U.S. v. Illinois

""

MR IL 002-005

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
v.
STATE OF ILLINOIS, JAMES R. EDGAR, Governor of the State of Illinois; JESS MCDONALD, Director, Illinois Department of Mental Health and Developmental Disabilities; KATHLEEN A. MUNIZ, Superintendent, W.A. Howe Developmental Center,

) ) Civil Action No. 92-C-0694
) ) Honorable Paul E. Plunkett ) Judge Presiding

Defendants.

CONSENT DECREE Introduction
1. This case was instituted by the United States on January 28, 1992, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997 et seq.
2. This Court has jurisdiction over this action pursuant to 28 U.S.C. Section 1345.
3. Venue is appropriate pursuant to 28 U.S.C. Section 1391(b).
4. The United States is authorized to institute this civil action by 42 U.S.C. Section 1997a and has met all the prerequisites for the institution of this civil action prescribed by the statute.
5. The defendants are the State of Illinois; the Honorable James R. Edgar, Governor of the State of Illinois; Jess McDonald, Director, Illinois Department of Mental Health and Developmental

Disabilities ("DMHDD"); and Kathleen A. Muniz, Superintendent, W.A. Howe Developmental Center ("Howe"); who are sued in their respective official capacities.
6. The individual defendants who are officers of the Executive Branch of the State of Illinois have authority and responsibility for the operation of Howe.
7. On April 18, 1986, the Attorney General of the United States, through the Assistant Attorney General, Civil Rights Division, notified the Governor of Illinois, the Illinois Attorney General, and the Director of DMHDD of his intent to investigate allegations of unconstitutional conditions at Howe pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997.
8. Following a thorough investigation, on July 31, 1989, the Attorney General of the United States, by and through the Assistant Attorney General, Civil Rights Division, notified the Governor of Illinois, the Illinois Attorney General, the Director of DMHDD, and the Superintendent of Howe that he had determined that persons residing in or confined at Howe were being subjected to conditions that deprived them of rights, privileges and immunities secured by the Constitution of the United States.
9. The parties agree that the care, conditions of confinement and training of Howe residents implicate rights of these residents that are secured or protected by the Constitution of the United States. The parties entering into this Consent Decree recognize these constitutional interests and, for the
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purpose of avoiding protracted and adversarial litigation, agree to the provisions set forth herein.
10. In entering into this Consent Decree, Defendants do not admit any violation of law and this Consent Decree may not be used as evidence of liability in any other legal proceeding. The terms of this Consent Decree are not applicable to any other center for developmentally disabled citizens operated by the State of Illinois.
11. Any violation of provisions of this Consent Decree does not create a private right of action. This Consent Decree is enforceable only by the parties.
12. The provisions of this Consent Decree are a lawful, fair and reasonable resolution of this case.
13. This Consent Decree shall be applicable to and binding upon all of the parties, and their officers, agents, employees, assigns and successors.
I. DEFINITIONS As used in this Consent Decree, the following definitions shall apply: A. "Behavior Modifying Medications": Drugs which are prescribed or administered for the purpose of modifying behavior. Included are the major and minor tranquilizers and antidepressants when prescribed or administered for the purpose of modifying behavior. Excluded are drugs that may have behavior modifying effects such as anti-convulsant medications, unless they
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are prescribed or administered for the purpose of modifying behavior.
B. "Bodily Restraint": Any physical action or mechanical device used to restrict the movement of a resident or the movement or normal function of any portion of the resident's body, excluding those devices designed by a qualified professional and approved by a physician to be used only to provide support for the achievement of functional body position or balance and devices used for specific medical and surgical (as distinguished from behavioral) treatment.
C. "Direct Care Worker": Staff immediately responsible for implementing a resident's training program and providing care to residents.
D. "Functional Analysis": An assessment of a resident's behavior which includes, at a minimum: (1) a description of the behavior(s); (2) an assessment of behavioral intensity, frequency, topography and duration; (3) as determined to be necessary by professional judgment, an evaluation of the antecedents, function and consequences of the behavior(s); and (4) as determined to be necessary by professional judgment, an assessment of any medical conditions related to the behavior(s).
E. "Physician": A medical doctor lawfully entitled to practice medicine in Illinois.
F. "Professional Judgment": A decision by a qualified professional that comports with accepted professional opinion, practice or standards.
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G. "Psychiatrist": A physician who either is certified by or is eligible for certification by the American Board of Psychiatry and Neurology or who has successfully completed an approved residency program in psychiatry and upon completion of post-residency requirements will become eligible for examination for such certification.
H. "Psychologist": A person who has attained at least a master's degree in the field of psychology.
I. "Qualified Professional": A person who is employed by or under contract with Defendants, and who is competent, whether by education, training, or experience, to make the particular decision at issue,.
J. "Resident": A person residing at Howe who is receiving services from DMHDD.
K. "Time Out": A behavior management technique, including quiet training as currently defined by Howe policy and procedure, which removes a resident from a situation for a period of time for the purpose of modifying a specific inappropriate behavior.
L. "Training Program": A program or schedule of steps and activities, including behavior management and the teaching of self-care and communication skills, determined by qualified professionals consistent with professional judgment to be necessary to protect a resident from unreasonable risks to personal safety, to facilitate his or her ability to function fro-? from undue bodily restraint and from unreasonable use of behavior modifying medications, and/or to prevent, where possible, the
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deterioration/regression of a resident's self-care and communication skills.
II. REMEDIAL MEASURES A. Assessment. Evaluation and Training
Defendants shall provide each resident a training program designed by qualified professionals to reduce or eliminate unreasonable risks to personal safety or unreasonable use of bodily restraints to all residents who qualified professionals determine need such programs to reduce or eliminate such risks. In order to fulfill this requirement, Defendants shall:
1. Within 90 days from the entry of this Consent Decree, have qualified professionals conduct appropriate evaluations and assessments, including functional analyses, of all residents exhibiting self-injurious, aggressive, and/or pica behaviors, who have received no such evaluation within 180 days prior to the entry of this Consent Decree, to determine their individual needs for training to reduce or eliminate those behaviors.
2. Within 12 0 days from the entry of this Consent Decree, have qualified professionals conduct appropriate evaluations and assessments, including functional analyses, of all residents exhibiting other maladaptive behaviors, who have received no such evaluation within 180 days prior to the entry of this Consent Decree, to determine their individual needs for training to reduce or eliminate those behaviors.
3. With respect to: (a) all residents covered by Subparagraphs A.I and A.2 above; and (b) all residents not covered
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by those subparagraphs for whom a training program has not been
developed or reviewed within one year prior to the entry of this
Consent Decree, within 180 days from the entry of this Consent
Decree, and at least yearly thereafter, develop and implement for
each resident a professionally based training program that
provides for sufficient hours of training to enable full
implementation of the training program. Each training program
shall contain, at a minimum:
(a) Training objectives developed by an appropriately constituted interdisciplinary team ("IDT") and based upon assessments and evaluations required by Subparagraphs A.I and A.2 above. All such training objectives shall comport with currently accepted professional standards;
(b) Specific instructional methods to be utilized by those with responsibility for implementing the training program; such methods shall emphasize positive approaches and positive behavioral interventions which promote functional skill development and socially acceptable behaviors in the resident;
(c) A specific training schedule to be followed; the number of hours of training to be provided shall be sufficient to permit the resident to have a reasonable opportunity to reach the identified behavioral training objectives; and no schedule shall provide for fewer than 40 hours of structured training or activities each week;
(d) Data collection procedures sufficient to permit a qualified professional to evaluate the effectiveness of the training program or any part of the training program and to monitor the implementation of the training program and enable its modification, as necessary; and,
(e) Identification of persons responsible for the consistent implementation of the program.
4. Within 180 days from the entry of this Consent Decree,
ensure that all staff directly responsible for implementation of a
resident's training program receive regular, periodic training on
the elements of the training program of each resident under their
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care, including target behaviors and appropriate responses thereto, and thereafter have such staff implement the training program.
5. Within 30 days from the entry of this Consent Decree, implement procedures to assess and evaluate each resident not less than once annually, and evaluate the data reflecting the conduct of each behavior program not less than quarterly, in order to ascertain the adequacy and effectiveness of the behavior programs.
6. Within 30 days from the entry of this Consent Decree, implement procedures to collect and maintain such data as a qualified professional would deem necessary to render a professional judgment on the effectiveness of each resident's training program.
7. Within 60 days from the date of entry of this Consent Decree, implement systems for: (1) observing each resident's behavior to determine the effectiveness of the resident's training program and recording of those observations and, (2) verifying that the recorded data are reliable. Within 30 days of verification that recorded data are reliable, have qualified professionals review and appropriately modify any resident's training program where he or she determines that the resident has exhibited no measurable progress for a 90-day period of time.
8. Within 60 days from the entry of this Consent Decree, develop and initiate a system to regularly train all direct care workers in collecting and maintaining the data necessary to be
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collected and maintained in order to assess the effectiveness of any behavior program.
9. The Behavior Intervention Committee ("BIC"), including the primary care physician, shall every four months during the first year from the entry of this Consent Decree and semiannually thereafter review those aspects of each resident's training program relating to the resident's maladaptive behavior(s) and relevant progress notes for each resident: (a) who exhibits self-injurious behavior or causes injury to self or others through aggressive behavior and whose training program includes bodily restraint or behavior modifying medication, or (b) for whom bodily restraint procedures are utilized three or more times within any six-month period, or who receives behavior modifying medication. In addition, where a resident suffers a serious or significant self-inflicted injury or inflicts a serious or significant injury on another resident, the psychologist assigned to the resident shall conduct an immediate review of such behavior(s) and report, as appropriate, the results of such review to the BIC. In the case of a resident whose training program has been reviewed within the 120 days prior to the entry of this Consent Decree, his or her training program shall be reviewed within four months of their last review. In all reviews conducted by the BIC pursuant to this paragraph, the BIC shall ascertain whether (1) there is sufficient behavioral data recorded, (2) such data are reliable, and (3) the continuation of the current training or treatment program is justified, or the program,
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including medication, should be modified. Where inadequate or unreliable data are found, or the continuation of the training or treatment program is otherwise not justified, the matter shall be referred to the appropriate IDT which shall, within 30 days from the referral, modify the existing training program in accordance with the judgment of qualified professionals, including the primary care physician, psychologist and psychiatrist, as appropriate.
10. With regard to the review required under Subparagraph A.9 above, where a training program includes the use of a behavior modifying medication, the BIC shall include a psychiatrist who shall determine and specifically advise the BIC whether the proposed use of the medication is supported by a diagnosis of mental illness (or other medical reason), whether the diagnosis is justified by the resident's history as set forth in his/her written record, and whether the medication and dosage are necessary and appropriate. In making these determinations, the psychiatrist shall have observed the resident, examined relevant portions of the resident's medical and behavioral record, and consulted with the resident's primary care physician and psychologist.
11. Within 90 days from the entry of this Consent Decree, Defendants shall: (a) assess and evaluate each deaf resident, or hearing impaired resident with a profound bilateral hearing impairment for whom amplification is not effective, to determine his/her knowledge of sign language or capacity to learn sign
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language, unless such an evaluation has been completed within the 180 days prior to the entry of this Consent Decree; (b) have at least one staff person capable of communicating in sign language on duty at Howe on a 24-hour basis; and, (c) for those residents determined to be capable of learning sign language and who cannot otherwise communicate with staff, provide appropriate training to develop their sign language communication skills. B. Bodily Restraint and Time Out
Defendants shall ensure that bodily restraints, including emergency restraints and time out, are administered only pursuant to the judgment of a qualified professional and that they are not used as punishment., in lieu of a training program, or for the convenience of staff. In order to fulfill this requirement, Defendants shall:
1. Within 180 days from the entry of this Consent Decree, protect residents from unreasonable risks to their personal safety from both the conduct of staff and other residents, and from unreasonable use of bodily restraints.
2. Within 60 days from the entry of this Consent Decree, initiate and implement a system which requires that every behavior program that utilizes restraint or time out specifies:
(a) the behavior that initiates the use of the restraint or time out;
(b) behaviors to be taught to the resident to replace the behavior that initiates the use of the restraint or time out
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or other program to reduce or eliminate the use of the bodily restraint or time out;
(c) the restriction, i.e.. restraint or time out, authorized, including the restriction's duration;
(d) the professional responsible for the program and the direct care workers authorized to implement it; and,
