Case: 3:04-cv-3708 As of: 07/25/2012 03:48 PM EDT 1 of 3
U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:04−cv−03708−GEB−JJH

CLOSED

UNITED STATES OF AMERICA v. THE STATE OF NEW JERSEY et al Assigned to: Judge Garrett E. Brown, Jr Referred to: Magistrate Judge John J. Hughes Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/02/2004 Date Terminated: 08/05/2004 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

UNITED STATES OF AMERICA

represented by CHRISTOPHER JAMES CHRISTIE UNITED STATES ATTORNEY FOR THE DISTRICT OF NEW JERSEY 970 BROAD STREET SUITE 700 NEWARK, NJ 07102 (973) 645−2890 Email: christopher.christie@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant THE STATE OF NEW JERSEY
Defendant

represented by GERARD ANDREW HUGHES OFFICE OF THE NJ ATTORNEY GENERAL 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625−0112 (609) 777−4854 Email: gerard.hughes@lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
HOWARD J. MCCOACH OFFICE OF THE NJ ATTORNEY GENERAL RICHARD J. HUGHES JUSTICE COMPLEX PO BOX 112 TRENTON, NJ 08625 (609) 984−9504 Email: howard.mccoach@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARY STEPHANIE BEATY OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625 (609) 984−9504 Email: stephanie.beaty@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-3708 As of: 07/25/2012 03:48 PM EDT 2 of 3

JAMES E. MCGREEVEY Governor of the State of New Jersey

represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

HOWARD J. MCCOACH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MARY STEPHANIE BEATY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JAMES DAVY COMMISSIONER OF DEPARTMENT OF HUMAN SERVICES

represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

HOWARD J. MCCOACH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MARY STEPHANIE BEATY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JAMES W. SMITH, JR. Director of Division of Developmental Disabilities

represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

HOWARD J. MCCOACH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MARY STEPHANIE BEATY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JEFFREY SCHROEDER Chief Executive Officer New Lisbon Developmental Center

represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

HOWARD J. MCCOACH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MARY STEPHANIE BEATY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-3708 As of: 07/25/2012 03:48 PM EDT 3 of 3

Date Filed 08/02/2004
08/02/2004 08/02/2004 08/05/2004 08/05/2004 06/13/2008 07/28/2009 07/28/2009
07/29/2009
08/20/2009 08/20/2009
08/21/2009

# Docket Text
1 COMPLAINT against JAMES DAVY, JAMES E. MCGREEVEY, JEFFREY SCHROEDER, JAMES W. SMITH JR., THE STATE OF NEW JERSEY ( Filing fee $ 0. receipt number no receipt.) , filed by UNITED STATES OF AMERICA. filing fee waived(tp ) (Entered: 08/05/2004)
2 SETTLEMENT AGREEMENT by JAMES DAVY, JAMES E. MCGREEVEY, JEFFREY SCHROEDER, JAMES W. SMITH JR., THE STATE OF NEW JERSEY. (tp ) (Entered: 08/05/2004)
3 Joint MOTION for conditional dismissal by JAMES DAVY, JAMES E. MCGREEVEY, JEFFREY SCHROEDER, JAMES W. SMITH JR., THE STATE OF NEW JERSEY, UNITED STATES OF AMERICA. (tp ) (Entered: 08/05/2004)
4 ORDER granting 3 Motion to Dismiss . Signed by Judge Garrett E. Brown, Jr. on 08/05/04. (ss, ) (Entered: 08/18/2004)
***Civil Case Terminated. (ss, ) (Entered: 08/18/2004)
5 SETTLEMENT AGREEMENT One Year Extention by THE STATE OF NEW JERSEY. (Attachments: # 1 One Year Extention of Settlement Agreement)(MCCOACH, HOWARD) (Entered: 06/13/2008)
6 NOTICE of Appearance by MARY STEPHANIE BEATY on behalf of all defendants (BEATY, MARY) (Entered: 07/28/2009)
7 MOTION for Extension of Time to Amend 5 Settlement Agreement Proposed Order staying termination of extension agreement by THE STATE OF NEW JERSEY. (Attachments: # 1 Text of Proposed Order)(BEATY, MARY) (Entered: 07/28/2009)
Set Deadlines as to 7 MOTION for Extension of Time to Amend 5 Settlement Agreement Proposed Order staying termination of extension agreement. Motion set for 9/8/2009 before Chief Judge Garrett E. Brown, Jr.. The motion will be decided on the papers. No appearances required unless notified by the court. (lk) (Entered: 07/29/2009)
8 NOTICE of Appearance by GERARD ANDREW HUGHES on behalf of all defendants (HUGHES, GERARD) (Entered: 08/20/2009)
9 STIPULATION of Dismissal by JAMES W. SMITH, JR, JEFFREY SCHROEDER, UNITED STATES OF AMERICA, THE STATE OF NEW JERSEY, JAMES E. MCGREEVEY, JAMES DAVY. (Attachments: # 1 Text of Proposed Order)(HUGHES, GERARD) (Entered: 08/20/2009)
10 ORDER OF FINAL DISMISSAL. Signed by Chief Judge Garrett E. Brown, Jr. on 8/21/09. (lk) (Entered: 08/21/2009)

 
 April 8, 2003
The Honorable James E. McGreevey Governor of New Jersey The State House P.O. Box 001 Trenton, NJ 08625
Re: New Lisbon Developmental Center, New Lisbon, New Jersey
Dear Governor McGreevey:
On March 20, 2002, we notified you that we were initiating an investigation of conditions at the New Lisbon Developmental Center (hereinafter “New Lisbon”), pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. New Lisbon is the largest state-operated facility serving persons with developmental disabilities in New Jersey. In May and June 2002, we conducted two separate visits to New Lisbon with expert consultants in various disciplines. At an exit interview conducted on the last day of each facility visit, we verbally conveyed our preliminary findings to counsel and to senior officials from the facility and the State Department of Human Services. Consistent with the requirements of CRIPA, we are now writing to apprise you of our findings.
I. INTRODUCTION
During our investigation, we evaluated whether residents of New Lisbon have been afforded their constitutional and statutory rights. Residents of state-operated facilities have a right to live in reasonable safety and to receive adequate health care, along with habilitation to ensure their safety and freedom from unreasonable restraint, prevent regression and facilitate their ability to exercise their liberty interests. Youngberg v. Romeo, 457 U.S. 307 (1982). Similar protections are accorded by federal statute. See, e.g., Title XIX of the Social Security Act, 42 U.S.C. § 1396; 42 C.F.R. Part 483, Subpart I (Medicaid Program Provisions). The State is also obliged to provide services in the most integrated setting appropriate to individual resident’s needs. Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq.; 28 C.F.R. § 35.130(d); see also Olmstead v. L.C., 527 U.S. 581 (1999).

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At the time of our visits in May and June 2002, the census at New Lisbon was approximately 600 residents who range in age from 18 to 87 years old. The residents’ diagnoses range from mild to profound mental retardation. The residents possess diverse abilities and functional levels. Some residents require more staffing supports to meet their daily needs, while others are much more independent and capable of meeting their own needs. Many of the residents have swallowing disorders, seizure disorders, ambulation issues, or other health care needs. A significant portion of the New Lisbon population is medically complex and requires assistance at mealtimes and other frequent monitoring. There are a number of persons at the facility who have developed maladaptive behaviors. More than 375 New Lisbon residents have been diagnosed as having one or more psychiatric disorders.
We conducted our investigation by reviewing medical and other records related to the care and treatment of persons who live at New Lisbon; interviewing administrators, professional and direct care staff, and residents; and conducting on-site surveys of conditions and practices.
Based on our review, we have concluded that there are numerous conditions and practices that violate the constitutional and statutory rights of New Lisbon residents. The facts that support our findings of unlawful and unconstitutional conditions at New Lisbon are set forth below along with the minimal actions that we believe are necessary to remedy these conditions. During our site visits, State and facility officials acknowledged that New Lisbon was a “work in progress” and that it was just beginning to undertake major reform initiatives. Positive developments include that New Lisbon has expanded its workforce by about 40 percent over the past year, creating more than 250 new direct care positions and seven additional psychologist positions. New Lisbon has also created an Incident Response Unit to conduct certain investigations. Nonetheless, it is clear that these reform initiatives have just begun. We also note that the facility is staffed predominately by dedicated individuals who are genuinely concerned for the well-being of the persons in their care. Further, we wish to acknowledge and express our appreciation for the extensive cooperation and assistance provided to us by the administrators and staff of the facility, as well as senior officials from the State Department of Human Services, especially James W. Smith, Jr., the Director for the Division of Developmental Disabilities within the Department. Mr. Smith made several trips from Trenton to meet with us, explain the State’s system and answer our questions. We hope to continue to work with the State of New

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Jersey and officials at New Lisbon in the same cooperative manner in addressing the problems that we found.
II. PROTECTION FROM HARM
New Lisbon fails to protect its residents from harm or risk of harm. The facility’s incident reports and data management documents reveal a high number of incidents which resulted in an injury to a resident. For example, in the ten months prior to our arrival – from early June 2001 to early April 2002 – there were approximately 4,400 recorded incidents at New Lisbon involving mostly minor, but also moderate and major injuries to residents.1 From January 2001 to May 2002, there were over 500 incidents classified as moderate or major, including resident-on-resident assaults, abuse or neglect, and deaths. Of the 500 moderate or major incidents, 242 resulted in fractures, or lacerations requiring sutures, staples or dermabond to close the wounds. In addition, in the five months preceding our first tour, it appears that incidents and injuries were increasing. New Lisbon documents reveal the following:
• A May 2002 risk analysis by the facility concluded that at New Lisbon the “quantity of injuries has continued to increase since January 2002. The number of injuries of unknown origin has almost doubled since this period.”
• A March 2002 analysis of injury data concludes that the rate of minor injuries caused intentionally by other people had increased to levels not seen since September 2001.
• That same injury analysis concluded that from the beginning of 2002 until March 2, 2002, self-inflicted injuries increased from 25 injuries per week to over 40 injuries per week.
1 The facility categorizes incidents as either minor, moderate, or major incidents. Minor incidents that result in injuries generally include minor bites, bruises, superficial abrasions, blisters and minor cuts. Moderate and major incidents that result in injuries are more severe and include fractures and lacerations that require sutures, staples, or dermabond. Regardless of severity, these injuries can result from a variety of sources including staff abuse or neglect, resident aggression and altercations, resident self-injurious behavior (“SIB”), seizures, falls, or other unknown causes.

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The increase in the number of incidents and injuries at New Lisbon in 2002 may be due to recent efforts at the facility – a very positive development – to better record incidents that might have gone unrecorded before. It may also be due to the additional staff presence at the facility who may now observe incidents that might have been unobserved before. However, it may be that, indeed, conditions and practices at the facility are deteriorating and New Lisbon is less safe now than it has been in the past. In the weeks preceding our tours, there had been numerous significant injuries to residents:
• Paul,2 4/5/02, needed four staples and three sutures to close a head wound after an altercation with a peer.
• Andy, 4/2/02, injured the side of his head due to selfinjurious behavior (“SIB”), requiring five sutures.
• John, 3/26/02, suffered a laceration on his forehead underneath his helmet from an unknown source, requiring three staples.
• Edward, 3/26/02, suffered a right eye laceration from SIB, requiring five sutures.
• Anthony, 3/25/02, fell out of his wheelchair, and suffered abrasions on his finger, ear, head, a bruise on his back, and a fractured thumb; a few days later, on 4/3/02, it was also determined that he had a fractured right clavicle.
• James, 3/17/02, needed five staples to close his head laceration due to an altercation with a peer.
• Richard, 3/13/02, was struck by a peer and needed seven staples to close the laceration on his head; his fifth finger was also fractured.
• Matthew, 2/9/02, a resident who is required to have constant supervision, was found by staff with a large shoeshaped bruise on his chest.
• Jeffrey, 2/3/02, was found in his cottage grimacing in pain
2 In order to protect the identity of residents, we use pseudonyms throughout the letter.

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and refusing to move, and a few days later, on 2/8/02, 21 staples were placed in his hip, which had been fractured after being pushed by a peer.
Recently, New Lisbon has begun to keep track of residents who are most often victims of intentional injury by others; it also keeps data on the aggressor. This is important so that the facility may take prompt, effective action to ensure that a resident victim is protected from harm in the future. Nonetheless, there are other systemic concerns with regard to how the facility manages incidents. For example, existing policies fail to include critical definitions for abuse and neglect. The facility also does not train staff on certain critical aspects of incident reporting and does not provide sufficient training on how to promote residents’ safety. While improved recently, the facility does not adequately analyze incident and injury trends. The facility does not conduct adequate systematic analyses to predict when, where, and in whose presence important incidents occur, so that steps can be taken to reduce or prevent additional incidents. New Lisbon must do more to provide adequate supervision, staff training, and properly developed and implemented behavior programs given that most of the incidents referenced above were preventable.
Substantiated allegations of staff physical and verbal abuse against residents, as well as neglect, are ongoing. Below are a few examples, occurring in the weeks before our tours, demonstrating the facility’s systemic failure to protect its residents from harm:
• Robert, 4/17/02 - staff member punched resident in the chest.
• Jennifer, 3/1/02 - staff member called resident degrading and undignified names.
• Adam, 2/27/02 - staff member forcefully pushed Alfred into his room, causing him to collide with a chair on the other side of the room.
• Henry, 2/27/02 - staff member took Henry and other residents to her house to clean up dog waste in her backyard.
• Angela, 2/24/02 - staff member was seen holding Angela’s faceguard and shaking her head up and down while yelling at her.

