Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 1 of 21
4months,CLOSED
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:09−cv−00119−CAP

United States of America v. The State of Georgia et al Assigned to: Judge Charles A. Pannell, Jr Cause: 42:1997 Discrimination of Institutionalized Persons
Plaintiff

Date Filed: 01/15/2009 Date Terminated: 10/21/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Aaron S. Fleisher United States Department of Justice −DC 601 D Street NW 950 Pennsylvania Avenue, NW Washington, DC 20535 202−307−6457 Email: aaron.fleisher@usdoj.gov TERMINATED: 05/26/2011 LEAD ATTORNEY PRO HAC VICE

Amin Aminfar United States Department of Justice−Civ/Housing Civil Rights Division − Housing and Civil Enforcement 950 Pennsylvania Avenue, NW Northwestern Building Washington, DC 20530 202−514−6255 Email: Amin.Aminfar@usdoj.gov TERMINATED: 05/26/2011 LEAD ATTORNEY

Amy L. Berne Office of United States Attorney Northern District of Georgia 75 Spring Street, S.W. 600 United States Courthouse Atlanta, GA 30303 404−581−6261 Email: Amy.Berne@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Deutsch United States Department of Justice−Civ/Housing Civil Rights Division − Housing and Civil Enforcement 950 Pennsylvania Avenue, NW Northwestern Building Washington, DC 20530 202−514−6255 Email: david.deutsch@usdoj.gov TERMINATED: 05/26/2011 LEAD ATTORNEY

Jeffrey R. Murray United States Department of Justice −DC 601 D Street NW

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950 Pennsylvania Avenue, NW Washington, DC 20535 202−353−9269 Email: jeff.murray@usdoj.gov TERMINATED: 05/26/2011 LEAD ATTORNEY PRO HAC VICE
Jennifer L. Mondino U.S. Department of Justice 601 D Street, NW Washington, DC 20004 202−305−3176 Email: Jennifer.Mondino@usdoj.gov TERMINATED: 09/28/2012 LEAD ATTORNEY
Judy C. Preston U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Special Litigation Section Washington, DC 20530 202−514−3301 TERMINATED: 05/26/2011 LEAD ATTORNEY
Katherine Houston United States Department of Justice 950 Pennsylvania Avenue, NW 601 D Street, NW Washington, DC 20530 202−307−0652 Email: katherine.houston4@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary R. Bohan United States Department of Justice−Civ/Housing Civil Rights Division − Housing and Civil Enforcement 950 Pennsylvania Avenue, NW Northwestern Building Washington, DC 20530 202−616−2325 Email: mary.bohan@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Max P. Lapertosa U.S. Department of Justice−DC 950 Pennsylvania Avenue, NW Washington, DC 20530 202−305−1077 Email: Max.Lapertosa@usdoj.gov TERMINATED: 05/26/2011 LEAD ATTORNEY
Richard J. Farano United States Department of Justice −DC 601 D Street NW 950 Pennsylvania Avenue, NW

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Washington, DC 20535 202−307−3116 Email: richard.farano@usdoj.gov TERMINATED: 05/26/2011 LEAD ATTORNEY PRO HAC VICE
Sally Quillian Yates Office of United States Attorney Northern District of Georgia 75 Spring Street, S.W. 600 United States Courthouse Atlanta, GA 30303 404−581−6000 Email: sally.yates@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy D. Mygatt United States Department of Justice−Civ/Housing Civil Rights Division − Housing and Civil Enforcement 950 Pennsylvania Avenue, NW Northwestern Building Washington, DC 20530 202−514−6255 Email: timothy.mygatt@usdoj.gov TERMINATED: 05/26/2011 LEAD ATTORNEY
Aileen Bell Hughes U.S. Attorneys Office−ATL Assistant United States Attorney 600 U.S. Courthouse 75 Ted Turner Drive, S.W. Atlanta, GA 30303 404−581−6000 Email: aileen.bell.hughes@usdoj.gov ATTORNEY TO BE NOTICED
Mina Rhee U.S. Attorneys Office−ATL Northern District of Georgia 600 Richard Russell Building 75 Ted Turner Drive, SW Atlanta, GA 30303 404−581−6302 Email: mina.rhee@usdoj.gov TERMINATED: 09/16/2010
Robert Koch United States Department of Justice 950 Pennsylvania Avenue, NW 601 D Street NW Washington, DC 20530 (202) 305−2302 Email: Robert.Koch@usdoj.gov ATTORNEY TO BE NOTICED
Thomas Jackson Morse United States Department of Justice, Civil Rights Division PHB, Room 5907D 950 Pennsylvania Avenue, N.W.

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Washington, DC 20003 (202) 305−4039 Email: jack.morse@usdoj.gov TERMINATED: 09/28/2012

V. Defendant The State of Georgia ex rel

represented by Jaime L. Theriot Troutman Sanders, LLP−ATL Suite 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308−2216 404−885−3000 Email: jaime.theriot@troutmansanders.com ATTORNEY TO BE NOTICED
Jason S. Naunas Attorney General's Office−Atl Department of Law 40 Capitol Square, SW Atlanta, GA 30334 404−656−3357 Email: jnaunas@law.ga.gov TERMINATED: 09/10/2012
Jennifer Dalton Georgia Dept. of Behavioral Health &Developmental Dis. 24−394 2 Peachtree Street, NW Atlanta, GA 30303 404−463−6351 Email: jennifer.dalton@dbhdd.ga.gov ATTORNEY TO BE NOTICED
Jeremy Patrick Burnette Troutman Sanders, LLP−ATL Bank of America Plaza, Suite 5200 600 Peachtree Street NE Atlanta, GA 30308−2216 404−885−3397 Email: jburnette@polsinelli.com ATTORNEY TO BE NOTICED
Jeremy U. Littlefield Robbins Ross Alloy Belinfante Littlefield, LLC −Atl Suite 1120 999 Peachtree Street, N.E. Atlanta, GA 30309 678−701−9381 Email: jlittlefield@robbinsfirm.com ATTORNEY TO BE NOTICED
Joshua Barrett Belinfante Robbins Ross Alloy Belinfante Littlefield, LLC −Atl Suite 1120 999 Peachtree Street, N.E. Atlanta, GA 30309 678−701−9381 Email: jbelinfante@robbinsfirm.com

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ATTORNEY TO BE NOTICED

Kevin Gregory Meeks Troutman Sanders, LLP−ATL Suite 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308−2216 404−885−3719 Fax: 404−962−6605 Email: kevin.meeks@troutmansanders.com ATTORNEY TO BE NOTICED

Lindsey B. Mann Troutman Sanders, LLP−ATL Bank of America Plaza, Suite 5200 600 Peachtree Street NE Atlanta, GA 30308−2216 404−885−2743 Email: lindsey.bowen@troutmansanders.com ATTORNEY TO BE NOTICED

Lynette Eaddy Smith Chick−fil−a, Inc. 5200 Buffington Rd. Atlanta, GA 30349 404−530−1843 Email: lynette.smith@chick−fil−a.com ATTORNEY TO BE NOTICED

Mark J. Cicero Office of State Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334−1300 404−656−3391 Email: mcicero@law.ga.gov TERMINATED: 09/10/2012

Mark Howard Cohen Troutman Sanders, LLP−ATL Bank of America Plaza, Suite 5200 600 Peachtree Street NE Atlanta, GA 30308−2216 404−885−3597 Email: mark.cohen@troutmansanders.com (Inactive) ATTORNEY TO BE NOTICED

Steven J. Hewitson Troutman Sanders Bank of America Plaza 600 Peachtree Street, N.E. Suite 5200 Atlanta, GA 30308−2216 404−885−3000 Email: steven.hewitson@troutmansanders.com ATTORNEY TO BE NOTICED

Defendant
Sonny Perdue Governor of the State of Georgia, in his official capacity only

represented by Jason S. Naunas (See above for address) TERMINATED: 09/10/2012

Jennifer Dalton

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(See above for address) ATTORNEY TO BE NOTICED

Mark J. Cicero (See above for address) TERMINATED: 09/10/2012

Defendant
B. J. Walker Commissioner, Georgia Department of Human Resources, in her official capacity only

represented by Jason S. Naunas (See above for address) TERMINATED: 09/10/2012
Jennifer Dalton (See above for address) ATTORNEY TO BE NOTICED

Defendant
Gwendolyn Skinner Director, Georgia Division of Mental Health, Developmental Disabilities and Addictive Diseases, in her official capacity only

represented by Jason S. Naunas (See above for address) TERMINATED: 09/10/2012
Jennifer Dalton (See above for address) ATTORNEY TO BE NOTICED

Defendant
Susan Trueblood Administrator, Georgia Regional Hospital/Atlanta, in her official capacity only

represented by Jason S. Naunas (See above for address) TERMINATED: 09/10/2012
Jennifer Dalton (See above for address) ATTORNEY TO BE NOTICED

Objector Cynthia Wainscott

represented by Alison N. Barkoff Bazelon Center for Mental Health Law Suite 1212 1101 15th Street NW Washington, DC 20005 202−467−5730 Email: abarkoff@cpr−ma.org TERMINATED: 01/19/2011 LEAD ATTORNEY PRO HAC VICE

Ira A. Burnim Bazelon Center for Mental Health Law Suite 1212 1101 15th Street NW Washington, DC 20005 202−467−5730 Email: irabster@gmail.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth S. Canfield Doffermyre Shields Canfield &Knowles, LLC 1355 Peachtree Street, N.E. Suite 1900

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Atlanta, GA 30309 404−881−8900 Fax: 404−920−3246. Email: kcanfield@dsckd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis Bossing Bazelon Center for Mental Health Law Suite 1212 1101 15th Street NW Washington, DC 20005 202−467−5730 x 116 Email: lewisb@bazelon.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Georgia Advocacy, Inc.

represented by Andrew S. Penn Bazelon Center for Mental Health Law Suite 1212 1101 15th Street NW Washington, DC 20005 202−467−5730 ext 117 Email: andrewp@bazelon.org (Inactive) LEAD ATTORNEY PRO HAC VICE

Joshua H. Norris Southern Poverty Law Center − Atl Immigrant Justice Project 1989 College Ave. N.E. Atlanta, GA 30317 404−5021−6700 Email: joshua.norris@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Hampton Basford Wayne Hampton Basford, Attorney at Law United States Department of Agriculture/GIPSA Suite 230 75 Ted Turner Drive SW Atlanta, GA 30303 404−562−5409 Email: wayne.h.basford@usda.gov TERMINATED: 08/10/2010 LEAD ATTORNEY

Date Filed 01/15/2009
01/15/2009

# Docket Text
1 COMPLAINT filed by United States of America. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. (Attachments: # 1 Civil Cover Sheet)(eop) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 01/21/2009)
2 JOINT MOTION that the Court Enter the Parties' Negotiated Settlement Agreement by United States of America, The State of Georgia, Sonny Perdue, B. J. Walker, Gwendolyn Skinner and Susan Trueblood. (Attachments: # 1 Text of Proposed Order)(eop) (Entered: 01/21/2009)

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01/30/2009
01/30/2009 02/02/2009 02/09/2009 02/09/2009 02/10/2009 02/11/2009 02/11/2009
02/12/2009 03/02/2009 03/02/2009 03/20/2009
03/20/2009
04/01/2009 04/01/2009 04/03/2009 04/06/2009

3 ORDER directing the clerk to file Ms. Wainscott's letter, with attachments and mail a copy of this order to her; Ms. Wainscott may file a summary of her concerns and specific recommendations for improvement regarding the mental health system in Georgia with this court no later than 3/1/2009; upon receipt of Ms. Wainscott's list of concerns and recommendations, both parties will respond no later than 3/21/2009; and after the responses are filed, the court will set a date for hearing on these issues. Signed by Judge Charles A. Pannell, Jr on 1/31/2009. (gar) (Entered: 02/02/2009)
4 Letter to Court re Proposed Settlement Agreement (Attachments: # 1 Attachments) (gar) (Entered: 02/02/2009)
Clerks Certificate of Mailing as to Cynthia Wainscott re 3 Order (gar) (Entered: 02/02/2009)
5 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference held on 2/9/2009. Parties to present a provisional agreement for the Court's signature. (Court Reporter Martha Fructhey)(gar) (Entered: 02/10/2009)
6 Letter to the Court re upcoming response to Order of 1/30/2009 (gar) (Entered: 02/10/2009)
7 Joint MOTION for Order For Entry of Negotiated Settlement Agreement by United States of America. (Attachments: # 1 Settlement Agreement, # 2 Text of Proposed Order)(Berne, Amy) (Entered: 02/10/2009)
8 Letter to the Court re proposed settlement agreement and responding to 4 Letter. (gar) (Entered: 02/11/2009)
9 ORDER hereby adopting the 7 proposed settlement agreement as the temporary order of the court so that the parties can proceed with implementation and enforcement of its terms pending final approval. Signed by Judge Charles A. Pannell, Jr on 2/11/2009. (gar) (Entered: 02/12/2009)
Clerks Certificate of Mailing as to Cynthia Wainscott re 9 Order (gar) (Entered: 02/12/2009)
10 OBJECTIONS by Cynthia Wainscott and The Carter Center Mental Health Program. (adg) (Entered: 03/03/2009)
11 OBJECTIONS by Georgia Advocacy, Inc. to the Proposed Settlement Agreement. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(adg) (Entered: 03/03/2009)
12 RESPONSE re 11 Objection (Response to the Concerns of the Georgia Advocates )filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Mygatt, Timothy) Modified on 3/25/2009 to correct docket text (adg). (Entered: 03/20/2009)
13 RESPONSE re 10 Objections of Cynthia Wainscott and the Carter Center and Others, filed by The State of Georgia, Sonny Perdue, B. J. Walker, Gwendolyn Skinner, Susan Trueblood. (Attachments: # 1 Exhibit 1)(Naunas, Jason) Modified on 3/25/2009 to correct docket text (adg). (Entered: 03/20/2009)
14 DOCUMENT FILED IN ERROR Certification of Consent to Substitution of Counsel. Mina Rhee replacing attorney Amy L. Berne. (Rhee, Mina) Modified on 4/2/2009 (adg). (Entered: 04/01/2009)
15 NOTICE Of Filing Corrected Certificate of Substitution of Counsel by United States of America (Rhee, Mina) (Entered: 04/01/2009)
Submission of 2 MOTION for Order, submitted to District Judge Charles A. Pannell. (adg) (Entered: 04/03/2009)
16 ORDER directing Georgia Advocacy, Inc. and Ms. Wainscott to reply to the United States of America's 12 Response and the State of Georgia's 13 Response no later than 4/21/2009. Additionally, the court DIRECTS all of the interested parties to meet no later than 6/5/2009, in order to discuss the various issues of concern and attempt to reach a resolution amongst themselves. The parties are DIRECTED to

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04/17/2009 04/17/2009 04/20/2009 04/20/2009 04/20/2009 04/21/2009
04/21/2009 04/21/2009 04/21/2009 04/21/2009 04/21/2009 06/01/2009
06/04/2009 06/12/2009 07/24/2009

file a joint report updating the court as to the status of what resolutions have been made and what issues remain no later than 6/12/2009. Signed by Judge Charles A. Pannell, Jr on 4/6/2009. (gar) (Entered: 04/06/2009)
17 APPLICATION for Admission of Alison N. Barakoff Pro Hac Viceby Cynthia Wainscott.Filing Fee received $150.00, Receipt #11457. (Attachments: # 1 Proposed Order of Admission)(adg) (Entered: 04/20/2009)
18 APPLICATION for Admission of Ira Burnim Pro Hac Vice by Cynthia Wainscott.Filing Fee received $150.00, Receipt #11457. (Attachments: # 1 Proposed Order of Admission)(adg) (Entered: 04/20/2009)
19 NOTICE OF REQUIREMENT TO FILE ELECTRONICALLY pursuant to Standing Order 04−01 as to Kenneth S. Canfield re 17 APPLICATION for Admission of Alison N. Barakoff Pro Hac Vice, 18 APPLICATION for Admission of Ira Burnim Pro Hac Vice. (adg) (Entered: 04/20/2009)
APPROVAL by Clerks Office re: 17 APPLICATION for Admission of Alison N. Barakoff Pro Hac Vice. Attorney Alison N. Barkoff added appearing on behalf of Cynthia Wainscott (cdg) Modified on 4/21/2009 to remove Georgia Advocacy, Inc. as a filer (adg). (Entered: 04/20/2009)
APPROVAL by Clerks Office re: 18 APPLICATION for Admission of Ira Burnim Pro Hac Vice. Attorney Ira A. Burnim added appearing on behalf of Cynthia Wainscott. (cdg) Modified on 4/21/2009 to remove Georgia Advocacy, Inc. as a filer(adg). (Entered: 04/20/2009)
20 REPLY re 13 Response to Objection , 12 Response to Objection re Concerns of Georgia Advocates filed by Cynthia Wainscott and the Carter Center Mental Health Program . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Canfield, Kenneth) Modified on 4/21/2009 to correct docket text and indicate correct filers (adg). (Entered: 04/21/2009)
Notification of Docket Correction re Approval of Applications for Admission Pro Hac Vice of Alison N. Barakoff and Ira Burnim. Modified on 4/21/2009 per notification from attorney Alison N. Barakoff, counsel does not represent Georgia Advocacy, Inc. only Cynthia Wainscott. (adg) (Entered: 04/21/2009)
Notification of Docket Correction re 20 Reply to Response. Modified on 4/21/2009 to correct docket text and indicate correct filers. (adg) (Entered: 04/21/2009)
21 ORDER GRANTING 18 Application for Admission Pro Hac Vice of Ira Burnim. Signed by Judge Charles A. Pannell, Jr on 4/21/2009. (adg) (Entered: 04/21/2009)
22 ORDER GRANTING 17 Application for Admission Pro Hac Vice of Alison Barkoff. Signed by Judge Charles A. Pannell, Jr on 4/21/2009. (adg) (Entered: 04/21/2009)
23 REPLY to Response to Motion re 2 MOTION for Order Reply of Georgia Advocacy Office to United States' and Georgia's Responses to Objections filed by Georgia Advocacy, Inc.. (Norris, Joshua) (Entered: 04/22/2009)
24 ORDER Clarifying 16 Order in which the parties are directed to file a joint status report no later than 6/12/2009. The Court intended the term "parties" to mean all interested parties, to include the litigating parties, Ms. Cynthia Wainscott, The Carter Center Mental Health Program and Georgia Advocacy Inc. Signed by Judge Charles A. Pannell, Jr on 06/01/2009. (rvb) (Entered: 06/01/2009)
25 ORDER for the purpose of including attached correspondence on the record. Signed by Judge Charles A. Pannell, Jr on 06/04/2009. (Attachments: # 1 Correspondence)(rvb) (Entered: 06/05/2009)
26 STATUS REPORT by United States of America. (Attachments: # 1 Title Page, # 2 Exhibit A)(Rhee, Mina) (Entered: 06/12/2009)
27 Request for Leave of Absence for the following date(s): 09/21/09, 09/22/09, 09/23/09, 09/24/09, 09/25/09, 09/26/09, 09/27/09, 09/28/09, by Jason S. Naunas. (Naunas, Jason) (Entered: 07/24/2009)

