hospitalization on 61 occasions. Some individual examples illustrate the problem:
On September 11, 2001, D.H. allegedly was hit in the face by another patient. D.H. was admitted to the hospital with a diagnoses of facial bruising and fracture of the nose and left eye socket. He was scheduled for plastic surgery.
On January 10, 2002, although patients are not supposed to be in the employee cafeteria, F.I. gained access, broke a glass bottle on a bench, and swallowed some of the glass, leaving her with cuts in her mouth and small bits of glass in her lower intestine.
On July 27, 2002, while on compound privileges with 13 staff and 134 other patients, S.W. sustained a laceration to his face and neck that was 22 centimeters in length and one centimeter deep. The incident report indicates that 38 sutures were necessary to close the external wound and it was unknown how many sutures were necessary to close the internal damage. S.W. reported that he was attacked from behind. Two stateissued razor blades made into a weapon were found in the grass near the unit’s entrance.

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1. Incident Reporting
As the above examples indicate, Metropolitan’s patients frequently are subjected to the most basic kinds of harm. Moreover, it appears that the frequency of these incidents is actually higher than what Metropolitan reports, because of multiple factors. As a threshold matter, Metropolitan’s policies and procedures related to reporting and categorizing incidents are disjointed, uncoordinated and confusing. Consequently, there is a significant risk that incidents will not be reported or reported correctly. In this regard, the Hospital Police Department’s (“HPD”) Crime Statistics Report includes several incidents that were not reported or tracked by the facility on its list of “Special Incidents” (which involve significant harm, such as allegations of abuse, and actual or attempted elopement or suicide). Further, it appears that staff frequently do not formally report Special Incidents at Metropolitan or report them in writing days after they occur. This practice substantially departs from generally accepted professional standards of care, which require that staff who witness or first discover an incident submit a written report before the end of that person’s shift.
Incident reporting is further complicated for children and adolescents attending the school program. Metropolitan contracts with Los Angeles County Office of Education (“LACOE”) for the provision of educational services to its children and adolescents. LACOE staff have different Special Incident reporting requirements than Metropolitan staff, and there does not appear to be a formal cooperative agreement between the two entities to ensure consistency in reporting. Although Metropolitan and LACOE have developed informal methods for communicating about patients, it appears that some incidents that occur during the school day are not recorded by the program units. Without consistent reporting, Metropolitan is unable to protect its patients from harm adequately, to take appropriate and adequate preventative and corrective action, or to trend and track incidents comprehensively across programs.
Moreover, generally accepted professional standards of care dictate that incidents be categorized consistently, so that they can be reliably aggregated and analyzed. However, Metropolitan’s ability to do so is significantly compromised, because its policies do not define concepts as fundamental as neglect or exploitation, leaving it to individual staff to determine whether incidents involve such harm. This lack of clarity creates a significant risk that instances of neglect and exploitation will never be reported, investigated, and

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addressed, which is irreconcilable with generally accepted professional standards of care.
2. Incident Investigations
Metropolitan’s investigations vary widely in quality and, in many respects, substantially depart from generally accepted professional standards of care. Metropolitan’s investigations often lack the necessary components of a valid investigation. For instance, investigations often do not appear to reconcile evidence appropriately, calling into question the investigations’ conclusions. Consequently, more often than not, allegations of abuse are unsubstantiated. Also, the investigations almost never address programmatic issues that are necessary to identify the underlying causes of incidents. Consequently, adequate corrective action cannot be taken and Metropolitan’s patients are needlessly exposed to risk of harm. It appears that many of the program level staff, HPD staff, and Senior Special Investigators (“SSIs”) who share responsibility for conducting investigations have not been trained adequately to conduct investigations in a mental health setting. Finally, some investigations are performed by staff who appear to have conflicts of interest. Although SSIs are available to conduct independent investigations, it appears that often cases of alleged abuse are investigated by unit staff, including supervisors.
We saw numerous investigations reflecting these problems. Two are illustrative. On January 7, 2002, L.A. alleged that a staff person raped her. Without conducting or documenting a thorough investigation, L.A.’s treatment team concluded that the allegation was not credible and added a problem of “false accusations” to L.A.’s problem list. Facility records do not indicate that this allegation was referred to an SSI for further investigation.
Another incident, reported on April 18, 2002, arose from staff’s denial of D.O.’s request for a shower or soap to clean herself after being incontinent. It escalated to staff placing D.O. in restraints and seclusion. D.O. alleged that, while restraining her, a staff person intentionally hurt her. Notwithstanding the circumstances preceding the seclusion and restraint, the ensuing investigation did not address whether staff appropriately implemented programmatic requirements or whether changes in staff’s approach should be considered. Further, the investigating staff concluded that the allegation was not substantiated but did not reconcile relevant evidence

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nor interview all witnesses. Finally, although the incident involved alleged abuse, it apparently was not referred to an SSI for further investigation.
3. Incident Tracking and Trending
Generally accepted professional standards of care also require facilities such as Metropolitan to track and trend incident data to address problematic trends. Metropolitan’s under reporting of incidents obviously compromises its ability to trend and track incidents adequately. Further, Metropolitan’s incident tracking and trending system, itself, is at odds with generally accepted professional standards of care. For example, Metropolitan’s incident trending reports do not track important types of incidents, such as allegations of patient abuse by staff, neglect, rape, or other inappropriate sexual incidents. Furthermore, although the summary reports provide some information regarding patterns or trends, there are a number of other potential trends and patterns that are not included but that are fundamental to identifying potential problems and formulating solutions, such as which patients most often are victims or aggressors.
Even when Metropolitan identifies problematic trends, we could not identify evidence that adequate or appropriate remedies ensue. For example, in response to high numbers of patient assaults resulting in staff injuries, Metropolitan initiated use of an additional type of restraint, a containment blanket. However, Metropolitan did not, so far as we could determine, consider and address the cause of the high numbers of assaults. Likewise, Metropolitan’s Special Incident Reports Summaries for the period between April 1, 2001, and March 31, 2002, identify early evenings, nights, weekends, and holidays as peak times for the occurrence of incidents. However, Metropolitan does not appear to have investigated this trend or identified strategies to address it. Metropolitan’s failure to take appropriate and timely action to address such trends and patterns places its patients at ongoing risk of harm.
B. Quality Improvement
Throughout this letter and our May 13, 2003 correspondence, we enumerate various failures at Metropolitan to provide adequate care and treatment for its patients. With few exceptions, Metropolitan has failed to identify these problems independently, or formulate and implement remedies to address them. Consequently, actual and potential sources of harm to Metropolitan’s patients are going unaddressed.

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Although at the time of our tours, Metropolitan had begun to engage in some quality improvement activities, these efforts generally were disjointed and inadequate. Specifically, each of Metropolitan’s six programs collects data on different aspects of the protections, treatments, services, and supports they provide, making system-wide analysis virtually impossible on all but a few issues. Moreover, most of the data Metropolitan collects relates to process, not outcomes being achieved by patients or the adequacy of the protections, treatments, supports, and services being provided. For example, Metropolitan collects data about the number of restraint and/or seclusion episodes, but does not collect data about whether the use of such procedures was clinically necessary and justified. Some programs collect data on the number of group therapy and/or educational sessions scheduled and attended, but do not collect data about the outcomes achieved by patients as a result of attendance at these sessions as compared with their individualized therapy and educational goals. Similarly, one program (Program IV) collects data on the number of missed medical appointments. These numbers show that patients frequently miss medical appointments due to patient refusal. However, it does not appear that the program analyzes the efforts treatment teams are taking to minimize these refusals and/or the adequacy of these efforts.
Moreover, Metropolitan does not adequately or appropriately use the data that it does collect. Each program prepares and submits a Performance Improvement report on a quarterly or, occasionally, monthly basis. Although these reports include various and sometimes extensive data, Metropolitan often fails to analyze the data to identify problematic trends or areas in need of improvement. It also often fails to conduct the further analyses necessary to determine which policies, procedures, and practices are working, which are not, and to recommend and implement actions designed to correct deficiencies and/or improve performance. Even when data indicates improvement or positive trends, it does not appear that Metropolitan analyzes such trends to determine which policies, procedures, and practices might be replicated throughout a program, or facilitywide.
We found numerous examples of quality assurance breakdowns indicating weaknesses in Metropolitan’s ability to identify or correct causes of actual or potential harm to patients. For instance, the July 24, 2001 Interdepartmental Performance Improvement Committee minutes indicate that the Committee identified problems regarding the use of seclusion and restraint. A number of strategies were identified, and the

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Committee made various recommendations, including revision of the Managing Assaultive Behavior (“MAB”) training curriculum, providing staff with additional education, and increasing the use of alternatives to seclusion and restraint. According to minutes provided to us, no other mention of this issue occurred until November 27, 2001, when almost identical strategies were identified. No subsequent discussion apparently occurred thereafter through March 26, 2002, the period that we reviewed; the minutes are silent regarding implementation of the previously identified strategies or recommendations, or their impact on resolving the identified issues. This apparent lack of follow-up is especially problematic, given the problems identified in Section VI, above, regarding Metropolitan’s use of restraint and/or seclusion.
C. Environmental Issues
In a facility serving people at risk of harming themselves or others, the environment should be kept free of hazards. Metropolitan has failed to meet this generally accepted professional standard of care. As we pointed out in the presence of administrators who toured the adult units with us, the vents and window grills on several units contained holes large enough to thread a sheet or other cloth through, placing patients at risk for suicide by hanging. As on the children and adolescent units, some of the vents on the adult units were not covered, allowing patients to access wires and other potentially dangerous items. Several of the units contained other hazards, such as wires holding down seclusion beds that, if accessed by patients, could be used to hurt oneself or others. In one of the restraint rooms, we observed plaster on the floor that easily could have been swallowed by a patient.
Examples of Metropolitan’s breakdown in environmental protections include a January 17, 2001 incident in which W.T. was found standing on a heater vent with torn linen tied tightly around his neck and attached to a bar on the window. He jumped from the vent in an attempt to strangle himself. By the time staff arrived to assist, his face reportedly had turned a bluish hue. Despite the fact that this incident clearly identified that the bars on the windows are a potential suicide hazard, it does not appear that systemic action was taken to ameliorate the situation. On July 11, 2001, a peer notified staff that N.T. had attempted to hang herself in her bedroom with a bed sheet looped around her neck and fastened to a metal frame of a window. Again on July 15, 2001, a peer reported to staff that N.T. was attempting to hang herself. Staff found N.T. with a blanket tied around her neck and the other end tied to the bars

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on the window. Less than three months later, on October 8, 2001, N.T. was found with a bed sheet looped around her neck and fastened to a metal frame of a window. N.T. was then placed in seclusion and restraint. One day earlier, staff found K.S. in the bathroom with a blanket tied around his neck and the other end tied to the bars on the window.
Based on both staff statements and our own observations, Metropolitan fails to maintain temperatures in some patient areas that do not pose a risk to health. For example, during the evenings, the SNF units were excessively warm. We observed that staff repositioning patients were sweating profusely. Commendably, staff had attempted to ameliorate the heat by pointing fans into patient rooms, but privacy curtains were blocking the airflow. Moreover, fans blowing on patients whose health is compromised, such as patients requiring skilled nursing care, places them at high risk for complications such as pneumonia.
Lastly, areas throughout the facility, primarily the SNF units, had a strong smell of urine and excrement. This is a potential indication that patients had been sitting in their urine or feces for a long period of time, placing them at high risk for skin breakdown. We observed urine-soaked laundry on the floors of some patients’ rooms and in uncovered bins in patient-inhabited areas, presenting an infection hazard.
D. Use of Untrained Personnel in Patient Interventions
Generally accepted professional standards of care for facilities such as Metropolitan dictate that program staff be responsible for patient treatment and care. Although there is nothing improper about utilizing such security personnel to handle episodic incidents of violence by residents, it is not appropriate to rely on security staff -- who lack mental health training -- to share material responsibility for patient treatment and care.
It appears that treatment staff frequently rely on officers because staff cannot effectively address patients’ behavioral needs. This practice highlights weaknesses in Metropolitan’s therapeutic interventions and presents substantial risk of harm to patients. First, given that the officers are armed with pepper spray and batons, their presence on the units presents a safety risk if a patient were to gain control of these weapons. Second, the officers are not trained properly to address the

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programmatic needs of patients and, as a result, are more likely to resort to force, placing patients at increased risk of restraint or physical injury.

VIII.

FIRST AMENDMENT AND DUE PROCESS

As set forth in our letter of May 13, 2003, the State indicated prior to our tours of Metropolitan that it would refuse to allow patients to speak with the Department of Justice or its expert consultants unless persons acting at the direction of the State were present, and State representatives did, in fact, attend all of our discussions with patients. The abridgements of patients’ First Amendment and due process rights identified in our earlier letter apply with equal force to Metropolitan’s adult patients.

IX.

MINIMUM REMEDIAL MEASURES

To remedy the deficiencies discussed above and to protect the constitutional and federal statutory rights of the patients at Metropolitan, California promptly should implement the minimum remedial measures set forth below.

A. Integrated Treatment Planning

Metropolitan should provide its patients with integrated treatment planning consistent with generally accepted professional standards of care. More particularly, Metropolitan should:

1. Develop and implement policies and procedures regarding the development of treatment plans consistent with generally accepted professional standards of care, as set forth in Section I, above.

2. Use these policies and procedures to review and revise, as appropriate, each patient’s treatment plan to ensure that it is current, individualized, strengths-based, outcome-driven, and emanates from an integration of the individual disciplines’ assessments of patients.

3. Revise treatment plans as appropriate, based on significant developments in patients’ conditions, including patients’ progress, or lack thereof, as determined by the scheduled monitoring of identified criteria or target variables.