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• Wilson, 2/9/02 - staff member intentionally smeared glue on Wilson’s face, and failed to remove the glue before it dried; removal of the dry glue was “painful.”
• Paula, 1/25/02 - staff member slapped Paula in the face, and pinched her “because she is a ‘dark-skinned black person’ and bruises don’t show up on her”; there were “2 large bruises on right breast”; staff member also struck “the heal of her hand on Paula’s forehead”; staff member directed profanity at the resident and verbally threatened her.
• From January 1, 2002 through the time of our tour in early May 2002, over a half-dozen New Lisbon staff were caught sleeping while on duty.
It appears that New Lisbon is conducting timely investigations of serious incidents such as these and that staff accused of resident abuse are not allowed contact with residents until the investigation is completed. These are positive practices. Nonetheless, we uncovered several problems with the investigations at the facility. For example, the facility often delegates investigation authority to subordinates who may not be trained and/or qualified to conduct an investigation. Training provided to staff conducting investigations is inadequate both in terms of comprehensiveness and scope. In addition, the New Lisbon investigation reports often fail to include systemic recommendations to prevent further recurrence of injury. In June 2002, the facility, itself, found that 25 percent of the time, investigation reports “did not apply the findings of the investigation to prevent the event from happening again.” A review of the unusual incident reports from March 2002 revealed that 50 percent of initial closed reports did not include actions taken to protect the victim from further incidents and that 78 percent failed to make recommendations to prevent the type of incident from happening again. Without adequate investigations and a system to address problems uncovered in investigations, residents will continue to be exposed to preventable incidents of harm in the future.
Another area of concern relates to corrective personnel action in cases where an allegation against New Lisbon staff is substantiated. The documentation provided to us reveals that the initial recommended discipline in substantiated cases is virtually always more severe than that actually meted out. For example, in the first few months of 2002, in the cases involving substantiated

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allegations against staff and/or staff sleeping on duty, the facility recommended “removal” in nine cases. However, in none of those cases was termination actually accomplished. Instead, a typical penalty imposed was a ten-day suspension. Reduced penalties may promote a culture where it is perceived that abuse and neglect are tolerated.
III. PSYCHOLOGY AND BEHAVIORAL SERVICES AND PSYCHIATRY
New Lisbon fails to provide adequate and appropriate psychological services to meet the individualized needs of its residents with behavior problems. This deficiency is a contributing factor to a significant number of the incidents and injuries discussed above, which often stem from residents’ inadequately addressed problem behaviors such as SIB, aggression, and “pica” (i.e., ingesting inedible objects).
In the year preceding our visit, New Lisbon took steps to address these problems. For instance, New Lisbon increased the number of psychologists at the facility by adding seven additional clinicians. Each living unit now has one full-time psychologist and one full-time behavior management technician. New Lisbon also contracted with the Liberty Health Care organization to write new behavior programs for all New Lisbon residents who need a behavior program. As of June 2002, New Lisbon reported that about 350 residents had a behavior program, many of which had been rewritten by Liberty.
It appears that the facility has recognized that its contract with Liberty did not solve the deficiencies in providing behavioral services to its residents. Part of the problem likely stems from the fact that Liberty provided no follow-up with regard to the implementation and monitoring of the programs. Moreover, the facility appears to have recognized that the newly-developed behavior programs were substandard and needed revision. For example, in February 2002, the facility’s psychology committee minutes expressed “repeated concerns” about the quality of the behavior programs developed by Liberty. The minutes reveal that many programs already had undergone needed revision. There was an expressed concern that the behavior programs were based on functional analyses “that were not accurate ... or [were] dysfunctional or inappropriate.”
A. Behavior Program Development
Despite the recent increase in psychology staff, the facility’s current behavior programs do not contain all of the required

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components and do not comport with generally accepted practice. For example, most New Lisbon behavior programs do not provide a detailed definition of each behavior in observable terms. Without a specific definition, there is likely to be inconsistency in implementation of intervention procedures and recording of data. In addition, the functional analysis process fails to adequately incorporate the direct observations of the treating psychologist, who should observe the resident in different settings and situations. Incorporating this element will benefit the residents because New Lisbon will be able to develop more effective interventions. New Lisbon behavior programs also do not adequately use positive reinforcement, even though systematic, individualized use of positive reinforcement is generally accepted as an effective way to reduce problem behaviors. Even where positive reinforcement is included, it is not specific enough to result in meaningful and consistent implementation. In addition, the teaching components of the behavior programs are not specific and do not provide staff with enough information to teach the alternative skill correctly and consistently.
Many of New Lisbon’s problems with completing an adequate behavioral assessment, developing an effective behavior program, and monitoring its effectiveness, relate to the facility’s failure to collect consistent and meaningful behavioral and other data. Without better data, it is hard to define initially the nature and scope of residents’ behavior problems as well as measure residents’ progress while treated with a behavior program. Direct care staff typically record data only at the end of the shift. This practice makes errors likely given that staff must record data for multiple residents over a prolonged period of time. It also hampers the collection of data that is individualized enough to identify triggering events, which would help provide needed treatment to residents. Finally, New Lisbon fails to check the reliability of the data collected and fails to check staff’s implementation of data-recording.
Psychology staff at New Lisbon also are failing to include in behavior programs information about health conditions that may impact the occurrence of problem behaviors. Virtually all of the behavior programs reviewed made no mention of health-related issues. New Lisbon's behavioral programs often fail to consider precipitating resident health issues that may trigger behavior problems. In addition, New Lisbon may be treating certain problem behaviors with behavior plans or psychiatric interventions when they could be solved by addressing the underlying health concern.
B. Behavior Program Implementation

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Consistent and correct implementation of behavior programs is required if progress is to be made on the behavior program. While each New Lisbon behavior program contains a section on how to respond to behaviors when they occur, most of the stated interventions are vague. This typically leads to inconsistent implementation. The programs often refer to facility-approved procedures without defining what they are and under what conditions they should be implemented. In addition, while each program contains specific skills to be taught to the residents, staff do not implement adequately the teaching components of the behavior programs. Implementation is often limited to recording unstructured activities rather than teaching from the structured behavior program.
The staff who implement the programs receive inadequate training and instruction. The result is that programs are often implemented in inconsistent and ineffective ways. Some staff reported having no contact at all with the psychologist and other staff claimed that they did not receive meaningful training on how to implement the behavior programs. In March 2002, internal documents acknowledged that New Lisbon direct care staff need more training in how to address residents’ needs.
During our on-site tour, some New Lisbon staff could describe correctly how to respond to problem behaviors, but many other staff members’ descriptions of how to respond to behaviors did not correspond to the behavior program. This can lead to a lack of progress or even an escalation in resident outbursts, possibly resulting in injury or restraints. Many staff members implemented their own interventions regardless of what was written in the programs. Staff sometimes described and implemented interventions that would actually reinforce problem behaviors. For instance, staff sometimes gave residents candy or soda after the residents were exhibiting problem behaviors. Inconsistent use of reinforcement can lead to undesirable outcomes. Positive reinforcement is applied inconsistently at New Lisbon largely because the behavior programs provide little direction or poor guidance with regard to how to address problem behaviors. We found other instances where staff addressed a problem behavior using a restrictive practice that was not fully explained in the behavior program.
In addition to poor implementation, New Lisbon fails to conduct adequate reviews and properly monitor residents’ progress on their behavior programs. This problem is exacerbated by the facility’s poor data collection process, as discussed earlier.

C. Restraints

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New Lisbon residents have a right to be free from unreasonable use of restraints. New Lisbon reports that between January 1, 2001 and April 15, 2002, there were over 1,000 instances in which the facility restrained a resident using four-point wrist and ankle restraints.3 In anticipation of our visit and in an effort to reduce the use of four-point restraints, the Risk Management Committee ordered staff to remove all four-point restraint equipment from all cottages, except Dogwood and Fern, no later than April 15, 2002. Based on this new directive, New Lisbon reports a significant reduction in the use of four-point restraints, from a high of over 200 applications in June 2001 to fewer than 50 applications in February 2002. For many residents, the almost daily use of fourpoint restraints has stopped. Nonetheless, the use of four-point restraints continues to be a problem as the facility still unnecessarily uses four-point restraints on certain residents. For example, between April 1, 2002 and June 14, 2002, in spite of the new facility directive to reduce the use of four-point restraints, New Lisbon subjected 19 residents to four-point restraints on 32 separate occasions.4 The facility estimates that it still uses four-point restraints about six to eight times per week. New Lisbon aggregate data reveals that the average length of time in restraints is roughly the same now as it was a year earlier.

In June 2002, New Lisbon characterized its restraint usage as “continuing to remain low and may be trending downward ... the rate of mechanical restraint in the last three months is lower than any other time since this data has been recorded.” However, substitute restrictions, i.e., psychotropic drugs, may have emerged to take the place of the four and five-point mechanical restraints. Or the

3 New Lisbon's documents also indicate that the facility sometimes applies a chest belt to residents who are in four-point restraints, making it a five-point restraint.
4 The information New Lisbon reported to us may under-report the use of restraint at the facility. For example, we found problems with regard to restraint data collection for Bradley. Data produced by New Lisbon revealed that Bradley had been involved in 98 documented incidents of restraint including helmet usage and fourpoint restraints between January 1, 2001 and April 4, 2002. However, in comparing that information with information contained on the living unit, we found an additional 39 incidents of restraints that were not included in the data produced by the facility.

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mechanical restrictions may have taken on a different name, now labeled as “medical” devices. For example, in June 2002, the facility acknowledged:
the use of Stat and short-term orders for medication to control behavior seems to be increasing. It is not clear if this type of restraint is truly increasing or if there had previously been under reporting ... Medical needs to ensure that these orders are communicated to the psychiatrist to aid in the evaluation of the effectiveness of regularly prescribed psychotropic medication ... Another red flag noted seems to be an increase in the use of medical safeguarding as the numbers of [emergency mechanical restraint] continues to decline. There has been a noted increase in the use of mitts in response to maladaptive behavior that is being recorded as medical safeguarding.
Indeed, New Lisbon reports that 30 residents have been subjected to “emergency/stat” behavior modifying medications between January 1, 2001 and April 15, 2002. A May 2002 facility document refers to using a PRN (or “as needed”) injection of Ativan whenever resident Peter’s “SIB cannot be controlled.” The use of medication to control a person’s behaviors on a PRN basis does not comport with generally accepted practice as it leaves too much discretion to non-physicians and is likely to lead to overuse of the medication which should be controlled and closely monitored by a physician.
New Lisbon also engages in the restrictive practice of “personal control” of residents, which involves manual contact by staff to restrict the residents’ freedom of movement either partially or totally. Facility policy requires that staff review the use of personal control and record its use in a database. However, it was evident that it is not being recorded properly (if at all) and it is not tracked anywhere in the facility’s databases. Thus, personal control does not appear in the facility’s restraint reports or in the list of behavior programs that have restrictive components. There is no data on the use of personal control and little monitoring, training, and examination of how to reduce its usage. As a result, it is impossible to determine how often this restrictive practice is being used at New Lisbon. However, we know from house managers that the practice is being used. We also are troubled that this form of restraint may be hidden within the behavior programs that call for the use of “facility approved procedures.”

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A number of New Lisbon residents wear large, brown, padded helmets that appear heavy, uncomfortable, stigmatizing, and unduly restrictive. New Lisbon does not properly assess and monitor use of these helmet restraints to ensure that they are used as infrequently as possible (such as for protection from seizures or injuries related to gait problems) and that they are tailored to the person. The facility appears to be coming to an understanding that these helmets do not meet the residents’ needs. For example, in April 2002, the New Lisbon Human Rights Committee concluded that a helmet of this type “is very intrusive and restrictive.”5
New Lisbon demonstrated that reduction in the use of helmets can be accomplished safely. For example, in anticipation of our summer visit, the facility discontinued the use of these helmets for some residents, sometimes mere days prior to our arrival. At the time of our visit, all of these residents seemed to be doing well. New Lisbon produced for us a list of 35 individuals who still wear the helmets. New Lisbon reports that 12 residents were on fading plans and that about two dozen still need the helmets “as prescribed.” Only eight had a behavior program; 27 residents did not have a behavior program, ostensibly needing the helmets for “medical” purposes. For those without a behavior program, the imposition of these helmets did not have to pass through the protections of the Behavior Management Committee (“BMC”), the Human Rights Committee and/or psychology review.
We also found that many residents would benefit from enhanced supervision and monitoring, thus reducing use of these helmets, especially when needed for “medical” purposes. In fact, our medical consultant characterizes the helmets used at New Lisbon as “ponderous, sensory-limiting headgear,” and added that such helmets are not commonly used for medical reasons, even for persons with
5 The committee discussed the continued use of restrictive helmets in the context of one resident who demonstrates SIB. The committee concluded that he stops hitting himself on the head when the helmet is removed and certain objects are placed in his hands; he will also stop hitting himself when he engages in fingerplay and when he chews on an item; and that the helmet is not removed even when he stops slapping himself. The committee concluded that: “This means that [he] will remain in the helmet even when he does not pose a danger to himself. This is excessively restrictive and also seems to reduce the opportunities for him to learn that if he stops slapping, the helmet is not used.”