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09/15/2009 09/30/2009
09/30/2009
10/01/2009 10/01/2009 10/08/2009
10/08/2009 10/19/2009
10/28/2009 11/03/2009 11/09/2009 11/18/2009

28 NOTICE by The State of Georgia, Sonny Perdue, B. J. Walker, Gwendolyn Skinner, Susan Trueblood re 26 Status Report Re: Defendants' Initial Compliance Report Filed Pursuant to the Request of the United States (Attachments: # 1 Exhibit 1 PART A: Plan, # 2 Exhibit 1 PART B: Plan (continued))(Naunas, Jason) (Entered: 09/15/2009)
29 ORDER DISMISSING 2 Motion for Entry of Settlement Agreement because the DOJ has indicated that it no longer agrees with the motion. Upon the court's receipt of the joint status report filed by the DOJ and the coalition of advocacy groups, the court will determine whether a status conference is necessary. Moreover, the State of Georgia will be permitted an opportunity to respond to such report if necessary. Finally, the named parties may also resubmit a motion for the court to permanently adopt the settlement agreement. Signed by Judge Charles A. Pannell, Jr on 9/30/2009. (adg) (Entered: 09/30/2009)
30 STATUS REPORT Joint Status Report of the United States and Amici Curiae by Georgia Advocacy, Inc.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13)(Norris, Joshua) (Entered: 09/30/2009)
31 MOTION for Order For Status Conference by United States of America. (Attachments: # 1 Text of Proposed Order)(Rhee, Mina) (Entered: 10/01/2009)
32 MOTION For Time To Respond To Joint Status Report Of The United States and Amici Curiae 31 MOTION for Order For Status Conference by The State of Georgia, Sonny Perdue, B. J. Walker, Gwendolyn Skinner, Susan Trueblood. (Naunas, Jason) (Entered: 10/01/2009)
33 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference held on 10/8/2009. The court clarified that the order entered 9/30/2009 does not vacate the court's order entered February, 2009. The February, 2009 order is still in effect. The State has until October 28 to respond to the Status Report filed with the court. Written order to follow. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 10/08/2009)
34 ORDER clarifying the Court's 29 Order of 9/30/2009 and GRANTING 32 Motion for Time to Respond to the Joint Status Report, giving the defendants until 10/28/2009 to respond. After receipt of the defendants' response, the court will then determine whether a status conference or hearing is necessary in this matter. Signed by Judge Charles A. Pannell, Jr on 10/8/2009. (adg) (Entered: 10/09/2009)
35 TRANSCRIPT of Proceedings held on 10/8/09 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/9/2009. Redacted Transcript Deadline set for 11/19/2009. Release of Transcript Restriction set for 1/19/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Additional attachment(s) added on 10/20/2009: # 2 Verification of Financial Arrangements) (pjm). (Entered: 10/20/2009)
36 RESPONSE re 30 Status Report, filed by The State of Georgia, Sonny Perdue, B. J. Walker, Gwendolyn Skinner, Susan Trueblood. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Naunas, Jason) (Entered: 10/28/2009)
Submission of 31 MOTION for Order For Status Conference, submitted to District Judge Charles A. Pannell. (adg) (Entered: 11/03/2009)
37 MOTION for Order for Status Conference by United States of America. (Attachments: # 1 Text of Proposed Order)(Rhee, Mina) (Entered: 11/09/2009)
38 ORDER DISMISSING AS MOOT 31 Motion for Order for Status Conference; DIRECTING parties, including the amici curiae, to meet and then submit a joint proposed status conference agenda no later than 12/14/2009 re 37 Motion for Order for Status Conference. After receipt of the joint proposed status conference agenda,

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11/24/2009 11/24/2009 11/24/2009 12/08/2009
12/14/2009 12/30/2009
01/04/2010 01/06/2010 01/12/2010 01/13/2010 01/13/2010 01/15/2010 01/15/2010 01/15/2010 01/27/2010 01/28/2010
01/28/2010

the court will then schedule a status conference in this matter. Signed by Judge Charles A. Pannell, Jr on 11/18/2009. (adg) (Entered: 11/18/2009)
39 RESPONSE re 37 MOTION for Order for Status Conference filed by The State of Georgia, Sonny Perdue, B. J. Walker, Gwendolyn Skinner, Susan Trueblood. (Naunas, Jason) (Entered: 11/24/2009)
40 Letter from The Honorable Charles A. Pannell, Jr. to Consuelo L. Campbell (ank) (Entered: 11/25/2009)
41 Letter from The Honorable Charles A. Pannell, Jr. to Joshua Norris (ank) (Entered: 11/25/2009)
42 REPLY to Response to Motion re 37 MOTION for Order for Status Conference filed by United States of America. (Attachments: # 1 Exhibit ECRH Compliance Letter, # 2 Exhibit GRHS Compliance Letter, # 3 Exhibit CSH Emergency Letter, # 4 Exhibit Letter of Findings 12/08/2009)(Koch, Robert) (Entered: 12/08/2009)
43 STATUS REPORT Joint Proposed Status Conference Agenda by United States of America. (Mygatt, Timothy) (Entered: 12/14/2009)
44 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference held on 12/30/2009 re Status Report filed 12/14/2009. USA is to file a motion as soon as possible outlining their concerns regardingconditions of state facilities. The State and Objectors shall respond andthe court will determine when a hearing date will be set. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 01/06/2010)
45 APPLICATION for Admission of Andrew S. Penn Pro Hac Viceby Cynthia Wainscott.Filing Fee received $150.00, Receipt #19825. (Attachments: # 1 Text of Proposed Order)(adg) (Entered: 01/06/2010)
46 NOTICE OF REQUIREMENT TO FILE ELECTRONICALLY pursuant to Standing Order 04−01 as to Kenneth S. Canfield re 45 APPLICATION for Admission of Andrew S. Penn Pro Hac Vice. (adg) (Entered: 01/06/2010)
APPROVAL by Clerks Office re: 45 APPLICATION for Admission of Andrew S. Penn Pro Hac Vice. Attorney Andrew S. Penn added appearing on behalf of Georgia Advocacy, Inc. (cdg) (Entered: 01/12/2010)
47 ORDER granting 45 Application for Admission Pro Hac Vice. Signed by Judge Charles A. Pannell, Jr. on 1/13/2010. (bse) (Entered: 01/13/2010)
Clerks Certificate of Mailing as to Georgia Advocacy, Inc. re 47 Order on Application for Admission PHV. (bse) (Entered: 01/13/2010)
48 STATUS REPORT by United States of America. (Koch, Robert) (Entered: 01/15/2010)
49 NOTICE by Gwendolyn Skinner DBHDD− Report of Compliance and Plan of Implementation (Naunas, Jason) (Entered: 01/15/2010)
50 NOTICE by Sonny Perdue Defendants' Second Compliance Report filed pursuant to the request of the United States (Naunas, Jason) (Entered: 01/15/2010)
51 NOTICE of Appearance by Joshua Barrett Belinfante on behalf of The State of Georgia (Belinfante, Joshua) (Entered: 01/27/2010)
52 MOTION for Immediate Status Conference with Brief In Support by Sonny Perdue. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 2 Pt. 2, # 4 Exhibit 3, # 5 Exhibit 3 Pt. 2, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9)(Naunas, Jason) (Entered: 01/28/2010)
53 Motion to Amend Complaint filed by United States of America. (Attachments: # 1 Exhibit GRHA Findings Letter, # 2 Exhibit NWGRH Findings Letter, # 3 Exhibit 5−Facility Findings Letter, # 4 Exhibit ECRH Compliance Letter, # 5 Exhibit GRHS Compliance Letter, # 6 Exhibit Letter − CSH homicide, # 7 Exhibit Letter − CSH homicide follow−up, # 8 Exhibit Letter − CSH medical deaths, # 9 Exhibit Letter − CSH homicide follow−up, # 10 Exhibit Letter − ECRH alleged rapes, # 11

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01/28/2010 01/28/2010
01/28/2010 01/29/2010 02/02/2010 02/04/2010 02/04/2010
02/10/2010 02/12/2010
02/15/2010

Exhibit Letter − SWSH rape, # 12 Exhibit Letter − GRHS suicide, # 13 Exhibit Letter − ECRH suicide attempt, # 14 Exhibit Letter − CSH conditions, # 15 Exhibit Letter − SWSH death, # 16 Exhibit Letter − SWSH suicide)(Koch, Robert) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. Modified on 2/2/2010 to correct docket text to accurately reflect e−filed document (adg). (Entered: 01/28/2010)
54 MOTION to Consolidate Cases with Brief In Support by United States of America. (Koch, Robert) (Entered: 01/28/2010)
55 MOTION for Preliminary Injunction with Brief In Support by United States of America. (Attachments: # 1 Brief, # 2 Text of Proposed Order, # 3 Exhibit Olmstead Monthly Report, # 4 Exhibit Settlement Agreement, # 5 Exhibit ECRH Compliance Letter, # 6 Exhibit GRHS Compliance Letter, # 7 Exhibit Findings Letter for CSH, GRHS, ECRH, SWSH, and WCGRH, # 8 Exhibit Letter − CSH homicide, # 9 Exhibit Letter − CSH homicide follow−up, # 10 Exhibit Letter − CSH medical deaths, # 11 Exhibit Letter − CSH homicide follow−up, # 12 Exhibit Letter − ECRH alleged rapes, # 13 Exhibit Letter − SWSH rape, # 14 Exhibit Letter − GRHS suicide, # 15 Exhibit Letter − ECRH suicide attempt, # 16 Exhibit Letter − CSH conditions, # 17 Exhibit Letter − SWSH death, # 18 Exhibit Letter − SWSH suicide, # 19 Exhibit Osgood Declaration, # 20 Exhibit El−Sabaawi Declaration, # 21 Exhibit Oswald Declaration, # 22 Exhibit Franczak Declaration, # 23 Exhibit State POI, # 24 Exhibit State Audit, # 25 Exhibit State QM Report, # 26 Exhibit Olmstead Budget Report, # 27 Exhibit Georgia Planning Initiative, # 28 Exhibit Mental Health Commission Report, # 29 Exhibit OCR Letter)(Koch, Robert) (Entered: 01/28/2010)
56 MOTION for Leave to File Excess Pages of Doc. No. 55 with Brief In Support by United States of America. (Koch, Robert) (Entered: 01/28/2010)
57 NOTICE Of Filing Certificate of the Attorney General by United States of America re 53 Amended Complaint,,, (Rhee, Mina) (Entered: 01/29/2010)
Notification of Docket Correction re 53 MOTION to Amend Complaint. Modified on 2/2/2010 to correct docket text to accurately reflect e−filed document. (adg) (Entered: 02/02/2010)
58 NOTICE of Appearance by Mark Howard Cohen on behalf of The State of Georgia (Cohen, Mark) (Entered: 02/04/2010)
59 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference/Status Conference held on 2/4/2010; GRANTING 52 Motion for Immediate Status Conference; State of Ga. Verbal Motion for an Extension ofTime to respond to pla's motions doc nos. 53 , 54 , 55 . The CourtVerbally GRANTED the State's motion. The State have until 2/22/2010 tofile it's responses. State of Ga's Verbal Motion for a Stay. Court VerballyDENIED the State's motion. Hearing set for 3/1/2010 at 10:00 AM before Judge Charles A. Pannell Jr. The court will hold another conference call a week fromtoday. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 02/05/2010)
60 RESPONSE re 52 MOTION for Immediate Status Conference filed by Georgia Advocacy, Inc.. (Norris, Joshua) Modified on 2/12/2010 to remove double wording (adg). (Entered: 02/10/2010)
61 TRANSCRIPT of Proceedings held on 2/4/10 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/5/2010. Redacted Transcript Deadline set for 3/15/2010. Release of Transcript Restriction set for 5/13/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 02/12/2010)
62 MOTION Enforcement of Settlement Agreement with Brief In Support by The State of Georgia. (Attachments: # 1 Brief Defendants' Brief in Support of Motion to Enforce Settlement Agreement, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5)(Belinfante, Joshua)

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 13 of 21

02/16/2010
02/16/2010 02/16/2010
02/18/2010 02/19/2010
02/19/2010
02/22/2010 02/22/2010 02/22/2010 02/22/2010 02/22/2010 02/25/2010

(Entered: 02/15/2010)
63 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference held on 2/16/2010. A hearing is set for 3/1/2010 at 10:00 a.m. The hearing is expected to last at least 5 days. Dr. Frank Shelp will as a witness. The DOJ is to provide the State with a list of witnesses no later than 12/17/2010 and the State will provide its list of witnesses to the DOJ not later than 2/24/2010. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 02/16/2010)
64 CORRECTED Minute Entry re 63 Telephone Conference, A hearing is set for 3/1/2010 at 10:00 a.m. The hearing is expected to last at least 5 days. Dr. Frank Shelp will as a witness. The DOJ is to provide the State with a list of witnesses no later than 2/17/2010 and the State will provide its list of witnesses to the DOJ not later than 2/24/2010. Hearing Concluded. (adg) (Entered: 02/16/2010)
65 ORDER regarding 2/16/2010 Telephone conference. The DOJ agreed to provide the State of Georgia with a list of the witnesses, which they anticipate to testify at the hearing, nolater than Wednesday, February 17, 2010. The State of Georgia will then provide its list of witnesses to the DOJ no later thanWednesday, February 24, 2010. Signed by Judge Charles A. Pannell, Jr on 2/16/2010. (adg) (Entered: 02/16/2010)
Submission of 56 MOTION for Leave to File Excess Pages of Doc. No. 55 , submitted to District Judge Charles A. Pannell. (adg) (Entered: 02/18/2010)
66 TRANSCRIPT of Proceedings held on 2/4/10 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/12/2010. Redacted Transcript Deadline set for 3/22/2010. Release of Transcript Restriction set for 5/20/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 02/19/2010)
67 TRANSCRIPT of Proceedings held on 2/16/10 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/12/2010. Redacted Transcript Deadline set for 3/22/2010. Release of Transcript Restriction set for 5/20/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 02/19/2010)
68 RESPONSE in Opposition re 53 MOTION to Amend Complaint filed by The State of Georgia. (Cohen, Mark) (Entered: 02/22/2010)
69 RESPONSE re 54 MOTION to Consolidate Cases filed by The State of Georgia. (Cohen, Mark) (Entered: 02/22/2010)
70 MOTION for Leave to File Excess Pages for Defendants' Response in Opposition to Plaintiff's Motion for Immediate Relief (Preliminary Injunction) by The State of Georgia. (Attachments: # 1 Text of Proposed Order)(Cohen, Mark) (Entered: 02/22/2010)
71 RESPONSE in Opposition re 55 MOTION for Preliminary Injunction filed by The State of Georgia. (Attachments: # 1 Exhibit A −− Voluntary Compliance Agreement, # 2 Exhibit B −− Shelp Declaration, # 3 Exhibit C −− Manning Declaration, # 4 Exhibit D −− Singh Declaration)(Cohen, Mark) (Entered: 02/22/2010)
72 RESPONSE in Opposition re 62 MOTION Enforcement of Settlement Agreement filed by United States of America. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G)(Mygatt, Timothy) (Entered: 02/22/2010)
73 MOTION for Order to Bring Electronic Devices Into Courtroom by United States of America. (Attachments: # 1 Text of Proposed Order)(Rhee, Mina) (Entered: 02/25/2010)

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 14 of 21

02/25/2010 02/26/2010 02/26/2010
02/26/2010 03/16/2010 04/02/2010
06/30/2010 07/01/2010 07/01/2010 07/07/2010
07/15/2010 07/15/2010 07/15/2010
07/21/2010 07/22/2010 07/22/2010

74 MOTION to Stay by United States of America. (Mygatt, Timothy) (Entered: 02/25/2010)
75 ORDER GRANTING 70 Motion for Leave to File Excess Pages. Signed by Judge Charles A. Pannell, Jr on 2/26/2010. (adg) (Entered: 02/26/2010)
76 ORDER GRANTING 74 Motion to Stay so that the Parties may engage in settlementnegotiations. The Court also hereby GRANTS the request to toll until 3/15/2010, the response time on all pending responses and replies. Should negotiationsfail, the Court will reschedule the proceedings to begin on 3/15/2010, or assoon as possible thereafter. Signed by Judge Charles A. Pannell, Jr on 2/26/2010. (adg) (Entered: 02/26/2010)
77 ORDER DENYING AS MOOT 73 Motion for Order to Bring Electronic Devices Into Courtroom. Signed by Judge Charles A. Pannell, Jr on 2/26/2010. (adg) (Entered: 02/26/2010)
78 ORDER re: request for telephone conference. Signed by Judge Charles A. Pannell, Jr on 3/16/2010. (yrm) (Entered: 03/16/2010)
Submission of 53 MOTION to Amend Complaint, 55 MOTION for Preliminary Injunction, 54 MOTION to Consolidate Cases, 62 MOTION Enforcement of Settlement Agreement, submitted to District Judge Charles A. Pannell. (adg) (Entered: 04/02/2010)
79 MOTION for Order Setting Status Conference by United States of America. (Attachments: # 1 Text of Proposed Order)(Rhee, Mina) (Entered: 06/30/2010)
80 REPLY BRIEF in Support re 62 MOTION Enforcement of Settlement Agreement filed by The State of Georgia. (Belinfante, Joshua) Modified on 7/6/2010 to correct docket text to accurately reflect e−filed document (adg). (Entered: 07/01/2010)
81 MOTION to Dismiss with Brief In Support by The State of Georgia. (Cohen, Mark) (Entered: 07/01/2010)
82 ORDER re 79 MOTION for Order Setting Status Conference filed by United States of America ; the court DIRECTS the parties to submit a status update and proposed agenda for the requested telephone conference. The parties are to file their update and agenda no later than 7/22/2010; the court further DIRECTS the plaintiff to attach the document and/or file, if such exists, that constitutes the United States' written Notice of Non−Compliance to the State of Georgia. Signed by Judge Charles A. Pannell, Jr on 7/7/2010. (adg) (Entered: 07/07/2010)
83 RESPONSE re 81 MOTION to Dismiss filed by United States of America. (Koch, Robert) (Entered: 07/15/2010)
84 STATUS REPORT by United States of America. (Koch, Robert) (Entered: 07/15/2010)
85 RESPONSE re 81 MOTION to Dismiss Amici's Response to Defendants' Motions to Dismiss and Request for Disapproval of Settlement Agreement filed by Georgia Advocacy, Inc.. (Attachments: # 1 Exhibit Declaration of Steven Schwartz, # 2 Exhibit Affidavit of Ruby Moore, # 3 Exhibit Declaration of John Gates)(Norris, Joshua) (Entered: 07/15/2010)
86 NOTICE by Georgia Advocacy, Inc. re 85 Response to Motion, Notice of Errata (Attachments: # 1 Errata Corrected Signature Page)(Norris, Joshua) (Entered: 07/21/2010)
87 RESPONSE re 82 Order,, (Defendants' Status Update and Proposed Agenda for Status Conference) filed by The State of Georgia. (Attachments: # 1 Exhibit A)(Cohen, Mark) (Entered: 07/22/2010)
88 RESPONSE re 82 Order,, United States' and Amici's Joint Status Update and Proposed Agenda filed by United States of America, Cynthia Wainscott, The Carter Center Mental Health Program, Georgia Advocacy, Inc.. (Attachments: # 1 Exhibit SOURCE complaint, # 2 Exhibit Notice letter)(Koch, Robert) (Entered: 07/22/2010)

