U.S. v. Oregon

1

• • • • • II • ! • • • • MHI1I • • • •

MR-OR-001-006

2

3

4

CLE.IX, U.S. D!3TH:CT CCLJJIT

DISTRICT OF Q--:iCZU

5

or.i IT1 !•:?' i ^••..'^•.")»j

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF OREGON

10

11 UNITED STATES OF AMERICA,

12

Plaintiff,

13 SONYA FRYER, et al.,

14

Plaintiff-Intervenors,

15

v.

16 STATE OFOREGON, et al.,

17

Defendants.

18

Civil No. 86-961-MA CONSENT DECREE

19

I. INTRODUCTION

20

A. On May 13, 1983, the Attorney General ofthe United

21 States, byand through the Assistant Attorney General, Civil

22 Rights Division, Wm. Bradford Reynolds, ("United States"),

23 notified the Governor and the Attorney General ofthe State of

24 Oregon, and the Superintendent ofFairview Training Center

25 ("Fairview"), of his intention tocommence aninvestigation of

26 alleged unlawful conditions atFairview, pursuant to the Civil

Page 1 - CONSENT DECREE

FORM OBD-I83 MAR 83

1 Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C.

2 § 1997 et.seq.

3

B. Following an investigation pursuant to CRIPA, the

4 United States notified the State that it had reasonable cause to

5 believe that persons residing in Fairview were being subjected to

6 egregious or flagrant conditions that deprived them of their

7 rights, privileges, and immunities secured by the United States

8 Constitution and the Education of the Handicapped Act ("EHA"), 20

9 U.S.C. § 1400 et.seq.

10

C. On July 28, 1986, the United States instituted this

11 action pursuant to CRIPA. The United States is authorized to

12 institute this civil action by 42 U.S.C. § 1997a and has met all

13 prerequisites for the institution of this civil action

14 prescribed by CRIPA.

15

D. This Court has jurisdiction of the CRIPA action

16 pursuant to 28 U.S.C. § 1345.

17

E. Venue is appropriate pursuant to 2 8 U.S.C. section

18 1391(b).

19

F. The State and the United States have determined that

20 the interest of all Fairview residents, as well as the interests

21 of all other citizens of the State of Oregon, can best be served 22 by entering into this Consent Decree ("Decree"), rather than by 23 engaging in protracted, expensive litigation. All parties are 24 committed to working together to improve conditions at Fairview 25 rather than expending limited public resources on divisive 26 litigation.
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FORM OBD-183 MAR 83

1

G. All parties recognize that the State has invested

2 significant resources in Fairview. Further improvements in the

3 quality of care to Fairview residents can be achieved by-

4 transferring significant numbers of residents to community-based

5 residential programs. Resources currently appear adequate to

6 implement this Decree. In entering into this Decree, State

7 officials do not admit any violation of law. This Decree may not

8 be used as evidence of liability in any other proceeding.

9

H. The parties agree that the care and training of

10 residents of Fairview implicate rights secured and protected by

11 the United States Constitution and the EHA.

12

I. The provisions of this Decree are a fair and

13 I appropriate resolution of this case. It is intended by the 14 parties to assure, inter alia, that conditions at Fairview meet 15 constitutional standards and requirements of the EHA.

16

J. The Decree is legally binding and judicially

17 enforceable by the parties hereto. This Decree shall be

18 applicable to and binding upon all the parties; their officers,

19 agents and employees, and their successors; and those persons in

20 active concert or participation with them who receive actual

21 notice of this Decree.

22

II. GOALS AND OBJECTIVES

23 |i

A. The parties recognize that services provided at

24 ;!Fairview are but one component of a broader array of services

|

25

'provided ji

to

persons

in

Oregon

with

mental

retardation

or

other

26

'developmental si

disabilities.

The parties also recognize that care

jSPage 3 - CONSENT DECREE

FORM OBD-I83 jj MAR S3 ':

1 and training required by the Constitution and the EHA do not

2 cover the full range of services that a facility such as Fairview

3 can provide. The Plan developed as part of this Decree is

4 intended to include services and care required by the

5 Constitution and laws of the United States. Some of the Plan's

6 provisions also are intended to address (1) the deficiencies the

7 Health Care Financing Administration ("HCFA") identified with

8 Fairview's compliance with Title XIX standards for intermediate

9 care facilities for the mentally retarded and (2) the desires of

10 Fairview and other State professionals to provide the best care

11 possible to all Fairview residents. The parties also recognize

12 that overall improvement in the provision of such services is a

13 long-term process. The goal of the State is not only to improve

14 services but also to provide optimal services.

15

B. In entering into this Decree, the parties intend to

16 ensure that the State does not deprive Fairview residents of

17 their rights and privileges secured to them by the Constitution

18 and the laws of the United States, by ensuring that conditions at

19 Fairview will satisfy the following objectives:

20

1. To ensure that professionally designed training

21

programs directed at the elimination of unreasonable

22

risks to personal safety or unreasonable use of bodily

23

restraints are provided to all residents, who, in the

24

professional judgment of qualified professionals, are in

25

need of such programs in order to eliminate such

26

unreasonable risks;

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FORM OBD-183 MAR 83

1

2. To ensure that all residents receive that degree of

2

care which is sufficient to protect them from unreasonable

3

risks to their personal safety and from unreasonable use of

4

bodily restraint;

5

3. To ensure that all residents receive adequate, timely

6

medical care pursuant to the exercise of professional

7

judgment by a qualified professional;

8

4. To ensure that all medications are prescribed and

9

administered to residents only pursuant to the exercise of

10

professional judgment by a qualified professional;

11

5. To ensure that the physical environment and sanitation

12

practices at Fairview pose no unreasonable risks to the

13

personal safety and health of residents; and

14

6. To ensure that State officials fully comply with the

15

EHA rights of Fairview residents.

16 These purposes and objectives shall be achieved at Fairview by

17 implementing the requirements set forth in sections IV and V.

18

III. DEFINITIONS

19

A. Parties

20

1. Plaintiff is the United States of America.

21

2. Defendants are the State of Oregon ("the State"); Neil

22 Goldschmidt, the Governor of the State of Oregon; Oregon

23 Department of Human Resources; Kevin Concannon, Director of the

24 Department of Human Resources; Oregon Mental Health Division;

25 Richard Lippincott, Assistant Director of the Department of Human

26
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FORM O B D I 8 3 MAR 83

I

1 Resources and Administrator of the Mental Health Division; Oregon

2 Department of Education; Verne A. Duncan, Superintendent of

3 Public Instruction; and Michael S. Lincicum, Acting

4 Superintendent, Fairview Training Center. Each of the named

5 State officials is sued in his or her official capacity.

6

3. As used in this decree, "party" means the State or the

7 United States.

8

B. Terms

9

As used in this Consent Decree and the Plan required

10 pursuant to Section V, the following definitions apply.

11

1. "Physician": A medical doctor lawfully entitled to

12 practice medicine.

13

2. "Psychiatrist": A physician who either is certified by

14 or is eligible for certification by the American Board of

15 Psychiatry and Neurology or who has successfully completed an

16 approved residency program in psychiatry and upon completion of

17 post-residency requirements will become eligible for examination

18 for such certification.

19

3. "Psychologist": A person who has attained at least a

20 master's degree in the field of psychology.

21

4. "Direct Care Worker": Staff immediately responsible

22 for implementing training programs and providing care to

23 residents.

24

5. "Qualified Professional": A person who is competent,

25 whether by education, training, or experience, to make the

26 particular decision at issue.

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FORM OBD-183 H MAR 83 !

1

6. "Bodily Restraints": "restraints," "seclusion," and

2 "time out," as defined herein.

3

7. "Restraints": (1) Any devices or hold techniques used

4 to restrict the physical movement or actions of a resident or the

5 physical movement, actions, or normal function of any portion of

6 a resident's body, excluding those mechanical supports approved

7 by a physician used solely to achieve proper body position or 8 balance and devices used for specific medical and surgical (as 9 distinguished from behavioral) treatment; and (2) chemical 10 substances, including behavior modifying medications as defined 11 herein, used solely to restrict the movement of a resident.

12

8. "Seclusion": Placement of an individual in a locked

13 room, or a room from which the resident is physically prevented

14 from egress.

15

9. "Time Out": A behavior management technique whereby a

16 resident is isolated from other residents.

17

10. "PRN": A treatment modality ordered on a pro re nata

18 or "as needed" basis.

19

11. "Behavior Modifying Medications": Drugs which are

20 prescribed or administered for the purpose of modifying behavior.

21 Included are the neuroleptics, the major and minor tranquilizers,

22 and antidepressants. Excluded are drugs that may have behavior

23 modifying effects but that are not prescribed or administered for

24 that purpose.

25

12. "Pica": the ingestion of inedible objects.

26
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FORM OBD-183 MAR 83

1

13. "Training Program": A program of steps and activities,

2 including behavior management and the teaching of basic self-care

3 skills, determined by a qualified professional consistent with

4 professional judgment to be necessary to protect a resident from

5 unreasonable risks to personal safety and to facilitate his or

6 her ability to function free from undue bodily restraint.

7

14. "Dysphagia": Impaired ability to swallow liquids or

8 food.

9

15. "Feeding Program": An individual treatment program for

10 a dysphagic resident or any resident nutritionally at risk,

11 determined by a qualified professional consistent with

12 professional judgment to be necessary to protect a resident from

13 unreasonable risks to personal safety.

14

16. "Professional Judgment": A decision by a qualified

15 professional that is not such a substantial departure from

16 accepted professional opinion, practice, or standards as to

17 demonstrate that the person responsible did not base the

18 decision on such professional opinion, practice, or standards.

19

17. "The State": The Executive Branch of the Government of

20 the State of Oregon, specifically including the Governor of the

21 State of Oregon, the Oregon Department of Human Resources, the

22 Oregon State Board of Education, the administration of the

23 Fairview Training Center; and any and all of their officials,

24 agents, employees, or assigns, and the successors in office of 25 such officials, agents, employees, or assigns.

26
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FORM OBD-183 MAR 83

1

18. The "Advisory Panel" is the group described in Section

2 VIII of this Decree.

3

IV. STAFFING

4

A. The State agrees consistently to maintain the

5 ratios of physicians, psychologists, licensed practical nurses in

6 the cottages, registered nurses in the hospital and direct care

7 workers as of the date of the signing of this Decree. Such

8 ratios shall be fully set forth in the Plan required by this 9 Consent Decree pursuant to Section V, paragraph B(l).

10

B. The State agrees to attain and consistently maintain

11 adequate registered nurses assigned to cottages and licensed

12 practical nursing staff for the hospital at Fairview at ratios

13 agreed to by the parties at the time of the signing of this

14 Decree. Such ratios shall be fully set forth in the Plan

15 required by this Consent Decree pursuant to Section V, paragraph

16

17

C. The State shall ensure sufficient consultation or

18 otherwise provide services at Fairview Training Center by such

19 medical specialists as may be needed to provide adequate routine

20 and emergency medical care to each resident including, but not

21 limited to, neurologists, psychiatrists, internists,

22 physiatrists, ophthalmologists, and dentists. Such services

23 shall be fully set forth in the Plan required by this Consent

24 Decree pursuant to Section V, paragraph B(l).

25

D. The State shall ensure sufficient consultation or

26 otherwise provide services at Fairview Training Center by such

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FORM O B D I 8 3 MAR S3

1 qualified professionals as may be needed to provide adequate care

2 to each resident with a physical disability to prevent and/or

3 treat contractures, physical degeneration, inappropriate body

4 growth or deformity, dysphagia, and any other conditions that

5 constitute threats to the physical health of residents. Such

6 services shall be fully set forth in the Plan required by this

7 Consent Decree pursuant to Section V, paragraph B(l).

8

E. The State shall take all reasonable steps and exert all

9 possible efforts to obtain adequate funding and position

10 authority from the Oregon Legislature to implement all the

11 provisions of the Decree and the Plan developed pursuant to

12 Section V. Nothing in this paragraph shall relieve the State of

13 its independent obligation to implement all other terms and

14 conditions in this Decree and the Plan developed pursuant to the

15 Decree to the extent that they implicate the constitutional

16 rights of Fairview residents.

17

V. STATE PLAN

18

In order to comply with this Consent Decree, and to fulfill

19 the goals and objectives described in Section II, the State shall

20 design a plan no later than 60 days after entry of this Consent

21 Decree as an order of this Court.

22

A. Priority measures.

23

Immediately upon entry of this Decree and during preparation

24 of the Plan, the State agrees to continue implementation of the

25 following priority remedial measures. These measures will be

26
Page 10 - CONSENT DECREE

FORM OBD-183 MAR 83

1 included in the Plan and will continue for the duration of the

2 Consent Decree.

3

1. Implementing on a consistent basis training programs

4 developed consistent with professional judgment for those

5 residents identified by a qualified professional pursuant to the

6 exercise of professional judgment, exhibiting life threatening

7 pica behavior, frequent self-injurious conduct, or

8 frequent aggressive conduct;

9

2. Deploying 1:1 staffing when necessary according to

10 professional judgment to protect residents from unreasonable

11 risks of injury to self or others. Such professional judgment

12 shall be exercised by appropriate Fairview professional staff and

13 will, in all cases, be based strictly upon the needs of

14 individual residents and not upon the availability of staff;

15

3. Comprehensively evaluating pursuant to an evaluation

16 process developed consistent with professional judgment all

17 residents at risk of aspiration of liquids or food or at risk of

18 injury due to active seizures and insuring that steps are taken

19 pursuant to professional judgment to reduce or eliminate such 20 risks;

21

4. Evaluating residents receiving psychotropic or anti-

22 convulsant medications and making any necessary changes in

23 diagnosis, and type, dose, and combinations of medications 24 pursuant to professional judgment of appropriate Fairview 25 professional staff;

26
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FORM OBD-183 MAR. 83

1

5. Insuring that medical emergencies are responded to by

2 qualified professionals in a timely manner and that sufficient

3 emergency equipment is available.

4

B. Plan provisions

5

The Plan shall set forth the items specified in paragraphs l

6 through 19 below.

7

1. Identification of staff to resident ratios of

8 physicians, psychologists, registered nurses in the

9 hospital, licensed practical nurses in the cottages, and direct

10 care workers to be consistently maintained during the duration of

11 the Consent Decree; identification of the ratios for registered

12 nurses assigned to cottages and licensed practical nurses for the

13 hospital, the steps to be taken to achieve such ratios, the date

14 such ratios will be met, and identification of the services set

15 out in Section IV, paragraphs C and D. If any ratio is to be

16 met by reducing the resident population of Fairview, the State

17 agrees that the determination as to which residents shall be

18 discharged will be made on the basis of professional judgment

19 exercised by professional staff qualified to make such decisions.

20

2. Procedures (a) to provide regular, periodic

21 professional evaluations of each resident in order to identify

22 those in need of training programs and (b) to provide a

23 sufficient number of training program hours to each resident for

24 whom such training program is necessary.

25

3. Policies and procedures to reasonably ensure that there

26 iis consultation and communication of relevant information between

Page 12 - CONSENT DECREE

FORM OBD-183 MAR S3

1 !]and among personnel regarding residents' care, training needs and

2 priorities, and medical needs and priorities, and that such

3 information is communicated to staff who provide care for that

4 resident.

5

4. Procedures to ensure that professional and direct care

6 staff are adequately deployed and supervised and that such staff

7 exercises professional judgment through such measures as staff

8 training.

9

5. Recordkeeping systems and administrative procedures

10 with respect to each resident's care, medical treatment, and

11 required training that shall be utilized to maintain and make

12 available in each resident's record such information as is

13 professionally necessary to permit the exercise of professional

14 judgment in that resident's care, medical treatment, and

15 training.

16

6. Policies and procedures to ensure the provision of

17 adequate and timely routine and emergency medical and dental

18 care.

19

7. Policies and procedures to ensure the identification

20 and evaluation of residents with physical disabilities and the

21 provision of appropriate services to prevent and/or treat 22 contractures, physical degeneration, inappropriate body growth or

23 deformity, dysphagia, and any other conditions that constitute

24 threats to the physical health of residents.

25

8. Policies and procedures to ensure the evaluation,

26 diagnosis, and treatment of residents with mental illness

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FORM OBD-I83 MAR S3

1 jjconsistent with professional judgment.

2

9. Policies and procedures to ensure that residents

3 receive adequate daily physical care, including feeding,

4 toileting, bathing, and dressing.

5

10. Policies and procedures to govern the use of drugs,

6 particularly anti-convulsants and behavior modifying

7 medications, including policies and procedures concerning the

8 administration of drugs, monitoring and review of whether the

9 drugs prescribed for and administered to each resident are

10 appropriate for the needs of that resident, drug side effects, 11 drug dosage levels, use of two or more anti-convulsants and

12 behavior modifying medications, stat orders and PRN 13 prescriptions, and utilization of drugs with a behavior 14 modification program.

15

11. Policies and procedures to provide that bodily

16 restraints: (a) are administered only pursuant to the judgment

17 of a qualified professional; and (b) are not to be used as

18 punishment, in lieu of training programs prescribed by a

19 qualified professional, or for the convenience of staff. Any

20 decision to place a resident in bodily restraint shall be

21 recorded promptly and shall be reviewed by a qualified

22 professional at specified reasonable intervals to determine

23 whether or not the continuation of such bodily restraint is

24 professionally justified.

25

12. Procedures to provide that residents shall be

26 protected from unreasonable risks of bodily harm to their

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FORM OBD-183 ]| MAR 83 :!

personal safety by the conduct of staff or other residents,

including adequate staff supervision of residents and

requirements to report alleged incidents of bodily harm or

unreasonable risk of bodily harm, investigations of such

allegations, disciplinary rules and procedures, and sanctions to

be followed upon any finding of bodily harm or unreasonable risk

of bodily harm.

8

13. Enforcement mechanisms, including disciplinary measures

and sanctions where appropriate, to provide for staff compliance

10 with all policies, rules, and standards of job performance and

11 behavior.

12

14. Measures to ensure that the physical environment and

13 sanitation practices at Fairview Training Center do not pose an

14 unreasonable risk to the personal safety and health of residents.

15

15. Procedures to ensure that the appropriateness of

16 placement of residents at Fairview Training Center is regularly

17 evaluated by qualified professionals.

18

16. Measures to ensure that each resident under the age of

19 twenty-one is afforded a free, appropriate education pursuant to

20 the Education of the Handicapped Act, 2 0 U.S.C. §1400 et seq.

21

17. Measures to ensure that the Fairview staff are

22 qualified to engage in the physical management of physically

23 handicapped residents and to implement specialized behavior

24 training and feeding programs for residents.

25

18. Measures to ensure that all medical and direct care

26 staff are qualified to render first aid and emergency aid.

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FORM OBD-I83 MAK. S3 i

19. Measures to insure that all residents with seizures

receive comprehensive neurological evaluation and treatment.

3

C. Plan Procedures

4

1. The State will fully implement the entire Plan not later

than June 30, 1991.

2. The parties agree that a plan which addresses the items

specified in Attachment A will constitute an acceptable plan,

8 provided the plan reflects the professional judgments of

appropriate and qualified professionals.

10

3. In developing the Plan, the State may consult with the

11 Advisory Panel. Prior to consulting with the Advisory Panel, the

12 State shall inform the United States of the pending consultation.

13 The United States may participate in the consultation.

14

4. The Plan will state in specific terms and reasonable

15 detail the actions to be taken by the State, the dates of such

16 actions, and the substance of the policies, procedures,

17 regulations, or protocols promulgated and issued by the State.

18

5. After completion of the Plan, the State will submit the

19 Plan to the United States. The United States shall submit to the

20 State any comments or recommendations within 4 5 days after

21 receipt of the Plan. If the United States does not submit any

22 comments or recommendations, the Plan will be final, and the 23 State shall file the final Plan with the Advisory Panel and the 24 Court.

25

6. In the event that the United States submits any comments

26 or recommendations, the State will consider the comments and

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FORM OBO-183 MAR 83

1 recommendations and may consult with the Advisory Panel 2 regarding them. Prior to consulting with the Advisory Panel, 3 the State shall inform the United States of the pending 4 consultation. The United States may participate in the 5 consultation. If the State decides not to adopt any

6 recommendation or comment, the parties shall confer.

7

7. After conferring, and within 30 days of the State's

8 receipt of the United States' recommendations or comments, the

9 State shall file its Plan with the Advisory Panel and provide

10 copies of the Plan to the United States. The State shall notify

11 the United States of any comments or recommendations that were

12 not included in the final Plan.

13

8. Within 15 days of their receipt of the Plan, the United

14 States shall file with the Advisory Panel any objections to the

15 Plan. The Advisory Panel shall consider those objections as

16 provided in Section VIII of this Decree.

17

9. Any party may seek judicial review of the Advisory

18 Panel's decision within ten days. If no review is sought, the 19 State shall file the final Plan with the Court.

20

VI. MODIFICATION OF THE PLAN

21

A. The State will submit any proposed modification of the

22 Plan to the United States. No modifications shall be submitted

23 until 60 days following approval of the Plan.

24

B. The United States may provide the State with comments or

25 recommendations regarding the proposed Plan modification within

26 30 days of receipt of the proposed modification.

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FORM OBD-183 MAR 83

1

C. If the United States does not submit any comments or

2 recommendations, the Plan modification will be final, and the

3 State shall file the Plan modification with the Advisory Panel

4 and submit the Plan to the Court.

5

D. In the event that the United States submits any

6 comments or recommendations, the State will consider the comments

7 and recommendations within 30 days, and may consult with the

8 Advisory Panel regarding them. Prior to consulting with the

9 Advisory Panel the State shall inform the United States of the

10 pending consultation. The United States may participate in the

11 consultation. If the State decides not to adopt the

12 recommendations or comments, the parties shall confer within 3 0

13 days.

14

E. If the parties reach agreement about the Plan

15 modification, the State shall file the final modification with

16 the Advisory Panel. If the parties do not reach agreement, the

17 State shall file the proposed Plan modification with the Advisory

18 Panel and provide copies of it to the other parties. The Panel

19 shall consider any written materials provided within 14 days by

20 the parties regarding the proposed modification as provided in

21 Section VIII.

22

F. Any party dissatisfied with the Panel's decision may

23 seek review by the court as provided in Section IX within ten

24 days notice of the Panel's decision.

25

G. If the State determines that immediate modification of

26 a Plan provision is necessary, upon telephonic notice to the

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FORM OBD-183 MAR S3

1 United States, the State may seek relief from the Court.

2

VII. MONITORING THE PLAN

3

A. The State intends to fully implement the Plan in

4 accordance with the terms of this Decree. The Plan shall be

5 enforceable against the State to the fullest extent necessary to

6 satisfy constitutional standards and requirements of the EHA.

7

B. Reports

8

1. Beginning the first quarter after entering this Consent

9 Decree, the State shall provide the Advisory Panel and the United

10 States with quarterly reports describing Fairview's progress with

11 implementing the Plan. The reports shall be filed quarterly, no

12 later than fifteen (15) days after the end of each quarter, and

13 continue until such time as this Consent Decree is terminated.

14

2. Beginning 30 days after this Decree is entered, the

15 State shall provide the Advisory Panel and the United States on a

16 monthly basis the following information routinely collected and

17 summarized: (a) statistics on use of personal hold and

18 restraint; (b) incident report analyses; (c) statistics on

19 staffing; (d) a list of residents who died and cause of death;

20 (e) monthly hospital admission log; and (f) abuse investigation

21 reports.

22

C. Monitoring by United States

23

The United States and its attorneys, consultants, and

24 agents shall have reasonable access to the facilities, records,

25 residents, and employees of the Fairview Training Center upon

26 reasonable notice to the State for the purpose of ascertaining

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FORM O B D I 8 3 MAR 83

1 I compliance with the Decree. The United States and the State
i
2 |shall engage in good faith efforts to determine the time and
3 I manner of such tours. Absent agreement, any party may seek !irelief from the Court. No tours will be conducted during on-site

4 surveys by HCFA or the state survey agency without prior consent

5 of the State.

6

2. Following tours by the United States, the United States

7 will provide a written report to the State regarding Fairview's

8 implementation of the Plan.

9

3. The State shall have 30 days to review the report of the

10 United States and to notify the United States of what actions, if

11 any, the State proposes to take in response to the report. If

12 the United States is dissatisfied with the State's response, it

13 shall have 30 days to refer the matter to the Advisory Panel and

14 will advise the State of any decision to do so.

15

4. Upon referral to the Advisory Panel on a compliance

16 matter, the Advisory Panel shall promptly deliberate and reach

17 its decision regarding compliance no later than 30 days after the

18 referral. The Advisory Panel, accompanied by such consultants as

19 they deem necessary, may conduct such site visits to Fairview as

20 the Panel deems necessary to ascertain whether the State is in

21 compliance or noncompliance as determined by the United States.

22

5. Upon reaching a decision as to the State's compliance

23 with the Consent Decree or Plan, the Panel will issue its report

24 and make a finding regarding the status of compliance.

25 The Panel will identify those recommendations by the United

26 Page 20 - CONSENT DECREE

FORM OBD-ISJ MAR ii

1 States which the Panel believes the State must take to achieve

2 compliance.

3

6. The Advisory Panel shall provide a unanimous, unsigned

4 decision to the parties in writing.

5

7. In the event the United States determines that emergency

6 measures are necessary, upon telephonic notice to the State, the

7 United States may seek relief from the Court.

8

VIII. THE ADVISORY PANEL

9

A. Composition of the Advisory Panel

10

1. The Panel shall consist of three members.

11

2. The parties shall meet in an attempt to agree to

12 the composition of the Panel.

13

3. If the parties are unable to agree, one member shall be

14 appointed by the United States and one shall be appointed by

15 defendants. The two members who are chosen shall select a third

16 member, with both the United States and the State retaining a

17 right to veto the third person chosen.

18

4. If a vacancy occurs due to the death or resignation of a

19 person, the parties shall meet in an attempt to

20 agree upon a successor. If the parties are unable to agree, the

21 two incumbent members shall choose a successor with each party

22 retaining the right to veto the incumbents' selection.

23

5. The Chairperson shall be jointly selected by the parties

24 to preside over the Panel. If the parties are unable to agree,

25 the Chairperson shall be selected by the Court. The Chairperson

26 shall call meetings, establish procedures for resolving disputes

Page 21 - CONSENT DECREE

FORM OBD-m MAR 83

between the parties under this Decree, administer the budget, and

authorize expenditures.

3

B. Budget

4

1. The State shall deposit $200,000 in an interest bearing

account.

2. The funds shall be used to pay fees of the Panel members

and such consultants and other expenses as the Panel deems

8 necessary.

9

3. The State shall make space available to the Panel

10 members upon request.

11

4. Travel by the Panel members and any consultants the

12 Panel employs shall be reimbursed at a rate not in excess of that

13 provided pursuant to federal guidelines.

14

C. Standards

15

1. In reaching decisions regarding disagreements over

16 provisions of the proposed plan or proposed modifications to the

17 final plan which are required to implement the purposes and

18 objectives set forth in Section II(B) of this decree, the

19 Advisory Panel shall determine whether the provision or

20 modification represents a substantial departure from accepted

21 professional judgment.

22

2. In reaching decisions regarding recommendations

23 submitted by the United States regarding compliance with

24 provisions of the plan which are required to implement the

25 purposes and objectives set forth in Section II(B) of this

26 Decree, the Panel shall determine whether the State is in

Page 22 - CONSENT DECREE

FORM OBD-K] MAR. I)

1 compliance or noncompliance.

2

3. If, at any time, any party believes that an action

3 expressly required by HCFA at Fairview conflicts with any

4 provision of this Decree or the plan required by Section V, the 5 parties agree to meet promptly to resolve the matter.

6

IX. JUDICIAL REVIEW

7

1. Any party may seek review by the Court of a decision by

8 the Advisory Panel. Prior to seeking judicial review, the

9 parties shall confer in a good faith effort to resolve

10 differences, and shall provide written assurance to the Court

11 that they have conferred.

12

2. In reviewing a decision of the Advisory Panel, the Court

13 shall apply the standards set out at Section VIII, Paragraph C.

14 The decision of the Advisory Panel shall be entitled to a

15 rebuttable presumption of correctness.

16

3. The parties anticipate that judicial review shall occur

17 on an expedited basis. The Court may consider whether it is

18 appropriate to conduct a hearing. If a party desires discovery

19 and the parties cannot agree, the Court shall conduct a

20 discovery conference to determine whether discovery may be had.

21

4. Nothing in this Decree limits the right of appeal of any

22 party.

23

X. TERMINATION OF DECREE

24

1. The parties contemplate that the defendants shall have

25 fully and faithfully implemented all provisions of this Consent

26 Decree and the Plan on June 30, 1991, provided the Plan required

Page 23 - CONSENT DECREE

FORM OBO-I83 MAX 83

1 by this Consent Decree is completed and approved no later than

2 six months after entry of this Consent Decree.

3

2. The Court shall retain jurisdiction of this action for

4 all purposes under this Consent Decree until the defendants shall

5 have fully and faithfully implemented all provisions of the

6 Consent Decree and the Plan and until the judgment be discharged.

7

3. On or after the date on which the State shall have fully

8 and faithfully implemented all provisions of this Consent Decree

9 and the Plan, the State may move that the injunctions entered

10 herein be dissolved, the judgment discharged, jurisdiction

11 terminated, and the case closed and dismissed with prejudice on

12 grounds that the State has fully and faithfully implemented and

13 maintained all provisions of this Consent Decree and the Plan

14 submitted pursuant thereto.

15

4. Dismissal shall be granted unless, within 60 days after

16 receipt of the State's motion, the United States objects to the

17 motion. If such an objection is made with particularity, the

18 Court shall hold a hearing on the motion and the burden shall be 19 on the United States to demonstrate that the defendants have not 20 fully and faithfully implemented all provisions of this Consent 21 Decree or the Plan or any part of the Plan and, if objection

22 is based upon failure to implement any part of the Plan, that 23 such part of the Plan is essential to the achievement of one or 24 more of the goals and objectives set forth in Section II.B of 25 this Consent Decree. If the United States fails to meet this 26 burden, the injunctions shall be dissolved, this judgment
Page 24 - CONSENT DECREE

FORM OBDI83 MAR 8J

1 shall be discharged, jurisdiction shall be terminated forthwith,

2 and the case shall be closed and dismissed with prejudice.

3

The parties agree to entry of this Consent Decree as a

4 judgment of the Court pursuant to the agreed form.