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severe seizures that cause sudden falls.
The facility’s BMC is supposed to review at least quarterly all behavior programs with restrictions. However, the BMC failed to meet at all from late August 2001 through April 2002, a gap of about seven months. At that time, the committee’s name was changed to the “Behavior Support Committee.” The BSC appears to now be taking a more active review role, recommending that use of restraints for behaviors be reduced and discontinued for many residents, and that the reduction include a positive reinforcement component.
D. Psychiatric Services
New Lisbon provides inadequate and inappropriate psychiatric care and services to its residents with mental illness. As of April 1, 2002, New Lisbon reports that there were a total of 377 residents with mental illness who received psychotropic medications. Comparing this number with the number of residents on a behavior program (350), it appears that some New Lisbon residents may be receiving psychotropic medication without the benefit of an accompanying behavior program. This does not comport with generally accepted practice. Fortunately, the psychologists appear to be very involved in the psychiatric consultation process as they attend almost every psychiatry consultation meeting. This enhances interdisciplinary collaboration between the psychologists and the psychiatrists which should benefit the New Lisbon residents.
At the time of our visit, the facility was trying to meet the residents’ mental health needs by contracting with part-time psychiatrists. However, New Lisbon appears to recognize that additional psychiatry hours are needed in order to meet the residents’ needs. As a result, the facility is seeking to employ a full-time on-site psychiatrist and possibly two more in the near future. It appears that New Lisbon has also recognized recently that it needs to re-evaluate the psychiatric care provided to its residents with mental illness. We understand that the facility identified over 100 residents who are in need of review and re-consent for their psychotropic medication.
There are other concerns with how mental health services are delivered at New Lisbon. It appears that the psychiatrists have only just begun to consider resident behavioral and other data and the elements of their behavior programs in developing psychiatric interventions. In fact, earlier this year, the psychiatrists acknowledged to us that they had been relying only upon informal

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“staff reports” when considering what diagnoses, treatment and monitoring were appropriate for residents with mental illness at the facility. Thus, both the psychiatrists and the psychologists told us that data-based decision-making does not occur with regard to residents’ behavioral needs. This places New Lisbon residents at risk for incorrect diagnoses and prescription of incorrect medications as well as at risk for over-medication.
Finally, a large number of residents receive multiple medications for their mental illness. For example, 10 residents receive five psychotropic medications, 28 residents receive four psychotropic medications, and 80 residents receive three psychotropic medications. Thus, over 30 percent of the residents on psychotropic drugs receive three or more medications. This is of concern as most of the individuals on four and five medications have a history of high and chronic use of restraint as well as many incidents and injuries due to behavior problems. The use of polypharmacy without strong justification and intense oversight is inconsistent with currently accepted practice.
IV. HABILITATION
New Lisbon fails to provide its residents with adequate habilitation services and supports and New Lisbon’s individualized planning process fails to meet current professional standards. New Lisbon’s individualized habilitation plans (“IHPs”) contain very few skill training objectives and do not support person-centered planning with a focus on the resident’s vision for the future and outcomes for achievement. As a result, New Lisbon does not provide residents with adequate opportunities to enhance their independence or achieve their visions or goals.
One problem is that New Lisbon’s interdisciplinary teams do not develop IHPs that meet current professional standards. New Lisbon’s IHPs are neither comprehensive nor holistic. Rather, New Lisbon has a number of different documents in which information essential to the provision of adequate habilitation and protection from harm is maintained. This requires staff to access numerous documents in order to obtain a complete picture of the services and supports a resident requires. This is inconsistent with current professional standards which require that one holistic plan be developed and implemented to provide a roadmap of all the supports a person requires.
Another problem is that New Lisbon’s IHPs do not reflect an

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adequate interdisciplinary process. The IHPs developed by New Lisbon seldom address residents’ preferences and contain few service objectives. Consistently, the functional assessments found in the files of New Lisbon residents contained numerous recommendations that were not incorporated into the IHPs through either a behavioral or service/support objective. Likewise, the functional assessments often identified some of the residents’ preferences, but interdisciplinary teams often failed to integrate such preferences into the IHPs. In addition, teaching techniques were not described in detail and used too little positive reinforcement. As a result, these techniques are not likely to result in appropriate skill development. The IHPs need to be more individualized if learning is to occur.
In order to ensure that residents are afforded adequate habilitation, the IHPs must define in measurable terms the services and supports to be provided. In many cases, measurable objectives or outcomes are not present in residents’ IHPs. For example, some residents of New Lisbon utilize alternative modes of communication such as sign language or voice output systems. However, objectives such as “John will receive speech and language services” are commonly included in New Lisbon IHPs. Such an objective fails to define the type of speech, language, and/or communication services a resident will receive, what the expected outcomes are anticipated to be, the frequency and/or duration with which such supports will be provided, and/or how the resident’s team will know when such services are no longer necessary. Moreover, staff working with such residents should be proficient in these forms of communication and this should be specified in their IHPs. This does not happen at New Lisbon.
In addition, the implementation of IHPs is inconsistent and often times does not follow the written habilitation plans. This is due in part because New Lisbon fails to provide adequate competencybased training to its staff charged with teaching residents pursuant to the written habilitation plans. Some staff informed us that they received no direct instruction on how to teach pursuant to the plans, while others had to learn by simply reading the plans. As a result, we observed attempts to teach that were ineffective, did not utilize positive reinforcement, and were not likely to result in learning. In addition, there were few informal interactions between staff and residents that involved teaching a new skill. Typical components of informal teaching include instruction, modeling, feedback, practice, and reinforcement. We rarely observed these types of informal interactions between staff and residents at New Lisbon.

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During our on-site visit, we also discovered a low level of engagement among the residents even though staffing was often adequate and the residents had the capability to learn. Too often, residents were not engaged and the staff did not attempt to engage them. We found several examples where nothing was happening with residents – they were all sitting idly in chairs – even though staff were present. Sometimes, the notes in the IHP would indicate that no training objectives were addressed in a given quarter due to a lack of training opportunities. This cannot be attributed to a lack of staffing alone as we found this designation even where the resident had 1:1 staffing. In other cases, certain training objectives were discontinued due to a lack of progress even though the lack of progress was not the resident’s fault. Instead, the problem lies with the facility and the staff in that they provide poorly designed and poorly implemented training programs and substandard instruction. Teaching objectives should be evaluated for progress or lack of progress on a regular basis. However, at New Lisbon, it is virtually impossible to monitor progress on training objectives as data is not collected, graphs are not done, and anecdotal notes are scattered throughout the record.
New Lisbon provides a number of day program options to residents. Some of the options are good and individualized and offer stimulating work for the residents. As of May 2002, there were about 57 New Lisbon residents who attend Esteem Industries, a sheltered workshop day program on campus; another 61 residents work in the oncampus employment program doing laundry, food service work, building maintenance, and working as messengers; about a dozen additional residents work on-campus doing horticulture; three residents work in the appliance repair shop; five residents work in the recycling program on-campus; about two dozen other residents work off-campus doing various public works; and a handful of residents work in the community in supported employment situations.
Nonetheless, for many residents, the day programming may not be meeting their needs. This is because, overall, there is a lack of planning on the part of the residents’ teams with regard to day program/vocational supports. For example, it does not appear that the facility is offering many residents sufficient opportunities to work off-campus in more integrated settings even though many appear capable of benefitting from more stimulating work. There are several residents for whom teams have discussed competitive employment, however, New Lisbon has not included specific measurable outcomes or objectives in their IHPs to achieve this end. Career development planning for such residents is virtually non-existent. For the vast

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majority of residents who are involved in employment or other activities on campus, their IHPs fail to include meaningful training and support objectives designed to increase their independence. In addition, there are hundreds of New Lisbon residents who do not receive any off-residence day programming or vocational opportunities that would meet their needs. This is problematic because many residents are not given enough to do during the day and this can cause regression and exacerbate problematic behaviors due to boredom. Lack of transportation options also may be hindering residents’ ability to go off-campus. As a result of the foregoing, New Lisbon residents do not receive the habilitation to which they are entitled.
V. HEALTH CARE
Many aspects of health care delivery at New Lisbon are acceptable. For example, the preventive health care program for residents who do not have high-risk conditions typically meets acceptable standards; health care documentation is usually timely, reasonably detailed, and accurate; facility-wide emergency care meets acceptable standards; and the clinical laboratory meets an acceptable standard. The pharmacy service exceeds acceptable standards of care.
Nonetheless, New Lisbon is failing to meet the individualized health care needs of some of its residents. This is especially true of residents with bowel obstructions and residents with nutritional and physical management concerns. In spite of the fact that the New Lisbon medical department is well-organized with good leadership, the physicians appear to have more obligations than they can handle adequately given the large number of residents with special intensive needs, with high-risk health factors, and/or who are medically complex. We understand that the State recognizes this and is actively seeking to recruit at least two additional internists to increase the availability of primary care physicians at the facility.
A. Bowel Obstructions
New Lisbon fails to provide needed proactive and preventive health care for the vulnerable population of residents with serious gastrointestinal conditions, including obstipation and intestinal obstruction, which may lead to bowel perforation and even death in this population. These serious conditions are preventable. As a result, New Lisbon fails to provide health care in this area that meets current generally accepted practice.

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There are many New Lisbon residents with gastrointestinal concerns and many others at risk of developing complications from gastrointestinal concerns, including those who are not active physically. These residents are at great risk for developing chronic constipation that may lead to obstructions. Chronic constipation often leads to a cascade of troubling events which are more pronounced in this particularly vulnerable population. Milder consequences include dehydration and discomfort during bowel movements. More serious consequences include blockage in the intestines which produces cramping and an enlargement of the abdomen visible to even a casual observer. In the most serious cases, the intestines can rupture, causing blood poisoning and frequently death. Such high-risk factors demand proactive and priority involvement from health care and direct care staff. Nonetheless, such involvement is often lacking at New Lisbon.
New Lisbon residents with such high-risk health care needs are frequently hospitalized for continuing care of acute medical problems developed while residing at New Lisbon. In the three month period between January and March 2002, New Lisbon reported that seven residents had been hospitalized due to health concerns related to bowel obstruction. Similarly, in 2001, there were close to two dozen additional hospitalizations related to bowel obstructions, rectal bleeding, and a possible gangrenous bowel.
Most troubling, several New Lisbon residents have died recently following the rupture of their intestines related to the onset of a bowel obstruction. For example, last year, resident Brian suffered with prolonged abdominal pain caused by an undetected small bowel obstruction that eventually led to a bowel perforation. Specifically, Brian had a perforated ileum, collapsed colon, and three small tears in his small bowel secondary to bowel obstruction. He needed surgery to repair the perforation. In spite of the surgery, Brian died approximately one week later. New Lisbon had failed to note and recognize that in the days immediately preceding the hospitalization, Brian was not only constipated but obstipated to the point where bowel obstruction was imminent. There have been other similar cases: Ryan died following a small bowel rupture secondary to a bowel obstruction; and Jonathan died secondary to a perforated viscus (ruptured bowel).
With appropriate proactive care and monitoring, these emergencies should not have developed in the first place. There is a need to develop and implement a policy at New Lisbon that requires closer scrutiny of the clinical process preceding the onset of

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symptoms leading to death in such cases so that preventative measures can be put in place to avoid future problems. Right now, New Lisbon's mortality reviews contain considerable information that is not utilized to benefit the other residents.
B. Neurology
New Lisbon fails to provide adequate neurologic health care to those residents with seizure disorders. Close to one third of the New Lisbon population – or approximately 170 residents – has a seizure disorder. Nevertheless, New Lisbon only provides a monthly total of 10 hours of time with consultant neurologists to serve the ongoing needs of this sizable population. This limited amount of time prevents the facility from providing residents who have seizure disorders with the proactive health care they require for their often complex needs and prevents the facility from serving the remainder of the client population who experience the onset of new seizures and/or other neurologic conditions.
This finding is borne out by resident outcomes. For example, a significant number of the residents who need anticonvulsant medication receive three or more medications, increasing the likelihood of adverse side effects from the medication. Moreover, from January 2002 through mid-April 2002, New Lisbon reported that five residents had been hospitalized due to health concerns with regard to seizures. In addition, in 2001, there were a variety of seizure disorder-related preventable hospitalizations including those for anticonvulsant medication toxicity and status epilepticus. We appreciate the facility’s efforts in recent months to authorize the use of newer, more advanced techniques to treat seizure disorders, including the implant of Vagus Nerve Stimulators in over two dozen residents. The facility reports varied but generally positive results with this new procedure in terms of reduced seizure activity and improved resident alertness and mood, likely due to a decrease in the use of anticonvulsant medication in those cases.
C. Nutritional and Physical Management
New Lisbon fails to provide adequate nutritional and physical management services to meet the residents' individualized needs. In the absence of proper support, New Lisbon residents with dysphagia (difficulty chewing or swallowing) may suffer pain and discomfort at virtually every meal and increase the risk of aspirating food, fluid, or saliva into the lungs. These foreign elements often contain bacteria which meet no natural enemies in the lungs. This can lead

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to aspiration pneumonia in some cases which can prompt hospitalization and even cause death among vulnerable residents in this population. At the very least, these residents may suffer by simply choking while eating or drinking. Persons with disabilities, of course, feel the same sense of momentary panic that others do when choking, however, their anxiety is likely magnified by the fact that they lack many of the same mechanisms we take for granted to dislodge food in the trachea. Increased anxiety or panic leaves these persons extremely vulnerable to inhaling food directly into their lungs instead of coughing it out.
There are a significant number of New Lisbon residents with nutritional and physical management problems. This includes persons who have dysphagia, gastroesophageal reflux, and other risk factors related to aspiration, as well as positioning difficulties that may impact breathing, swallowing, and digesting. For example, about two dozen residents receive nutrition through a tube with 10 of these persons receiving no nutrition by mouth. Moreover, the facility has identified well over 300 residents – about half of the total New Lisbon population – on its specialized feeding protocol list. In spite of these numbers, New Lisbon does not appear to have a good understanding of which residents are at risk in this area and it is not clear what criteria the facility uses to place a resident on the specialized feeding protocol list. As of April 2002, New Lisbon has provided almost all of these residents with a feeding/eating evaluation. However, over half these persons received the evaluation in 2002, shortly before our visit. This is significant as several residents previously had old evaluations dating back over 10 years.
The failure to provide adequate nutritional and physical management services has led to poor outcomes for residents. For example, from January 2, 2001 through May 11, 2002, there were 75 hospitalizations relating to nutritional and physical support issues from New Lisbon, such as pneumonia, aspiration pneumonia, gastrointestinal bleeding, gastroesophageal reflux, esophagitis, other gastrointestinal concerns, weight loss, anemia, dehydration, malnutrition, tube placement or related problems, dysphagia, decubitus ulcers, and respiratory distress. One problem is that New Lisbon fails to provide a coordinated and collaborative team approach to address health and medical issues, as well as to meet the functional outcome needs of a resident from a physical and nutritional support frame of reference. These include, but are not limited to: dental, nutrition, oral motor, seating, alternate positioning, and behavioral intervention. This has created increased risk of harm for residents who would benefit from these supports.