(e) the frequency with which behavioral data is to be recorded by direct care workers.
3. Within 60 days from the entry of this Consent Decree, Defendants shall justify the use of any restrictive procedure by written evidence in the resident's record that other, less restrictive techniques have been systematically tried as part of a professionally designed training program and have been demonstrated to be ineffective.
4. Within 90 days from the entry of this Consent Decree, appropriate psychology staff shall conduct a monthly review of each use of bodily restraint and each use of time out if either a single use of time out equals or exceeds 15 minutes or the cumulative use of time out during a day equals or exceeds one hour, occurring in the previous 30 days, to ascertain whether each use was or was not pursuant to the exercise of professional judgment or the behavior program of the resident subjected to the use. The results of these monthly reviews, including the conclusions of the psychology staff, will be promptly reported to a doctoral level psychologist who will review these results and present them to the BIC, which will determine whether appropriate
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action was taken by the IDT and recommend any further action to be taken by the IDT, within 3 0 days of the completion of the monthly review. These recommendations shall be transmitted to the appropriate IDT which shall be responsible for ensuring that the action recommended by the BIC is taken within 30 days. C. Medical Care
1. Within 180 days from the entry of this Consent Decree, Defendants shall provide and continue to provide Howe residents with adequate medical care, including adequate medical specialty services.
2. Within 60 days from the entry of this Consent Decree, primary care physicians shall be responsible for and oversee the provision of coordinated health care for the residents for whom they are responsible. Primary care physicians shall, in a timely manner: (a) conduct comprehensive evaluations of all residents for whom they are responsible; (b) determine what specialized medical services are required for the residents for whom they are responsible and ensure that such services are timely obtained; (c) review and respond to all recommendations of outside medical specialists and laboratory findings, documenting what action has been taken and the reasons therefor; and, (d) communicate directly with contract and other medical providers.
3. Within 60 days from the entry of this Consent Decree, at least one primary care physician shall be on duty on the grounds at Howe every day during the hours of 4:00 p.m. through 8:00 a.m. the following morning.
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4. Within 30 days from the entry of this Consent Decree, a registered nurse or physician shall monitor infection control. The registered nurse or physician shall: (a) review all culture reports and physician orders for antibiotics; (b) review and assure the quality of management plans for infections occurring in individual residents or groups of residents; and, (c) develop comprehensive training materials and, thereafter, train the medical and direct care workers on proper infection management procedures.
5. Within 90 days from the entry of this Consent Decree, Defendants shall provide all staff physicians, registered nurses ("RNs"), licensed practical nurses ("LPNs"), Supervisors, Administrator I's, and Technician Ill's who regularly provide services on-grounds at Howe, with systematic, periodic training in emergency procedures, including the proper way to administer cardio-pulmonary resuscitation. Thereafter, Defendants shall evaluate, through the use of drills, the competence of all participating staff to perform emergency medical procedures that they are required by law, policy, or professional standards to know, document such evaluations and provide such additional training as the evaluations indicate are necessary to ensure staff competence in emergency procedures.
6. Within 3 0 days from the entry of this Consent Decree, Defendants shall make medication and equipment to be used in case of emergency readily available to qualified staff in each residential unit.
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7. Within 30 days from the entry of this Consent Decree, Defendants shall implement a protocol requiring Howe staff to obtain from any acute care hospital a timely, comprehensive record Of the diagnosis, course of treatment while at the hospital, and prescribed treatment for each Howe resident who may be transferred and treated at such hospital.
8. Within 120 days from the entry of this Consent Decree, each resident with orthopedic or neuromuscular disabilities shall be evaluated by a qualified physician to determine whether physical therapy or services should be initiated, or whether an existing plan should be modified, to prevent contractures, physical degeneration, inappropriate body growth and/or deformity. This provision shall not apply to any resident who has received such an evaluation within 180 days prior to the entry of this Consent Decree. Any resident identified as needing additional services shall promptly be referred to a registered physical therapist ("RPT"). Within 3 0 days of such referral, the RPT shall assess and evaluate the resident and develop an individualized physical therapy or positioning plan, and thereafter, review and modify any such plan as required by professional judgment. If there is a decision not to provide therapy to a particular resident, the basis for that decision shall be documented. Physical therapy services will be implemented promptly after any physical therapy or positioning plan is developed and will be supervised by qualified physical therapy staff.
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9. Within 90 days from the entry of this Consent Decree, Defendants shall have a registered speech or occupational therapist assess each resident who has neuromuscular dysfunction, obstructive lesions, or other physical impairment, or psychological factors or a combination of two or more of these that interfere with eating, to determine whether to initiate a feeding program or protocol for the resident or to modify an existing one. Within 30 days of the assessment, the registered speech or occupational therapist shall develop a written feeding program for each of those residents for whom such a need is identified, and thereafter review and modify the program as required by professional judgment. Each such program shall be implemented by qualified staff not later than 30 days thereafter.
10. Within 60 days from the entry of this Consent Decree, Defendants shall initiate regular, inservice training for direct care workers in how to position physically handicapped residents in wheelchairs and other devices, transfer them from one place or position to another, and implement such aspects of residents' physical therapy programs that such staff are otherwise qualified and expected to do. Such training shall be conducted by RPTs, Rehabilitation Nurses or physiatrists.
11. Within 60 days from the entry of this Consent Decree, Defendants shall provide regular periodic inservice training for direct care workers on proper methods of feeding residents who have feeding programs. Such training must be conducted by
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certified speech pathologists, occupational therapists or other qualified professionals.
12. Within 90 days from the entry of this Consent Decree, unless an assessment has been previously completed on or after November 1, 1991, Defendants shall have an orthopedist(s) or physiatrist(s) assess each resident with physical disabilities to determine whether he/she needs medical, surgical, rehabilitative, or therapeutic services, including therapeutic equipment, to prevent contracture, physical degeneration, or inappropriate body growth and deformity and record the results of these examinations or treatment in the resident's medical record. Thereafter, orthopedist(s) and physiatrist(s) shall: (a) timely evaluate and diagnose Howe residents who are referred to them by primary care physicians; (b) reexamine and treat, with a frequency determined by their professional judgment, residents with physical handicaps, especially chronic physical handicaps such as contractures and scoliosis; (c) confer with the referring primary care physician on a regular basis; and, (d) promptly record progress notes in the residents' medical records explaining fully the results of the examination, the diagnosis, the recommended course of treatment or recommendation not to treat.
13. Within 120 days from the entry of this Consent Decree, neurologist(s) shall examine each Howe resident receiving anticonvulsant medication who has not been examined by a neurologist in the 180 days prior to the entry of this Consent Decree to determine whether the medication treatment is justified.
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Thereafter, neurologists shall evaluate and diagnose Howe residents who are referred to them by primary care physicians and: (a) examine, not less than once annually, and recommend treatment for residents receiving two or more anticonvulsant medications or who have had five or more seizures in the preceding 12-month period; (b) examine and recommend for treatment, with a frequency determined by their medical judgment, other residents receiving medication to control seizures; and, (c) recommend treatment for all residents who are diagnosed as having other neurologic disorders. In performing these duties, the neurologist(s) shall confer with the referring primary care physician and, as appropriate, with the assigned psychiatrist and promptly record notes in the resident's medical records that reflect the neurological diagnosis, recommended course of treatment, and results.
14. Upon the entry of this Consent Decree, Defendants shall, periodically but not less than once annually, obtain the services of expert medical specialists who shall train Howe primary care physicians and nursing staff in the diagnosis and treatment of medical problems typically associated with persons with developmental disabilities, including: (a) neurologic disorders, including seizures and specifically the prescription of medication to control seizures; (b) orthopedic and physiatric conditions; (c) gastroenterologic disorders and proper nutrition; and, (d) behavioral and psychiatric disorders, including the psychopharmacologic treatment of such disorders, and side effects
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of behavior modifying medication. Defendants shall document that such training occurred, including maintaining a list of those in attendance as well as clinical areas covered.
15. Within 90 days from the entry of this Consent Decree, Defendants shall initiate regular, periodic training for all direct care workers on: (a) how to recognize seizures and the action to take in the event a resident has a seizure in their presence, and (b) the common side-effects of behavior modifying medication in use at the facility. D. Medication
1. Within 3 0 days from the entry of this Consent Decree, Defendants shall ensure that prescription medications are prescribed for and administered to residents pursuant to the exercise of judgment by a qualified professional and that they shall not be used as punishment, in lieu of a training program, or for the convenience of staff. In order to fulfill this requirement, Defendants shall:
(a) Within 60 days from the entry of this Consent Decree, initiate and implement a system which requires that every behavior program that utilizes behavior modifying medication specifies: (1) the behavior and/or symptom that requires initiation or use of the behavior modifying medication; and (2) the behaviors to be taught to the resident to replace the behavior that initiates the use of the behavior modifying medication or other program to reduce or eliminate the use of the behavior modifying medication.
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(b) Within 60 days from the entry of this Consent Decree, justify the use of the behavior modifying medication by written evidence in the resident's record that other, less restrictive techniques have been systematically tried as part of a training program and have been demonstrated to be ineffective.
2. Within 30 days from the entry of this Consent Decree, Defendants shall: (a) administer prescription medication only upon order of a physician and behavior modifying medication only upon order of a physician after consultation with a psychiatrist, except in case of an emergency use of behavior modifying medication, in which case consultation must be had within 24 hours of the order being written; (b) establish procedures to review the drug regimen of each resident every 30 days; (c) require that no prescription is valid for more than 30 days; (d) have a physician note in the record of each resident receiving behavior modifying medication the mental illness diagnosis or other medical reason for which the medication is prescribed and the justification for the dosage level; (e) evaluate each resident receiving behavior modifying medication for drug induced side effects, including tardive dyskinesia and neuroleptic malignant syndrome, at professionally determined intervals; (f) permit to administer medication only those staff qualified under State law to do so; (g) report and record in each resident's record and separately to appropriate professional staff any medication error or adverse drug reaction; (h) ensure that behavior modifying medications are prescribed or discontinued pursuant to professional judgment; (i,
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ensure that all residents with a seizure disorder are prescribed the fewest number of different medications appropriate for effective seizure management, consistent with professional judgment.
3. Within 30 days from the entry of this Consent Decree, a psychiatrist shall, upon request of the IDT or at the psychiatrist's own request, serve on the IDT of any resident whose individual plan of service includes the use of behavior modifying medication or for whom such has been recommended. E. Recordkeeping
1. Within 180 days from the entry of this Consent Decree, Defendants shall establish and maintain a record for each resident that shall contain current information with respect to his/her care, medical treatment, and training, and shall be organized so as to enable those using it to render professional judgments in providing care, medical treatment and training to the resident, including the incorporation into each resident's record, in a prominent and visible location, of a document identifying the resident's principal treatment and training issues in all areas. The latter document shall be updated every 180 days to reflect any changes in these areas. Further, Defendants shall require staff to utilize such records in making care, medical treatment and training decisions.
2. Within 60 days from the entry of this Consent Decree, entries made by primary care physicians, nurses, and medical specialists in resident records shall be timely and accurate, and
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describe the resident's physical condition and course of treatment.
3. Within 180 days from the entry of this Consent Decree, Defendants shall develop and, thereafter, implement and document quality assurance procedures that include a systematic review of:
(a) Samples of residents' behavioral data required to be recorded by professional or direct care workers to ascertain whether there is sufficient data recorded and to verify that such data are reliable;
(b) Samples of tests and assessments given to residents, including the Motivational Assessment Scale, to ascertain whether they have been conducted in accordance with professional standards, and that the results are reliable; and,
(c) Samples of medical records to ascertain whether entries made therein are, or are not, timely, relevant and accurate.
4. Where, as a result of any quality assurance activity, inadequate, untimely or unreliable data or information are found, Defendants shall refer the matter to Howe professional staff for appropriate and prompt remedial action which may include arranging for specialized staff training in data collection, and increasing supervision and monitoring of staff as they collect such data. In any such case, new data or information, verified to be reliable, shall be collected and recorded within 30 days.
III. STAFFING A. Within 225 days from the entry of this Consent Decree, Defendants shall assure that a sufficient number of physicians,
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psychologists, registered physical therapists, and direct care