5 CONSENTED TO:

6

M JAMES P. "TURNER, Acting Assistant Attorney General
8 Civil Rights Division

NEID GOLDS Governor

9

10
JACK G. COLLINS
11 Chief, Civil Division
Oregon United States
12 Attorney

v\9
KEVIN CONCANNON Director, Department of Human Resources

13

14
ARTHUR E. PEABODY, Jr.
15 MELLIE H. NELSON
ROBINSUE FROHBOESE
16 CYNTHIA L. KATZ
GAYLE D. FIDLER
17 TIMOTHY R. PAYNE
JEREMY I. SCHWARTZ
18 Attorneys
Special Litigation Section
19 Civil Rights Division
U.S. Department of Justice
20 Washington, D.C. 20530

BPINCOTT Assistant Director, Department of Human Resources
VERNE A. DUNCAN Superintendent, Public Instruction

21

MICHAEL y

Acting Superintendent,

22

Fairview Training Center

23
Approved as to form:
24

25

WILLIAM F. GARY

26

Special Assistant Attorney

General

Page 25 - CONSENT DECREE

FORM OBD-I83 MAR 83

1

ATTACHMENT A

2

Attachment A is a list of specific items to be addressed in

3 the Plan. The United States believes each matter identified in

4 Attachment A is constitutionally or statutorily required. The

5 State does not agree that every matter discussed in Attachment A

6 is constitutionally or statutorily required nor that a plan must

7 address every item in the manner specified in Attachment A to be

8 an acceptable plan under the Decree.

9 I. BEHAVIOR MANAGEMENT AND PROGRAMMING

10

A. Process for continual identification of residents with

11

"at risk" behavior; operational criteria for "risk

12

indicators."

13

B. Timely comprehensive behavior assessments of residents

14

to identify maladaptive behaviors with specificity and

15

their antecedent, consequential, and motivational

16

factors.

17

C. Development of timely individualized behavior programs,

18

including communication programs and skills training

19

programs to increase tolerance and coping, with

20

appropriate data collection systems to address each

21

resident's behaviors with the least restrictive

22

intervention in a proactive manner that comports with

23

accepted professional standards.

24

D. Timely peer review process of behavior programs to

25

evaluate whether they comport with accepted

26

Page 26 - CONSENT DECREE

FORM OBDI83 MAR. 83

1

professional standards; professional staff

2

identification of programs for peer review.

3

E. Implementation of behavior programs of sufficient

4

duration with consistency across settings and staff.

5

F. Regularly scheduled training to instruct staff in how

6

to implement individualized behavior programs of

7

residents within their care; monitoring to ensure

8

consistent implementation of programs; professional on-

9

site supervision of staff.

10

G. Regular professional data-based evaluations of efficacy

11

of behavior programs; appropriate and timely

12

modifications made when necessary.

13

H. Adequate supervision of residents by staff to ensure

14

that residents do not suffer harm and are not at risk

15

of harm; adequate deployment of staff, particularly

16

during breaks.

17

I. Rigorous comprehensive quality assurance system with

18

procedural reliability checks to ensure that components

19

A-H, above are consistently implemented and

20

accomplishing intended purposes.

21

J. Adequate client ratios of psychologists.

22 II. RESTRAINTS

23

A. Unified recordkeeping system to record use of all

24

restraints (i.e. consistent from cottage to cottage).

25

B. Computerized system to record on a monthly basis use of

26

all restraints.

Page 27 - CONSENT DECREE

FORM OBD-183 MAR S3

1

C. System to ensure review by cottage IDT, Quality

2

Assurance, and Psychology Department of use of

3

restraints; system to ensure that frequent use of

4

restraints or prolonged period of restraints is

5

identified, evaluated, and timely changes in behavior

6

prescriptions are made when necessary.

7

D. System to ensure that in use of restraints:

8

1. Attempts are made to decrease use of restraints

9

through behavior programs and active treatment;

10

and that program is reevaluated on a timely basis.

11

2. Staff are adequately trained; restraints are used

12

for least amount of time necessary; appropriate

13

restraints are used only as a last resort after

14

documentation that all professionally appropriate

15

approaches absent restraints have been

16

consistently and appropriately implemented.

17

3. Use of restraints is part of a behavior program

18

except in an emergency (in which case appropriate

19

safeguards are in place to ensure that

20

professional discretion is exercised) .

21 III. MEDICAL CARE

22

A. System to ensure adequate and timely detection and

23

treatment of injury and illness: (a) method of

24

communicating information among direct care, CMA,

25

nursing, and physician staff; (b) appropriate and

26

timely response to injuries, particularly falls;

Page 28 - CONSENT DECREE

FORM OBD-I83 MAR i3

1

(c) method to communicate information between on-call

2

physicians and regular cottage physicians; (d) method

3

to ensure follow-up by cottage physician of specialist

4

recommendations, particularly neurologists and

5

psychiatrists; (e) method to ensure that decisions to

6

transfer residents from Fairview Training Center

7

Hospital to general hospital are made in a timely

8

fashion.

9

B. Coordination between health care professionals:

10

1. Between dietitians (particularly special diets

11

and nutritional assessments) and nurses and

12

physicians.

13

2. Between specialists (particularly neurologists

14

and psychiatrists) and cottage physicians.

15

3. Between health care staff and psychologists.

16

4. Between Occupational Therapists, Physical

17

Therapists, Respiratory Therapists and nurses and

18

physicians.

19

C. Emergency medical care.

20

1. 24-hour on-site availability of physician.

21

2. System to ensure emergency equipment is available

22

24 hours a day seven days a week and is in

23

working order.

24

3. Evaluation of emergency equipment in residential

25

and program areas to determine whether additional

26

on-site equipment is necessary.

Page 29 - CONSENT DECREE

FORM OBD-183 MAR 83

1

4. System for regular emergency (Code 99) drills

2

with feedback on necessary corrective actions.

3

(Reinstitute regular meetings of Code 99

4

Committee.)

5

5. Policy on providing decision making regarding no

6

code or termination of resuscitation efforts.

7

6. ACLS certification by physicians on Code 99

8

Team.

9

D. Dental Care

10

1. Sufficient number of dentists, dental

11

hygienists, and dental assistants.

12

2. Behavior programs developed and implemented to

13

reduce need for IV sedation and general

14

anesthetic.

15

3. Cottage programs for improved oral hygiene and

16

teaching oral hygiene skills.

17

4. Comprehensive timely annual dental evaluations

18

for all residents.

19

5. System to identify and treat residents at dental

20

risk because of medication usage.

21

E. Hospital Care

22

1. Protocol to ensure standardization and adequacy

23

of hospital admit orders, including diagnosis,

24

vital signs, special precautions, and indications

25

for immediate notification of MD.

26
Page 30 - CONSENT DECREE

FORM OBD-183 MAR 83

1

2. Policy to ensure adequate consultation by

2

specialists.

3

3. Policy to ensure adequate discharge plans and

4

need for follow-up.

5

4. Policy to ensure adequate and timely discharge

6

summaries.

7

F. Adaptive Equipment

8

1. Assessments to determine needs for eyeglasses,

9

hearing aids, dentures.

10

2. Process to ensure that the above are provided on

11

a timely basis and used (behavior programs to

12

encourage use where necessary).

13

G. Functioning Medical Committees, including:

14

1. Peer review and credentialling.

15

2. Death reviews.

16

3. Code 99 reviews.

17

H. Ongoing medical quality assurance monitoring.

18 IV. MEDICATION ADMINISTRATION

19

A. System to monitor and detect medication errors and take

20

corrective action.

21

B. Implementation of unit dose system on a facility- wide

22

basis.

23

C. System to ensure that certified medication aides

24

observe and report medication side effects.

25

D. Procedures to ensure that medication is swallowed when

26

given and that appropriate follow-up occurs if a

Page 31 - CONSENT DECREE

FORM OBD-183 MAR 83

1

resident refuses medication.

2

E. System to ensure continuity in assignment of CMAs,

3

consistency in group of residents for which CMA is

4

responsible, and familiarity with residents.

5

F. System to ensure adequate supervision by nursing staff

6

and CMAs in medication and treatment administration.

7

G. Adequate documentation of PRN medications (initial

8

assessment and follow-up).

9 V. NURSING

10

A. System to ensure adequate supervision by nursing staff

11

of CMAs in medication and treatment administration;

12

timelines for implementation of RN unit health

13

supervisor program.

14

B. Timely development, implementation, and

15

review/modification of nursing care plans.

16

1. Identification of health risk indicators for

17

clients.

18

2. Protocols for ongoing monitoring and intervention

19

according to level of risk.

20

C. Evaluation of residents to assess drug side effects.

21

D. System for ongoing quality assurance of nursing

22

functions.

23

E. Procedure to ensure timely review and prompt response

24

to changes in bowel flow, weight loss, daily intake of

food and fluids.
25

26

F. Training of nurses: (1) new RN orientation; (2)

Page 32 - CONSENT DECREE

FORM OBD-183 MAR 83

1

inservice training; (3) detection of subtle signs of

2

aspiration and reflux and observation to evaluate

3

whether residents are at risk of aspiration; (4)

4

development and implementation of health risk

5

indicators.

6

G. Plan and timeline to ensure adequate R.N. and L.P.N.

7

staffing on the cottages and in the hospital during

8

all shifts, seven days per week.

9 VI. SEIZURE MANAGEMENT

10

A. System to conduct comprehensive evaluation of all

11

residents on anticonvulsants on an expedited basis

12

and for annual reevaluations.

13

B. Policy detailing required time frames within which to

14

obtain laboratory tests for anticonvulsant drug levels.

15

C. System to ensure that residents at risk of injury

16

from seizures are identified and protected by

17

(1)adequate supervision; (2) ordering and implementing

18

in a timely fashion safety precautions (e.g., bed

19

rails, padding) and communicating them to staff; (3)

20

removing environmental hazards; (4) ensuring protective

21

head gear is in good condition and does not contribute

22

to injury: (a) evaluate individualized need for

23

protective head gear; (b) design appropriate

24

individualized head gear; (c) periodically inspect and

25

repair problems with protective head gear.

26

Page 33 - CONSENT DECREE

FORM O B D I 8 3 MAR. 83

1

D. Protocols on appropriate combinations of

2

anticonvulsants.

3

E. Policy to continue practice of no locked helmets for

4

seizure clients.

5

F. System to ensure that critical cases are addressed by

6

the Fairview neurologist, including (1) all seizure

7

clients admitted to the hospital; and (2) seizure

8

clients who experience repeated falls and/or injury.

9

G. System to ensure adequate follow-up on epilepsy

10

evaluations: (1) documented follow-up on

11

recommendations by cottage physicians; (2) close

12

supervision during medication changes; and (3)

13

continuity and timeliness of follow-up.

14

H. Neurologist's authority to write order.

15

I. System to ensure that consult requests for neurological

16

evaluations are responded to in a timely fashion.

17

J. Adequate staffing (i.e., consultants) to ensure A-I,

18

above.

19

K. System to adequately record consistent information on

20

occurrence of seizures.

21 VII. PSYCHOPHARMACOLOGY

22

A. Continuation of practice prohibiting prn use of

23

psychotropic medication.

24

B. Policy setting maximal dosages of psychotropic

25

medications.

26
Page 34 - CONSENT DECREE

FORM OBD-I83 MAR 83

1

C. Policy ensuring continuation of the practice of no

2

intraclass polypharmacy.

3

D. System to ensure that appropriateness of continued use

4

of psychotropics is regularly reviewed by a

5

psychiatrist, that timely changes are made when

6

necessary, and that use of psychotropics is continued

7

only when authorized by a qualified professional, which

8

may include an automatic stop order or renewal policy.

9

E. Laboratory monitoring for levels of psychotropic

10

medications and protocols regarding such monitoring.

11

F. Policy prohibiting use of psychotropics without a

12

behavior prescription.

13

G. Policy ensuring physician exam following

14

administration of stat order.

15

H. System to ensure there is continuity of psychiatric

16

care.

17

I. System to ensure that when changes in psychotropic

18

medication are made: (1) direct care staff are aware

19

of those changes; (2) direct care staff report changes

20

in condition; and (3) close supervision is provided at

21

the time of medication changes; and (4) adequate data

22

on behaviors is documented.

23

J. System to ensure that when psychiatric recommendations

24

are made, the cottage physicians review and implement

25

recommendations on a timely basis or document

26

justification for not following recommendations.

Page 35 - CONSENT DECREE

FORM OBD-I83 MAR 83

1

K. Psychiatrists' authority to write orders.

2

L. Participation by psychiatrists in the IPP process and

3

input in quarterly health care reviews.

4

M. Meaningful coordination between psychiatrists and

5

psychologists; timely modification to behavior

6

prescriptions as changes in psychotropic medications

7

are made.

8

N. System to ensure adequate monitoring of side effects of

9

psychotropic medications and to ensure appropriate

10

follow-up action is taken.

11

O. Psychiatric reevaluations of all residents on

12

psychotropic medications; adjustments where necessary

13

in medication regimen based on behavioral data.

14

P. System to ensure that all residents are on lowest

15

effective dose of psychotropic medication.

16

Q. System to ensure that a specific psychiatric diagnostic

17

formulation is made and recorded in the record with

18

supporting rational for psychotropic drug therapy.

19

R. Progress notes documenting efficacy of pharmacological

20

and behavioral treatments; drug side effects, serum

21

levels, any medication complications or

22

contraindications.

23

S. Adequate staffing (i.e., consultants) to ensure A-R,

24

above.

25

. PHYSICAL THERAPY

26

A. Comprehensive physical therapy evaluations of all

Page 36 - CONSENT DECREE

FORM OBD-I83 MAR 83

1

residents to identify physical therapy needs (priority

2

given to residents in intensive care cottages and who

3

have physical disabilities).

4

B. Development and implementation of individualized

5

physical management programs by interdisciplinary

6

process: (1) physical therapy, mobility, ambulation

7

training (2) positioning/postural alignment across 24

8

hours; (3) individually designed therapeutic equipment

9

to correct deformity (reevaluation of current

10

equipment, particularly appropriate side-lying

11

equipment); (4) prevention of contractures, skin

12

breakdown; and (5) transfer techniques.

13

C. Training of direct care staff in how to implement

14

individualized physical management programs, monitoring

15

staff implementation of programs, providing feedback,

16

and taking corrective action where necessary.

17

D. Periodic reevaluation of physical therapy needs and

18

efficacy of physical management programs, making

19

modifications where needed.

20

E. Quality assurance program to monitor progress, ensure

21

timely evaluations, reevaluations, and delivery of

22

needed services, including using necessary equipment on

23

a continuing basis, particularly positioning devices,

24

splints, and footrests.

25

F. Adequate staffing to ensure A-E, above, including use

26

of consultants where needed.

Page 37 - CONSENT DECREE

FORM OBD-I83 MAR 83

1

G. Timely provision of individualized equipment,

2

particularly wheelchairs and other vendor-purchased

3

equipment.

4 IX. FEEDING

5

A. Priority measures for residents at risk of aspiration.

6

B. Identification: Process to ensure initial facility-

7

wide identification and ongoing identification,

8

including detection of early warning signs of:

9

1. Residents at nutritional risk (i.e., residents

10

whose inability to ingest sufficient nutrients,

11

keep them in their system, absorb them, or

12

excrete them places them at nutritional risk).

13

2. Residents who need occupational therapy training

14

in eating skills. •

15

C. Interdisciplinary evaluation and assessment of needs of

16

residents at nutritional risk and residents who need

17

occupational therapy training in eating skills to

18

determine specific programmatic needs.

19

D. Development of individualized interdisciplinary plans.

20

1. Residents at nutritional risk:

21

a. Plan for placement of food and liquids in

22

mouth.

23

b. Positioning before, during, and after

24

feeding.

25

c. Level of professional supervision needed.

26

d. Behavioral/environmental considerations,

Page 38 - CONSENT DECREE

FORM OBD-I83 MAR 83

1

including any need to limit number of

2

different staff who feed.

3

2. Eating skills: Individualized occupational

4

therapy plan to teach needed skills.

5

E. Implementation of Individualized Plans.

6

1. Residents at nutritional risk:

7

a. Train direct care staff in how to

8

implement/evaluate staff for competency in

9

implementation.

10

b. Deploy staff to ensure consistency in

11

feeders.

12

c. Professional staff to model appropriate

13

techniques, supervise, and evaluate direct

14

care staff.

15

2. Eating skills

16

a. Train direct care staff in how to implement

17

eating program.

18

b. Professional staff to model and evaluate for

19

competency in implementation.

20

F. Development of "risk indicators" for persons

21

nutritionally at risk and protocols for each "risk

22

level" re: ongoing assessment, evaluation, and

23

provision of treatment.

24

G. Periodic reevaluation of individualized plans by inter

25

disciplinary team to ensure efficacy of plans;

26

professional review of nutritional management risk

Page 39 - CONSENT DECREE

FORM OBD-I83 MAR 83

1

indicators data; timely revision to plans developed and

2

implemented when necessary.

3

H. Adequate staff to ensure the above, e.g., OTs/COTAs,

4

Speech therapists, Habilitative Nurses, and Physical

5

Therapists.

6

I. Weight Maintenance

7

1. Identify all residents 10-20 percent below weight

8

and/or at weight maintenance risk, e.g., insulin

9

dependent.

10

2. Assess dietary needs of residents; order

11

appropriate diets.

12

3. Monthly nutritional assessment for all residents

13

at weight maintenance risk.

14

4. Evaluate diet to determine if any changes need to

15

be made.

16

J. Arrangement of dining schedules for residents at

17

nutritional risk and those on eating programs to ensure

18

sufficient amount of time for individual attention and

19

atmosphere conducive to eating (e.g., scheduling

20

mealtimes for smaller groups to prevent down time while

21

waiting to eat).

22

K. System to ensure that dietary evaluations are conducted

23

and appropriate diets ordered. In particular:

24

1. Dietary supplements for underweight residents.

25

2. Fiber and bran and other dietary adjustments and

26

Page 40 - CONSENT DECREE

FORM O8D-I83 MAR S3

1

management measures for residents with chronic

2 !

constipation.

3

3. System to ensure that special diet orders are

4

provided on a consistent basis.

5

L. Evaluation of residents to determine special equipment

6

needed for eating/feeding, e.g., scoop spoons, straws,

7

appropriate cups for fluids; quality assurance system

8

to ensure that necessary special equipment is available

9

and used during mealtimes.

10

M. Policy setting forth procedures to be followed when a

11

resident refuses food or when maladaptive behaviors

12

interrupt mealtimes.

13

N. Procedures outlining timely and professionally

14

appropriate decision-making process for starting,

15

stopping, and weaning NG-tube, G-tube and to perform

16

Nissen fundoplication procedure.

17

O. Adequate staffing (i.e. consultants or otherwise) to

18

ensure items A-N, above.

19 X. SANITATION AND INFECTION CONTROL

20

A. Systematic evaluation of critical areas, particularly

21

those in which clients eat, treatments are given, and

22

medications are passed to determine in which areas

23

sinks can reasonably be installed given physical plant

24 ;

limitations; an effort to remove clients, especially

25

dependent feeders, from areas without sinks as

26

downsizing occurs; and immediate attention focused

Page 41 - CONSENT DECREE

FORM OBD-183 MAK 83

1

on Wards 3 and 4 in Martin, the Snell dining room and

2

the dining areas in Patterson.

3

B. Training to ensure that all staff are aware of the need

4

for and understand appropriate techniques to assure

5

adequate infection control.

6

C. System to monitor and provide feedback to staff on

7

infection control practices.

8

D. Sufficient number of housekeeping staff to provide

9

consistent sanitary environment in residential and

10

program areas and to ensure that direct care staff are

11

not removed from direct care duties to perform

12

housekeeping functions.

13

E. System to ensure that sanitation and infection control

14

problems are identified and remedied in a timely

15

fashion.

16

F. Timelines to ensure that adequate hot water is

17

consistently available in all residential and program

18

areas and in the hospital.

19

G. Adequate precautions for hepatitis B carriers.

20 XI. STAFF TRAINING

21

Direct Care Staff:

22

A. Initial Training before beginning work on cottages:

23

1. State Certified Nursing Assistant (CNA)

24

2. Behavior management (developmental and behavioral

25

needs of persons with mental retardation;

26

appropriate interventions and management of

Page 42 - CONSENT DECREE

FORM OBD-183 MAR S3

1

maladaptive behaviors; implementation of

2

individual behavior programs).

3

3. Physical care (basic skills to meet health care

4

needs, sanitation and infection control,

5

appropriate hygiene methods, detection of signs of

6

illness, and first aid).

7

4. Habilitative nursing (positioning, feeding,

8

bathing, toileting, lifting and transferring

9

residents with physical disabilities) to the

10

extent commensurate with the needs of assigned

11

clients/cottage.

12

5. CPR

13

B. Competency evaluation of skills mastered.

14

C. Provision of training in items A 1 - 5 above, to

15

existing staff who can not demonstrate competency

16

through a process for challenge.

17

D. Ongoing Training.

18

1. Behavior Management:

19

a. Training by professionals in the correct

20

implementation of the individual behavior

21

management programs for clients for whom each

22

direct care staff person is responsible.

23

b. Individual periodic evaluations regarding

24

implementation of specific behavior prescriptions

25

and overall staff to client interaction skills.

26 Page 43 - CONSENT DECREE

FORM OBD-183 MAR 83

1

c. Additional individual or inservice training,

2

as necessary.

3

2. Physical Care:

4

a. Training by professionals in the correct

5

implementation of positioning, feeding, and

6

other rehabilitation programs for clients for

7

whom each direct care staff person is

8

responsible.

9

b. Periodic evaluations regarding ability to

10

render proper physical care to residents.

11

c. Additional individual or inservice training,

12

as necessary.

13

3. CPR: Periodic refresher training to maintain

14

certification.

15

Certified Medication Aides:

16

A. Initial training before commencing duties:

17

1. State Board of Nursing approved curriculum.

18

2. Behavior management.

19

3. Physical care.

20

4. Habilitative Nursing.

21

5. CPR

22

B. Competency evaluation of skills mastered.

23

C. Provision of training in items A 1-5, above, to

24

existing staff who cannot demonstrate competency

25

through a process for challenge.

26
Page 44 - CONSENT DECREE

FORM OBD-183 MAR 83

1

D. Ongoing

2

1. Periodic refresher training and in-service.

3

2. Training records and a tracking system to assure

4

that initial and continuing training requirements

5

are met.

6

3. Individual evaluations on a periodic basis by a

7

registered nurse to ensure ongoing adherence to

8

policy and procedures.

9

4. System of tracking medication errors by individual

10

CMA to evaluate and implement ongoing training

11

needs.

12

Professional Staff:

13

A. Credentials Review Committee to assure that

14

professionals who work at Fairview have appropriate

15

credentials and are practicing in only those areas in

16

which they have been determined to be competent to

17

provide services.

18

B. Initial training prior to assignment to duty, to

19

familiarize the professional staff with the special

20

needs of Fairview clients.

21

C. Continuing Education

22

1. Identification of ongoing training needs of

23

professional staff on at least an annual basis;

24

development and implementation of a program of

25

regular continuing education; minimum number of

26
Page 45 - CONSENT DECREE

FORM OBD-183 MAK 8.1

1

inservices for physicians, nurses, and

2

psychologists.

3

2. Tracking system to identify the training needs of

4

each individual professional and the extent to

5

which that individual has attended appropriate

6

inservices.

7 XII. RECRUITMENT

8

A. Staff recruitment of registered nurses, licensed

9

practical nurses, physical therapists, licensed

10

physical therapy assistants, occupational therapists,

11

certified occupational therapy assistants, and dental

12

hygienists and assistants.

13

B. Evaluation and necessary adjustment of pay scales to

14

make salaries competitive.

15

C. Rigorous recruitment.

16

D. Use of consultants and contracts where necessary to

17

reach staffing levels.

18 XIII. RECORDKEEPING

19

System to integrate programmatic and medical services to

20

clients.

21 XIV. ABUSE

22

A. Staff training re: actions that constitute abuse of

23

residents.

24

B. System requiring complete reports of alleged staff

25

26

Page 46 - CONSENT DECREE

FORM OBD-I83 MAR. 83

1

abuse to be made to appropriate officials in a timely

2

fashion.

3

C. Independent timely investigation and resolution of

4

allegations of staff abuse.

5

D. Disciplinary rules and procedures and sanctions to be

6

imposed upon a finding of staff abuse.

7 XV. EDUCATION

8

A. Expanded hours in school day and for homebound

9

instruction.

10

B. Increased staff in classrooms and for homebound

11

instruction.

12

C. Provision of homebound instruction by a certified

13

teacher.

14

D. Training of teachers and other classroom staff (see

15

section on Staff Training).

16

E. Improved supervision of residents during the school

17

day to ensure their safety and well-being.

18

F. Appropriate IEP process, identification of individual

19

needs, including related services, implementation of

20

IEP objectives, monitoring and revision as necessary.

21

G. Coordination between residential and educational

22

activities (e.g., consistent involvement of

23

educational staff in IPP development and of program

24

staff in IEP development and familiarity with and

25

appropriate implementation of behavior prescriptions on

26

the part of school staff).

Page 47 - CONSENT DECREE

FORM OBD-I83 MAR 83

1

H. Implementation of State's program to place all

2

Fairview residents younger than 21 years of age as of

3

June 30, 1989 into appropriate community-based

4

residential settings where the free, appropriate

5

education guaranteed by EHA is provided in the least

6

restrictive educational environment.

7

I. Program (nature of which to be determined) for those

8

children who will have "aged out" who were under age 21

9

at the time of filing the Complaint for period of time

10

that passed between turning 21 and filing the

11

Complaint.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
Page 48 - CONSENT DECREE

FORM OBD-I83 MAR S3

CERTIFICATE OF SERVICE
I hereby certify that on the 2lst day of February, 1989. I will serve a true copy of the within Joint Motion to Enter Consent Decree, Proposed Order, and Consent Decree upon the party listed below, by hand-delivery:
Elara Lantz, Jr. David B. Hatton ODDAC 625 Board of Trade Building 310 SW 4th Avenue Portland. OR 97204

0245T/wjp

GLENN KLEIN OSB #83110 Assistant Attorney General Of Attorneys for Defendants 450 Justice Building Salem, Oregon 97310 Telephone: 378-6313

DAVE FROHNMAYER
ATTORNEY GENERAL STATE OF OREGON

,^3fc»v
^^^^^"^^
DEPARTMENT OF JUSTICE
Justice Building Salem, Oregon 97310 Telephone: (503) 378-4400
February 9, 1989

JAMES E. MOUNTAIN, JR.
DEPUTY ATTORNEY GENERAL

VIA TELEFAX

Arthur E. Peabody/ Jr. Chief, Special Litigation Section Civil Rights Division U.S. Department of Justice P.O. Box 37076 Washington, D.C. 20066
Re: United States v. Oregon, et al Civil No. 86-961-MA
Dear Art:
This letter serves to provide you with advance notification of the staff to resident ratios of physicians, psychologists, registered nurses in the hospital, licensed practical nurses in the cottages, and direct care workers which the state shall set forth in the Plan pursuant to the Consent Decree, Section V (B)(l). The staffing ratios presented herein were agreed to by the parties during our recent settlement negotiations.

Arthur E. Peabody, Jr. February 9, 1989 Page 2

Physicians Psychologists

1:100 1:30

As of date decree entered As of date decree entered

Cottage RNs

Day Shift

Weekdays

1:40

Weekend/holidays 1:180

1:175

By 7/1/89 By 7/1/89 By 12/1/89

Swing Shift 7 days/week

At least 4* 1:180 1:175

As of date decree entered By 7/1/89 By 12/1/89

Graveyard Shift 7 days/week
Cottage LPNs

At least 3 1:50

As of date decree entered As of date decree entered

Hospital RNs

Day Shift 7 days/week
Swing Shift 7 days/week
Graveyard Shift 7 days/week
Hospital LPNs

1:10.5 + su RN

1:10.5

As of date decree entered

At least 2

By 7/1/89

1:2 across three By 12/1/89 shifts (on average equals 1:4, 1:5, 1:10.5)

Direct Care

Overall ratio

As of date decree entered

of .625:1 on

duty and present for each

24-hour period, 7 days/week.

(Which, on the average,

equals 1:4, 1:4, 1:8.)

The plan will reflect a minimum of 3 RNs. The fourth RN can be used on other shifts, if justified as not necessary on the swing shift to protect the health and safety of residents.

Arthur E. Peabody, Jr. February 9, 1989 Page 3
We look forward to the finalization of the Consent Decree
Yours very truly,
PAMELA L. ABERNETHY Special Counsel to the
Attorney General
PLA:cm 4951a
cc: The Honorable Michael Hogan William F. Gary Kevin Concannon Richard C. Lippincott, M.D.

 
 U.S. v. Oregon

TltTD

1

MR-OR-001-007

2

SEP 20 12 07 ?U '30

21JT;..-:- •:;.

..'-.•; i

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF OREGON

8 UNITED STATES OF AMERICA, )

9

Plaintiff,

)

C i v i l No. 86-961-MA

10 SONYA FRYER, et al.,

)

11

Plaintiff-Intervenors, )

12

v.

)

13 STATE OR OREGON, e t a l . ,

14

Defendants.

ORDER

15

ROBINSUE FROHBOESE CYNTHIA L. KATZ

16

GAYLE D. FIDLER U.S. Department of Justice

17

Civil Rights Division P.O. Box 37076

18

Washington, D.C. 20066

19

JACK G. COLLINS Chief, Civil Division

20

Assistant U.S. Attorney 312 U.S. Courthouse

21

Portland, OR 97205

22

Attorneys for Plaintiff United States of America,

23

ELAM LANTZ, JR. Oregon Advocacy Counsel

24

625 Board of Trade Building 310 S.W. 4th Avenue

25

Portland, OR 97204

26

Attorney for Plaintiff-Intervenors.

1 - ORDER

AO 72 (Rev.8'82)

DAVE FROHNMAYER

1

Attorney General PAMELA L. ABERNETHY

2

Special Counsel to Attorney General

Oregon Department of Justice

3

110 Justice Building

4

Salem, OR 97310

5

Attorneys for Defendant State of Oregon.