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 15 of 21

07/23/2010 07/27/2010 07/27/2010 07/29/2010 07/29/2010 07/29/2010 07/29/2010 08/02/2010
08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/03/2010 08/05/2010
08/06/2010
08/08/2010
08/09/2010

89 NOTICE by The State of Georgia of Amended Declaration of Frank E. Shelp, MD, MPH (Attachments: # 1 Exhibit Exhibit A)(Belinfante, Joshua) (Entered: 07/23/2010)
90 APPLICATION for Admission of Timothy D. Mygatt Pro Hac Vice with Brief In Support by United States of America. (Rhee, Mina) (Entered: 07/27/2010)
91 APPLICATION for Admission of Max Lapertosa Pro Hac Vice with Brief In Support by United States of America. (Rhee, Mina) (Entered: 07/27/2010)
APPROVAL by Clerks Office. Attorney Max P. Lapertosa, Timothy D. Mygatt added appearing on behalf of United States of America (cdg) Modified on 8/2/2010 to link document(cdg). (Entered: 07/29/2010)
92 APPLICATION for Admission of Robert A. Koch Pro Hac Vice by United States of America. (Rhee, Mina) (Entered: 07/29/2010)
93 APPLICATION for Admission of Judy C. Preston Pro Hac Vice by United States of America. (Rhee, Mina) (Entered: 07/29/2010)
94 APPLICATION for Admission of Mary R. Bohan Pro Hac Vice by United States of America. (Rhee, Mina) (Entered: 07/29/2010)
APPROVAL by Clerks Office re: 92 APPLICATION for Admission of Robert A. Koch Pro Hac Vice, 93 APPLICATION for Admission of Judy C. Preston Pro Hac Vice, 94 APPLICATION for Admission of Mary R. Bohan Pro Hac Vice. Attorney Robert Koch, Mary R. Bohan, Judy C. Preston added appearing on behalf of United States of America (cdg) (Entered: 08/02/2010)
95 REPLY BRIEF re 81 MOTION to Dismiss filed by The State of Georgia. (Belinfante, Joshua) (Entered: 08/02/2010)
96 ORDER GRANTING 92 Application for Admission Pro Hac Vice of Robert A. Koch. Signed by Judge Charles A. Pannell, Jr on 8/2/2010. (adg) (Entered: 08/03/2010)
97 ORDER GRANTING 93 Application for Admission Pro Hac Vice of Judy C. Preston. Signed by Judge Charles A. Pannell, Jr on 8/2/2010. (adg) (Entered: 08/03/2010)
98 ORDER GRANTING 94 Application for Admission Pro Hac Vice of Mary R. Bohan. Signed by Judge Charles A. Pannell, Jr on 8/2/2010. (adg) (Entered: 08/04/2010)
Submission of 79 MOTION for Order Setting Status Conference, 81 MOTION to Dismiss, submitted to District Judge Charles A. Pannell. (adg) (Entered: 08/03/2010)
NOTICE of TELECONFERENCE Hearing: Status Conference set for 8/6/2010 at 11:15 AM before Judge Charles A. Pannell Jr.. Participants are directed to dial (866)742−9889. Id No.: 93154695. The court plans to address the issues proposed by the parties.(yrm) (Entered: 08/05/2010)
100 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference held on 8/6/2010. Court heard from counsel. Hearing to be set for 11/8/2010. Written order to follow. Hearing Concluded (Court Reporter Martha Frutchey)(adg) (Entered: 08/09/2010)
99 MOTION to Withdraw Wayne Hampton Basford as Attorneyby Georgia Advocacy, Inc.. (Attachments: # 1 Exhibit Certificate of Consent for Withdrawal of Counsel, # 2 Exhibit Local Rule 83.1.E. Notice to Georgia Advocacy Office, Inc., # 3 Text of Proposed Order (pdf) Proposed Order Approving of Withdrawal)(Basford, Wayne) (Entered: 08/08/2010)
101 ORDER DIRECTING the amici curiae maintain their participation as previously directed by the court. Joint Proposed Preliminary Reports and Discovery Plan will be filed within 20 days of the date of this order. Discovery shall beginupon the filing of this order. Discovery in one action may be used and incorporated in the other action. The Court DIRECTS the plaintiff to filea report, within 10 days of the

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 16 of 21

08/10/2010 08/12/2010 08/12/2010 08/12/2010 08/16/2010
08/17/2010 08/17/2010 08/17/2010 08/19/2010 08/24/2010 08/30/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010

date of this order, that specifiesin detail which obligations under the Settlement Agreement 2 the plaintiff believes that the defendants have failed to fulfill. The court will conduct a 2−week evidentiary hearing starting on 11/8/2010. The parties will SUBMIT trial briefs on the issues to be discussed at the Nov. 8 Hearing no later than 10/18/2010, with responses due no later than 10/28/2010. Signed by Judge Charles A. Pannell, Jr on 8/9/2010. (adg) (Entered: 08/10/2010)
102 ORDER GRANTING 99 Motion to Withdraw as Attorney. Attorney Wayne Hampton Basford terminated. Signed by Judge Charles A. Pannell, Jr on 8/10/2010. (adg) (Entered: 08/10/2010)
103 APPLICATION for Admission of Richard J. Farano Pro Hac Vice with Brief In Support by United States of America. (Rhee, Mina) (Entered: 08/12/2010)
104 APPLICATION for Admission of Jeffrey R. Murray Pro Hac Vice with Brief In Support by United States of America. (Rhee, Mina) (Entered: 08/12/2010)
105 APPLICATION for Admission of Aaron S. Fleisher Pro Hac Vice with Brief In Support by United States of America. (Rhee, Mina) (Entered: 08/12/2010)
APPROVAL by Clerks Office re: 105 APPLICATION for Admission of Aaron S. Fleisher Pro Hac Vice, 104 APPLICATION for Admission of Jeffrey R. Murray Pro Hac Vice, 103 APPLICATION for Admission of Richard J. Farano Pro Hac Vice. Attorney Aaron S. Fleisher, Jeffrey R. Murray, Richard J. Farano added appearing on behalf of United States of America (cdg) (Entered: 08/16/2010)
106 ORDER GRANTING 103 Application for Admission Pro Hac Vice of Richard J. Farano. Signed by Judge Charles A. Pannell, Jr on 8/17/2010. (adg) (Entered: 08/17/2010)
107 ORDER GRANTING 105 Application for Admission Pro Hac Vice of Aaron S. Fleisher. Signed by Judge Charles A. Pannell, Jr on 08/17/2010. (adg) (Entered: 08/17/2010)
108 ORDER GRANTING 104 Application for Admission Pro Hac Vice of Jeffrey R. Murray. Signed by Judge Charles A. Pannell, Jr on 8/17/2010. (adg) (Entered: 08/17/2010)
109 NOTICE by United States of America re 101 Order,,, Report of Defendants' Non−Compliance with Settlement Agreement (Lapertosa, Max) (Entered: 08/19/2010)
110 CERTIFICATE OF SERVICE for Defendants' First Set of Interrogatories to Plaintiff AND Defendants' First Request for Production of Documents to Plaintiff by The State of Georgia.(Cohen, Mark) (Entered: 08/24/2010)
111 Joint PRELIMINARY REPORT AND DISCOVERY PLAN filed by United States of America. (Mygatt, Timothy) (Entered: 08/30/2010)
112 Notice to Take Depositions of All Defendants taken on 9/17/2010 by United States of America.(Lapertosa, Max) Modified on 9/3/2010 to correct docket text (adg). (Entered: 09/02/2010)
113 Notice to Take Deposition of Shelp 30(b)(6) taken on 9/20/2010 by United States of America.(Lapertosa, Max) Modified on 9/3/2010 to correct docket text (adg). (Entered: 09/02/2010)
114 Notice to Take Depositon of Clyde Reese 30(b)(6) taken on 9/20/2010 by United States of America.(Lapertosa, Max) Modified on 9/3/2010 to correct docket text (adg). (Entered: 09/02/2010)
115 Notice to Take Depositions of All Defendants 30(b)(6) taken on 9/24/2010 by United States of America.(Lapertosa, Max) Modified on 9/3/2010 to correct docket text (adg). (Entered: 09/02/2010)
116 Notice to Take Depositions of All Defendants 30(b)(6) taken on 10/4/2010 by United States of America.(Lapertosa, Max) Modified on 9/3/2010 to correct docket text (adg). (Entered: 09/02/2010)

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 17 of 21

09/02/2010
09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/03/2010
09/14/2010
09/14/2010 09/14/2010 09/14/2010
09/15/2010
09/16/2010 09/16/2010

117 NOtice to Take Deposition of Jason Bearden taken on 9/17/2010 by United States of America.(Lapertosa, Max) Modified on 9/3/2010 to correct docket text (adg). (Entered: 09/02/2010)
118 NOTICE to Take Deposition of Greg Hoyt filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
119 NOTICE to Take Deposition of William H. Janes filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
120 NOTICE to Take Deposition of Donald Manning filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
121 NOTICE to Take Deposition of Denise McClain filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
122 NOTICE to Take Deposition of William McDonald filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
123 NOTICE to Take Deposition of Karen Green McGowan filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
124 NOTICE to Take Deposition of Jewel Norman filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
125 NOTICE to Take Deposition of Andrew Phillips filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
126 NOTICE to Take Deposition of Mary Lou Rahn filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
127 NOTICE to Take Deposition of Frank Shelp filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
128 NOTICE to Take Deposition of Nirbhay Singh filed by United States of America (Lapertosa, Max) (Entered: 09/02/2010)
Notification of Docket Correction re 116 Deposition, 112 Deposition, 115 Deposition, 117 Deposition, 113 Deposition. Modified on 9/3/2010 to correct docket text to reflect documents at Notices to Take Depositions. (adg) (Entered: 09/03/2010)
129 Amended NOTICE to Take Deposition of Rule 30(b)(6) deposition of Clyde Reese, in his official capacity as Director of the Georgia Department of Community Health filed by United States of America (Lapertosa, Max) (Entered: 09/14/2010)
130 Amended NOTICE to Take Deposition of Mary Lou Rahn filed by United States of America (Lapertosa, Max) (Entered: 09/14/2010)
131 PROPOSED CONSENT ORDER Consent Confidentiality and Protective Order. (Cohen, Mark) (Entered: 09/14/2010)
132 NOTICE by The State of Georgia Notice of Subpoenas for Depositions of Non−Party Witnesses (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Cohen, Mark) (Entered: 09/14/2010)
133 CERTIFICATE OF SERVICE of Defendants' Responses and Objections to Plaintiff's First Set of Interrogatories and Defendants' Responses and Objections to Plaintiff's First Request for Production of Documents by The State of Georgia.(Cohen, Mark) (Entered: 09/15/2010)
134 Certification of Consent to Substitution of Counsel. Aileen Bell Hughes replacing attorney Mina Rhee. (Hughes, Aileen) (Entered: 09/16/2010)
135 RESPONSE re 131 Proposed Consent Order Amici Curiae's Response to Proposed Consent Confidentiality and Protective Order filed by Georgia Advocacy, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Confidentiality and Protective Order)(Norris, Joshua) (Entered: 09/16/2010)

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 18 of 21

09/16/2010 09/16/2010
09/17/2010 09/17/2010
09/20/2010 09/20/2010 09/20/2010 09/20/2010 09/20/2010 09/20/2010 09/20/2010 09/20/2010 09/20/2010 09/21/2010 09/23/2010
09/24/2010

136 MOTION for Order Amici Curiae's Motion for an Order Directing the Parties to Provide Copies of Discovery by Georgia Advocacy, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order Directing Parties to Provide Copies of Discovery to Amici Curiae)(Norris, Joshua) (Entered: 09/16/2010)
138 TRANSCRIPT of Proceedings held on 8/6/10 (Tele Conf) before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/7/2010. Redacted Transcript Deadline set for 10/18/2010. Release of Transcript Restriction set for 12/15/2010. (Attachments: # 1 Notice of Filing Transcript) (pjm) (Entered: 09/17/2010)
137 Joint PRELIMINARY REPORT AND DISCOVERY PLAN filed by United States of America. (Lapertosa, Max) (Entered: 09/17/2010)
NOTICE The court will conduct a status conference at 2:00 p.m. on September 23, 2010 in Courtroom 2307. Participation by telephone will not be possible. The topics the court intends to address are: (1) the proposed preliminary report and discovery plan; (2) the proposed protective orders; and (3) the amici curiae's motion seeking copies of discovery. (mam) (Entered: 09/17/2010)
139 ORDER GRANTING 91 Application for Admission Pro Hac Vice of Max Lapertosa. Signed by Judge Charles A. Pannell, Jr on 9/20/2010. (adg) (Entered: 09/20/2010)
140 ORDER granting 90 Application for Admission Pro Hac Vice of Timothy D. Mygatt. Signed by Judge Charles A. Pannell, Jr on 9/20/2010. (adg) (Entered: 09/20/2010)
NOTICE re 56 MOTION for Leave to File Excess Pages is GRANTED. (mam) (Entered: 09/20/2010)
141 Amended NOTICE to Take Deposition of 30(b)(6) Budget filed by United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
142 Amended NOTICE to Take Deposition of 30(b)(6) Housing filed by United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
143 Amended NOTICE to Take Deposition of Greg Hoyt filed by United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
144 Amended NOTICE to Take Deposition of William Janes filed by United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
145 Amended NOTICE to Take Deposition of Jewel Norman filed by United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
146 Amended NOTICE to Take Deposition of Denise McClain filed by United States of America (Fleisher, Aaron) (Entered: 09/20/2010)
147 NOTICE by The State of Georgia re: Subpoenas for Depositions of Non−Party Witnesses (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cohen, Mark) (Entered: 09/21/2010)
151 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Status Conference held on 9/23/2010. 53 Motion to Amend DENIED; 54 Motion to Consolidate Cases DENIED; 62 Motion for Miscellaneous Relief GRANTED IN PART &DENIED IN PART; 81 Motion to Dismiss DISMISSED as MOOT; 136 Motion for Order DENIED. Court heard from counsel The court will go forward with the Nov. 8th evidentiary hearing. The proposed joint preliminary report doc # 137 is Adopted w/exceptions. The proposed protective order doc # 131 is Adopted w/exceptions. Written order to follow. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 09/24/2010)
148 Amended NOTICE to Take Deposition of William Janes filed by United States of America (Fleisher, Aaron) (Entered: 09/24/2010)

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 19 of 21

09/24/2010 09/24/2010 09/24/2010
09/26/2010 09/27/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/29/2010 09/29/2010

149 Amended NOTICE to Take Deposition of Donald Manning filed by United States of America (Fleisher, Aaron) (Entered: 09/24/2010)
150 Amended NOTICE to Take Deposition of Karen Green−McGowan filed by United States of America (Fleisher, Aaron) (Entered: 09/24/2010)
152 ORDER DENYING 53 Motion to Amend; DENYING 54 Motion to Consolidate Cases ; GRANTING in part and DENYING in part 62 Motion for Enforcement of Settlement Agreement; DISMISSING as moot 81 Motion to Dismiss ; DENYING 136 Motion for Order directing the parties to provide counsel for the amici curiae with copies of discovery; the proposed updated 137 joint preliminary report anddiscovery plan is adopted with the exceptions as noted; the 131 proposed protective order is adopted with the following exception: As a general matter, this court will seal only those items enumerated in the court's Standing Order 04−02 regarding sensitive information and public access to electronic case files. If a party has very good cause to request the sealing of information beyond those items covered by Standing Order 04−02, the party shall firstpresent to chambers a motion to file under seal. The party shall indicate by entry of a notice on the CM/ECF docket that a motion to seal has been presented to the chambers. Attached to the motion should be the materialdesired to be sealed. The court will review the material in camera and make a decision whether to grant or deny the motion to seal. If the court determines that the motion is to be granted, the court will forward the signed motion and accompanying materials to the Clerk of the Court for entry of the motion on CM/ECF docket and appropriate filing of the sealed materials. If the courtdetermines that the motion is to be denied, the court will contact the filing party which may then retrieve the motion and materials. The Clerk is DIRECTED to file the motion for immediate relief and the response thereto in the 2010 Case. Signed by Judge Charles A. Pannell, Jr on 9/24/2010. (adg) (Entered: 09/24/2010)
153 NOTICE by The State of Georgia re: Amended Subpoena for Deposition of Non−Party Witness (Gates) (Attachments: # 1 Exhibit A)(Cohen, Mark) (Entered: 09/26/2010)
154 APPLICATION for Admission of Lewis Bossing Pro Hac Vice (Application fee $ 150, receipt number 113E−2919010)by Cynthia Wainscott. (Canfield, Kenneth) (Entered: 09/27/2010)
155 NOTICE of Appearance by Kevin Gregory Meeks on behalf of The State of Georgia (Meeks, Kevin) (Entered: 09/28/2010)
156 NOTICE of Appearance by Jaime L. Theriot on behalf of The State of Georgia (Theriot, Jaime) (Entered: 09/28/2010)
157 NOTICE of Appearance by Jeremy U. Littlefield on behalf of The State of Georgia (Littlefield, Jeremy) (Entered: 09/28/2010)
158 NOTICE of Appearance by Jeremy Patrick Burnette on behalf of The State of Georgia (Burnette, Jeremy) (Entered: 09/28/2010)
159 NOTICE of Appearance by Lynette Eaddy Smith on behalf of The State of Georgia (Smith, Lynette) (Entered: 09/28/2010)
160 NOTICE of Appearance by Steven J. Hewitson on behalf of The State of Georgia (Hewitson, Steven) (Entered: 09/28/2010)
161 NOTICE of Appearance by Lindsey Elisa Bowen on behalf of The State of Georgia (Bowen, Lindsey) (Entered: 09/28/2010)
162 CERTIFICATE OF SERVICE filed by United States of America re: DISCOVERY (Fleisher, Aaron) (Entered: 09/28/2010)
163 CERTIFICATE OF SERVICE filed by United States of America re: DISCOVERY (Fleisher, Aaron) (Entered: 09/28/2010)
164 First NOTICE to Take Deposition of BEVERLY ROLLINS filed by United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
165 Amended NOTICE to Take Deposition of FRANK SHELP filed by United States of America (Fleisher, Aaron) (Entered: 09/29/2010)