workers are employed to assure attainment and consistent

maintenance of the ratios of such staff to residents at Howe

delineated in Subparagraphs 1 and 4-6 below. By no later than

July 1, 1994, Defendants shall assure that a sufficient number of

registered and licensed practical nurses are employed to assure

attainment and consistent maintenance of the ratios of such staff

to residents at Howe delineated in Subparagraphs 2 and 3.

1. Physicians

1:100

2. Registered Nurses

1:25

3. All nurses (RNs and LPNs) on duty involved in resident care:

Weekdays

Day Shift Evening Shift Night Shift

1: 30 1: 30 1: 60

Weekends and Holidays:

Day Shift Evening Shift Night Shift

1: 45 1: 45 1: 60

4. Psychologists

1:40

5. Direct Care Workers, on duty:

Day shift
Evening Shift
Night Shift
6. Physical therapy staff (e.g.. RPTs; Certified Physical Therapy Assistants; Physical Therapy Aides; Rehabilitation Nurses.)

1:5
1:5
i:io
1:35 (Residents with physical disabilities, but not less than one-third of physical therapy staff shall be RPTs.)

B. Staff whose primary responsibilities are administrative

and who do not provide direct service to residents on a regular,

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routine basis and staff who are assigned to perform one-to-one monitoring of a resident shall not be counted in computing the ratios required by Section III, Paragraph A, above.
C. Defendants currently employ and shall continue to employ at least one psychologist possessing a Ph.D. in psychology and with demonstrated experience in the field of behavioral psychology, licensed or certified by the State, who shall have primary responsibility for supervising, monitoring, and coordinating all psychological services at Howe.
D. Within 90 days from the entry of this Consent Decree, Defendants shall employ or contract for the equivalent of at least one psychiatrist to provide full-time services at Howe. Should Defendants choose to meet this requirement by providing more than one psychiatrist serving part-time, then each psychiatrist shall be assigned an identifiable group of specific residents as his/her patients.
E. Within 90 days from the entry of this Consent Decree, Defendants shall have a physiatrist providing physiatric services to Howe residents at least eight hours per week.
F. Within 90 days from the entry of this Consent Decree, Defendants shall have an orthopedist providing orthopedic services to Howe residents at least 16 hours per month.
G. Within 180 days from the entry of this Consent Decree, direct care workers shall not routinely perform such support functions as housekeeping, laundry, maintenance and meal preparation, where the performance of said functions will preclude
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or interfere with the direct care workers' primary responsibilities to supervise and care for recipients. This shall not preclude direct care workers from training residents in these functions pursuant to a written training program developed in accordance with established procedures. IV. CONSTRUCTION. COMPLIANCE MONITORING AND USE OF JOINT EXPERTS
In construing, implementing and monitoring Defendants' compliance with the terms and provisions of this Consent Decree, the parties agree to the following:
A. All staff training required by this Consent Decree shall be conducted by individuals with demonstrated expertise in the particular field, documented both as to time, duration, attendance and results, and, with the exception of training required by Section II, Subparagraph C.14, be task-analyzed and competencybased.
B. (1) The issues of whether professional judgment has been exercised and the adequacy of implementation of the provisions of this Consent Decree shall be monitored by a panel of experts, one each in the fields of psychology, medicine and physical management, all of whom have been jointly selected and agreed upon by the parties (hereafter the "Joint Experts"). The experts that have been jointly selected and agreed upon by the parties are as follows:
Psychology: Johnny L. Matson, Ph.D. Medicine: Robert B. Kugel, M.D. Physical Management: Karen M. Green-McGowan
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(2) In the event the United States determines that compliance with the provisions of the Consent Decree regarding medication practices or use of behavior modifying medications at Howe require monitoring or evaluation by a psychiatrist, the parties shall jointly select and agree upon an additional expert in the field of psychiatry, who shall inspect and evaluate compliance in this area under the same terms and conditions applicable to the Joint Experts under this Consent Decree.
C. (1) As part of the Joint Experts' monitoring function, each expert shall evaluate conditions at Howe to determine whether Defendants are implementing those provisions of the Consent Decree relating to the expert's area of expertise that require the exercise of professional judgment, and to determine the adequacy of the services relating to the expert's area of expertise that are being provided by Defendants and their contractors and consultants pursuant to this Consent Decree.
(2) Prior to the first evaluation conducted by the Joint Experts, the parties shall jointly designate the provisions of the Consent Decree that each expert will be asked to monitor and evaluate. This evaluation shall include at a minimum: (a) on-site inspection of Howe; (b) interviews with Howe staff, contractors and residents; (c) detailed review by each expert of no less than 30 resident records, 10 to be chosen by the United States, 10 to be chosen by Defendants and 10 to be chosen by the Joint Expert; and, (d) review of facility, documents as determined by each Joint Expert to be relevant to his/her evaluation under
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this Consent Decree. The parties shall be permitted to have counsel or other representatives present at any inspection conducted at Howe by the Joint Experts.
(3) The first such evaluation by the Joint Experts shall occur between 180-240 days after the entry of this Consent Decree by the Court, and subsequent evaluations shall take place thereafter as determined by each Joint Expert, provided that each expert shall inspect the facility no less than once annually and no more than twice annually. The on-site inspections shall be no greater than three days in duration (excluding travel time) and shall be arranged on dates and at times mutually agreeable to the parties and the Joint Experts.
(4) Notwithstanding the provisions of Section IV, Subparagraph C.3 above, in the event the United States believes that emergency conditions exist at Howe related to compliance with a provision or requirement of this Consent Decree that place residents at risk of serious and imminent harm, the United states may request from Defendants access to the facility to conduct an inspection. Defendants shall respond to this request within three days. If Defendants deny such access, the United States shall have the right to petition the Court for access. If granted access either by Defendants or the Court, the United States shall, within 30 days of the grant of access, conduct an inspection of Howe accompanied by any expert(s) retained by the United States, or upon the parties' agreement, the appropriate Joint Expert(s). All costs associated with the use of experts other than the Joint
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Experts for such inspection(s) shall be borne by the United States. Such inspection, which shall be limited to evaluation of the conditions giving rise to the emergency, may include on-site inspection of Howe, interviews with Howe staff, contractors and residents, and detailed review of resident records and facility documents.
D. (1) Each Joint Expert shall make recommendations as to actions or measures that, in his/her opinion, need to be taken to achieve compliance. In addition, the Joint Experts shall, if they are able, provide oral findings and/or recommendations to the parties on the last day of each on-site inspection in an exit conference or debriefing session.
(2) Each Joint Expert shall also present his/her evaluation, . findings and recommendations in a written report, which shall be provided to the parties. In these reports, each Joint Expert shall make specific findings with respect to each provision of the Consent Decree for which he/she is responsible, as determined by the parties pursuant to Section IV, Subparagraph C.2 above and the factual bases for the findings. Each Joint Expert shall provide his/her report within 45 days of the completion of each on-site tour.
E. Prior to any monitoring tour, each Joint Expert shall be permitted to request copies of Howe documents and records he/she determines to be relevant to the expert's review. Defendants shall provide the documents to the requesting Joint Expert and the United States within 30 days of the request, which shall be in
- 28 -

writing. The parties may recommend to each Joint Expert documents they deem relevant to the Joint Expert's review.
F. In the event that any of the Joint Experts identified in Section IV, Paragraph B above is unable to serve or continue serving as a Joint Expert, or in the event the parties for any reason jointly agree to discontinue the use of any Joint Expert, the parties shall meet or otherwise confer within 15 days of being notified of the incapacity or the decision to discontinue use of the Joint Expert to agree upon an alternate Joint Expert. The parties shall jointly select an alternate expert, except that if the parties are unable to agree within 15 days of their first meeting or conference as to this selection, they shall immediately and jointly petition the Court to make the selection. In this petition, each party will be permitted to propose two alternate Joint Experts in the field of expertise. The procedure described in this paragraph shall apply to the selection of all successive Joint Experts.
G. Defendants shall bear the costs of the Joint Experts' monitoring fees, including report-related fees and expenses, and travel expenses arising out of their responsibilities under this Consent Decree, as well as the same fees and expenses for any psychiatric expert retained pursuant to Section IV, Subparagraph B.2 and the costs of document and record copying and delivery arising out of the monitoring provisions of this Consent Decree. The parties shall otherwise bear their own costs, including attorneys' fees.
- 29 -