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4. Ensure that treating psychiatrists verify, in a documented manner, that psychiatric and behavioral treatments are properly integrated.
5. Require all clinical staff to complete successfully competency-based training on the development and implementation of interdisciplinary treatment plans.
6. Ensure that each treatment team has a stable core of members, includes other members as needed, and maintains case loads that are not excessive.
B. Assessments
Metropolitan should ensure that its patients receive accurate, complete, and timely assessments, consistent with generally accepted professional standards of care, and that these assessments drive treatment interventions. More particularly, as to the following areas, Metropolitan should:
1. Psychiatric Assessments and Diagnoses
a. Develop diagnostic practices, guided by current, generally accepted professional criteria, for reliably reaching the most accurate psychiatric diagnoses. Develop a clinical formulation of each patient that:
(1) integrates relevant elements of the patient’s history, mental status examination, and response to current and past medications and other interventions; and
(2) is used to prepare the patient’s treatment plan.
b. Review and revise, as appropriate, psychiatric assessments of all patients, providing clinically justifiable current diagnoses for each patient, and removing all diagnoses that cannot be clinically justified. Modify treatment and medication regimens, as appropriate, considering factors such as the patient’s response to treatment, significant developments in the patient’s condition, and changing patient

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needs. Ensure that each patient’s psychiatric assessments, diagnoses, and medications are collectively justified in a generally accepted professional manner.
c. Ensure that treating psychiatrists utilize behavioral data in refining their diagnosis and enhancing their understanding of the targeted behavior, especially when previously provided treatments have failed to achieve desired outcomes.
2. Psychological Assessments and Evaluations
Ensure that:
a. psychologists provide appropriate psychological assessments, as clinically indicated.
b. before the treatment plan is developed, psychologists provide a psychological assessment of the patient that will:
(1) address the nature of patient impairments to assist the psychiatrist in reaching a clear diagnosis; and
(2) provide an accurate evaluation of the patient’s psychological functioning to inform the treatment planning process.
c. additional psychological assessments are performed to assist with any psychiatric disorders that may need further work up.
d. the purpose of the assessment is clearly identified.
e. psychological assessments are performed by professionals having a demonstrated competency in the methodology required to address the purpose of the assessment.
f. psychological assessments include an accurate, complete, and up-to-date summary of the patient’s clinical history and response to previous treatment.

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g. where applicable, psychological assessments adhere to generally accepted professional standards for behavioral assessments. If behavioral intervention is indicated, further assessment must be conducted by a professional having demonstrated competency in applied behavior analysis and must be consistent with generally accepted professional standards of applied behavioral analysis.
h. psychological assessments contain conclusions which specifically address the purpose of the assessment, and a summary of the empirical basis for all conclusions, and any remaining unanswered questions.
3. Rehabilitation Assessments
Ensure that each patient’s rehabilitation assessments:
a. are accurate, complete, and coherent as to the patient’s functional abilities;
b. identify the patient’s life skills prior to, and over the course of, the mental illness or disorder;
c. identify the patient’s observed and, separately, expressed interests, activities, and functional strengths and weaknesses; and
d. provide specific strategies to engage the patient in appropriate activities that the patient views as personally meaningful and productive.
4. Social History Evaluations
Ensure that each patient’s social history evaluation:
a. is, to the extent reasonably possible, accurate, current, complete, and coherent;
b. expressly identifies factual inconsistencies among sources, resolves or attempts to resolve inconsistencies, and explains the rationale for the resolution offered; and

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c. reliably informs the patient’s treatment team about the patient’s relevant social factors.
5. Court Assessments
a. Develop and implement policies and procedures to ensure an interdisciplinary approach to the development of court submissions for patients adjudicated NGRI based on accurate information, individualized risk assessments, and evaluations of readiness for community outpatient treatment.
b. As appropriate, review and revise all court assessments and reports for NGRI patients so that they are individualized, accurate, and consistent with generally accepted professional standards of care.
C. Discharge Planning and Placement in the Most Integrated Setting
Within the limitations of court-imposed confinement, the State should pursue actively the appropriate discharge of patients and ensure that they are provided services in the most integrated, appropriate setting that is consistent with patients’ needs. More particularly, Metropolitan should:
1. Identify at admission and address in treatment planning the criteria that likely will foster viable discharge for a particular patient, including but not limited to:
a. the individual patient’s symptoms of mental illness or psychiatric distress;
b. any other barriers preventing that specific patient in transitioning to a more integrated environment, especially difficulties raised in previously unsuccessful placements; and
c. the patient’s strengths, preferences, and personal goals.

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2. Include in treatment interventions the development of skills necessary to live in the setting in which the patient will be placed, and otherwise prepare the patient for her new living environment.
3. Ensure that the patient is an active participant in the placement process.
4. Provide the patient adequate assistance in transitioning to the new setting.
5. Develop and implement a quality assurance/improvement system to oversee the discharge process and aftercare services. This system should ensure that professional judgments about the most integrated setting appropriate to meet each patient’s needs are implemented and that appropriate aftercare services are provided that meet the needs of the patient in the community.
D. Specific Treatment Services
1. Psychiatry Services
Metropolitan should provide adequate psychiatric supports and services for the treatment of the severely and persistently mentally ill population of adults that it serves in accordance with generally accepted professional standards of care. More particularly, Metropolitan should:
a. Develop and implement policies and procedures requiring physicians to document their analyses of the benefits and risks of chosen treatment interventions.
b. Ensure that all physicians and clinicians can demonstrate competence, consistent with generally accepted professional standards, in appropriate psychiatric evaluation and diagnosis, medication management, treatment team functioning, and the integration of behavioral and pharmacological treatments.
c. Ensure that all psychotropic medications are:

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(1) specifically matched to current, clinically justified diagnoses;
(2) prescribed in therapeutic amounts;
(3) tailored to each patient’s individual symptoms;
(4) monitored for efficacy against clearlyidentified target variables and time frames;
(5) modified based on clinical rationales; and
(6) properly documented.
d. Review the medication treatment for all patients prescribed continuous anticholinergic treatment for more than two months. Review the medication treatment for all elderly patients and patients with cognitive impairments who are prescribed continuous anticholinergic treatment regardless of duration of treatment.
e. Review the medication treatment for all patients prescribed benzodiazepines as a scheduled modality for more than two months. Review the medication treatment for all patients prescribed benzodiazepines with diagnoses of substance abuse and cognitive impairments regardless of duration of treatment.
f. Develop and implement policies and procedures to monitor, document, report, and properly address potential side effects of prescribed medications to reflect generally accepted professional standards of care. Review treatment of all patients with a diagnosis of tardive dyskinesia in accordance with this updated policy.
g. Make appropriate attempts to use those newer psychotropic medications having fewer, less serious side effects, rather than those

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older psychotropic medications having more serious side effects.
h. Develop and implement a comprehensive system to report all actual and potential variances in medication use to ensure that all potential and actual errors are captured.
i. Develop and implement written guidelines and procedures consistent with generally accepted professional standards of care regarding medication practices, including the use and monitoring of PRN medications.
j. Develop and implement a system for the timely identification, reporting, and monitoring of adverse drug reactions.
2. Psychology Services
Metropolitan should provide psychological supports and services adequate to treat the functional and behavioral needs of its adult patients according to generally accepted professional standards of care. More particularly, Metropolitan should:
a. Ensure that psychologists provide evidencebased psychological interventions across a range of modalities, as the assessed needs of the patient dictate.
b. Provide active psychosocial rehabilitation, consistent with generally accepted professional standards of care, that:
(1) is derived from the assessed, individualized needs of the patient to engage in more independent life functions;
(2) addresses those needs in a manner building on the patient’s strengths, preferences, and interests;
(3) includes a focus on the patient’s vulnerabilities to mental illness, substance abuse and readmission due to relapse;

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(4) takes place regularly and as scheduled; and
(5) is documented in the patient’s treatment plan.
c. Develop and implement policies to ensure that patients who require treatment for substance abuse are appropriately identified, assessed, treated, and monitored in accordance with generally accepted professional standards.
d. Ensure that behavioral interventions are based on appropriate, positive behavioral supports, not the use of aversive contingencies.
e. Ensure that psychologists treating Metropolitan’s adult patients have a demonstrated competence, consistent with generally accepted professional standards, in the use of functional assessments and positive behavioral supports.
f. Ensure that psychologists integrate their therapies with other treatment modalities, including drug therapy.
g. Ensure that psychosocial, rehabilitative, and behavioral interventions are monitored appropriately against rational, operationally defined, target variables and revised as appropriate in light of significant developments and the patient’s progress, or the lack thereof.
3. Nursing and Unit-Based Services
Metropolitan should provide nursing and unit-based services to its patients consistent with generally accepted professional standards of care. Such services should result in Metropolitan’s patients receiving individualized services, supports, and therapeutic interventions, consistent with their treatment plans. At a minimum, Metropolitan should:
a. Ensure that, before they work directly with patients, all nursing and unit-based staff

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have successfully completed competency-based training regarding mental health diagnoses, related symptoms, psychotropic medications, identification of side effects of psychotropic medications, monitoring of symptoms and target variables, and documenting and reporting of the patient’s status.
b. Ensure that, prior to assuming their duties and on a regular basis thereafter, all staff responsible for the administration of medication have successfully completed competency-based training on the completion of the Medication Administration Records and the controlled medication log.
c. Ensure that all failures to properly sign the Medication Administration Record or the controlled medication log are treated as medication errors, and that appropriate follow-up occurs to prevent recurrence of such errors.
d. Ensure that staff responsible for medication administration regularly ask patients about side effects they may be experiencing.
e. Ensure that each patient’s treatment plan identifies:
(1) the diagnoses, treatments, and interventions that nursing and other staff are to implement;
(2) the related symptoms and target variables to be monitored by nursing and other unit staff; and
(3) the frequency by which staff need to monitor such symptoms.
f. Ensure that staff monitor, document, and report the status of symptoms and target variables in a manner enabling treatment teams to assess the patient’s status and to modify, as appropriate, the treatment plan.

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g. Ensure that only patients with clinically justified reasons remain in a “bed-bound” status. For patients who have been unjustifiably maintained in this status, develop and implement methodical plans to reduce their time spent in bed, paying particular care to plan for and monitor these patients due to the risks associated with their long-term, bed-bound status.
h. Ensure that nursing and other staff providing direct support to patients are knowledgeable about their patients and participate meaningfully in the treatment team process.
4. Pharmacy
Metropolitan’s patients should receive pharmacy services consistent with generally accepted professional standards of care. More particularly, Metropolitan should:
a. Develop and implement policies and procedures that:
(1) require pharmacists to complete regular, appropriate reviews of patients’ entire medication regimens, track the use of psychotropic PRN medications, and, as warranted, make recommendations to the treatment team about possible drug-to-drug interactions, side effects, medication changes, and needs for testing; and
(2) require that physicians consider pharmacists’ recommendations, clearly document their responses and actions taken, and for any recommendations not followed, provide an adequate clinical justification.
5. General Medical Care
Metropolitan should provide adequate preventative, routine, specialized, and emergency medical services on a timely basis, in accordance with generally accepted professional standards of care. More particularly, Metropolitan should:

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a. Develop and implement policies and procedures that clearly define Metropolitan’s primary care physicians’ scope of service and ensure the timely provision of initial assessments, ongoing care and re-assessments, physician-nurse communication, and the integration of patients’ mental health and medical care.
b. Ensure that each patient’s treatment plan identifies general medical diagnoses, the treatments to be employed, the related symptoms to be monitored by nursing and other unit staff, and the frequency by which staff need to monitor such symptoms.
c. Revise the system of after-hours coverage by primary care physicians to institute formal psychiatric training and provide psychiatric backup support after hours.
6. Infection Control
Metropolitan should implement adequate infection control procedures to prevent the spread of infections or communicable diseases. More specifically, Metropolitan should:
a. Revise infection control policies and procedures to include analysis of aggregated data and development and implementation of corrective action plans.
b. Establish an effective infection control program that:
(1) actively collects data with regard to infections and communicable diseases;
(2) assesses these data for trends;
(3) initiates inquiries regarding problematic trends;
(4) identifies necessary corrective action;
(5) monitors to ensure that appropriate remedies are achieved; and

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(6) integrates this information into Metropolitan’s quality assurance review.
c. Develop proper procedures to remove dirty linens and clothing from the living units in a timely and safe manner.
7. Dental Services
Metropolitan should provide its patients with routine and emergency dental care and treatment on a timely basis, consistent with generally accepted professional standards of care. More particularly, Metropolitan should:
a. Retain an adequate number of qualified dentists to provide timely and appropriate dental care and treatment to Metropolitan patients.
b. Develop protocols and procedures that require:
(1) the timely provision of documented dental services; and
(2) preventative and restorative care be used whenever possible and tooth extractions be used as a treatment of last resort, which, when used, will be justified in a manner subject to clinical review.
c. Ensure that dentists demonstrate, in a documented fashion, an accurate understanding of their patients’ health conditions and medications that bear on dental care, as well as an accurate understanding of their current dental status and complaints.
d. Ensure that transportation and staffing issues do not preclude residents from attending dental appointments.
e. Ensure that treatment teams review, assess, and develop strategies to overcome patient

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refusals to participate in dental appointments.
f. Ensure that dentists consistently document their findings, a description of the treatment they have provided, and their plan of care.
8. Physical and Occupational Therapy Services
Metropolitan should provide its patients with physical and occupational therapy consistent with generally accepted professional standards of care. More particularly, Metropolitan should:
a. Develop and implement policies related to the provision of physical and occupational therapy that address, at a minimum:
(1) the assessment process;
(2) the development of plans of care;
(3) the provision of direct services by therapists;
(4) the oversight by therapists of individualized programs;
(5) program implementation by nursing and unit staff; and
(6) training for staff with related responsibilities.
b. Ensure that patients are provided with timely and adequate PT and OT services and that transportation and staffing issues do not preclude residents from attending PT and OT appointments.
c. Ensure that treatment teams review, assess, and develop strategies to overcome patient refusals to participate in PT and OT sessions.
d. Ensure that each person who requires adaptive equipment is provided with

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equipment that meets their individualized needs and promotes their independence. Provide patients with training and support to use such equipment.
e. Provide competency-based training to nursing and other unit staff on the use and care of adaptive equipment, transferring, and positioning, as well as the need to promote patients’ independence.
9. Dietary Services
Metropolitan should ensure that its patients, particularly those experiencing weight-related problems, receive adequate dietary services, consistent with generally accepted professional standards of care. More particularly, Metropolitan should:
a. Modify treatment planning policies and procedures to require that the treatment plans of patients who experience weight problems or related health concerns include adequate strategies and methodologies to address the identified problems and that such strategies and methodologies are implemented in a timely manner, monitored appropriately, and revised, as warranted.
b. Increase the availability of individualized and group exercise and recreational options for its adult patients.
c. Develop and implement policies and procedures to address the needs of patients who are at risk for aspiration, including but not limited to, patient assessments, and the development and implementation of protocols for mealtimes and other activities involving swallowing. Ensure that staff with responsibilities for these processes have successfully completed commensurate competency-based training.
d. Develop and implement policies requiring the treatment of the underlying causes for tube feeding placement, and ongoing assessment of the individuals for whom these treatment

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options are utilized to determine the feasibility of returning them to oral intake status.
E. Documentation of Patient Progress
Metropolitan should ensure that patient records accurately reflect patient progress, consistent with generally accepted professional standards of care. More particularly, Metropolitan should:
1. Develop and implement policies and procedures setting forth clear expectations regarding the content and timeliness of progress notes, transfer notes, and discharge notes.
2. Ensure that such records include meaningful, accurate assessments of a patient’s progress relating to the treatment plan and treatment goals.
F. Restraint, Seclusion, and “As-Needed” Medications
Metropolitan should ensure that seclusion, restraints and PRN psychotropic medications are used in accordance with generally accepted professional standards of care. More particularly, Metropolitan should:
1. Ensure that restraints and seclusion:
a. are used in a reliably documented manner and only when persons pose an immediate safety threat to themselves or others and after a hierarchy of less restrictive measures has been considered and/or exhausted;
b. will not be used in the absence of, or as an alternative to, active treatment, as punishment, or for the convenience of staff;
c. will not be used as part of a behavioral intervention. as indicated in (a), above; and
d. will be terminated as soon as the person is no longer an imminent danger to himself or others.