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 20 of 21

09/29/2010 09/29/2010 09/29/2010 09/29/2010 09/29/2010 09/30/2010
10/01/2010 10/07/2010 10/12/2010 10/19/2010 10/21/2010
10/21/2010 10/26/2010 11/10/2010 11/15/2010 11/17/2010 11/22/2010 11/29/2010 01/14/2011 05/18/2011

166 Amended NOTICE to Take Deposition of JEWEL NORMAN filed by United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
167 First NOTICE to Take Deposition of DR. NIRBHAY N. SINGH filed by United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
168 Amended NOTICE to Take Deposition of DR. WILLIAM MCDONALD filed by United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
169 Amended NOTICE to Take Deposition of 30(B)(6) DESIGNEE filed by United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
170 Amended NOTICE to Take Deposition of 30(B)(6) DESIGNEE filed by United States of America (Fleisher, Aaron) (Entered: 09/29/2010)
APPROVAL by Clerks Office re: 154 APPLICATION for Admission of Lewis Bossing Pro Hac Vice (Application fee $ 150, receipt number 113E−2919010). Attorney Lewis Bossing added appearing on behalf of Cynthia Wainscott (cdg) (Entered: 09/30/2010)
171 ORDER GRANTING 154 Application for Admission Pro Hac Vice of Lewis Bossing. Signed by Judge Charles A. Pannell, Jr on 10/1/2010. (adg) (Entered: 10/01/2010)
172 CERTIFICATE OF SERVICE re: Supplemental Discovery by United States of America.(Murray, Jeffrey) (Entered: 10/07/2010)
173 CERTIFICATE OF SERVICE for Rule 26 Expert Disclosures by United States of America.(Fleisher, Aaron) (Entered: 10/12/2010)
174 Joint MOTION for Order to Return to Inactive Docket by United States of America. (Koch, Robert) (Entered: 10/19/2010)
175 ORDER GRANTING 174 Motion to Return Case to the Court's Inactive Docket; DISMISSING 55 Motion for Preliminary Injunction; The hearing scheduled for11/8/2010 is canceled. The clerk is DIRECTED to administratively close this action. It shall be reopened upon the filing of a motion to enforce the settlement agreement by either party. Signed by Judge Charles A. Pannell, Jr on 10/21/2010. (adg) (Entered: 10/21/2010)
Civil Case Terminated. (adg) (Entered: 10/21/2010)
176 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Telephone Conference held on 10/26/2010 Regarding settlement agreement. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 10/26/2010)
177 APPLICATION for Admission of Jennifer L. Mondino Pro Hac Vice by United States of America. (Hughes, Aileen) (Entered: 11/10/2010)
RETURN of 177 APPLICATION for Admission of Jennifer L. Mondino Pro Hac Vice to attorney for correction. Petitioners signature needed. (cdg) (Entered: 11/15/2010)
178 APPLICATION for Admission of Jennifer L. Mondino Pro Hac Vice by United States of America. (Hughes, Aileen) (Entered: 11/17/2010)
APPROVAL by Clerks Office re: 178 APPLICATION for Admission of Jennifer L. Mondino Pro Hac Vice. Attorney Jennifer L. Mondino added appearing on behalf of United States of America (cdg) (Entered: 11/22/2010)
179 ORDER GRANTING 178 Application for Admission Pro Hac Vice of Jennifer L. Mondino. Signed by Judge Charles A. Pannell, Jr on 11/29/2010. (adg) (Entered: 11/29/2010)
180 NOTICE by Cynthia Wainscott Certificate of Consent to Withdrawal of Alison N. Barkoff as Co−counsel for Amici (Bossing, Lewis) (Entered: 01/14/2011)
181 NOTICE of Appearance by Thomas Jackson Morse on behalf of United States of America (Morse, Thomas) (Entered: 05/18/2011)

Case: 1:09-cv-119 As of: 03/31/2017 02:03 PM EDT 21 of 21

05/26/2011
09/10/2012 09/21/2012 09/26/2012 09/27/2012 09/28/2012 02/05/2014 02/28/2014

182 Certification of Consent to Substitution of Counsel. Thomas Jackson Morse replacing attorney Richard J. Farano; Aaron S. Fleisher; Max P. Lapertosa; Jeffrey R. Murray; Timothy D. Mygatt; Judy C. Preston; Amin Aminfar and David Deutsch. (Morse, Thomas) (Entered: 05/26/2011)
183 Certification of Consent to Substitution of Counsel. Jennifer Dalton replacing attorney Mark J. Cicero and Jason S. Naunas. (Dalton, Jennifer) (Entered: 09/10/2012)
184 APPLICATION for Admission of Katherine Houston Pro Hac Vice by United States of America. (Hughes, Aileen) (Entered: 09/21/2012)
APPROVAL by Clerks Office re: 184 APPLICATION for Admission of Katherine Houston Pro Hac Vice. Attorney Katherine Houston added appearing on behalf of United States of America (pb) (Entered: 09/26/2012)
185 NOTICE by United States of America of Consent to Withdrawal (Morse, Thomas) (Entered: 09/27/2012)
186 ORDER GRANTING 184 Application for Admission Pro Hac Vice of Katherine Houston. Signed by Judge Charles A. Pannell, Jr on 9/27/2012. (adg) (Entered: 09/28/2012)
187 NOTICE by United States of America of Termination of Settlement Agreement and Joint REQUEST to Close Case (Hughes, Aileen) Modified on 2/10/2014 (adg). (Entered: 02/05/2014)
188 ORDER GRANTING 187 Motion to Close Action. The case is HEREBY DISMISSEDwith prejudice, and the clerk is DIRECTED to terminate this civil action. Signed by Judge Charles A. Pannell, Jr on 2/28/2014. (adg) (Entered: 02/28/2014)

 
 Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 1 of 15
FILECI IN COWS taOFFICE

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

JAN 15 200 JAM, I~A~T~ .Clerk
BY poly

UNITED STATES OF AMERICA, )

Plaintiff, )

v.

)

}

THE STATE OF GEORGIA ; )

SONNY PERDUE, Governor of the State }

of Georgia, in his official capacity only ; }

B .J. WALKER, Commissioner, Georgia )

Department of Human Resources, in her )

official capacity only ; GWENDOLYN )

SKINNER, Director, Georgia Division of )

Mental Health, Developmental Disabilities )

and Addictive Diseases, in her official )

capacity only ; and SUSAN TRUEBLOOD, )

Administrator, Georgia Regional )

Hospital/Atlanta, in her official capacity )

only,

)

Defendants .

)

CIVIL ACTION NO .
1 O9-CV _ 0119
C OMPLAINT
C~tp

PLAINTIFF, THE UNITED STATES OF AMERICA ("Plaintiff'), by its undersigned attorneys, hereby alleges upon information and belief1 . The Attorney General files this Complaint on behalf of the United States of
America pursuant to the Civil Rights of Institutionalized Persons Act,

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 2 of 15
-2-
42 U.S .C . § 1997 ("CRIPA"), to enjoin the named Defendants from depriving individuals housed at the Georgia Regional Hospital /Atlanta ("Hospital") of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States .
JURISDICTION AND VENUE 2 . This Court has jurisdiction over this action under 28 U .S.C. §§ 1331
and 1345 . 3 . The United Statess 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 Northern District of Georgia is proper pursuant to 28 U.S .C . § 1391 .
DEFENDANTS 6 . Defendant State of Georgia ("State") owns and operates the Hospital, one of
seven facilities across the State that house individuals with mental illness,

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 3 of 15
W3mental retardation or other developmental disabilities, and addictive diseases, and, as such, has responsibility for the protections, supports, services, and treatment provided to patients at the Hospital . 7. Defendant Sonny Perdue is the Governor of the State, and, in that capacity, he has responsibility for the operation of the Hospital . Governor Perdue is sued in his official capacity. 8 . Defendant B .J. Walker is the Chief Executive Officer of the State's Department of Human Resources, and, in that capacity, exercises administrative control of, and responsibility for, the Hospital . Ms. Walker is sued in her official capacity.
9 . Defendant Gwendolyn Skinner is the Director of the Division of Mental Health, Developmental Disabilities and Addictive Diseases, a part of the State's Department of Human Resources, and, in that capacity, exercises administrative control of, and responsibility for, the Hospital . Ms. Skinner is sued in her official capacity .

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 4 of 15
-4-
10. Defendant Susan Trueblood is the Regional Administrator for the Hospital, and is responsible for the administration and day-to-day operations of the Hospital . Ms. Trueblood is sued in her official capacity .
11 . Defendants are legally responsible, in whole or in part, for the operation of, and conditions at, the Hospital, and for the health and safety of patients admitted to the Hospital.
12. Defendants are governmental authorities or agents thereof with responsibility for the administration of the Hospital within the meaning of 42IT.S.C. § 1997a .
13 . At all relevant times, Defendants or their predecessors in office have acted or failed to act, as alleged herein, under color of state law . FACTUAL ALLEGATIONS
14. The Hospital is an institution within the meaning of 42 U .S.C. § 1997{ l}. 15 . Individuals are confined to, or reside at, the Hospital because they have
been determined by Defendants to have mental illness or mental retardation or other developmental disabilities requiring protections, supports, services, and treatment .

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 5 of 15
-516 . Defendants are obligated to operate the Hospital in a manner that does not
infringe upon the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, of the Hospital's patients . 17. The protections, supports, services, and treatment at the Hospital substantially depart from generally accepted professional standards of care and applicable federal law, thereby exposing the individuals residing there to significant risk of harm, and in some cases, to actual harm . 18. The protections, supports, services, and treatment at the . Hospital substantially depart from generally accepted professional standards of care and applicable federal law in the following specific respects, among others :
a. the provision of reasonably safe conditions, including protection from abuse, neglect, and other harm, so as to ensure the reasonable safety and personal security of the Hospital's patients ;
b. the provision of that level of training, including behavioral, habilitation, and skills training and other related programs and

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 6 of 15
-6activities, necessary to protect the Hospital's patients' liberty interests, including their right to treatment, and ensure their safety and freedom from undue or unreasonable restraint ;
c . the provision of adequate mental health services to those patients in the Hospital with mental illness, including adequate psychological and psychiatric services ;
d. the provision of adequate health care to the Hospital's patients, including adequate general and specialty medical and nursing services ;
e. the provision of adequate nutritional and physical management to the Hospital's patients; and
f. the provision of adequate therapeutic services, including physical therapy, occupational therapy, speech therapy, and other forms of therapy .
19. Defendants are obligated to provide services, programs, andd activities to the Hospital's patients consistent with the Americans with Disabilities Act of

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 7 of 15
-71990 ("ADA") and implementing regulations . 42 U.S.C. § 2101 et.s,eq 28 C.F.R. Part 35 . 20. Patients at the Hospital are "qualified individual[s] with a disability" under the ADA, 42 U. S .C . §§ 12101, 12131 . 21 . The State and the State Department of Human Resources are "public
entities" under Title Ii of the ADA, 42 U .S.C. § 12131 . 22. Defendants have failed to meet the requirements of the ADA by excluding
the Hospital's patients, by reason of their disability, from participation in, or by denying them the benefits of, the services, programs, or activities in the most integrated setting appropriate to their needs . 23 . Defendants have failed and are continuing to fail to ensure that patients at the Hospital are adequately evaluated for placement in the most integrated setting ; that those individual patients whom professionals determine should be placed in community programs are placed in such programs , when appropriate ; and that the Hospital's patients are served in the most integrated setting appropriate to each patient's individual needs .

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 8 of 15
-8-
24. Defendants have engaged, andd continue to engage, in a pattern or practice of failing to ensure that eligible patients with disabilities at the Hospital receive adequate education and special education services .
25 . Defendants have engaged, and continue to engage, in a pattern or practice of failing to take reasonable steps to ensure that patients with limited English proficiency are provided with meaningful access to programs and services .
26. Defendants receive federal financial assistance and, as such, are subject to : (A) Title VI of the Civil Rights Act of 1964, as amended, 42 U .S .C. § 2000d, et sect,.., and the regulations promulgated thereunder; (B) Title XVIII and Title XIX of the Social Security Act, 42 U .S .C . §§ 1395 and 1396 et sec ., and the regulations promulgated thereunder ; and (C) the Individuals with Disabilities Education Act, 20 U .S .C. §§ 1400-1482, and the regulations promulgatedd thereunder.
27. The patients residing at the Hospital include patients with mental illnesses and other disabilities who fall within the meaning of "children with disabilities" as defined in the Individuals with Disabilities Education Act, 20 U.S.C. § 1401(3)(a)(1).

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 9 of 15
-9VIOLATIONS ALLEGED
Count One Violations of the Due Process Protections of the Fourteenth Amendment to the United States Constitution 28. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 27, as if fully set forth herein . 29. The acts and omissions alleged in Paragraphs 17, 18, and 22-27 constitute a pattern or practice and infringe upon the Hospital's patients' legal rights and substantive liberty interests and constitute resistance to their full enjoyment of their rights, privileges, or immunities secured or protected by the Fourteenth Amendment to the Constitution of the United States, and deprive the Hospital's patients of such rights, privileges, or immunities. 30. Unless restrained by this Court, Defendants will continue to engage in the pattern or practice of acts and omissions set forth in Paragraphs 17, 18, and 22-27 that deprive patients in the Hospital of rights, privileges, or immunities secured or protected by the Constitution of the United States .

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 10 of 15
-10Count Two Violation of Title XVIII and Title XIX o f the Social Security Act 31 . The United States incorporates by reference the allegations set forth in Paragraphs 1 through 27, as if fully set forth herein . 32. The acts, practices, and omissions alleged in Paragraphs 17-18 violate Title XVIII and Title XIX of the Social Security Act and the regulations promulgated thereunder . 42 U.S .C. §§ 1395 and 1396 et. seq 33 . Unless restrained by this Court, Defendants will continue to engage in the acts, practices, and omissions set forth in Paragraphs 17-18 that deprive patients in the Hospital of rights, privileges, or immunities secured or protected by federal law . Count Three Violation of the Americans With Disabilities Act 34. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 27, as if fully set forth herein . 35 . The acts, practices, and omissions alleged in Paragraphs 22 and 23 violate the Americans with Disabilities Act and its implementing regulations . 42 U.S .C . § 12101 et se q ., 28 C .F .R. Part 35 .

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 11 of 15
-11-
36 . Unless restrained by this Court, Defendants will continue to engage in the acts, practices, and omissionss set forth in Paragraphs 22 and 23 that deprive patients in the Hospital of rights, privileges, or immunities secured or protected by federal law . Count Four Violation of the Individuals with Disabilities Education Act
37. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 27, as if fully set forth herein .
38. The acts, practices, and omissions alleged in Paragraphs 24 and 26-27 violate the Individuals with Disabilities Education Act and its implementing regulations . 20 U.S .C. §§ 1400-1482 .
39. Unless restrained by this Court, Defendants will continue to engage in the acts, practices, and omissions set forth in Paragraphs 24 and 26-27 that deprive patients in the Hospital of rights, privileges, or immunities secured or protected by federal law.

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 12 of 15
-12Count Five Violation of Title VI of the Civil Rights Act of 1964 40. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 27, as if fully set forth herein . 41 . The acts, practices, and omissions alleged in Paragraphs 25-26 violate Title VI of the Civil Rights Act of 1964, as amended, and the regulations promulgated thereunder . 42 U.S .C. § 2000d, et . seq 42. Unless restrained by this Court, Defendants will continue to engage in the acts, practices, and omissions set forth in Paragraphs 25-26 that deprive patients in the Hospital of rights, privileges, or immunities secured or protected by federal law . PRAYER FOR RELIEF 43 . The Attorney General is authorized under 42 U .S.C. § 1997 to seek equitable and declaratory relief. WI-IEREFORE, the United States of America respectfully requests that this Court :

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 13 of 15
-13a. _ Permanently enj oin Defendants, their officers, agents,
employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts and omissions set forth in Paragraphs 17, 18, and 22-25 above, and require Defendants to take such actions as will bring Defendants into compliance with federal law and ensure that adequate protections, supports, services, and treatment are afforded to the Hospital's patients ; and b: Grant such other and further equitable relief as the Court may deem just and proper.
Respectfully submitted,
MICHAEL B . MUK fSEY Attorney General of the United States

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 14 of 15

s ALL'-f Q . YA-rC..s
I-)4+t United States Attorney Northern District of Georgia

-14-
a ce
G CE CHUNG BACKER Acting Assistant Attorney General Civil Oghts Division

G,. .
AMY L. BERNE [GA Bar 006670] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel : (404) 581-6261 Fax: (404) 581- 6 1 63 Email: Amy.Berne@usdoj .gov

A Y. CUTLAR [CA Bar 169849] Special Litigation Section
JUDY C .64~RESTON [MD Bar (No Deputy Chief Special Litigation Section

DAVID DEUT H [DC Bar 248120] MARY R. BOHAN [DC Bar 420628] TIMOTHY D. MYGATT [PA Bar 90403] AMIN AMINFAR [NC Bar 36589] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-0212 Email : Timothy .Mygatt@usdoj .gov

Case 1:09-cv-00119-CAP Document 1 Filed 01/15/09 Page 15 of 15
Oicr of #4e At#arnev Orrterai
4$4ingfon, ll (9. 2Misu

CERTIFICATE OF THE ATTORNEY GENERAL
I, MICHAEL B . MUKASEY, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v . Georgia, et al ., I have complied with all subsections of 42 U .S .C . § 1997b(a)(1) . I certify as well that I have complied with all subsections of 42 U .S .C . § 1997b(a)(2) . I further certify, pursuant to 42 U .S .C . § 1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States .
In addition, I certify that I have the "reasonable cause t o believe," set forth in 42 U .S .C . § 1997a, to initiate this action, and that all statutory prerequisites to the initiation of this suit have been met .
Pursuant to 42 U .S .C . § 1997a(c), I have personally signed the foregoing Complaint . Pursuant to 42 U .S .C . § 1997b(b), I am personally signing this Certificate .,

Signed this at Washington, D .