H. With respect to communication between the Joint Experts and the parties regarding Howe: (1) the parties shall notify each other in advance of any oral communication with any Joint Expert, including the substance of the anticipated communication, and afford the other party a reasonable opportunity to participate in any such conversation,* and (2) the parties shall provide each other with copies of any written communication with any Joint Expert. V. ENFORCEMENT AND TERMINATION OF DECREE
A. The parties contemplate that Defendants shall have fully and faithfully implemented all the provisions of this Consent Decree within two years of its entry by the Court.
B. The Court shall retain jurisdiction of this action for all purposes under this Consent Decree until Defendants shall have fully and faithfully implemented all provisions of the Consent Decree and until this action is dismissed.
C. On or after the date on which Defendants shall have fully and faithfully implemented all provisions of this Consent Decree, Defendants or the parties jointly may move that the case be closed and dismissed with prejudice on grounds that Defendants have fully and faithfully implemented and maintained all provisions of this Consent Decree. Such motion shall attach the most recent findings of each of the Joint Experts and any psychiatric expert retained pursuant to Section IV, Subparagraph B.2.
D. In the event of any filing of a motion to terminate this Consent Decree, the United States shall, upon its request, be
- 30 -

permitted access for reasonable periods of time to the facilities, records, residents and employees of Howe within 45 days after the filing of such motion, for the purpose of ascertaining compliance with the Consent Decree. In conducting this review, the United States may retain and be accompanied on-site by experts of its choosing, with costs of such experts to be borne by the United States.
E. (1) Provided that no evaluation has been conducted by the Joint Experts within 90 days prior to the filing of Defendants' motion, the Joint Experts shall conduct an evaluation within 45 days after the filing of motion, on the same terms and conditions as followed during their monitoring tours. As before, each Joint Expert shall produce a written report containing his/her findings relating to the provisions of the Consent Decree for which he/she has monitoring responsibility, as determined by the parties pursuant to Section IV, Subparagraph C.2, within 45 days from the last day of his/her inspection of Howe. In the event that an evaluation was conducted by the Joint Experts within 90 days prior to the filing of the motion, no subsequent evaluation shall be required.
(2) In any determination regarding the appropriateness of termination of this Consent Decree, the findings of the Joint Experts and any psychiatric expert retained pursuant to Section IV, Subparagraph B.2 shall be accorded a presumption of correctness, which may only be rebutted by a clear and convincing showing to the contrary. The parties reserve the right, however,
- 31 -

to request a hearing before the Court in order to present evidence to rebut the presumption of correctness accorded the findings of the Joint Experts.
(3) In the event the United States disagrees as to Defendants' compliance at the time that a motion to terminate is filed, the parties shall jointly move the Court for a hearing on the motion to terminate, at which time the United States shall be permitted the opportunity to rebut the presumption of correctness accorded to the findings of the Joint Experts and any psychiatric expert retained pursuant to Section IV, Subparagraph B.2 under this Consent Decree. At such a hearing, the parties shall be entitled to present any evidence, in addition to the testimony and reports of the Joint Experts and any jointly selected psychiatric expert, that was gathered, developed or obtained independent of the monitoring process provided for in this Consent Decree, including the testimony, affidavits or reports of experts other than the Joint Experts and any jointly selected psychiatric expert. With respect to the Joint Experts' and any jointly selected psychiatric expert's findings, only their written reports or their testimony at a hearing before the Court shall be accepted as evidence as to their findings or opinions.
F. Dismissal shall be granted if Defendants have implemented each of the provisions of the Consent Decree.
G. The United States may seek enforcement of this Consent Decree or any other appropriate remedy from the Court, at any time, in the event that it determines that Defendants have failed
- 32 -

to comply with any provision of this Consent Decree. As similarly

provided in Section V, Subparagraphs E.2 and E.3 above, in any

hearing regarding any such request by the United States, the Joint

Experts' and any jointly selected psychiatric expert's findings

shall be accorded a presumption of correctness and the parties

shall be entitled to present evidence to rebut this presumption,

including the testimony, affidavits or reports of experts other

than the Joint Experts and any jointly selected psychiatric

expert.

H. The Parties reserve the right to withdraw their consent

to this Consent Decree in the event that this Consent Decree is

not approved by the Court in its entirety.

CONSENTED TO BY THE UNDERSIGNED:

FOR THE DEFENDANTS

FOR THE PLAINTIFF

J^ESS MCDONALD / .Director ' ^ / I l l i n o i s Department of Mental
Health and Developmental Disabilities

'-^HX^^^-^-K
/JAMES PV/TURNER " Acting Assistant Attorney General
Civil Rights Division

s s.
unsel to t of Illinois

ARTHUR E. Chief Special Litigation Section Civil Rights Division
0 S? 0*.>v.C^
BENJAMIN P. SCHOEN Deputy Chief Special Litigation Section civil Rights Division
- 33 -

PAMELA K. CHEN JUDITH C. PRESTON ROBERT H. STERN Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice Washington, D.C.
- 34 -

 
 U.S. Department of Justice
Civil Rights Division

AEP:BPS:PKC:JCP:VBR:LWJ:plh DJ 168-23-17

Special Litigation Section P.O. Box 66400 Washington, DC 20035-6400

January 26, 1996
Tim Gehant, Esquire Department of Mental Health Suite 6-400 100 W. Randolph St. Chicago, 111 60601
Re: United States v. Illinois, et al No. 92 C 0694 (Plunkett. J.)
Dear Tim:
. Pursuant to our discussions, enclosed please find the Agreed Motion to Terminate Consent Decree and Dismiss Case, which has been executed by our office. I would appreciate it if you would send me a copy of the fully executed motion once it is filed.
We extend our thanks to everyone who has worked on this case and especially to Kathy Muniz and the staff at the W.A. Howe Developmental Center.
Sincerely,

Pamela K. Chen Trial Attorney Special Litigation Section

U.S. v. Illinois

H

«

HH

HH

H«

V

™

MR-IL-002-006

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

v.

) Civil Action No. 92-C-0694

STATE OF ILLINOIS, JIM EDGAR,

) Honorable Paul E. Plunkett

Governor of the State of Illinois; )

Judge Presiding

ANN PATLA, Director, Illinois

)

Department of Mental Health and

)

Developmental Disabilities;

)

KATHLEEN A. MUNIZ, Superintendent, )

W.A. Howe Developmental Center,

)

Defendants.

)

AGREED MOTION TO TERMINATE CONSENT DECREE AND DISMISS CASE ' The Plaintiff by its attorneys, and the Defendants by their attorneys, jointly move this Court to enter an order terminating the Consent Decree entered in this action and dismissing the case with prejudice. In support of this motion, the parties state as follows:
1. The parties executed a Consent Decree in this matter which was entered by this Court on January 4, 1994.
2. The Consent Decree provides that "[o]n or after the date on which Defendants shall have fully and faithfully implemented all provisions of this Consent Decree, Defendants or the parties may move that the case be closed and dismissed with prejudice on grounds that Defendants have fully and faithfully implemented and maintained all provisions of this Consent Decree. Such motion shall attach the most recent findings of each of the Joint Experts . . .".

3. The Joint Experts in this matter have determined that

Defendants have fully and faithfully implemented all provisions

of the Consent Decree. The most recent Joint Expert reports are

attached hereto and made a part thereof.

4. The parties agree to jointly move this Court that the

Consent Decree be terminated and that the case be closed and

dismissed on grounds that Defendants have fully and faithfully

implemented and maintained all provisions of the Consent Decree.

WHEREFORE, the parties request that this Court enter an

Order terminating the Consent Decree and closing and dismissing

this case with prejudice.

Respectfully submitted,

ON BEHALF OF PLAINTIFF:

ON BEHALF OF DEFENDANTS:

PAMELA K. CHEN JUDITH C. PRESTON ROBERT H. STERN Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6261

MARITA C. SULLIVAN Assistant Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-3671

IT IS SO ORDERED this Chicago, Illinois.

day of

., 1996, at

UNITED STATES DISTRICT JUDGE - 2-

 
 flPR-02-1996 14:31
H. S t u a r t Cunningham CLERK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

P.02/02 Office of the Cerk

Mitchell Bruce Katten I l l i n o i s Attorney General's 100 West Randolph Street 13th Floor
Chicago, IL 60601

Office „.„...,,

I 1 1 M , n ^ v Illinois

Case Number: l:92-cv-00694 Title: USA v. State of Illinois
Assigned Judge: Honorable Paul E. Plunkett

- - — — — V —^ H H HB

• • • Illl

MR-IL-002-007

MINUTE ORDER of 2/14/96 by Hon. Paul E. Plunkett: Plaintiff's agreed motion to terminate consent decree entered in this action and [94-1] dismiss case [94-2] with prejudice is granted andso ordered. Mailed notice

This docket entry was made by the Clerk on February 16, 1996

ATTENTION:

This notice is being sent pursuant to Rule 77 (d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by I CMS, the automated docketing system used tomaintain theciviland criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.

TOTfiL P-02

APR-02-1996 14:31
H. Stuart Cunningham CLERK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

Mitchell Bruce Kacten Illinois Attorney General's Office 100 West Randolph Street 13th Floor Chicago, IL 60601

P.02/02
Office of the Clerk

Case Number: l:92-cv-00694 Title: USA v. State of Illinois
Assigned Judge: Honorable Paul E. Plunkett

MINUTE ORDER of 2/14/96 by Hon. Paul E. Plunkett: Plaintiff's agreed motion to terminate consent decree entered in this action and [94-1] dismiss case [94-2] with prejudice is granted and so ordered. Mailed notice

This docket entry was made by the Clerk on February 16, 1996

ATTENTION:

This notice is being sent pursuant to Rule 77(d) of the
Federal Rules of Civil Procedure or Rule 49 (c) of the Federal Rules of Criminal Procedure. It was generated by I CMS, the automated docketing system used to maintain che civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.

TOTRL P. 02

flPR-02-1996 14:31
Stuart Cunningham CLERK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

P. 02/02 Office of the Clerk

Mitchell Bruce Kateen Illinois Attorney General's Office 100 West Randolph Street 13th Floor Chicago, IL SO601

Case Number: l:92-cv-00694 Title: USA v. State of Illinois
Assigned Judge: Honorable Paul E. Plunkett

MINUTE ORDER of 2/14/96 by Hon. Paul E. Plunkett: Plaintiff's agreed motion to terminate consent decree r >red in this action and [94-1] dismiss case [94-2] with , udice is granted and so ordered. Mailed notice

This docket entry was made by the Clerk on February 16, 1996

ATTENTION:

This notice is being sent pursuant to Rule 77 (d) of the Federal Rules of Civil Procedure or Rule 49 (c) of the Federal Rules of Criminal Procedure. It was generated by I CMS, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.

TOTPL P.02

 
 £,"<„'.•
US. Departi ;.-.. ^f Justice
Civil Rights Division

Office of the Assistant Attorney General

Washington. D.C. 20530

MAY l u

Honorable James R. Thompson Governor State of Illinois State Capitol Building Springfield, Illinois 62706

U.S. v. Illinois MR-IL-002-002

Re: Investigation of Hove Developmental Center

Dear Governor Thompson:

I am writing in reference to this Department's continuing investigation of Howe Developmental Center pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997.

By letter dated April 18, 1986, we informed you of our intent to investigate Howe Developmental Center. Since that time attorneys from our office, accompanied by expert consultants, have toured the facility on several occasions. On each visit we received the full cooperation of the staff at Howe. We appreciate their assistance and willingness to provide any materials our consultants requested.