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2. Ensure that PRN psychotropic medications are used only as a short-term measure to relieve a patient in acute distress, not as means to escape mild, possibly healthy, discomfort or as a repeatedly deployed substitute for treatment.
3. Reduce its use of seclusion, restraints, and psychotropic PRN medications.
4. Revise, as appropriate, and implement policies and procedures consistent with these generally accepted professional standards of care.
5. Ensure that staff successfully complete competency-based training regarding implementation of such policies and the use of less restrictive interventions.
6. Revise, as appropriate, and implement policies and procedures to require the review and modification, if appropriate, of patients’ treatment plans after use of seclusion or restraints.
7. Comply with 42 C.F.R. § 483.360(f) as to assessments by a physician or licensed medical professional of any resident placed in seclusion or restraints.
8. Develop and implement a systemic plan to reduce the use of side rails as restraints in a systematic and gradual way to ensure the residents’ safety. Ensure that residents’ individualized treatment plans address the use of side rails for those who need them, including identification of the medical symptoms that warrant the use of side rails, plans to address the underlying causes of the medical symptoms, and strategies to reduce the use of side rails.
9. Develop and implement a policy consistent with generally accepted professional standards of care governing the use of psychotropic PRN medication for psychiatric purposes and requiring that:
a. such medications are used on a limited basis and not as a substitute for adequate

- 61 -
treatment of the underlying cause of the patient’s distress;
b. the patient’s physician assess the patient within 24 hours of the administration of PRN medication; and
c. in a clinically justifiable manner, the patient’s treatment team, including the psychiatrist, timely review the use of such medications, determine whether to modify the patient’s treatment plan, and implement the revised plan, as appropriate.
G. Protection from Harm
Metropolitan should provide its patients with a safe and humane environment and protect them from harm. At a minimum, Metropolitan should:
1. Review, revise, as appropriate, and implement an incident management system that comports with generally accepted professional standards of care. At a minimum, Metropolitan should:
a. review, revise, as appropriate, and implement comprehensive, consistent incident management policies and procedures that provide clear guidance regarding reporting requirements and the categorization of incidents;
b. require all staff to complete successfully competency-based training in the revised reporting requirements;
c. review, revise, as appropriate, and implement unified policies and procedures addressing the investigation of serious incidents, including requirements that such investigations be comprehensive, include consideration of staff’s adherence to programmatic requirements, and be performed by independent investigators;
d. require all staff involved in conducting investigations to complete successfully competency-based training on technical and

- 62 -
programmatic investigation methodologies and documentation requirements necessary in mental health service settings;
e. monitor the performance of staff charged with investigative responsibilities and provide technical assistance and training whenever necessary to ensure the thorough, competent, and timely completion of investigations of serious incidents;
f. develop and implement a reliable system to identify the need for, and monitor the implementation of, appropriate corrective and preventative actions addressing problems identified as a result of investigations; and
g. review, revise, as appropriate, and implement policies and procedures related to the tracking and trending of incident data, to ensure that appropriate corrective actions are identified and implemented in response to problematic trends.
2. Develop and implement a comprehensive quality improvement system consistent with generally accepted professional standards of care. At a minimum, such a system should:
a. collect information related to the adequacy of the provision of the protections, treatments, services, and supports provided by Metropolitan, as well as the outcomes being achieved by patients;
b. analyze the information collected in order to identify strengths and weaknesses within the current system; and
c. identify and monitor implementation of corrective and preventative actions to address identified issues and ensure resolution of underlying problems.
3. Conduct a thorough review of all units to identify any potential environmental safety

- 63 -
hazards, and develop and implement a plan to remedy any identified issues.
a. Ensure that all areas of the hospital that are occupied or utilized by patients have adequate temperature control at all times.
b. Review, revise as appropriate, and implement procedures and practices so that incontinent patients are assisted to change in a timely manner.
c. Develop clear guidelines stating the circumstances under which it is appropriate to utilize staff who are not trained to provide mental health services in addressing incidents involving patients. Ensure that persons who are likely to intervene in patient incidents are properly trained to work with patients with mental health concerns.
H. First Amendment and Due Process
The State should permit Metropolitan patients to exercise their constitutional rights of: (a) free speech, and, in particular, the right to petition the government for redress of grievances without State monitoring; and (b) due process. More particularly, the State should:
1. Permit patients to speak with representatives of the federal government outside the presence of persons acting for the State.
2. Permit patients to engage in confidential communications.
*****

- 64 
-
The collaborative approach that the parties have taken thus far has been productive. We hope to continue working with the State in this fashion to resolve our significant concerns regarding the care and services provided at this facility.
We will forward our expert consultants’ reports under separate cover. Although their reports are their work – and do not necessarily represent the official conclusions of the Department of Justice - their observations, analyses, and recommendations provide further elaboration of the relevant concerns, and offer practical technical assistance in addressing them. We hope that you will give this information careful consideration and that it will assist in facilitating a dialogue swiftly addressing areas requiring attention.
In the unexpected event that the parties are unable to reach a resolution regarding our concerns, we are obligated to advise you that the Attorney General may initiate a lawsuit pursuant to CRIPA, to correct deficiencies or to otherwise protect the rights of Metropolitan’s patients, 49 days after the receipt of this letter. 42 U.S.C. § 1997b(a)(1). Accordingly, we will soon contact State officials to discuss in more detail the measures that the State must take to address the deficiencies identified herein.
Sincerely,
/s/ R. Alexander Acosta
R. Alexander Acosta Assistant Attorney General
cc: The Honorable Bill Lockyer Attorney General State of California
Stephen W. Mayberg, Ph.D.
 Director
 California Department of Mental Health

Mr. William G. Silva
 Executive Director
 Metropolitan State Hospital

Debra W. Yang, Esq. 
 United States Attorney
 Central District of California


 
 Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 1 of 26
(Ex),CLOSED,DISCOVERY
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:06−cv−02667−GPS−E

United States of America v. State of California et al Assigned to: Judge George P. Schiavelli Referred to: Magistrate Judge Charles F. Eick Case in other court: 9th CCA, 11−57098 Cause: 42:12101 Americans With Disabilities Act
Plaintiff

Date Filed: 05/02/2006 Date Terminated: 01/17/2008 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Benjamin O Tayloe United States Department of Justice Civil Rights Divison 950 Pennsylvania Avenue, Northwest Washington, DC 20035 202−514−6255 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra Wong Yang AUSA − Office of US Attorney Tax Division 300 N Los Angeles St, Rm 7211 Los Angeles, CA 90012−3308 213−894−2434 Email: USACAC.Civil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard F Daniels AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213−894−4024 Fax: 213−894−5139 Email: howard.daniels@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline J Cuncannan United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, Northwest Washington, DC 20035 202−514−6255 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anita C Snyder United States Department of Justice Special Litigation Section 950 Pennsylvania Avenue NorthWest Washington, DC 20035 202−514−6255 TERMINATED: 05/15/2006

Matthew Donnelly US Department of Justice Washington, DC 20530

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 2 of 26
202−514−6225 Email: matthew.donnelly@usdoj.gov ATTORNEY TO BE NOTICED
Terrence Matthew Jones The Law Office of Terrence Jones 6737 Bright Avenue Suite B6 Whittier, CA 90601 213−863−4490 Email: terrence@jonesonlaw.com ATTORNEY TO BE NOTICED

V. Movant Vadim Stanley Miesegaes TERMINATED: 10/31/2011
Movant Juan Daniel Chavez TERMINATED: 10/31/2011
Movant George Bell TERMINATED: 10/31/2011
Movant George Eden TERMINATED: 10/31/2011
Movant Damon Matheny TERMINATED: 10/31/2011
Movant Eddie Cassidy TERMINATED: 10/31/2011

represented by Vadim Stanley Miesegaes AT 010−0527333 U−29 Atascadero State Hospital P O Box 7001 Atascadero, CA 93423−7001 PRO SE
represented by Juan Daniel Chavez 059308−7 c/o Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE
represented by George Bell 061467−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE
represented by George Eden 4668848 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE
represented by Damon Matheny 060693−4 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE
represented by Eddie Cassidy 060485−0 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 3 of 26

PRO SE

Movant
Orrin A Patrick TERMINATED: 10/31/2011

represented by Orrin A Patrick 056233−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Harold Hines TERMINATED: 10/31/2011

represented by Harold Hines 060726−7 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Juan Gutierrez TERMINATED: 10/31/2011

represented by Juan Gutierrez 061263−0 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Paul Thurman TERMINATED: 10/31/2011

represented by Paul Thurman 061447−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
David Guzman TERMINATED: 10/31/2011

represented by David Guzman 059335−0 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Victor Alvarez TERMINATED: 10/31/2013

represented by Victor Alvarez 060349−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Arthur Arrellanes TERMINATED: 10/31/2011

represented by Arthur Arrellanes 061267−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant

represented by

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 4 of 26

S Henderson TERMINATED: 10/31/2011

S Henderson 059718−7 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Ray Delong TERMINATED: 10/31/2011

represented by Ray Delong 055492−3 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Brian Colombein TERMINATED: 10/31/2011

represented by Brian Colombein 060015−5 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Keith Law TERMINATED: 10/31/2011

represented by Keith Law 059893−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Luis Garcia TERMINATED: 10/31/2011

represented by Luis Garcia 060071−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Gary Ramirez TERMINATED: 10/31/2013

represented by Gary Ramirez 059858−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
R Phillips TERMINATED: 10/31/2011

represented by R Phillips 057422−3 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Jerry Eates TERMINATED: 10/31/2011

represented by Jerry Eates 0591127−5 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 5 of 26

PRO SE

Movant
John Lowe TERMINATED: 10/31/2011

represented by John Lowe 059571−4 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Richard Cortez TERMINATED: 10/31/2011

represented by Richard Cortez 060817 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Daniel Tigner TERMINATED: 10/31/2011

represented by Daniel Tigner 060701−0 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Michael Hamilton TERMINATED: 10/31/2011

represented by Michael Hamilton 060829−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Larry Struchen 061034−5 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 TERMINATED: 10/31/2011

Movant
Donald Casnell TERMINATED: 10/31/2011

represented by Donald Casnell 060924−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Julio Flores TERMINATED: 10/31/2011

represented by Julio Flores 057736−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant

represented by

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 6 of 26

Ernest Aguire TERMINATED: 10/31/2011

Ernest Aguire 058612−3 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Jose Avalos TERMINATED: 10/31/2011

represented by Jose Avalos 059926−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Eduardo Castanon TERMINATED: 10/31/2011

represented by Eduardo Castanon 058697−4 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Paul Gazaway TERMINATED: 10/31/2011

represented by Paul Gazaway 059995−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Michael McGee TERMINATED: 10/31/2011

represented by Michael McGee 060296−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Samuel Turner TERMINATED: 10/31/2011

represented by Samuel Turner 061270−5 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Sean Greenshields TERMINATED: 10/31/2011

represented by Sean Greenshields 061437−0 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Warren Lanker TERMINATED: 10/31/2011

represented by Warren Lanker 060281−3 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 7 of 26

PRO SE

Movant
Tod Koep TERMINATED: 10/31/2011

represented by Tod Koep 061126−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Michael Lanning TERMINATED: 10/31/2011

represented by Michael Lanning 061403−2 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Neil Core TERMINATED: 10/31/2011

represented by Neil Core 061401−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Jose Ampriz TERMINATED: 10/31/2011

represented by Jose Ampriz 061334−7 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Wayne Bishop TERMINATED: 10/31/2011

represented by Wayne Bishop 061547−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Dan Sloria TERMINATED: 10/31/2011

represented by Dan Sloria 058857−4 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
C Edwards TERMINATED: 10/31/2013

represented by C Edwards 060986−7 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant

represented by

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 8 of 26

William Curtis TERMINATED: 10/31/2011

William Curtis 061555−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Ron Cynman TERMINATED: 10/31/2011

represented by Ron Cynman 061193−9 Atascadero State Hospita PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Andy Sessions TERMINATED: 10/31/2011

represented by Andy Sessions 060527−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Ali Jones TERMINATED: 10/31/2011

represented by Ali Jones 059439−0 Atascadero State Hospita PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Brooks Robert TERMINATED: 10/31/2011

represented by Brooks Robert 059700−5 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Gary Dingest TERMINATED: 10/31/2011

represented by Gary Dingest 061389−3 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Michael Garcia TERMINATED: 10/31/2011

represented by Michael Garcia 061100−4 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Kennet H TERMINATED: 10/31/2011

represented by Kennet H 059899−5 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 9 of 26