20Cf ,

42 U .S .C . § 1997

States

 
 IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION


UNITED STATES OF AMERICA,

)


)


Plaintiff,

)


)


v.

)

)

THE STATE OF GEORGIA;

)

SONNY PERDUE, Governor, State of

)

Georgia, in his official capacity; FRANK E. )

SHELP, Commissioner, Georgia

)

Department of Behavioral Health and

)

Development Disabilities, in his official )

capacity; RHONDA M. MEDOWS,

)

Commissioner, Georgia Department of

)

Community Health, in her official capacity; )

MARVIN V. BAILEY, Administrator,

)

Central State Hospital, in his official

)

capacity; SUSAN TRUEBLOOD,

)

Administrator, Georgia Regional

)

Hospital/Atlanta, in her official capacity; )

KARL H. SCHWARZKOPF,

)

Administrator, Northwest Georgia Regional )

Hospital, in his official capacity; CHARLES )

LI, Administrator, Georgia Regional

)

Hospital/Savannah, in his official capacity; )

NANNETTE M. LEWIS, Administrator, )

East Central Regional Hospital, in her

)

official capacity; HILLARY HOO-YOU, )

Administrator, Southwestern State Hospital, )

in her official capacity; and JOHN L.

)

ROBERTSON, Administrator, West Central )

Georgia Regional Hospital, in his official )

capacity,

)

Defendants.

)

___________________________________ )

CIVIL ACTION NO. 1:09-CV-119-CAP

-2­
AMENDED COMPLAINT PLAINTIFF, THE UNITED STATES OF AMERICA (“Plaintiff”), by its undersigned attorneys, hereby alleges upon information and belief: 1. The Attorney General files this Amended Complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, to enjoin the named Defendants from depriving individuals housed at the Georgia State Psychiatric Hospitals of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.
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 Amended Complaint and is incorporated herein.

-3­ 5. Venue in the Northern District of Georgia is proper pursuant to
28 U.S.C. § 1391, as a substantial portion of the acts and omissions giving rise to this action occurred in the Northern District of Georgia, § 1391(b).
DEFENDANTS 6. Defendant State of Georgia (“State”) owns and operates seven state
psychiatric hospitals which provide inpatient services to persons with mental illnesses, addictive diseases, and developmental disabilities: Central State Hospital in Milledgeville, Georgia Regional Hospital at Atlanta, Northwest Georgia Regional Hospital in Rome, Georgia Regional Hospital at Savannah, East Central Regional Hospital in Augusta, Southwestern State Hospital in Thomasville, and West Central Georgia Regional Hospital in Columbus (collectively the “State Psychiatric Hospitals”). 7. Defendant State delivers services to persons with mental illnesses, addictive diseases, and developmental disabilities primarily through the Georgia Department of Behavioral Health and Developmental Disabilities (“DBHDD”) and the Georgia Department of Community Health (“DCH”). 8. Defendant Sonny Perdue, Governor of the State of Georgia, is the Chief Executive of the State and responsible for operation of its executive agencies. Defendant Perdue is sued in his official capacity as Governor.

-4­ 9. Defendant Frank E. Shelp is the Commissioner of DBHDD and responsible
for all operations of DBHDD. Defendant Shelp is sued in his official capacity as Commissioner of DBHDD. 10. Defendant Rhonda M. Medows is the Commissioner of DCH and responsible for all operations of DCH. Defendant Medows is sued in her official capacity as Commissioner of DCH. 11. Defendant Marvin V. Bailey is the Regional Hospital Administrator of Central State Hospital (“CSH”), and responsible for all operations of CSH. Defendant Bailey is sued in his official capacity as Administrator of CSH. 12. Defendant Susan Trueblood is the Regional Hospital Administrator of Georgia Regional Hospital/Atlanta (“GRHA”), and responsible for all operations of GRHA. Defendant Trueblood is sued in her official capacity as Administrator of GRHA. 13. Defendant Karl H. Schwarzkopf is the Regional Hospital Administrator of Northwest Georgia Regional Hospital (“NWGRH”), and responsible for all operations of NWGRH. Defendant Schwarzkopf is sued in his official capacity as Administrator of NWGRH.

-5­ 14. Defendant Charles Li is the Regional Hospital Administrator of Georgia
Regional Hospital/Savannah (“GRHS”), and responsible for all operations of GRHS. Defendant Li is sued in his official capacity as Administrator of GRHS. 15. Defendant Nannette M. Lewis is the Regional Hospital Administrator of East Central Regional Hospital (“ECRH”), and responsible for all operations of ECRH. Defendant Lewis is sued in her official capacity as Administrator of ECRH. 16. Defendant Hillary Hoo-You is the Regional Hospital Administrator of Southwestern State Hospital (“SWSH”), and responsible for all operations of SWSH. Defendant Hoo-You is sued in her official capacity as Administrator of SWSH. 17. Defendant John L. Robertson is the Regional Hospital Administrator of West Central Georgia Regional Hospital (“WCGRH”), and responsible for all operations of WCGRH. Defendant Robertson is sued in his official capacity as Administrator of WCGRH. 18. Defendants are legally responsible, in whole or in part, for serving persons with disabilities in the most integrated setting appropriate to their needs, and for the operation of, and conditions at, the State Psychiatric Hospitals,

-6­ including, at a minimum, the health, safety, protections, supports, services, and treatment of persons residing in or confined to the Hospitals. 19. Defendants are governmental authorities or agents thereof with responsibility for the administration of the State Psychiatric Hospitals within the meaning of 42 U.S.C. § 1997a. 20. At all relevant times, Defendants or their predecessors in office have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS
 Background

21. In 1999, the U.S. Supreme Court considered the case of two women whom the State continued to confine at GRHA after their treatment professionals had determined that they could be treated in the community. Olmstead v. L.C., 527 U.S. 581, 593 (1999). The Court held that the unnecessary institutionalization of persons with disabilities violates federal law. Id. at 587.
22. After Olmstead, the State commissioned a series of studies of its community mental health system which identified accountability, oversight, management, and quality of care issues. See, e.g., Study of the Community Service Board Service Delivery System (Phase I) (Feb. 2004); Study of the

-7­ Community Service Board Service Delivery System (Phase II) (Jan. 2005); Georgia Mental Health System Gap Analysis (May 2005); Governor’s Mental Health Service Delivery Commission’s Progress Report (June 2008). 23. On January 7, 2007, the Atlanta Journal-Constitution began publishing its series “A Hidden Shame: Danger and Death in Georgia’s Mental Hospitals,” detailing suspicious deaths, abuse, neglect, and inadequate care throughout Georgia’s mental health system. See Alan Judd & Andy Miller, Five Years, 115 Patients Dead Who Might Have Lived, Atlanta J.-Const., Jan. 7, 2007, at 1A; Alan Judd & Andy Miller, A Suicidal Patient, but No Safe Haven, Atlanta J.-Const., Jan. 8, 2007, at 1A; Alan Judd & Andy Miller, A Fatal Struggle—but No Punishment, Atlanta J.-Const., Jan. 14, 2007, at 1A; Alan Judd & Andy Miller, Lax Security, Easy Escape, Tragic Ending, Atlanta J.-Const., Jan. 15, 2007, at 1A; Alan Judd & Andy Miller, A Family Shattered by Failure in Care, Atlanta J.-Const., Apr. 1, 2007, at 1A; Alan Judd & Andy Miller, “Home” Alone: Psychiatric Patients Are Vulnerable when State Shunts Them to Inns, Shelters, Even the Streets, Atlanta J.-Const., June 24, 2007, at 1A; Alan Judd & Andy Miller, Kids Housed in Units with Violent Teens, Atlanta J.-Const., July 29, 2007, at 1A; Alan Judd & Andy Miller, He Died Waiting, Atlanta J.-Const.,

-8­ Sept. 16, 2007, at 1A; Alan Judd & Andy Miller, Deadly Dilemma, Atlanta J.-Const., Dec. 9, 2007, at 1A; Alan Judd & Andy Miller, More Deaths Blamed on Errors, Neglect, Atlanta J.-Const., Dec. 30, 2007, at 1A; Alan Judd & Andy Miller, Feds’ Inquiry Could Take Months, Atlanta J.-Const., Feb. 1, 2008, at 1A. 24. In December 2007, the Medical College of Georgia issued a report detailing deficits at the seven State Psychiatric Hospitals in areas such as protection from harm, mental health treatment, nursing staffing, risk management, and performance improvement. Peter F. Buckley & Nannette M. Lewis, Medical College of Georgia, A Comprehensive Evaluation of Georgia’s State Hospital Services (2007) (Ms. Lewis is now the Administrator at ECRH).
Plaintiff 25. On April 18, 2007, the United States notified Defendants that it was
initiating an investigation of conditions and practices at the State Psychiatric Hospitals pursuant to CRIPA, 42 U.S.C. § 1997. 26. In September 2007, the United States began investigative tours of the State Psychiatric Hospitals with the assistance of expert consultants in the fields of psychiatry, psychology, nursing, protection from harm, and discharge planning and community placement. The United States conducted three

-9­ investigative tours and, after entering into an agreement with the State that was designed to bring the State into compliance with the Constitution and federal statutory law, nine compliance tours. The United States has toured each of the State Psychiatric Hospitals and conducted 12 tours altogether. The United States toured GRHA on September 17-21, 2007; NWGRH on October 29 through November 2, 2007; GRHS on December 17-21, 2008; CSH on April 8, 2009; ECRH on May 4-8, 2009; GRHS on June 22-26, 2009; CSH on June 30 through July 1, 2009; GRHA on August 2-6, 2009; SWSH on October 13-16, 2009; CSH on November 2-6, 2009; WCGRH on November 30 through December 3, 2009; and CSH on January 11-15, 2010. 27. On each tour, the United States interviewed administrative staff, mental health care providers, and patients, and examined the physical plant conditions of the hospital. The United States also reviewed a wide variety of documents, including policies and procedures, incident reports, medical and mental health records, and discharge planning and community placement records. 28. At the conclusion of each tour, the United States provided Defendants with extensive debriefings at which it conveyed grave concerns about conditions

- 10 ­ at the hospital in areas such as discharge planning and community placement, protection from harm, mental health treatment, seclusion and restraint, medical care, and services to individuals with specialized needs. 29. In May 2008, January 2009, and December 2009, the United States sent Defendants letters of findings regarding GRHA, NWGRH, and the remaining five Hospitals (CSH, GRHS, ECRH, SWSH, and WCGRH), respectively. Each letter formally advised Defendants of the findings of the United States’ investigations, the facts supporting those findings, and the minimum remedial steps necessary to remedy identified deficiencies. The letters found that Defendants fail to provide adequate discharge planning to ensure placement in the most integrated setting and to provide adequate supports and services necessary for successful discharge. The letters also concluded that conditions and practices at each of the State Psychiatric Hospitals violate the constitutional and federal statutory rights of persons confined therein. Specifically, the letters found that Defendants provide deficient services that subject patients both to actual harm, and to an excessive risk of harm, including inadequate protection from harm, inappropriate mental health treatment, inappropriate seclusion and restraints, inadequate medical care, and inadequate services to persons with specialized

- 11 ­ needs. See Letter from Grace Chung Becker, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to Sonny Perdue, Governor, State of Georgia (May 30, 2008) (GRHA Findings Letter); Letter from Grace Chung Becker, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to Sonny Perdue, Governor, State of Georgia (Jan. 15, 2009) (NWGRH Findings Letter); Letter from Thomas E. Perez, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to Sonny Perdue, Governor, State of Georgia (Dec. 8, 2009) (Findings Letter for CSH, GRHS, ECRH, SWSH, and WCGRH) (Attached as Exhibits 1-3, respectively). 30. In September 2009 and November 2009, the United States sent Defendants letters assessing Defendants’ compliance with a January 2009 agreement designed to bring Defendants into compliance with the constitutional and federal statutory rights of the patients of the State Psychiatric Hospitals. The September 2009 letter found that, at ECRH, of the 89 provisions in the agreement, Defendants had achieved substantial compliance with zero provisions, partial compliance with one provision, and beginning compliance with seven provisions. The November 2009 letter found that, at GRHS, of the 89 provisions in the agreement, Defendants had achieved

- 12 ­ substantial compliance with zero provisions, partial compliance with one provision, and beginning compliance with 10 provisions. Each letter included a detailed report with the United States’ consultants’ assessments of each agreement provision and technical assistance to help Defendants achieve compliance with the Constitution and federal statutory law. See Letter from Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn & Jason Naunas, State of Georgia (Sept. 9, 2009) (ECRH Compliance Letter and Expert Report); Letter from Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn & Jason Naunas, State of Georgia (Nov. 19, 2009) (GRHS Compliance Letter and Expert Report) (Attached as Exhibits 4 and 5, respectively). 31. Between April 2009 and January 2010, the United States sent Defendants 11 emergency letters requesting immediate information, follow-up, and/or corrective actions to address conditions or practices that posed an immediate and serious threat to the life, health, and/or safety of patients. The letters concerned a homicide at CSH, questionable medical deaths at CSH, a rape at SWSH, two rapes at ECRH, a suicide at GRHS, a suicide attempt at ECRH,

- 13 ­ life-threatening conditions at CSH, a questionable medical death at SWSH,
 and a suicide at SWSH. See Letter from Mary Bohan, Trial Attorney,
 Special Litigation Section, Civil Rights Division, U.S. Department of
 Justice, to Jason Naunas, Department of Law, State of Georgia
 (Apr. 7, 2009) (CSH homicide); Letter from Shanetta Y. Cutlar, Chief,
 Special Litigation Section, Civil Rights Division, U.S. Department of
 Justice, to Dennis R. Dunn, Deputy Attorney General, Department of Law,
 State of Georgia (Apr. 15, 2009) (CSH homicide follow-up); Letter from
 Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division,
 U.S. Department of Justice, to Dennis R. Dunn, Deputy Attorney General, Department of Law State of Georgia (June 9, 2009) (CSH medical deaths); Letter from Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Jason S. Naunas, Assistant Attorney General, Department of Law, State of Georgia (July 16, 2009) (CSH homicide follow-up); Letter from Mary Bohan, Trial Attorney, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn & Jason Naunas, State of Georgia (July 31, 2009) (SWSH rape); Letter from Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn &

- 14 ­ Jason Naunas, State of Georgia (Aug. 14, 2009) (ECRH rapes); Letter from Judy Preston, Deputy Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn & Jason Naunas, State of Georgia (Sept. 4, 2009) (GRHS suicide); Letter from Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn & Jason Naunas, State of Georgia (Nov. 18, 2009) (ECRH suicide attempt); Letter from Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn & Jason Naunas, State of Georgia (Nov. 25, 2009) (CSH suicide prevention, patient-on-patient aggression, physical and nutritional management, and emergency preparedness); Letter from Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn & Jason Naunas, State of Georgia (Dec. 11, 2009) (SWSH death); Letter from Shanetta Y. Cutlar, Chief, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, to Mary Lou Rahn & Jason Naunas, State of Georgia (Jan. 6, 2010) (SWSH suicide) (Attached as Exhibits 6-16, respectively).

- 15 ­ Summary of Allegations 32. Significant, systemic deficiencies exist in Defendants’ provision of services to persons with disabilities who are confined in the State Psychiatric Hospitals. Discharge services at the State Psychiatric Hospitals substantially depart from generally accepted professional standards, violate the constitutional and federal statutory rights of persons confined therein, and fail to serve patients in the most integrated setting appropriate to their needs as mandated by Olmstead. Persons confined to the State Psychiatric Hospitals also continue to suffer from additional, preventable harm, including: assault by peers, self-harm, regression and loss of skills from inadequate treatment and services, harm from excessive restraint and administration of sedating medications, harm from inadequate medical and nursing care, and harm from the lack of services to persons with specialized needs. 33. The State’s own progress reports detailing its Quality Management systems and its Progress Report on development of a Plan of Implementation demonstrate that essential services are not being provided to the patients of the State Psychiatric Hospitals in violation of the Constitution and federal statutory law.

- 16 ­ Discharge Planning and Community Placement 34. Hundreds of patients currently confined in the State Psychiatric Hospitals have been determined by their teams of treatment professionals to be appropriate for community-based treatment, but nonetheless have not been discharged to the community or another more integrated setting. 35. Defendants maintain a list of patients whose treatment teams have determined that they can be served in a setting less restrictive than the State Psychiatric Hospitals. Defendants call this list the Olmstead list and use the list to direct their discharge planning, transition, and community placement resources. 36. Defendants’ Olmstead list fails to identify many patients who could be more appropriately served in a less restrictive setting. Defendants do not place patients with a mental illness on the Olmstead list until at least 60 days have passed since the patient was admitted to the State Psychiatric Hospitals and the patient’s treatment team has decided that the patient is ready for discharge. 37. Numerous patients with a mental illness are admitted to the State Psychiatric Hospitals for a brief period and then discharged, only to be re-admitted in weeks or months. In this population, frequently referred to as the “revolving

- 17 ­ door” population, many patients have been institutionalized dozens of times in a period of a few years. These patients typically are not placed on the Olmstead list, nor do they receive adequate treatment or discharge planning. Defendants concede that these readmissions reflect inadequacies in their discharge planning and/or community services. 38. Patients with mental illness who are in the State Psychiatric Hospitals for 60 or more days do not qualify for the Olmstead list until their treatment teams have decided that they are ready for discharge. Thus, they do not receive the very transition services necessary to ameliorate specific barriers to discharge until they have been determined to be ready for discharge. 39. Defendants have made the judgment that all persons with developmental disabilities in the State Psychiatric Hospitals could live successfully in the community with appropriate supports. They place all individuals with a developmental disability on the Olmstead list unless an individual’s treatment professionals determine that the individual or the individual’s representative objects to community placement. Nevertheless, hundreds of individuals with a developmental disability remain institutionalized. 40. Defendants fail to move individuals with disabilities into more integrated settings at a reasonable pace. According to Defendants’ own Olmstead

- 18 ­ Monthly Progress Report, in September 2009, there were 765 persons with developmental disabilities on the Olmstead list. The total number of individuals with developmental disabilities on the Olmstead list stayed relatively constant during the period from September 2008 through September 2009. Moreover, the number of placements slowed considerably in July, August, and September 2009. Between September 2008 and September 2009, the average number of days on the Olmstead list for persons with developmental disabilities doubled, and 86 individuals remained waiting for more integrated services after the date set by their treatment team for their discharge had come (and gone). 41. The lack of available community services continues to be a barrier to successful discharge of institutionalized persons who could be served in the community with appropriate supports. In 2003, the State developed a plan to comply with the Supreme Court’s mandate in Olmstead that identified urgent community services needs and goals, which remain unaddressed. Defendants concede that they provide a relatively complete array of services, but that not all services are available in all parts of the State, and that capacity of some services is limited in many parts of the State.