MARSH, Judge. 6

The present circumstances at Fairview require the court to 7

enter an order addressing the State of Oregon's performance in 8

light of the Consent Decree entered on April 14, 1989. This order 9

should not be construed as a modification of the Consent Decree.
10

Upon consideration of the United States' Emergency Motion, the
11

pleadings submitted in support thereof and in opposition thereto,
12

and the entire record herein, I am satisfied that the findings of
13

the Advisory Panel relating to deficiencies at Fairview are
14

correct. The only issue left to be addressed is the form of an
15
appropriate order to bring the performance of Fairview into full
16

compliance with the Consent Decree.
17
The filing of this case was appropriate because of significant
18
deficiencies in the administration and operation of the Fairview
19
facility. The recognition of the problem has been addressed by
20
the actions of the State of Oregon and the entry of the Consent
21
Decree.
22
Many of the more recent failings at Fairview have been the
23
result of a fragmented attempt to satisfy individualized
24
complaints emanating from plaintiff, plaintiff-intervenors and the
25
Health Care Financing Administration ("HCFA"). This fragmented
26

2 - ORDER

AO 72 (Rev.8/82)

approach has dissipated the energies of the administration and 1 staff at Fairview in the constant attempt to address individual 2
resident and staff problems, thus precluding the necessary time 3
for the generation of an overall program to address systemic 4
deficiencies. I am satisfied that the present administration at 5
Fairview is sincerely attempting to carry out a well defined plan 6
which has the support and dedication of the staff. The question 7
remains, however, as to whether or not that plan is going to prove 8
sufficient. The problems at Fairview are not of such a nature 9
that they can be corrected by fiat. Rather, implementation of the
10
plan, training, monitoring and quality assurance are all factors
11
which take time. At the same time, the administration and staff
12
must be sensitive to individual problems as their existence must
13
call into question the sufficiency of the overall program. 14 Therefore, a balance must be struck in the expenditure of energies 15 by administration and staff between the implementation of an 16 overall program and the immediate needs of the residents. In 17 doing so, it must be remembered that the responsibility for the 18 administration and operation of Fairview lies with the State of 19 Oregon, not with the United States nor with plaintiff20 intervenors. The rightful role of the plaintiff and intervenors 21 is to point out areas of noncompliance within the Consent Decree
22 and violations of constitutional rights. Both the United States
23 and plaintiff-intervenors must be mindful that their energies
24 should not be used to fragment Fairview's efforts at improvement
25 thereby inhibiting Fairview's progress in the implementation of
26
3 - ORDER
AO 72 (Rev.8/821

its overall program.

1

Subject to careful monitoring, I find that the recommendations

2 of the Advisory Panel in its report dated August 3, 1990

3 satisfactorily ensure this balance between the implementation of

4 an overall program and the immediate needs of the residents.

5 Accordingly, it is hereby ordered that defendants shall take the

6 following remedial actions at Fairview Training Center

7 ("Fairview") by the dates indicated in order to fulfill their

8 duties and obligations under the Consent Decree:

9 1. The State of Oregon shall immediately protect all those

10
residents who have sustained or are likely to sustain significant

1 1 harm to themselves or are likely to cause significant harm to

12
others.

Such protection shall encompass sufficient and

13
appropriate staff supervision including 1:1 supervision, as well

14
as appropriate training for all staff who work with these

15
residents to ensure that they are totally familiar with the

16
circumstances that pose a threat to each resident's safety;

17
2. Within 60 days, the State of Oregon shall consistently

18
implement training programs that conform to Fairview's September

19
18, 1989 policy on behavior programs for all residents who have

20
sustained or are likely to sustain significant harm to themselves

21
or are likely to cause significant harm to others;

22
3. Within 120 days, the State of Oregon shall consistently

23
implement training programs that conform to Fairview's September

24
18, 1989 policy on behavior programs for all residents who are

25
designated behaviorally at risk, as defined in Fairview's revised

26

4 - ORDER

AO 72
/r-i ~. . O / Q 1 I

plan submitted to the Panel on April 24, 1990; and

1 4. Fairview shall immediately retain such outside consultants
2 as are necessary to produce the outcomes described in items 1-3

3 above.

4 In implementing the mandates of this order, the State of

5 Oregon shall comply with the monitoring procedures set forth in

6 Section VII of the Consent Decree including the submission of

7 quarterly reports to the Advisory Panel and the United States

8 describing Fairview's progress and the submission of monthly

9 reports summarizing (a) statistics on the use of personal hold and

10
restraint; (b) incident report analyses; (3) statistics on

11 staffing; (d) a list of residents who died and cause of death; (e)

12 monthly hospital admission log; and (f) abuse investigation

13 reports.

14
IT IS SO ORDERED.

15
DATED this 20 day of September, 1990.

16

17

y

Malcolm F. Marsh

18

United States District Judge

19

20

21

22

23

24

25

26
5 - ORDER

AO 72 (Rev.8/82)

 
 04/26/95 12:02 © 5 0 3 378 4017

DOJ ADMIN SALEM

1^1002/010
i

i

2

A

3

4 BY.
5
Him U.S. v. Oregon
MR-OR-001-009

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF OREGON

11

UNITED STATES OF AMERICA,

)

12

}

Plaintiff,

}

13

)

SONYA FRYER, et al.,

)

14 Plaintiff-Intervenors, )

IS

)

v.

)

16

)

STATE OF OREGON, Ct a l . ,

)

17 Defendants.

)

18

)

Civil No. 86-961-MA STIPULATED ORDER

19

The parties have entered into this stipulation in the spirit

20 of cooperation, in the belief that good faith resolution of

21 issues through a continuing dialogue and consensus will help them

22 in achieving their mutual goal of continuing to improve the lives 23 of residents at Fairview Training Center ("FTC1} . In this

24 spirit, the parties stipulate to the following:

25 ///

26 ///

Page 1 - STIPULATED ORDER

 
 782 F.Supp. 502 (1991)
UNITED STATES of America, Plaintiff, Sonya Fryer, et al., Plaintiff-Intervenors,
v. STATE OF OREGON, et al., Defendants, Oregonian Publishing Company, an Oregon corporation, Third-Party Intervenor.
Civ. No. 86-961-MA.
United States District Court, D. Oregon.
October 22, 1991.
Robinsue Frohboese, Cynthia L. Katz, Gayle D. Fidler, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., Jack G. Collins, Chief, Civil Div., Asst. U.S. Atty., Portland, Or., for plaintiff U.S.
Robert C. Joondeph, Portland, Or., for plaintiff-intervenors.
Dave Frohnmayer, Atty. Gen., Pamela L. Abernethy, Sp. Counsel to Atty. Gen., Oregon Dept. of Justice, Diane L. Brissenden, Asst. Atty. Gen., Thomas K. Elden, Asst. Atty. Gen., Dept. of Justice, Salem, Or., for defendant State of Or.
Charles Hinkle, Stoel Rives Boley Jones & Grey, Portland, Or., for Oregonian Pub. Co.
OPINION
MARSH, District Judge.
On June 12, 1991, plaintiff filed a motion for contempt alleging that defendants violated the April 14, 1989 Consent Decree and the September 20, 1990 order of this court. Plaintiff argued that the relief provided in the 503 Consent Decree was inadequate *503 in light of defendants' historical failure to fully adhere to the terms of the decree. Plaintiff sought an order modifying the decree to the extent that it would direct defendants to reduce the population of Fairview Training Center and to modify and increase expert assessment and Panel monitoring at state expense. Oral argument on this motion was scheduled for Sept. 13, 1991.
On July 31, 1991, shortly after plaintiff filed its motion for contempt but before oral argument, the Advisory Panel issued a report in response to my order of March 5, 1991, and the U.S. emergency motion filed on October 23, 1990.
At the contempt hearing on September 13, 1991, I denied plaintiff's motion for contempt, made oral factual findings based upon the parties' evidentiary submissions, and held that defendants had taken all reasonable steps to comply with the goal of protecting residents from harm. In making this determination, I expressly rejected any proposal which would modify the terms of the Consent Decree. In addition, I directed the parties to work together to devise an agreed upon set of professional standards to be applied to each professional field within Fairview. I explained that these standards should be designed to augment and further refine any terms within the consent decree that are broad, ambiguous, or capable of several interpretations.[1]
As noted by both parties and the court during the hearing on September 13, 1991, the issues raised by plaintiff's motion for contempt and the areas addressed by the Panel in its Report of July 31, 1991 crossed over to a significant extent.[2] Following the hearing, plaintiff submitted a proposed form of order adopting the July 31, 1991 Advisory Panel Report and directing that the Panel's recommendation regarding a revised monitoring and "reporting structure" be implemented. Plaintiff further proposed that defendants' progress should be monitored by utilizing Fairview's own plans and policies. In their response, defendants agree that monitoring should proceed by

reference to Fairview plans and policies. However, defendants contend that I should not adopt many of the Panel's factual findings or recommendation for a revised monitoring and reporting structure because they conflict with the factual findings and conclusions I made on September 13, 1991. In light of the significant crossover of issues and in response to requests from the parties, the following constitutes my written findings and conclusions to supplement and clarify my previous oral findings and conclusions relative to defendants' compliance with the Consent Decree as raised by plaintiff's motion for contempt and the July 31, 1991 Advisory Panel Report.
BACKGROUND[3]
The United States filed this action on July 28, 1986, alleging that defendants have engaged in a pattern or practice of depriving mentally retarded and developmentally disabled residents of Fairview Training Center of rights guaranteed under the United States Constitution, under the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA) (42 U.S.C. §§ 1997 through 1997j), and the Education of the Handicapped Children Act (EHA), 20 U.S.C. §§ 1401, et seq. Specifically, plaintiff sought to prove that defendants failed to provide Fairview residents with the following:
504 *504 (1) adequate training to protect them from bodily injury and unreasonable use of bodily restraints;
(2) adequate medical and health care;
(3) protection from unreasonable risks of harm;
(4) adequate numbers of sufficiently trained staff to render and implement professional judgments regarding necessary care, medical treatment and training; and
(5) services guaranteed by the EHA to all children under the age of twenty-one.
In 1987 defendants filed a counterclaim seeking declaratory and injunctive relief regarding rights to receive medicaid funding. On April 17, 1987 the Health Care Financing Administration (HCFA) terminated Medicaid funding to Fairview based upon defendants' non-compliance with HCFA standards. On July 31, 1987, I issued a preliminary injunction enjoining the U.S. Department of Justice from requiring that the HCFA adopt "constitutional standards" for immediate care facilities. 675 F.Supp. 1249. On that same day, HCFA recertified Fairview for medicaid funding. On October 2, 1987, based upon the restoration of benefits, I granted plaintiff's motion to dismiss defendants' counterclaim finding the issue moot.
After this action was instituted by the federal government, a group of Fairview residents, represented by their parents and guardians, filed a motion to intervene contending that conditions at Fairview violated their due process and equal protection rights. Intervenors also alleged that the conditions at Fairview violated Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 720 and 794), Title XIX of the Social Security Act (42 U.S.C. §§ 1396 and 1396a) and the Education of the Handicapped Act (20 U.S.C. § 1401). The court denied intervention. On February 19, 1988 the Ninth Circuit reversed and remanded. 839 F.2d 635. The court found that the government could not adequately protect the proposed intervenors' interests in light of their differing views concerning the nature and scope of remedial relief and the likelihood that the litigation might impair intervenors' rights to obtain other effective remedies in later litigation.
Thereafter, defendants filed a motion to partially dismiss intervenors' claims. On March 3, 1989, I held that the Due Process Clause does not guarantee intervenors a right to community placement and that there is no "generalized due process right to habilitation in the least restrictive environment." Opinion at 5-7. I further noted that in order to establish a due process violation, intervenors would have to show that the residents' living conditions constituted "a substantial departure from accepted professional judgment or standards." Opinion at 7. My opinion was based largely upon the Supreme Court's decision in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Therefore, because intervenors' claim rested solely upon the assertion that community treatment is preferable to institutionalization, I granted defendants' motion to dismiss this claim for relief. Opinion at 9. In addition, I held that intervenors had failed to state a claim under the Equal Protection Clause. Opinion at 13. Finally, I held that intervenors had a cognizable claim for training to maintain self-care

skills, but not to develop such skills, and that § 1983 afforded a private right of action to enforce the procedural guarantees of Title XIX. Opinion at 16-20.[4]
On April 5, 1989, I granted plaintiff-intervenors' motion for class certification. The certified class consists of "all persons who have resided at Fairview since October 2, 1986, or will in the future reside there," and a subclass consisting of members of the class who requested and were denied community services on the basis of the 505 severity of their handicaps, physical handicaps *505 or their maladaptive behaviors in violation of § 504 of the Rehabilitation Act.[5]
On April 14, 1989, I approved a Consent Decree proposed by the plaintiff and state defendants.[6] The decree, which is divided into ten sections and includes an "Attachment List" of over 200 specific items to be addressed in the plan, required that defendants design a plan within 60 days of the entry of the decree, which was to be "fully implemented" by June 30, 1991. The decree also sets forth nineteen items which the plan must address including staffing ratios, qualifications and supervision; resident evaluation, treatment and training; and facility record keeping and administrative procedures. Compliance with the plan is to be monitored by the United States.
In addition, defendants agreed to adopt the following five "priority measures" immediately upon entry of the decree: (1) implementation of appropriate training programs for residents exhibiting life threatening pica behavior, frequent self-injurious conduct or frequent aggressive conduct; (2) deployment of 1:1 staffing where necessary according to professional judgment to protect residents from unreasonable risks of injury; (3) professional evaluation and steps to reduce or eliminate risks to residents due to aspiration or seizures; (4) professional evaluation of residents receiving psychotropic or anticonvulsant medication and implementation of necessary changes; and (5) insuring that medical emergencies are timely and adequately addressed.
Finally, the decree also provided for the formation of a three person advisory panel to resolve any disputes between the parties concerning provisions of the plan and compliance therewith. All decisions of the advisory panel are subject to judicial review, and thus, the decree contemplated that this court would retain ongoing jurisdiction.
On March 1, 1990, the Advisory Panel issued a report in which it found that the state failed to take sufficient steps toward improvement and set a time line for implementation of remedial measures. On April 23, 1990 the plaintiff's experts toured the facilities and found evidence of defendants' non-compliance with the plan, particularly regarding the protection of residents.
On June 8, 1990, plaintiff filed an emergency motion seeking remedies for non-compliance with the objectives and priority measures of the consent decree. Plaintiff alleged three areas of non-compliance: (1) failure to develop and implement professionally designed training programs for all residents who have life threatening, pica and other injurious behaviors; (2) failure to provide qualified 1:1 staffing when necessary; and (3) failure to protect residents from unreasonable risks to their personal safety. On June 22, 1990 I held the plaintiff's motion in abeyance and referred the matter to the Advisory Panel.
The Panel toured Fairview from June 30-July 2, 1990. It reported initial observations and urged the parties to resolve the issues by stipulation. This attempt continued through July 27, 1990, and was ultimately unsuccessful because the parties were unable to resolve differences regarding the magnitude of the problems and an appropriate resolution. On August 3, 1990 the Panel issued a report and found that defendants failed to comply with consent decree by taking inadequate steps to protect residents from injury. The Panel found evidence of persistent risks to the personal safety of residents as evidenced by injuries and other serious incidents. The 506 Panel further found that although progress had been made, continuing problems *506 were attributable to the following systemic defects:
1) behavioral prescriptions were not sufficiently individualized;
2) programs lacked current level of sophistication and knowledge;
3) direct care staff had insufficient familiarity with residents and their prescriptions;
4) programs were not being implemented on a consistent basis;

5) data was inconsistently recorded;

6) residents engaged in serious behaviors while under supervision of staff who were inattentive or distracted by other residents or events; and

7) 1:1 staff had insufficient orientation prior to working with residents.

I adopted the Panel's recommendations and its proposed time line in my order of September 20, 1990, noting however, that the recent failings were a result of "a fragmented attempt to satisfy individualized complaints ... precluding the necessary time for the generation of an overall program to address systemic deficiencies." I further noted that a "balance must be struck" between the individual and immediate needs of residents and the implementation of a comprehensive program. Finally, I held that the Panel's recommendations "satisfactorily ensure this balance" and ordered defendants to take the following remedial actions:

(1) immediately protect residents who have sustained, or are likely to cause, significant harm to others through 1:1 supervision, and appropriate staff training;

(2) within 60 days, implement training programs that conform to Fairview's September 18, 1989 policy on behavior programs for all residents who have sustained or are likely to sustain significant harm to themselves or are likely to cause significant harm to others;

(3) within 120 days, implement training programs that conform to Fairview's September 18, 1989 policy on behavior programs for all residents who are designated "behaviorally at-risk;" and

(4) immediately retain such outside consultants as are necessary to carry out the mandates of this order.

Defendants' August 31, 1990 Plan, offered in response to the Panel Report and as reflected in my September 1990 order, calls for: (1) development of a special team for clients considered to be at "serious risk" of injury due to behavior; (2) identification of clients at risk due to behavior; (3) assessment of immediate risk situations for each client; (4) complete behavioral reevaluation of the special services (SSP) clients and development and implementation of new behavioral programs for those clients; (5) immediate retention of outside consultants to assist in achieving these goals. In addition, I directed defendants to comply with the monitoring and reporting procedures set forth in Section VII of the Consent Decree.

On October 23, 1990, approximately one month later, plaintiff filed an "emergency motion" challenging the sufficiency of both the plan and defendants' attempts to carry out plan. Plaintiff asserted that Fairview residents' constitutional rights were violated in the following five respects:

(1) the practice of leaving patients unattended while in a head down postural drainage position;

(2) heavily sedating patients for dental procedures without adequate precautions;

(3) failure to provide adequate training and supervision to staff in the care, physical management and transferring of residents with physical disabilities;

(4) failure to properly administer psychotropic medications as part of a coordinated approach to dealing with problematic behaviors and to adequately monitor and detect toxic side effects; and

(5) failure to properly administer and monitor the effect of anticonvulsant medications.

On November 6, 1990 I referred plaintiff's emergency motion to the Advisory Panel:

"for a determination as to whether Fairview is in compliance with the mandates of the Consent

507

Decree ... whether the *507 government's motion raises new issues which were not addressed in

this court's previous order dated September 20, 1990 ... [and] whether there has been a delay in

reaching a desired level of improvements at Fairview or whether conditions have developed which

require adjustment of the improvement plan itself."

On January 15, 1991, the Advisory Panel issued its findings in response to my November order. The Panel acknowledged that "much has been accomplished at Fairview" since the entry of the Consent Decree and the development of the Plan, but found that residents "continue to be repeatedly harmed or exposed to the risk of significant harm." The Panel concluded that Fairview was not in compliance with the Goals, Objectives, and Priority Measure of the Decree and that remedial action was called for. On March 5, 1991 I issued an opinion finding that the Panel's findings "are substantiated and that Fairview residents are not being provided reasonable conditions of safety" as required by Youngberg v. Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28 (1982). Opinion at 5-7. I directed the State to submit a comprehensive report regarding the success of its new policies and practices to the court and Panel within 30 days so that the Panel and I could determine whether the new policies and practices complied with the mandates of the Consent Decree. In addition, I directed the State to provide a proposed plan as to how to remedy problems associated with the use of anticonvulsant and psychotropic medication. Finally, I directed the Panel to comment upon the State's proposed plan and give its opinion as to whether the Plan was in compliance with the Consent Decree. The Panel submitted its response to my March 5, 1991 order on July 31, 1991 and its findings are discussed, infra.
STANDARDS
a. Contempt
In order to prevail on a motion for contempt, plaintiff must establish the acts of contempt by "clear and convincing evidence." Balla v. Idaho State Board of Corrections, 869 F.2d 461, 466 (9th Cir. 1989). All reasonable doubts must be resolved in favor of the non-moving party. Hanley v. Pacific Livestock, 234 F. 522, 531 (9th Cir.1916). Once a prima facie case is established, the burden of production shifts to the non-moving party to prove either substantial compliance with the court's order or inability to comply. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983). The parties' subjective intent is irrelevant. Crystal Palace, 817 F.2d 1361, 1365 (9th Cir.1987). The sole question is compliance.
However, as I stated during the hearing on September 13, 1991, the difficulty I face in strictly applying such standards to this case and to my order of September 1990, is that the legal standards are too result oriented under the unique circumstances which exist in this case. Pursuant to the terms of the Consent Decree, the parties agreed to implement a process whereby Fairview would improve its facility and services and would undergo monitoring to ensure that the process was moving forward. Thus, the fact that deadlines were not met and injuries continued to occur, standing alone, does not demonstrate non-compliance with the Consent Decree or with my prior orders. Accordingly, my review of the evidence in this case is with a mind toward whether defendants have followed the process as set forth in the Consent Decree and whether they have progressed as required by the Decree.
At Section IIB of the Decree, the parties acknowledge that by entering into the agreement they "intend to ensure that the State does not deprive Fairview residents of their rights and privileges secured to them by the Constitution and laws of the United States" by ensuring that Fairview will satisfy six objectives directed at improved programs, medical care, physical environment and compliance with EHA rights.
All parties agree that the Constitutional standard applicable to Fairview is set forth in the Supreme Court's 508 decision in Youngberg.[7]*508 In Youngberg, the Court emphasized that, while states have a duty to provide
certain services and care, even then a state "necessarily has considerable discretion in determining the nature and scope of its responsibility." Id., 457 U.S. at 317, 102 S.Ct. at 2459. Further, the Court held that the standard of judicial review is limited to determining whether "professional judgment" was in fact exercised. Id., at 321, 102 S.Ct. at 2461. Thus, the Court found that decisions made by professionals are "presumptively valid," and that liability may only be imposed where the decision is shown to constitute a "substantial departure from accepted professional judgment." Id., at 323, 102 S.Ct. at 2462; and Thomas S., 902 F.2d 250 (4th Cir.1990). In Shaw v. Strackhouse, 920 F.2d 1135, 1145 (3rd Cir. 1990) the court held that the professional judgment standard must be applied to all failure to protect, excessive restraint and failure to habilitate claims.

b. Review of Advisory Panel Findings
Section IX of the Consent Decree provides that, in reviewing a decision of the Advisory Panel, the court "shall" apply the standards set forth in Section VIII, Paragraph C of the Decree. Paragraph C1 directs that Panel review of specific provisions of the state's plan shall be limited to determining whether they represent "a substantial departure from accepted professional judgment." Any decision by the Panel under this standard is entitled to a rebuttable presumption of correctness. Decree, Section IX, Paragraph 2.
DISCUSSION
As I noted in my introduction, there is a significant overlap of factual and legal issues raised by plaintiff's motion for contempt and the Panel's July 31, 1991 Report. Thus, my review of the government's allegations and the Panel findings is set forth, infra, in parallel fashion, followed by a summary of defendants' responsive submissions to both. Based upon the foregoing, I have consolidated my findings and conclusions as to the government's allegations and the Panel's recommendations to supplement and clarify my oral findings of September 13, 1991.
a. US allegations of Non-Compliance[8]
Plaintiff contends that defendants have failed to comply with Section II B.1-2 and Section V A.1-2 of the Consent Decree and the first prong of my September, 1990, order that they "protect all residents who have sustained or are likely to sustain significant harm to themselves or to cause significant harm to others." Relying upon injury statistics and the reports of its experts, plaintiff contends that defendants have failed to comply with my order. U.S. experts offer anecdotal evidence of injuries that they believe are directly traceable to the lack of appropriate staff supervision.
Plaintiff contends that Fairview residents continue to suffer serious injuries, such as fractures and burns, at an unacceptable rate and that injuries have actually accelerated following my September 1990 order. Plaintiff's expert, Dr. John McGee, cites an increase in pica, biting incidents and other assaultive resident-to-resident behavior. Dr. McGee also contends that many injuries are caused by "aggressive and inappropriate acts of staff," during restraining procedures.
Dr. Dawn Hunter and Dr. Gary Lavigna contend that resident incidents are traceable to a lack of adequate staff supervision and use of unqualified and inadequately trained staff. Dr. Hunter and Dr. Lavigna recount numerous examples of injuries and pica incidents which they feel might have been prevented had staff acted appropriately.
509 *509 In addition, plaintiff points out that defendants have failed to meet deadlines for implementation of behavior programs and that the impact of the failure is a continuing pattern of injuries and the use of more severe treatment methods such as physical restraint and psychotropic medications. Dr. McGee found that programs in place still fail to address all behaviors that place residents at risk. Dr. Leonard Fielding felt that defendants' inability to quickly modify and adapt behavioral programs is a sign of a systemic failure 0907 programs are not updated or revised to meet needs even when deficiencies are recognized by staff. Fielding cited the example of S.H. who experienced serious side-effects to Lithium in early fall of 1990 which were not responded to until March of 1991. Fielding found a general lack of coordination between staff experts.
Dr. Fielding also took issue with several "systemic problems" related to the use of psychotropic medications. He found that medications were being used without appropriate and adequate behavior management programs, that drug regimens were based upon inadequate behavioral data, that data collected by staff was inaccurate or incomplete, that side-effects were inadequately monitored, and that professional staff failed to coordinate efforts to create comprehensive and integrated psychophar-macological and behavior management programs.

In light of plaintiff's statistical data on injury rates, incident rates, and its conclusion that the use of restraints and psychotropic medications have increased, plaintiff urged the following modifications to the Consent Decree:
(1) Reduction of resident population and increased community placement of "behaviorally at risk" residents.[9] Plaintiff's experts, McGee, Fielding, Hunter and LaVigna, believe that community alternatives are the most viable solution to address continuing harm. The U.S. expert reports vary from a recommendation of 200-300 community placements over a two year period to a nearly immediate closure of the entire facility.
(2) Order Interim Safeguards. Plaintiff suggested utilization of Panel analysis and recommendations of interim measures directed at management structure, deployment, supervision, staff performance evaluation and systems for reviewing restraints and injuries to protect residents until they are placed in community programs.
(3) Increased Panel monitoring, i.e. monitoring on an "on-going basis" with input from the U.S. and PlaintiffIntervenors, much like the appointment of a "special master." To effectuate this increased role, the Panel would receive "support staff" at state expense.
b. The Panel's July 31, 1991 Report
Following a review of the materials from the State and a visit to Fairview on April 11-13, 1991, the Panel made findings as to the five specific areas identified in the plaintiff's emergency motion. While the Panel notes that the State has made significant efforts towards improvement, it concludes that serious systemic flaws still remain as demonstrated by the fact that over a six month period ending May 31, 1991, ninety-one residents sustained moderate to severe injuries on 104 different occasions. The five areas addressed by the Panel and its findings are briefly summarized as follows:
1. Postural Drainage: The panel found that the problems associated with this practice have been removed since the State discontinued the procedure for all but one resident. As to the one resident for whom the practice is still employed, the panel finds that it is part of an individualized plan and that the level of staff supervision is adequate.
2. Dental Sedation: The Panel concurred with the State's position that this issue is also moot. Dental sedation 510 practices were discontinued at Fairview for all but *510 emergency procedures from October 10, 1991 through
April 5, 1991. During the interim, the Panel found "very positive developments" which include: (1) policy revisions requiring more rigorous evaluation and monitoring prior to sedation; (2) establishment of a nursing observation unit designed and staffed for monitoring residents; and (3) added safeguards to ensure residents are not prematurely returned to their cottages after sedation. In light of these developments, the Panel finds that the revised policies and procedures address the issues and concerns raised by the United States. The Panel disagrees, however, with the State's plan to decrease monitoring to a 20% sampling. The Panel recommends that the state incorporate periodic and continuous monitoring of all sedations after full capacity has been reached and sustained.
3. Physical Management and Transfer of Residents: The Panel found that Fairview has made a substantial effort in this area by improving staff training and increasing staff sensitivity, but that five "critical issues" remain unresolved: (1) unrealistic expectations regarding staff ability to assimilate and apply individualized information about each resident; (2) adherence to the idea that some level of harm is unpreventable; (3) permitting staff to continue lifting activities beyond their physical capabilities; (4) inadequate distribution of incident reports to all necessary staff; (5) inadequate monitoring and quality assurance mechanisms.
The Panel pointed to the following incidents which it felt demonstrated continued problems with transfer procedures: (1) a November, 1990 incident in which a resident's arm was broken while being positioned by staff; (2) on April 18, 1991, the same resident fell out of a Hoyer lift and staff failed to discover that he had fractured his left ankle until April 25, 1991.[10]
4. Psychotropic Medications: The Panel concluded that medication is being administered within the context of a behavioral program and not as a "quick fix" for behavior problems. However, it found that the behavioral

programs themselves are "woefully inadequate" for the following reasons: (1) many programs are "poorly conceived from a human learning perspective;" (2) although vast amounts of behavioral data is collected, staff members fail to integrate the information into therapy programs;[11] (3) staff members demonstrate insufficient knowledge of the potential side effects of medication and drug regimens of individual residents; and (4) staff members fail to respond to problematic trends quickly 0907 for example, one resident experienced 108 incidents in a six month period before 1:1 staffing was initiated.
The Panel also noted that Fairview has continued to take further steps, beyond the plans submitted in April, to improve its psychotropic medication policy. For example, a new unified resident record is being piloted to replace the fragmented system of dual medical and program records. In addition, defendants have introduced a new Quarterly Individualized Program Plan review into the interdisciplinary team process. Other efforts include increased support to professional staff and an updated data recording system.
5. Anticonvulsant Medications: The Panel expressed some of the same concerns addressed above regarding the staff's inadequate knowledge of drug side-effects and a systemic failure to integrate and properly utilize behavioral data.
Based upon the foregoing, the Panel concluded that, although the State has progressed, three major problems persist to which Fairview's proposed modifications are inadequate: (1) staff knowledge about individual residents; 511 (2) flaws in the creation, execution and maintenance of behavioral *511 intervention programs; and (3) failure to integrate multiple sources of information.
As to the lack of direct care staff knowledge about residents and their individual needs, the Panel suggested that the best solution would be to restructure staff assignments so that the number of residents a particular staff person is assigned to is drastically reduced.
As to the flaws in behavioral programs, the Panel believed that the State's proposals of increased training and quarterly consultations with behavioral psychologists would be of little value. The Panel suggested that the best course at this time would be an immediate upgrading of the programs.
Finally, as to the failure to adequately integrate and utilize data, the Panel urges that the centralization and compilation of all data into an integrated single analysis is critical to assessing the need for program changes and to enable staff to respond quickly to problem areas and avoid serious injuries before they occur.
As to its overall assessment of Fairview, although it found that many of the problems are traceable to the institutional environment, the Panel does not rule out the possibility that safe institutional care is feasible. It notes, however, that the success of institutional care is largely dependent upon a stabilized work force. Thus, the Panel recommends that the State continue to report to the court detailing the progress of initiatives and providing data on incidents and injuries. The Panel also offers to recommend a revised reporting structure if the court so requests.
c. Defendants' Response
Fairview's Director of Quality Assurance, James Clarke, directly contradicts plaintiff's assertion that injuries have increased. Defendants contend that the U.S. unfairly compares 1990-91 to 1988 0907 a year prior to entry of the consent decree when the reporting system was admittedly unreliable. Clarke provides data that the number of injuries has actually decreased from 550 in May of 1990 to 343 in April of 1991. He also points out that the number of unexplained injuries has decreased by over 50% over the last year and that the rate of moderate to severe injuries has remained stable over the last two years. As for restraints, Clarke indicates that the use of certain types of restraints has declined and that emergency restraints were down to forty in April of 1991 compared to 100 in August and September of 1990. He points out that 93% of the restraint time is attributable to mechanical restraints and that 91% of the mechanical restraint time is attributable to one client 0907 T.Q. who has a "long difficult history of self-inflicted injury to his eyes." He further explains that 98% of the restraint statistics represent less-restrictive steps employed to prevent escalation to a full-restraint situation.