PRO SE

Movant
Lon Don Ferguson TERMINATED: 10/31/2011

represented by Lon Don Ferguson 061506−2 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Ron McLean TERMINATED: 10/31/2011

represented by Ron McLean 061514−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Paul Thompson TERMINATED: 10/31/2011

represented by Paul Thompson 059332−7 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
James McMann TERMINATED: 10/31/2011

represented by James McMann 059387−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Peter Cobb TERMINATED: 10/31/2011

represented by Peter Cobb 030127−5 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Tim Taylor TERMINATED: 10/31/2011

represented by Tim Taylor 059787−2 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Nicandro Galaviz TERMINATED: 10/31/2011

represented by Nicandro Galaviz AT 058280−9 Department of State Hospitals − Napa 2100 Napa Vallejo Highway Napa, CA 94558−6293 PRO SE

Movant

represented by

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 10 of 26

John Carver TERMINATED: 10/31/2011

John Carver 033750 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Johnny Walker TERMINATED: 10/31/2011

represented by Johnny Walker 061291−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Reginald Blaunt TERMINATED: 10/31/2011

represented by Reginald Blaunt 061471 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Kenfort Williams TERMINATED: 10/31/2011

represented by Kenfort Williams 059173−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Terry Powell TERMINATED: 10/31/2011

represented by Terry Powell 058495−3 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Jason Athiede TERMINATED: 10/31/2011

represented by Jason Athiede 061143−4 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Billy W Soto TERMINATED: 10/31/2011

represented by Billy W Soto 060950−3 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Brandon Howard TERMINATED: 10/31/2011

represented by Brandon Howard 060169−0 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 11 of 26

PRO SE

Movant
Daniel Trebas TERMINATED: 10/31/2011

represented by Daniel Trebas CSH ID 2168−3 Coalinga State Hospital PO Box 5003 Coalinga, CA 93210 PRO SE

Movant
Tom L Ward TERMINATED: 10/31/2011

represented by Tom L Ward 050679−0 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Jimmy Martinez TERMINATED: 10/31/2011

represented by Jimmy Martinez 060408−2 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Robert Castorena TERMINATED: 10/31/2011

represented by Robert Castorena 049077−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Joseph M Cortes TERMINATED: 10/31/2011

represented by Joseph M Cortes 057530−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Marc Anthony Endsley TERMINATED: 10/31/2011

represented by Marc Anthony Endsley AT# 063194−5 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Scott Zimmerman TERMINATED: 10/31/2011

represented by Scott Zimmerman 051331−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant

represented by

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 12 of 26

Hugo Edilberto TERMINATED: 10/31/2011

Hugo Edilberto 058845−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Lloyd Clark TERMINATED: 10/31/2011

represented by Lloyd Clark 058946−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Chris L TERMINATED: 10/31/2011

represented by Chris L 05992−9 Atascadero State Hospital PO Box 7001− Atascadero, CA 93423−7001 PRO SE

Movant
Andrew Kyle TERMINATED: 10/31/2011

represented by Andrew Kyle 060453−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
James Deby TERMINATED: 10/31/2011

represented by James Deby 061169−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Banner Walter TERMINATED: 10/31/2011

represented by Banner Walter 059252−7 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Ernesto Fuentes TERMINATED: 10/31/2011

represented by Ernesto Fuentes 054792−7 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Michael Beaver TERMINATED: 10/31/2011

represented by Michael Beaver 061536−9 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 13 of 26

PRO SE

Movant
David Smith TERMINATED: 10/31/2011

represented by David Smith 05986−3−1 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Ramon Holguin TERMINATED: 10/31/2011

represented by Ramon Holguin 58997−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Richard Soto TERMINATED: 10/31/2011

represented by Richard Soto 056989−7 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Curtis M 061359−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 TERMINATED: 10/31/2011

Movant
Billy Thomas TERMINATED: 10/31/2011

represented by Billy Thomas 060764−4 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Ronnie Lucero TERMINATED: 10/31/2011

represented by Ronnie Lucero 052130−2 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Artay Scruggs TERMINATED: 10/31/2011

represented by Artay Scruggs 057316−2 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant

represented by

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 14 of 26

Angel G TERMINATED: 10/31/2011

Angel G 057228−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Ricky Benson TERMINATED: 10/31/2011

represented by Ricky Benson 057263−6 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

Movant
Frank Travalini TERMINATED: 10/31/2011

represented by Frank Travalini 051566−8 Atascadero State Hospital PO Box 7001 Atascadero, CA 93423−7001 PRO SE

V. Petitioner Mark S Sokolsky

represented by Mark S Sokolsky CO−000459−8 Coalinga State Hospital 24511 West Jayne Avenue P O Box 5003 Coalinga, CA 93210−5003 559−934−0890 PRO SE

V. Defendant State of California

represented by George Dey Prince CAAG − Office of Attorney General of California 455 Golden Gate Ave Suite 11000 San Francisco, CA 94102−7004 415−703−5500 Fax: 415−703−5480 Email: george.prince@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janet E Burns CAAG − Office of Attorney General of California Department of Justice 300 South Spring Street Suite 1702 Los Angeles, CA 90013−1230 213−897−2452 Fax: 213−897−2805 Email: janet.burns@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 15 of 26

Tracey L Angelopoulos CAAG − Office of the Attorney General California Department of Justice 110 West A Street, Suite 1100 San Diego, CA 92101 619−645−2067 Fax: 619−645−2067 ATTORNEY TO BE NOTICED

Defendant
Arnold Schwarzeneggar Governor of the State of Californai of the State of California in his official capaicty only

represented by George Dey Prince (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey L Angelopoulos (See above for address) ATTORNEY TO BE NOTICED

Defendant
Stephen W Mayberg Director of the California Department of Mental Health in his official capacity

represented by George Dey Prince (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janet E Burns (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer M Kim CAAG − Office of CA Attorney General California Department of Justice 300 South Spring Street Suite 1702 Los Angeles, CA 90012 213−897−2443 Fax: 213−897−2805 Email: jennifer.kim@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey L Angelopoulos (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sharon Smith Nevins Executive Dirctor of Metropolitan State Hospital in her official capacity only

represented by George Dey Prince (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey L Angelopoulos (See above for address) ATTORNEY TO BE NOTICED

Defendant
Dave Graziani Executive Director of Napa State Hospital in his official capacity only

represented by George Dey Prince (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 16 of 26

Melvin E Hunter Executive Director of Atascadero State Hospital, in his official capacity only

represented by George Dey Prince (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey L Angelopoulos (See above for address) ATTORNEY TO BE NOTICED

Defendant
Octavio Carlos Luna Executive Director of Patton State Hospital, in his official capacity only

represented by George Dey Prince (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey L Angelopoulos (See above for address) ATTORNEY TO BE NOTICED

Movant
C.L. TERMINATED: 10/31/2011

represented by C.L. 058992−9 P.O. Box 7001 Atascadero, CA 93423−7001 PRO SE

Date Filed 05/02/2006 05/02/2006 05/02/2006 05/05/2006 05/15/2006 05/15/2006
07/21/2006 07/25/2006

# Docket Text
1 COMPLAINT against defendants Stephen W Mayberg, Sharon Smith Nevins, Dave Graziani, State of California, Arnold Schwarzeneggar.(No Filing fee Required), filed by plaintiff United States of America.(pj, ) (Entered: 05/08/2006)
20 DAY Summons Issued re Complaint − (Discovery) 1 as to Stephen W Mayberg, Sharon Smith Nevins, Dave Graziani, State of California, Arnold Schwarzeneggar. (pj, ) (Entered: 05/08/2006)
2 STIPULATION for Consent Judgment And Agreeement filed by plaintiff United States of America. Lodged Consent Judgment. (bg, ) (Entered: 05/09/2006)
4 NOTICE OF ERRATA regarding Consent Judgment 3 and Stipulation for Judgment 2 filed by Plaintiff United States of America. (ir, ) (Entered: 05/17/2006)
PLACED IN FILE − NOT USED re Consent Judgment submitted by plaintiff United States of America. (bg, ) (Entered: 05/16/2006)
3 CONSENT JUDGMENT by Judge George P. Schiavelli : The interdisciplinary teams membership shall be dictated by the particular needs and strengths of the individual in the teams care. All provisions of this Consent Judgment shall have ongoing effect until the final dismissal of this action. The Court shall retain jurisdicition for all purposes until such time as this action dismissed. Independent of the foregoing, if the United States and the Defendants agree that the State Hospitals have achieved substantial compliance with each section of this Consent Judgment, the Parties shall file a joint motion to dismiss this action. ( MD JS−6, Case Terminated )(bg, ) (Entered: 05/16/2006)
8 NOTICE OF DISCREPANCY AND ORDER: by Judge George P. Schiavelli, ORDERING Request to Submit Pertinent Urgent Information received on 7/28/2006 is not to be filed but instead rejected. Denial based on: case termed.(yl, ) (Entered: 08/11/2006)
5 NOTICE OF DISCREPANCY AND ORDER: by Judge George P. Schiavelli, ORDERING Request to submit pertinent and urgent information submitted by Danny Atterbury received on 7/20/06 is not to be filed but instead rejected. Denial based on: Local Rule 11−4.1 No copy provided for judge. Local Rule 56−1 Statement of uncontroverted facts and/or proposed judgment lacking. FRCP 5(d) No proof of

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 17 of 26

08/03/2006 08/03/2006 08/16/2006
11/21/2006
02/27/2007 04/18/2007 05/10/2007 12/12/2007 01/14/2008
01/16/2008 01/16/2008

service attached to document(s).(bg, ) (Entered: 07/27/2006)
6 AMENDED COMPLAINT against defendants Melvin E Hunter, Octavio Carlos Luna, Stephen W Mayberg, Sharon Smith Nevins, Dave Graziani, State of California, Arnold Schwarzeneggar amending Complaint − (Discovery) 1 (bg, ) (Entered: 08/07/2006)
7 STIPULATION TO AMEND CONSENT JUDGMENT and Agreement filed by Plaintiff United States of America. Lodged Proposed Order. (yl, ) (Entered: 08/11/2006)
11 ORDER AMENDING CONSENT JUDGMENT AND AGREEMENT by Judge George P. Schiavelli, re Consent Judgment, 3 ORDERED that the Consent Judgment and Agreement entered as an order of this Court on 5/15/06, is herewith amended such that the term State Hospital shall include Patton State Hospital and Atascadero State Hospital and any facility that supplements or replaces them, and that Defendants shall implement at Patton and Atascadero all provisions of the Consent Judgment and Agreement that apply to Metropolitan State Hospital and Napa State Hospital. (bg, ) (Entered: 02/28/2007)
10 AMNEDED STIPULATION TO AMEND CONSENT JUDGMENT AND AGREEMENT AND ORDER by Judge George P. Schiavelli : the parties request that this court enter the attached Amended Consent Judgment, so that the Defendants shall implement at Patton and Atascadero all provisions of the original Consent Judgment and Agreement that apply to Metropolitan State Hospital and Napa State Hospital, and that the Monitor, and persons or entitles hired or retained by the Monitor, shall not be liable for any claim arising out of the Monitoring of this Consent Judgment, except claims before this Court for enforcement or payment of contracts or subcontracts for monitoring the Consent Judgment re Stipulation to Amend/Correct 7 .(bg, ) (Entered: 02/28/2007)
9 AMENDED CONSENT JUDGMENT by Judge George P. Schiavelli that pursuant to the Stipulation, and good and reasonable cause appearing therefore, Judgment shall be entered in this matter pursuant to the following terms and conditions. Related to: Stipulation to Amend/Correct 7 , Consent Judgment,, 3 .(bg, ) (Entered: 02/28/2007)
13 MAIL RETURNED addressed to Anita C Snyder at United States Department of Justice regarding Order 11 (ir, ) (Entered: 05/11/2007)
12 MAIL RETURNED addressed to Anita C Snyder at United States Departmente of Justice regarding Stipulation and Order 10 (ir, ) (Entered: 05/11/2007)
15 Petition for Writ of writ of mandamus to compel consent judgmentfiled by petitioner Mark S Sokolsky.(lc) (Entered: 01/16/2008)
14 MINUTES OF IN CHAMBERS ORDER held before Judge George P. Schiavelli : In December 2007, Petitioner Mark S. Sokolsky (Petitioner orSokolsky) filed a Petition for Writ of Mandamus to compel Defendants to comply with the Amended Consent Judgment. Sokolsky is presently detained at the Coalinga State Hospital pursuant to an order by the Los Angeles County Superior Court. Petitioner alleges that the terms of the Amended Consent Judgment apply to the Coalinga State Hospital because it is a facility that supplements or replaces one of the four noted hospitals.To address the Petition, the Court orders the parties to brief: (1) whether the Amended Consent Judgment governs the Coalinga State Hospital; (2) whether Petitioner has standing to urge these claims and, if so, (3) whether he has done so through the proper vehicle. Respondents shall file their Opposition to the Petition by February 1, 2008. Petitioner shall reply onMarch 3, 2008. After receiving all pleadings, the Court will schedule ahearing if necessary. (lc) (Entered: 01/15/2008)
16 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Petition for Writ of writ of mandamus 15 with pro se address was not docketed after Minutes denying petition was docketed 14 ; copy of minutes attached to this notice. (Attachments: # 1 minutes) (lc) (Entered: 01/16/2008)
17 CORRECTED NOTICE OF CLERICAL ERROR: Due to clerical error Re: Notice of Clerical Error (G−11), incorrectly stated that Mark Soloksy petition was denied; Petition is still pending, see copy of minutes 16 (Attachments: # 1 minutes) (lc) (Entered: 01/16/2008)