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There is no proactive system at New Lisbon to identify risk indicators and convene a formalized and collaborative team review of residents who display such risk indicators. There is no mechanism or protocol for a comprehensive team review of residents who may be considered candidates for tube feeding or for the development of an appropriate support plan for residents who have received a tube due to a medical emergency or during hospitalization.
The professionals at New Lisbon, including speech, occupational, and physical therapists, provide inadequate assessments for the development of appropriate mealtime plans that include position and alignment. In addition, New Lisbon provided no dysphagia evaluations for some at-risk residents whom we observed with mealtime concerns. The facility has given responsibility for the monitoring and oversight of this population to a nutritional support team, but this team does not include the participation of a physician. It was reported that the New Lisbon physicians are too busy to participate regularly in team meetings. In addition, there is no nurse, physical therapist, psychologist, or behavioral specialist on the team. Moreover, the knowledge base of the team is at issue. Finally, in spite of compelling individual resident needs, the team has been focused primarily on the development of policies and procedures rather than on addressing individual residents’ needs.
There are many practices and omissions of care we observed at mealtimes that place New Lisbon residents at risk of harm and fail to comport with generally accepted practice. For example, staff assisted residents or permitted residents to eat and/or drink independently at too fast a rate during mealtime observations. Staff presented some residents with too large a bite or allowed residents to take large bites independently without staff intervention, thereby placing the residents at risk of choking or aspiration. A number of residents coughed during the meals without adequate staff attention or intervention. Many residents ate and drank at meals in poor postural alignment which placed them at risk of choking or aspiration. Staff often did not help to realign residents properly prior to or during a meal. In some instances, staff did not follow instructions on resident meal cards. Staff served some residents food that did not match their diet order as indicated on their meal card. The therapy professionals and dieticians present in the dining rooms during meals consistently served as poor models for implementing appropriate physical assistance techniques for alignment and support, as well as for implementing appropriate mealtime strategies.

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New Lisbon provides extremely limited alternate positioning options for residents for pressure relief, participation in functional skills, and therapy supports. There was little evidence that any assessment had been completed for any resident who could have benefitted from such an assessment and the alternate positioning that was provided was inadequate to provide appropriate alignment and support for function. New Lisbon fails to provide assessments at nighttime or resting bed positions for residents at risk of aspiration and gastroesophageal reflux, and the facility provides virtually no customized or specialized positioning equipment to ensure appropriate position and alignment for nighttime or bed rest. In addition, New Lisbon staff do not use appropriate physical assistance supports for residents being transferred or repositioned. In many cases, handling techniques used by staff are not consistent with generally accepted practices and place residents at risk for injury or fractures.
New Lisbon fails to complete appropriate assessments for seating systems using accepted practices in assistive technology supports and principles of seating that focus on stability, alignment and comfort. This is due in part because the facility allots insufficient time to each resident to allow for adequate assessment and because the facility fails to document evaluations properly instead relying on staff memory to guide the evaluation. The physical therapist at New Lisbon acknowledged that there was no formal assessment process in the wheelchair clinic and that the process to be undertaken is “between his ears.” This is inappropriate especially given that there are over 120 residents who need some form of seating assessment. As a result, New Lisbon provides inappropriate seating systems for numerous residents. For example, we observed seating systems where the residents’ legs are elevated and straight out in front of them even though many of these residents have insufficient hamstring length for knee extension. We also observed seating systems where the residents are provided inadequate support and stability for postural control and function. Many other residents suffer with sling seat and/or sling back wheelchairs which do not provide adequate support and alignment for function even when used only as a transport chair. Finally, in spite of the fact that New Lisbon claims to have a wheelchair technician review each chair and clean each chair each week, many wheelchairs are dirty and poorly maintained.
There are numerous examples of residents who have been harmed or placed at risk of harm due to New Lisbon’s substandard practices. We discuss below a few representative examples (using the pseudonyms

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contained in our consultant's report) that illustrate many of the findings set forth above.
• Wyatt is a New Lisbon resident with a host of health care concerns that impact his ability to eat and drink. He is at risk of aspiration and suffers with gastroesophageal reflux. He was hospitalized last year after he vomited and the staff found blood in his emesis, a painful condition often associated with reflux. Moreover, Wyatt has suffered with significant weight loss in recent years. In spite of all this, there has been no documentation of review or evaluation by the New Lisbon speech language pathologist with regard to these issues since a swallow study was completed in February 1996. There was a very brief and very limited dysphagia update put in the notes a few weeks before our on-site tour in May 2002. This evaluation, however, did not address his significant positioning and alignment needs which put him at significant risk during meals, tooth brushing, and medication administration. During meals, we observed New Lisbon staff using inappropriate assistance techniques that increased his risk of aspiration. Specifically, the staff presented food to Wyatt too quickly before he could clear the previous bite and presented rapid sips of liquids without allowing him to breathe and clear before the next sip. In addition, the staff member was trying to help Wyatt eat and drink even though his body was in poor alignment. These practices can increase the risk of aspiration and choking for a resident like Wyatt who has significant swallowing problems. More troubling, we observed staff feeding Wyatt with his head in hyperextension which can exacerbate risk of choking and aspiration. We observed him audibly breathing, gurgling, and shaking during a meal.
• Woodrow is a New Lisbon resident with a variety of risk indicators including oral motor deficits, history of coughing and nasal regurgitation at mealtimes, difficulty maintaining proper alignment in his wheelchair, history of weight loss, gastroesophageal reflux, history of upper respiratory infection, and chronic constipation. In spite of all this, no mealtime evaluation had been completed for Woodrow until recently, despite a swallow study in 1990 recommending texture and fluid modifications to prevent aspiration risks. During mealtimes, we observed Woodrow coughing and regurgitating. These problems were exacerbated by staff placing his head in poor alignment for presentation of food and fluid, and the use of inappropriate assistance techniques. Staff training for his meal plan had not

occurred since 1996.

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• Marshall is a New Lisbon resident who has documented problems with swallowing, a long-standing history of weight loss, gastroesophageal reflux, pneumonia, and dysphagia. He was admitted to the hospital in April 2002 with a diagnosis of severe esophagitis and erosion and ulceration. Another hospitalization occurred about a week later for aspiration pneumonia and esophagitis. A swallow study was completed a few days later that recommended changes in his diet and gave instructions for small bites and single sips of fluid. However, there was no evidence that New Lisbon provided a follow-up speech language pathology review; there are no observations or evaluations regarding mealtimes noted; and no diet order change was documented or rationale provided for not modifying Marshall’s diet to pureed as recommended in the swallow study. He had been given a swallow study in 1996, but there was no further review of Marshall’s mealtime status until a dysphagia update a few weeks prior to our on-site visit. There was no indication of staff training throughout this time.

• Arnold is a New Lisbon resident who has significant and documented difficulty in swallowing. He is at risk of aspiration and choking and he has suffered significant ongoing weight loss in recent years. In spite of this, New Lisbon has failed to provide him with needed care and services to address his complex needs. A swallow study in 1996 concluded that he was at risk of aspiration and choking, yet the New Lisbon speech language pathologist failed to complete an assessment of Arnold for over six years. (Arnold’s team did not even implement the recommendations of the 1996 study.) The facility completed a four sentence dysphagia “update” about a month prior to our visit, but had not completed any other evaluations for Arnold for years. There had not been an assessment for Arnold by occupational therapy (“OT”) since 1985. Moreover, there was no physical therapy (“PT”) assessment or wheelchair assessment. There was no evidence of a seating assessment for Arnold in spite of the fact that he slumps in his chair and needs support during mealtimes. Moreover, the staff engage in dangerous feeding practices with Arnold. During meals, we observed staff offering inappropriately large bites of food at a rapid pace which places Arnold at further risk of aspiration and choking. Staff also allowed his head to be in hyperextension during meals which significantly increases his risk for choking and aspiration of food and fluids. Finally, New Lisbon failed to

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provide Arnold with sufficient supports with regard to his wheelchair as he consistently slid down his chair under his tray. As a result, it is not possible for staff to adequately align Arnold in his wheelchair for mealtimes and other activities.
D. Occupational and Physical Therapy and Communication Services
New Lisbon fails to provide its residents with adequate and appropriate occupational therapy, physical therapy, and communication services that meet the residents’ individualized needs. As a result, New Lisbon residents’ limbs may weaken and become thinner; their hands may become contractured; they may lose the ability to walk or ambulate; and, overall, their physical fitness may deteriorate which compromises a host of important daily functions such as breathing, digestion, and maintaining strength to fight off illness. If communication skills deteriorate or are not developed, residents cannot convey basic needs and wants and this may have an adverse impact on their health and well-being. In addition, as noted above, New Lisbon’s failure to provide residents with adequate communication training and supports results in residents not receiving adequate habilitation in order to increase their independence.
New Lisbon fails to provide many residents with current evaluations with regard to OT, PT, or communication needs. In fact, some residents have never been given an OT, PT or communication evaluation at New Lisbon. There are inadequate and too few OT services offered to residents at this time. The PT services offered are also inadequate and they are reactive, not proactive, as they are somewhat limited by physician referral to address acute medical concerns or rehabilitation. Even when OT and PT services are needed at New Lisbon, there is no adequate assessment completed. Moreover, there is no thorough follow-up review of the person’s current status or changes noted since the previous assessment. There is little evidence that important information is analyzed at any stage of the process to determine a person’s strengths, potential for enhanced skill performance, or new skill acquisition. When recommendations for therapy intervention are made, they generally are focused on maintenance of current status rather than attaining functional outcomes for the residents. Services provided by the New Lisbon speech-language pathologists are focused primarily on mealtime supports, not on providing communication supports. Even in the few cases where communication services are provided, there is no assessment to serve as a foundation to identify strengths, potentials

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and functional outcomes for the residents. With regard to all of these disciplines, it remains unclear if the New Lisbon therapy staff are unable to recognize potentials and needs for residents or whether they simply do not have time, due to low staffing levels, to assess and implement supports appropriately for residents to meet their individualized needs.
E. Oral Hygiene
A number of residents have unacceptable oral hygiene as reported in their annual dental examination. There is little evidence that the facility has provided an assessment by OT or PT and/or the speech language pathologist for the development of oral hygiene plans to address safety, positioning and alignment and other strategies to improve oral hygiene status.
VI. SERVING PERSONS IN THE MOST INTEGRATED SETTING APPROPRIATE TO THEIR NEEDS
The Americans with Disabilities Act (“ADA”) provides that: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The regulations promulgated pursuant to the ADA provide: “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (the integration regulation). The preamble to the regulations defines “the most integrated setting” to mean a setting “that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A at 450.
In construing the anti-discrimination provision contained within the public services portion (Title II) of the ADA, the Supreme Court held that “[u]njustified [institutional] isolation ... is properly regarded as discrimination based on disability.” Olmstead v. L.C., 527 U.S. 581, 597, 600 (1999). Specifically, the Court established that States are required to provide community-based treatment for persons with developmental disabilities when the State’s treatment professionals have determined that community placement is appropriate, provided that the transfer is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 602,

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607. As set forth below, the State is failing to comply with the ADA with regard to placing persons now living in New Lisbon in the most integrated setting appropriate to their individualized needs.
The census of New Lisbon has remained fairly constant over the past eight years. In 1994 and 1996, the census was 713 and in 1998, it was 653. New Lisbon reports that its census increased by three dozen people to 690 residents the next year and then declined marginally to 671 in 2001. During this eight year period, New Lisbon has placed in the community an average of 31 persons per year. However, also during this period, it has admitted to the facility an average of 33 persons per year. Deaths and transfers to other State facilities account for other yearly changes.
New Lisbon's treating professionals have identified approximately 200 residents who are not currently living in the most integrated setting appropriate to their needs. In an effort to meet the needs of these residents, the State instituted and funded the Transition Initiative, a program designed to move residents into more integrated, community-based settings. In fiscal year 2001,6 New Lisbon conducted a lottery and, from the approximately 200 eligible residents, selected 45 for inclusion in the Transition Initiative. In fiscal year 2002, a second lottery was held and another 55 residents were selected for inclusion in the Transition Initiative. Thus, in fiscal year 2001 and 2002, New Lisbon identified 100 residents that it intended to prioritize for placement in the community. At the time of our first tour in May 2002, however, only 15 of the 100 residents who were selected for inclusion in the 2001 and 2002 Transition Initiative had been placed in the community (11 from fiscal year 2001 and 4 from fiscal year 2002). The pace with which New Lisbon places residents in the community is inadequate.
One reason that might be contributing to New Lisbon's difficulty with placing residents in the community is the low amount of funding available for each resident. According to documentation from New Lisbon, the maximum amount of money a resident can receive for community services is $60,000 per year. The rate presently paid for services at the New Lisbon facility is approximately $100,000 per year. Thus, it appears that much less funding is available to residents in the community than the State makes available to
6 The State of New Jersey's fiscal year runs from July 1 to June 30.