Defendants also contend that U.S. experts improperly rely upon minor injuries which do not constitute "significant harm" addressed in Youngberg.[12] Defendants contend that the overall injury rate compares "favorably" to a similar institution in North Carolina and a national norm for state operated facilities. The State's experts, Dr. McIntosh-Wilson and Dennis Reid, conclude that the injury rate reflects reasonable protection from serious harm.
In addition, defendants contend that their systemic data collections (incident reporting system, IAPF form, daily report, 24 hour shift report) and review programs (monthly, quarterly and annual fidelity reviews by cottage managers and IDT reviews) are thorough and comprehensive and adequately respond to continuing and changing resident needs. Defendants take issue with the Panel conclusion that their data collection and distribution system is inadequate given that the Panel fails to mention or discuss the Interdisciplinary Teams (IDTs). As explained by Fairview staff members, IDTs are comprised of professionals from each discipline 512 involved at Fairview who meet informally on a daily *512 basis and quarterly on a formal basis. IDTs integrate behavior data and change behavior plans on an as-needed basis. In addition, defendants point out that individual staff members have developed some of their own internal quality checks, including cottage mentor systems.
In their response to the Advisory Panel Report, defendants explain that the system for direct care staff knowledge of potential side effect of drug therapy have been improved since the Pharmacy and Psychiatric Departments have developed a series of medical cue cards, similar to the behavior prescription cards already in use, which are client specific.
The SSP program which was instituted in August of 1990 to target the group of "at-risk" clients is explained by Fairview Superintendent Margaret Hennessy, Nedra Babcock, Director of Staff Development at Fairview, Daniel Close, an Associate Professor of Special Education at the University of Oregon, Eugene Jablonsky and Richard O'Grady, staff psychologists, Eivind-Erik Sorensen, the SSP coordinator. Defendants hired and reassigned qualified professional staff to oversee the special services project in September of 1990. This team reviewed the programs, behavior prescriptions and injury reports for the preceding 6 months for 242 individuals on the "behavior at-risk" list and selected 51 residents as the focus of the project and developed new programs for all 51. Staff made progress assessments for all other at-risk residents and revised, updated and re-wrote their programs. Thereafter, 20-40 direct care staff were trained regarding the new program for each client. Identification of immediate needs and provisions of immediate measures was completed within the next two weeks. SSP client records were reviewed to determine if there were any discernible behavior patterns.
From September to November 1990 Fairview developed a new frequency based data collections system and trained 900 direct care staff and 220 IDT members in the new system. The staff development team conducted a cottage-by-cottage audit in January 1991 to assess the new system.
Defendants admit that they did not comply with the 60 and 120 day time frames for completion of behavior programs as required in my September 1990 order, but argue that compliance within those time frames was impossible given the complexity of the tasks. Specifically, defendants attribute the delays to: (1) the requirement that they find and utilize outside consultants; (2) a four week visit by HCFA and numerous recommendations and requirements which flowed from the HCFA survey which they contend created a "substantial diversion of staff and resources;" and (3) interference by the plaintiff.
Defendants object to the proposed remedy which they contend will effectively rewrite the Consent Decree well beyond the scope necessary to remedy any constitutional violations. Defendants point out that they have already made a "major commitment" to increasing community based services in that 200 former Fairview residents have already been placed in community programs in the past two years. An additional 100 residents will be moved into similar community programs by June of 1992 and the state has increased the community program budget from $71 million to $311 million.[13] Defendants contend that community placement, as proposed by plaintiff, would "decimate" the State's mental health budget. Finally, defendants argue that plaintiff's proposal would be impossible to achieve within two years since community provider capacity has already been maximized by the HCFA program so that 60% of community providers had to be recruited from out of state.
In addition, defendants argue that the proposed monitoring process offends principles of federalism because it would permit the federal judiciary, through the Advisory Panel, to oversee and control management of Fairview.

513 Defendants also argue that such monitoring would be demoralizing to *513 Fairview staff who have been working diligently to improve conditions.
Findings and Conclusions
In my opinion of March 1989, I found that plaintiff was not entitled to the remedy of community placement simply because it considered such a setting to be the best method of dealing with severely at-risk residents. Similarly, with the present motion, I may not select the best choice amongst a range of professional recommendations. The standard that I must apply to defendants' actions is whether "professional judgement" has been exercised so that residents are protected from unreasonable risks of harm as set forth in Youngberg and Section IIB of Consent Decree.
A review of the voluminous expert reports in this case reveal a classic conflict of two people who, while looking at the same glass of water, are arguing over whether the glass is half full or half empty. The U.S. experts go to great lengths to describe several incidents of residents who injured themselves or others when left unattended or when program updates were delayed. The State describes at least an equal number of success stories of people with severe mental and physical disabilities who are now working in the community and engaging in meaningful social activities.
There is no dispute injuries and incidents of pica and self-abusive behavior continue to occur at Fairview. I find that while some of the examples cited in the U.S. expert's declarations raise significant concerns about the health of Fairview residents 0907 such as the example of J.D. whose behavior program failed to address his history of anorexia 0907 many of the incidents described were not life-threatening and reflect a difference in professional judgment. For example, Dr. Lavigna cites the example of P.C. whose program called for positive reinforcement when she managed not to place objects into her ears. Lavigna observed that staff gave P.C. positive reinforcement for a number of different activities. He criticizes staff for their actions because he feels that P.C. will never learn to associate positive reinforcement with the goal of not sticking objects into her ears. I find that this criticism reflects a difference of professional opinion rather than a violation of the constitutional standards mandated by the Decree.
While my September 1990 order directs defendants to "protect residents from harm," this directive is too result oriented to be applied to this situation literally. Under the contempt standards and the constitutional standards set forth in Youngberg, I believe my inquiry must focus upon whether defendants have taken all reasonable steps to comply with the goal of protecting residents from harm. Although incidents continue to occur, I find that they are not traceable to the defendants' failure to make all efforts to comply with the terms of the Consent Decree, the constitutional standards set forth in Youngberg, and the orders of this court. However, from the standpoint of the court's decision, it is impossible to examine each instance of injury in light of the totality of the circumstances surrounding it. Statistics, as has been amply demonstrated by the parties, are subject to a wide range of manipulation. For example, to say that the injury rate remained at roughly 50% through the period since my September, 1990 order, compared to a 50% level prior to that time period, fails to take into account the fact that approximately 300 of those residents who were most manageable and the least prone to injury have been removed from the population during the HCFA reduction program.
I further find that the results which plaintiff contends should have occurred by now 0907 that of a zero or near zero injury rate and an increased use of creative behavior modification programs in lieu of restraints and medication 0907 have placed Fairview in a catch-22 position. As reflected in Dr. Reid's declaration, I find that while trying to decrease reliance upon physical restraints and medication and increase the use of behavioral modification programs, defendants must necessarily take certain risks that clients may suffer some injuries during the 514 conditioning process. An example of this struggle can be seen with Dr. McGee's reference to K.G. At one point in *514 his declaration, he finds that K.G. received an unnecessary laceration from the watch band of a staff member which might have been prevented had the staff person intervened sooner. Later in his declaration, McGee criticizes staff for injuring K.G. during a mandt restraint.
Thus, I agree with the state that my focus should be more directed toward the progress of eliminating the behavior patterns which lead to potential injury.

In my review of the declarations of Fairview staff members, I was particularly impressed by the candor with which they discussed past failures and the enthusiasm reflected in their efforts towards improvement and progress. For example, Richard Briggs, a Fairview psychologist who helped to implement a pilot project called a "Social Skills Unit" at the apartments for SSP clients describes the residents' progress as "slow, but remarkable." Eugene Jablonsky, another SSP psychologist, notes vast improvements in evaluating the effectiveness of behavior programs and "fine tuning" them. Deanna Ziemer, Unit Director for the Kay and Snell Cottages, and Sara Crawford, United Director at Patterson Cottage, emphasize new steps that they and members of their staff have implemented to increase the effectiveness of behavior programs and program monitoring. I was particularly impressed by the shift in emphasis to community oriented training, the opening of new apartment-like facilities, the IDT review process and the recent plan to implement drug side-effect cards as an additional training tool. Although the staff reports are laudatory, I also see a recognition on the part of Fairview staff and the outside experts that their improvements are part of a progression and that much work remains to be accomplished to improve conditions and programs for the residents.
After reviewing the responses of defendants' experts and staff, I find that the U.S. experts' conclusions of noncompliance are based upon a difference of professional judgment, but fail to establish a substantial departure from accepted professional judgment. I am satisfied, based upon the declarations of Dr. Vickery, Dr. Reid, Dr. McIntosh-Wilson and Dr. Close that the policies, practices and monitoring systems at Fairview are supported by qualified professional opinion and in accordance with accepted professional standards. The Panel Report, insofar as its findings and conclusions relate to the behavioral management programs, is also aimed at proposed improvements rather than a finding that Fairview's policies and practices fail to meet constitutional standards.
As I see it, the real issue raised by plaintiff's motion and the Panel Report is whether my previous order and the provisions of the Consent Decree are adequate. I feel that the suggestion made by Dr. Lavigna that Fairview simply close its doors and immediately relocate residents to community treatment facilities is completely counterproductive to the Consent Decree process agreed to by the parties and approved by this court. I am further satisfied that more down-sizing of the population would not necessarily result in greater protection of Fairview residents as some number of injuries will exist in any environment. I further find that premature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at Fairview. I further find that increased panel responsibility would be inappropriate under the law and in contravention of Section XIII of the Consent Decree. Thus, even if I were to find that defendants were in contempt of my September 1990 order, I would not grant the relief plaintiff seeks.
CONCLUSION
Under the contempt standards, as I have modified them to comport with the terms of the Consent Decree and Youngberg, I find that plaintiff has failed to carry the burden of persuasion regarding contempt and that defendants have taken all reasonable steps to comply with the goal of protecting residents from harm. I further find that the policies, practices and monitoring systems at Fairview are supported by qualified professional opinion which comports with accepted professional judgment.
515 *515 Upon consideration of the United States October 9, 1990 Emergency Motion, defendants' response, the Advisory Panel Reports of January 15, 1991 and July 31, 1991, the parties' responses to the Panel Reports, and in light of my oral findings and conclusions of September 13, 1991, and my written findings and conclusion set forth infra, I find that the issues of dental sedation and postural drainage are moot; defendants' policies and procedures relating to behavioral programs, physical management, psychotropic medications and anticonvulsants are consistent with the consent Decree and the constitutional standard set forth in Youngberg. Defendants should carefully review and consider the Advisory Panel's suggestions for improvement. However, I find that the present monitoring and reporting systems, as set forth in Section VII of the Decree are adequate and meet minimum constitutional requirements. Therefore, I leave the decision of whether the present systems should be modified in accordance with the Panel's proposal to the sound discretion of the professionals at Fairview.

[1] As an example, I noted that terms such as "adequate" and "reasonable" which appear in Section II of the Consent Decree should be further defined so that the court and parties have some sort of professionally formulated yardstick to measure progress or regression.
[2] I advised counsel at the September 13 hearing that I had received and read the Panel Report and defendants' response to the report. Plaintiff filed its reply to the report on September 20, 1991, shortly after the contempt hearing.
[3] Since 1987, when I was first assigned to this case, I have issued eight written opinions in addition to numerous orders and oral rulings during evidentiary hearings. The following is a brief summary overview of the case history from the court's perspective, provided to assist the reader in placing the present issues into both a temporal and factual context.
[4] In addition, I denied defendants' motion to dismiss intervenors' claim under § 504 to the extent they alleged that existing community-based placement programs were being administered on a discriminatory basis and granted dismissal to the extent the claim asserted that defendants were under any affirmative obligations to develop new community-based placement programs.
[5] On July 24, 1989 I signed an order of dismissal with prejudice for intervenors' claims under the Rehabilitative Act and Title XIX of the Social Security Act based upon a notice of settlement as to those claims.
[6] Intervenors objected to approval of the decree arguing that it improperly focused State resources on improving Fairview instead of moving residents into community placement. Intervenors also objected on the grounds that the decree failed to provide for specific relief, failed to ensure defendants' compliance; failed to guarantee that the Center would be radically reduced in size and that monitoring and compliance responsibilities rested solely with the government with inadequate provisions for participation by residents' parents and guardians.
[7] In my research, I discovered that Youngberg is still the controlling authority on the issue of the level of care required of states in the operation of institutions for the mentally retarded. See DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (extensive discussion of the continuing viability of Youngberg).
[8] Plaintiff-Intervenors support the U.S. motion for contempt and concur in its recommendations regarding community placement and increased monitoring by the Panel.
[9] Plaintiff contends that the State's HCFA plan reduction for school aged children is inadequate.
[10] The Panel noted that this particular individual suffers from osteoporosis which makes him particularly susceptible to fractures. It found, however, that this resident's heightened sensitivity was not adequately taken into account by the staff members who are assigned to transfer him and medical staff who failed to diagnose his second injury in a timely manner.
[11] The Panel believes that failure to integrate data will lead to inaccurate behavioral programs and an unnecessary increase in the use of medications.
[12] The state defines "minor injuries" as those "minor scratches, scrapes, bruises and small burns which a typical family would treat with basic first aid at home."
[13] Defendants also note that many parents of Fairview residents are opposed to community placement.
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 U.S. v. State of Or., Not Reported in F.Supp. (1991)
1991 WL 331673 United States District Court, D. Oregon.
UNITED STATES of America, Plaintiff, Sonya Fryer, et al., Plaintiff–Intervenors,
v. STATE OR OREGON, et al., Defendants Oregonian Publishing Company, an Oregon
corporation, Third–Party Intervenor
Civ. No. 86–961–MA. | Sept. 19, 1991.
Attorneys and Law Firms
Robinsue Frohboese, Cynthia L. Katz, Gayle D. Fidler, U.S. Department of Justice, Civil Rights Division, Washington, D.C., Jack G. Collins, Chief, Civil Division, Assistant U.S. Attorney, Portland, Or., for plaintiff United States of America.
Robert C. Joondeph, Oregon Advocacy Center, Portland, Or., for plaintiff-intervenors.
Dave Frohnmayer, Attorney General, Pamela L. Abernethy, Special Counsel to Attorney General, Oregon Department of Justice, Diane L. Brissenden, Assistant Attorney General, Thomas K. Elden, Assistant Attorney General, Department of Justice, Salem, Or., for defendant State of Oregon.
Charles Hinkle, Stoel Rives Boley Jones & Grey, Portland, Or., for Oregonian Publishing Company.
Opinion
OPINION
MARSH, District Judge.
*1 On June 12, 1991, the United States filed a motion for contempt against Fairview Training Center alleging that defendants violated the April 14, 1989 Consent Decree and the September 20, 1990 order of this court. Immediately after plaintiff filed this motion, defendants filed a motion to seal all U.S. expert reports which contained references to Fairview residents. On June 5, 1991 I granted defendants’ motion to seal the U.S. expert reports and ordered plaintiff to refile its exhibits under seal. On July 7, 1991, defendants filed their response accompanied by a motion to place portions of their expert reports under seal. On July 8, 1991, I granted defendants’ motion to file their expert reports under seal.

On June 17, 1991, and on July 19, 1991, plaintiff filed motions requesting reconsideration of my June 5th and July 8th orders sealing expert declarations. Plaintiff argued that all documents should be made public following a limited redaction of names. Plaintiff further contended that residents’ privacy interests could be adequately protected by a limited redaction referring to residents by initials or numbers. On July 26, 1991, The Oregonian Publishing Company filed a motion to intervene for the limited purpose of challenging all orders sealing documents since the filing of this case or in the alternative, to modify them to forbid the public disclosure of names and other personal identifying information. The United States and Plaintiff–Intervenors raised no objection to The Oregonian’s motion to intervene and “fully supported” its motion to vacate all of the prior sealing orders in this case with the caveat that names and identifying information should be redacted to protect residents and their families.
During the contempt hearing held on Friday, September 13, 1991, I granted The Oregonian’s motion to intervene and granted their motion to vacate all prior sealing orders on the condition that documents under seal be redacted to delete all identifying information about clients, such as full name and cottage assignment. The following constitutes my findings and conclusions on the issues related to my order conditionally vacating all prior sealing orders.
DISCUSSION
A newspaper’s interest in disclosure of court documents has its roots in the common law right to “inspect and copy public records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978). The public and press have a First Amendment right of access to pretrial documents in general. Associated Press v. United States Dist. Court, 705 F.2d 1143, 1145 (9th Cir.1983). The Ninth Circuit has held that this presumption of access extends to civil cases. EEOC v. Erection Co., Inc., 900 F.2d 168, 169 (9th Cir.1990). In EEOC, the court rejected a proposed distinction between civil and criminal proceedings in a case involving the sealing of an EEOC consent decree and remanded the action back to the district court to make specific factual findings to justify the closure order. Id.
*2 In Globe Newspaper Co. v. Superior Court, Etc., 457 U.S. 596 (1982), the Court held that a mandatory closure statute governing testimony of a child sexual molestation victim violated the First Amendment based upon the presumption of public access to criminal trials. The Court explained that the First Amendment guarantee of public
1

U.S. v. State of Or., Not Reported in F.Supp. (1991)
access is rooted in a recognition of the public’s role as a check on the judicial process, public education and to stimulate an informed discussion of governmental affairs. Id., at 604. Although the Court noted that the state’s interest in protecting child witnesses was “compelling,” the Court held that such an interest did not justify mandatory closure in light of the trial judge’s ability to determine whether closure is necessary on a case-by-case basis.
The Ninth Circuit has held that this case-by-case analysis requires a 3–pronged inquiry: (1) whether closure serves a compelling interest; (2) whether there is a substantial probability that, in the absence of closure this interest would be harmed, and (3) no alternatives exist that would adequately protect that interest. Oregonian Publishing v. U.S. Dist. Court for the District of Oregon, 920 F.2d 1462, 1465 (9th Cir.1990), cert. denied 111 S.Ct. 2809 (1991) (extending presumed right of public access to plea agreements unless defendants can demonstrate closure is essential to preserve ‘higher values’); Cf. United States v. Schlette, 842 F.2d 1574, 1579, amended 854 F.2d 359 (9th Cir.1988) (in analyzing disclosure of pre-sentence reports to third party investigating a civil damage claim, court noted a ‘presumption’ in favor of confidentiality). In examining whether a compelling interest exists justifying closure, the party asserting confidentiality “cannot rest on some general rationale.” Schlette, 842 F.2d at 1583. In addition, the asserted interest in closure must be “balanced against” the presumed right of public access. See e.g. Seattle Times v. U.S. Dist. Court for the Western Dist. of Washington, 845 F.2d 1513 (1988) (court must balance presumption of public access against defendant’s 6th Amendment right to a fair trial).
In this case, Oregonian Publishing relies upon the presumption of openness accorded public proceedings and argues that access should be permitted since the subject matter of this action involves a public agency. The Oregonian contends that the expert reports are of particular public importance since the court referred to them in my April 14, 1989, opinion approving the terms of the consent decree. Finally, The Oregonian argues that it should have access to the documents and the full names of the residents because residents and their families do not have a recognized statutory or constitutional right to privacy.
Defendants argue that closure is necessary to protect the confidentiality interests of its residents. The State points out that many of its residents are attempting to transition into the community and that this process may be exacerbated by public disclosure of aggressive and destructive incidents that take place within the institution’s walls. In addition, the state contends that the use of initials is insufficient to protect residents’ privacy because they are too identifiable by incident or cottage assignment.

*3 Indeed, many of the U.S. experts’ reports contain graphic descriptions of incidents involving residents which could embarrass family members if the name of the resident were made public. Plaintiff-intervenors and the Fairview Parents Association have consistently opposed disclosure of the residents names for this very reason.
However, the State fails to provide the kind of specific probable harm that could arise from disclosure of the incidents described in the expert reports. Although disclosure of such incidents may make transitioning more difficult for residents, it is equally plausible that the publicity could heighten public sensitivity to problems residents face. Finally, although Fairview staff could identify all but five of the residents based upon their initials and the context of the experts’ reports, there is nothing to indicate that anyone outside of Fairview could identify specific residents by their initials. Thus, the concern raised by defendants regarding a potentially “cool” public reception to specific residents transitioning out of Fairview would be served by a limited redaction of the names and reference solely to initials or patient numbers.
Finally, I disagree with The Oregonian’s contention that an order of limited redaction of identifying information must be founded upon a specific constitutional or statutory provision. In Globe Newspaper and Oregonian Publishing, the courts noted that closure must be justified upon a finding of “compelling interests” or to preserve “higher values.” They make no reference to a requirement that a court find a specific legal citation for protecting privacy interests of a person involved in a court action.1
CONCLUSION
Based upon the foregoing, I find that closure of the records in their entirety would not serve a “compelling interest” that outweighs the public’s interest in activity which takes place at one of the state’s institutions. However, I also find that residents and their families have valid privacy interests which would be harmed if the expert reports were disclosed with the names and identifying information about the residents. Based upon my review of all of the circumstances in this case and in balancing the presumption of public access against the residents’ privacy concerns, I find that a limited redaction of names and identifying information is an alternative to closure which adequately protects the interests of the residents and their families. Accordingly, plaintiff and Oregonian Publishing’s motions for reconsideration of my orders sealing documents are granted conditioned upon the redaction of client names and identifying information.
2

U.S. v. State of Or., Not Reported in F.Supp. (1991)

Parallel Citations

	  

19 Media L. Rep. 1506

Footnotes

1

In addition, courts have traditionally treated limited redactions as an alternative to closure, rather than a modified form of closure.

See e.g. United States v. Broussard, CR 91–39, Amended Opinion at pages 7–8 (filed May 31, 1991) and cases cited therein.

	  

3

 
 U.S. v. State of Or., Not Reported in F.Supp. (1992)
1992 WL 84258 Only the Westlaw citation is currently available.
United States District Court, D. Oregon.
UNITED STATES of America, Plaintiff, Sonya Fryer, et al., Plaintiff–Intervenors,
v. STATE OR OREGON, et al., Defendants
Civ. No. 86–961–MA. | April 7, 1992.
Attorneys and Law Firms
Robinsue Frohboese, Cynthia L. Katz, U.S. Department of Justice, Civil Rights Division, Washington, D.C., Jack G. Collins, Assistant U.S. Attorney, Portland, Or., for plaintiff United States of America.
Robert C. Joondeph, Portland, Or., for plaintiff-intervenors.
Charles Crookham, Attorney General, Pamela L. Abernethy, Special Counsel to Attorney General Oregon Department of Justice, Diane L. Brissenden, Assistant Attorney General, Department of Justice, Salem, Or., for defendant State of Oregon.
Opinion
ORDER
MARSH, District Judge.
*1 On September 13, 1991, at a hearing on the United States’ motion for contempt, and in a subsequent opinion issued on October 22, 1991, I made extensive factual findings and held that defendants had taken all reasonable steps to comply with the Consent Decree’s goal of protecting residents from harm. The plaintiff’s motion was premised in large part upon statistical data which indicated that Fairview residents continued to incur injuries at a rate of well over 50%. Plaintiff argued that, because injuries continued to occur at a “significant” rate, defendants failed to meet the constitutional standards embodied within the consent decree. During the course of those proceedings I expressed concern over the result-oriented approach urged by the plaintiff and the difficulties that such approach caused when attempting to measure the state’s progress. See Opinion of October 22, 1991, at pp. 14–16. Thus, in an attempt to remedy the situation and avoid future difficulties, I directed the parties “to work together to devise an agreed upon set of professional standards to be applied to each professional

field within Fairview” and that these standards should be “designed to augment and further refine any terms within the consent decree that are broad, ambiguous, or capable of several interpretations.” Id., at 3.
The parties have now responded to my directive in two completely different ways. Plaintiff has filed a motion for clarification of my directive. The United States now explains that at the time of the September 13, 1991 contempt hearing, the parties were already in the process of formulating a detailed “Plan of Correction” in conjunction with the Advisory Panel which addresses those specific standards to be applied to the various areas of professional discipline at Fairview. Plaintiff contends that the Plan provides “parameters and specific criteria by addressing 24 professional areas and over 200 specific items within those areas governing every relevant aspect of care and treatment at Fairview.”1 U.S. Response to Defendants’ Proposed Standards, at p. 5. Plaintiff contends that there is no need for additional “standards” as ordered by the court and has refused to participate with the State defendants on the development of any additional standards beyond those identified in the Plan of Correction. Plaintiff objects to defendants proposed standards as constituting an overly simplistic and incomplete “summarization.” Plaintiff argues that adoption of the standards would “abolish the consent decree provisions requiring (defendants) to achieve certain outcomes.” U.S. Reply, at 2.
Defendants responded to my order by working with their expert, Kathleen Schwaninger, on a set of “standards.” Defendants explain that these standards are “derived from” the Plan of Correction. Defendants contend that the standards are a necessary “tool” to assist the parties and the court in measuring compliance with the Consent Decree and Plan.
*2 One of the difficult aspects inherent in the role of a court exercising continuing jurisdiction over the progress of an on-going consent decree, is that once the decree is entered into, the disputes that come before the court are often just one part of a larger process of negotiation and development. Thus, when I directed the parties to “work together” to devise a set of more specific standards, I did not intend to disrupt any on-going work in progress. As I noted earlier, my sole concern was with the arguments of the parties during the motion for contempt and the difficulty I had in assessing whether defendants were in compliance with the terms of overall objectives of the Consent Decree. Now, it appears to me that both parties agree that the six volume Plan of Correction filed with the Court on February 4, 1992, substantially serves the goal of providing the court and parties with specific goals and objectives by which Fairview’s progress may be measured.
1

U.S. v. State of Or., Not Reported in F.Supp. (1992)

This does not mean that the “standards” submitted by defendants would not be a helpful “guide” to defendants in carrying out the plan, or a “tool” that might be used for the convenience of the court in the same manner that charts and summaries are often used at trial to illustrate voluminous documents or submissions. The standards would not be evidence, nor would they become part of the consent decree or Plan of correction without the consent of all parties. Given this interpretation, plaintiff is then free to submit its own “summarization” if it finds it appropriate, or to simply rely upon the underlying relevant portions of the Plan itself.
However, what is critical to me is that the specific practices, processes, goals and procedures agreed to by the parties within the Plan also be used as the yardstick against which Fairview’s process is measured. What I hope to avoid by this action is the situation I was confronted with last September whereby defendants

would be facing contempt sanctions based solely upon the fact that residents continue to incur injuries. As I emphasized in my opinion of October 22, 1991, I see my continued role as limited to ensuring that “defendants have followed the process as set forth in the Consent Decree” and have exercised “professional judgment” aimed at protecting residents from unreasonable risks of harm.2
In light of the plaintiff’s stipulation that the detailed Plan of Correction sets the standards by which all parties should measure Fairview’s progress, I agree that the parties have satisfied my concerns and directives of September 13, 1991. Accordingly, I find that further “clarification” is unnecessary and thus, plaintiff’s request for clarification # 507 is MOOT as indicated by this order.
	  

Footnotes

1

Both parties explain that there are still 3 areas within the Plan of Correction which are being negotiated through the Advisory

Panel.

2

I wish to reiterate what I expressed last September. For the purposes of the constitutional inquiry, my focus must be upon the

actions of defendants and not the injuries sustained. For example, police officers who shoot criminal suspects would automatically

commit a constitutional violation if an injury itself was the determinative factor. Instead, under § 1983, courts focus upon the

objective reasonableness of the officer’s actions in light of all circumstances confronting him or her at the time. Similarly, in this

case, while evidence of injuries may be probative to determining what the circumstances were and what actually occurred to

produce the injury, the injury itself is not a constitutional violation unless it was the result of an unconstitutional action or omission

by the defendants.

	  

2

 
 U.S. Department c istice Civil Rights Division
U.S. v. Oregon

Office of the Assistant Attorney General

'""""'"" " " M R ' O R . O O 1-001

CERTIFIED MAIL - RETURN RECEIPT REQUESTED
*

« f- •, AD 4Oor
ib M AH 1985

Honorable Victor Atiyeh

Governor

i

State Capitol Building

Salem, Oregon 97310

Re: Notice of Findings Regarding Fairview

Training Center, 42 U.S.C. §1997b(a)(l)

Dear Governor Atiyeh:

On May 13, 1983, we notified you that pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §1997, we were commencing an investigation into conditions at the Fairview Training Center in Salem. As contemplated by the statute, 42 U.S.C. §1997b, we are writing to inform you of the findings of our investigation and the minimum measures required to remedy the unconstitutional conditions and deprivations of federal statutory rights at Fairview.

As you are aware, the actual initiation of our investigation was delayed eleven months as a result of the State's objections to our standard investigatory practices. Once these differences were resolved, we were able to conduct our investigation in a relatively smooth and unhampered fashion. The cooperation of Attorney General Frohnmayer and his staff, and Fairview Superintendent McGee and his staff, provided us with substantial assistance and facilitated our investigation.

Our investigation consisted, first, of comprehensive tours of Fairview by two independent experts. The experts observed conditions in all of the residential buildings at Fairview, formally and informally interviewed administrators, staff, and residents, and examined a variety of records. Further, we conducted interviews with parents of residents and members of advocacy and consumer groups. Finally, we gathered and analyzed extensive documentation related to Fairview. The documentation included: a variety of Fairview's standard policies and procedures; information related to Fairview1s staffing patterns; minutes from Fairview Committees; Disposition Board actions; State Training Center Review Board minutes; police reports; abuse investigation reports; death

-2-
records; incident/injury reports; medication and treatment cottage logs; medical progress sheets; information related to residents with pica behavior; "special need for time-out procedure or restraint" forms; monthly restraint reports; and a sampling of residents' records. We have also reviewed the findings of the 1984 validation survey conducted by the Health Care Financing Administration of the United States Department of Health and Human Services.
Based upon our extensive investigation, we believe that conditions exist at Fairview which deprive residents of their constitutional and federal statutory 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 restraints. Youngberg v. Romeo, 457 U.S. 307, 324 (1982). In addition to these constitutional rights, persons institutionalized at Fairview have a federal statutory right pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, not to be deprived of services because of the severity of their handicap. Those institutionalized residents under age 22 also have a federal statutory right to a free, appropriate public education consistent with Part B of the Education of All Handicapped Children Act, 20 U.S.C. §§1401-1420 (EHA).
Set forth below are our findings and recommendations. These findings and recommendations relate to conditions that are violative of the constitution, e.g., those that seriously threaten the lives, health, and safety of Fairview residents and their right to be free from undue bodily restraint, and those that violate Section 504 or the EHA. These unconstitutional conditions and statutory violations include:
1. Lack of minimally adequate training for those residents in need of protection from undue risks to their personal safety and unreasonable use of bodily restraints.
2. Inadequate medical care.
3. Inadequate numbers of and insufficiently qualified staff to render professional judgments regarding necessary care, medical treatment, and training, and to implement such professional judgments.