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 18 of 26

01/16/2008 01/17/2008 01/28/2008
02/01/2008 02/01/2008 02/01/2008
03/14/2008 08/19/2008 03/22/2011
06/21/2011 06/23/2011
06/23/2011
07/08/2011 07/13/2011

NOTICE OF STATISTICAL ADJUSTMENT submitted MD JS−5 Case Reopened. (lc) (Entered: 01/16/2008)
NOTICE OF STATISTICAL ADJUSTMENT(closed case reopened in error) submitted MD JS−6. Case Terminated. (lc) (Entered: 01/17/2008)
18 REQUEST for Extension of Time to File State Respondent's to File Brief Responding to court's Inquiries filed by Respondent Department of Mental Health Stephen W Mayberg. (Attachments: # 1 Declaration of John Venegas in Support of State Respondent's to File Brief Responding to Court's Inquiries# 2 Proposed Order in support of State Respondent's to File Brief Responding to Court's Inquiries)(Kim, Jennifer) (Entered: 01/28/2008)
19 BRIEF filed by Respondents State of California. RESPONDENTS' BRIEF IN COMPLIANCE WITH THE COURT'S JANUARY 14, 2008 MINUTE ORDER (Kim, Jennifer) (Entered: 02/01/2008)
20 BRIEF filed by Petitioner United States of America. Plaintiff's Brief in Response to Court's January 14, 2008 Order regarding Minutes of In Chambers Order/Directive − no proceeding held,,,, 14 . (Daniels, Howard) (Entered: 02/01/2008)
21 MINUTES OF IN CHAMBERS ORDER held before Judge George P. Schiavelli : Order Granting Ex Parte Application. Respondents shall file their response by February 25, 2008, and Sokolsky shall reply by March 24, 2008. As noted in the previous Order, the Court will schedule a hearing if necessary after receiving all pleadings. (sce) (Entered: 02/04/2008)
25 REPLY to plaintiffs and respondents answer to courts orderof 1/14/08 20 filed by Petitioner Mark S Sokolsky (lc) (Entered: 03/18/2008)
26 MINUTES OF IN CHAMBERS ORDER held before Judge George P. Schiavelli: Court Denies Petition for Writ of mandamus 15 . (lc) (Entered: 08/20/2008)
28 NOTICE OF DISCREPANCY AND ORDER: by Judge Audrey B. Collins, ORDERING Plaintiffs' Request for intervention submitted by Movant Vadim Stanley Mieseges, received on 3/21/11, is not to be filed but instead rejected. Denial based on: Case closed. (lom) Modified on 3/31/2011 (lom). (mailed origninal 3/31/11) (Entered: 03/31/2011)
31 NOTICE OF MOTION AND MOTION for Exercise of Rights for Intervention filed by Movants Vadim Stanley Mieseges and other Residents at Atascadero State Hospital. (ir) (Entered: 06/23/2011)
30 NOTICE OF DOCUMENT DISCREPANCIES AND ORDER by Judge Audrey B. Collins ORDERING Motino for Exercise of Rights for Intervention submitted by Movant Vadim Stanley Mieseges received on 6/21/11 to be filed and processed; filed date to be the date the document was stamped Received but not Filed with the Clerk. (ir) (Entered: 06/23/2011)
32 MINUTE: ORDER RE: Motion for Exercise of Rights for Intervention 31 (In Chambers): On June 21, 2011, the Court received a Motion for Exercise of Rights for Intervention, submitted by a group of residents at Atascadero State Hospital (the Proposed Intervenors), which is subject to a consent decree in this case. The Court ORDERS that the document be filed. The Court ORDERS Defendants State of California, et al., to respond to the motion no later than Monday, July 11, 2011. The government may respond to the motion and/or defendants response no later than Monday, July 25, 2011. Proposed Intervenors may reply to these submissions no later than Monday, August 15, 2011IT IS SO ORDERED by Judge Audrey B. Collins. (ir) (Entered: 06/23/2011)
35 PROPOSED INTERVENOR'S MOTION FOR CORRECTION By Deputy Clerk In Re: Court's Order Of June 23, 2011 32 filed by movants. (bm) (Entered: 07/15/2011)
33 REQUEST for Extension of Time to File Response to Motion for Intervention filed by DEFENDANTS Stephen W Mayberg, State of California. (Attachments: # 1 Order granting Extension of Time to File Response to Motion for Intervention)(Burns, Janet) (Entered: 07/13/2011)

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 19 of 26

07/14/2011 07/28/2011 08/11/2011 08/25/2011
10/28/2011 10/31/2011 10/31/2011
11/07/2011

34 ORDER GRANTING EXTENSION OF TIME To File Response to Motion for Intervention by Judge Audrey B. Collins: NOTE: CHANGES MADE BY THE COURT. The request for extension of time is GRANTED. Defendants State of California, et al., has until no later than Thursday, 7/28/2011 to respond to the motion. Plaintiff may respond to the motion and/or Defendants' response by no later than Thursday, 8/11/2011; and Proposed Intervenors may respond to these submissions by no later than Thursday, 8/25/2011. granting 33 Request for Extension of Time to File (lw) (Entered: 07/14/2011)
44 RESPONSE in Opposition to re: MOTION to Intervene 31 filed by Defendants Stephen W Mayberg, State of California. (Burns, Janet) (Entered: 07/28/2011)
55 OPPOSITION to MOTION to Intervene 31 filed by Plaintiff United States of America. (Daniels, Howard) (Entered: 08/11/2011)
56 APPLICANTS' RESPONSE TO PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE RE: MOTION to Intervene 31 filed by Movants Ernest Aguire, Victor Alvarez, Jose Ampriz, Arthur Arrellanes, Jason Athiede, Jose Avalos, Michael Beaver, George Bell, Ricky Benson, Wayne Bishop, Reginald Blaunt, John Carver, Donald Casnell, Eddie Cassidy, Eduardo Castanon, Robert Castorena, Juan Daniel Chavez, Lloyd Clark, Peter Cobb, Brian Colombein, Neil Core, Joseph M Cortes, Richard Cortez, William Curtis, Ron Cynman, James Deby, Ray Delong, Gary Dingest, Jerry Eates, George Eden, Hugo Edilberto, C Edwards, Marc Endsley, Lon Don Ferguson, Julio Flores, Ernesto Fuentes, Angel G, Nicandro Galaviz, Luis Garcia, Michael Garcia, Paul Gazaway, Sean Greenshields, Juan Gutierrez, David Guzman, Kennet H, Michael Hamilton, S Henderson, Harold Hines, Ramon Holguin, Brandon Howard, Ali Jones, Tod Koep, Andrew Kyle, Chris L, Warren Lanker, Michael Lanning, Keith Law, John Lowe, Ronnie Lucero, Curtis M, Jimmy Martinez, Damon Matheny, Michael McGee, Ron McLean, James McMann, Vadim Stanley Mieseges, Orrin A Patrick, R Phillips, Terry Powell, Gary Ramirez, Brooks Robert, Artay Scruggs, Andy Sessions, Dan Sloria, David Smith, Billy W Soto, Richard Soto, Larry Struchen, Tim Taylor, Billy Thomas, Paul Thompson, Paul Thurman, Daniel Tigner, Frank Travalini, Daniel Trebas, Samuel Turner, Johnny Walker, Banner Walter, Tom L Ward, Kenfort Williams, Scott Zimmerman, Movant C.L.. (lw) (Entered: 08/29/2011)
57 STIPULATION for Order Extending Court's Jurisdiction filed by Plaintiff United States of America. (Attachments: # 1 Proposed Order)(Jones, Terrence) (Entered: 10/28/2011)
58 ORDER by Judge Audrey B. Collins. This Court, having read and considered the Parties' Stipulation to Extend Court's Jurisdiction, and findings good cause therfor, hereby orders that, absent any motion by either Party that is accepted by this Court, both the Amended Consent Judgment and this Court's jurisdiction over this case will automatically terminate on November 15, 2011. (bp) (Entered: 11/01/2011)
59 MINUTES (IN CHAMBERS): ORDER DENYING Motion for Exercise of Rights for Intervention by Judge Audrey B. Collins: On June 21, 2011, a Motion for Exercise of Rights for Intervention was filed by a pro se group of residents at Atascadero State Hospital (the "Proposed Intervenors"). (Docket No. 31.) Defendants State of California, et al. ("Defendants") opposed on July 28, 2011 and Plaintiff United States opposed on August 11, 2011. The Proposed Intervenors replied on August 25, 2011. The Court has not set a date for oral argument and finds no oral argument necessary. Fed. R. Civ. P. 78; Local Rule 7−15. For the reasons below, the motion is DENIED...the Court also DENIES the Proposed Intervenors' motion for correction, filed on July 8, 2011. (Docket No. 35.)....The Court finds the Proposed Intervenors' motion is untimely, so the Court need not address any other factor justifying intervention. See Smith, 194 F.3d at 1053; Oregon, 913 F.2d at 589. The motion is DENIED. (PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS) denying 31 Motion to Intervene; denying 35 Motion to Amend/Correct (lw) (Entered: 11/01/2011)
60 APPLICANTS' OBJECTIONS/PROTEST TO PARTIES Unfounded Stipulation To Extend Court's Jurisdiction filed by Movants Ernest Aguire, Victor Alvarez, Jose Ampriz, Arthur Arrellanes, Jason Athiede, Jose Avalos, Michael Beaver, Ricky Benson, Wayne Bishop, Reginald Blaunt, John Carver, Donald Casnell, Eddie Cassidy, Eduardo Castanon, Robert Castorena, Juan Daniel Chavez, Lloyd Clark, Peter Cobb, Brian Colombein, Neil Core, Joseph M Cortes, Richard Cortez, William Curtis,

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 20 of 26

11/14/2011
11/14/2011
11/14/2011 11/14/2011 11/16/2011
11/28/2011 11/30/2011 12/02/2011 12/02/2011 12/05/2011

Ray Delong, Gary Dingest, Jerry Eates, George Eden, Hugo Edilberto, C Edwards, Marc Endsley, Lon Don Ferguson, Julio Flores, Ernesto Fuentes, Angel G, Nicandro Galaviz, Luis Garcia, Michael Garcia, Paul Gazaway, Sean Greenshields, David Guzman, Michael Hamilton, S Henderson, Harold Hines, Ramon Holguin, Brandon Howard, Ali Jones, Tod Koep, Andrew Kyle, Chris L, Warren Lanker, John Lowe, Ronnie Lucero, Curtis M, Jimmy Martinez, Damon Matheny, Michael McGee, Ron McLean, James McMann, Vadim Stanley Mieseges, Orrin A Patrick, R Phillips, Terry Powell, Gary Ramirez, Artay Scruggs, Andy Sessions, Dan Sloria, David Smith, Billy W Soto, Richard Soto, Tim Taylor, Billy Thomas, Paul Thurman, Daniel Tigner, Frank Travalini, Daniel Trebas, Samuel Turner, Johnny Walker, Banner Walter, Tom L Ward, Kenfort Williams, Scott Zimmerman. (bm) (Entered: 11/09/2011)
61 MINUTE: Letter to the Court (In Chambers): On November 9, 2011, the Court received a letter from Dr. Shakeel Khan, Chief of Staff of Napa State Hospital. This letter was is improper and the Court has not considered any matters stated therein. See Local Rule 83−2.11 (All matters shall be called to a judges attention by appropriate application or motion filed in compliance with the[] Local Rules.) by Judge Audrey B. Collins. (ir) (Entered: 11/14/2011)
62 MINUTE: Order re Objection/Protest to Parties (In Chambers): On November 7, 2011, a pro se group of residents at Atascadero State Hospital filed anObjection/Protest to Parties Unfounded Stipulation to Extend Courts Jurisdiction. 60 . The Court has not considered the content of this document because, on October 31, 2011, the Court denied the residents motion to intervene in this case. The residents are not parties to this case and areadmonished that they may not file anything in this case without court permission IT IS SO ORDERED by Judge Audrey B. Collins. (ir) (Entered: 11/14/2011)
63 STIPULATION for Order EXTENDING COURT'S JURISDICTION filed by plaintiff United States of America. (Attachments: # 1 Proposed Order)(Donnelly, Matthew) (Entered: 11/14/2011)
103 NOTICE OF APPEAL to the 9th CCA filed by Movant/Appellant Daniel Trebas. Appeal of MINUTES (IN CHAMBERS): ORDER DENYING Motion for Exercise of Rights for Intervention 59 . Filed On: 10/31/2011; Entered On: 11/01/2011; Filing fee $ 455 billed. cc: Daniel Trebas. (dmap); Modified on 11/28/2011 (dmap). (Entered: 11/28/2011)
64 ORDER by Judge Audrey B. Collins, having read and considered the Parties' Stipulation to extend Court's Jurisdiction 63 , Atascadero and Patton State Hospital are no longer subject to the Amended Consent Judgment; and As to Metropolitan and Napa State Hospital, absent any motion by either Party that is accepted by this Court, this Court's jurisdiction over both the Amended Consent Judgment and this Court's jurisdiction over this case will automatically terminate on 12/2/11. (ir) (Entered: 11/16/2011)
104 FILING FEE LETTER issued as to Movant/Appellant Daniel Trebas re Notice of Appeal to 9th Circuit Court of Appeals 103 . (dmap) (Entered: 11/28/2011)
300 Mail Returned addressed to George Eden re Minutes of In Chambers 61 . "Late docketing due to Clerk's Office error." (lom) (Entered: 04/24/2013)
105 NOTICE OF MOTION AND MOTION to Enforce Amended Consent Judgment filed by Plaintiff United States of America. Motion set for hearing on 1/23/2012 at 10:00 AM before Judge Audrey B. Collins. (Attachments: # 1 Memorandum, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Proposed Order)(Donnelly, Matthew) (Entered: 12/03/2011)
106 NOTIFICATION by Circuit Court of Appellate Docket Number 11−57098, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 103 as to Movant Appellant Daniel Trebas. (car) (Entered: 12/05/2011)
107 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 103 filed by Daniel Trebas, CCA # 11−57098. A review of the docket reflects that appellant has not paid the docketing and filing fees for this appeal. Within 21 days from the date of this order, appellant shall: 1) file a motion with this court to proceed in forma pauperis; 2) pay $455.00 to this court as the docketing and filing fees for this