During our investigation, Howe Developmental Center has undergone many changes in personnel and management structure. At the time of our last visit, a new director was in place and many personnel had been assigned new duties. In light of these changes and the initiation of yet to be completed improvements in the operation of the facility, we will defer making a judgment regarding the adequacy of the facility's overall program of care and training for Howe's residents. Recognizing the State's efforts to change and improve conditions at Howe, we have determined that it is appropriate to allow responsible state officials and staff at Howe a short additional period of time to completely address the areas of concern - abuse and neglect of residents by staff, adequacy of staff, and environmental safety and sanitation - before reaching a conclusion as to the adequacy of conditions at the facility when judged by the applicable constitutional standard. Accordingly, we will return to Howe with appropriate consultants to assess conditions in approximately six months.

- 2-
I look forward to continued cooperation between our offices as we work to ensure constitutional conditions for residents at Howe" Developmental Center. If you have any questions about our plans please feel free to have your counsel contact the attorneys assigned to the investigation, Gayle Fidler (202/272-6058) or Cynthia Katz (202/272-6052).
Sincerely,
Win. Bradford ReyntoltitsAssistant Attorney General
Civil Rights Division
cc: Neil F. Hartigan Attorney General
Ann Kiley, Director Department of Mental Health
and Developmental Disabilities
Anton R. Valukas United States Attorney
Kenneth Kulberg, Superintendent Howe Developmental Center

 
 4
U.S. V. Illinois

U.S. I)cpartnicni of Justice Civ¡l Rights Division

• • V ·IHIP • •

• • • •!••

MR-IL-002-003

Ofp" of the Assistant Attorney General

Washington. D.C. 20530

Registered Mail Return Receipt Requested

j¡n o i joqq

Honorable James Thompson
Governor State of Illinois State Capitol Building Springfield, Illinois 62706

Re: Notice of Findings Regarding the W. A. Howe Developmental Center. 42 U.S.C. Section !997b(a)(1)

Dear Governor Thompson:

By letter dated April 18, 1986, we informed you that, pursuant to the Civil Rights of Institutionalized Persons Act (ƒ'the Act"), 42 U.S.C. Section 1997, the Civil Rights Division of the United States Department of Justice was commencing an investigation into conditions at the W. A. Howe Developmental Center ("Howe"), Tihley Park, Illinois. On May 19, 1988,we provided you with an interim report regarding the status of this investigation. As specified in the Act, we are now writing to inform you that further review confirms that unconstitutional conditions exist at Howe, and also to advise you of the minimum measures we believe are required to be taken by the State in order to remedy those conditions.

Our investigation consisted, first, of several comprehensive tours of Howe by independent experts, most recently between February 15 and 17, 1989. The experts observed conditions in all the residential buildings at Howe at various times of the day, formally and informally interviewed administrators, staff and residents, and examined a variety of records. Further, we conducted interviews with members of advocacy and consumer groups and other persons with responsibilities for the welfare of residents in Illinois developmental centers. Finally, we gathered and analyzed extensive documentation related to Howe, which included: a variety of policies and procedures governing the operation of Howe; information related to Howe's staffing patterns; minutes from Howe's Committees; police reports; abuse investigation reports (available for inspection only); mortality reviews and list of deaths; monthly injury reports; restraint logs; lists of patients on medication; logs of patients placed in

- 2-
"quiet training" rooms; and a sampling of residents' records. We •also have reviewed the Statement of Deficiencies and Plan of Correction resulting from a survey conducted by the Health Care Financing Administration in March 1988 and other documents related thereto. During our investigation we were treated graciously by Howe administration and staff, and attorneys from the Department of Mental Health and Developmental Disabilities.
Based upon our extensive investigation, we believe that conditions exist at Howe which deprive residents of their constitutional rights. The United States Supreme Court has clearly stated that institutionalized mentally retarded persons have a constitutional right to adequate medical care, reasonable safety, and such training as an appropriate professional would consider reasonable to ensure safety and freedom from undue bodily restraint. Youngberg v. Romeof 457 U.S. 307, 324 (1982) .
Set forth below are our findings and recommendations. These findings and recommendations relate to the State subjecting residents of Howe to conditions that violate their constitutional rights, including conditions that seriously threaten the health and safety of Howe residents. These unconstitutional conditions include:
1. Failure to provide sufficient training to residents to avoid undue risks to their personal safety and unreasonable use of bodily restraints.
2. Failure to provide adequate medical care.
3. Failure to provide sufficient numbers of appropriately trained staff to render professional judgments regarding necessary care, training, medical treatment, and to implement such professional judgments.
4. Failure to adequately protect residents from physical injury.
5. Failure to keep and maintain such records as will allow staff to render professional judgments regarding care and treatment of residents.
The facts supporting our conclusions include the following:
Inadequate Training Programs
Howe fails to provide professionally designed and implemented training programs sufficient to ensure that residents are not subjected to unreasonable risks to their personal safety and undue bodily restraint. At the time of the most recent tour, there were five Masters level psychologists working at the facility with 721 residents, resulting in a ratio of 1:144. Our

- 3-
consultant regarded this ratio as inadequate to serve the needs of the Howe population, particularly since many of the Howe residents are severely disabled, exhibit severe and sometimes dangerous behavior, and live in close proximity to each other. Indeed, our consultant found the number of treatment staff to be so inadequate as to place residents at extreme risk of injury. Several of the Howe staff psychologists agreed that the psychology staff is not adequate. They stated that there were insufficient numbers of their profession to provide professionally designed training programs for residents, including residents exhibiting severe and dangerous behavior.
As a result of an inadequate number of qualified psychologists, available staff rely on the same or similar "stock" behavioral programs for residents irrespective of the individual needs of those residents. This reliance constitutes a substantial departure from accepted professional judgment and places residents at great risk of harm. Our consultant concluded that the failure to professionally evaluate resident need and individualize training programs ostensibly designed to reduce or eliminate aggressive, self-injurious, and other dangerous behaviors will, however inadvertently, produce worse behavior. To control resident behavior, in lieu of professionally designed training programs, staff resort to chemical and physical restraints — in violation of the constitutional rights of Howe's residents. Indeed, when physical restraints are employed, including use of time out, such procedures are not consistently monitored and evaluated by qualified professional staff.
To the extent "training programs" have been developed, such "programs" are not consistently implemented by direct care staff assigned to do so. Some staff who are responsible for residents who exhibit self-injurious behavior did not know the specific training programs developed for those residents. In this regard, records, including behavior management plans, were locked and unavailable to staff in some units. Our consultant found that data ostensibly resulting from implementation of behavior programs is not recorded contemporaneously with the observed behavior and are not otherwise properly maintained. Such data are not regarded as reliable either by our consultant or Howe psychology staff, and, consequently, are not an adequate basis on which professional decisions can be based. This is due, in part, to the inadequate level of direct care staffing in the units and other factors including the lack of appropriately trained direct care staff.
In sum, activities at Howe characterized by Howe staff to constitute "training programs" represent substantial departures from accepted professional judgment. Regrettably, our consultant concluded that these activities may expose residents to undue risks to their personal safety.

- 4-
Inadequate Medical Care
Howe does not have adequate psychiatric, nursing, physical therapy, occupational therapy and other specialized medical services to adequately meet the needs of its residents. The absence of necessary staff results in inadequate medical care.
An estimated 15 per cent of the residents at Howe are receiving neuroleptic medication; 24 per cent are receiving psychotropic medication, and many are receiving anticonvulsant medication. Many residents are on multiple psychotropic medications. Such drugs, when prescribed and used without the exercise of continuing clinical medical judgment, can cause irreparable physical harm. Notwithstanding the need for close supervision and monitoring of such drugs by a psychiatrist, a psychiatrist is available at Howe only four hours each week. Our consultant found such psychiatric coverage to be "grossly inadequate.."
The number of registered nurses (RNs) available to provide necessary care to Howe's residents is likewise inadequate. From 5:00 p.m. to 11:00 p.m., no RN is on duty. From 11:00 p.m. to 7:00 a.m., one RN is responsible for all medical care for all 720 residents at the facility. This means that one nurse must handle all medical emergencies, treat injuries as they occur, and maintain medical surveillance of residents with complex medical needs. The number of RNs available at Howe is grossly inadequate and exposes residents to unreasonable risks to their personal safety.
No orthopedist is available as a consultant to Howe on a regular basis. Given that approximately 1/4 to 1/3•of individuals with developmental disabilities and mental retardation have orthopedic deformities and that Howe has a unit specifically for the care of individuals with severe multiple handicapping conditions predominantly of a musculo-skeltal nature, this is inadequate. The lack.of adequate orthopedic consultation has led to a failure to provide treatment where medically indicated, to a failure to prevent progression of deformities, and to needless suffering on the part of residents. Moreover, the physical and occupational therapy staff is simply inadequate to serve the large number of residents with orthopedic deformities.
A neurologist is available at Howe for only four hours each month. Such neurological consultation is not adequate to serve the needs of the approximately 240 residents with serious seizure disorders on multiple seizure medications.
While our consultant found the number of physicians to be adequate, records indicated that they are not available to

- 5-
render professional medical judgments at critical junctures in the delivery of medical care at the facility. None is present at the facility from 11:00 p.m. to 8:30 a.m. Our consultant concluded that the absence of physician coverage during this time places residents at risk. Such risk is exacerbated by the absence of adequate RN coverage. In addition, our consultant found inadequate involvement by physicians in resident medical care even when they were available at the facility.
Due to the lack of adequate medical supervision of patients, early signs of illness and disease go undetected and/or untreated. For example, staff at Howe refer residents with scoliosis to an orthopedist only after the scoliosis becomes severe. Thus, the resident's condition is allowed to deteriorate without any attempt at prevention or treatment.
Our consultant physician found that progress notes do not consistently reflect the resident's condition, nor reflect the results of important laboratory tests or medical specialty reports. Moreover, an appropriate and current medical problems list was missing from the medical records reviewed. Our consultant physician also found that physicians' annual reviews are significantly incomplete. The absence of critical information in the medical charts of Howe residents subjects them to an increased risk of harm from inappropriate treatment.
In addition, psychotropic medication appears to be over used and misused at Howe. Our consultant physician found these drugs are sometimes prescribed at Howe without any justification being noted in the record and that physicians do not adequately assess the continued need for such medications. Our consultant psychologist likewise found that the resident records disclose little or no specific evidence that there was consideration of all salient factors of an individual case before the medication was prescribed. Instances were found where residents failed to exhibit significant episodes of maladaptive behavior but their medication dosages were maintained nonetheless. Records examined failed to document justification for the maintenance or alteration of dosages. Moreover, to the extent the underlying behavioral documentation is unreliable, a fact our consultant psychologist found at Howe, residents are placed at clear risk of significant side effects of medication, failures in treatment, and maintenance of chemical regimens which may be unnecessary and expose residents to unreasonable risks to their personal safety.
Finally, our physician consultant found emergency medical services inadequate. Records indicate that emergency equipment is not fully operational on a consistent basis or, in some cases, available at all. The deaths of two residents transferred by Howe to community hospital for emergency medical care calls into question the viability of the state's current procedures for the provision of emergency and acute medical care for residents.