- 19 ­ 42. Lack of income and employment have long been identified as barriers to
successful community living, yet the State Psychiatric Hospitals receive little support from the State’s office of vocational rehabilitation, and supported employment programs have suffered from budget cuts and services cutbacks in each of the last several fiscal years. 43. Individuals with developmental disabilities, in particular, are institutionalized for long periods while waiting for funding of community slots. 44. Many patients never should have been admitted to the State Psychiatric Hospitals in the first place. Scores of patients are institutionalized not because the severity of their condition requires institutionalization, but because community services are not available to address their needs before admission. 45. The State Psychiatric Hospitals function as the initial point of access to mental health services in the State, instead of as part of a continuum of care for those with chronic mental illness for whom community-based services are clinically inappropriate. Staff at each of the State Psychiatric Hospitals concede that there are insufficient Assertive Community Treatment teams, which provide comprehensive, community-based psychiatric treatment,

- 20 ­ rehabilitation, and support to persons with serious and persistent mental illness, to provide services to the discharged patients who require them. 46. Individuals with developmental disabilities face unnecessary or premature admission to CSH, the largest of the institutions housing people with developmental disabilities, because the supports in the community for crisis intervention are inadequate to handle the normal behavioral variability of some persons with developmental disabilities. 47. In their discharge planning and community placement, Defendants fail to provide adequate assessments, diagnoses, and treatment that would enable patients in the State Psychiatric Hospitals to live successfully in the community; fail to analyze or address high rates of recidivism among revolving door patients and, consequently, to provide appropriate treatment to those patients; and fail to identify, develop, and coordinate resources necessary to facilitate successful discharge. These failures substantially depart from generally accepted professionals standards and do not comply with the integration mandate of Olmstead. 48. The first and most fundamental step in discharge planning and placement should be to conduct an adequate assessment. Assessments establish a patient’s diagnosis and plan of treatment. The adequacy of a patient’s

- 21 ­ assessment begets the adequacy of the patient’s treatment plan and treatment, which begets the adequacy of the patient’s discharge plans and discharge. 49. Defendants’ assessments often lack critical information, such as a suicide risk assessment, and contain tentative, unspecified, and/or conflicting diagnoses. Defendants’ assessments, treatment plans, and treatment substantially depart from generally accepted professional standards. 50. In cases of repeat admissions, systematic analysis should determine and address the reasons for re-admission so that patients are not subjected to needless institutionalization in a cycle of admission and discharge. 51. Frequent re-admissions are extremely detrimental to these individual patients, disrupting their recoveries and their lives in the community. The best chance for a successful recovery outcome usually is achieved when the person receives adequate care during the first episode of a psychiatric illness. Frequent relapses and re-admissions often progressively worsen a patient’s mental illness and make patients more intractable to treatment, diminishing the opportunity for recovery with each episode.

- 22 ­ 52. Extremely high rates of re-admission at the State Psychiatric Hospitals are
well-documented in Defendants’ own audits, from the 2005 Georgia Mental Health Gap Analysis study to the 2009 Statewide Quality Management Report. 53. Defendants’ treatment teams frequently do not examine or address the factors that led to re-admission for individual patients, nor do they alter the patient’s treatment from a previous stay at the hospital. Defendants’ handling of repeat admissions substantially departs from generally accepted professional standards. 54. An essential component of an adequate discharge plan for any patient should be linkage to necessary community supports. State and facility policies, procedures, and strategic plans confirm the critical importance of community coordination, yet those policies frequently are not implemented and linkage does not occur. 55. Defendants’ discharge plans do not adequately describe, identify, or secure the community resources necessary to serve patients in the community. Defendants’ discharge plans substantially depart from generally accepted professional standards.

- 23 ­ 56. Defendants frequently discharge patients to locations that are not the most
integrated setting appropriate to their needs, including homeless shelters. Discharges to inappropriate locations substantially depart from generally accepted professional standards. Homeless shelters are not equipped to provide the level of care required for a patient being discharged from a psychiatric hospital, many of whom have severe and persistent mental illness. The Supreme Court, in Olmstead, 527 U.S. at 605, stated that homeless shelters were inappropriate discharge locations, and staff at each of the State Psychiatric Hospitals concede that shelters do not have sufficient structure or supervision for persons with mental illness. Patients discharged to inappropriate locations are likely to return to the hospital and repeat the cycle of inadequate discharge multiple times. 57. Defendants’ substantial departures from generally accepted professional standards and failure to place individuals in the most integrated setting appropriate to their needs have resulted in failed discharges and inappropriately long delays for placement in the community. 58. For example, between January 2006 and August 2007, according to Defendants’ own discharge data, 301 patients at GRHA were discharged to homeless shelters, 32 to “transportation terminal[s],” 33 to hotels and lodges,

- 24 ­ 12 to single-room-occupancy apartments, and 36 to what were listed as “Temporary Locations.” 59. In the first nine months of 2007, approximately 240 patients who had been discharged from NWGRH were re-admitted to NWGRH. Dozens of these patients had lifetime histories of more than 20 readmissions. 60. A patient with a history of 18 admissions was discharged from NWGRH to a homeless shelter with no contact from the local Community Service Board. 61. A patient with a history of three admissions was discharged from NWGRH with a bus ticket, five days of medication, and the address of a rescue mission shelter in a different state. 62. A patient was discharged from his third and fourth admissions to NWGRH to a homeless shelter. 63. In February 2007, a patient with a history of 14 admissions and a diagnosis of mood disorder and substance abuse disorder was discharged from GRHA to a homeless shelter. He returned to GRHA 10 days later. He received no treatment for substance abuse while at GRHA and no planning for substance abuse services when he returned to the community. 64. In August 2007, a patient with a history of seven admissions to GRHA was discharged from GRHA but then readmitted 10 days later. Her treatment

- 25 ­ team did not effectively review the reasons for that discharge failure or to prevent its recurrence. She was discharged to a hotel and instructed to contact the local mental health center. Her discharge plan did not identify a specific case manager, physician, or psychiatrist, and no community provider was present at her discharge treatment meeting. 65. A patient was admitted to GRHA twice in 2007 with a history of 35 prior admissions and co-occurring diagnoses of substance abuse and psychotic disorder with hallucinations. She received no substance abuse treatment while at GRHA. She was discharged to a night shelter without adequate planning for community substance abuse care. 66. In December 2008, a patient at SWSH was discharged to the community while on heightened observation as a suicide-risk precaution, a decision which SWSH later concluded was due to pressure to reduce the hospital’s census. This patient committed suicide nine days later. 67. In 2009, a patient at GRHS with a history of more than 100 hospital admissions was discharged, according to his discharge summary, to “wherever he goes.” The prognosis in his discharge summary was that “he would return in a week.”

- 26 ­ 68. In 2009, a patient recently discharged from GRHA killed a family member.
The family had opposed the patient’s discharge because her assessment contained inaccurate information concerning her compliance with treatment and the extent of her thought disorder, but she still was discharged. 69. In May 2009, the 25 most recent discharge plans at ECRH revealed a lack of systematic review or analysis of the cause for the patients’ admissions, nor were the plans individualized to each individual patient. 70. ECRH determined that a patient with mental illness was ready for discharge in June 2007, but in May 2009, he still was institutionalized. The patient was eligible for a Medicaid waiver, but his treatment professionals had not identified a community service provider. 71. Between approximately July 2009 and October 2009, according to Defendants’ own discharge data, SWSH discharged dozens of patients to shelters and two dozen patients to locations such as “streets” and “car or other abandoned building.” 72. In November 2009, treatment professionals at CSH conceded that whole units of individuals could be placed into a more integrated setting but that adequate supports and services are not available.

- 27 ­ 73. Between November 2008 and November 2009, CSH discharged more than
100 patients to shelters, including approximately 33 patients between August 2009 and November 2009. 74. Between December 2008 and December 2009, according to Defendants’ own discharge data, WCGRH discharged approximately 39 patients to locations such as “streets (public park, bridge),” “car or abandoned house/building,” “night shelter,” “hotel/motel,” and “crisis or emergency center.” 75. The allegations in Paragraphs 34 through 74 show systemic failures in discharge planning and community placement that substantially depart from generally accepted professional standards and fail to place individuals with disabilities in the most integrated setting appropriate to their needs.
Protection from Harm 76. Patients in the State Psychiatric Hospitals have a right to live in reasonable
safety. 77. Patients in the State Psychiatric Hospitals live in unsafe environments
subject to serious and frequent harm such as patient-on-patient assaults and self-injurious behaviors because Defendants fail to identify and respond to risks of harm.

- 28 ­ 78. Incident and risk management systems should collect and aggregate data that
is meaningful to protect individuals from harm, identify actual or potential harm from that data, and take timely action to prevent harm from occurring or recurring. 79. Defendants’ incident and risk management system fails to adequately collect and report data accurately, fails to adequately investigate incidents thoroughly, fails to adequately identify actual or potential risks of harm, and fails to adequately implement and monitor effective corrective and preventive actions. Each of these failures substantially departs from generally accepted professional standards. 80. The first necessary step in incident and risk management should be to ensure complete, accurate, and timely incident reporting. Without reliable and timely data regarding incidents and injuries, harm cannot be responded to appropriately. Delay compromises, or eliminates altogether, the possibility that an injury’s origin can be determined, including whether abuse was contributory. 81. Defendants fail to adequately report incidents in a timely and accurate manner, if at all. Some incident data is not collected because Defendants’ incident and reporting categories fail to include it, and the incident data that

- 29 ­ is collected is often inaccurate. Defendants’ incident reporting substantially departs from generally accepted professional standards. 82. Investigations in an incident and risk management system should determine the underlying cause of an incident by systematically identifying, collecting, preserving, analyzing, and presenting evidence. 83. Defendants’ investigations fail to adequately include information that is necessary to finding the root cause of an incident or delve sufficiently into the possible origins of incidents, including whether quality of care, abuse, or neglect contributed to an injury. Instead, investigations often focus on Defendants’ response to an injury or illness. Defendants’ investigations substantially depart from generally accepted professional standards. 84. An incident and risk management system should analyze incident data collected and investigations conducted to identify and anticipate potential harm and to mitigate the risk of that harm occurring. Mortalities often involve systemic issues that should be reviewed and evaluated to identify the underlying cause of the death and to correct deficiencies that may prevent deaths or similar harm from occurring in the future. 85. The lack of data caused by Defendants’ failures in incident reporting and investigating renders Defendants unable to adequately recognize trends and

- 30 ­ the potential for harm before serious and life-threatening conditions arise. In their existing data, Defendants fail to adequately identify trends and the potential harm, and their mortality reviews fail to adequately examine or identify the underlying causes of deaths. Defendants’ failures to adequately identify actual or potential risks of harm substantially depart from generally accepted professional standards. 86. An incident and risk management system should implement corrective and preventive actions to reduce or eliminate an identified risk of harm, and monitors and modifies those actions as necessary. 87. Defendants fail to adequately develop or implement corrective and preventive actions to reduce risks of harm because they fail to adequately identify actual or potential risks. For risks that Defendants identify, Defendants fail to adequately implement corrective and preventive actions in response to known risks in a timely manner, if at all. For corrective and preventive actions that Defendants implement, they fail to adequately monitor those actions as necessary to reduce or eliminate the risk of harm. Defendants’ corrective and preventive actions substantially depart from generally accepted professional standards.

- 31 ­ 88. A quality management system should incorporate data capture, retrieval, and
statistical analysis to identify and track trends and to monitor the effectiveness of corrective actions taken in response to identified problems. 89. Defendants’ quality management system fails to adequately collect the data necessary to track and trend the quality of care provided in the State Psychiatric Hospitals. For those trends in their existing data, Defendants often fail to adequately identify and respond to them. For those corrective actions that Defendants take, Defendants’ quality management system lacks reliable accountability and oversight. Defendants’ quality management system substantially departs from generally accepted professional standards. 90. As a result of Defendants’ substantial departures from generally accepted professional standards with respect to protection from harm, patients in the State Psychiatric Hospitals suffer serious, frequent, recurrent, preventable harm. 91. For example, in April 2006, a patient at NWGRH committed suicide by jumping head-first out of a tree a day after admission. The patient had been an emergency involuntary admission with a diagnosis of paranoid schizophrenia and a history of auditory and visual hallucinations. At admission, she refused to answer whether she was suicidal. NWGRH placed

- 32 ­ her on routine observation. When her unit was taken outside, she climbed a tree, tried to hang herself with her shoelaces, and then jumped out of the tree to her death. 92. In July 2006, a patient at GRHA attempted to commit suicide by obtaining a razor and making multiple cuts to her abdomen, which required sutures. Less than two weeks later, she attempted to commit suicide by breaking a ceiling light and swallowing the glass, which required treatment at the emergency room. The following month, she attempted to commit suicide again by breaking a light bulb and lacerating her arms, which required attention at the emergency room. During a subsequent admission in March 2007, she again attempted to commit suicide by breaking a ceiling light, lacerating her arms, and ingesting glass, which required emergency room treatment. A corrective action plan was developed after the patient’s suicide attempt in July 2006, but it was not implemented before her subsequent discharge or after her readmission in March 2007, despite the similarities in her suicide attempts. 93. In October 2006, a patient at NWGRH with a history of suicide attempts and self-mutilation attempted to commit suicide by slitting his throat from ear­ to-ear with a razor. A staff member had given the patient the razor for

- 33 ­ shaving and had let the patient go into the bathroom unattended. After the incident, NWGRH never reassessed the patient’s emotional stability or risk of harm, and never made or modified treatment or behavioral interventions. 94. Also in October 2006, a patient at NWGRH had his jawbone broken bilaterally by a fellow patient. Another patient needed sutures to close a large wound to his scalp after being assaulted by a fellow patient. 95. In January 2007, a patient at GRHA broke a light fixture and threw a couch across his unit’s day room. The following afternoon, he punched another patient in the forehead. A few days later, he pushed his physician during an examination and broke furniture in the day room. Ten days later, he pushed a fellow patient to the ground who struck his head on a chair as he fell, lacerating an eyelid and eyebrow. The following day, he threw chairs across the cafeteria and then went outside and began shaking a staff member’s vehicle. That evening, he hit another patient in the face. Within the next few weeks, he attacked a staff member, putting him in a choke hold and wrestling him to the ground. The patient’s treatment team never developed a behavioral support plan to address his aggression or assaultive behavior to other patients and staff.

- 34 ­ 96. In February 2007, a patient at GRHA choked another patient. The aggressor
patient was assigned to line-of-sight observation. The staff member assigned to him failed to maintain this observation level and only discovered the choking after hearing loud noises coming from his bedroom. The victim required emergency room treatment. 97. Also in February 2007, a patient at NWGRH alleged that a staff member physically abused her. A nurse or other medical professional never examined the patient to determine whether she had injuries consistent with her allegation, and NWGRH did not begin investigating the allegation of abuse until nearly two weeks later. The investigation report concluded that the allegation could not be substantiated because of the staff member’s denial and the supporting statement of another staff member. The report is dated February 21, 2007, but includes a staff interview that is stated as having occurred on March 1, 2007. 98. In March 2007, a patient at GRHA was found with vomit that contained blood on his sheets and floor less than 19 hours after he had been admitted. The patient was transferred to the hospital, where he died five weeks later. The medical examiner suggested that the patient likely incurred an injury at GRHA by ingesting a foreign substance, but the investigation failed to

- 35 ­ examine his supervision level or to interview any of the staff who cared for him during his brief stay at GRHA. The investigation report concluded: “Staff followed hospital and DHR protocol in ensuring that [the patient] received appropriate care.” 99. In April 2007, a patient at NWGRH with a history of silent aspiration, difficulty in swallowing, and placing her hands in her mouth as a soothing mechanism, suffered from aspiration pneumonia after ingesting hair barrettes (the ingestion of inedible objects is known as pica). At approximately 4:00 p.m. that day, a staff member saw a few broken hair barrettes on the patient’s sheets but did not report them to anybody. Between 4:30 p.m. and 8:00 p.m., the patient exhibited increasing signs of choking, until she began to cough and gag repeatedly. Only then did the staff member report having seen the broken barrettes. The patient was sent to the hospital for observation and readmitted to the hospital twice over the following two days for aspiration pneumonia. X-rays revealed a metallic object in her gastric area, and the hospital removed at least two broken barrettes during surgery. NWGRH never reported her ingestion of hair barrettes as pica and did not complete a safety plan for the patient until June 2007.

- 36 ­ 100. In May 2007, a patient at GRHA attempted to commit suicide by cutting his
neck and arms with a razor. He was rushed to the emergency room to stop the arterial bleeding. When staff initially entered his blood-spattered room, he shouted that he had told the staff that he was suicidal. 101. In June 2007, a patient at NWGRH attempted to commit suicide by strangling herself and was rushed to the emergency room for treatment. NWGRH did not report the suicide attempt in accordance with Hospital and State policy, investigate the suicide attempt, or take any corrective actions in response to the suicide attempt. 102. In June 2007, a patient at GRHA sexually assaulted another patient. The aggressor patient was on “sexual protocol,” which required that he be on line-of-sight observation and that he sleep in a single bedroom to prevent him from sexually assaulting other patients. The first night that he was assigned to a bedroom with four other patients, in violation of this protocol, he sexually assaulted one of them. He was discharged to a personal care home several weeks later, but none of his progress notes, discharge summary, or aftercare plan documented the sexual assault. 103. In July 2007, a patient at NWGRH fell when a staff member attempted to transfer him to a wheelchair. The staff member was not trained on proper

- 37 ­ transfer techniques and, when the United States visited three months later, still had not been trained. 104. In August 2007, a patient was admitted at GRHA after running into traffic with a broken glass bottle in her hand, threatening to kill herself. Approximately one week after her admission, she was discharged to a homeless shelter. Three days after her discharge, she was readmitted to GRHA with suicidal ideation. Seven hours after she arrived on a residential unit, she was found lying face down in a pool of blood outside her bedroom doorway, unresponsive, with a cord wrapped tightly around her neck, and bleeding from her mouth and nose. Although the patient’s observation level required that she be observed by staff every 15 minutes, staff had not checked on her for more than 30 minutes. Progress notes and eyewitness statements describing this lapse in observation and an argument between the patient and staff shortly before the suicide attempt then were removed from the patient’s medical record. 105. In August 2007, a patient at NWGRH assaulted other patients every day for a week, but NWGRH’s aggregate incident report data did not include any of these incidents.