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 21 of 26

12/15/2011 12/21/2011 12/21/2011 01/03/2012
01/03/2012
01/03/2012
01/03/2012 01/23/2012 01/26/2012 01/27/2012

appeal and provide proof of payment to this court; or 3) otherwise show cause why the appeal should not be dismissed for failure to prosecute. The filing of a motion to proceed in forma pauperis will automatically stay the briefing schedule under Ninth Circuit Rule 27−11. Any motion to proceed in forma pauperis must include a financial declaration such as the attached Form 4. If appellant fails to comply with this order, this appeal will be dismissed automatically by the Clerk for failure to prosecute. Order received in this district on 12/5/11. (car) (Entered: 12/06/2011)
248 APPEAL FEE PAID: re Notice of Appeal to 9th Circuit Court of Appeals 103 as to Movant/Appellant Daniel Trebas; Receipt Number: LA032500 in the amount of $455. (dmap) (Entered: 01/05/2012)
243 Notice of Change of Attorney filed by Defendants Dave Graziani, Melvin E Hunter, Octavio Carlos Luna, Stephen W Mayberg, Sharon Smith Nevins, Arnold Schwarzeneggar, State of California (Angelopoulos, Tracey) (Entered: 12/21/2011)
244 STIPULATION to Continue Hearing Date from January 23, 2012 to February 13, 2012 filed by defendants Melvin E Hunter, Octavio Carlos Luna, Stephen W Mayberg, Sharon Smith Nevins, Arnold Schwarzeneggar, State of California. (Attachments: # 1 Proposed Order to Continue Hearing Date)(Angelopoulos, Tracey) (Entered: 12/21/2011)
245 NOTICE of Change of Attorney Information for attorney George Dey Prince counsel for Defendants Dave Graziani, Melvin E Hunter, Octavio Carlos Luna, Stephen W Mayberg, Sharon Smith Nevins, Arnold Schwarzeneggar, State of California. Changing address to 455 Golden Gate Ave., Suite 11000, San Francisco, CA 94102−7004. Changing email and fax to george.prince@doj.ca.gov ; fax: 415−703−5480. Adding George Dey Prince as attorney as counsel of record for all State defendants for the reason indicated in the G−06 Notice. Filed by defendants State of California (Prince, George) (Entered: 01/03/2012)
246 NOTICE of Change of Attorney Information for attorney George Dey Prince counsel for Defendants Dave Graziani, Melvin E Hunter, Octavio Carlos Luna, Stephen W Mayberg, Sharon Smith Nevins, Arnold Schwarzeneggar, State of California. Changing email and fax number to george.prince@doj.ca.gov ; fax 415−703−5480. Adding George Dey Prince as attorney as counsel of record for all State defendants for the reason indicated in the G−06 Notice. Filed by defendants State of California, et al. (Prince, George) (Entered: 01/03/2012)
Notice of Electronic Filing re Notice of Change of Attorney Information (G−06) 246 , Notice of Change of Attorney Information (G−06) 245 e−mailed to Tracey L. Angelopoulos bounced due to invalid e−mail address. The primary e−mail address associated with the attorney record has been deleted. Pursuant to the General Order and Local Rules it is the attorneys obligation to maintain all personal contact information including e−mail address in the CM/ECF system. (jj) TEXT ONLY ENTRY (Entered: 01/03/2012)
247 ORDER GRANTING STIPULATION TO CONTINUE January 23, 2012 Hearing On United States' Motion To Enforce The Amended Consent Judgment by Judge Audrey B. Collins, re Stipulation 244 : This Court, having considered the parties' stipulation and good cause appearing, hereby GRANTS the parties' stipulation for a continuance. The January 23, 2012 hearing on Plaintiff's motion to enforce the amended consent judgment is hereby continued to February 13, 2012. (bm) (Entered: 01/03/2012)
251 OPPOSITION to MOTION to Enforce Amended Consent Judgment 105 filed by Defendant State of California. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Exhibit, # 5 Affidavit)(Prince, George) (Entered: 01/23/2012)
252 STIPULATION to Continue Motion to Enforce from 2/13/12 to 3/5/12 Re: Order, Set/Reset Motion Hearing and R&R Deadlines,, 247 , MOTION to Enforce Amended Consent Judgment 105 filed by Plaintiff United States of America. (Attachments: # 1 Proposed Order)(Donnelly, Matthew) (Entered: 01/26/2012)
253 ORDER by Chief Judge Audrey B. Collins, re Stipulation to Continue, 252 , This Court,...hereby GRANTS the Parties' Stipulation for a continuance. The February 13, 2012, hearing on the United States' Motion to Enforce the Amended Consented Judgment is continued to March 5, 2012.... The hearings re Motion originally

Case: 2:06-cv-2667 As of: 10/26/2017 09:36 PM PDT 22 of 26

02/03/2012
02/14/2012 02/15/2012
03/13/2012
04/09/2012 04/09/2012 04/09/2012 04/09/2012 04/09/2012 04/09/2012 04/09/2012 04/09/2012 04/09/2012 04/09/2012

scheduled have been rescheduled( Motion set for hearing on 3/5/2012 at 10:00 AM before Judge Audrey B. Collins.) (lw) (Entered: 01/30/2012)
255 MINUTE ORDER IN CHAMBERS re Letter to the Court by Judge Audrey B. Collins: On February 2, 2012, the Court received a letter from Dr. Alex Sahba, President of Medical Staff at Metropolitan State Hospital. This letter is improper and the Court has not considered any matters stated therein. See Local Rule 83−2.11 ("All matters shall be called to a judges attention by appropriate application or motion filed in compliance with the[] Local Rules."). (bm) (Entered: 02/03/2012)
256 STIPULATION to Continue hearing from 3/5/12 to 6/25/12 Re: Order, Set/Reset Motion Hearing and R&R Deadlines,, 253 , MOTION to Enforce Amended Consent Judgment 105 filed by Plaintiff United States of America. (Attachments: # 1 Proposed Order)(Donnelly, Matthew) (Entered: 02/14/2012)
257 ORDER by Judge Audrey B. Collins, re Stipulation to Continue, 256 : The Parties have submitted a stipulation requesting a continuance of the hearing, regarding the United States' Motion to Enforce the Amended Consent Judgment, ECF No. 105, presently scheduled for March 5, 2012. This Court, having considered the Parties Stipulation and good cause appearing, hereby GRANTS the Parties Stipulation for a continuance. The March 5, 2012, hearing on the United States Motion to Enforce the Amended Consent Judgment is continued to June 25, 2012. (bm) (Entered: 02/16/2012)
258 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 103 filed by Daniel Trebas CCA # 11−57098. The motion to proceed in forma pauperis is granted. The Clerk shall amend the docket to reflect this status. Appellee State of California's opposed motion to file a late response to appellant's emergency motion for a preliminary injunction is granted. The response is deemed filed. Appellant's emergency motion for a preliminary injunction is denied. Because appellant is proceeding without counsel, the excerpts of record requirement is waived. See 9th Cir. R. 30−1.2. Appellees' supplemental excerpts of record are limited to the district court docket sheet, the notice of appeal, the judgment or order appealed from, and any specific portions of the record cited in appellees' brief. See 9th Cir. R. 30−1.7.The briefing schedule established previously shall remain in effect. Order received in this district on 3/13/2012. (dmap) (Entered: 03/15/2012)
259 Mail Returned addressed to Andy Sessions, Attempted Not Known, No Such Name, re USCA Order 258 . (bm) (Entered: 04/10/2012)
260 Mail Returned addressed to Gary Ramirez, Attempted Not Known, No Such Name, re USCA Order 258 . (bm) (Entered: 04/10/2012)
261 MAIL RETURNED addressed to Ernesto Fuentes at Atascadero State Hospital re USCA Order 258 (ir) (Entered: 04/10/2012)
262 MAIL RETURNED addressed to Paul Thompson at Atascadero State Hospital re USCA Order 258 (ir) (Entered: 04/10/2012)
263 MAIL RETURNED addressed to Kennet H at Atascadero State Hospital re USCA Order 258 (ir) (Entered: 04/10/2012)
264 MAIL RETURNED addressed to Jason Athiede at Atascadero State Hospital re USCA Order 258 (ir) (Entered: 04/10/2012)
265 MAIL RETURNED addressed to Tim Taylor at Atascadero State Hospital re USCA Order 258 (ir) (Entered: 04/10/2012)
266 MAIL RETURNED addressed to Reginald Blaunt at Atascadero State Hospital re USCA Order 258 (ir) (Entered: 04/10/2012)
267 MAIL RETURNED addressed to Peter Cobb at Atascadero State Hospital re USCA Order 258 (ir) (Entered: 04/10/2012)
268 MAIL RETURNED addressed to Jimmy Martinez at Atascadero State Hospital re USCA Order 258 (ir) (Entered: 04/10/2012)

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06/07/2012 06/08/2012 06/11/2012 08/13/2012 08/14/2012 08/15/2012
09/04/2012
09/17/2012

269 EX PARTE APPLICATION to Continue hearing from 6/25/12 to 8/27/12 Re: Order, Set/Reset Motion Hearing and R&R Deadlines,,,, 257 , MOTION to Enforce Amended Consent Judgment 105 filed by plaintiff United States of America. (Attachments: # 1 Declaration of counsel, # 2 Memorandum in Support, # 3 Declaration of Court Monitor, # 4 Proposed Order)(Donnelly, Matthew) (Entered: 06/07/2012)
270 OPPOSITION to EX PARTE APPLICATION to Continue hearing from 6/25/12 to 8/27/12 Re: Order, Set/Reset Motion Hearing and R&R Deadlines,,,, 257 , MOTION to Enforce Amended Consent Judgment 105 EX PARTE APPLICATION to Continue hearing from 6/25/12 to 8/27/12 Re: Order, Set/Reset Motion Hearing and R&R Deadlines,,,, 257 , MOTION to Enforce Amended Consent Judgment 105 269 filed by Defendant State of California. (Prince, George) (Entered: 06/08/2012)
271 ORDER by Judge Audrey B. Collins: NOTE: CHANGES MADE BY THE COURT − Granting 269 United States' Ex Parte Application to Continue the June 25, 2012 hearing. The June 25, 2012 hearing is continued to AUGUST 20, 2012 at 10:00 AM before Judge Audrey B. Collins. (lw) (Entered: 06/12/2012)
272 EX PARTE APPLICATION to Continue hearing from 8/20/12 to 9/24/12 Re: MOTION to Enforce Amended Consent Judgment 105 , Order on Ex Parte Application to Continue, 271 filed by plaintiff United States of America. (Attachments: # 1 Memorandum, # 2 Declaration of counsel, # 3 Proposed Order)(Donnelly, Matthew) (Entered: 08/13/2012)
273 OPPOSITION Opposition to Plaintiffs Ex Parte Application to Continue the August 20, 2012, Hearing Date on Plaintiffs Motion to Enforce the Consent Judgment re: EX PARTE APPLICATION to Continue hearing from 8/20/12 to 9/24/12 Re: MOTION to Enforce Amended Consent Judgment 105 , Order on Ex Parte Application to Continue, 271 EX PARTE APPLICATION to Continue hearing from 8/20/12 to 9/24/12 Re: MOTION to Enforce Amended Consent Judgment 105 , Order on Ex Parte Application to Continue, 271 272 filed by Defendants Octavio Carlos Luna, Stephen W Mayberg, Sharon Smith Nevins, Arnold Schwarzeneggar, State of California. (Prince, George) (Entered: 08/14/2012)
274 MINUTES (IN CHAMBERS) ORDER RE: Motion to Enforce Consent Judgment by Judge Audrey B. Collins granting 272 Ex Parte Application to Continue: On August 13, 2012, Plaintiff United States filed an ex parte application to continue the hearing on its pending Motion to Enforce the Consent Judgment in this case, which is currently set for Monday, August 20, 2012 at 10:00 a.m. (Docket No. 272.) Defendants State of California, et al., opposed on August 14, 2012. The Court GRANTS the request and CONTINUES the hearing on the motion to Monday, September 24, 2012 at 10:00 a.m. The Court ORDERS the parties to file simultaneous briefs no later than Monday, September 17, 2012, updating the Court on the monitor's final assessment of the state's compliance with the restraint provision of the consent judgment at Napa State Hospital following the coroner's report on the recent restraint death there. It appears that the monitor has found the state in compliance with the rest of the provisions of the consent judgment raised in the pending motion and the United States is no longer pressing those issues (Ex Parte App. 9), so the parties must explain to the Court what matters remain outstanding and what relief is now necessary in this case, if any. (bm) (Entered: 08/15/2012)
275 STATEMENT of DEFENDANTS BRIEF re: MATTERS OUTSTANDING AND LACK OF NEED FOR ANY ADDITIONAL RELIEF SAVE FOR TERMINATION OF AMENDED CONSENT JUDGMENT EX PARTE APPLICATION to Continue hearing from 8/20/12 to 9/24/12 Re: MOTION to Enforce Amended Consent Judgment 105 , Order on Ex Parte Application to Continue, 271 EX PARTE APPLICATION to Continue hearing from 8/20/12 to 9/24/12 Re: MOTION to Enforce Amended Consent Judgment 105 , Order on Ex Parte Application to Continue, 271 272 DEFENDANTS BRIEF re: MATTERS OUTSTANDING AND LACK OF NEED FOR ANY ADDITIONAL RELIEF SAVE FOR TERMINATION OF AMENDED CONSENT JUDGMENT filed by Defendant State of California. (Prince, George) (Entered: 09/04/2012)
276 SUPPLEMENT to MOTION to Enforce Amended Consent Judgment 105 filed by Plaintiff United States of America. (Attachments: # 1 Declaration of Monitor)(Donnelly, Matthew) (Entered: 09/17/2012)

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09/24/2012
09/25/2012 09/25/2012 09/25/2012
09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012 09/25/2012