-3-
4. Failure to protect residents from abuse and neglect.
5. Serious health hazards due to unsanitary and unsafe environmental conditions.
6. Insufficient and inadequate recordkeeping and administrative practices.
Supporting Facts: The facts supporting our conclusions include trie following:
1. Lack of Minimally Adequate Training Programs To Ensure Safety
As previously noted, the Supreme Court recognized in Youngberg that institutionalized mentally retarded people are constitutionally entitled to such training as an appropriate professional would consider reasonable to ensure freedom from undue risks to their personal safety. Such training for those residents who need and can benefit from it is virtually non-existent at Fairview. Our consultants believe that this lack of minimally adequate training results in a serious level of self-injurious and aggressive behaviors.
The number of injuries caused by a failure to address residents' self-injurious and aggressive behaviors through appropriate training programs causes us grave concern. While touring residential cottages at Fairview, we observed numerous residents with open wounds, gashes, abrasions, contusions, and fresh bite marks. Many other residents had deep scars and scabs from a long history of self-abuse or victimization. \J
\J Records provided by Fairview officials also reveal an alarmingly high number of injuries. An analysis of the 651 Fairview incident reports completed during the month of January 1984 has revealed that there were 377 serious behavior episodes and 197 injuries resulting from self-abuse or aggression. Based upon a review of entries made in the Medication and Treatment Logs during May and June, 1984, there were a total of 641 injuries from resident on resident abuse, self-abuse, and unobserved causes. These injuries included lacerations, cuts, abrasions, bruises, contusions, fractures, bites, and scratches. An additional 103 instances of self-abuse and 27 incidences of sexual abuse were reported in the logs without identifying the consequences resulting from the abuse.

- 4-
Of the few training programs that exist at Fairview for self-abuse and aggression, many are based on aversive techniques, such as overcorrection, aversive stimulation, time out, and restraints. In most situations, need for such aversive techniques is not professionally reviewed on a timely basis.. Often, the specific behavior problem to be addressed has abated significantly, yet the aversive techniques are continued. As such, our experts were of the opinion that the use and review of these techniques represent a substantial departure from any accepted professional standard with respect to such methods of behavior control.
Additionally, programs for school-aged residents provided under EHA are insufficient under that statute. Residents are not educated in the least restrictive educational environment and are not provided with individualized education programs on a regular basis consistent with statutory requirements. Twelve month education programs are not provided to residents when needed to prevent deterioration. Residents who are "behavior problems" are either totally or partially excluded from participation in classes at the Fairview School. Efforts to provide such educational services on the residents' wards do not meet statutory minima. These practices and deficiencies fail to protect residents' rights under EHA.
2. Unreasonable Use of Restraints
The lack of minimally adequate training to those at Fairview in need of it results in another serious problem of constitutional dimensions — excessive use of physical and chemical restraints.
Fairview records reveal that during the month of April 1984, physical restraints were used on a programmatic, emergency, medical, and special needs basis a total of 2,503 times. During the month of May 1984, they were used on the same bases a total of 2,132 times. Both of our experts concluded that such restraints are used at Fairview in lieu of training and for the convenience of staff. Moreover, the decision of when to employ many physical restraints is often determined by untrained, unqualified, or unsupervised staff. These practices depart significantly from acceptable professional standards.
Potent psychotropic medications are also used as chemical restraints at Fairview on a continuous or pro re nata (PRN) basis to manage behavior in lieu of training. This practice is contrary to accepted professional standards. Four hundred

-5-
thirteen Fairview residents received neuroleptic medications during May 1984. Haldol and Droperidol are routinely administered PRN for behavioral disturbances. Dually restraining residents by placing them in physical restraints concurrent with chemical restraints imposed by potent psychotropic drugs is not an uncommon practice. The use of such medication under these circumstances constitutes a substantial departure from legitimate medical judgment a.nd violates residents1 right to be free from unreasonable bodily restraints.
Because Fairview does not provide adequate training for those residents who are self-injurious or physically abusive to others, restraints are used as the only way to deal with these negative behaviors. Inadequately trained and insufficient staff who believe they have no other alternative use restraints to control behavior. This combination of factors results in the unreasonable use of restraints and constitutes a significant departure from the exercise of any legitimate professional judgment.
3. Inadequate Numbers and Insufficiently Qualified Staff
Both of our expert consultants agree with Fairview officials that the institution is understaffed with respect to direct care and professional personnel. The Fairview Training Center is responsible for caring for approximately 1,400 residents, and its population is currently increasing. Most of the residents are profoundly and severely mentally retarded people who require intensive care and training due to their high level of medical, basic self-care, and behavioral needs. The current staffing patterns at Fairview are simply inadequate to provide for these needs.
a. Lack of direct care staff; The number of direct care staff on the day and evening shifts is grossly inadequate. While touring Fairview, we observed several units with fifteen to twenty severely and profoundly retarded residents where no direct care staff were present. In other units of comparable size and level of retardation, one staff person was present but was engaged in toileting, bathing, stripping beds, sortinq laundry or mopping up urine on floors. Most of the residents were therefore left unattended. According to staff, these staffing patterns are not uncommon. While an attempt is made to have one staff person on each unit during the day, in actuality, with staff breaks and absences, units are oftentimes left unattended or attended on an ad hoc basis by a staff

-6-
person responsible for another unit. During the evening, most cottages, some with as many as sixty residents, have only one or two direct care staff assigned to supervise them.
Given the lack of adequate staff, direct care staff are oftentimes unable to meet the substantial basic care needs of many residents. Many residents therefore suffer from the unhealthy effects 'of poor oral and other bodily hygiene. We observed several residents who were laying or sitting in their own urine or soiled diapers or clothes.
Additionally, the insufficient number of direct care staff results in an inability to adequately monitor the resident population. As a consequence, some residents have died and many others suffer serious injuries from self-abuse, aggression, pica, and runaway behaviors. Due to lack of staff, residents who require supervision wander unmonitored outside the facilities at Fairview, sometimes with serious consequences that pose a real threat to the residents' health and safety.
In sum, our findings indicate that there is an insufficient number of direct care staff at Fairview to provide minimally adequate supervision and care of residents. This paucicy of staff results in residents suffering deleterious health conditions, numerous accidents, and life-threatening injuries due to neglect. Our medical expert concluded that a sufficient number and type of staff may have prevented some of the deaths that have occurred at Fairview within the past two years.
The lack of staff is also directly correlated to the frequent use of restraints at Fairview. Records from the Restraint and Time Out Procedure Review Committee reveal clearly that restraints are being used because there is insufficient staff. In the majority of instances where restraints were employed, Fairview records indicate their use was necessary because insufficient staff was available to handle various behavior problems of residents.
b. Lack of professional staff; Professional staffing is also inadequate at Fairview. There are an insufficient number of personnel to check residents for illness or injuries and to perform needed treatments. Oftentimes, medical treatment is left to Medication and Treatment Aides who are qualified only to dispense medications. As will be discussed in greater detail in the Medical Care and Treatment Section, the number of dental personnel, physical therapists, and occupational

-7-
therapists is inadequate to meet the basic medical and health care needs of residents. Equally severe shortages of psychologists, who average current caseloads of close to two hundred residents, result in an inability to assess each resident of Fairview and to develop training programs for those residents who can be trained to modify their physically abusive and/or selfinjurious behavior such that the need for restraints is reduced or eliminated.
i
Overall, the inadequate professional staffing at Fairview results in a failure to provide residents with minimally adequate care, medical treatment, and such training as is reasonably necessary to protect residents from unreasonable risks of physical injury and to ensure their freedom from undue bodily restraints.
4. Inadequate Medical Care and Treatment
Unprofessional medication practices, inadequate responses to pica behavior (ingesting non-edible substances), and the failure to provide essential medical services constitute inadequate and unsafe medical care at Fairview.
a. Unprofessional medication practices; Medication practices at Fairview pose some unacceptable risks to residents and represent significant departures from accepted professional medical standards. At least two drugs are currently being used on a number of residents for conditions which the drugs are not designed to treat. Tylenol #3 (a combination of analgesics, one of which is a narcotic) is being prescribed for disruptive, assaultive or agitated behaviors. Inderal, a potent beta blocker used to control hypertension, cardiac arrhythmia and migraine, is being prescribed for self-abuse and aggression. The use of these drugs for these behaviors is contrary to acceptable professional practices.
According to our medical expert, the number of residents receiving neuroleptic medications is double what one would normally expect at an institution like Fairview. In addition, ten per cent of the residents receiving neuroleptics are on tranquilizers and anti-depressants, which in combination have extremely potent sedative/anticholinergic effects. Neuroleptic drugs are sometimes prescribed without any justification being noted in the record. In other instances, no effort is made to coordinate the use of neuroleptics with other aspects of the resident's plan of care, behavioral program, or use of physical restraints.
The efficacy of and continued need for neuroleptics are oftentimes not assessed on a regular or timely basis. Of particular concern is the failure to monitor toxic drug sideeffects. For example, a resident became toxic on a multitude

-8-
of anti-convulsants and an anti-depressant which resulted in vomiting for ten days before he was transferred to the infirmary for detoxification. Monitoring of long-term drug side-effects, such as tardive dyskinesia, is also virtually non-existent at Fairview, despite institutional policies which call for such screening.
b. Inadequate response to pica behavior; The frequency of pica behavior is particularly high at Fairview and causes severe, life-threatening consequences. Residents have had to undergo surgery, sometimes on a repeated basis, to remove foreign objects or to relieve bowel and other obstructions caused by pica. Physicians at Fairview have indicated that some residents have had surgery so frequently that any more operations resulting from pica would jeopardize their lives.
While touring Fairview, we observed unsupervised residents eating garbage, cigarette butts, and grass.' In several cottages, staff indicated that a high percentage of residents exhibit some form of pica behavior. No comprehensive effort has been made, however, to specifically identify residents with such behavior with the exception of two cottages where 84 of the 180 residents were reported to have pica behavior.
Oftentimes, the pica behavior is undetected until health and life-threatening consequences occur. Even when detected, appropriate intervention does not occur. Fairview1s failures to identify residents with pica behavior, to supervise their behavior, and to respond appropriately to their behavior constitute practices which subject residents to unreasonable risks of harm to their personal safety.
c. Failure to provide essential medical care; The lack of health maintenance and surveillance are significant deficiencies at Fairview. Because of lack of supervision, serious and avoidable injuries are not prevented and early signs of illness and disease go undetected. Basic health care needs of residents, such as diaper changing, toileting, and toothbrushing, are not met.
Dental services are a particular problem at Fairview. According to Fairview staff, basic dental care is "unacceptable" in fifty percent of the residents in intensive care cottages. Seventy percent of residents institution-wide have gum disease. A delay in examination and treatment of two and a half years for those residents requiring general anesthesia for dental problems is not uncommon. Dental care services are thus not minimally adequate to meet the health care needs of Fairview residents.

-9-
The lack of physical therapy and occupational therapy services are also serious deficiencies in residents' medical care. Residents who have a medical need for physical therapy services, including adaptive equipment, in order to reduce the risk of developing contractures, body deformities, atrophy of muscles, and decubiti, are not receiving minimally adequate physical therapy. The absence of such care often results in significant problems in skin care, circulation, and infection. Additionally, several residents with identified feeding disorders are not receiving essential training in feeding despite a doctor's referral order, subjecting them to unreasonable health threats.
5. Serious Health Hazards Due to Unsanitary and Unsafe Environmental Conditions
Our consultant physician noted many unsanitary practices and conditions at Fairview which pose unreasonable risks to residents' health. Many of the cottages we toured smelled of urine and waste. Sewage backup in cottage basements, up to three feet high on the walls, is permitted to remain for days. Aspects of Fairview's food preparation, storage, and handling also pose sanitation and contamination problems, as evidenced by the Health Care Financing Administration's validation survey. These and other unsanitary conditions result in the rapid spread of infectious diseases. For example, an August 1983 random sample of Fairview residents revealed that 35% had pinworm infection, a parasite which is spread by fecal and oral routes in unclean environments.
6. Insufficient and Inadequate Recordkeeping and Administrative Practices
Deficient recordkeeping and administrative practices are of constitutional significance in that inaccurate or incomplete records can constitute an active danger to residents by depriving professional and other staff of information necessary to make appropriate and safe decisions regarding care, medical treatment, and training. The recordkeeping practices at Fairview are deficient in this respect. Resident records regarding such critical information as medication orders are oftentimes not kept up-to-date. Nursing entries are not made on a scheduled basis, thus failing to provide timely written documentation of health care needs and treatment. Other data, such as frequency of behavioral problems, is similarly not collected or recorded in a consistent fashion, resulting in inadequate data bases for making and revising decisions with regard to training required under Youngberg.

-10-

7. Minimally Necessary Remedies:

The aforementioned conditions constitute a pattern and practice of egregious and flagrant conditions resulting in deprivation of Fairview residents' constitutional and federal statutory rights. ' We believe that this pattern and practice has been permitted to exist for a long period of time and at least since 1981. We would be remiss, however, if we failed to commend Fairview1s many conscientious and dedicated staff who strive to make the most of the inadequate resources available to them.

To rectify the deficiencies at Fairview, to ensure that constitutionally adequate conditions are maintained thereafter, and to ensure that residents' federal statutory rights are protected, we propose to enter into a legally binding and judicially enforceable agreement with the State of Oregon, providing at a minimum, the following remedies:

1. Training programs must be professionally designed for those residents who need them and for whom such training will reduce or eliminate unreasonable risks to their personal safety and/or the need for undue bodily restraint. Immediate attention must be given to residents with self-injurious, physically abusive and other destructive behaviors by identifying them and providing necessary training.

2. Fairview must hire and deploy a minimally adequate number of qualified direct care and professional staff necessary to provide residents with minimally adequate medical care and the training described in paragraph 1. above so as to protect residents from undue risks to personal safety and unreasonable bodily restraint.

3. The practice of using restraints for the convenience of staff, or in lieu of the training described in paragraph 1. above must cease immediately. Restraints may be employed only pursuant to the exercise of professional judgment by a qualified professional.

4. Residents must be provided with necessary medical care, and medication practices must be modified, as necessary, to ensure that they comport with accepted professional medical standards.

5. The unsanitary practices described earlier must be

halted.

;

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6. Recordkeeping and administrative practices designed to ensure residents' rights to freedom from undue risks to personal safety, freedom from unreasonable bodily restraint, and minimally adequate training must be implemented.
We stand prepared to make our experts available to the State of Oregon to provide such technical assistance as may prove helpful in remedying the deficiencies we have identified. Information about federal financial assistance which may be available to assist with the remediation process can be obtained through the United States Department of Health and Human Services' Regional Office (James D. Hughes, Director, Intergovernmental and Congressional Affairs; (206) 442-1290) and through the United States Department of Education by contacting individuals listed in the attached information guide. I am aware that the State has been developing plans in response to the Health Care Financing Administration' s validation survey. To the extent that these plans, if implemented, will rectify statutory violations and unconstitutional conditions of confinement, they could possibly serve as a basis for reaching a legally binding and judicially enforceable agreement.
Our attorneys will be contacting Attorney General Frohnmayer's office shortly to arrange for a meeting to discuss this matter in greater detail. We seek to resolve these matters in a reasonable manner and in the spirit of cooperation intended by the Civil Rights of Institutionalized Persons Act, and look forward to working with state officials toward that end.
Sincerely,

cc: David Frohnmayer, Esq. Attorney General

Wm. Assistant Attorney General
Civil Rights Division

Leo T. Hegstrom Director, Dept. of Human Resources

J.H. Treleaven, M.D. Assistant Director, Human Resources
Jerry McGee, Ed.D. Superintendent Fairview Training Center

Charles H. Turner, Esq. United States Attorney

 
 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Washington. DC. 20530

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

1 9 M A R 1986

Honorable Victor Atiyeh
State Capitol Building Salem, Oregon 97310

U.S. v. Oregon
II III Mil H U M III IIIIIII I III Illllll I IIlll
MR-OR-001-002

Re: CRIPA Investigation of Fairview Training Center, Salem, Oregon

Dear Governor Atiyeh:

In my letter to you of March 15, 1985, I set forth the findings of our Fairview Training Center investigation pursuant to the Civil Rights of Institutionalized Persons Act (Act). As required by § 1997b of the Act, that letter described the unconstitutional conditions and deprivations of federal statutory rights at Fairview and the minimum measures we believe are needed to remedy those conditions and deprivations.

Your March 25, 1985, response to our findings letter asserted that substantial improvements had been made at Fairview. Based upon this representation, we assessed current conditions at the facility. This evaluation consisted of comprehensive tours by two independent experts and analysis of extensive documentation. The documentation included: surveys of Fairview conducted by the Health Care Financing Administration of the United States Department of Health and Human Services and Fairview's plans of correction and monthly progress reports; the 1985 report by the Oregon Department of Education on special education services at Fairview; a variety of Fairview1s standard policies and procedures; information related to Fairview's staffing patterns; minutes and reports from various Fairview Committees and Departments; information pertaining to residents on various drugs; State Training Center Review Board minutes; police and abuse investigation reports; death records; incident/injury reports; medication and treatment cottage logs; medical progress sheets; monthly restraint reports; and a sampling of residents' records.

-2-
Based upon this extensive evaluation of Fairview it is clear that although some improvements have been made, the pattern of unconstitutional conditions and federal statutory violations identified in our March 15, 1985, findings letter continues in significant measure. The violations include:
1. Lack of minimally adequate training for those residents in need of protection from bodily injury to self or others or both.
2. Inadequate medical care.
3. Inadequate numbers of and insufficiently trained staff to render professional judgments regarding necessary care, medical treatment, and training, and to implement such professional judgments.
4. Failure to protect all residents from unreasonable risks of harm to their personal safety by the conduct of staff or other residents.
5. Serious health hazards due to intolerable sanitation and unsafe environmental conditions.
6. Insufficient and inadequate recordkeeping and administrative practices.
7. Failure to provide residents with a free, appropriate public education consistent with part B of the Education of All Handicapped Children Act, 20 U.S.C. §§ 1401-1420.
These deprivations of Fairview residents' constitutional and federal statutory rights remain despite our encouragement to correct them, including repeated consultations with the State of Oregon regarding financial, technical or other assistance which may be available to assist with remediation. Inasmuch as the State has had a reasonable opportunity to correct the deficiencies voluntarily and has failed to do so, it is necessary at this juncture to ensure that the State will correct the cited deficiencies. It remains our preference to accomplish this by entering into a legally binding and judicially enforceable consent decree with the State of Oregon. We believe that the interests of all involved are best served by this method of resolution rather than by engaging in protracted litigation.

-3-
Our attorneys will be contacting Attorney General Frohnmayer's office within the next week to begin the negotiation process. We look forward to your cooperation in resolving this matter through negotiation and conciliation to arrive at a fair and just settlement of this matter.
Sincerely,
Assistant Attorney General Civil Rights Division
cc: David Frohnmayer, Esquire Attorney General
Leo T. Hegstrom, Director Department of Human Resources
Verne Duncan, Ed.D. State Superintendent of Public
Instruction
Jerry McGee, Ed.D. Superintendent Fairview Training Center
Charles H. Turner, Esquire United States Attorney

 
 Do"

~<slsJL

r \J
t 1986

1 EDWIN MEESE I I I

2 ARTHUR E. PEABOBY7 JR.
BENJAMIN P_* SCHOEN
3 ROBINSUE FROHBOESE
U.S. Department of J u s t i c e
4 Civil Rights Division
P.O. Box 37076
5 Washington, D.C.
(202) 272-6064
6 CHARLES H. TURNER
United States Attorney, D i s t r i c t of Oregon
7 JACK G. COLLINS

EndonsdFitad

i8 P o r t l a n d , Oregon 9 7205
(503) 221-2101
9
Attorneys for the United
10 S t a t e s of America

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF OREGON

13
UNITED STATES OF AMERICA,
14
Plaintiff,
15
v.
16
STATE OF OREGON;
17 VICTOR ATIYEH, Governor of
Oregon; OREGON DEPARTMENT OF
18 HUMAN RESOURCES; LEO T.
HEGSTROM, Director of the
19 Oregon Department of Human
Resources; MENTAL HEALTH
20 DIVISION; JOSEPH E. MURRAY,
Assistant Director of the
21 Oregon Department of Hunan
Resources and Administrator
22 of the Mental Health Division;
OREGON STATE BOARD OF
23 EDUCATION; VERNE A. DUNCAN,
Superintendent of Public
24 Instruction; and JERRY MCGEE,
Superintendent, Fairview
25 Training Center,

Civil No.
UNDER THt: CIVI
INSTITUTTOWALIZED PERSONS ACT
U.S. v. Oregon

•• •

HH • •

•• ^

•

MR-OR-001-003

26

Defendants

27

28

PAGE 1--COMPLAINT FOR INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT

of the Department of Human Resources and the Administrator of

the Mental Health Division have responsibilities with regard

to the administration and operation of Fairview Training

Center. Governor ATIYEH also appoints the members of the

Oregon State Board of Education. The Oregon State Board of

6 Education is responsible for setting standards for the

7 educational programs for handicapped children at the Fairview

8 Training Center.

9

7. Defendant OREGON DEPARTMENT OF HUMAN RESOURCES has

10 overall responsibility for providing services to the mentally

11 retarded people in Oregon. The Department houses the Mental

12 Health Division which oversees operation of the Fairview

13 Training Center.

14

8. Defendant LEO T. HEGSTROM is the Director of the

15 Oregon Department of Human Resources. In this capacity, he

16 supervises and controls the Department of Human Resources.

17 He appoints an Assistant Director to serve as Administrator

18 of the Mental Health Division.

19

9. Defendant MENTAL HEALTH DIVISION is responsible for

20 operating, controlling, managing, and supervising the Fairview

21 Training Center.

22

10. Defendant JOSEPH E. MURRAY is the Assistant Director

23 of the Oregon Department of Human Resources and the Administrator

24 of its Mental Health Division. In this capacity, he supervises

25 and controls the Mental Health Division and has rule-making .

26 authority. He appoints the Superintendent of the Fairview

27

28

PAGE 3--COMPLAINT FOR INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT

1 Training Center and assigns any additional necessary duties 2 of the Superintendent not prescribed by law.

3

11. "The OREGON STATE BOARD OF EDUCATION exercises

4 general governance over public education in Oregon and is the 5 designated state education agency for the purpose of applying

6 for, receiving, and disbursing federal funds granted to Oregon

7 by federal agencies for educational purposes under various 8 acts of Congress, including the Education of the Handicapped

9 Act.

10

12. Defendant VERNE A. DUNCAN is the Superintendent of

11 Public Instruction in Oregon. In this capacity, he is the

12 chief administrative officer of the Oregon State Board of 13 Education and is responsible for the general supervision of

14 all educational programs for handicapped children in Oregon, 15 including those at the Fairview Training Center.

16

13. Defendant JERRY MCGEE is the Superintendent of the

17 Fairview Training Center. In this capacity, he serves as the

18 executive head of the Fairview Training Center. He has

19 statutory custody of the residents of Fairview Training Center

20 and is responsible for directing their care and training,

21 adopting sanitary measures for their health and comfort, and

22 promoting their mental and physical development and welfare.

23

14. All individual defendants listed in paragraphs 6

24 through 13 above are named in their official capacities.

25

26

27

28

PAGE 4--COMPLAINT FOR INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT

1

FACTUAL ALLEGATIONS

2

15. Fairview Training Center is an institution within

the meaning of 42 U.S.C. S 1997(1)(A) and (l)(B)(i).

16. Persons residing at Fairview Training Center include

individuals who are mentally retarded and developmentally

disabled.

17. All named defendants are legally responsible, in

8 whole or in part, for the operation of Fairview Training

9 Center and for the conditions of confinement of persons

10 therein.

11

18. At all relevant times, the defendants or their

12 predecessors in office have acted or failed to act as alleged

13 herein under color of state law.

14

19. Defendants fail to provide minimally adequate

15 training to Fairview Training Center residents to protect

16 then from bodily injury and unreasonable use of bodily

17 restraints.

18

20. Defendants fail to provide adequate medical care to

19 Fairview Training Center residents.

20

21. Defendants fail to protect Fairview Training Center

21 residents from serious health hazards arising from sanitation

22 practices and environmental conditions.

23

22. Defendants fail to protect Fairview Training Center

24 residents from unreasonable risks of harm to their personal

25 safety by the conduct of staff or other residents.
26

27

28

PAGE 5--COMPLAINT FOR INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT

1

23. Defendants fail to ensure that there is an adequate

2 number of sufficiently trained staff to render professional

3 judgments regarding necessary care, medical treatment, and "

4 training of Fairview Training Center residents, and to implement

5 such professional judgments.

6

24. Defendants fail to provide Fairview Training Center

7 residents under the age of 21 with a free, appropriate public

8 education.

9

VIOLATIONS ALLEGED

10

25. The acts and omissions of defendants described in

11 paragraphs 19 to 23 constitute a pattern or practice of

12 resistance to the full enjoyment by residents of Fairview

13 Training Center of rights, privileges, or immunities secured

14 or protected by the Constitution of the United States and

15 deprive such residents of these rights, privileges, or immunities

16

26. The act and omission of defendants described in

17 paragraph 24 constitutes a pattern or practice of resistance

18 to the full enjoyment by residents of Fairview Training Center

19 of rights secured or protected by the Education of the

20 Handicapped Act.

21

22

23

24

25

26 27 28

PAGE 6—COMPLAINT FOR INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT

1

PRAYER FOR RELIEF

2

27. No adequate remedy at law exists to address the

deprivation of constitutional and federal statutory rights

alleged above.

28. Unless restrained by this Court, defendants will

continue toengage inthe above-described practices which

violate the constitutional and federal statutory rights of

8 Fairview Training Center residents.

9

WHEREFORE, the United States prays that this Court

10 enter anorder permanently enjoining defendants, their officers,

11 agents, employees, subordinates, successors inoffice, and

12 all those acting inconcert orparticipation with them from

13 continuing the acts, practices, and omissions described herein

14 which deprive the residents ofFairview Training Center of

15 rights, privileges or immunities secured orprotected by the

16 Constitution and laws of the United States.

17

The United States further prays that this Court grant

18 such other and further equitable relief as it may deem just

19 and proper.

20

Respectfully submitted,

21

22

EDWIN MEESE III

23

Attorney General of

the United States
24

25
26 /JACK 6. COLLINS, Assistant 27 United States Attorney
28

!-••••

-

-

,

'

Date:

?„•

REYNOLDS

^ssistant'Attorney General

Civil Rights Division

PAGE 7—COMPLAINT FOR INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT

1 2

3

ii : <(.li. * >i :^l\ .-{, D a t e : •

ARTHUR E. PEABODY, JR.

4

Chief

Special Litigation Section

5

6

7

)- c - Date:

BEMJAI1IN P. SCHOEN

8

Deputy Chief

Special Litigation Section

9

10

11

ROBINSUE FROHBOESE

Attorney

12

U.S. Department of Justice

Civil Rights Division

13

Washington, D.C. 20530

14 II

15 II

16 II

17 II

18 II

19 II 20 II

21 II 22 II 23 II 24 II 25 II 26 II 27 II 28 II

PAGE 8- •COMPLAINT FOR INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT

1

CERTIFICATE OF THEATTORNEY GENERAL

2

I, Edwin Meese III, Attorney General of the United States,

3 certify tflat with regard to the foregoing Complaint, I have

4 complied with all subsections of 42 U.S.C. §1997b(a) (1). I

5 certify as well that I have complied with all subsections

6 of 42 U.S.C. S1997b(a)(2). I further certify pursuant to

7 42 U.S.C. §1997b(a)(3) my belief that this action by the

8 United States to be of general public importance and will

9 materially further thevindication of rights, privileges,

10 or immunities secured or protected by the Constitution of

11 the United States.

12

I finally certify that all prerequisites to the initiation

13 of suit under 42 U.S.C. S199 7 have been done.

14

Pursuant to 42 U.S.C. §1997a(c), I have personally signed

15 the foregoing Complaint. Pursuant to 42 U.S.C. §1997b(b), I

16 am personally signing this Certificate.