J -/ ••--
- 6-
An emergency medical care system which fails to make timely transfers, ensure continuity of care, and fails to provide necessary medical information regarding the referred patients — with death resulting — is clearly inadequate.
Inadequate Numbers of and Insufficiently Trained Direct Care Staff
Our consultant concluded that inadequate numbers of staff, lack of properly trained staff, and inadequate oversight has led directly to situations which placed residents in physical danger, and in which actual harm has been inflicted. The physical configuration of the living areas is such that the two direct care staff assigned to each living unit cannot keep all residents in sight. Given the aggressive behavior of some of these residents and the fact that many exits are not alarmed to alert staff if a resident leaves, the lack of sufficient staff to supervise residents results in undue risk to their safety. Further, most residents require assistance in bathing and dressing and tending to other personal needs. The two direct care staff assigned to the 10 residents of each living unit are inadequate to provide these essential services and provide necessary training as well, particularly where, as here, some direct care staff are performing routine housekeeping functions. The failure to ensure adequate numbers of direct care staff subjects residents to undue risk of harm from injury.
The gravity of this situation is conveyed by the incidents of injury at Howe. Based on the information available to us, we calculate the average number of injuries per month at Howe increased dramatically from 1986 through 1988. There was a five per cent increase from calendar 1986 to calendar 1987 (i.e., from an average of 367 to 387 injuries per month), and an increase of another 14 per cent from 1987 to 1988 (i.e.. from 387 to 442 injuries per month). That is an overall increase of. 20 per cent in just two years (i.e.. from an average of 367 to 442 per month). This increase is all the more substantial when one considers that during this time the resident population at Howe declined.
In addition to the increasing number of injuries at Howe, the nature of several specific serious incidents which have occurred illustrate the fact that staff at Howe do not protect residents from harm. For example, in March 1988 a resident was found dead on the floor of her room at 6:15 a.m., with signs of lividity indicating she has been dead for some time. It was subsequently determined that direct care staff failed to perform routine bed checks during the night. In the same month, another resident was found hanging over the side of her bed, strangled to death by a posey bed restraint which had been incorrectly applied. An autopsy disclosed that this resident's sternun had been broken during attempts at cardiopulmonary resuscitation

,'¯.¯::-`.
- 7-
(CPR). The staff person who had performed chest compression on the resident had received no CPR training after she was hired in 1982. A subsequent investigation disclosed that staff training in the use of the posey device had concentrated on wheelchair application and neglected bed application entirely. In another incident occurring shortly before our tour, a resident ran from the front door of her living unit to the street and was killed by a passing automobile. At the time the resident left her living unitƒ one of the two direct care staff assigned to supervise her and other residents was at lunch, and the other staff person was writing in a log book. In sum, direct care staff is insufficient both in numbers and qualifications to protect residents from unreasonable risks to their personal safety.
Minimally Necessary Remedies
The administration and staff at Howe appear committed to providing residents with appropriate care in a safe environment. However, the aforementioned subjects Howe residents to egregious or flagrant conditions that deprive them of their constitutional rights pursuant to a pattern or practice of resistance to the full enjoyment of these rights. To rectify the deficiencies at Howe, and ensure that constitutionally adequate conditions are maintained thereafter, we propose to enter into an agreement with the State of Illinois which shall be entered as an order of a Federal Court and which shall provide, at a minimum, that Howe shall implement the following remedies:
1) Professionally design and implement training programs sufficient to eliminate unreasonable risks to personal safety and undue bodily restraint. Such procedures should include improvements in the current tracking and recordkeeping systems to monitor the effectiveness of behavior management programs and allow programs to be re-evaluated and revised, as appropriate;
2) Increase professional and direct care staff necessary to afford adequate medical care, to provide that degree of training necessary to meet constitutional standards, and substantially reduce the high incidence of physical injuries at Howe ;
3) Improve drug practices to ensure monitoring by qualified professionals consistent with exercise of professional judgment;
4) Improve and expand training programs and opportunities for professional and direct care staff to ensure the exercise of professional judgment with respect to care and training of residents;
5) Improve recordkeeping procedures to ensure necessary information is available to enable professionals to make professional judgments regarding resident care and training.

/•'*•••?:
- 8-
Information about federal financial assistance which may be available to assist with the remedial process can be obtained by contacting Mr. Hiroshi Kanno, Acting Director, Region V, Department of Health and Human Services at (312) 353-5132 and from the Department of Education by contacting the individuals listed in the enclosed information guide.
Our attorneys will be contacting counsel for the Illinois Department of Mental Health and Developmental Disabilities shortly to arrange a meeting to discuss this matter in greater detail. In the meantime, should you or your staff have any questions regarding this matter, please feel free to call Arthur E. Peabody, Jr., Chief, Special Litigation Section at (202) 272-6060. To date, we have been able to conduct this investigation in the spirit of cooperation intended by the Civil Rights of Institutionalized Persons Act, and look forward to continuing to work in the same manner with state officials in that spirit toward an amicable resolution of this matter.
Sincerely,
James P. Turner Acting Assistant Attorney General
Civil Rights Division
Enclosure
cc: Neil F. Hartigan, Esq. Attorney General
Ann Kiley Director, Illinois Department of Mental
Health and Developmental Disabilities
Kathleen A. Muniz Superintendent, Howe Developmental Center
Delilah Brummet, Esq. Chief Counsel, Illinois Department of Mental
Health and Developmental Disabilities
Anton R. Valukas United States Attorney

 
 U.S. v. Illinois
•lllllllill
MR-IL-002-004

El SK.-^:7"

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA Plaintiff,

v.
STATE OF ILLINOIS, James R. Edgar, Governor of the State of Illinois; Leigh Steiner, Acting Director, Illinois Department of Mental Health and Developmental Disabilities; Kathleen 'A. Muniz, Superintendent, W.A. Howe Developmental Center
Defendants.

COMPLAINT
Civil Action No.
& 0OO
K FiBM£

THE UNITED STATES OF AMERICA alleges: 1. This action is brought by the Attorney General on behalf
of the United States pursuant to the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. { 1997 et seg., to enjoin the named defendants from depriving persons residing at W.A. Howe Developmental Center ("Howe"), of rights, privileges or immunities secured or protected by the Constitution of the United States.
JURISDICTION 2. This Court has jurisdiction over this action under 28 U.S.C. Section { 1345. 3. The United States has standing to maintain this action pursuant to 42 U.S.C. ( 1997a.

4. The Attorney General has certified that all the prefiling requirements specified in 42 U.S.C. { 1997b have been met. The certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the Northern District of Illinois is proper pursuant to 28 U.S.C. { 1391. All claims set forth in the Complaint arose in said District.
DEFENDANTS 6. Defendant STATE OF ILLINOIS owns and operates Howe, a state facility for mentally retarded people located in Tinley Park, Illinois. 7. Defendant JAMES R. EDGAR is the Governor of Illinois, and in this capacity heads the Executive Branch of the State government and, among other duties, reviews and approves budget requests submitted by Executive Branch agencies. 8. Defendant LEIGH STEINER is the Acting Director of the Illinois Department of Mental Health and Developmental Disabilities ("DMHDD") and, in this capacity, exercises administrative control of, and responsibility for, Howe. The Director selects and appoints the Superintendent of Howe. 9. Defendant KATHLEEN A. MUNIZ is the Superintendent of Howe and is responsible for the day-to-day operations of the facility. 10. The individual defendants named in paragraphs 7, 8, and 9 above are officers of the Executive Branch of the State of Illinois and are sued in their official capacities.

.*;•?:',•:'

/''•?;

11. Howe is an institution within the meaning of 42 U.S.C. §1997(1).
12. Persons residing at Howe include individuals who are mentally retarded and developmentally disabled.
13. Defendants are legally responsible, in whole or in part, for the operation of and conditions at Howe, as well as for the care and treatment of persons residing at that institution.
14. At all relevant times, defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 15. Defendants are subjecting individuals residing at Howe ("Residents") to unreasonable risks to their personal safety and undue bodily restraint by failing and continuing to fail to provide them with the appropriate level of individualized training and behavioral programming. 16. Defendants have failed and are continuing to fail to provide adequate medical care to Residents. 17. Defendants have failed and are continuing to fail to employ staff and practices needed to maintain professionally based record-keeping and record review systems to ensure that Resident records contain accurate, up-to-date and relevant information as is necessary to enable/staff to exercise professional judgments regarding medical treatment and training decisions, 18. Defendants are subjecting Residents to undue bodily restraint by failing and continuing to fail to ensure that bodily

restraints are administered to persons confined at Howe only pursuant to the exercise of professional judgment by appropriately qualified professionals.
19. Defendants have failed and are continuing to fail to prescribe and administer psychotropic medication safely and pursuant to the exercise of professional judgment by appropriately qualified staff.
20. Defendants have failed and are continuing to fail to employ adequate staff, including physicians, psychologists, registered and licensed practical nurses and registered physical therapists, to reasonably provide for the appropriate and safe treatment and care of Residents.
21. The acts and omissions alleged in paragraph 15 through 20 constitute patterns or practices of resistance to the full enjoyment of rights, privileges or immunities secured or protected by the Constitution of the United States, and deprive Residents of such rights, privileges or immunities.
22. Unless restrained by this Court, defendants will continue to engage in the conduct and practices set forth in paragraphs 15 through 20 that deprive Residents of rights, privileges, or immunities secured or protected by the Constitution of the United States, and cause irreparable harm to Residents.
23. The Attorney General is authorized under 42 U.S.C. §1997a to seek only equitable relief.
/

t<;--;

WHEREFORE, the United.States prays that this Court enter an order permanently enjoining Defendants, their agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, practices and omissions at Howe set forth in paragraphs 15 through 2 0 above, and to require defendants to take such action as will provide constitutional conditions of care to persons who reside at Howe. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Respectfully submitted,

WILLIAM P. BARR Attorney General of
the United States

FRED FOREMAN United States Attorney Northern District of Z Illinois

'JOHN R. DUNNE v?rssistant Attorney General Civil Rights Division
ARTHUR E. PEABODY, Chief Special Litigation Section

BENJAMIN P. SCHOEN Deputy Chief Special Litigation Section
CT

EDWARD A. STUTMAN Attorney Special Litigation Section (202) 514-6247
PAMELA K. CHEN Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 320 First Street, NW Washington, DC 20530 (202) 514-6261
- 6-

(Office af U|c Attorney general
Washington. S.GJ. 2053D

CERTIFICATE OF THE ATTORNEY GENERAL

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

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

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

Signed this 13th day of January Washington, DC.