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residents living at New Lisbon.
The problems with transitioning residents to the community extend beyond the slow pace of placement for residents in the Transition Initiative. As noted above, New Lisbon's treating professionals have identified approximately 200 residents who are not currently living in the most integrated setting. Yet, New Lisbon is currently seeking community placement for only 100 of these residents (the residents in the Transition Initiative). It does not appear that New Lisbon is actively seeking community placements for the other approximately 100 residents.
Finally, we find the process for identifying residents who are appropriate for community placements inadequate. For example, New Lisbon’s treating professionals routinely fail to assess adequately the appropriateness of residents’ placement at New Lisbon; fail to identify barriers to placement in the most integrated setting and/or include action plans to address such barriers; fail to ensure that residents and their families are informed of their right to live in the community; and fail to provide education and support to the families about the community options available or that could be created.
VII. MINIMAL REMEDIAL MEASURES
To remedy the identified deficiencies and protect the constitutional and statutory rights of New Lisbon residents, New Jersey should implement promptly, at a minimum, the remedial measures set forth below:
A. Protection from Harm
1. New Lisbon shall ensure that its residents are adequately supervised by trained staff and kept reasonably safe and protected from harm and risk of harm.
2. New Lisbon shall develop and implement adequate policies and procedures with regard to incident reporting and the conduct of investigations of more serious incidents. The facility shall fully train staff and investigators in how to implement these policies and procedures. The facility shall also track and analyze trends of incidents and injuries so as to help prevent such events from occurring in the future. New Lisbon shall provide for independent investigations. Investigation reports shall include systemic recommendations to prevent future

occurrence of injury.

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3. New Lisbon shall impose discipline that is appropriate for the employees involved in substantiated cases of abuse or neglect.

B. Psychological and Behavioral Services and Restraints

1. New Lisbon shall provide residents with the psychological and behavioral services needed to meet the residents’ ongoing needs. To this end, the facility shall take the following steps:

(a) New Lisbon shall provide its residents who have behavior problems with an adequate behavioral assessment in order to determine the appropriate treatments and interventions for each person. This assessment shall be interdisciplinary and shall incorporate health and other unaddressed conditions that may contribute to a person’s behavior.

(b) New Lisbon shall provide an adequate array of comprehensive individualized habilitation, training and behavior programs for the residents developed by qualified professionals consistent with accepted professional standards to reduce or eliminate risks to personal safety, unreasonable use of bodily restraints, prevent regression, and facilitate the growth, development, and independence of every New Lisbon resident.

(c) New Lisbon shall train the appropriate staff how to implement the behavior programs and ensure that they are implemented consistently and effectively. This shall include recording appropriate behavioral data and notes with regard to the person’s progress on the program.

(d) The facility shall continually monitor the residents’ progress on the programs and revise the programs when necessary to ensure that their behavioral needs are being met. This shall involve ongoing training for staff whenever a revision is required.

2. New Lisbon shall ensure that restraints are never used as punishment, in lieu of training programs, or for the convenience of staff. To this end, the facility shall take the following

steps:

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(a) New Lisbon shall implement a protocol that places the appropriate limits on the use of four and five-point restraints as well as the routine use of emergency chemical and unplanned physical or mechanical restraints.

(b) For those individuals subjected to chronic use of restraints associated with difficult behavior problems, New Lisbon shall obtain outside expertise to help the facility address the persons’ behavior problems in an attempt to reduce both the behaviors and the use of restraint.

(c) New Lisbon shall carefully track the use of chemical restraints and restraints used for “medical” purposes to ensure that reductions in behavioral mechanical restraints are not replaced with these kinds of restraints.

(d) The facility shall fully document and track the use of personal control and seek to significantly reduce its use among residents.

(e) New Lisbon shall work to place appropriate limits on the use of large padded helmets. If any helmets are used, the facility shall develop and implement a protocol that requires the helmets to be the least intrusive possible suited to each resident.

C. Psychiatric Care

1. New Lisbon shall provide adequate psychiatric services consistent with accepted professional standards to residents who need such services. To this end, New Lisbon shall take the following steps:

(a) The facility shall ensure that each resident with mental illness at New Lisbon is provided with a new comprehensive psychiatric assessment, a differential DSM-IV diagnosis, appropriate psychiatric treatment including appropriate medication that fits the diagnosis, and regular and ongoing monitoring of the psychiatric treatment to ensure that it is meeting the needs of each person. The psychiatrist shall provide new assessments and/or revisions to any aspect of the treatment regimen whenever appropriate. Psychiatric services shall be developed and

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implemented in close collaboration with the facility’s psychologists so as to provide coordinated behavioral care.
(b) New Lisbon shall procure adequate psychiatry hours to meet the needs of the residents.
(c) Psychotropic medication shall only be used in accordance with accepted professional standards and shall not be used as punishment, in lieu of a training program, for behavior control, in lieu of a psychiatric or neuropsychiatric diagnosis, or for the convenience of staff. New Lisbon shall ensure that no resident receives psychotropic medication without an accompanying behavior program.
(d) The facility shall improve the quality of behavioral and other data provided to psychiatrists to better ensure adequate psychiatric treatment for each person.
D. Habilitation
1. New Lisbon shall provide its residents with adequate habilitation services and supports that meet current professional standards. New Lisbon shall ensure that its residents receive meaningful training daily. To this end, the facility shall take the following steps:
(a) The facility's interdisciplinary teams shall identify individuals’ needs, preferences and interests and develop strategies to address these needs and preferences in an integrated fashion. The facility shall ensure that this is set forth in a comprehensive interdisciplinary plan for the provision of training, services and supports.
(b) New Lisbon shall ensure that staff are trained in how to implement the written plans and that they are implemented properly.
(c) New Lisbon shall provide an assessment of all residents to ensure that they are receiving the vocational and/or day programming services that meet their individualized needs.
(d) New Lisbon shall ensure that there is sufficient transportation to enable residents to work off-campus or

- 32 -
attend off-campus programming.
E. Health Care
1. New Lisbon shall provide adequate medical and dental care in accordance with generally accepted standards. To this end, the facility shall take the following steps:
(a) New Lisbon shall provide adequate and appropriate routine, chronic, and emergency seizure management to all individuals with epilepsy at New Lisbon in accordance with accepted professional standards of care.
(b) The facility shall place an emphasis on providing adequate assessments and treatments for those residents with high-risk conditions such as risk for bowel obstructions.
(c) The facility shall employ sufficient physicians to meet residents’ needs.
F. Nutritional and Physical Management and Therapy Services
1. New Lisbon shall ensure that its residents receive adequate nutritional and physical management services, and that professionals in these disciplines perform their responsibilities in keeping with accepted professional standards of care by adequately identifying nutritional and physical management problems, notifying physicians of such problems when appropriate, and monitoring and intervening to ameliorate such problems. In particular, New Lisbon shall develop and implement policies and protocols to provide each resident with adequate and appropriate nutritional and physical management in accordance with accepted standards of care. To this end, New Lisbon shall take the following steps:
(a) Identify each resident who has a nutritional management problem, including dysphagia, difficulty swallowing, chewing, or retaining, food and/or liquids.
(b) Have an interdisciplinary team of oral motor specialists comprehensively assess each such resident to identify the causes for the nutritional management problems.

- 33 -
(c) Take necessary steps to ameliorate the problems, including providing sufficient mealtime supports to meet residents’ needs.
(d) Develop and implement a system to regularly monitor the progress of the residents with nutritional management difficulties to ensure that staff is continually taking whatever assessment, diagnostic, supervision, and treatment steps are necessary to ameliorate the residents' difficulties.
2. New Lisbon shall provide each resident with adequate and appropriate physical and occupational therapy services and communication services in accordance with accepted standards of care. This shall include an adequate and appropriate assessment, analysis, therapy plan, implementation of the plan and ongoing monitoring with revision of the plan and its implementation whenever necessary. The facility shall ensure that staff employ proper handling/transfer techniques for residents.
G. Placement in the Most Integrated Setting
1. The State shall provide services to individuals with developmental disabilities in the most integrated setting appropriate to their needs. To this end, the State shall:
(a) Develop a comprehensive community placement plan to provide community residences and other services to meet the individual needs of the residents already identified and to be identified as eligible for community placement; establish a schedule to place such individuals in community-based programs.
(b) Conduct an interdisciplinary assessment of each resident to determine whether the resident is in the most integrated setting appropriate to his/her needs. Assessments of new admissions should be done at admission; assessments of individuals who remain at the facility for extended periods of time should be periodically updated.
(c) If it is determined that a more integrated setting would appropriately meet the individual's needs, promptly develop and implement, with appropriate consent, a transition plan that specifies actions necessary to ensure

- 34 -
safe, successful transition from the facility to a more integrated setting, the names and positions of those responsible for these actions, and corresponding time frames.
(d) Ensure that consent decisions are fully informed.
(e) Conduct monitoring of community-based programs to ensure program adequacy and the full implementation of each individual's habilitation plan.
* * *
As stated earlier, we hope to be able to continue working with the State in an amicable and cooperative fashion to resolve our outstanding concerns with regard to New Lisbon. In order to assist you in this regard, we will forward our expert consultants’ reports under separate cover. Although their reports are their work – and do not necessarily represent the official conclusions of the Department of Justice – their observations, analyses, and recommendations provide further elaboration of the relevant concerns and offer practical assistance in addressing them. We hope that you will give this information careful consideration and that it will assist in your efforts at prompt remediation.
In the unexpected event that the parties are unable to reach a resolution regarding our concerns, we are obligated to advise you that the Attorney General may initiate a lawsuit pursuant to CRIPA, to correct deficiencies or to otherwise protect the rights of New Lisbon residents, 49 days after the receipt of this letter. 42 U.S.C. § 1997b(a)(1). Accordingly, we will soon contact State officials to discuss in more detail the measures that the State must take to address the deficiencies identified herein.
Sincerely,

cc: The Honorable David Samson Attorney General State of New Jersey

/s/ Ralph F. Boyd
Ralph F. Boyd, Jr. Assistant Attorney General

- 35 -
Gwendolyn L. Harris Commissioner Department of Human Services State of New Jersey
Jeffrey Schroeder Acting Chief Executive Officer New Lisbon Developmental Center
Christopher J. Christie, Esq. United States Attorney District of New Jersey

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

r.c·CEIYEfJ -CLfR~~ U.S. OISTEICT COL:\T

2 A 3 ,L,-W,1' ~:UI''!- -

C,·• c..J

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF NEW JERSEY;

)

James E. McGreevey, Governor of )

the State of New Jersey;

)

James Davy, Commissioner,

)

Department of Human Services;

)

James W. Smith, Jr., Director,

)

Division of Developmental

)

Disabilities;

)

Jeffrey Schroeder, Chief

)

Executive Officer,

)

New Lisbon Developmental Center, )

)

___________D_e_f_en_d_a_nt_s._______

) )
)

COMPLAINT

Civ. No. 04-

PLAINTIFF, THE UNITED STATES OF AMERICA, by its undersigned
. attorneys, hereby alleges upon information and belief: 1. The Attorney General files this complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act, 42 u.s.c. § 1997, to enjoin the named Defendants from depriving residents housed in the New Lisbon Developmental Center of rights, privileges, or immunities secured and protected by the Constitution and laws of the United states.

-2 -
JURISDICTION AND VENUE
2. This Court has jurisdiction over this action under
28 u.s.c. §§ 1331 and 1345.
3. The United States is authorized to initiate.this action
pursuant to 42 U.S.C. § 1997a.
4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the District of New Jersey is proper pursuant
to 28 u.s.c. § 1391.
DEFENDANTS
6. Defendant STATE OF NEW JERSEY ("State 11 ) owns and operates New Lisbon Developmental Center ( 11 New Lisbon"), a
facility housing individuals with developmental disabilities. 7. Defendant JAMES E. McGREEVEY is the Governor of the
State of New Jersey, and, in this capacity, heads the Executive Branch of the State's government and, among other duties, reviews and approves budget requests submitted by Executive Branch agencies regarding New Lisbon.
B. Defendant JAMES DAVY is the Commissioner of the Department of Human Services and, in this capacity, exercises administrative control of, and responsibility for, New Lisbon.
9. Defendant JAMES W. SMITH, JR. is the Director of the

-3-
Department of Developmental Disabilities, and in this capacity exercises administrative control of, and responsibility for, New Lisbon.
10. Defendant JEFFREY SCHROEDER is the Chief Executive Officer of New Lisbon and is responsible for the administration and day-to-day operations of New Lisbon.
11. The individual Defendants named in paragraphs 7, 8, 9, and 10 abOve are officers of the Executive Branch of the State of
New Jersey and are sued in their official capacities. 12. Defendants are legally responsible, in whole or in
part, for the operation of and conditions at New Lisbon, as well as for the care and treatment of persons residing at New Lisbon.
13. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 14. New Lisbon is an institution as that term is defined in 42 U.S.C. §§ 1997(1) (A), (1) (B) (i), and (1) (B) (v). 15. Persons residing at New Lisbon are individuals with developmental disabilities, and some of the individuals also have mental illness. 16. Persons residing at New Lisbon are 11 qualified individual[s] with a disability 11 under the Americans with
Disabilities Act of 1990, 42 u.s.c. §§ 12101, 12131.
17. The State of New Jersey and the New Jersey Department

4 -
of Human Services are 11 public entities 11 under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131.
18. Defendants have failed and are continuing to fail to provide reasonably safe conditions and to ensure the reasonable safety and personal security of New Lisbon residents.
19. Defendants have failed and are continuing to fail to provide New Lisbon residents with that level of training, including behavioral and related. training programs, necessary to protect the residents• liberty interests, including their right to t·raining sufficient to ensure their safety and freedom from undue or unreasonable restraint.
20. Defendants have failed and are continuing to fail to ensure that residents of New Lisbon are free from undue or unreasonable restraint.
21. Defendants have failed and are continuing to fail to ensure that restraints are administered to residents by appropriately qualified professionals in keeping with accepted professional standards, and'are not used as punishment, in lieu of treatment, or for the convenience of staff. Defendants have failed and are continuing to fail to supervise adequately residents in restraints to protect them from harm.
22. Defendants have failed and are continuing to fail to provide adequate health care to New Lisbon residents.
23. Defendants have failed and are continuing to fail to

·.
-5-
provide adequate nutritional management and related services to New Lisbon residents.
24. Defendants have failed and are continuing to fail to provide adequate therapy services, including physical therapy, occupational therapy, speech therapy, and other forms of therapy, physical management, and related health care services, to New Lisbon residents.
25. Defendants have failed.and are continuing to fail to provide adequate psychiatric care and related services to New Lisbon residents with mental illness.
26. Defendants have failed and are continuing tO fail to provide a sufficient number of adequately trained staff to render the essential basic care, health care, related services, treatment, and training outlined above in paragraphs 18 through 25 as required by the laws and Constitution of the United States.
27. Defendants have failed and are continuing to fail to ensure that citizens living at New Lisbon are adequately evaluated for placement in the most integrated setting; that those individual residents whom professionals determine are appropriate for community placement and who do not oppose such placement are actually placed in the community; and that the institutions' residents are served in the most integrated setting appropriate to each resident 1 s individual needs.