17

% L

Signed this

day of J i>r».<-

18 Washington, D.C.

19

1986, at

20

21

EDWIN MEESE III

Attorney General of

22

the United States

23

24

25

26

27

28 EXHIBIT A, PAGE 1

PAGE 9--COMPLAINT FOR INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT

 
 District of Oregon - Docket Report

Page 1 of 28

FRC, TERMINATED
U.S. District Court District of Oregon (Portland) CIVIL DOCKET FOR CASE #: 3:86-cv-00961-MA

USA v. State of Oregon, et al Assigned to: Judge Malcolm F. Marsh Demand: $0 Case in other court: C/A89-35447 Cause: 42:1981 Civil Rights Plaintiff USA
V. Intervenor Plaintiff Sonya Fryer

Date Filed: 07/28/1986 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff
represented by Jack G Collins US Attorneys Office 1000 SW Third Ave Suite 600 Portland, OR 97204-2902 (503) 727-1000 Fax: 424-1004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robinsue Frohboese US Dept of Justice Civil Rights Division PO Box 66400 Washington, DC 20035 202-514-6252 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Masling US Dept of Justice Civil Rights Division PO Box 66400 Washington, DC 20035 202-514-6252
represented by Robert C Joondeph Oregon Advocacy Center 620 S. W. Fifth Ave 5th Floor Portland, OR 97204-1428 243-2081

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District of Oregon - Docket Report
Intervenor Plaintiff Jorgjina Oliver Intervenor Plaintiff Ronald Lee Intervenor Plaintiff Thelma Jackson

Page 2 of 28
Fax: 243-1738 Email: bob@oradvocacy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Brischetto Attorney at Law 520 S.W. Yamhill Street Suite 500 Portland, OR 97204 (503) 223-5814 Fax: (503) 228-1317 Email: slb@brischettolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Hatton Dept of Justice 1162 Court Street NE Salem, OR 97310 503-378-6313
represented by Robert C Joondeph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Brischetto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C Joondeph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Brischetto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C Joondeph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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District of Oregon - Docket Report
Intervenor Plaintiff Donald Lyle
Intervenor Plaintiff Keith Davis
Intervenor Plaintiff Fredrick Long
Intervenor Plaintiff Jonathan Jones

Page 3 of 28
Stephen L. Brischetto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Hatton (See above for address)
represented by Robert C Joondeph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Brischetto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen L. Brischetto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Hatton (See above for address)
represented by Robert C Joondeph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Brischetto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C Joondeph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Brischetto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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District of Oregon - Docket Report
Intervenor Plaintiff Ronald Brelsford TERMINATED: 04/04/1989
Intervenor Oregonian Publishing CO. an Oregon corporation
Defendant Victor G Atiyeh
Defendant State of Oregon

Page 4 of 28
David B Hatton (See above for address)
represented by Stephen L. Brischetto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Hatton (See above for address)
represented by Charles F. Hinkle Stoel Rives, LLP 900 SW Fifth Avenue Suite 2600 Portland, OR 97204 (503)294-9403 Fax: (503) 220-2480 Email: cfhinkle@stoel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen K Bushong Dept of Justice 1162 Court Street NE Room 450 Salem, OR 97310-0506 503-378-6313 Email: Stephen.bushong@state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey J Wahl Dept of Justice Human Services 1162 Court St NE Salem, OR 97310 (503) 378-4620 Email: jeffrey.wahl@doj.state.or.us
represented by Stephen K Bushong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey J Wahl

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District of Oregon - Docket Report

Page 5 of 28

Defendant Verne A Duncan
Defendant Leo T Hegstrom Director of Human Resources
Defendant Mental Health Division
Defendant Jerry McGee superintendent Fairview Training Center
Defendant Joseph Murray assistant director of Human Resources

(See above for address)
represented by Stephen K Bushong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey J Wahl (See above for address)
represented by Stephen K Bushong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey J Wahl (See above for address)
Pamela L Abernethy Department of Justice Administration 100 Justice Building Salem, OR 97310 503-378-6313
represented by Stephen K Bushong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey J Wahl (See above for address)
represented by Stephen K Bushong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey J Wahl (See above for address)
represented by Stephen K Bushong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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District of Oregon - Docket Report

Page 6 of 28

Defendant
Oregon State Board of Higher Education

Jeffrey J Wahl (See above for address)
represented by Stephen K Bushong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey J Wahl (See above for address)

Date Filed
01/20/1989 01/20/1989
01/20/1989 01/20/1989 01/20/1989 01/30/1989 01/31/1989
01/31/1989 02/21/1989

#

Docket Text

CASE FILE SENT TO THE FRC Accession number 21-91-0012 Box number 14 Location number 147878 umber 21-91-0012 (former employee) Modified on 02/07/1995 (Entered: 02/07/1995)

253 Pltf-Intervenors MOTION to file docs under seal (former employee) (Entered: 01/27/1989)

254 RECORD OF HRG:Pltf-Intervenors & defts may file suppl memo & briefs re: Handling of pend motions by 1/31/89. Thereafter, Court will iss procedural ord on all pend mots. ORD: transcript of proceedings filed pursuant to proto announced by court at this conf. ORD: granting motion to file docs under seal [253-1] Rpts of H.D. Bud Fredericks, Garald Provencal & Rbot. L. Carl, Jr, Ph.D are filed U/Seal. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 01/27/1989)

255 Pltfs Intervenors' expert witness report (Robert L. Carl, Jr., PH.D (former employee) (Entered: 01/27/1989)

256 Pltfs intervenors' expert witness rpt (Gerald Provencal) (former employee) (Entered: 01/27/1989)

257 Pltfs Intervenors' expert witness rpt (H.D. Bud Fredericks) (former employee) (Entered: 01/27/1989)

258 Supplemental authority in support of mot to partially dismiss Intervenors' complnt by defendants (former employee) (Entered: 01/30/1989)

259 Motion & ORDER to file memo under seal & for protective order of OR defts: Defts memo re pend mots file under seal & Parties keep confid such memo & its contents. ntfd Signed 1/30/89 microfilmed 2/3/89 Honorabl Helen J. Frye (former employee) (Entered: 02/03/1989)

260 Defts' (OR State) Memo re pending mots & entry of consent decree (sealed) (former employee) (Entered: 02/03/1989)

261 JOINT MOTION by plaintiff United States of America to enter consent decree as an order of the court (dn) (Entered: 02/23/1989)

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District of Oregon - Docket Report

Page 7 of 28

02/21/1989
02/24/1989 02/27/1989 03/01/1989
03/03/1989 03/03/1989
03/07/1989 03/09/1989 03/10/1989
03/13/1989 03/13/1989 03/14/1989

262 RECORD OF HRG: Court's protective order re: settlement status is lifted to the extent that parties may announce that the USA & State of OR have signed & filed a proposed consent decree together w/mot for approval by the court. (pr;pr:pr) Honorable Malcolm F. Marsh (former employee) (Entered: 02/24/1989)
263 RECORD OF ORD: Pltf-Intervenors shall file any objs to the proposed consent decree by THU, 3/9/89, noon. (ntfd c/d) Honorable Malcolm F. Marsh (former employee) (Entered: 02/27/1989)
264 RECORD OF ORD: ; setting status hrg for WED 10:00 3/1/89 (ntfd c/d) Honorable Malcolm F. Marsh (former employee) (Entered: 02/28/1989)
265 RECORD OF HRG: Intervenors file renewed mot for class cert by 3/13/89. OR respond by 3/20/89. US & OR file responses to interven's objs to proposed consent decree by 3/17/89. Interven's file rply by 3/24/89. Interven's mot for rulings #243 & Mot for cont #241 DENIED as MOOT. Tentatively ; setting in court hrg on consent decree for 9:30 4/7/89 (ntfd c/d) Honorable Malcolm F. Marsh (former employee) (Entered: 03/03/1989)
266 Opinion (ntfd c/d) Signed 3/3/89 microfilmed 3/6/89 Honorable Malcolm F. Marsh (former employee) (Entered: 03/06/1989)
267 ORDER Defts' mot to dismiss #208 granted in part & denied in part. grant as to count 1 & denied as to count II, denied as to count III, granted as to count IV & granted as to count VII (see order) (ntfd c/d) Signed 3/3/89 microfilmed 3/6/89 Honorable Malcol F. Marsh (former employee) (Entered: 03/06/1989)
268 Notice rquired by Federal Regulation (former employee) (Entered: 03/08/1989)
269 Objections by plaintiff /Intervenors' to joint mot to enter consent decree as an order of the ct (placed under seal pursuant to the court's previous order) (former employee) Modified on 03/13/1989 (Entered: 03/10/1989)
270 RECORD OF ORD: striking hrg on consent decree 4/7/89 & ; setting in court hrg for 9:30 4/6/89 , ORD: defts' oral mot to place under seal pltfintervens' objs to joint mot to enter consent decree etc #269 granted. Objs #269 sealed per ct's previous order ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 03/13/1989)
271 Affidavit of Robert L. Carl, Jr. Ph.D. (former employee) (Entered: 03/13/1989)
272 RECORD OF ORD: ; setting status hrg for TUE 2:30 3/14/89 crtrm #11 , any out of state cnsl wishing to participate by phone may do so please advise court priort to time for hrg ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 03/13/1989)
274 RECORD OF HRG: formal order to follow , ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 03/16/1989)

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Page 8 of 28

03/15/1989
03/15/1989 03/16/1989
03/20/1989 03/21/1989 03/21/1989 03/21/1989 03/22/1989 03/22/1989 03/22/1989 03/29/1989 03/30/1989

273 ORDER Pltf-Intervs shall show cause in writing by 3/21/89 why sanctions should not be imposed for violation of court's protos placing intervs' objs to consent decree #269 under seal as well as placing all expert rpts under seal. The US & State of OR submit memo on 3/21/89. Court will take matter U/A (see order) ntfd Signed 3/15/89 microfilmed 3/15/89 Honorable Malcolm F. Marsh (former employee) (Entered: 03/15/1989)
275 RECORD OF ORD: Intervenors' mot pursuant to FRCP 68 #238 DENIED ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 03/16/1989)
276 RECORD OF ORD: Pltf-Intven's oral mot to allow disclosure of certain protected materials to Atty Don H. Marmaduke is GRANTED on following basis: (1) Disclosure ltd to: (a) interven's objs to consent decree #269; (b) expert rpts of J.J. McGee, PH.D. dated 7/87 & 2/87; (c) expert rpt of HD Bud Fredericks; (d) expert rpt of Robt L Carl, Jr, PH.D; (3) expert rpt of W. Sailor, PH.D., Geo. Singer, PH.D & Duaner Lundervold, M.S; & (f) expert rpt of Gerold Provencal. (2) Foregoing material may be disclosed to Atty Marmaduke & his office personnel directly involved in preparation of intvens' show cause memo. Said persons be informed of, & given copies of, this court's previous protective orders concern disclosed materials. (3) all disclosed materials & any copies made shall be rtnd to intervens w/in 10 days after resolution of show cause matter. ntfd Honorable Malcolm F. Marsh (former employee) Modified on 03/16/1989 (Entered: 03/16/1989)
277 Defts' supplemental memo re Intervens' motion for class certification (former employee) (Entered: 03/20/1989)
278 United States' Memorandum re confidentiality orders (former employee) (Entered: 03/21/1989)
279 Defts' memo re imposition of sanctions (Filed Under Seal) (former employee) (Entered: 03/21/1989)
280 Response to order to show cause [273-2] by pltf-intervs & their cnsl (former employee) (Entered: 03/22/1989)
281 Amended response to Order to Show Cause (former employee) (Entered: 03/22/1989)
282 US' memo in response to pltf-intervs' objs to joint mot to enter consent decree as an ord of the court (former employee) (Entered: 03/23/1989)
283 Defts' response to pltf-intervens' objs to joint mot to enter consent decree as an order of the court (filed under seal) OR defts (former employee) (Entered: 03/23/1989)
284 RECORD OF ORD: Set hrg on Intervenors' response to Order to show cause TUE, 4/4/89, 3:00 pm Ptld time , ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 03/31/1989)
285 RECORD OF ORD: In accord w/ord of 6/23/88 (#l91) exhibit B to U.S.

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Page 9 of 28

04/04/1989
04/05/1989 04/05/1989
04/05/1989 04/05/1989
04/06/1989 04/06/1989 04/06/1989 04/10/1989 04/10/1989 04/11/1989

Oppos to defts' disc plan #133 placed under seal ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 03/31/1989)
286 RECORD OF HRG: Intvervens' mot for class cert #202 GRANT under FRPC 23(b)(2)- formal opn & ord to follow. Intvens finle formal dism of Interv Brelsford. Sacntions entered against intervens' cnsl, excluding S. Brischetto, for violation of court's proto - formal opn & ord to follow. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 04/05/1989)
287 Opinion re sanctions (see opn) (ntfd) Signed 4/5/89 4/6/89 Honorable Malcolm F. Marsh (former employee) (Entered: 04/06/1989)
288 ORDER DC cnsl of Mental Health Law Proj inclduing I Burnim may no lonter appear (see ord) Costs, expense, atty fees assessed against Elam Lantz, Jr. personally in amt to be determined. Attys for ptlf & defts submit affids of all expenses in relation to show cause w/support docs. D Hatton meet w/me personally private conf re role in dissemination of sealed docs. Lantz ord to recover all copies, etc of any sealed docs. Brischetto absolved of any responsibil of actns calling for sanctions. No sanctions imposed on idivid res intervens. ntfd Signed 4/5/89 microfilmed 4/6/89 Honorable Malcolm F. Marsh (former employee) (Entered: 04/06/1989)
289 Opinion re class cert (see opn) Signed 4/5/89 Honorable Malcolm F. Marsh (former employee) (Entered: 04/06/1989)
290 ORDER intvs' mot for class cert #202 granted. Class cert Rule 23(b)(2) & consist of all persons who've resided at Fairview since 10/2/86, or in future. As to intvs' 504 claims, subclass consist of members of class who req & were denied community svcs on basis of severity of handicaps, phys handicaps or maladaptive behaviors. (see ord) , ntfd Signed 4/5/89 microfilmed 4/6/89 Honorable Malcolm F. Marsh (former employee) (Entered: 04/06/1989)
291 MOTION by pltf intvs to file reply brief & hrg memo on objs to proposed decree (former employee) (Entered: 04/06/1989)
292 RECORD OF HRG: granting motion to file reply brief & hrg memo on objs to proposed decree [291-1] taking under advisement on 4/6/89 motion to enter consent decree as an order of the court [261-1] ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 04/10/1989)
293 Pltf-Intvs' reply brief & hrg memo on objs to proposed consent decree, affid of Sundram (former employee) (Entered: 04/10/1989)
294 MOTION by pla-intvs for order of dismissal- Roanld Brelsford #294 (former employee) (Entered: 04/10/1989)
295 ORDER granting motion for order of dismissal- Ronald Brelsford [2941] to dismiss Brelsford , ntfd Signed 4/10/89 microfilmed & ent 4/10/89 Honorable Malcolm F. Marsh (former employee) (Entered: 04/11/1989)
296 MOTION by pla/intvrs for release of confidential info (former employee)

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04/11/1989 04/14/1989 04/14/1989
04/17/1989 04/18/1989 04/19/1989 04/19/1989 04/19/1989 04/27/1989 04/27/1989
05/02/1989 05/03/1989

(Entered: 04/11/1989)
297 ORDER granting motion for release of confidential info [296-1] to allow disclosure of certain protected materials to J. Hassett atty, DC for purpose of representing Burnim re appeal ntfd Signed 4/11/89 Honorable Malcolm F. Mars (former employee) (Entered: 04/11/1989)
298 Opinion-(see ord date 4/14/89) ntfd Signed 4/14/89 microfilmed & ent 4/14/89 Honorable Malcolm F. Marsh (former employee) (Entered: 04/14/1989)
299 ORDER-Pltf & efts' joint mot for entry of the decree is granted. The decree is ent as an ord of this ct. The parties contemplate that State officials shall provide an adequate plan to HCFA by 4/30/89. The State may move to dissolve this ord & the ct may grant the mot for good cause shown after 6/30/89, if HCFA has failed to approve the State's plan . ntfd Signed 4/14/89 microfilmed & ent 4/14/89 Honorable Malcolm F. Marsh (former employee) (Entered: 04/14/1989)
300 Declaration of Pamela L. Abernethy relating to costs and fees in sanctions matter (former employee) (Entered: 04/17/1989)
301 Declaration of Robinsue Frohboese re expenses ans fees incurred in relation to sow cause proceeding by plaintiff (former employee) (Entered: 04/19/1989)
302 MOTION by pltf/intvs for Pro Hac Vice admission of counsel-Joseph Hassett, Geo. Merncik, III, David G. Leitch & Albert W. Turnbull in DC (former employee) (Entered: 04/20/1989)
303 MOTION by pltf/intvs to alter or amend the judgment of 4/5/89 #303 (former employee) (Entered: 04/20/1989)
304 Memorandum by pltf/intvs in support of motion to alter or amend the of 4/5/89 [303-1] supplemental affid of Elam Lantz (former employee) (Entered: 04/20/1989)
305 RECORD OF ORD: SET Pltf/Intvs motion to alter or amend the judgment of 4/5/89 [303-1] on M/C MON, 5/22/89 (noa) ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 04/28/1989)
306 ORDER granting motion for Pro Hac Vice admission of counsel-Joseph Hassett, Geo. Merncik, III, David G. Leitch & Albert W. Turnbull in DC [302-1] Said cnsl admitted pro hac vice to rep pltf/intvs & their cnsl, in mot of pltf/intfs to alter or amend jdgmt of 4/5/89, & other proceedings related to the Order to Show Cause of 3/15/89 ntfd Signed 4/27/89 microfilmed & ent 4/28/89 Honorable Malcolm F. Marsh (former employee) (Entered: 04/28/1989)
307 MOTION by plaintiff USA for release of sealed material to advisory panel members #307 memo (former employee) (Entered: 05/03/1989)
308 ORDER re mot for release of info under seal etc. #307 (see order) ntfd Signed 5/3/89 microfilmed & ent 5/3/89 Honorable Malcolm F. Marsh

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05/09/1989
05/10/1989 05/10/1989
05/15/1989
05/19/1989 05/19/1989 05/19/1989 05/31/1989 05/31/1989
06/02/1989 06/02/1989 06/07/1989 06/09/1989 06/09/1989

(former employee) (Entered: 05/03/1989)
309 RECORD OF ORD: set Rule 16 sched conf for intvs & state of OR MON, 5/15/89, 10:00 in chmbrs. Ms Abernethy may appear by phone, court place call , ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 05/10/1989)
310 Case Management Order (see order) ntfd Signed 5/10/89 microfilmed & ent 5/10/89 Honorable Malcolm F. Marsh (former employee) (Entered: 05/10/1989)
311 ORDER Elam Lantz, Jr is ordered to pay deft State of OR fees and expenses in amt of $9l7.79 & pltf USA $281.50 ntfd Signed 5/10/89 microfilmed & ent 5/10/89 Honorable Malcolm F. Marsh (former employee) (Entered: 05/10/1989)
312 RECORD OF ORD: Rec of pretrial sched conf: ,ORD on 6/2/89 parties exchange & file their plan of case management. Responses are filed and exchanged 6/9/89. Further sched conf be set after court has recd the plans and comments ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 05/17/1989)
313 Reporter's Transcript of proceedings had 3/1/89 filed (former employee) (Entered: 05/19/1989)
314 Reporter's Transcript of proceedings had 3/10/89 & 3/13/89 filed (former employee) (Entered: 05/19/1989)
315 Reporter's Transcript of proceedings had 3/14/89 filed (former employee) (Entered: 05/19/1989)
316 Opinion (see following order) Signed 5/31/89 microfilmed & entered 5/31/89 Honorable Malcolm F. Marsh (former employee) (Entered: 05/31/1989)
317 ORDER: Intervenors' motion to alter or amend the judgment of 4/5/89 [303-1], treated as a motion for reconsideration of sanctions, is DENIED. ntfd Signed 5/31/89 microfilmed & entered 5/31/89 Honorable Malcolm F. Marsh (former employee) (Entered: 05/31/1989)
318 Defts' case management plan (former employee) (Entered: 06/02/1989)
319 MOTION by pltf-intvs' for leave to file documents under seal #319 (former employee) (Entered: 06/05/1989)
321 ORDER granting motion for leave to file documents under seal #319 [319-1] ntfd Signed 6/7/89 microfilmed & ent 6/8/89 Honorable Malcolm F. Marsh (former employee) (Entered: 06/08/1989)
322 Defts' (Oregon) response to intervenors' case management plan (former employee) (Entered: 06/12/1989)
323 Pltf/Intvs' response to defts' case management plan (Elam Lantz/Hatton (former employee) (Entered: 06/12/1989)

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06/14/1989 06/15/1989
06/15/1989 06/15/1989 06/16/1989 06/21/1989 06/22/1989 06/22/1989
06/28/1989 06/30/1989
06/30/1989 07/03/1989 07/07/1989 07/07/1989

324 Stipulation and ORDER extending, by 14 days, time for plan design: date for plan design be extended by 14 days, to 6/27/89 ntfd Signed 6/14/89 Honorable Malcolm F. Marsh (former employee) (Entered: 06/15/1989)
325 Notice of appeal by pltf/intvs Davis, Fryer, Jackson, Jones, Lee, Long, Lyle, Oliver & their cnsl Elam Lantz, Jr, David B Hatton, Ira A Burnim & Leonard S Rubenstein from Dist. Court decision opinion & order 5/31/89 denying pltf/intvs mot to alter or amend jgmt of 4/5/89, from opn & ord entered 4/5/89, imposing sanctions on cnsl & from order ent 5/10/89, specifying amt of monetary sanctions imposed on Elam Lantz, Jr. [325-1] (former employee) (Entered: 06/15/1989)
Received C/A fee of $: 100.00 D/C fee of $: 5.00 ( Receipt # 072769) (former employee) (Entered: 06/15/1989)
Mailed copy of notice of appeal to C/A and cnsl & necessary info (former employee) (Entered: 06/15/1989)
326 MOTION by pltf/intv to join party Verne Duncan #326 affidavit of Stephen L Brischetto (former employee) (Entered: 06/19/1989)
327 RECORD OF ord setting scheduing conf. for 6/22/89 at 10am. , ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 06/21/1989)
328 RECORD OF Sched Conf: see formal order , ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 06/22/1989)
329 ORDER re case management S/J motions file by 7/14/89, Response 7/25/89. Replies 8/2/89. Hrg on s/j motions 8/7/89, 2:30. , Final PTO 10/27/89, Discovery 8/1/89, Intvs submit proposed PTO 10/2/89. PTC 11/21/89, 1:30, C/Trial 1/9/90 (2 wk) , (see order) all expert tours be conducted in accord w/prev orders of court. ntfd Signed 6/22/89 Honorable Malcolm F Marsh (former employee) (Entered: 06/22/1989)
332 RECORD OF ORD: granting motion to join party Verne Duncan and amend complaint [326-1] ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 07/03/1989)
330 Certified Copy of Order from the US Court of Appeals for the Ninth District re appeal #[325-1] Dkt statement 7/11/89. Applt ntfy applee re tn 6/26/89; Applee ntfy applt re tn 7/5/89; Applt file desig form tn 7/17/89; File reptr trnscrpts 8/15/89; applt opening brief 10/2/89; applee brief 10/31/89 (former employee) (Entered: 06/30/1989)
331 Notification by US Court of Appeals for the Ninth Circuit of Docket Number 89-35447 (former employee) (Entered: 06/30/1989)
333 Pltf-intvs' deposition list and report to the court re scheudling of discovery (former employee) (Entered: 07/05/1989)
334 MOTION by pltf/intv to stay payment of monetary sanctions #334 (former employee) (Entered: 07/07/1989)
335 Memorandum in support of motion to stay payment of monetary

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07/07/1989 07/07/1989 07/10/1989 07/10/1989 07/12/1989 07/13/1989 07/13/1989 07/20/1989 07/21/1989 07/21/1989
07/24/1989 07/24/1989
08/03/1989 08/08/1989

sanctions [334-1] (former employee) (Entered: 07/07/1989)
336 Declaration of Elam Lantz, Jr cnsl for intv/pltfs (former employee) (Entered: 07/07/1989)
337 Certificate of service for #334,335,336 by intv/pltf (former employee) (Entered: 07/07/1989)
338 Transcript Designation and Ordering Form for date(s) March 1, 13, 14/89, & 4/4/89 (filed #313, 314, 315 tn for 4/4/89 not completed yet) (former employee) (Entered: 07/10/1989)
339 Summons issued Verne Duncan (former employee) (Entered: 07/10/1989)
340 MOTION by pltf-intv for order permitting submission of documents to experts #340 , memo in support (former employee) (Entered: 07/13/1989)
341 AMENDED COMPLAINT in intervention- civil rights (former employee) (Entered: 07/13/1989)
342 Certificate of service pltf/intvs (former employee) (Entered: 07/13/1989)
343 RECORD OF ORD: granting motion to stay payment of monetary sanctions [334-1] ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 07/21/1989)
344 Consent decree, affidavit of counsel David B Hatton, (no signature line for judge) (former employee) (Entered: 07/24/1989)
345 Joint MOTION by intvps & defts to enter consent decree as order of court #345-1 , for approval of settlement agreement and partial dismissal of claims #345-2 ; proposed order entering consent decree; proposed order of dismissal; proposed consent decree and settlement agreement (former employee) (Entered: 07/24/1989)
346 ORDER granting motion to enter consent decree as order of court [345-1] ntfd Signed 7/24/89 & entered 7/25/89 Honorable Malcolm F. Marsh (former employee) (Entered: 07/25/1989)
347 ORDER granting pltf/intvs motion for approval of settlement agreement and partial dismissal of claims #345 ORDER: claims under the rehabilitation Act and Title XIX of the Society Security Act dismissed w/prej and w/out costs or atty fees. termcs , ntfd Signed 7/24/89 microfilmed & ent 7/25/89 Honorable F. Marsh (former employee) (Entered: 07/25/1989)
348 MOTION by plaintiff-intv for release of sealed or confidential materials to advisory panel #348 (former employee) (Entered: 08/03/1989)
349 ORDER granting pltf-intvs motion for release of sealed or confidential materials to advisory panel [348-1] be disclosed only to the 3 Advisory panel members, who shall keep rpts confidential (see order) ntfd Signed 8/8/89 microfilmed & ent 8/8/89 Honorable Malcolm F. (former employee) (Entered: 08/08/1989)

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08/22/1989 08/22/1989 08/22/1989 09/05/1989 09/05/1989 09/11/1989 09/22/1989 09/25/1989 09/25/1989 10/05/1989 10/12/1989
02/02/1990
02/22/1990 02/23/1990

350 Notice of appeal by plaintiff/intervenors & their cnsl from final order 7/24/89 etc., suggest appeal #89-35447 be consol(former employee) Modified on 08/22/1989 (Entered: 08/22/1989)
Received C/A fee of $: 100 D/C fee of $: 5 ( Receipt # 073891) (former employee) (Entered: 08/22/1989)
Notification form sent to US Court of Appeals for the Ninth Circuit / cnsl (former employee) (Entered: 08/22/1989)
Notification by US Court of Appeals for the Ninth Circuit of Docket Number 89-35587 (app filed 8/22/89) (former employee) (Entered: 09/05/1989)
351 C/Appeals Order time schedule R/trans designation due 9/21/89; Court Reporter file tn 10/23/89; Applt breif 12/8/89; Applee br 1/8/90 (former employee) (Entered: 09/05/1989)
352 Transcript Designation and Ordering Form for date(s) no additional (dates 3/1/89, 3/13/89, 3/14/89 filed & 4/4/89 (former employee) (Entered: 09/11/1989)
353 Reporter's Transcript of proceedings had 4/4/89 (former employee) (Entered: 09/25/1989)
Certificate of Record Transmitted to US Court of Appeals for the Ninth Circuit for #89-35447, 89-35587 (ntfd) (former employee) (Entered: 09/25/1989)
354 Order from the US Court of Appeals Applts' mot to consol Appeal [3501], [325-1] (C/A #s 89-35447 & 89-35587 GRANTED (former employee) (Entered: 09/25/1989)
355 Letter of subst of counsel on behalf of State of Oregon, for appeal purposes Remove Pamela Abernathy & subst Virginia Linder (former employee) (Entered: 10/05/1989)
356 Stipulation and ORDER: that the date for the US' & intervenors' filing of any objs to the plan with the advisory panel be extended by 22 days to 11/1/89. ntfd Signed 10/12/89 microfilmed 10/13/89 Honorable Malcolm F. Marsh (former employee) (Entered: 10/13/1989)
Clerk's record on appeal transmitted to US Court of Appeals for the Ninth Circuit CONSISTING of Reporter's Transcripts of proceedings had 3/1/89, 3/10 & 13/89, 3/14/89, 4/4/89. The USDC file (record) will be retained at this time, and will be available to the Court of Appeals if necessary. (former employee) (Entered: 02/02/1990)
357 Joint MOTION by plaintiff & pltf/intv for release of sealed material to Gerald Golden, MD #357 , EXPED RULING REQ, memo (former employee) (Entered: 02/22/1990)
358 ORDER granting motion for release of sealed material to Gerald Golden, MD [357-1] Pltf's expert rpts filed 6/17/88, pltf/inv expert rpts filed

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04/13/1990 04/23/1990 04/23/1990
06/08/1990 06/08/1990
06/08/1990 06/08/1990
06/19/1990 06/20/1990 06/21/1990

11/4/88, 1/20/89, defts' expert rpts filed 8/11/88, 9/1/88 may be disclosed to Dr. Gerald Golden. ORD Golden be given copies of this court's orders sealing rpts and be instructed to keep rpts confidential. ntfd Signed 2/23/90 Honorable Malcolm F. Marsh (former employee) (Entered: 02/23/1990)
359 MOTION by plaintiff for release of sealed material to parties' experts #359 , EXPED RULING RE (former employee) (Entered: 04/13/1990)
360 RECORD OF ORD: granting motion for release of sealed material to parties' experts [359-1] ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 04/23/1990)
361 Stipulation and ORDER: re release of sealed material to parties' experts (experts rpts filed 6/17/88, pltf-intvs' expert rpts 11/4/88 & 1/20/89, defts' expert rpts 8/11/88 & 9/1/88 may be disclosed to expert consult etc for purposes of monitoring compliance w/consent decree ent as an order 4/14/89, including defts' use of experts to assist w/implementation of decree. (see ord) ntfd Signed 4/23/90 microfilmed & ent 4/23/90 Honorable Malcolm F. Marsh (former employee) (Entered: 04/23/1990)
362 Exhibits A-J & O of US' memo in support of emergency mot for referral to The Advisory panel, etc. (former employee) (Entered: 06/11/1990)
363 ORDER to seal certain docs in support of US' emergency motion. Seal memo in supp of emergency mot for referral to advisory panel, for evid hrg & emergency remedy for defts' non compliance w/consent decree priority meas & objective. Exh G, I, K, L, M. O to us memo. Furth ord seal of these docs shall in no way restrict parties' use of these docs for oth purposes under court's confid ord of 8/26/87. ntfd Signed 6/8/90 Honorable James A. Redden (former employee) (Entered: 06/11/1990)
364 MOTION by USA for referral to The Advisory Panel, for an eviditiary hrg, and for an emergency remedy for defts' non-compliance w/consent decree priority measures and objective #364 , EXPED HRG REQ (former employee) (Entered: 06/11/1990)
365 MOTION by USA to seal certain docs in support of its emergency motion for referral to The Advisory Panel, for an evid hrg, & for emergency remedy for defts' non-compliance w/consent decree priority measures and objective #365 , EXPED RULING REQ (former employee) (Entered: 06/11/1990)
367 MOTION by defendants' to extend time to file response to pltf's emergency mot [364-1] #367 (former employee) (Entered: 06/19/1990)
368 RECORD OF ord granting deft's motion to extend time to file response to pltf's emergency mot [364-1] # [367-1] ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 06/22/1990)
369 Memorandum in opposition by defendant's to USDOJ's motion for referral to The Advisory Panel, for an eviditiary hrg, and for an emergency remedy for defts' non-compliance w/consent decree priority

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06/21/1990 06/22/1990
06/29/1990 07/31/1990 07/31/1990 08/03/1990
08/06/1990 08/06/1990 08/09/1990 08/09/1990 08/09/1990 08/14/1990

measures and objective [364-1], o/a req. (former employee) (Entered: 06/22/1990)
370 MOTION by State defendants to stay panel review of USDOJ's additional compliance issue pending resolution of USDOJ's emergency motion and request for interim minute order (expeditef hearing requested) [370-1] (Neal) (Entered: 06/22/1990)
371 RECORD OF TELEPHONE HEARING: Plaintiff USA 's mot for referral to the advisory panel, for an evidentiary hearing, and for an emergency remedy for defts' non-compliance with consent decree priority measures and objectives #364 in ABEYANCE. ORDER - Deft's motion to stay #370 (fld 6/21/90) MOOT. ORDER - based on agreement of all parties, the pending issues will be presented to the Panel in accordance with the provisions of the Consent Decree. ntfd Honorable Malcolm F. Marsh (Neal) (Entered: 06/22/1990)
372 Reporter's Transcript of Proceedings had 6/22/90 by teleph (former employee) (Entered: 07/02/1990)
373 U.S. status report on emergency motion (former employee) (Entered: 08/01/1990)
374 MOTION by USA to temporarily seal exhibits to status report on emergency motion #341 Exped Ruling Requested (former employee) Modified on 08/01/1990 (Entered: 08/01/1990)
375 ORDER granting motion to temporarily seal exhibits to status report on emergency motion [374-1]. Exh A to US Stat Rpt on emergency mot. Exh B to US stat rpt on emergency mot (see this order) ntfd Signed 8/3/90 Honorable Malcolm F. Marsh (former employee) (Entered: 08/03/1990)
377 MOTION by plaintiff USA for a hearing, and for an emergency remedy for defts' non-compliance with consent decree priority measures and objective #377 , EXPED RULING REQ (former employee) (Entered: 08/07/1990)
378 Memorandum by plaintiff in support of motion for a hearing, and for an emergency remedy for defts' non-compliance with consent decree priority measures and objective [377-1] (former employee) (Entered: 08/07/1990)
379 Certificate of service by plaintiff (former employee) (Entered: 08/09/1990)
380 MOTION by plaintiff to set expedited hearing on US' emergency motion during week of August 27, 1990 #380 (former employee) (Entered: 08/09/1990)
381 Memorandum by plaintiff in support of motion to set expedited hearing on US' emergency motion during week of August 27, 1990 [380-1] (former employee) (Entered: 08/09/1990)
382 RECORD OF TELCONF: granting motion to set exped hrg on US'