, 1992, at

_U WILLIAM P. BARR Attorney General of
the United States

 
 CM/ECF LIVE, Ver 2.5 - U.S. District Court, Northern Illinois - Docket Report

Page 1 of 10

TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 2.5 (Chicago)
CIVIL DOCKET FOR CASE #: 1:92-cv-00694

USA v. State of Illinois, et al Assigned to: Honorable Paul E. Plunkett Demand: $0 Cause: 28:1331 Federal Question
Plaintiff
USA

Date Filed: 01/28/1992 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff
represented by AUSA United States Attorney's Office, NDIL 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353-5300 Email: ausa.ecf@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward A Stutman United States Department of Justice Office of Special Investigation Criminal Division 1001 G Steet, Suite 1000 Washington, DC 20005 (202) 616-2501 TERMINATED: 07/09/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Schoen Department of Justice 320 First Street, N.W. Washington, DC 20534 (202)514-6265
Judith C Preston United States Department of Justice P.O. Box 66400 Special Litigation Section Civil Rights Division Washington, DC 20035 (202)514-6247
Pamela K Chen United States Department of Justice

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V. Defendant State of Illinois
Defendant James R Edgar Governor of the State of Illinois

Defendant Leigh Steiner Acting Director, Illinois Department of Mental Health and Developmental Disabilities
Defendant Kathleen A Muniz Superintendent, W.A. Howe Developmental Center

Date Filed

#

P.O. Box 66400 Special Litigation Section Civil Rights Division Washington, DC 20035 (202)514-6247
represented by Mitchell Bruce Katten O'Rourke, Katten & Moody 161 North Clark Street Suite 2230 Chicago, IL 60601 (312) 849-2020 Email: mkatten@okmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marita Clare Sullivan Illinois Attorney General's Office 100 West Randolph Street 12th Floor Chicago, IL 60601 (312) 814-3000
represented by Mitchell Bruce Katten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marita Clare Sullivan (See above for address)
represented by Mitchell Bruce Katten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marita Clare Sullivan (See above for address)
Docket Text

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01/28/1992
02/25/1992 02/26/1992 02/26/1992 03/20/1992 03/23/1992 03/23/1992
03/25/1992
03/27/1992 04/03/1992 04/03/1992
05/01/1992 05/01/1992 05/01/1992 05/01/1992

1 COMPLAINT - Civil cover sheet - Appearance(s) of Elizabeth Muir Landes, Fred L. Foreman, John R. Dunne as attorney(s) for plaintiff ( 4 originals and 4 copies summons(es) issued.) ( Documents: 1-1 through 12) (cdh) (Entered: 01/31/1992)
2 MINUTE ORDER of 2/25/92 by Hon. Paul E. Plunkett: Status hearing set for April 3, 1992 at 9:15 a.m. Mailed notice (vmj) (Entered: 02/26/1992)
3 RETURN OF SERVICE of summons executed upon defendant Kathleen A. Muniz on 2/20/92. (vmj) (Entered: 02/27/1992)
4 RETURN OF SERVICE executed upon defendant Leigh Steiner on 2/20/92. (vmj) (Entered: 02/27/1992)
5 ATTORNEY APPEARANCE for defendants' Leigh Steiner, James R. Edgar and Kathleen A. Muniz by Mitchell Katten and Marita Clare Sullivan. (vmj) (Entered: 03/23/1992)
6 MOTION by defendants' for enlargement of time ; Notice of motion. (vmj) (Entered: 03/24/1992)
7 MINUTE ORDER of 3/23/92 by Hon. Paul E. Plunkett: Defendants' motion for enlargement of time [6-1] to answer or otherwise plead, to and including April 9, 1992, granted. Mailed notice (vmj) (Entered: 03/24/1992)
8 MINUTE ORDER of 3/25/92 by Hon. Paul E. Plunkett: Minute order dated March 23, 1992 is modified as follows: The defendants are granted an extension of time in which to answer or otherwise plead to the complaint to and including April 3, 1993. Mailed notice (vmj) (Entered: 03/26/1992)
9 ATTORNEY APPEARANCE for plaintiff by Edward A. Stutman, Pamela K. Chen and Judith C. Preston. (vmj) (Entered: 03/30/1992)
10 ANSWER by defendants'; Notice of filing. (vmj) (Entered: 04/06/1992)
11 MINUTE ORDER of 4/3/92 by Hon. Paul E. Plunkett: Status hearing held; continued to July 7, 1992 at 9:15 a.m. Written discovery to be completed on or before June 3, 1992. Deposition discovery to be completed on or before September 3, 1992. Mailed notice (vmj) (Entered: 04/06/1992)
12 MOTION by plaintiff for leave to serve more than twenty interrogatories (Exhibit); Notice of motion. (vmj) (Entered: 05/04/1992)
13 MEMORANDUM by plaintiff in support of motion for leave to serve more than twenty interrogatories [12-1]. (vmj) (Entered: 05/04/1992)
Oral MOTION by defendants' to extend time to comply with written discovery, to and including June 19, 1992 . (vmj) Modified on 05/04/1992 (Entered: 05/04/1992)
14 MINUTE ORDER of 5/1/92 by Hon. Paul E. Plunkett: Plaintiff's motion

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05/01/1992 05/01/1992 05/01/1992
05/20/1992 05/29/1992 06/12/1992 07/07/1992 07/07/1992 07/07/1992
07/07/1992 07/07/1992 07/09/1992

for leave to serve more than twenty interrogatories [12-1], granted. Defendants' oral motion to extend time to comply with written discovery, to and including June 19, 1992 [0-1], granted. No notice (vmj) (Entered: 05/04/1992)
15 MOTION by plaintiff to strike affirmative defenses and for partial summary judgment ; Notice of motion. (vmj) (Entered: 05/04/1992)
16 MEMORANDUM by plaintiff in support of motion to strike affirmative defenses [15-1] and for partial summary judgment [15-2] (Exhibits). (vmj) (Entered: 05/04/1992)
17 MINUTE ORDER of 5/1/92 by Hon. Paul E. Plunkett: Answer brief to motion due May 29, 1992. Reply to answer brief due June 12, 1992. Ruling on motion to strike [15-1] and for partial summary judgment [152] set for Aug. 18, 1992 at 9:15 a.m. Status hearing set for July 7, 1992 at 9:15 a.m. to stand. Mailed notice (vmj) (Entered: 05/04/1992)
18 STIPULATION and order regarding confidentiality; notice of filing. (fce) (Entered: 05/21/1992)
19 RESPONSE by defendants' to plaintiff's motion to strike affirmative defenses [15-1] and for partial summary judgment [15-2]; Notice of filing. (vmj) (Entered: 06/02/1992)
20 REPLY by plaintiff USA to defendants' response to its motion to strike affirmative defenses and for partial summary judgment. (vmj) (Entered: 06/16/1992)
21 MOTION by defendant Kathleen A Muniz, defendant State of Illinois, defendant James R Edgar, defendant Leigh Steiner to compel production of documents (Exhibit) ; notice of motion. (fce) (Entered: 07/08/1992)
ORAL MOTION by defendant Kathleen A Muniz, defendant State of Illinois, defendant James R Edgar, defendant Leigh Steiner to withdraw motion to compel production of documents (fce) (Entered: 07/08/1992)
22 MINUTE ORDER of 7/7/92 by Hon. Paul E. Plunkett : Granting motion to withdraw motion to compel production of documents [0-1], Withdrawing motion to compel production of documents [21-1] Status hearing held All further discovery referred to Magistrate Judge Guzman Case referred to the calendar of Hon. Ronald A. Guzman No notice (fce) (Entered: 07/08/1992)
23 LETTER from Laurie J. Weinstein to H. Stuart Cunningham dated 06/30/92. (fce) (Entered: 07/08/1992)
24 NOTICE of entry of appearance for plaintiff and withdrawal of appearance for the United States of America. (vmj) (Entered: 07/10/1992)
25 MINUTE ORDER of 7/9/92 by Hon. Paul E. Plunkett: Leave is granted to Laurie J. Weinstein [24-1] to substitute her appearance for that of Edward A. Stutman for plaintiff. Mailed notice (vmj) (Entered:

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07/09/1992 07/30/1992
08/04/1992
08/17/1992 08/17/1992 08/17/1992 08/17/1992 09/18/1992 09/29/1992 09/29/1992
10/06/1992 10/07/1992 10/14/1992

07/10/1992)
26 REFERRAL ORDER of 7/9/92: Case referred to Magistrate Ronald A. Guzman pursuant to local General Rule 2.41(b) . (For further detail see order). Mailed notice (vmj) (Entered: 07/13/1992)
27 MINUTE ORDER of 7/30/92 by Hon. Ronald A. Guzman: Status hearing held. Plaintiff given leave to file motion to compel on or before August 14, 1992. Defendant's reply brief due on or before September 14, 1992. Plaintiff's reply brief due on or before October 5, 1992. Ruling to be by mail. Parties are directed to submit caselaw on the issue of the discovery expert tour on or before July 31, 1992. No notice (vmj) (Entered: 07/31/1992)
28 MINUTE ORDER of 8/4/92 by Hon. Paul E. Plunkett: Ruling on motion to strike [15-1] and partial summary judgment [15-2] reset for Sept. 29, 1992 at 9:15 a.m. Status hearing reset for Sept. 29, 1992 at 9:15 a.m. Mailed notice (vmj) (Entered: 08/05/1992)
29 LETTER from Pamela Chen to court dated 8/13/92. (vmj) (Entered: 08/18/1992)
30 ATTORNEY APPEARANCE for plaintiff USA by Benjamin Schoen. (vmj) (Entered: 08/18/1992)
31 MOTION by plaintiff USA to compel production of documents . (vmj) (Entered: 08/18/1992)
32 MEMORANDUM by plaintiff USA in support of its motion to compel production of documents [31-1] (Attachments). (vmj) (Entered: 08/18/1992)
33 RESPONSE by defendants' to the United States' motion to compel [31-1] and the United States' memorandum in support (Exhibits); Notice of filing. (vmj) (Entered: 09/21/1992)
34 MEMORANDUM, OPINION, AND ORDER. (vmj) (Entered: 09/30/1992)
35 MINUTE ORDER of 9/29/92 by Hon. Paul E. Plunkett: Status hearing reset for Oct. 14, 1992 at 9:15 a.m. Enter memorandum opinion and order: We grant the USA's motion to strike [15-1] in part and deny it in part. Because we decide this motion as a motion to strike, the USA's request for the alternative relief of partial summary judgment [15-2] is denied as moot. Telephoned notice (vmj) (Entered: 09/30/1992)
36 REPLY by plaintiff USA to defendants' response to the motion to compel production of documents [31-1] (Exhibits). (vmj) (Entered: 10/07/1992)
37 DECLARATION of Walter P. Christian, Ph.D. (vmj) (Entered: 10/08/1992)
38 MINUTE ORDER of 10/14/92 by Hon. Paul E. Plunkett: Status hearing held; continued to 9 Dec. 92 at 9:15 a.m. October 31, 1992 is the deadline