6 -
VIOLATIONS ALLEGED 28. The acts and omissions alleged in paragraphs 14 through 27 constitute a pattern or practice and deprive New Lisbon residents of their rights, privileges or immunities secured or protected by federal law and the Fourteenth Amendment to the Constitution of· the United States. 29. Due to the acts and omissions alleged in paragraphs 16, 17, and 27, Defendants have failed and are continuing to fail to meet the requirements of the Americans with Disabilities Act of
1990, 42 u.s.c. §§ 12101 et ~. and the regulations promulgated pursuant thereto, by excluding the citizens living at' the
institutions, by reason of their disability, from participation in or by denying them the benefits of services, programs, or activities, or by subjecting them to discrimination, and by failing to administer services, programs, and activities in the most integrated setting appropriate to their needs.
30. Unless restrained by this Court, Defendants will continue to engage in the cbnduct and practices set forth in paragraphs 14 through 27 that deprive residents of New Lisbon of rights, privileges, or immunities secured or protected by the laws and Constitution of the United States.
PRAYER FOR RELIEF
31. The Attorney General is authorized under 42 u.s.c.
§ 1997a to seek equitable relief.

/s/ John Ashcroft

/s/ Christopher J. Christie

/s/ R. Alexander Acosta

/s/ Bradley J. Schlozman
/s/ Shanetta Y. Cutlar
/s/ Judy C. Preston /s/ Richard J. Farano
/s/ Shennie Patel /s/ Jeffrey J. Resetarits

/s/ John Ashcroft

 
 •

UNITED STATES DISTRICT COURT

u,HsE. CDEISIVTEHOic-Cr Lc[oRu!;',:,,

FOR THE DISTRICT OF NEW JERSEY

;;;~ JUL -2 A g: SIJ

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

V,

)

)

THE STATE OF NEW JERSEY;

)

James E. McGreevey, Governor of

)

the State ofNew Jersey;

)

James Davy, Connnissioner,

)

Department of Human Services;

)

James W. Smith, Jr.,__Director,

)

Division of Developmental Disabilities;

)

Jeffrey Schroeder, Chief

)

Executive Ofijcer,

)

New Lisbon Developmental Center,

)

)

Defendants,

)

)

Civ, No, 04-

SETTLEMENT AGREEMENT A. General Provisions

I.

This Settlement AgreemCnt (the "Agreement") is entered into between the United

States and the State of New Jersey; Department of Human Services, Division of

Developmental Disabilities; and New Lisbon Developmental Center ("the State").

2.

The Agreement resolves the investigation conducted by the United States Department

of Justice ("DOT') at the New Lisbon Developmental Center ("New Lisbon")

pursuant to the Civil Rights oflnstitutionalized Persons Act ("CRIPA"), 42 U,S,C,

•

•
§ 1997. The Agreement addresses the corrective measures set forth by DOJ in its April 8, 2003 letter to the State. This Agreement does not serve as an admission by
the State that corrective measures ~e necessary to meet the constitutional _and statutory rights of the residents of New Lisbon or any other developmental center operated by the State.

3.

In confonnity with CRIPA, this Agreement represents a voluntary effort by the State

to meet the concerns raised by DOJ's investigation. See 42 U.S. C. §1997b(a)(2)(B)

· and §1997g.

4.

Pursuant to 42 U.S. C. §1997b(a)(2)(B) and§ 1997g, the United States agrees it shall

assist' the State in identifying source(s) of federal funding to implement the entirCty

of the remedial measures set forth in Section D of this Agreemerit.

5. Nothing in this Agreement shall be construed as an acknowledgment, an admission,

or evidence oflia~ility ofthe State under CRIPA, the Constitution or federal or state

law and this Agreement may not be used as evidence of liability in this or any other

civil or criminal proceeding.

6.

The signatures belOw of officials representing the United States and the State signify

that these parties have giyen their final approval to this Agreement.

7.

This Agreement is enforceable only by the parties and is binding upon the parties, by

and through their officials, agents, employees, and successors. No person or entity

is intended to be a third party beneficiary of the provisions of this Agreement for

purposes of any civil, criminal, or administrative action, and accordingly, no person

or entity may assert any claim or right as a beneficiary or protected class under this

2

Agreement in any civil, criminal, or administrative action. Similarly, this Agreement does not authorize, nor shall it be construed to authorize, access to State documents by persons or entities not a party to t~is Agreement. 8. Nothing in this Agreement is intended -to alter the existing collective bargaining agreements between the State and employee bargaining units or impair the collective bargaining rights of employees in those units under state and local law. 9. This Agreement shall constitute the entire integrated Agreement ofthC parties. No prior contemporaneous communications, oral or written, or prior drafts shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding. 10. All parties shall bear their own costs, including attorney feeS, in this and any subsequent proceedings. 11. The parties agree it is in their mutual interests to avoid litigation. To that end, the parties have resolved their differences by agreeing upon provisions contained in this Agreement. The parties agree that resolution of this case is in the best interests of New LisbonresidC:nts. Now, therefore, pursuant to Fed. R. Civ. P. 41(a), the parties hereby agree to file in the ,United States District Court for the District ofNew Jersey, the Vicinage of Trenton, this Agreement, together with a Complaint and a notice to conditionally dismiss the Complaint under the conditions set forth in this Agreement. The parties further agree that this case will remain on the Court's inactive docket, during the term of and subject to this Agreement, and that, from time to time, the
3

.
Court may hold, at the request of either party, status conferences to informally resolve disputes between the parties, if any, until this Agreement terminates. 12. This Agreement shall take effect on the day it is filed with the United States District Court, Vicinage ofTrenton. B. Definitions 1. "Sectiop" shall mean one ofthe portions ofthis Agreement, including but not limited to the fo11owing: Protection from Harm; Psychological and Behavioial Services; Restraints; Psychiatric Care; Habilitation; Health Care; Nutritional and Physical Management and Therapy Senrices; and Community Placement. 2. "Substantial Compliance" shall mean ·that the State is complying with the material requirements of section D and that substantial compliance has occurred for a period of six months. Isolated incidents of non-compliance shall not preclude a finding of substantial compliance. In detennining whether the State has substantially complied with the sections ofthis Agreement, the Monitor and the United States shall take into account the fact that CRIPA requires patterns or practices of resistance by the State to the fuJI enjoymellt of the rights, privileges, or immunities secured or protected by the Constitution or laws qfthe United States of the residents of New Lisbon. 3. Any reference in this Agreement to "New Lisbon" taking certain action implies that all of the Defendants are responsible for New Lisbon's compliance. 4. In all instances in this Agreement in which the State agrees to provide care, treatment and services in keeping with "professional judgment" it shall mean that the State will provide care, treatment and services consistent with "professional judgment" as
4

defined by Youngberg v. Romeo, 457 U.S. 307 (1982). To the extent any provision ofthis Agreement relating to the provision ofcare, treatment or services requires that
any action be taken or thing be done t~ a level of quality or in an amount that is .not otherwise specified or quantified in the Agreem~nt, that provision shall be interpreted consistent with "professional judgment" as enunciated in Youngberg. In particular, all qualifying terms used in this Agreement, including but not limited to
"individualized needs," "adequate," "necessary" or "as needed" shall be interpreted
· to mean that level, quality, affiou1_1t or timeliness of care, treatment or services that is consistent with "professional judgment" as enunciated in Youngberg.
5. "Significant incidents" shall include all instances of alleged, suspected Or substantiated abuse, neglect, moderate or maJOT injury, elopement, theft,
hospitalization due to an injury, or unexpected death.
C. Voluntary Measures Adopted and Implemented by the State
I. Following an investigation in May and June 2002, the Attorney General ofthe United
States, by and through the Assistant Attorney General, Civil Rights Division,
infonned the State..on AprilS, 2003, that the Attorney General had reasonable cause
to believe that persons re§iding in or confined to New Lisbon were being subjected
to conditions that deprived them of their legal rights secured by the United States Constitution and federal law.
5

2. The State reports it has:

a.

reduced the incidents ofassaults by a resident towards another resident from

the four quarters preceding the DOl's June 2002 investigation to the six

quarters following the DOJ investigation by 48 percent;

b. reduced the incidents of self-inflicted injuries by residents from the four

.quarters preceding the DOJ's June 2002 investigation to the six quarters

fo11owing the DOJ investigation by 54 percent;

c. established its own Incident Response Unit (IRU) as an independent investigative unit that is responsible for conducting all significant incident · investigations. All of the IRU investigative staff are and will be trained by certified trainers and certified in conducting si~ificant incident investigations;

d. trained its current psychologists in behavior interventions that comport with

accepted professional judgment, and is continuing its training efforts;

e.

reduced the use ofmechanical restraints from the four quarters preceding the

DOl's June 2002 investigation to the six quarters following the DOJ's

investigation by 83 percent;

f.

has decreased the use of large custoni-padded helmets, to one instances as

part of a behavior plan and to two instances for protection from seizure

disorder;

6

g. has increased its staffing a1location to three, full-time psychiatrists and two part-time psychiatrists to provide psychiatric treatment to the New Lisbon
residents~

h.

has provided a psychiatric consultation for each resident with mental illness

within the last year and will continue to do so at least annually unless more

frequent follow up is clinica1ly appropriate;

1.

has reduced the number of residents on more than two seizure medications

to 7 residents;

J.

has set standards for maintenance ofclient records, to ensure that it maintains

an adequate, comprehensive record for each resident that comports with

accepted professionaljudgment and includes current infonnation with respect

to the resident's care, medical treatment, training, protection, services, and

supports and has implemented a system for making such records available in

each cottage to ensure that staff utilize such records in making ongoing

decisions for each resident; and

k.

has increased its rate ofconnnunity placements from New Lisbon, by placing

40 former residen\5 into community placements in fiscal year 2003; and has

placed or is in the process of placing 22 residents in community placements

in fiscal year 2004.

3. The United States takes no position on the validity of the foregoing State assertions as the United States has not investigated the truth of the statements. The United States acknowledges the State's extensive cooperation and assistance given to the

7

United States while it conducted its investigation. In light ofthe State's cooperation, the parties agree to resolve this matter by the terms set forth herein. D.· Efforts to Be Undertaken by the State In order to achieve compliance with this Agreement, New Lisbon shall undertake the following: 1. Protection from Harm a. New Lisbon shall comply with the standards set forth in Youngberg, and
therefore, shall provide a reasonably safe and humane environment for all New Lisbon residents. b. New Lisbon shall continue to ensure that all resident incidents and injuries are timely and appropriately documented and are available for review in a central location. c. New Lisbon shall continue to ensure appropriate and timely administrative review of all significant incidents. The administrative review shaH identify individual and systemic issues raised by the significant incident, make recommeridations to address the individual and systemic issues, and implement the rec;ornmendation to prevent future occurrences. d. New Lisbon shall continue to implement adequate policies and procedures with regard to conducting investigations of significant incidents and preparing adequate written reports.
8

e. New Lisbon shall adequately train staff and independent investigators on how

to implement the policies and procedures regarding conducting investigations

of significant incidents and pr~paring adequate written reports.

f.

New Lisbon shall also continue to develop and implement a quality assurance

program which tracks and analyzes trends of incidents and injuries so as to

_help prevent such incidents fi:om occurring in the future. New Lisbon sha11

timely implement adequate and appropriate remedial measures to address

patterns or trends that are identified through the quality assurance program

g. New Lisbon shall impose discipline that is appropriate for the employees

involved in substantiated cases of abuse or neglect, for employees who fail

to report abuse or neglect, and for employees who provide materially false

infonnation during an investigation. The United States recognizes that the

ultimate determination as to the appropriateness of any such discipline lies

not with New Lisbon but is within the purview of the Merit System Board

within the New Jersey Department of Personnel. Accordingly any discipline

sought to be imposed by New Lisbon is subject to the appeal rights of

employees as esta'f?lished in the statutes, regulations and case law governing

the Merit System Board and further that the ability to discipline and take

other action as deemed appropriate may be subject to the rights of New

Lisbon's employees as established by union contracts.

9

2. Psychological and Behavioral Services

a.

New Lisbon shall provide its residents who have behavioral problems with

an adequate behavioral asses~ment in order to detennine the appropriate

treatments and intervention for each person. This assessment sha11 be

interdisciplinary. comport with professional judgment, and shall incorporate

any
'•

conditions

that

may

contribute

to

a

person's

behavior.

b.