295 MINUTES: MOTION TO ENFORCE AMENDED CONSENT JUDGMENT 105 : Matter called. Tentative given to counsel. Court and counsel confer regarding tentative. Court and counsel discuss the position of monitor. The Court having heard from counsel, will maintain tentative. Counsel ORDERED to e−file a joint report 10 days after monitor's two evaluations are completed, updating the Court. If a final report is done, the Court would like that submitted also. Tentative order to follow, which reflects the ruling of the above motion IT IS SO ORDERED by Judge Audrey B. Collins Court Reporter: Katherine Stride. (ir) (Entered: 09/26/2012)
277 Mail Returned addressed to Richard Cortez re Order RE: Motion to Enforce Consent Judgment 274 . (mat) (Entered: 09/25/2012)
278 Mail Returned addressed to Kennet H re Order RE: Motion to Enforce Consent Judgment 274 . (mat) (Entered: 09/26/2012)
279 Mail Returned addressed to Ron Cynman re ORDER GRANTING STIPULATION TO CONTINUE January 23, 2012 Hearing On United States' Motion To Enforce The Amended Consent Judgment 247 (mat) (Entered: 09/26/2012)
280 Mail Returned addressed to Juan Gutierrez re Order to Continue 253 . (mat) (Entered: 09/26/2012)
281 Mail Returned addressed to George Bell re Order to Continue 253 . (mat) (Entered: 09/26/2012)
282 Mail Returned addressed to Paul Thurman re Order to Continue 253 . (mat) (Entered: 09/26/2012)
283 Mail Returned addressed to Chris L re Order to Continue 253 . (mat) (Entered: 09/26/2012)
284 Mail Returned addressed to Tod Koep re Order to Continue 253 . (mat) (Entered: 09/26/2012)
285 Mail Returned addressed to Michael Lanning re Order to Continue 253 . (mat) (Entered: 09/26/2012)
286 Mail Returned addressed to Scott Zimmerman re Order to Continue 253 . (mat) (Entered: 09/26/2012)
287 Mail Returned addressed to Luis Garcia re Order to Continue 257 . (mat) (Entered: 09/26/2012)
288 Mail Returned addressed to Luis Garcia re Order to Continue 253 . (mat) (Entered: 09/26/2012)
289 Mail Returned addressed to Eduardo Castanon re Order to Continue 253 . (mat) (Entered: 09/26/2012)
290 Mail Returned addressed to Ron McLean re Order to Continue 253 . (mat) (Entered: 09/26/2012)
291 Mail Returned addressed to James Deby re Order to Continue 253 . (mat) (Entered: 09/26/2012)
292 Mail Returned addressed to Kennet H re Order to Continue 253 . (mat) (Entered: 09/26/2012)
293 Mail Returned addressed to Ron Cynman re Order RE: Motion to Enforce Consent Judgment 274 . (mat) (Entered: 09/26/2012)
294 Mail Returned addressed to Michael Hamilton re Order RE: Motion to Enforce Consent Judgment 274 . (mat) (Entered: 09/26/2012)
296 ORDER RE: MOTION TO ENFORCE AMENDED CONSENT JUDGMENT by Judge Audrey B. Collins: The United States' Motion to Enforce Consent Judgment 105 is GRANTED with respect to § I.H regarding prone restraints at Napa State Hospital and is otherwise DENIED as moot. The United States isORDERED to lodge a proposed order with Court no later than 10 days from the date of this Order reflecting the following: The Court TERMINATES all the provisions of the Amended Consent

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10/03/2012 10/09/2012
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Judgment as they apply to Metropolitan State Hospital. The Court TERMINATES the provisions of the Amended Consent Judgment as they apply to Napa State Hospital, except § I.H and any other provision necessary to remedy Defendants non−compliance with that section. The Court EXTENDS § I.H of the Amended Consent Judgment for no more than 12 months. During that time, the Monitor shall conduct two evaluations of Defendants' compliance with § I.H. Within one month of the Court's entry of an Order consistent with the rulings herein, the Monitor shall conduct the first evaluation and may conduct the second evaluation within six months after the first evaluation or as shortly thereafter as the Monitor deems appropriate.The parties are ORDERED to file a joint report updating the Court on the status of the Monitor's oversight no later than 10 days after the Monitor issues a report following each of his two evaluations of Napa. (ir) (Entered: 09/26/2012)
297 NOTICE OF LODGING filed Proposed Order re Order on Motion to Enforce,,,,, 296 (Attachments: # 1 Proposed Order)(Donnelly, Matthew) (Entered: 10/03/2012)
298 ORDER by Judge Audrey B. Collins, re Order on Motion to Enforce, 296 ; The Court TERMINATES all the provisions of the Amended Consent Judgment as they apply to Metropolitan State Hospital. The Court TERMINATES the provisions of the Amended Consent Judgment as they apply to Napa State Hospital, except § I.H and any other provision necessary to remedy Defendants non−compliance with that section. To that end, §§ II (Enforcement), III (Modification of Terms), and IV (Compliance and Termination) are retained to the extent they do not directly conflict with the specific provisions of this Order below. The Court ORDERS Defendants to modify their policies at Napa State Hospital to prohibit all use of prone restraints, prone containments, and prone stabilizations as called for in the Amended Consent Judgment § I.H.1. The Court EXTENDS § I.H of the Amended Consent Judgment as it applies to Napa State Hospital for no more than 12 months from the date of this Order.This extension modifies the five−year termination provision stated in § IV.A. During those 12 months, the Monitor shall conduct two evaluations of Defendants' compliance with § I.H at Napa State Hospital. The Amended Consent Judgment's term "maintained sustained compliance" is amended to mean that Defendants maintain substantial compliance with § I.H for at least two Monitor evaluations. See Amended Consent Judgment § IV.A. Within one month of the Court's entry of this Order, the Monitor shall conduct the first evaluation and may conduct the second evaluation within six months after the first evaluation or as shortly thereafter as the Monitor deems appropriate. After any such evaluation, the Monitor shall issue a report of his findings.....The Parties are ORDERED to file a joint report updating the Court on the status of the Monitor's oversight no later than 10 days after the Monitor issues any such evaluation report of Napa State Hospital. (lw) (Entered: 10/10/2012)
299 NOTICE (joint) of Monitor's Report Regarding Napa State Hospital filed by plaintiff United States of America. (Attachments: # 1 Monitor's Report)(Donnelly, Matthew) (Entered: 01/02/2013)
301 NOTICE (Joint) of Monitor's Second Report Regarding Napa State Hospital filed by plaintiff United States of America. (Attachments: # 1 Report)(Donnelly, Matthew) (Entered: 06/05/2013)
302 ORDER from 9th CCA filed, CCA # 11−57098. The request for judicial notice by Appellant−Intervenor Daniel James Trebas is DENIED. Order received in this district on 8/15/13. (car) (Entered: 08/16/2013)
303 NOTICE Monitor's Report filed by Plaintiff United States of America. (Attachments: # 1 Monitor's Report)(Maddox, William) (Entered: 08/23/2013)
304 Mail Returned addressed to: SEE DOCUMENT FOR INDIVIDUAL ADDRESSEES re USCA Order 302 (Attachments: # 1 Part 2 of 3, # 2 Part 3 of 3) (jre) (Entered: 08/28/2013)
305 ORDER from 9th CCA filed, CCA # 11−57098. Appellant Daniel Trebas's request for court action or dismissal, filed August 19, 2013, is denied as moot. The court filed a memorandum disposition in this matter on August 16, 2013. Order received in this district on 9/27/13. (car) (Entered: 09/30/2013)
306 STIPULATION to Dismiss Case pursuant to compliance with consent decree filed by defendant State of California. (Attachments: # 1 Proposed Order Order Dissolving

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10/03/2013
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Amended Consent Judgment and Dismissing Case with Prejudice)(Prince, George) (Entered: 10/01/2013)
307 ORDER re Stipulation 306 by Judge George H. King: For that reason, and on the basis that defendants have previously been found to be in compliance with all other compliance provisions of the Amended Consent Judgment of February 27, 2007 and the Consent Judgment of May 15,2006, that preceded the Amended Consent Judgment, the Amended Consent Judgment is hereby dissolved and this action dismissed, with prejudice. (ir) (Entered: 10/03/2013)
308 MANDATE of 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 103 , CCA # 11−57098. The Judgment of the district court is AFFIRMED. Mandate received in this district on 10/9/13. (car) (Entered: 10/11/2013)
310 Mail Returned addressed to: SEE DOCUMENT FOR INDIVIDUAL ADDRESSEES re USCA Order 302 (jre) (Entered: 11/26/2013)
311 Mail Returned addressed to: SEE DOCUMENT FOR INDIVIDUAL ADDRESSEES re USCA Order 305 (Attachments: # 1 part 2 of 4, # 2 part 3 of 4, # 3 part 4 of 4) (jre) (Entered: 11/26/2013)
309 Mail Returned addressed to Atascadero State Hospital, Prisoner ID 060950−3, P.O. Box 7001, Atascadero, CA 93423−7001 re USCA Mandate 308 . Plaintiff refused mail. (sp) (Entered: 11/25/2013)
312 Mail Returned addressed to: SEE DOCUMENT FOR INDIVIDUAL ADDRESSEES re Order 307 (Attachments: # 1 part 2 of 4, # 2 part 3 of 4, # 3 part 4 of 4) (jre) (Entered: 11/26/2013)
313 Mail Returned addressed to: SEE DOCUMENT FOR INDIVIDUAL ADDRESSEES re USCA Mandate 308 (Attachments: # 1 part 2 of 4, # 2 part 3 of 4, # 3 part 4 of 4) (jre) (Entered: 11/26/2013)
314 NOTICE OF DISCREPANCY AND ORDER: by Judge George H. King, ORDERING Letter from Movant Mark S. Sokolsky dated 4/13/2016 submitted by Petitioner Mark S Sokolsky received on 4/22/16 is not to be filed but instead rejected. Denial based on: Local Rule 83−2.5: No letters to judge. Other: Case is closed. Request for relief unclear. Any records request should be clearly made and directed to the records division indicating which records are sought. (bm) (Entered: 05/03/2016)

 
 U.S. Department of Justice
Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Avenue, N.W. Washington, DC 20530
May 2, 2006
The Honorable Arnold Schwarzenegger Governor of California State Capitol Building Sacramento, CA 95814
Re: Atascadero State Hospital, Atascadero, California
Dear Governor Schwarzenegger:
I am writing to report the findings of the Civil Rights Division’s investigation of conditions and practices at Atascadero State Hospital (“ASH”), in Atascadero, California. On February 16, 2005, we notified you that we were investigating conditions at ASH pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. CRIPA gives the Department of Justice authority to seek remedies for any pattern and practice of conduct that violates the constitutional or federal rights of persons with mental illness who are served in public institutions.
During the week of November 28, 2005, we conducted an onsite inspection of ASH. We reviewed a wide variety of relevant State and facility documents, including policies, procedures, and medical and other records relating to the care and treatment of patients. During our visit, we also interviewed ASH administrators, professionals, and staff, and talked to and observed patients in their living units, at activity areas, and during treatment meetings. We were assisted by expert consultants in the fields of psychiatry, psychology, medical care, and quality assurance and risk management. In keeping with our pledge of transparency and to provide technical assistance where appropriate regarding our investigatory findings, we conveyed our preliminary findings to State counsel and to certain State and facility administrators and staff during verbal exit presentations at the close of our on-site visit.
As a threshold matter, we commend the administrators and staff of ASH for their helpful and professional conduct

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throughout the course of the investigation. In particular, facility personnel cooperated fully and expeditiously with our document requests. We hope to continue to work with the State of California and officials at ASH in a cooperative manner.
At the time of our November 2005 visit, ASH had a census of approximately 1,350 patients. ASH provides forensic psychiatric services to these patients admitted under a variety of State statutes. Residents of state-operated facilities have a right to live in reasonable safety and to receive adequate health care, along with habilitation to ensure their safety and freedom from unreasonable restraint, prevent regression and facilitate their ability to exercise their liberty interests. See generally Youngberg v. Romeo, 457 U.S. 307 (1982). Determining whether treatment is adequate focuses on whether institutional conditions substantially depart from generally accepted professional judgment, practices, or standards. Youngberg, 457 U.S. at 323; Sharp v. Weston, 233 F.3d 1166, 1171-72 (9th Cir. 2000). The State also must provide services in the most integrated setting appropriate to individual residents’ needs. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq.; 28 C.F.R. § 35.130 (d) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”); see generally Olmstead v. L.C., 527 U.S. 581 (1999). Additionally, the State must provide persons committed to psychiatric hospitals for an indefinite term with mental health treatment that gives them a realistic opportunity to be cured and released. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (citing Sharp, 233 F.3d at 1172).
It was apparent that many ASH staff are highly dedicated individuals who are genuinely concerned for the well-being of the persons in their care. Nevertheless, there are significant and wide-ranging deficiencies in patient care provided at ASH. Indeed, conditions of care and treatment at ASH in psychiatry, including pharmaceutical services; psychology; medical care, including general medical services, infection control, physical and occupational therapy, dietary and dental care, nursing services, placement in the most integrated setting; and protection from harm and quality assurance, are materially similar to those outlined in the Metropolitan findings letters of 2003 and 2004. Consistent with the statutory requirements of CRIPA, we now write to advise you of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to address the deficiencies we have identified.