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10/26/1992 10/26/1992
11/12/1992 11/12/1992 11/12/1992 11/12/1992
11/12/1992 11/12/1992 11/12/1992 11/23/1992 11/23/1992 11/24/1992 11/24/1992 11/24/1992

for resolving all document discovery problems. No notice (vmj) (Entered: 10/15/1992)
39 MOTION by defendanta' to strike portions of the United States' reply or alternatively for leave to fiile a surreply ; Notice of motion. (vmj) (Entered: 10/29/1992)
40 MINUTE ORDER of 10/26/92 by Hon. Ronald A. Guzman : Telephonic hearing held on defendants' motion to strike portions of the United States' reply or alternatively for leave to file a surreply. Defendant given leave to file affidavits opposing those on file for plaintiff on or before November 9, 1992. Ruling to be by mail. Mailed notice (vmj) (Entered: 10/29/1992)
41 MOTION by defendants for leave to cite additional authority (Attachments) ; Notice of motion. (eav) (Entered: 11/13/1992)
42 MINUTE ORDER of 11/12/92 by Hon. Ronald A. Guzman : Defendants' motion for leave to cite additional authority is granted in part and denied in part. [41-1] Mailed notice (eav) (Entered: 11/13/1992)
43 MOTION by defendants for a protective order (Exhibits) ; Notice of motion. (eav) (Entered: 11/13/1992)
44 MINUTE ORDER of 11/12/92 by Hon. Ronald A. Guzman : Hearing held on defendants' motion for a protective order. Plaintiff given leave to file a response on or before November 23, 1992. Defendants' reply brief due on or before December 4, 1992. [43-1] Ruling to be by mail. Mailed notice (eav) (Entered: 11/13/1992)
45 AFFIDAVIT of Daniel J. Luchins (eav) (Entered: 11/13/1992)
46 AFFIDAVIT of Dr. Edward Page-El; Notice of filing (eav) (Entered: 11/13/1992)
47 RESPONSE by plaintiff USA to defendants motion for leave to cite additional authority [41-1] (eav) (Entered: 11/13/1992)
48 ADDITIONAL ATTORNEY APPEARANCE for plaintiff USA by Robert H. Stern. (vmj) (Entered: 11/24/1992)
49 OPPOSITION by plaintiff, USA to defendants' motion for protective order [43-1] (Attachments). (vmj) (Entered: 11/24/1992)
50 MOTION by defendants to compel production of documents ; notice of motion. (ar) (Entered: 11/25/1992)
51 APPENDIX A filed by defendants to motion to compel production of documents [50-1] (1 vol.) (ar) (Entered: 11/25/1992)
52 MINUTE ORDER of 11/24/92 by Hon. Ronald A. Guzman : Status hearing set for 01/04/93 at 9:30 am. On defendants' motion to compel production of documents [50-1], plaintiff to respond within 21 days by 12/15/92; defendants to reply within 7 days by 12/22/92. Mailed notice (ar) Modified on 11/25/1992 (Entered: 11/25/1992)

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12/04/1992 12/09/1992
12/14/1992 12/15/1992 12/24/1992 01/04/1993 01/29/1993 01/29/1993 01/29/1993 01/29/1993 01/29/1993
01/29/1993 01/29/1993 02/01/1993 02/01/1993 02/01/1993

53 REPLY brief by defendants' in support of their motion for a protective order [43-1]; Notice of filing. (vmj) (Entered: 12/08/1992)
54 MINUTE ORDER of 12/9/92 by Hon. Paul E. Plunkett : Status hearing held; continued to Aug. 16, 1993 at 9:15 a.m. All non-expert depositions to be completed between January 1, 1993 and June 15, 1993. All expert depositions to be completed between June 15, 1993 and August 15, 1993. Mailed notice (vmj) (Entered: 12/10/1992)
55 MOTION by plaintiff USA to substitute attachment (Attachments); Notice of filing. (vmj) (Entered: 12/16/1992)
56 OPPOSITION by plaintiff to defendants' motion to compel production of documents [50-1] (Attachments). (vmj) (Entered: 12/16/1992)
57 REPLY by defendants' to plaintiff's o0pposition to defendants' motion to compel production of documents [56-1] (Exhibits); Notice of filing. (vmj) (Entered: 12/28/1992)
58 SURREPLY by plaintiff USA to defendants' motion to compel production of documents [50-1]. (vmj) (Entered: 01/06/1993)
59 MINUTE ORDER of 1/29/93 by Hon. Ronald A. Guzman : Granting plaintiff's motion to substitute attachment [55-1]. Mailed notice (vmj) (Entered: 02/01/1993)
60 ORDER regarding defendant's motion to compel production of documents [50-1]. (vmj) (Entered: 02/01/1993)
61 MINUTE ORDER of 1/29/93 by Hon. Ronald A. Guzman : Denying defendant's motion to compel production of documents [50-1]. No notice (vmj) (Entered: 02/01/1993)
62 ORDER regarding defendant's motion for a protective order [43-1]. (vmj) (Entered: 02/01/1993)
63 MINUTE ORDER of 1/29/93 by Hon. Ronald A. Guzman : Denying defendant's motion for a protective order [43-1] under Rule 26(c) of the Federal Rules of Civil Procedure. The defendant's assertion of the deliberative process privilege is, however, sustained. Enter order. No notice (vmj) (Entered: 02/01/1993)
64 MEMORANDUM, OPINION, AND ORDER. (vmj) (Entered: 02/01/1993)
65 MINUTE ORDER of 1/29/93 by Hon. Ronald A. Guzman : Granting plaintiff's motion to compel production of documents [31-1]. Enter memorandum opinion and order. No notice (vmj) (Entered: 02/01/1993)
66 AFFIDAVIT of Daniel J. Luchins. (vmj) (Entered: 02/02/1993)
67 AFFIDAVIT of Edward Page-El. (vmj) (Entered: 02/02/1993)
68 NOTICE of filing regarding affidavit [67-1], regarding affidavit [66-1]. (vmj) (Entered: 02/02/1993)

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02/16/1993 02/16/1993 03/02/1993 03/10/1993 03/17/1993 03/17/1993 03/17/1993 03/24/1993 04/09/1993 04/09/1993
04/30/1993
05/28/1993 05/28/1993

69 OBJECTIONS by defendants' to the Magistrate's memorandum opinion and order [64-1] granting the plaintiff's motion to compel (Exhibits). (vmj) (Entered: 02/17/1993)
70 NOTICE of filing by defendants' regarding objections to the Magistrate's memorandum opinion and order granting the plaintiff's motion to compel [69-1]. (vmj) (Entered: 02/17/1993)
71 RESPONSE by plaintiff USA to defendants' objections to Magistrate's order [69-1] (Exhibits). (vmj) (Entered: 03/03/1993)
72 MINUTE ORDER of 3/10/93 by Hon. Paul E. Plunkett : Status hearing reset for Aug. 23, 1993 at 9:15 a.m. Mailed notice (vmj) (Entered: 03/11/1993)
73 MOTION by defendants' for leave to file their reply to the plaintiff's response to the defendants' objections ; Notice of motion. (vmj) (Entered: 03/18/1993)
74 MINUTE ORDER of 3/17/93 by Hon. Paul E. Plunkett : Granting defendants' motion for leave to file their reply to the plaintiff's response to the defendants' objections [73-1]. Telephoned notice (vmj) (Entered: 03/18/1993)
75 REPLY by defendants' regarding plaintiff's response to their objections [71-1] (Exhibits). (vmj) (Entered: 03/18/1993)
76 LETTER from plaintiff USA attorney Pamela Chen regarding change of post office box mailing address. (vmj) (Entered: 03/25/1993)
77 ORDER. (vmj) (Entered: 04/12/1993)
78 MINUTE ORDER of 4/9/93 by Hon. Paul E. Plunkett: Enter order: The recommendation of Magistrate Judge Guzman of January 29, 1993 is approved and adopted. Defendants shall produce all records within twenty (20) days of the date of this order. Mailed notice (vmj) (Entered: 04/12/1993)
79 MINUTE ORDER of 4/30/93 by Hon. Paul E. Plunkett: The following changes in the court's memorandum opinion and order of April 9, 1993 are made: 1) The reference throughout the opinion to memorial Hosp. for McHenry County v. Shadur are properly cited to volume 664 of the Federal Reporter, second series. 2) On page two, the cite to Ryan should read: (quoting Ryan v. Commissioner of Internal Revenue. 568 F.2d 531, 543 (7th Cir. 1977), cert. denied. 439 U.S. 820 (1978). 3) On page three, the cite to the Civil Rights of Institutionalized Persons Act should be 42 U.S.C. Section 1997 rather than 42 U.S.C. Section 1977. Mailed notice (vmj) (Entered: 05/03/1993)
80 JOINT MOTION by plaintiff USA, defendant Kathleen A Muniz, defendant James R Edgar, defendant Leigh Steiner, defendant IL, St of to stay discovery ; Notice of motion (fce) (Entered: 06/01/1993)
81 MINUTE ORDER of 5/28/93 by Hon. Paul E. Plunkett : Granting motion

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08/23/1993 09/01/1993 10/14/1993 10/28/1993 11/08/1993 12/01/1993 01/03/1994 01/03/1994 01/03/1994
01/03/1994 01/11/1994
02/09/1994 02/14/1996 02/14/1996

to stay discovery [80-1]. Discovery to resume on 06/30/93 and plaintiff given until 08/02/93 to complete remaining non-expert depositions. Mailed notice (fce) (Entered: 06/01/1993)
82 MINUTE ORDER of 8/23/93 by Hon. Paul E. Plunkett : Status hearing set for 10/15/93 at 9:15 a.m. Mailed notice (fce) (Entered: 08/24/1993)
83 TRANSCRIPT of proceedings for the following date(s): 7/7/92 Before Honorable Paul E. Plunkett (fce) (Entered: 09/07/1993)
84 MINUTE ORDER of 10/14/93 by Hon. Paul E. Plunkett : Status hearing reset for 10/28/93 at 9:15 am Mailed notice (fce) (Entered: 10/15/1993)
85 MINUTE ORDER of 10/28/93 by Hon. Paul E. Plunkett : Status hearing re-set for 11/12/93 at 9:15 a.m. Mailed notice (hp) (Entered: 11/01/1993)
86 MINUTE ORDER of 11/8/93 by Hon. Paul E. Plunkett : Status hearing re-set for 12/02/93 at 9:15 A.M. Mailed notice (fce) (Entered: 11/09/1993)
87 MINUTE ORDER of 12/1/93 by Hon. Paul E. Plunkett : Status hearing re-set for 01/04/94 at 9:15 a.m. Telephoned notice (fce) (Entered: 12/07/1993)
88 JOINT MOTION by plaintiff for entry of consent decree ; Notice of agreed motion (fce) (Entered: 01/04/1994)
89 ORDER regarding motion for entry of consent decree [88-1] (fce) (Entered: 01/04/1994)
90 MINUTE ORDER of 1/3/94 by Hon. Paul E. Plunkett : Granting motion for entry of consent decree [88-1]. The Consent Decree is hereby entered as an order of this court and this court shall retain jurisdiction over this case until the termination of the consent decree as determined by the terms of the decree. terminating case Mailed notice (fce) (Entered: 01/04/1994)
91 CONSENT DECREE by parties (fce) (Entered: 01/04/1994)
92 MINUTE ORDER of 1/11/94 by Hon. Ronald A. Guzman : All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge for further proceedings. terminating case referral to Hon. Ronald A. Guzman No notice (fce) (Entered: 01/12/1994)
93 NOTICE by plaintiff's counsel of change of address (fce) (Entered: 02/11/1994)
94 AGREED MOTION by plaintiff to terminate consent decree and to dismiss case (Attachments); Notice of agreed motion (yap) (Entered: 02/16/1996)
95 MINUTE ORDER of 2/14/96 by Hon. Paul E. Plunkett: Plaintiff's agreed motion to terminate consent decree entered in this action and [94-1] dismiss case [94-2] with prejudice is granted and so ordered. Mailed

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