New Lisbon shall provide adequate and appropriate training to the

appropriate staff as to ho":' to implement behavior programs and monitor that

implementation. New Lisbon shaH certifY that each staff member receiving

such training has demonstrated the ability to implement the behaviOr

program. The monitoring shall include the recordlllg of appropriate

behavioral data with regard to the person's progress in the program

c.

New Lisbon shall implement the behavior plan for each resident and on an

ongoing basis monitor the residents' progress in the programs and revise the

programs when necessary to ensure that their behavioral needs are being met.

This step sball also involve ongoing training for staff whenever a revision is

required.

3. Restraints

a.

New Lisbon shall ensure that all mechanical, physical, and chemical

restraints are used only pursuant to professional judgment, and are not used

in lieu of adequate and appropriate behavior programs and interventions.

10

" 4.

b. New Lisbon will continue to review each use of mechanical, physical, and chemical restraint and determine whether the restraint could have been

avoided. During the review, New Lisbon will determine whether staff are

implementing the behavior program adequately and appropriately.

c.

New Lisbon shall monitor and track the use of all mechanical, physical, and

.,~hemical restraints. New Lisbon shall ensure that any reduction in the use of

mechanical restraints is only replaced with the use of chemical restraints if

the chemical restraints are used pursuant to professional judgment.

d. New Lisbon shall fully document and track the use of personal control and

implement strategies to limit the use of personal control to those that are

required by professional judgment.

e.

New Lisbon shall ensure that all helmets are the least intrusive possible suited

to meet the individualized needs ofthe resident. The requirements of(a), (b),

and (c) of this Section concerning restraints are not applicable to helmets

ordered by physicians as safety devices, however, New Lisbon agrees that the

use of all helmets shall be tracked.

Psychiatric Care

a.

New Lisbon shall ensure that each resident at New Lisbon with mental illness

is provided with a psychiatric assessment in accordance with accepted

professional judgment.

b. New Lisbon shall ensure each resident receiving psychotropic medication is

assessed by a qualified psychiatrist at least annually and other residents with

11

a mental illness will be assessed as clinically indicated in accordance with accepted professional judgment.

c.

Psychotropic medication sha~l be used only in accordance with accepted

professional judgment. New Lisbon shall ensure that no resident receives

psychotropic medication without an accompanying behavior program unless

it is documented by the appropriate professionals that the resident has not

benefitted from a behavior program.

d. New Lisbon shall provide adequate behavioral and other data to psychiatrists to better facilitate adequate and appropriate psychiatric treatment for each person.

e.

Psychiatric serv1ces shall be developed and implemented in close

collaboration with New Lisbon's psychologists so as to provide coordinated

behavioral care.

f

New Lisbon shall have a qualified professional monitor the effectiveness of

all psychiatric treatments including the use of psychotropic medications on

a quarterlY basis and revise the treatment regimen in a timely manner

whenever appropr;iate.

5. Habilitation

a.

New Lisbon's interdisciplinary teams shall identify the individual needs,

preferences and interests of each resident and develop strategies to address

these needs and preferences in an integrated fashion. Based on this

information, New Lisbon shall develop and implement a comprehensive

12

interdisciplinary plan for the provision of training, services and supports to meet the needs of the residents. b. New Lisbon shan provide adequate and appropriate training to staff on how to implement the plans and monitor implementation of the plans. New Lisbon shall certify that each staff member receiving- such training has .demonstrated the ability to implement the plan. New Lisbon shall continue to implement an adequate system to revise the residents' plans, whenever necessary, to meet the needs of each resident. c. New Lisbon shall provide an adequate and appropriate assessment of all residents' vocational and/or day programming needs. Reconnnendati6ns from the assessment will be incorporated into each resident's plan. d. New Lisbon shall provide residents with day programming or vocation/employment opportunities to meet the residents' individualized needs to the extent that these opportunities can be reasonably developed in and around New Lisbon. e. New Lisbon shall provide individualized habilitation and develop additional training and beh3;vior programs for the residents. 6. Health Care a. New Lisbon shall provide routine, chronic, and emergency seizure management to all individuals with a seizure disorder at New Lisbon in accordance with accepted professional judgment.
13

b.

New Lisbon shall continue to ensure that all residents with seizure disorders

have assessments, implemented plans of care, and ongoing monitoring to

meet the residents' individualized needs in accordance with accepted

professional judgment.

c.

New Lisbon shall place an emphasis on providing assessments and treatments

for those residents with high-risk conditions such as risk for bowel

obstructions in accordance with accepted professional judgment.

. d. New Lisbon will provide ongoing follow-up and monitoring ofthe treatment

plan to detennine if it is working as intended and revise the plan as needed.

e.

New Lisbon shall continue to employ sufficient physicians to meet residents'

needs in accordance with accepted professional judgment.

7. Nutritional and Physical Management and Therapy Services

a.

New Lisbon shall implement policies and_protocols to provide each resident

with adequate and appropriate nutritional and physical management in

accordance with accepted standards of care.

b.

New LisbOn shall continue to identify each resident who has a nutritional

management prob~em, including dysphagia, difficulty swallowing, chewing,

or retaining food and/or liquids.

c.

New Lisbon shall continue to have an interdisciplinary team comprehensively

assess each such resident's nutritional management needs.

d.

New Lisbon shall continue to address adequately each resident's nutritional

management needs including providing sufficient mealtime supports.

14

e.

New Lisbon shall develop and implement a system to regularly monitor the

progress of residents with nutritional management difficulties to ensure that

staff is implementing nutritional management plans correctly and that plans

are modified as necessary, in a timely manner and in accordance with

accepted professional judgment.

f.

N·. ew Lisbon shall continue to provide each resident with adequate and

appropriate physical and occupational therapy services, coinmunication

services and physical management in accordance with accepted professional

judgment. New Lisbon shall provide adequate and appropriate training to

staff to utilize safe and proper handling/transfer techniques for residents.

New Lisbon shaH certify that each staff member receiving such training has

demonstrated the ability to implement the techniques. New Lisbon shall

develop and implement an appropriate system to monitor the staff

implementation of the techniques.

8. Community PJacement

a.

In accordllnce with Title II of the ADA, 42 U.S.C. § 12132, and

implementing reg~lation 28 C.F.R § 35.130, the State shall ensnre that each

New Lisbon resident is served in the most integrated setting appropriate to

meet each resident's needs.

b.

To that end, the State shall comply with Olmstead v. L.C., 527 U.S. 581

(1999) and Third Circuit case law, and shall provide community-based

treatment for New Lisbon residents when:

15

1.

the State's treatment professionals have determined that community

placement is appropriate based on a reasonable assessment of each

resident;

u. the transfer from institutional care to a less restrictive setting is not opposed by the affected resident; and

nt. the placement can be reasonably accommodated, taking into account

the State's resources as defined by Olmstead and Third Circuit case

law.

E. Compliance Monitor

I. Elin Howe shall be appointed as the Compliance Monitor ("Monitor") who shall, ·as set forth below, monitor and report on the State's substantial cOmpliance or noncompliance with all provisions in Part D of this Agreement. The Monitor shall be pennitted to utilize the services of up to four independent consultants in any area related to the provisions in Part D of this Agreement, if the Monitor deems such independent consultants necessary. The identities of such consultants shall be determined by the Monitor, but the State and the United States shall have the right to reject any of the Monit?r's proposed consultants prior to Monitor retaining any such consultant.

2. The parties and the Monitor have agreed to the monitoring protocol and budget annexed hereto as Exhibit A All monitoring shall be done in accordance with the Monitoring Protocol.

16

3. The State shall bear all costs ofthe Monitor and his or her consultants. The costs for the Monitor and his or her consultants shaH not exceed $200,000.00 per year. If the Monitor needs additional resources to investigate a death caused by alleged ab~se, neglect or improper care, the Monitor will provide written notice to the parties and the State agrees to pay all of the Monitor's reasonable requests for costs, but the reasonable costs shall not exceed $50,000.00 per year.
4. The United States does not" concede that the use of the words "continue to" in Part D of this Agreement implies that ..the State has already been meeting the residents' needs in each area. However, the parties mutually agree that the Monitor shall have the authority to determine whether the changes the State has made have brought'' it into substantial compliance with this Agreement, and if so, the time at which substantial compliance began.
5. The Monitor and.his or her consultants shall tour New Lisbon once every six months and issue a written report 45 days after the end of each review. AU written reports shall include findings of substantial compliance or non-compliance with respect to
each provision in Part D of the Agreement.
6. In the event of the death qf a resident caused by alleged abuse, neglect or improper care at New Lisbon, New Lisbon will report the death to the Monitor within 5 business days of the incident and provide an investigation report with the results of New Lisbon's investigation to date. New Lisbon's report will also include what, if any, additional information is necessary for a final conclusion. If, after reviewing New Lisbon's investigative report, the Monitor believes that the death is related to a

lack ofcompliance with a provision in Section D ofthis Agreement, then the Monitor may conduct an additional review, in addition to the tours referred to in paragraph E(5), prior to the next scheduled tour. Ifthe Monitor elects to conduct an additional review pursuant to this Paragraph, the Monitor will give reasonable notice of the additional review to the parties. The scope of the additional review shall be limited to Section D of the Agreement. 7. If the Monitor determines that the State is not in substantial compliance with a provision in Part D, the Monitor shall so state in its written report and provide the factual basis for the findings, including, as appropriate: identification of residents invoiVCd; dates and times ofincidents; and/or care, treatment, or services at issue and a surrnnary specifying the documents and records the Monitor'reviewed and the interviews the Monitor conducted that support the Monitor's detennination. 8. If the Monitor determines that the State is in substantial compliance with all provisions of a Section in Part D, the Monitor shall so state and provide the factual basis for the findings, including a summary specifying the documents and records the Monitor reviewed and the interviews the Monitor conducted that support the Monitor's detennination. If the Monitor determines that the State is in substantial compliance with all provisions of a Section in Part D, the Monitor shall cease monitoring and reporting on that section for the remaining tenn of this Agreement. F. Tennination
I. Subject to the other provisions in this Section, this Agreement shall automatically tenninate four years from the date the Complaint, Agreement, and a Fed. R. Civ. P.
18

41 Notice of Dismissal is filed with the Court, without the need for any action on behalf of any party. The parties agree that no court or other tribunal shall have the power to extend the Agreement past t_he four-year automatic termination date. The Agreement may be extended beyond the four-year term only with the written mutual agreement of all parties.

2.

If, prior to the expiration ofthe four-year term, the Monitor determines that the State

is in substantial compliance with all provisions within a section in Part D of this

Agreement, then the Monitor shall cease monitoring and reporting on that section for

the remaining term of this Agreement. The United States shall have the right to

condUCt an onsite review (including the right to tour, inspect and copy documents,

interview staff and residents, and physically inspect the facility) to verify the

Monitor's finding of substantial compliance regarding any section(s) at its expense

and at a mutually_ agreeable time within 90 days after the Monitor issues his or her

report. The United States may bring clinical experts in a relevant area to assist with

the onsite review.

3.

If at any time during the term ofthis Agreement, either the United States or the State

becomes concerned that the Monitor has failed to meet his/her obligations or has

failed to apply the appropriate standard in determining compliance under this

Agreement that party shall utilize the following procedure:

a.

The party concerned about the Monitor shall notify the other party in writing

of the concern and the reason for such concern. From the date of the written

19

notice, the Monitor shall cease all monitoring activities until the concern is

resolved.

b. Ifwithin I0 days of the written notice the parties cannot resolve the conc;em

the parties agree:

1.

to mediate the concern;

n. to use the services ofthe frrst available Mediator on the pre-approved

list of Mediators attached to this Agreement as Exhibit B. The party

requesting mediat~on shan bear the cost of the mediation; and

111. that the Mediator sha1l work with the parties to resolve the concern

for a period of 30 days. If the Mediation is unsuccessful within 30

days, the Mediator shall make.a written, binding detennination as to

the concern within 30 days. The parties agree that the Mediator's

binding decision shall not be appeaJable to the Court.

c. The parties agree that in the event that the parties or the Mediator determines

that the Monitor should he replaced, the parties shall mutually agree on the

identity ofthe replacement Monitor.

d. The parties agree .that the term ofthis agreement shall he tolled for the period

of time from the written notice of the concern until the point at which the

concern is amicably resolved, the Mediator issues a written, binding

detennination as to the concern, and/or the parties to agree on the identity of

the new Monitor, as applicable and as set forth infra. The parties agree that

any tolling time shall he added on to the term of the Agreement.