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I. PSYCHIATRY
ASH's psychiatric supports and services substantially depart from generally accepted professional standards of care and expose patients to a significant risk of harm and to actual harm. Generally, our investigation uncovered problems in three main areas: assessments, treatment planning, and medication management.
In many respects, psychiatric assessments are the main vehicles establishing the patients’ diagnoses, establishing safe and effective treatment, and providing direction for treatment planning. We found ASH provides timely initial assessments. These initial assessments, however, are cursory and not individualized. These cursory assessments fail to provide the basis for a valid and reliable diagnosis and for distinguishing accurately among disorders with similar presentations. For example, ASH lists too many patients with an ambiguous “not otherwise specified” diagnosis, and fails to document further follow up testing.
Ongoing assessments are likewise inadequate. These assessments are crisis driven, rather than treatment driven. ASH generally fails to documents risks, benefits, and rationales for prescribed medication regimens and universally fails to review the use of medications prescribed on an as needed (“PRN”) basis. Assessments generally fail to track risk factors, assess contributing factors, and provide timely supports and interventions to minimize the risk.
Overall, ASH fails to provide clinically justified assessments and diagnoses of psychiatric disorders and fails to provide adequate social history, court, and rehabilitative assessments. As a result, patients’ actual illnesses are not being properly treated and are permitted to progress, patients are exposed to potentially toxic treatments for conditions from which they do not suffer, patients are not provided appropriate psychiatric rehabilitation, and patients’ options for discharge are seriously limited.
Beyond assessments, ASH fails to provide adequate and appropriate treatment planning. Generally accepted professional standards of care instruct that treatment plans should dictate appropriate clinical interventions by integrating the individual assessments, evaluations, and diagnoses of the patient performed by all disciplines involved in the patient’s treatment. Treatment plans should be individualized and should identify and build on the patient’s strengths, interests, preferences, and

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goals, to optimize the patient’s recovery and ability to sustain himself in the most integrated, appropriate setting.
Like assessments, treatment plans are cursory, generic, and not integrated. Rather than an integrated interdisciplinary input model, ASH currently employs an ineffective symptom reduction model. Treatment plans are static, and rarely modified in response to the progress of the patients. Treatment plans fail to provide meaningful targets for rehabilitation and for measurable outcomes. Despite many patients with cognitive disorders, ASH fails to provide cognitive remediation groups. ASH’s focus on symptom reduction ignores the impairments that contribute to a perpetual cycle of chronic disability and repeated hospitalizations.
ASH is working toward using a collaborative interdisciplinary input model with meaningful outcome-oriented objectives and interventions. Yet, ASH’s move to the interdisciplinary model has significant problems. Interdisciplinary teams lack a psychologist, causing a failure to provide the appropriate behavioral interventions for vast numbers of patents. Because of a lack of competent leadership, interdisciplinary teams spend most of their time assessing rather than planning treatment. Contrary to generally accepted professional standards of care, ASH fails to base its treatment planning on a comprehensive case formulation that provides a functional bridge between assessments and the treatment plan.
ASH’s medication management substantially deviates from generally accepted professional standards. ASH fails to prescribe clinically justified psychotropic medications, and to assess the side effects of medications appropriately. We found that ASH does not timely modify medications, even when medications appear to cause harm, and alternatives exist. A review of patients’ treatment plans shows that ASH does not integrate medication management with treatment plans. ASH medication management also suffers from a fractured review, with the pharmacy and psychiatry staff reviewing medications separately.
The harm to these patients caused by these deficiencies in psychiatric care takes many forms, among them, inadequate, ineffective, and counterproductive treatment; exposure to inappropriate and unnecessary medications, including PRN medications, posing serious physiological and other side effects; excessively long hospitalizations, which compound psychiatric distress; increased risk of relapse after discharge; and an overall lower quality of life.

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II. PSYCHOLOGY
ASH's psychological services and behavioral interventions substantially depart from generally accepted professional standards of care and expose patients to significant risk of harm and to actual harm. Generally, our investigation uncovered an operational failure in symptom/behavioral management, and psychosocial rehabilitation/recovery.
Assessments use boilerplate language, are not individualized, and are infrequently updated. Further, ASH provides insufficient, inappropriate psychological interventions. In fact, treatment plans are generic and unresponsive to individual problems, rendering them of little use. In addition, the provided psychological interventions are provided only infrequently and are of poor quality. Not surprisingly, there is scant participation in group and individual therapy.
ASH’s behavior management system substantially departs from generally accepted professional standards. To develop an effective behavior program, generally accepted professional practice requires that psychology staff identify the underlying factors that precipitate or cause the patient’s maladaptive behavior (i.e., the “function” of the behavior) through an individualized, formal functional assessment. Notwithstanding an extensive need for behavioral interventions among its patients, ASH employs few behavioral plans and interventions, none of which it individualizes. Behavioral supports are prepared without an adequate functional analysis or assessment of undesirable behaviors. Behavioral plans are internally inconsistent, lack a reliable method to insure integrity of implementation, and lack
criteria for revision or termination. Not surprisingly, we could uncover no evidence that these generic behavior plans actually modify targeted behaviors.
Rehabilitative therapy is limited to activities that do not constitute actual treatment and rehabilitation but rather is essentially diversionary, such as playing “bingo”. Again, therapy plans are not individualized, resulting in inadequate group and individual therapy services.
ASH staff frequently use PRN medications and/or restrictive practices in the absence of adequate treatment and/or as punishment. Staff regularly use PRN medications and other restrictive interventions as standard practice, without attempting to employ less restrictive alternatives. According to generally accepted professional medication practices, PRN

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medications should only be used for psychiatric purposes as a short-term measure. ASH staff, however, repeatedly employ PRN medications, without adequate review, as a substitute for treatment of the patient’s underlying condition.
The harm to the patients caused by these deficiencies in psychological supports and services takes many forms, among them, diagnoses that perpetuate their behavioral difficulties; unnecessarily extending their stay in a highly restrictive setting; subjecting them to excessive and unnecessary use of seclusion, restraints, or sedating medications; fostering despair and hopelessness; and, in some cases, depriving them of physical safety.
III. PHARMACY
ASH’s pharmacy services substantially depart from generally accepted professional standards of care, exposing to significant actual and potential harm. Pharmacists fail to adequately review individual patients’ medication regimens, fail to adequately evaluate drug use at the facility, and fail to identify problematic medication practices.
As part of integrated treatment, ASH pharmacists should attend and participate in treatment team meetings and planning. We found inadequate documentation of communication between the pharmacists and physicians regarding concerns, potential medication interactions, and the need for laboratory testing. Pharmacists also are inadequately involved in medical clinics. Furthermore, the Pharmacy and Therapeutic Committee fails to insure safe medication standards of practice.
By not providing adequate pharmacy services, ASH places its patients at risk for the misuse of medication, unnecessary side effects from medication, potential drug interactions, general health problems, and excessively long hospitalizations.
IV. GENERAL MEDICAL CARE
ASH’s medical care substantially departs from generally accepted professional standards of care. ASH fails to provide its patients with appropriate and timely preventative, routine, specialized, and emergency services. Overall, medical care at ASH is reactive, and little attention is paid to identifying and responding to significant changes in patients’ physical status, establishing target outcomes, and measuring the success of

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interventions. ASH only addresses acute health issues, with little, to no, initiation of interventions focused on prevention.
ASH fails to provide adequate physical, occupational, and speech therapy assessments and services that permit persons evaluated for such services to regain, maintain, or improve functioning. A number of patients at ASH have significant needs, but have not been referred for physical, occupational, and speech therapy. Moreover, the physical, occupational, and speech therapy staff are not integrated into the treatment teams. Therefore, therapy interventions are not consistently implemented and reinforced by other staff throughout a patient’s day. This deficient integration results in poor outcomes, even when patients are referred for such services.
ASH also fails to provide dietary and nutrition assessments and services that address comprehensively patients’ weight and other dietary issues through, among other things, mealtime protocols, particularly for individuals at risk for aspiration.
Although the facility’s dentist is enthusiastic, we found that ASH provides inadequate dental services, because dentists are not available for the provision of emergency care during nonbusiness hours. Consequently, patients needing emergency dental services have been required to wait days in significant pain before being treated. ASH also fails to provide adequate infection control that tracks and trends infections and communicable diseases in an institutional setting.
Although we found many dedicated staff, it was apparent that the medical and psychiatric departments limit the participation and input of other clinicians, to the detriment of patient care. In part because of a lack of integrated clinical participation, clinical decisions are being made without input from professionals possessing the necessary expertise.
By not providing adequate medical services, ASH exposes its patients to a significant risk of harm and actual harm due to the lack of timely, routine and preventative care, which causes patient health care to deteriorate, and results in a heightened need for more specialized and emergent care.
V. NURSING
ASH’s nursing services substantially depart from generally accepted professional standards of care and treatment, and expose patients there to a significant risk of harm and actual

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harm. In particular, nursing staff fail to adequately monitor and report changes in patients’ status, and fail to document thorough and complete medical progress notes. Medication administration records show missed medications and show that nurses fail to consistently document the administration of medications. Unit staff fail to identify, monitor, and report patients’ symptoms and side effects of medications. We found nurses often are unfamiliar with mental health diagnoses, associated symptoms, and appropriate treatments and interventions. Nurses often lack knowledge of their patients and do not effectively participate in the treatment team process. These substantial deviations from generally accepted professional standards of care place individuals at ASH at a significant risk of harm. The above problems are compounded by ASH’s chronic shortage of nursing staff and prolonged mandatory use of overtime. They are also compounded by the fact that ASH does not fully utilize psychiatric nurse practitioners, who are not allowed to work up to the full scope of their licenses.
VI. PLACEMENT IN THE MOST INTEGRATED SETTING
Generally accepted professional standards of care and, as set forth above, federal law require that ASH actively pursue the timely discharge to the most integrated, appropriate setting that is consistent with patients’ needs and the terms of any courtordered confinement. In this regard, there have been unsuccessful placements, but the factors that contributed to these unsuccessful placements are poorly identified and addressed. ASH’s discharge planning process fails to meet these standards of care. ASH fails to identify and address factors that contributed to previous unsuccessful placements. Consequently, the process results in unnecessarily extended hospitalizations, poor transitions, and a high likelihood of readmission, all of which result in harm to ASH’s patients.
VII. PROTECTION FROM HARM
Generally accepted professional standards of practice call for an incident management system that reports incidents, investigates incidents, identifies areas of improvement, and tracks incidents to identify systemic improvement opportunities. ASH substantially departs from these professional standards by failing to maintain an effective incident management system and a related quality assurance system to prevent harmful incidents, and identify and correct deficiencies in care and treatment.

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The quality of the investigations ASH completes is inadequate. ASH does not interview witnesses, but simply describes the incident in a report. No independent objective review exists, nor are areas of improvement identified. Frequently, ASH also takes months to resolve complaints.
All incidents should be investigated, and each investigation should result in a written report that includes a summary of the investigation, findings, and as appropriate, recommendations for corrective action/areas for improvements. Additionally, ASH does not have an organized, coherent, written quality improvement plan that defines the performance improvement priorities and objectives for the hospital.
Adverse environmental conditions, such as potential suicide hazards, are not adequately identified and prioritized for systematic corrective action. Finally, ASH fails to adequately address inappropriate sexual contact among individuals served at the facility, including sexual contact between staff and patients.
Consequently, ASH fails to protect its patients from avoidable harm. The harm that ASH patients experience as a result of these deficiencies is multifaceted, including physical and psychological abuse; physical injury; excessive and inappropriate use of physical and chemical restraints; inadequate, ineffective and counterproductive treatment; and excessively long hospitalizations.
VIII. MINIMUM REMEDIAL MEASURES
The minimum remedial measures required to protect the constitutional and federal statutory rights of the patients at ASH are outlined below and more extensively detailed in the “Enhancement Plan,” negotiated between the State and the Department:
A. Integrated Treatment Planning ASH should provide its patients with integrated treatment planning consistent with generally accepted professional standards of care.
B. Assessments ASH should ensure that its patients receive accurate, complete, and timely assessments, consistent with generally accepted professional

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standards of care, and that these assessments drive treatment interventions.
C. Psychiatry Services ASH should provide adequate psychiatric supports and services for the treatment of the severely and persistently mentally ill population it serves in accordance with generally accepted professional standards of care.
D. Psychology Services ASH should provide psychological supports and services adequate to treat the functional and behavioral needs of its patients according to generally accepted professional standards of care.
E. Restraints, Seclusion, and PRN Medications ASH should ensure that restraints, seclusion, and PRN medications are used in accordance with generally accepted professional standards of care.
F. Pharmacy ASH’s patients should receive pharmacy services consistent with generally accepted professional standards of care.
G. General Medical Care ASH should provide adequate preventative, routine, specialized, and emergency medical services, occupational, physical, and speech therapy, and dental and dietary services, on a timely basis, in accordance with generally accepted professional standards of care.
H. Nursing Care ASH should provide nursing services to its patients consistent with generally accepted professional standards of care. Such services should result in ASH’s patients receiving individualized services, supports, and therapeutic interventions, consistent with their treatment plans.
I. Documentation of Patient Progress ASH should ensure that patient records accurately reflect patient progress, consistent with generally accepted professional standards of care.

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J. Discharge Planning and Placement in the Most Integrated Setting Within the limitations of court-imposed confinement, the State should pursue actively the appropriate discharge of patients and ensure that they are provided services in the most integrated, appropriate setting that is consistent with the patients’ needs.
K. Protection From Harm ASH should provide its patients with a safe and humane environment and protect them from harm.
*****
We hope to continue working with the State in an amicable and cooperative fashion to resolve our outstanding concerns with regard to ASH. Provided that our cooperative relationship continues, we will forward our expert consultants’ reports under separate cover. Although their reports are their work – and do not necessarily represent the official conclusions of the Department of Justice - their observations, analyses and recommendations provide further elaboration of the relevant concerns, and offer practical assistance in addressing them. We hope that you will give this information careful consideration and that it will assist in your efforts at prompt remediation.
We are obligated to advise you that, in the unexpected event that we are unable to reach a resolution regarding our concerns, within 49 days after your receipt of this letter, the Attorney General is authorized to initiate a lawsuit pursuant to CRIPA, to correct deficiencies of the kind identified in this letter. See 42 U.S.C. § 1997b(a)(1). We would very much prefer, however, to resolve this matter by working cooperatively with you. Accordingly, we will soon contact State officials to discuss this matter in further detail.

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If you have any questions regarding this letter, please call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-0195.
Sincerely,
/s/ Wan J. Kim
Wan J. Kim Assistant Attorney General
cc: The Honorable Bill Lockyer Attorney General State of California
Stephen W. Mayberg, Ph.D. Director California Department of Mental Health
Melvin E. Hunter, Esq. Executive Director Atascadero State Hospital
Debra W. Yang, Esq. United States Attorney Central District of California