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08/15/1990 08/16/1990 08/16/1990 08/17/1990
08/20/1990
08/21/1990 08/21/1990 08/22/1990 08/23/1990
08/24/1990 08/30/1990 08/31/1990

emergency motion during week of August 27, 1990 [380-1] ORD set US motion for a hearing, and for an emergency for defts' non-compliance with consent decree priority measures and objective [377-1] FRI, 8/17/90, 10:00. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 08/15/1990)
383 Memorandum in oppos by defendant to US' renewal of emergency motion [364-1] (former employee) (Entered: 08/15/1990)
384 MOTION by USA to substitute page in revised proposed order for emergency relief #384 (former employee) (Entered: 08/17/1990)
385 Declaration of Gary W. Lavigna, PH. D. by USA re motion to substitute page in revised proposed order for emergency relief [384-1] (former employee) (Entered: 08/17/1990)
386 RECORD OF HRG: ORD grant pltf-intv's oral mot to file brief re USA's mot for hrg & for emergency remedy for defts' non compliance w/consent decree #377 by 8/24/90. ORD tentatively set cont of hrg on #377 8/21/90 or 8/22/90. Court will advise of date on 3/20. ORD USA's mot to sub pg in revised prop ord for emergency relief #384 granted. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 08/21/1990)
387 RECORD OF ORD: TEL Sched CONF: THU 8/23/90, 9:00 , [Mots to be set are USA's 6/8/90 mot for referral #364, & USA's 8/6/90 mot for hrg, & for emergency remedy #377]. see min entry. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 08/21/1990)
388 Response to the US emergency motion by pltf-intvs (former employee) (Entered: 08/21/1990)
389 Declaration of Geo. H.S. Singer, Ph.D. re motion response [388-1] (former employee) (Entered: 08/21/1990)
390 MOTION by defendant to quash subpoena #390 , EXPD HRG REQ (former employee) (Entered: 08/23/1990)
392 RECORD OF TEL CONF: ORD parties file expert affids 8/31/90. Ms. Hennessy included in this category. ORD OR's mot to quash subpoena #390 grant in part den in part. Court will allow rpts from 7/1/90 on individuals listed in subpoena. ORD USA's 6/8/90 motion for referral #364 moot. , ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 08/28/1990)
391 US' recommendations to the court re: cottages to tour & documents to review during the court's 8/17/90 tour of Fairview Train Ctr per US' emergency motion (former employee) (Entered: 08/27/1990)
Clerk's record on appeal transmitted to US Court of Appeals for the Ninth Circuit/per request of C/A (former employee) Modified on 08/30/1990 (Entered: 08/30/1990)
393 Pltf-Intv suppl response to US' emergency motion [377-1] (former employee) (Entered: 08/31/1990)

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08/31/1990 09/04/1990 09/05/1990 09/05/1990 09/10/1990 09/13/1990 09/20/1990
10/10/1990 10/23/1990 11/06/1990 11/08/1990
11/19/1990

394 Defts' suppl brief and testimony defendant State of Oregon re US' emergency motion [377-1] (former employee) (Entered: 08/31/1990)
395 Reporter's Transcript of telephone conference 8/23/90 (former employee) (Entered: 09/05/1990)
396 MOTION by plaintiff to temporarily seal the declaration of Daniel P. Davidson, PH.D. #396 , EXPD RULING REQ (former employee) (Entered: 09/06/1990)
397 Suppl Memo by USA in support of emergency motion [396-1] (former employee) (Entered: 09/06/1990)
398 Declaration of Gary W. Lavigna, PH.D. by plaintiff (former employee) (Entered: 09/10/1990)
399 ORDER granting motion to temporarily seal the declaration of Daniel P. Davidson, PH.D. [396-1] ntfd Signed 9/12/90 microfilmed Honorable Malcolm F. Marsh (former employee) (Entered: 09/14/1990)
401 ORDER State of Or. shall immediately protect all those resident who have sustained or are likely to sustain significant harm to themselves. W/in 60 days, the State of Oregon shall consistently implement training programs that confrom to Fairview's Sept. l8, l989 policy on behavior programs for all residents who have sustained significant harm. W/in 120 days, State of Or. shall implement training programs to conform to Fairview's 9/18/89 policy on behavior programs for all residents who are design. behaviorally at risk. Fairview shall immediately retain such outside consultants as necessary to produce the outcomes described in its items 1-3. (see file for complete detail). ntfd Signed 9/20/90 microfilmed & eod 9/20/90 Honorable Malcolm F. Marsh (former employee) (Entered: 09/20/1990)
402 Notice of change of address of Stephen L. Brischetto for intv-pltfs Lyle, Long, Lee, Jones, Jackson, Fryer, Davis Oliver (former employee) (Entered: 10/10/1990)
403 MOTION by USA for emergency relief to protect Fairview Training Ctr residents #403 , EXPED RULING REQ, memo (former employee) (Entered: 10/24/1990)
404 Memorandum in oppos by State defts to mot for emergency relief to protect Fairview Training Ctr residents [403-1] (former employee) (Entered: 11/07/1990)
405 ORDER U.S. mot for relief seeking to protect Fairview Training Ctr Res. (see ord) I refer this to Advisory Panel for determination as to whether Fairview in in compliance w/mandates of consent decree. (see ord) Panel direct to determine whether delay in reach desired level of improvements or whether conditions developed which require adjustment of improvement plan itself. ntfd Signed 11/6/90 microfilmed & ent 11/8/90 Honorable Malcolm F. Marsh (former employee) (Entered: 11/08/1990)
406 Reply by USA to defts' memo in opposition motion for emergency relief

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12/19/1990 01/22/1991 01/24/1991 01/24/1991 01/24/1991 01/25/1991 01/25/1991 02/05/1991 02/07/1991 02/14/1991 02/15/1991 02/22/1991 02/25/1991 03/05/1991
03/05/1991

[403-1] (former employee) (Entered: 11/19/1990)
407 Mandate from US Court of Appeals for the Ninth Circuit affirming the decision of the District Court C/A #89-35447, 89-35587 (former employee) (Entered: 12/20/1990)
408 Substitution of counsel: Robert C. Joondeph substituted in place of Elam Lantz for intvpltfs (former employee) (Entered: 01/22/1991)
409 Supplemental Memorandum by USA in further support of motion for emergency relief to protect Fairview Training Ctr residents [403-1] (former employee) (Entered: 01/24/1991)
410 MOTION by defendant to file documents under seal #410 (former employee) (Entered: 01/24/1991)
411 Response by OR defts to the advisory panel findings and opposition to US' propoesd order (former employee) (Entered: 01/24/1991)
412 Supplemental memo of the US in furth support of emergency motion and request for an expd ruling on revised order for emergency relief (former employee) (Entered: 01/25/1991)
413 RECORD OF ORD: grant State dfts motion to file documents under seal [410-1] ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 01/28/1991)
415 Reply by USA to dfts' response to the advisory panel findings of dangerous conditions at Fairview [411-1] (former employee) (Entered: 02/05/1991)
416 Notice of clarification of cnsl for Or dfts V. Linder out, Pamela Abernethy in (former employee) (Entered: 02/07/1991)
417 Intvp' response to advisory panel findings (former employee) (Entered: 02/14/1991)
418 Reply by OR defts to US' rply to defts' objs to advisory panel findings [415-1] (former employee) (Entered: 02/19/1991)
419 RECORD OF ORD: Status hrg MON, 2/25/91, 2:00 , ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 02/25/1991)
420 RECORD OF Disc Conf: (no comments) , ntfd Honorable Malcolm F. Marah (former employee) (Entered: 02/27/1991)
421 RECORD OF ORD: Govt shall reimburse the State for all costs and any overtime wage payments incurred through the State's production of the listings of incident & injury reports for all Fairview residents from 9/20/90 through the present. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 03/05/1991)
422 ORDER State submit to court & Advisory Panel w/in 30 days all relevant documentation & a comprehensive rpt re successes & practices in order that a determination be made whether these policies & practices comply

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03/05/1991 04/04/1991 04/11/1991 05/31/1991 05/31/1991 05/31/1991 06/03/1991 06/04/1991 06/05/1991
06/05/1991 06/12/1991 06/17/1991 06/17/1991 06/17/1991

w/mandates of Consent Decree. State submit to court & Advisory Panel w/in 30 days its proposed plan re use of anticonvulsant & psychotropic meds, including documentation, as to how it intends to remedy noncompliance w/consent decree found by Panel. Panel advise court whether its satisfied that State's proposed plan will comply w/consent decree. (see ord) ntfd Signed 3/5/91 microfilmed & ent 3/6/91dcd Honorable Malcolm F. Marsh (former employee) (Entered: 03/06/1991)
423 Opinion (see ord #422) ntfd Signed 3/5/91 Honorable Malcolm F. Marsh (former employee) (Entered: 03/06/1991)
424 State's response to March 5, 1990 order, declaration of Rosemary Hennessy (former employee) (Entered: 04/04/1991)
425 RECORD OF TELCONF: ORD after Advisory Panel files its determination, then parties may file their comments. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 04/11/1991)
426 MOTION by plaintiff to file memo exceeding 35 pages in support of contempt motion #426 EXPD RULING REQ (former employee) (Entered: 06/03/1991)
427 MOTION by USA for contempt judgment and for further relief #427 EXPD RULING REQ (former employee) (Entered: 06/04/1991)
431 Certificate of service by USA (former employee) (Entered: 06/11/1991)
428 MOTION by OR defts to place documents filed by US under seal #428 EXPD HRG REQ (former employee) (Entered: 06/04/1991)
429 RESPONSE by defts in oppos pltf's req for expedited ruling and pltf's submission of its motion for contempt to the advisory panel [427-1] EXPED HRG REQ (former employee) (Entered: 06/04/1991)
430 RECORD OF ORD: denying motion to file memo exceeding 35 pages in support of contempt motion [426-1] Copies of overlength brf are returned to pltf. Footnotes in any furth submissions shall not exceed an average of 2 per pg. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 06/06/1991)
432 RECORD OF ORD: granting motion to place documents filed by US under seal [428-1] ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 06/11/1991)
433 MEMORANDUM by USA in support of motion for contempt judgment and for further relief [427-1] (former employee) (Entered: 06/12/1991)
435 Reply by USA to memorandum in opposition to req for expd ruling and submission of motion for contempt to advisory panel [427-1] (former employee) (Entered: 06/18/1991)
436 MOTION by USA for reconsideration of court's order to seal #436 OA REQ (former employee) (Entered: 06/18/1991)
437 MEMORANDUM by USA in support of motion for reconsideration

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06/17/1991 06/19/1991
06/24/1991 06/27/1991 07/02/1991 07/02/1991 07/02/1991 07/03/1991 07/03/1991 07/03/1991 07/08/1991 07/12/1991 07/15/1991 07/16/1991 07/17/1991

[436-1] and in oppos to dfts' mot to place docs filed by US under seal OA REQ (former employee) (Entered: 06/18/1991)
438 Certificate of svc by USA (former employee) (Entered: 06/18/1991)
439 RECORD OF ORD: set US motion for reconsideration of court's order to seal [436-1] MON, M/C 7/22/91 (noa). US req OA on #436 Denied. SET US motion for contempt judgment and for further relief [427-1] FRI, 9/13/91 1:30. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 06/19/1991)
440 MOTION by intvp/dfts for extension of time to resp to pltf's mot for contempt & furth relief from 6/25 to 7/3 #440 EXPD HRG REQ (former employee) (Entered: 06/24/1991)
441 RECORD OF ord granting joint motion for extension of time to resp to pltf's mot for contempt & furth relief from 6/25 to 7/3 # [440-1] ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 06/28/1991)
442 RESPONSE by intvps' to motion for reconsideration of court's order to seal [436-1] (former employee) (Entered: 07/02/1991)
443 Memo in oppos by intvps' to US motion for reconsideration of court's order to seal [436-1] (former employee) (Entered: 07/02/1991)
444 Reply by defendant in support of deft's opposition to submission of motion for contempt to advisory panel [427-1] (former employee) (Entered: 07/02/1991)
445 MOTION by OR dfts to file documents under seal #445 (former employee) (Entered: 07/03/1991)
446 MEMO in Oppos by OR defts to US motion for contempt judgment [4271] SHOW CAUSE HRG REQ (former employee) (Entered: 07/03/1991)
447 RESPONSE by intervenor-plaintiff to US's motion for contempt [427-1] (former employee) (Entered: 07/03/1991)
448 ORDER granting State of OR's motion to file documents under seal [4451] (see ord) ntfd Signed 7/8/91 Honorable Malcolm F. Marsh (former employee) (Entered: 07/08/1991)
450 Unopposed MOTION by USA to extend time to reply to defts' oppos to US' contempt motion #450 , EXPD Ruling REQ, decl (former employee) (Entered: 07/15/1991)
451 Reply by USA to dfts' opposition motion for reconsideration of court's order to seal [436-1] (former employee) (Entered: 07/16/1991)
452 RECORD OF ORD: granting govt's unopposed motion to extend time to reply to defts' oppos to US' contempt motion [450-1] to 7/29/91 ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 07/16/1991)
453 MOTION by plaintiff for referral to the advisory panel for a determination on the US' contempt motion #453 EXPD Ruling REQ,

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07/19/1991 07/19/1991
07/22/1991 07/22/1991
07/24/1991 07/26/1991 07/26/1991 07/26/1991 07/26/1991
07/29/1991
07/30/1991
07/30/1991 07/30/1991

memo (former employee) (Entered: 07/17/1991)
454 MOTION by plaintiff for reconsideration of court's order to seal #454 OA REQ, memo (former employee) (Entered: 07/19/1991)
455 RECORD OF ORD: setting motion for referral to the advisory panel for a determination on the US' contempt motion #453 [453-1] on MON, 8/19/91, (noa). ORD expd hrg req #453 denied. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 07/19/1991)
456 MEMO in OPPOS by State defts to US motion for reconsid of court's order to seal [454-1] (former employee) (Entered: 07/23/1991)
457 RECORD OF ORD: striking US' motion for reconsideration of court's order to seal [436-1] from M/C 7/22/91. ORD US' mots for reconsid #436 & 454 shall be reset upon filing of the Oregonian's mot to intv & shall be consol for consid w/the Oregonian's motion. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 07/23/1991)
458 MOTION by OR defts for extension of time to respond to pltf's motion for a determination on the US' contempt motion for 7/30 to 8/1/91 #458 (former employee) (Entered: 07/24/1991)
459 RESPONSE by intervenor-plaintiff to US motion for reconsideration of court's order to seal (former employee) (Entered: 07/26/1991)
460 MOTION by Oregonian Publishing Co to intervene and to unseal records #460 OA REQ (former employee) (Entered: 07/29/1991)
461 MEMORANDUM by intervenor Oregonian Publishing in support of motion to intervene and to unseal records [460-1] (former employee) (Entered: 07/29/1991)
462 RECORD OF ORD: grant dfts` motion for extension of time to respond to pltf's motion for a determination on the US' contempt motion for 7/30 to 8/2/91 [458-1] Rply extend 3 working days to 8/7/91 ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 07/29/1991)
463 RECORD OF ORD: setting Oregonian's motion to intervene and to unseal records #460, USA motions for reconsideration of court's order to seal [436-1] and [454-1] on FRI, 9/13/91, 1:30. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 07/30/1991)
464 MOTION by Oregon defendants to file amended declaration of Vickery and signed declaration of Farnham in supp of defts' memo in oppos to US' motion for contempt judgment #464 (former employee) (Entered: 07/30/1991)
465 MOTION by Oregon defendant to file documents under seal #465 (former employee) (Entered: 07/30/1991)
466 ORDER grant State`s motion to file documents under seal [465-1] ntfd Signed 7/30/91 microfilmed ent 8/1/91dcd Honorable Malcolm F. Marsh (former employee) (Entered: 08/01/1991)

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08/01/1991
08/01/1991 08/01/1991
08/01/1991 08/01/1991 08/01/1991 08/02/1991 08/06/1991 08/06/1991 08/09/1991 08/13/1991
08/15/1991 08/21/1991 08/23/1991 09/06/1991

468 ORDER re motion #464 to file amd decl of Vickery and signed delcation of Farnjam in supp of defts' memo in oppos to US's for contempt jgm granted and signed decl of Farnham and the amd decl of Vickery permit to be filed. ntfd Signed 8/1/91 microfilmed & ent 8/1/91 Honorable Malcolm F. Marsh (former employee) (Entered: 08/01/1991)
469 Signed Declaration by OR defts of Charles N. Farnham` (former employee) (Entered: 08/01/1991)
470 RECORD OF ORD: min entry supersedes court's 7/26/91 min entry: "Grant defts' mot for extension of time to respond to pltf's mot for referral to advisory panel. #458, 59 8/2/91. Pltf's reply also extend 3 working days to 8/16/91". ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 08/02/1991)
471 MOTION by plaintiff to temporarily seal portions of pages in the US' reply to defts' oppos to contempt motion and declarations in support #471 (former employee) (Entered: 08/05/1991)
472 Reply by plaintiff to defts' opposition to motion for contempt [427-1] [w/quotations from previously sealed docs redacted] (former employee) (Entered: 08/05/1991)
473 Certificate of svc by plaintiff (former employee) (Entered: 08/05/1991)
474 RESPONSE by OR defts in opposition to US' motionn to refer to panel [453-1] OA REQ (former employee) (Entered: 08/05/1991)
475 Reply by USA to dfts opposition to US' motion for reconsideration of court's order to seal [454-1] (former employee) (Entered: 08/06/1991)
476 RESPONSE by intvp to Oregonian motion to intervene and to unseal records [460-1] (former employee) (Entered: 08/07/1991)
477 RESPONSE by plaintiff to Oregonian's` motion to intervene and to unseal records [460-1] (former employee) (Entered: 08/09/1991)
478 ORDER granting motion to temporarily seal portions of pages in the US' reply to defts' oppos to contempt motion and declarations in support [471-1] ntfd Signed 8/12/91 Honorable Malcolm F. Marsh (former employee) (Entered: 08/15/1991)
480 Reply by USA to memorandum in opposition motion for referral to the advisory panel for a determination on the US' contempt motion [453-1] (former employee) (Entered: 08/15/1991)
481 Reply memo by Oregonian in support of motion to intervene and to unseal records [460-1] (former employee) (Entered: 08/22/1991)
483 RECORD OF ORD: denying motion for referral to the advisory panel for a determination on the US' contempt motion #453 ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 08/27/1991)
484 Response by State of OR defts to 7/31/91, Advisory Panel Report (former employee) (Entered: 09/09/1991)

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09/13/1991
09/13/1991 09/13/1991 09/19/1991 09/19/1991
09/20/1991 09/23/1991 10/04/1991 10/22/1991 10/22/1991
11/08/1991

486 RECORD OF HRG: ORD; granting motion to intervene and to unseal records [460-1] [for ltd purpose of unsealing docs] (part of #460) ORD USA motion for reconsideration of court's order to seal [436-1] and [4541] granted , after redaction of sealed documents. ORD: begin with latest filings, orig sealed docs will be removed from file, redacted and returned to the file unsealed, which unsealed doc will carry the document # of prior sealed doc. [there shall not be 2 versions of a doc in the orig file] ORD USA's mot for contempt judgmt and for furth relief #427 Denied. ORD USA's exhs A-H recd. Deft's exhibits 100-110 recd. Deft's exhs #107 & 108 are sealed until redacted. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 09/16/1991)
487 Deft's exhibit list w/contempt hearing exhibits 100-106, 109, 110 attached (former employee) (Entered: 09/16/1991)
488 Govt's Exhibits A-H re USA 's contempt motion hearing (former employee) (Entered: 09/16/1991)
490 Opinion (see this document, order follows) Signed 9/19/91 Honorable Malcolm F. Marsh (former employee) (Entered: 09/19/1991)
491 ORDER in accord w/opn this date, pltf's mots for reconsid (#436 & 454) and Oregonina Publish's mots for reconsid #460 of my ords sealing docs are granted conditioned upon redaction of client names and identifying info. ntfd Signed 9/19/91 microfilmed & ent 9/19/91 Honorable Malcolm F. Marsh (former employee) (Entered: 09/19/1991)
492 REPLY by plaintiff to dfts' response to 7/31/91, Advisory Panel Rpt [484-1] (former employee) (Entered: 09/23/1991)
493 RECORD OF ord defts shall file any response to pltf's proposed ord (filed 9/20) relating to the 7/31/91 advisory panel report by 10/4/91. The court shall take pltf's proposed ord u/advise (w/out arg) on 10/7/91. ntfd Honorable Malcolm F. Marsh (former employee) (Entered: 09/24/1991)
494 Response by State defendant to UA' proposed ord re 7/3/191 advisory panel rpt (former employee) (Entered: 10/07/1991)
495 Opinion (see following ord) Signed 10/22/91 Honorable Malcolm F. Marsh (former employee) (Entered: 10/23/1991)
496 ORDER re emergencey motion 10/9/91. Find issues of dental sedation and postural drainage moot; (see this order). I find present monitoring and reporting systems, as set forth in Section VII of decree are adequate and meet minimum constitutional requirements. Therefore, I leave decision of whether the present system should be modified in accord w/Panel's proposal to the sound discretion of the professionals at Fairview. ntfd Signed 10/22/91 microfilmed & ent 10/23/91dcd Honorable Malcolm F. Marsh (former employee) (Entered: 10/23/1991)
497 NOTICE OF APPEAL to Court of Appeals by plaintiff decision, [486-2] from mo. 9/13/91 denying the U.S. mot for contempt judgment & further relief & the ct's 10/22/91 opn. (former employee) (Entered: 11/12/1991)

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11/08/1991 12/02/1991 12/06/1991 12/09/1991 12/13/1991 12/26/1991 12/26/1991
01/16/1992 02/04/1992 02/07/1992 02/19/1992 03/02/1992 03/03/1992
03/05/1992 03/06/1992

Notification form sent to US Court of Appeals for the Ninth Circuit & cc all cnsl (former employee) (Entered: 11/12/1991)
498 NOTICE by defendants' of filing of redacted documents (former employee) (Entered: 12/03/1991)
499 Transcript Designation and Ordering Form for date(s) 4/6/89, 6/22/90, 8/14/90, 8/17/90, 8/23/90, 2/25/91, 4/11/91 & 9/13/91 (former employee) (Entered: 12/10/1991)
500 Certified Copy of Order from the US Court of Appeals for the Ninth District [497-1] We deny the petition for a writ of mandamus. (former employee) (Entered: 12/10/1991)
501 NOTICE by Pltf Intervenors of filing of redacted docuemnts` (former employee) (Entered: 12/18/1991)
502 NOTICE by plaintiff USA of filing redacted documents (former employee) (Entered: 01/02/1992)
503 Certified Copy of Order from the US Court of Appeals for the Ninth District [497-1] Appeal #91-36321, Appellant's opening brief to be filed 2/24/92 & Appellee's brief 3/25/92 (former employee) (Entered: 01/02/1992)
504 Report of the Advisory Panel in response to the 3/5/91 ord of the ct (7/31/91 report) (former employee) (Entered: 01/16/1992)
505 NOTICE of filing the Fairview Plan by defendants (former employee) (Entered: 02/05/1992)
506 TRANSCRIPT of proceedings held 9/13/91 before Judge Marsh filed (former employee) (Entered: 02/10/1992)
507 MOTION by plaintiff to clarify 9/13/91 ruling & 10/22/91 opn re standards in light of consent decree plan (former employee) (Entered: 02/20/1992)
508 MOTION by State defendants to extend time to respond to pltf's mot to clarify expdtd ruling reqstd (former employee) (Entered: 03/03/1992)
509 RECORD OF ORD: granting Defts' motion to extend time to respond to pltf's mot to clarify [508-1] to 3/6/92. Govt's reply shall be filed by 3/19/92. Setting U.S. motion to clarify 9/13/91 ruling & 10/22/91 opn re standards in light of consent decree plan [507-1] on M/C 3/27/92(noa) (ruling on submissions) ntfd Honorable Malcolm F. Marsh Court Rptr none (former employee) (Entered: 03/04/1992)
510 Memo by defendants to U.S. motion to clarify 9/13/91 ruling & 10/22/91 opn re standards in light of consent decree plan [507-1] (former employee) (Entered: 03/06/1992)
511 Response by intervenor-plaintiffs to Defts' proposed Standards in response to 10/22/91 opn (former employee) (Entered: 03/09/1992)

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03/16/1992 03/18/1992
03/30/1992 04/02/1992 04/07/1992
04/09/1992 06/19/1992 06/19/1992 06/19/1992 06/19/1992 06/19/1992 06/19/1992 06/19/1992 01/19/1993
07/09/1993

512 REPLY by plaintiff to Defts' response to motion to clarify 9/13/91 ruling & 10/22/91 opn re standards in light of consent decree plan [507-1] (former employee) (Entered: 03/18/1992)
513 Certified Copy of Order from the US Court of Appeals for the Ninth District [497-1] CA 91-36321 clerks ord of 2/10 is vacated. Appellants opening brief is due 4/13, appellees brief 5/13 & appellants reply 5/27. (former employee) (Entered: 03/18/1992)
514 MOTION by defendants to substitute 9 pgs in Vols 1-111 of Fairview Plan (former employee) (Entered: 03/31/1992)
515 RECORD OF ORD: granting Defts' motion to substitute 9 pgs in Vols 1111 of Fairview Plan [514-1] ntfd Honorable Malcolm F. Marsh Court Rptr none (former employee) (Entered: 04/03/1992)
516 ORDER finding that further "clarification" is unnecessary & thus pltf's motion to clarify 9/13/91 ruling & 10/22/91 opn re standards in light of consent decree plan [507-1] moot as indicated by this ord. ntfd Signed 4/6/92 microfilmed 4/8/92 Honorable Malcolm F. Marsh (former employee) (Entered: 04/08/1992)
517 Reporter's TRANSCRIPT of proceedings had 9/13/91, 1:30 (former employee) (Entered: 04/10/1992)
518 TRANSCRIPT of Hearing held 4/6/89 before the Honorable Malcolm F. Marsh. (tomg) (Entered: 06/19/1992)
519 TRANSCRIPT of Hearing held 8/17/90 before the Honorable Malcolm F. Marsh. (tomg) (Entered: 06/19/1992)
520 TRANSCRIPT of Hearing held 2/25/91 before the Honorable Malcolm F. Marsh. (tomg) (Entered: 06/19/1992)
521 TRANSCRIPT of Hearing held 4/11/91 before the Honorable Malcolm F. Marsh. (tomg) (Entered: 06/19/1992)
522 TRANSCRIPT of Hearing held 9/13/91 before the Honorable Malcolm F. Marsh. (tomg) (Entered: 06/19/1992)
523 TRANSCRIPT of Hearing held 9/13/91 before the Honorable Malcolm F. Marsh (bench opinion). (tomg) (Entered: 06/19/1992)
Certificate of Record Transmitted to US Court of Appeals for the Ninth Circuit re appeal 91-70622. (tomg) (Entered: 06/19/1992)
524 CERTIFIED COPY OF ORDER from the US Court of Appeals for the Ninth District [497-1] Appeal # 91-36321 - Within 10 days of this order parties shall contact the District Court for a settlement conference (former employee) (Entered: 01/20/1993)
CLERK'S RECORD on appeal transmitted to US Court of Appeals for the Ninth Circuit regarding appeal CA 36321 [497-1] (tomg) (Entered: 07/09/1993)

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07/19/1993 10/13/1993 07/18/1994 04/12/1995 04/17/1995 04/17/1995 05/30/1995 09/04/1996 11/26/1997 12/08/1997 02/16/1999
02/26/1999 11/12/1999
05/12/2000 05/12/2000

525 LETTER to Court from Court of Appeals the record on appeal was received by the C/A on 7/15/93 (former employee) (Entered: 07/20/1993)
526 NOTICE OF FILING A MODIFICATION TO THE FAIRVIEW PLAN by Defendants (former employee) (Entered: 10/14/1993)
527 MANDATE/JUDGMENT from USCA AFFIRMING the decision of the District Court re appeal of 11/8/91 [497-1] CA 91-36321 (former employee) (Entered: 07/19/1994)
CLERK'S RECORD on appeal (entire original file) returned from US Court of Appeals for the Ninth Circuit regarding appeal CA 91-36321 [497-1] (tomg) (Entered: 04/12/1995)
528 JOINT MOTION by Parties FOR APPROVAL OF STIPULATION (former employee) (Entered: 04/17/1995)
529 STIPULATED ORDER GRANTING MOTION FOR APPROVAL OF STIPULATION [528-1] (see file) Signed 4/17/95 Honorable Malcolm F. Marsh cc: all counsel (former employee) (Entered: 04/19/1995)
530 Notice of appearance & change of address Mark Masling (former employee) (Entered: 05/31/1995)
CASE FILE SENT TO THE FRC Accession number 21-96-0078 Location number 59873 Box 1-6 of 9 (tomg) (Entered: 09/04/1996)
531 STIPULATION and ORDER: Signed 11/26/97 Honorable Malcolm F. Marsh (See formal 4-page Amended Stipulated Order) (counsel notified) (Kirk) (Entered: 11/28/1997)
532 MAIL RETURNED [stipulation [531-1] ] addressed to David B Hatton for Intervenor-plaintiff Ronald Brelsford (peg) (Entered: 12/09/1997)
533 STIPULATED ORDER APPROVING MODIFICATION OF FAIRVIEW PLAN (see file for full 4 page order) by Honorable Malcolm F. Marsh Signed 2/16/99 (counsel notified) (former employee) (Entered: 02/17/1999)
534 MAIL RETURNED [order [533-1] ] addressed to David B Hatton for Intervenor-plaintiff Ronald Brelsford; corrected address and sent out again (former employee) (Entered: 03/01/1999)
535 STIPULATED ORDER APPROVIING MODIFICATION OF FAIRVIEW PLAN; signed by Honorable Malcolm F. Marsh on 11/12/99; see full 4-page document for details. (counsel notified) (peg) (Entered: 11/15/1999)
536 MOTION by State Defendants TO DISMISS CASE and TERMINATE CONSENT DECREE (peg) (Entered: 05/12/2000)
537 MEMORANDUM IN SUPPORT of State's MOTION TO DISMISS CASE and TERMINATE CONSENT DECREE [536-1] (peg) (Entered: 05/12/2000)