- 38 ­ 106. In August and September 2007, a patient admitted at GRHA was physically
and sexually assaulted 20 days apart. Neither assault was investigated; both were perpetrated by the same aggressor. 107. In September 2007, a patient at NWGRH twice was attacked by another patient, each time suffering a laceration that required sutures. In the same month, on the same unit at NWGRH, a patient was assaulted by another patient, suffering a fractured nose. 108. Also in September 2007, a patient at NWGRH suffered a fractured clavicle. Staff noticed a large bruise on the patient’s shoulder but did not report the bruise until a day later. The investigator never questioned the patient about the injury or how it occurred, and the investigation report never determined the cause of the fractured clavicle. 109. On September 8, 2007, a melee occurred on the adolescent unit at GRHA. Six adolescents began throwing tables and chairs at the window protecting the nurses’ station. Three of the adolescents forced open the door to the lobby of the unit by kicking and slamming it with their bodies. The patients broke tables and cabinets in the lobby area and attempted to force open the outside door. One patient held a piece of plexiglass to his neck, threatening to cut himself, and then cut his neck before staff was able to take the piece of

- 39 ­ plexiglass from him. Other patients not involved in the destructive behavior refused to stay in their rooms and began running around the unit. Staff and facility police were unable to restore order and had to call DeKalb County police officers to diffuse the situation. 110. In August 2008, a patient at WCGRH assaulted and killed another patient. Earlier that morning, the victim had assaulted the aggressor, and both patients had a history of aggression. When the aggressor later verbally accosted the victim, and the victim retaliated by assaulting the aggressor, nearby staff, one of whom was an instructor in techniques for de-escalation of aggression, did not physically intervene. The aggressor then assaulted the victim, who fell and struck his head, knocking him unconscious and causing blood to trickle out of his ear. Contrary to hospital policy, staff tried to lift the victim, causing him to strike his head a second time. Staff never called an emergency code blue, and an ambulance did not arrive for 50 minutes. The victim died a few days later from blunt force trauma to the head. The aggressor was transferred to CSH, and his discharge summary from WCGRH to CSH contained no information about this incident or the extent of his aggressive behaviors.

- 40 ­ 111. In September 2008, a patient at CSH with a history of three serious suicide
attempts that required admissions to an Intensive Care Unit was discharged with a 5-day supply and 30-day prescription for amitriptyline, a psychoactive anti-depressant. As opposed to other anti-depressants that could have been prescribed, amitriptyline is particularly lethal at high doses. The patient died from an overdose of amitriptyline four days later. 112. In October 2008, a patient at WCGRH died of a ruptured spleen due to blunt force trauma. Earlier that morning he had complained of not feeling well. Hours later, when he was found naked on the floor in his own urine, he was treated with antipsychotic medication despite displaying no documented psychotic symptoms. The mortality review focused primarily on the timeliness of the code blue call and never addressed nor investigated how the patient suffered trauma so significant that it ruptured his spleen. 113. In April 2009, a patient at ECRH was discovered with a fractured arm of unknown origin. When the United States visited ECRH five weeks later, the investigation into the cause of the injury had yet to be initiated, and no time line for even starting the investigation had been established. 114. In April 2009, a patient at CSH assaulted and killed another patient. The aggressor was supposed to be on close observation because he had allegedly

- 41 ­ murdered two other individuals in the past, including his jail cell mate immediately before his transfer to CSH in January 2009. Systemic deficiencies contributing to this incident include the failure of staff to supervise patients, and of hospital supervisors to supervise staff. 115. In July 2009, a patient at SWSH was raped by another patient. The victim of the admitted rape had a prior sexual encounter with the aggressor, but that encounter had been neither investigated nor addressed in treatment. 116. In August 2009, a patient at ECRH alleged that he was raped by another patient. The investigation report found the allegation unsubstantiated with no physical evidence, but the rape kit found semen in the accuser’s peri-anal region. ECRH never resolved the discrepancy. 117. In August 2009, a patient at GRHS committed suicide, two months after the United States’ consultant warned GRHS on-site of risks in its suicide assessments and risk management system. The patient committed suicide by tipping his bed up on end to create a tie-off point on which to hang himself, despite the United States’ consultants having warned Defendants of the dangers posed by these beds throughout its tours.

- 42 ­ 118. In September 2009, a patient at ECRH attempted to commit suicide by
hanging himself with a sheet tied around his neck. The patient lost consciousness and vital signs before being revived by CPR. The patient had attempted suicide in similar fashion in January 2009 while confined at CSH, yet the investigation report for the September 2009 suicide attempt never investigated or even addressed how the attempt could have been avoided. It focused primarily on staff’s response to the emergency code blue call and recommended only that “ECRH should review with staff the need for accuracy in reporting, particularly of times of events.” 119. In October 2009, a patient at CSH was physically assaulted by a staff member when the staff member pulled the patient out of his chair, walked him down the hallway, pulled him into his room, shut the door, and beat him. 120. In October 2009, a 27-year-old patient at SWSH collapsed in the shower and died. For a week prior to her death, she had been refusing to eat or drink regularly and, the day before, had suffered rigidity in her upper and lower extremities from an apparent adverse drug reaction. The investigation report never addressed whether the care that she had received at SWSH may have

- 43 ­ contributed to her death, instead focusing primarily on staff’s response to the emergency code blue call. 121. In November 2009, after repeated warnings by the United States to Defendants about the suicide risk of beds that can be tipped up on end, and two months after the patient committed suicide at GRHS by tipping his bed up on end, the United States saw a bed that could be tipped up on end in a seclusion room at CSH—a room to which patients in crisis often are sent for their own protection. The bed also had large industrial-sized staples that could be removed easily, despite a CSH patient recently having abused herself repeatedly by placing staples into various parts of her body, including one that had to be surgically removed. 122. On January 6, 2010, a patient at SWSH committed suicide within 24 hours of admission by hanging herself with a shoe string, six weeks after the United States sent a letter notifying Defendants that their suicide prevention measures remained perilously inadequate. 123. The allegations in Paragraphs 76 through 122 show systemic failures to protect patients in the State Psychiatric Hospitals from harm that substantially depart from generally accepted professional standards.

- 44 ­ Mental Health Care 124. Patients in the State Psychiatric Hospitals have a right to receive adequate mental health treatment. 125. Defendants fail to provide adequate mental health assessments, personcentered treatment plans, and behavioral management services. Each of these failures substantially departs from generally accepted professional standards. 126. Mental health treatment should begin at the time of admission, as assessments establish a patient’s diagnosis and plan of treatment. If mental health professionals fail to correctly identify a patient’s psychiatric condition before developing a treatment plan, then treatment interventions will not be aligned with the patient’s needs. At a minimum, initial assessments should include an adequate review of presenting symptoms and mental status, a provisional diagnosis and differential diagnosis that provides a decision tree by which diagnosis and treatment options may be clarified over time, and a plan of care that includes specific medication and/or other interventions to ensure the safety of the patient and others. As more information becomes available, assessments should be updated to include a history of presenting symptoms, the progression of symptoms and setting within which the

- 45 ­ symptoms occur, historical findings regarding the patient’s biopsychosocial functioning, a review and critical examination of past diagnostic conclusions in light of new information, a review of medical and neurological problems and their impact on symptoms and treatment, and a complete mental status examination. 127. Defendants’ assessments fail to adequately include critical information, such as a suicide risk assessment, precipitating factors that led to a patient’s admission, and facts regarding a patient’s psychosocial, developmental, educational, vocational, medical, substance abuse, and prior placement histories. Assessments often contain tentative, unspecified, and/or conflicting diagnoses, with no further assessments or observations that finalize, refine, or reconcile diagnoses. Defendants’ assessments substantially depart from generally accepted professional standards. 128. Treatment plans should define the goals of treatment, the interventions to be used in achieving these goals, and the manner in which staff are to coordinate treatment in order to promote a patient’s stabilization and/or rehabilitation so that the patient can return to the community. Treatment plans should use the diagnosis to help identify problems caused by the diagnosed illness and then develop specific, measurable, individualized

- 46 ­ goals to ameliorate problems, promote functional independence, and assist community integration. 129. Defendants’ treatment plans often are minimalist, generic, and reflect neither the true scope of individual patients’ needs nor an integrated, coherent plan for treatment. They fail to adequately plan, corroborate, and reconcile contradictory assessments across disciplines, including psychiatry, medicine, nursing, psychology, and social work. They also fail to adequately provide treatment for patients with co-occurring diagnoses of substance abuse, a serious impediment to community placement and frequent cause of readmission to the State Psychiatric Hospitals. Treatment plans fail to adequately provide specific interventions, leaving staff with few alternatives to restraint or seclusion if generic interventions prove ineffective. Defendants’ treatment plans substantially depart from generally accepted professional standards. 130. Behavior support plans should address problematic behaviors by functionally assessing them. A mental health professional should analyze objective data concerning symptoms or behavior; hypothesize the function of the challenging behavior; consider antecedent, environmental, or health

- 47 ­ factors that influence a behavior; and identify target or replacement behaviors. 131. Defendants fail to adequately provide behavior support plans for patients, sometimes relying on seclusion or restraint to respond to problematic behaviors instead. For those patients that have behavior support plans, Defendants fail to adequately provide a functional assessment of their problematic behaviors, fail to adequately collect sufficient behavioral data on which to base treatment decisions, fail to adequately hypothesize the function of challenging behavior, fail to adequately consider factors that influence a behavior, fail to adequately identify target or replacement behaviors (suggesting inappropriate and even dangerous replacement behaviors instead), and fail to adequately revise plans when problematic behaviors continue or escalate. These failures substantially depart from generally accepted professional standards. 132. As a result of Defendants’ substantial departures from generally accepted professional standards, many patients in the State Psychiatric Hospitals do not have their mental illnesses assessed and diagnosed; do not receive treatment and rehabilitation to address those illnesses; receive treatment that

- 48 ­ is unnecessary, may exacerbate their mental illnesses, and can cause harmful side effects; and are at increased risk of relapse and repeat hospitalization. 133. For example, one patient had 21 readmissions in the span of nine months, and her treatment plan for each of her 21 stays was identical. 134. One patient demonstrated escalating episodes of agitation and aggression that resulted in his transfer to a different unit, yet his treatment team failed to recommend any change in his behavior plan. 135. One patient demonstrated escalating episodes of inappropriate sexual behavior, steadily increasing from three episodes in one month to 36 episodes four months later, with no change to his behavior plan. 136. One patient had multiple instances of physical restraints and as-needed medication doses, including three restraints and near-daily as-needed medication doses in the week before a psychological evaluation, yet the evaluation did not recommend a behavioral assessment or a behavioral support plan. 137. Some patients receive multiple restrictive interventions in short periods of time without having a behavioral treatment plan in place. One patient had 25 instances of seclusion or restraint in a four-month period, one patient had 12 instances of seclusion or restraint in a 33-day period, one patient received

- 49 ­ 23 psychotropic as-needed medication doses in a two-week period, and one patient received 12 psychotropic as-needed medication doses in a 10-day period. None of them had a behavior support plan. Other patients have had their physical restraint use decreased but their chemical restraint use increased without any modification to a behavior plan. 138. As discussed supra Paragraph 68, a patient discharged from GRHA killed a family member. The family had opposed the patient’s discharge because her assessment contained inaccurate information concerning her compliance with treatment and the extent of her thought disorder. 139. As discussed supra Paragraph 91, one patient was an emergency involuntary admission with a diagnosis of paranoid schizophrenia and a history of auditory and visual hallucinations. At admission, she refused to answer whether she was suicidal. The hospital placed her on routine observation, and she committed suicide the next day. 140. As discussed supra Paragraph 114, one patient was killed by another patient who was alleged to have committed two other murders before his admission. A behavior support plan was not instituted for the aggressor until after the homicide in the State Psychiatric Hospitals.

- 50 ­ 141. As discussed supra Paragraph 63, one patient with a history of 14
admissions and a diagnosis of mood disorder and substance abuse disorder was discharged from GRHA to a homeless shelter. He returned to GRHA 10 days later. He received no treatment for substance abuse while at GRHA and no planning for substance abuse services when he returned to the community. 142. As discussed supra Paragraph 65, a patient was admitted twice in one year with a history of 35 prior admissions and co-occurring diagnoses of substance abuse and psychotic disorder with hallucinations. She received no substance abuse treatment while institutionalized and was discharged to a night shelter without adequate planning for community substance abuse care. 143. As discussed supra Paragraph 64, a patient with a history of seven admissions to GRHA was discharged from GRHA but then readmitted 10 days later. Her treatment team made no effort to review the reasons for that discharge failure or to prevent its recurrence. 144. As discussed supra Paragraph 95, in the span of approximately a month, one patient broke a light fixture, threw a couch across his unit’s day room, punched another patient in the forehead, pushed his physician during an

- 51 ­ examination, broke furniture in the day room, pushed a fellow patient to the ground who struck his head on a chair as he fell, threw chairs across the cafeteria, went outside and began shaking a staff member’s vehicle, hit another patient in the face, and attacked a staff member by putting him in a choke hold and wrestling him to the ground. The patient’s treatment team never developed a behavioral support plan to address his aggression or assaultive behavior to other patients and staff. 145. The allegations in Paragraphs 124 through 144 show systemic failures to provide mental health care to patients in the State Psychiatric Hospitals that substantially depart from generally accepted professional standards.
Seclusion and Restraint 146. Patients in the State Psychiatric Hospitals have a right to be free from undue
bodily restraint. Defendants may not subject patients to seclusion and restraint except when, and to the extent, professional judgment deems it necessary for the safety of the patients or others in the State Psychiatric Hospitals. 147. Defendants fail to use seclusion and restraint only when a patient poses an immediate threat to self or others and after a hierarchy of less restrictive

- 52 ­ measures has been exhausted. This failure substantially departs from generally accepted professional standards. 148. Defendants fail to adequately prevent using seclusion and restraint in the absence of, or as an alternative to, active treatment, as punishment, or for the convenience of staff. This failure substantially departs from generally accepted professional standards. 149. Defendants fail to adequately prevent using seclusion and restraint as a behavioral intervention. This failure substantially departs from generally accepted professional standards. 150. Defendants fail to adequately terminate the use of seclusion and restraint as soon as the person is no longer a danger to self or others. This failure substantially departs from generally accepted professional standards. 151. Defendants’ use of seclusion and restraint, including chemical restraint, exposes patients in the State Psychiatric Hospitals to excessive and unnecessary restrictive interventions. 152. For example, Defendants restrained one patient while the patient was sleeping, and restrained another patient after she cooperatively walked back to her room to be restrained. In a sample of 77 of Defendants’ seclusion and restraint monitoring forms, the forms frequently contained notations that the

- 53 ­ patient was out of control, but few forms, if any, recorded specific behaviors that supported a conclusion that the patient was a threat to self or others or documented that alternative measures were tried before resorting to a restrictive device. 153. On Defendants’ mental health units, few of the patients have adequate behavior plans despite many of the patients having challenging behaviors. Staff do not adequately have the skills necessary to handle a large number of challenging patients who are dangerous to themselves or others, or who have specialized needs, without resorting to seclusion and restraint to control patients rather than to treat them and replace their maladaptive behaviors with adaptive behaviors. Defendants also do not adequately bring those patients most subject to restraint or seclusion to the attention of interdisciplinary teams to discover the precursors to their behaviors so that the need for seclusion or restraint can be mitigated or eliminated. 154. In a sample of 50 uses of seclusion or restraint, 13 of the patients were not released once they were calm, which is a substantial departure from generally accepted professional standards. To be released from restraint, Defendants required some patients to state the reasons for their behavior and

- 54 ­ to contract that the behavior would not occur again, which again is a substantial departure from generally accepted professional standards. 155. As discussed supra Paragraph 137, some patients receive multiple restrictive interventions in short periods of time without having a behavioral treatment plan in place. One patient had 25 instances of seclusion or restraint in a four-month period, one patient had 12 instances of seclusion or restraint in a 33-day period, one patient received 23 psychotropic as-needed medication doses in a two-week period, and one patient received 12 psychotropic asneeded medication doses in a 10-day period, all while none of them had a behavior support plan. Some patients have had their physical restraint use decreased but their chemical restraint use increased without any modification of their behavior plan. 156. The allegations in Paragraphs 146 through 155 show systemic failures to use seclusion and restraint on patients in the State Psychiatric Hospitals that substantially depart from generally accepted professional standards.

- 55 ­ Medical Care 157. Patients in the State Psychiatric Hospitals have a right to receive adequate health care. 158. Defendants fail to provide adequate basic medical care. Defendants also fail to provide adequate clinical oversight, pharmacological practices, medication administration, infection control, physical and nutritional management, emergency preparedness, and staffing. Each of these failures substantially departs from generally accepted professional standards. 159. Assessments and monitoring should be timely and thorough in order to inform case formulation, diagnosis, and treatment planning. Unidentified health concerns usually do not receive appropriate care and monitoring. Health care plans should guide and document therapeutic interventions systematically based on individualized priorities of care. 160. Defendants’ assessments are not adequately timely, complete, or clinically relevant. Defendants’ health care plans do not adequately have individualized goals, objectives, recommendations, and priorities. The plans also fail to adequately include proactive interventions to address risk factors and health issues such as choking, aspiration, and known psychotropic

- 56 ­ medication side effects. Defendants’ medical care substantially departs from generally accepted professional standards. 161. Clinical oversight should identify and correct problematic areas in medical and nursing departments and ensures that those departments provide the care that they purport to provide. Data should be regularly gathered, reviewed, analyzed, tracked, and trended, and plans of correction should be developed, implemented, and monitored to address any problems identified. 162. Defendants fail to utilize monitoring tools that adequately collect clinically reliable data. Defendants’ nursing, occupational, physical, and speech therapy disciplines fail to adequately conduct peer review, and the mortality review process fails to adequately identify adverse trends in a timely manner or implement appropriate corrective actions. Defendants’ clinical oversight substantially departs from generally accepted professional standards. 163. Pharmacology should be used to treat symptoms of psychosis, with accompanying behavior support plans as necessary to address problematic behaviors. Polypharmacy, the practice of prescribing multiple medications to address the same indications, and the use of high-risk medications should have the appropriate assessment, justification, and monitoring.