20

4. During the term of this Agreement, New Lisbon shall provide timely notice of all . resident deaths, and copies of completed death investigations or mortality and morbidity reviews as appropriate, to the United States and the Monitor. Ifthe Unjted States has cause to believe that the State's n~m-compliance with this Agreement threatens the immediate health and safety of the residents, the United States shall immedi~tely notify .the State and the Monitor of the specific provisions of this Agreement that it believes has been violated and the facts upon which this allegation · is based. The State shall provide the United States with reasonable access to New Lisbon to investigate the immediate health and safety risk. In this situation, the United States shall have the right to move and the State has the right to oppose that the Court should reopen or reinstate this litigation. a. If the United States files such a motion, the Agreement shall te~ate with regard to that section as of the filing date of the motion, but the remaining sections of the Agreement continues in full force and effect. b. If Under this subsection of the Agreement, two more sections of Agreement are terminated, either at one time, or at different times, the State shall have the right to terminate this Agreement in its entirety, by giving written notice to the United States. In such an event, the United States may take whatever action it deems necessary to enforce the constitutional and statutory rights ofthe residents ofNew Lisbon.
21

5. At any time during the last six months of this Agreement, the United States shall have access, at a mutually agreed upon time, to conduct a compliance review (including the right to tour, inspect and copy documents, interview staff and residents, and physically inspect the facility), if necessary, of all the sections of the Part D of the Agreement that remain in force at that time.
6. If the St.ate has fully complied with all of the provisions in Part D of this Agreement
at the end of the four-year term or before, the Agreement shall terminate and the United States agrees not to reopen the lawsuit on any issue addressed in the findings letter dated April 8, 2003. 7. At the expiration of four years, jf the Monitor detennines the State has nbt substantially complied with the provisions in Part D of thiS Agreement, the Agreement shall stiii terminate unless the parties mutually agree in writing to extend this Agreement. After tennination, the United States may take whatever action it deems necessary to enforce the constitutional and statutory rights ofthe residents of New Lisbon. G. Enforcement 1. The State and the United ,States agree that this is a mutually binding agreement. 2. Neither the State nor the United States shall challenge the validity ofthis Agreement on the ground that the signatories hereto lack the authority or capacity to contract or the ground that the Agreement is not supported by adequate consideration.
22

AGREED TO BY THE UNDERSIGNED: FOR THE STATE: PETER C. HARVEY Attorney General of New Jersey
~~~~
Assistant Attorney General Acting Director, Division of Law Richard J. Hughes Justice Complex Market and New Warren Streets P.O. Box 112 Trenton, N~yv. Jersey 08625-0112 (609) 292-4965
23

' FOR THE UNITED STATES:
~
JiALEXANDER ACOSTA Assistant Attorney General Civil Rights Division
HANETTA Y.CUTLAR Chief Special Litigation Section
~~
Deputy hief Special Litigation Section
Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section ~ PHB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 616-9710
24

.
EXHIBIT A

MONITORING PROTOCOL
The United States, the State ofNew Jersey and ElinHowe in her capacity as the Monitor as specified in the Settlement Agreement, captioned:
United States ofAmerica, Plaintiff, v. the State ofNew Jersey; James E. McGreevey, Governor of the State of New Jersey; James Davy, Commissioner, Department of
Human-services; Division of Developmental Disabilities; Jeffrey Sclrroeder, Chief Executive Officer, New Lisbon Developmental Center, Defendants,
hereby agree that all monitoring called for in the Settlement Agreement, shall be conducted pursuant to the following tenns .and conditions:

I. Application of Settlement Agreement

A Pursuant to PartE of the Settlement Agreement ("Agreement") between the United

States and the State ofNew Jersey, attached hereto as Exhibit A to this protocol, the

Monitor shall monitor and report on the State1S substantial compliance or nOn-

compliance with all provisions in Part D of the Agreement at New Lisbon

Developmental Center (''New Lisbon").

·

B. All monitoring shall be done in accordance with this Monitoring Protocol ("Protocol") and the Agreement.

C. To the extent that the Protocol and the Agreement are inconsistent to one another, all monitoring shall take place in accordance with the Agreement.

II. Monitor's Consultants

A. The Monitor shall be permitted to utilize the services of up to four independent consultants per monitoring visit with expertise pertaining to any area ofthe different areas ofspecialty include9 in Part D of the Agreement to assist with the monitoring, ifthe Monitor deems such consultants necessary. The identities ofsuch consultants shall be determined by the Monitor prior to any monitoring visit, with notice to the State and the United States, and the State and the United States shall have the right to reject any of the Monitor's proposed consultants prior to the monitoring visit.

B. The Monitor may discontinue the use of any consultant at any time as he or she deems necessary and appropriate and shall so notify the State and the United States. Ifthe Monitor wishes to retain a replacement consultant, the Monitor may do so prior to any monitoring visit, but the State and the United States shall have the right to reject any of the Monitor's proposed consultants prior to the monitoring visit.

I

III. Budget and Payment
A. Pursuant to Part E(3) of the Agreement, the costs for the Monitor and his or her consultants, including all expenses, shall not exceed $200,000.00 per fiscal year (July I to June 30). The $200,000.00 budget shall include all travel costs and other expenses. Ifthe Monitor needs additional resources to investigate a death caused by alleged abuse, neglect or improper care, the Monitor will provi<;le written notice to the parties and the State agrees to pay all of the Monitor's reasonable requests for costs, but the reasonable costs, including a11 travel costs and other expenses, shall not exceed $50,000.00 per year. Any funds not used any fiscal year will not carry fmwaid to the next year.
B. The State will arrange for payment of all Monitoring costs upon presentment of monthly, itemized invoices from the Monitor. Travel costs for the Monitor and her consultants shall be reimbursed Consistent with State and Federal per diem rates and guidelines. The Monitor agrees to provide any and all additional documentation requ~sted by the State in order to facilitate.payment to the Monitor.
IV. Monitoring Visits:
A. Regular Monitoring Visits:
Monitoring shall occur in accordance with Part E(S) ofthe Agreement, two times per year at approxirrlately 6 month intervals and shall be arranged for dates and at times mutually agreeable to the State and the Monitor. The first visit will occur within 30 days ofexecution ofthe Settlement Agreement. The State shall not unreasonably fail to agree on the time for Monitor visits.
1. The Monitor will make every reasonable effort to have the monitoring visit by her and her consultants occur on the same days. The Monitor will make every reasonable. effort to have the monitoring visit occur on consecutive days. Should circumstances arise such that either or both are not possible, the Monitor shall notify all parties and shall work with the State to arrange for the on-site visits at mutually convenient times not to exceed 7 days in a 14 day period.
B. Additional Monitor Visit:
Pursuant to Part E(6) ofthe Agreement, in the event ofthe death ofa resident caused by alleged abuse, neglect or improper care at New Lisbon, New Lisbon will report the death to the Monitor within 5 business days and provide an investigation report
2

with preliminary findings. New Lisbon's report will also include what, if any, additional information is necessary for a final conclusion. Based on New Lisbon's report, and in addition to the tours referred to in Part E(5) of the Agreement, the Monitor may conduct an additional review prior to the next scheduled review. The scope of the review, including whether document review, in-person or telep])one interviews, and/or on-sight visit are riecessary, shall be in the Monitor's discretion.
1. If the monitor elects to conduct an additional revie'Y pursuant to this Paragraph, the monitor will give reasonable notice of the additional review.
2. The scope of the additional review sha11 be limited to Part D of the · Agreement.
C. Components of Monitoring Visits
1. Matters inquired into during any such monitoring visit, interview or review of records or other documents shall be limited to matters directly addressed in Part D of the Agreement.
2. These monitoring visits may include the following, as the J:vionitor detennines is necessary:

a. on-site inspection of New Lisbon;

b. interviews with staff, contractors and residents.

1.

The Monitor will work with New Lisbon to arrange

interviews with staffat mutually agreeable times, in an effort

not to disrupt the operation of New Lisbon.

n. The State may have an NLDC or DDD representative present for any interview with staffor contractors unless the Monitor, in· her discretion, believes that the presence of a such representative would be detrimental to the Monitor or her consultant's interview with staff or contractors.

111. Any staffmemberwho is a member of a collective bargaining unit, consistent with the contract between the colJective bargaining unit and the state, may have a representative present at any interview.

IV. A representative ofNLDC Quality Management or Executive Staff or of DDD's Office of Program Support shall be

3

allowed to participate in all interviews with residents unless
the Monitor, in her discretion, believes that the presence of such a representative would be detrimental to the resident or to the Monitor's or her consultant's interview with the
resident.

v. A resident may·shall be offered the opportunity to have a representative of his or her own be present at any interview and such a request shall be honored by the NLDC and the Monitor and/or consultant.

c. review of New Lisbon documents, including resident records as detennined by the Monitor to be relevant to its monitoring and review under this Settlement Agreement subject to the following conditions:

1.

Immediately prior to and during any monitoring evaluation,

the Monitor shall be petmitted to request copies ofdocuments

and records he/she determines to be relevant to its review

under applicable provisions of the Agreement.

'

n. If a request is submi~ed prior to the inspection the request shall be in writing and the State shall provide the documents to the Monitor within 15 days of the written request or as soon as is practicable based on the size and scope of the request.

m. If the request is made during the inspection, the State shall provide copies within 15 days. If it takes New Lisbon longer
than 15 days to providetheMonitortherequested copies, then the Monitor's deadline for producing her report, pursuant to Section V(A) ofthis Protocol, will be tolled an equal number of days.
.
tv. The United States, upon notice to the State, may request that
the Monitor forward copies of any documents obtained from NLDC to the United States.

v. The State retains the right to object to a docwnent request based on privilege or because the docwnents are not relevant to evaluating compliance with Section D of the Settlement
Agreement. lf the State makes such an objection, it shall notifY the Monitor and United States in writing and explain the basis for its objection.

4

V. Monitoring Report
A. Thirty (30) days after the end of each review, the Monitor shall provide the parties with a draft of the written report. Jnunediately following the issuance of the draft report, the parties and the Monitor shall have a conference call to discuss the findings in the report and to correct any errors that might exist in the report. Pursuant to Part E(5) ofthe Agreement, the Monitor shall issue a final written report 45 days after the end of each review, unless the time is tolled pursuant to Section N(C) of this Protocol. All written reports shall include findings ofsubstantial compliance or noncompliance with respect to each provision in Part D ofthe Agreement.
1. 'Following an additional monitoring visit as provided for in Part E(6) of the Agreement and Section IV(B) ofthe Protocol, the Monitor shall issue a final written report no later than 45 days after the additional monitoring visit, summarizing the findings regarding the death and determining whether the death was caused by the State's non-compliance with the Agreement.
B. Purs~illlt to Part E(7) of the Agreement, if the Monitor determines that the State is not in substantial compliance with a provision in Part D, the Monitor shall so state in its written report and provide the factual basis for the findings, including, as appropriate: identification ofresidents involved; dates and times Ofincidents; and/or care, treatment, or services at issue and a summary specifYing the documents and records the Monitor reviewed and the interviews the Monitor conducted that support the Monitor's detennination.
C. Pursuant to Part E(8) of the Agreement, if the Monitor determines that the State is in substantial compliance with all provisions of a section in Part D, the Monitor shall so state and provide the factual basis for the findings, including a sununary ·specifying the documents and records the Monitor reviewed and the interviews the Monitor conducted that support the Monitor's detennination. If the Monitor determines that the State is in substantial compliance with all provisionS ofa Section in Part D, the Monitor shall cease monitoring and reporting on that section for the remaining term of this Agreement.
1. The United States shall have the right to conduct an onsite review (including the right to tour, inspect and copy documents, interview staff and residents, and physically inspect the facility) of the Monitor's finding of compliance regarding any section(s) at their expense and at a mutually agreeable time within 90 days after the Monitor issues his or her report. The United States may bring clinical experts in relevant areas to assist with the onsite review.
5

D. lf a member of the public requests from a party a copy of the Monitor's final report(s), the party shall provide notice to the Monitor and the other party. Either party may object to the release of the report and seek a protective order for all or some of the infonnation based on privilege to state or federal confidentiality provisions. lfthe other party does no~ seek a protective order, after 20 days, the party may release the report(s) to the member of the public. Other than in response to a request from a member of the public, a party ;may release or disclose a final report subject to the express written consent of the other party and/or the monitor. The parties may not release reports that have not been made final pursuant to Section V(D). of this Protocol.

VI. Contact with Monitor by Either Party

A. The Monitor shall make him or herself and the consultants available for an ex parte

meeting or conference call with either party within a reasonable time from a request

for any such meeting or call. Foilowing the ex parte meeting or conference call, the

Monitor may only inform the other party generally of the subject matter of the g_

parte meeting or conference call, if the Monitor believes such notification would be

bene'fl'cial to the monitoring process:

·

VD. Disputes Regarding the Monitor

A. Pursuant to Part F(3) of the Agreement, if at any time during the term of the Agreement, either the United States or the State becomes concerned that the Monitor has failed to me~t his/her obligations or has failed to apply the appropriate standard in detennining compliance underthisAgreement that party shall utilize the following procedure:

1. The Party concerned about the Monitor shall notify the other party in writing of the concern and the reason for such concern. From the date of the written notice, the Monitor sha11 cease all monitoring activities until the concern is resolved.

2. If within 10 days of the written notice the parties cannot resolve the concern the parties agree:

1.

to mediate the concern;

11. to use the services ofthe first available Mediator on the pre-approved list of Mediators attached to this Agreement as Exhibit B. The party requesting mediation shaH bear the cost of the mediation; and

6

111. that the Mediator shall work with the parties to resolve the concern for a period of 30 days. If the Mediation is unsuccessful within 30 days, the Mediator shall make a written, binding determination as to the concern within 30 days. The parties agree that the Mediator's binding decision shall not be appealable to the Court.
3. The parties agree that in the event that the Mediator detennines that the Monitor should be replaced, the parties shall mutually agree on the identity of the replacement Monitor.
4. The parties agree that the term ofthe Agreement shall be tolled for the period ·.of time it takes to either amicably resolve the issue, the Mediator to issue a written, binding determination, or for the parties to agree on ihe identity of the new Monitor, as applicable and as set forth infra. The parties agree that any toling time shall be added on to the tenn ofthe Agreement.
B. Pursuant to Part F(4) of the Agreement, during the term of the Agreement, New Lisb~-~ shall provide timely notice of all resident deaths, and copies of completed death investigations or mortality and morbidity reviews as appropriate, to the United States and the Monitor.
VIII. Modification Any of the provisions of the Protocol that do not appear in the Agreement may be modified with the written consent of the United States, the State, and the Monitor.
7

/s/ Nancy Kaplen /s/ Elin Howe

/s/ Shanetta Y. Cutlar

·.
EXHIBITB

..
Settlement Agreement Between the United States and New Jersey concerning New Lisbon Developmental Center Pre-Approved List of Mediators
To be used pursuant to Part (F) of the Settlement Agreement
I. Daniel J. O'Hem 2. Margaret L. Shaw 3. Stewart G. Pollock
4. Roger M. Deitz,