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District of Oregon - Docket Report

Page 28 of 28

05/12/2000 05/15/2000
07/12/2000 07/14/2000 07/25/2000 07/26/2000

538 AFFIDAVIT of James Toews (peg) (Entered: 05/12/2000)
539 RECORD OF ORDER by Honorable Malcolm F. Marsh SETTING the following schedule on the State's MOTION TO DISMISS CASE and TERMINATE CONSENT DECREE [536-1]; The United State's Response due 7/12/00; Any Reply due 7/19/00; Motion to be taken under advisement on 7/20/00 (counsel notified) Court Rptr: none (peg) (Entered: 05/16/2000)
540 REPLY by Plaintiff to State's MOTION TO DISMISS CASE and TERMINATE CONSENT DECREE [536-1] (Kirk) (Entered: 07/13/2000)
541 RESPONSE by Intervenor-plaintiffs to State's MOTION TO DISMISS CASE and TERMINATE CONSENT DECREE [536-1] Reply due 7/28/00 (former employee) (Entered: 07/19/2000)
542 RECORD OF ORDER by Honorable Malcolm F. Marsh GRANTING the State's (unopposed) MOTION TO DISMISS CASE and TERMINATE CONSENT DECREE [536-1] based on the closure of the Fairview Training Center (counsel notified) (kw) (Entered: 07/28/2000)
543 JUDGMENT; The State of Oregon's unopposed MOTION TO DISMISS CASE & TERMIANTE CONSENT DECREE [536-1], based on the closure of the Fairview Training Center, was granted on 7/25/00 [542-1]; Therefore, this action is DISMISSED CASE DISMISSED ; Signed 7/26/00 (microfilmed 7/28/00) Honorable Malcolm F. Marsh (counsel notified) (kw) (Entered: 07/28/2000)

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 675 F.Supp. 1249 (1987)
UNITED STATES of America, Plaintiff, v.
STATE OF OREGON, et al, Defendants.
Civ. No. 86-961MA.
United States District Court, D. Oregon.
July 31, 1987.
1250 *1250 Jack C. Collins, Asst. U.S. Atty., Portland, Or., Robinsue Frohboese, Jeremy Schwartz, Cynthia L. Katz, Special Litigation, U.S. Dept. of Justice, Washington, D.C., for plaintiff.
Dave Frohnmayer, Atty. Gen., William F. Gary, Deputy Atty. Gen., Pamela L. Abernethy, Atty. in Charge, Glenn Klein, Asst. Atty. Gen., Special Litigation Unit, John McCulloch, Jr., Asst. Atty. Gen., Dept. of Justice, Salem, Or., for defendant Oregon.
David Hatton, Portland, Or., Arlene Kanter, Washington, D.C., for plaintiff-intervenor.
OPINION
MARSH, District Judge.
On July 28, 1986, the United States filed suit against the State of Oregon (State) under the Civil Rights of Institutionalized Persons Act (CRIPA) to enjoin the State from depriving persons confined at Fairview Training Center (Fairview) of rights secured by the United States Constitution and the Education of the Handicapped Act. [1] On March 30, 1987, a Health Care Financing Administration (HCFA) survey team began an inspection of Fairview to determine Fairview's compliance with HCFA standards for intermediate care facilities. On April 10, 1987, the survey team advised Fairview that it would recommend that its federal Medicaid funding be terminated because conditions at the facility posed a serious and immediate threat to the health and safety of its residents. Fairview's funding was terminated on April 17, 1987. On April 27, 1987, the State appealed this decertification to an administrative law judge. That appeal is pending.
On July 13, 1987, the State filed a request with HCFA for recertification. The State requested that HCFA reinspect Fairview beginning on July 27, 1987. At the time of the argument of this motion, HCFA was in the process of this inspection. Along with the HCFA survey team was the expert witness retained by the USDOJ for its CRIPA action.
On June 23, 1987, the State filed an answer and counterclaim in the CRIPA action. In its counterclaim, the State alleges that the United States Department of Justice (USDOJ) is preventing HCFA from restoring Medicaid funding unless the State signs a consent decree in the CRIPA action. The State contends that this is an attempt to coerce the State into accepting staffing ratios and other standards of care developed by USDOJ attorneys.
On June 29, 1987, the State filed a motion for a preliminary injunction to enjoin the United States from "refusing 1251 to restore federal Medicaid funding to Fairview Training Center (Fairview) pursuant to the *1251 Medicaid Act,
unless the State signs a consent decree demanded by the USDOJ." The State contends that the USDOJ is influencing HCFA to withhold more than $70,000 per day in federal Medicaid funds, causing Oregon's programs for the care of mentally retarded and other developmentally disabled persons to suffer irreparable harm. The State stresses that it is not seeking an order requiring restoration of the Medicaid funds which were terminated on April 17, 1987, but rather an order that HFCA be "permitted" to restore the funding if HCFA determines, free of inappropriate interference by the USDOJ, that Fairview now complies with HCFA's standards. Thus, its counterclaim is collateral to its administrative claim for a complete restoration of funding.[2]

Jurisdiction over this matter is exercised pursuant to 28 U.S.C. § 1331. To obtain a preliminary injunction, the State must show either (1) a likelihood of success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits and the balance of hardship tipping in its favor. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir.1987); Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985); Inglis v. Sons Baking v. ITT Continental Baking Co., Inc., 526 F.2d 86, 88 (9th Cir.1975). Although often discussed in the alternative, these tests represent the extremes on a single continuum. "The critical element is the relative hardship to the parties. If the balance of hardships tips decidedly toward the plaintiff, less likelihood of success on the merits is required." Wilson v. Watt, 703 F.2d 395, 399 (9th Cir.1983).
Generally, in cases dealing with injunctive relief, the harm to the moving party is both identifiable and imminent. The propriety of granting the relief, therefore, usually focuses on whether there is a likelihood of success on the merits. Here, however, the likelihood of success is a probability. The propriety of granting the relief, therefore, hinges on whether there is a possibility of irreparable harm.
The State sets forth three grounds in support of its argument that there is a strong likelihood that it will succeed on the merits of its counterclaim for declaratory and injunctive relief against the USDOJ. First, it contends that the HCFA regulations for intermediate care facilities for the mentally retarded (42 C.F.R. Subpart G) are the only relevant factors which HCFA can consider when determining whether to restore Fairview's funding. Therefore, any attempt by the USDOJ to force HCFA to consider a factor outside of its regulations, such as the signing of a consent decree, is unlawful. Second, the State argues that even if judicially defined constitutional minimum standards of care are relevant to HCFA's funding decision, the HCFA regulations exceed constitutional standards. Third, the State contends that even if the HCFA standards don't satisfy constitutional standards, the prerequisite of signing a consent decree is an unconstitutional standard being imposed by the USDOJ.
The United States responds by contending that the State's counterclaim is not ripe for adjudication because there is no objective evidence that HCFA officials are considering, or will actually consider, any factors beyond their own regulations. The United States also argues that any representations made by USDOJ attorneys concerning the requirement of a consent decree made in settlement negotiations of the CRIPA claim are inadmissible in trial 1252 under Fed.R.Evid. 408[3] and should thus not be considered when determining the propriety *1252 of a preliminary injunction. Finally, the United States argues that any previous representations made by USDOJ attorneys regarding the requirement of a consent decree cannot overcome the declarations in support of plaintiff's memorandum opposing the preliminary injunction which deny that the USDOJ ever conditioned the restoration of funds on a consent decree.
It is undisputed that the USDOJ cannot exercise control over HCFA so as to prevent HCFA from restoring Fairview's Medicaid funding. In its Memorandum In Opposition To Motion Of Defendants For Preliminary Injunction, the United States concedes that this court "can take judicial notice that the Department of Justice exercises no supervisory authority over the Department of Health and Human Services or units within that separate agency." In its memorandum, the United States contends that the USDOJ is not exercising any such authority and that any contacts with HCFA have been pursuant to 42 U.S.C. § 1997h[4] or are merely contacts for the purposes of rendering legal advice. During oral argument, however, counsel for the United States, appropriately and within the bounds of advocacy and ethics, would not deny that there have been statements by the USDOJ to HFCA that funding should not be restored to Fairview until the State signs a consent decree in the CRIPA action. The State also furnished declarations of state officials which assert that an Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice, unequivocally stated that the State of Oregon would have to sign USDOJ's consent decree before HCFA would restore Fairview's Medicaid funding. Declaration of Dave Frohnmayer In Support Of Defendants' Motion For Preliminary Injunction at 2; Declaration of William F. Gary In Support Of Defendants' Motion For Preliminary Injunction at 3-4.
State officials also attest that during a May 19, 1987 meeting between state officials, the USDOJ and HCFA, a Deputy Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice warned HCFA administrators that if they restored funding to an institution which the USDOJ considered unconstitutional, the HCFA administrators could be held personally liable. He also reasserted the warning that Medicaid funds would not be restored until the State signed the consent decree. Declaration of Gary at 3; Affidavit of Dan E. Simmons

In Support Of Defendants' Motion For Preliminary Injunction at 2; Affidavit of James D. Toews In Support Of Defendants' Motion For Preliminary Injunction at 7. None of these contentions have been denied in affidavits or declarations filed on behalf of the United States. The statements of counsel during oral argument amount to a concession that the statements were made.
The USDOJ attorney statements were not made in settlement negotiations of the CRIPA action but rather were made in the context of meetings and conversations concerning what improvements the State would have to make at Fairview in order to have the funding restored. The May 19, 1987 meeting was held in order to review a remedial action plan developed by Oregon mental retardation professionals, partly based on earlier HCFA recommendations. Consequently, Fed.R. of Evid. 408 does not render the statements made at that meeting inadmissible.
It is reasonable to conclude that the State would be successful in proving that the USDOJ is forcing HCFA to include the signing of a consent decree in USDOJ's CRIPA action in its requirements for recertification. Thus, 1253 HCFA is being required *1253 to adopt what the USDOJ considers to be the constitutional standards for intermediate care facilities, as a prerequisite to recertification. The United States' contention that the communications are merely legal advice is unconvincing. The communications documented above constitute enough of an interference with the decision making of HCFA that I conclude a preliminary injunction is warranted which would prevent the USDOJ from placing any requirement upon HCFA that recertification of Fairview, if allowed, must be further conditioned upon determination of the United States' CRIPA claim by a consent decree.
The United States' contention that the State's counterclaim is not ripe for adjudication and that a preliminary injunction is therefore not warranted is rejected. For the purposes of a preliminary injunction, relief is appropriate if the moving party can show a likelihood of success on the merits and the possibility of irreparable harm. I find that not only is it reasonably likely that the State will succeed on the merits of its counterclaim but it is highly probable. While the affidavit of William L. Roper, M.D., Administrator of HCFA, denies that the USDOJ is influencing HCFA's decision making, there is such strong indication of an intent to unduly influence HCFA that this court need not wait, for the purposes of a preliminary injunction, for the harm to be absolutely established. This is especially true in light of the fact that the State is being required to use state general funds to replace the lost Medicaid funds. The funds being depleted could have been directed to other community programs for Oregon's mentally retarded and developmentally disabled persons. Thus, the alleged harm to the State is not one of purely monetary loss. While there is a chance that the state general funds could be restored, it is by no means a certainty. In the interim, patients are not receiving community services intended for them.
Thus, balancing what I find to be a high probability of success on the merits with the apparent likelihood of irreparable harm, coupled with the fact that there is no likely harm to the USDOJ, I conclude that a preliminary injunction is warranted. Accordingly, the State's motion for a preliminary injunction is granted to the extent that the USDOJ is enjoined from requiring HCFA to adopt what the USDOJ considers the constitutional standards of an intermediate care facility, and from requiring HCFA to include the signing of a consent decree in USDOJ's CRIPA action in its requirements for recertification.
Having concluded that the defendant State of Oregon is entitled to a preliminary injunction, it is incumbent upon me to determine under Fed.R.Civ. 65(c) whether security should be required of the State. By the terms of the rule, no security would be required of the United States or of an officer of an agency thereof. The court is impressed with the fact that this addition to the rule is stated because of the assumed responsibility of the federal government. I would also feel that such consideration is due to the State of Oregon, but I do not find any such exception for the states in the rule itself. However, it has been held that a court may dispense with security if granting of the injunction carries no risk of monetary loss or damage to the party enjoined. International Controls Corp. v. Vesco, 490 F.2d 1334, 1356 (2d Cir.) cert. den. 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974); 11 Wright and Miller, Federal Practice and Procedure § 2954 (Supp.1986). It is clear from the circumstances of this case that there can be no likelihood of financial harm to the USDOJ. The requirement of the injunction is not to refrain in an activity that may involve some change in value or additional cost but rather to refrain acting in a way which the court feels inappropriate.
Therefore, I do not consider that a security is necessary.

[1] That action was brought pursuant to 42 U.S.C. § 1997a, which provides:
(a) Whenever the Attorney General has reasonable cause to believe that any State or political subdivision of a State, official, employee, or agent thereof, or other person acting on behalf of a State or political subdivision of a State is subjecting persons residing in or confined to an institution ... to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action....
[2] Because the State's counterclaim is collateral to the administrative proceedings regarding the original decertification by HCFA, the United State's contention that the State must exhaust its administrative remedies lacks merit.
[3] Fed.R.Evid. 408 provides in part:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.
[4] 42 U.S.C. § 1997h provides:
At the time of notification of the commencement of an investigation of an institution under [the Civil Rights of Institutionalized Persons Act of 1980], and if the relevant institution receives Federal financial assistance from the Department of Health and Human Services ... the Attorney General shall notify the appropriate Secretary of his action and the reasons for such action and shall consult with such officials. Following such consultation, the Attorney General may proceed with an action under this subchapter if he is satisfied that such action is consistent with the policies and goals of the executive branch.
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 839 F.2d 635 (1988)

UNITED STATES of America, Plaintiff-Appellee, v.
STATE OF OREGON, et al., Defendants-Appellees, v.
RESIDENTS OF FAIRVIEW TRAINING CENTER; Ronald Brelsford; Plaintiffs-Intervenors, and
Sonya Fryer; Jorgina Oliver; Ronald Lee; Thelma Jackson; individually and on behalf of all others similarly situated, Plaintiffs-Intervenors-Appellants.

No. 87-3671.

United States Court of Appeals, Ninth Circuit.

Argued December 11, 1987. Submitted December 18, 1987.
Decided February 19, 1988.

636 *636 William Bradford Reynolds, Asst. Atty. Gen., David K. Flynn, Louise A. Lerner (argued), Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Linda DeVries Grimms, Oregon State Atty. General's Office, Salem, Or., for defendants-appellees.

David B. Hatton, Oregon Advocacy Center, Portland, Or., for plaintiffs-intervenors-appellants.

Before WRIGHT, ANDERSON and SCHROEDER, Circuit Judges.

SCHROEDER, Circuit Judge:

The appellants are residents of the Fairview Training Center. The State of Oregon operates the facility. The conditions at that institution are presently the subject of a law suit filed by the United States government against the State of Oregon claiming failure to provide minimally adequate training, medical care, sanitation and trained staff. The lawsuit is authorized by the provisions of the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 et seq. The appellants seek to intervene in that litigation and appeal from the district court's order denying them the right or permission to intervene. We reverse the district court because we hold that the appellants have satisfied the requirements of Rule 24(a) Fed.R.Civ.P. for intervention as of right.

The United States filed its action on July 28, 1986 pursuant to section 1997a(a) of CRIPA which provides that the Attorney General may sue to secure "equitable relief ... to insure the minimum corrective measures necessary to insure the full enjoyment of [federal constitutional and statutory] rights" by institutionalized persons. 42 U.S.C. § 1997a(a). The statute was enacted in 1980 following decisions of this and other courts that the United States needed express statutory authority before it could seek relief vindicating constitutional rights of the mentally retarded. See, e.g., United States v. Mattson, 600 F.2d 1295 (9th Cir.1979). The Conference Report stated that

[i]t should be emphasized that ... the Attorney General's authority extends to initiating suit "for or in

637

the name of the *637 United States," in order to represent the national interest in securing

constitutionally adequate care for institutionalized citizens. As a representative of the United

States, the Attorney General does not directly represent any institutionalized plaintiffs, and the

authority granted him is in no way intended to preclude, delay or prejudice private litigants from

enforcing any cause of action they may have under ... law.

H.Conf.Rep. No. 96-897, 96th Cong., 2d Sess. 13, reprinted in 1980 U.S.Code Cong. & Admin.News 787, 837. Both the language and the history of the statute show that Congress did not intend by its enactment to restrict in

any way the authority of the district courts to adjudicate claims brought by or on behalf of the institutionalized persons themselves. The statute itself provides that:
The provisions of this [Act] shall in no way expand or restrict the authority of parties other than the United States to enforce the legal rights which they may have pursuant to existing law with regard to institutionalized persons.
42 U.S.C. § 1997j ("section 12").
Whether or not the appellants can intervene in this action thus depends solely upon whether or not they meet the requirements for intervention under Rule 24, Federal Rules of Civil Procedure. Though they sought to intervene both as a matter of right or, in the alternative, with the court's permission, we need deal only with their contention that they are entitled to intervene as a matter of right. The rule in that regard provides:
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a).
We review the district court decision on intervention as of right de novo. In re Benny, 791 F.2d 712, 721 (9th Cir.1986). We construe the rule broadly in favor of applicants for intervention. United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir.1986), opinion vacated and remanded on other grounds sub nom., Stringfellow v. Concerned Neighbors in Action, ___ U.S. ___, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987); Washington State Building & Construction Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). We have established a practical test which applicants must meet in order to qualify for intervention:
(1) the applicant's motion must be timely; (2) the applicant must assert an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that without intervention the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the other parties.
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir.1983) (quoting Smith v. Pangilinan, 651 F.2d 1320, 1323-24 (9th Cir.1981)). The parties agree that the application is timely. There is also no question that the applicants have an interest relating to the facility which is the subject of the action; they live in it. The dispute is with the third and fourth requirements for intervention as of right. We must decide whether the disposition of this lawsuit may affect the ability of these applicants to protect their interests, and whether their interests are being adequately represented by the United States.
We turn first to the issue of adequate representation. To evaluate the contentions of the parties it is necessary to understand their respective interests. In their complaint for intervention, the applicants set forth claims for injunctive and other relief affording residents of the facility access to better conditions in the facility, sufficient 638 training in self-care skills and sufficient community-based programs to insure *638 freedom from unnecessary institutionalization.
The government has limited its complaint to seeking injunctive relief for the more outrageous conditions existing within the facility. Common to both complaints, however, is the goal of vindicating the constitutional rights of Fairview's residents. The dispute here reflects the parties' differing views concerning the nature and scope of remedial relief.
We have held that in determining whether rights are being adequately represented, it is appropriate to examine whether existing parties' interests are such that they will make all of the arguments the applicants would make. Blake v. Pallan, 554 F.2d 947, 954-55 (9th Cir.1977). We have denied intervention as of right where it was clear

that the existing parties were making all the arguments that applicants for intervention sought to make. State of Calif. v. Tahoe Regional Planning Agency, 792 F.2d 775, 779 (9th Cir.1986). Here, however, it is apparent that the government's arguments will not include the constitutional deficiencies raised by the applicants.
The government argues that in determining the adequacy of its representation of the applicants' interests, we should consider only the issues which the government raises in its complaint. It says in effect that we should ignore the additional issues which the applicants wish to raise to protect the applicants' own interests. That argument stands the relevant provisions of Rule 24 on its head by defining adequacy in terms of what existing parties are going to argue rather than in terms of the interests of the applicants in the subject matter of the litigation. See 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1909, at 346. This view is directly contrary to our law:
In determining the adequacy of representation, we consider whether the interest of a present party is such that it will undoubtedly make all the intervenor's arguments; whether the present party is capable and willing to make such arguments; and whether the intervenor would offer any necessary elements to the proceedings that other parties would neglect.
Tahoe Regional Planning Council, 792 F.2d at 778. See Stringfellow, 783 F.2d at 828; Sagebrush, 713 F.2d at 528. We must hold that the United States is not adequately representing the interests applicants wish to protect.
The district court denied intervention because it was of the view that the intervenors should file a separate lawsuit to air the issues and arguments they wish to inject into this litigation. The district court's ruling was thus based not so much on adequacy of representation as it was on its view that this litigation will not impair the ability of the intervenors to proceed in a different suit. We agree with the district court that the pivotal issue is whether the disposition of this action, as a practical matter, may impair or impede the intervenors' ability to protect their interests. However, this court concludes that it may.
This litigation, which directly involves the conditions at the applicants' institution, must of necessity result in factual and legal determinations concerning the nature of those conditions. Such determinations when upheld by an appellate ruling will have a persuasive stare decisis effect in any parallel or subsequent litigation. We have said that such a stare decisis effect is an important consideration in determining the extent to which an applicant's interest may be impaired. Stringfellow, 783 F.2d at 826; Smith, 651 F.2d at 1325.
More important, this record shows as a practical matter that this litigation may impair appellants' ability to obtain effective remedies in later litigation if the trial court is not allowed to consider the appellants' contentions here. The record reflects that Medicaid decertification of the Fairview facility because of its inadequate services led to a state plan to improve services at Fairview, relocate current residents to community services and expand and improve those community services. Under the plan, the State of Oregon has a limited amount of money to spend 639 on improving the care and treatment of mentally retarded persons. Applicants are concerned with all elements *639 of that plan. The United States in this litigation is concerned only with flagrant conditions at Fairview.
Clearly the district court's consideration of the United States' claims in isolation from the concerns of the applicants could have a powerful and immediate effect upon the practical ability of the applicants to affect in later litigation the distribution of resources available for mental health in the State of Oregon. The position of this action thus "may as a practical matter impair or impede" their ability to protect their interests. Fed.R.Civ.P. 24(a). This conclusion is fully in accord with our past decisions recognizing practical limitations on the ability of intervention applicants to protect interests in the subject of litigation after court-ordered equitable remedies are in place. See Stringfellow, 783 F.2d at 827 (intervention allowed because litigation would result in a remedial scheme that could affect intervenor's interests); Johnson v. San Francisco Unified School District, 500 F.2d 349, 353 (9th Cir.1974) (intervention allowed because remedial plan in desegregation case brought by black parents could impair Chinese parents' rights). The requirements of Rule 24(a) have been satisfied.
The State of Oregon also raises an eleventh amendment objection to the form of the petition for intervention because it names the State as a defendant. It is clear from the proposed complaint in intervention, both in its caption and body, that the applicants seek injunctive relief against individual defendants in the manner

appropriate under Ex Parte Young and a host of its progeny. See, e.g., Jackson v. Hayakawa, 682 F.2d 1344, 1350-51 (9th Cir.1982). REVERSED AND REMANDED with instructions to the district court to enter an order granting the application for intervention.
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 U.S. v. State of Or., 28 F.3d 110 (1994)
28 F.3d 110 Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Ninth Circuit.
UNITED STATES of America, Plaintiff-Appellant, and
Sonya Fryer; Thelma Jackson; Plaintiff-Intervenor, v.
STATE OF OREGON; Barbara Roberts; Governor of Oregon; OREGON Department of Human Resources, et al., Defendants-Appellees,
Oregonian Publishing Company, an Oregon corporation, Third-Party Intervenor.
No. 91-36321. | Argued and Submitted Aug. 31, 1993. | Decided June 23, 1994.
Appeal from the United States District Court, for the District of Oregon, D.C. No. CV-86-0961-MFM; Malcolm F. Marsh, District Judge, Presiding.
D.Or., 782 F.Supp. 502.
AFFIRMED.
Before: BROWNING, SCHROEDER, and HALL, Circuit Judges
Opinion
MEMORANDUM*
*1 The United States appeals the denial of its motion to hold the State of Oregon in contempt for violating a 1989 consent decree and a 1990 order. Appellant contends the district court erred (1) by applying the wrong standard in assessing whether the State was in compliance with the Consent Decree; (2) by applying the wrong standard in determining whether the State had established an affirmative defense; and (3) by not according a presumption of correctness to Advisory Panel findings. (Brief for the United States as Appellant 19-20.)
I.
It was reasonable for the court to interpret the consent decree and the 1990 order as implementing the “substantial departure from accepted professional judgment, practice, or standards” test announced in Youngberg v. Romeo, 457 U.S. 307, 323 (1982), and as adopting that standard as the measure by which compliance was to be judged. See Consent Decree Part IIB, ER 13-14; Part V, ER 20; Part VII, ER 28 (“[t]he plan shall be enforceable against the State to the fullest extent necessary to satisfy constitutional standards”); Part VIIIC, ER 31; Part IX, ER 32; 1990 Order at 2, ER 75 (“This order should not be construed as a modification of the Consent Decree.”).
It was also reasonable for the court to interpret the decree as providing for adoption of a process for improvement and a procedure for monitoring that improvement rather than as mandating specific, quantitative results. In light of this interpretation, the court properly concluded it should not apply the standards for measuring compliance adopted in cases involving decrees that mandate specific results, but instead should inquire “whether defendants have followed the process as set forth in the Consent Decree and whether they have progressed as required by the Decree.” United States v. State of
1

U.S. v. State of Or., 28 F.3d 110 (1994) Oregon, 782 F.Supp. 502, 507 (D.Or.1991).

II.
The court recited the reasons advanced by the State in support of its contention that compliance with the deadlines for implementing training programs recited in the 1990 order “was impossible given the complexity of the tasks,” 782 F.Supp. at 512, and concluded that the “defendants have taken all reasonable steps to comply with the goal of protecting residents from harm,” id. at 514, echoing the rule long recognized in this circuit that the burden resting upon parties subject to a court order is to take “all the reasonable steps within their power to insure compliance.” Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir.1976). See also Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir.1989); Stone v. City and County of San Francisco, 968 F.2d 850, 856 (9th Cir.1992).
Alternatively, the court acted well within its discretion in deciding not to impose sanctions, see Gifford v. Heckler, 741 F.2d 263, 265-66 (9th Cir.1984), in view of the State’s “extraordinary efforts” to comply, the substantial reasons given by the State for its inability to comply, and the fact that the training programs were implemented soon after the dates fixed and long before the United States filed for contempt.

III.
*2 We reject the argument that the district court failed to accord a presumption of correctness to findings of the Advisory Panel. The court described events leading to the findings, 782 F.Supp. at 506-07, acknowledged the findings were presumed to be correct, id. at 508, and fully discussed the Panel’s findings and the State’s response, id. at 509-13. The court’s conclusions tracked the Panel’s findings, see id. at 515, and its opinion adequately reflected the court’s reasons for disagreeing with the Panel’s ultimate determination that the State’s practices and procedures were constitutionally deficient. We are satisfied that the court accorded the Advisory Panel’s findings the deference due them under the decree.

IV.
While deferring to the district court’s exercise of discretion and affirming its judgment, we emphasize that the court’s decision did not in any way diminish the full range of obligations imposed upon the State by the decree, and that the court’s administration of the decree in the past as well as its present opinion reflect a determination to assure that the purposes of the decree are fully realized by whatever means may be appropriate, including the enforcement of time schedules and, if necessary, the imposition of contempt sanctions.
AFFIRMED.

Parallel Citations

1994 WL 283717 (C.A.9 (Or.))

Footnotes

*

This disposition is not appropriate for publication and may not be cited to or for the courts of this circuit except as provided by 9th

Cir.R. 36-3. The parties are familiar with the facts and issues; we will not restate them here.

2

 
 U.S. v. State of Or., 915 F.2d 1581 (1990)

915 F.2d 1581 Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regarding the citation of unpublished
opinions.) United States Court of Appeals, Ninth Circuit.
UNITED STATES of America, Plaintiff, Sonya Fryer, et al, Plaintiff-Intervenors,
and Elam Lantz, Jr., Esq., David B. Hatton, Esq., Ira A.
Burnim, Esq., Leonard S. Rubenstein, Esq., Appellants, v.
STATE OF OREGON, Oregon State Board of Education, Oregon Department of Human Resources, Joseph E. Murray, Mental Health Division, Jerry McGee, Leo T. Hegstrom, Verne A. Duncan, Victor Atiyeh, Defendant-Appellee.
Nos. 89-35447, 89-35587. | Argued and Submitted Sept. 13, 1990. | Decided Oct. 2, 1990.
Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding.
D.Or.
AFFIRMED.

MEMORANDUM* *1 The appellants are attorneys who were counsel to intervenors in this action. They appeal from an order of the district court sanctioning them for violating a protective order.
A district court has inherent power to sanction attorneys who willfully abuse the judicial process or act in bad faith. Roadway Express, Inc. v. Piper, 447 US 752, 766 (1980); United States v. Blodgett, 709 F2d 608, 610 (9th Cir.1983). We review the imposition of sanctions for abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 US 639-42 (1976); FTC v. Alaska Land Leasing, Inc., 799 F2d 507, 510 (9th Cir 1986).
The district court did not abuse its discretion in finding that appellants acted in bad faith and in imposing sanctions. Appellants stipulated to a protective order on June 23, 1988, which designated all expert reports, and all information contained in such reports, as confidential. CR 191, at 1. Appellants subsequently quoted extensively from an expert report in a pleading that they entered into the public record and released to the press. CR 269. That the report in question may have already been part of the public record due to an oversight did not relieve appellants of their obligations under the June 23 order. Having failed to advise the court of the situation before making its pleading public, appellants risked being sanctioned. The sanctions imposed by the district judge were well within his authority.
AFFIRMED.

Before CANBY, KOZINSKI and TROTT, Circuit Judges. Opinion

Parallel Citations
1990 WL 142509 (C.A.9 (Or.))
	  

Footnotes

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th

Cir.R. 36-3.

	  

1

 
 Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Oregon, Not Reported in F.2d (1991)

1991 WL 321057 United States Court of Appeals, Ninth Circuit.
OREGONIAN PUBLISHING COMPANY, Petitioner, v.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, Respondent, and
UNITED STATES of America, et al., Real Parties in Interest.
Nos. 91-70622, CV-86-961-MA. | Dec. 5, 1991.
Before POOLE, WILLIAM A. NORRIS and TROTT, Circuit Judges.
Opinion
ORDER
*1 The Supreme Court has articulated three factors which must be met in determining whether court proceedings and documents may be closed to the public without violating the first amendment: (1) closure serves a

compelling interest; (2) there is a substantial probability that in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest. Oregonian Publishing Co. v. U.S. Dist. Court, 920 F.2d 1462, 1466 (9th Cir.1990), citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14 (1986) (Press-Enterprise II ).
Here, the district court did not clearly err in applying these factors in the underlying action. Specifically, the district court’s decision to unseal and release the documents to the public with the limited redaction of the residents’ names and cottage assignments is a reasonable alternative to closure which will protect both the interest of the residents in returning to the community, and the First Amendment rights of petitioner. See Oregonian Pub., 920 F.2d at 1467 & n. 1. Accordingly, we deny the petition for a writ of mandamus.
Parallel Citations
19 Media L. Rep. 1704
	  

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