- 57 ­ 164. As discussed supra Paragraph 153, Defendants often use pharmacological
treatments to manage symptoms and behaviors without an underlying behavior support plan, including for the purpose of sedation. Defendants also fail to adequately justify and monitor the use of polypharmacy and high-risk medications. Defendants’ pharmacology practices substantially depart from generally accepted professional standards. 165. Medications should be administered according to procedures that ensure that the correct patient receives the prescribed dosage of the prescribed medication by the prescribed route at the prescribed time. Nursing staff should complete medication administration records that list current medications, dosages, and times that medications are to be administered upon administration of a medication. Failure to follow accepted medication administration protocol can result in patients not receiving medications or receiving them too frequently, both of which can lead to serious harm. 166. Defendants fail to adequately follow proper medication administration procedure. Some nurses improperly initial the medication administration records as they set up the medications before administering them, while others improperly initial the records up to 24 hours after a prescribed

- 58 ­ administration time. Defendants’ medication administration practices substantially depart from generally accepted professional standards. 167. Infection control programs should have a surveillance and reporting component that collects data on infections acquired both before and during residency, identifying outbreaks and educational opportunities, and a control and prevention component that develops policies and procedures, trains staff, and regularly reviews infection control activities. 168. Defendants’ infection control programs fail to adequately collect data on clinical outcomes of infections in patients or analyze trends in the infection control data that they collect, with respect to infectious diseases such as hepatitis A, hepatitis B, hepatitis C, MRSA (a bacterial infection that is highly resistant to some antibiotics), tuberculosis, and HIV. Defendants’ infection control programs substantially depart from generally accepted professional standards. 169. An adequate physical and nutritional management system should identify patients who are at risk for aspiration/choking and, for those patients: assign an appropriate risk level; identify triggers and symptoms of aspiration; assess safe positioning for a 24-hour day, use clinically-justified techniques to ensure safety during daily activities based on that assessment, and develop

- 59 ­ and implement a plan containing specific instructions for those techniques; provide competency-based training to all staff assisting them regarding individualized plans for difficulty in swallowing; develop a method to monitor, track, and document clinically objective data, including triggers, lung sounds, oxygen saturations, and vital signs, to determine if treatment interventions are effective or in need of modification; develop a mechanism for reporting triggers that generate an immediate response from a physical nutritional management team; develop an overall monitoring system to ensure that plans are being adequately implemented, particularly monitoring those with the highest level of risk; and assure that the system is effective and can be transferred into the community with patients. 170. Defendants fail to provide patients at risk for aspiration with adequate assessments, treatment interventions, proactive monitoring such as obtaining lung sounds and oxygen saturation to determine changes in health status, or regular treatment plan monitoring. Defendants fail to adequately assess safety for these patients during such high-risk activities as oral care, bathing, dental appointments, and sleep. Defendants’ mealtime plans for these patients fail to adequately guide staff, including for tube-fed patients, a group at a high risk for aspiration, and Defendants fail to adequately ensure

- 60 ­ that the staff assisting these patients with meals are competency-based trained on carrying out the requirements of mealtime or treatment plans. Defendants also fail to adequately reassess treatment plans and modify interventions when necessary for patients with difficulty in swallowing who have experienced recurrent respiratory distress, pneumonia, or aspiration pneumonia. Defendants’ physical and nutritional management system substantially departs from generally accepted professional standards. 171. Staff should be well-trained in emergency preparedness, aware of emergency materials and where they are located, and conduct sufficient practice codes to be able to perform adequately when confronted with an actual emergency. 172. Defendants fail to adequately conduct mock codes often enough to ensure adequate preparedness. Defendants also fail to adequately critically analyze the mock codes that they perform and to develop and implement a plan of correction to address identified problems. On some units, nurses have failed to know how to turn on oxygen tanks despite emergency preparedness documentation indicating that they were doing so daily. Defendants’ emergency preparedness substantially departs from generally accepted professional standards.

- 61 ­ 173. Staffing should be sufficient to provide medical and nursing services that, at
a minimum, protect patients from harm, ensure adequate and appropriate treatment, and prevent unnecessary and prolonged institutionalization. 174. Defendants often have staffing shortages that exacerbate their deficiencies in medical and nursing care. Defendants’ own survey of the State Psychiatric Hospitals conducted by the Medical College of Georgia noted Defendants’ staff shortages and their potential effect on the quality of services provided to patients. Defendants’ staffing substantially departs from generally accepted professional standards. 175. As a result of Defendants’ substantial departures from generally accepted professional standards with respect to medical care, patients in the State Psychiatric Hospitals suffer serious, frequent, recurrent, preventable harm. 176. For example, numerous deaths from preventable causes occur in the State Psychiatric Hospitals. One patient was 14 when she died from sepsis, likely caused by a severely impacted colon. On the day before she died, she complained of stomach pain and had nausea and vomiting, but no fever or other signs of infection. The on-call physician did not rule out impaction, a known side effect of her antipsychotic medications, with either an abdominal examination or rectal exam. Three days later, another patient died with a

- 62 ­ markedly-impacted colon after his bowel functions were not monitored despite constipation being a known side effect of his medications. 177. One patient died after she was found not breathing lying face-down on the floor. At the time, she was on line-of-sight observation, but the staff member assigned to her had not observed her for approximately one hour. The unit was short staffed, and the registered nurse on the unit did not know how to call an emergency code blue, nor did she commence CPR. CPR was not initiated until nine minutes after the patient was found on the floor, when a registered nurse from another unit arrived and initiated it. 178. One patient was sent to the hospital four times in two weeks for respiratory distress and/or pneumonia, but her health care plan did not include a risk for aspiration or any preventive measures. Another patient was identified as a high risk for aspiration and sent to the hospital three times in three months for difficulty breathing and/or pneumonia, but his health care plan did not include a risk for aspiration or any preventive measures. 179. One patient was sent to the emergency room for dehydration, malnourishment, and medical instability. 180. One patient had notations throughout her chart that she shoves food into her mouth at a rapid pace without taking any liquid in between bites, which

- 63 ­ should have identified her as a moderate or high risk for choking. Her meal plan identified her as only a minimal risk for choking, so appropriate mealtime precautions were not taken. She shoved food into her mouth to the point of coughing, but staff did not intervene until she choked to the point of requiring the Heimlich maneuver. Defendants then placed her on a modified diet and one-to-one observation for two meals without clinically objective data to justify the modifications and without performing an adequate assessment. 181. One patient had a heavy growth of MRSA, but her medical record did not include a treatment plan that addressed care of the lesion or the need to take precautions to protect other patients. 182. As discussed supra Paragraph 111, one patient with a history of three serious suicide attempts that required admissions to an Intensive Care Unit was discharged with a 5-day supply and 30-day prescription for amitriptyline, a psychoactive anti-depressant. As opposed to other anti-depressants that could have been prescribed, amitriptyline is particularly lethal at high doses. The patient died from an overdose of amitriptyline four days later. 183. As discussed supra Paragraph 112, one patient died of a ruptured spleen due to blunt force trauma. Earlier that morning he had complained of not feeling

- 64 ­ well. Hours later, when he was found naked on the floor in his own urine, he was treated with antipsychotic medication despite displaying no documented psychotic symptoms. 184. The allegations in Paragraphs 157 through 183 show systemic failures to provide medical care to patients in the State Psychiatric Hospitals that substantially depart from generally accepted professional standards.
Services to Persons with Specialized Needs 185. As identified by Defendants’ own Mental Health System Gap Analysis,
Defendants fail to ensure meaningful access to their programs and activities by persons with hearing impairments and limited English proficiency. 186. For example, a patient received virtually no mental health treatment during his months-long stay at GRHA after GRHA failed to identify him as requiring translation services; he did not receive translation services and treatment until he was transferred to GRHS. Also, for some patients, documents such as consents to care are not translated into a language that they can understand. 187. Defendants fail to provide appropriate education services to youth in the State Psychiatric Hospitals.

- 65 ­ 188. For example, Defendants fail to identify special education students needing
behavioral support services and fail to provide adequate special education instructors to those students. Defendants also fail to provide to the schools to which discharged adolescents return information concerning the student’s educational progress, educationally-relevant assessments, and necessary accommodations. 189. The allegations in Paragraphs 185 through 188 show systemic failures to provide adequate services to persons with specialized needs.
VIOLATIONS ALLEGED
 Count One: Americans with Disabilities Act
 190. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 189, as if fully set forth herein. 191. The Americans with Disabilities Act requires that a state provide services to qualified persons with disabilities in the most integrated setting appropriate to their needs. 42 U.S.C. § 12132; see also Olmstead, 527 U.S. at 607. 192. The acts and omissions alleged in Paragraphs 21 through 189 violate the Americans with Disabilities Act and its implementing regulations. 42 U.S.C. §§ 12132-12134; 28 C.F.R. § 35.130(d). Defendants discriminate against “qualified individual[s] with a disability,” within the meaning of the

- 66 ­ Americans with Disabilities Act, by administering services in a manner that denies hundreds of Georgians with mental illness, addictive diseases, and/or developmental disabilities the opportunity to receive services in the most integrated setting appropriate to their needs. These individuals are qualified to receive services in a more integrated setting and do not oppose receiving services in a more integrated setting. Moreover, the State already provides the services that these individuals require to live in a more integrated setting. 193. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in Paragraphs 21 through 189 that deprive persons residing in or confined to the State Psychiatric Hospitals of rights, privileges, or immunities secured or protected by the Americans with Disabilities Act.
Count Two: Due Process 194. The United States incorporates by reference the allegations set forth in
Paragraphs 1 through 189, as if fully set forth herein. 195. The Fourteenth Amendment Due Process Clause requires that a state mental
health care facility provide “adequate food, shelter, clothing, and medical care,” along with “conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required

- 67 ­ by these interests.” Youngberg v. Romeo, 457 U.S. 307, 315, 320-24 (1982); see also D.W. v. Rogers, 113 F.3d 1214, 1217-18 (11th Cir. 1997). 196. The acts and omissions alleged in Paragraphs 21 through 189 infringe upon the legal rights and substantive liberty interests of the persons residing in or confined to the State Psychiatric Hospitals; constitute resistance to those persons’ full enjoyment of their rights, privileges, or immunities secured or protected by the Fourteenth Amendment to the Constitution of the United States; and deprive those individuals of such rights, privileges, or immunities. 197. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in Paragraphs 21 through 189 that deprive persons residing in or confined to the State Psychiatric Hospitals of rights, privileges, or immunities secured or protected by the Constitution of the United States.
Count Three: Social Security Act 198. The United States incorporates by reference the allegations set forth in
Paragraphs 1 through 189, as if fully set forth herein. 199. The acts and omissions alleged in Paragraphs 21 through 189 violate
Title XVIII and Title XIX of the Social Security Act and the regulations

- 68 ­ promulgated thereunder. 42 U.S.C. §§ 1395 to 1395b-10, 1396 to 1396w-1; 42 C.F.R. §§ 482-483. 200. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in Paragraphs 21 through 189 that deprive persons residing in or confined to the State Psychiatric Hospitals of rights, privileges, or immunities secured or protected by the Social Security Act.
Count Four: Individuals with Disabilities Education Act 201. The United States incorporates by reference the allegations set forth in
Paragraphs 1 through 189, as if fully set forth herein. 202. The acts and omissions alleged in Paragraphs 21 through 189 violate the
Individuals with Disabilities Education Act and its implementing regulations. 20 U.S.C. §§ 1400–1482. 203. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in Paragraphs 21 through 189 that deprive persons residing in or confined to the State Psychiatric Hospitals of rights, privileges, or immunities secured or protected by the Individuals with Disabilities Education Act.

- 69 ­ Count Five: Civil Rights Act of 1964 204. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 189, as if fully set forth herein. 205. The acts and omissions alleged in Paragraphs 21 through 189 violate Title VI of the Civil Rights Act of 1964, as amended, and the regulations promulgated thereunder. 42 U.S.C. §§ 2000d to 2000d-7. 206. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in Paragraphs 21 through 189 that deprive persons residing in or confined to the State Psychiatric Hospitals of rights, privileges, or immunities secured or protected by the Civil Rights Act of 1964.
PRAYER FOR RELIEF 207. The Attorney General is authorized under 42 U.S.C. § 1997 to seek equitable
and declaratory relief. WHEREFORE, the United States respectfully requests that this Court: a. Declare that the acts and omissions set forth in Paragraphs 21 through
189 above deprive persons residing in or confined to the State Psychiatric Hospitals of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States;

- 70 ­ b. Permanently enjoin Defendants, their officers, agents, employees,
subordinates, successors in office, and all those acting in concert or participation with them (1) from administering services to persons with disabilities in a setting that unnecessarily isolates and segregates those individuals from the community, (2) to administer services to persons with disabilities in the most integrated setting appropriate to the needs of those individuals, and (3) to transition each of the Hospitals to a resource center that supports delivery of community services and serves as a last resort in a continuum of care for those with chronic mental illness for whom community-based services are clinically inappropriate; c. Permanently enjoin Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them (1) from continuing the acts and omissions set forth in Paragraphs 21 through 189 above, and (2) to take such actions as will bring Defendants into compliance with federal constitutional and statutory law and ensure that adequate protections, supports, services, and treatment are afforded to persons residing in or confined to the State Psychiatric Hospitals; and

- 71 ­ d. Grant such other and further equitable relief as the Court may deem
just and proper.

Respectfully submitted,

/s/ Eric Holder, Jr. _______________________________ ERIC H. HOLDER, JR.
 Attorney General of the United States


/s/ Sally Q. Yates _________________________ SALLY Q. YATES Acting United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303

- 72 ­
/s/ Thomas E. Perez ___________________________________ THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
/s/ Shanetta Y. Cutlar ___________________________________ SHANETTA Y. CUTLAR Chief Special Litigation Section
/s/ Judith C. Preston ___________________________________ JUDITH C. PRESTON Deputy Chief Special Litigation Section
/s/ Robert A. Koch ___________________________________ MARY R. BOHAN [DC Bar 420628] TIMOTHY D. MYGATT [PA Bar 90403] ROBERT A. KOCH [OR Bar 072004] EMILY A. GUNSTON [CA Bar 218035] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Tel: (202) 514-6255

 
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Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 1 of 26

SETTLEMENT AGREEMENT
I. INTRODUCTION
A. This Settlement Agreement ("Agreement") is entered into by: (1) the United States of
 America ("United States"); and (2) the State of Georgia ("State").

B. This Agreement addresses the United States' investigation of the Georgia Regional Hospital at Atlanta, the Georgia Regional Hospital at Savannah, the Central State Hospital, the Southwestern State Hospital, the West Central Georgia Regional Hospital, the Northwest Georgia Regional Hospital, and the East Central Regional Hospital (collectively, the "Georgia Psychiatric Hospitals"), pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. This agreement addresses the corrective measures set forth in the United States' letter to the State dated May 30, 2008, and which shall be implemented at all Georgia Psychiatric Hospitals. This Agreement does not serve as an acknowledgement or admission by the State that corrective measures are necessary to meet the constitutional and statutory rights of the residents of the Georgia Psychiatric Hospitals, nor does this Agreement serve as an acknowledgement or admission by the United States that the State has acted, or continues to act, in compliance with the Constitution or other laws of the United States.
C. The State, on July 1,2008, entered a Voluntary Compliance Agreement with the United States Department of Health and Human Services Office for Civil Rights, concerning the State's compliance with Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, and implementing regulations at 28 C.F.R. Part 35 ("ADA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and implementing regulations at 45 C.F.R. Part 84 ("Section 504"), which prohibit discrimination on the basis of disability and require certain public entities to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The Voluntary Compliance Agreement is not incorporated herein by reference.
D. This investigation began on April 18,2007, when the United States notified the State, pursuant to CRIPA, that it was initiating an investigation into the conditions of care and treatment of patients at the Georgia Psychiatric Hospitals. The State agreed that the United States' findings regarding four of the State's hospitals would stand as representative of all seven hospitals in the system. The United States began its on-site inspections with a tour of the Georgia Regional Hospital at Atlanta on September 17 through 21, 2007. Tours of the Northwest Georgia Regional Hospital and the Georgia Regional Hospital at Savannah occurred on October 29 through November 2,2007, and on December 17 through 21, 2007, respectively. The tour of Central State Hospital did not occur.
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E. Each and every provision of this Agreement is entered into by clear agreement of the
 parties, after thorough negotiations. The purpose of this Agreement is to achieve the
 substantive outcomes set forth within this Agreement.

F. It is agreed by the parties that disclosure of patient records to the United States in connection with the investigation of the Georgia Psychiatric Hospitals pursuant to CRIPA is authorized under the privacy regulations of the Health Insurance Portability and Accountability Act of I996.
G. The parties agree that the provisions of this Agreement are a lawful, fair, adequate, and
 reasonable resolution of this investigation.

H. This Agreement is binding on the Georgia Psychiatric Hospitals through the State, its agencies, departments, or their successors or assigns that manage or operate the Georgia Psychiatric Hospitals. If the State contracts with an outside provider for any of the services which are covered under this Agreement, the Agreement shall be binding on any contracted parties, including agents and assigns. The parties understand that the State is considering privatization, and this Agreement will in no way impair the State's ability to privatize. This Agreement will continue in effect even if privatization occurs.
II. DEFINITIONS
As used in this Agreement, the following definitions apply to the terms below, without regard to case, gender, tense, or number:
A. "Competency-based training" shall mean the provision ofknowledge and skills sufficient to enable the trained person to meet specified standards of performance consistent with generally accepted professional standards or specified in law, regulation, or policy, as validated by that person's demonstration that he or she can use such knowledge or skills effectively.
B. "Consistent with Generally Accepted Professional Standards" shall mean a decision by a qualified professional that is not such a substantial departure from contemporary, accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such accepted professional judgment.
C. "Effective Date" shall be the date on which this Agreement is signed by both parties.
D. "Georgia Psychiatric Hospitals" shall mean the facilities, services, and programs supplied by or provided by the State to patients ofthe Georgia Regional Hospital at Atlanta, the Georgia Regional Hospital at Savannah, the Central State Hospital, the Southwestern State Hospital, the West Central Georgia Regi?nal Hospital, the Northwest
2

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Georgia Regional Hospital, and the East Central Regional Hospital.

E. "Patient" means any person who is evaluated, assessed, admitted to (whether by admission to an inpatientunit or by operation of law) or treated in the Georgia Psychiatric Hospitals during the term of this Agreement and who resides in such hospital. This does not include persons who are not admitted to the Hospitals following said evaluation or assessment.

F. "Physician" shall mean a medical or osteopathic doctor licensed to practice medicine in
 the State of Georgia.


G. "Psychiatrist" shall mean a medical or osteopathic doctor licensed to practice medicine or osteopathy in the State of Georgia, who has completed a residency in psychiatry in a program accredited by the American Association of Medical Colleges or the American Osteopathic Association.

H. "Psychology Staff' shall mean an individual licensed to practice psychology in the State of Georgia or a behavioral specialist working under the supervision of a licensed psychologist.

1.

"Psychotropic medication" shall mean any medication prescribed by a physician that is used in the

treatment of mental illness which exerts an effect on the brain and is capable of

modifying mental activity or behavior.

J. "Registered Nurse" or "RN" shall mean an individual licensed as a registered nurse by the State of Georgia.

K. "Short-Term Treatment Goal or Objective" shall mean the statement of a specific and realistic observable, measurable and time targeted incremental step that, if achieved, will assist the patient in meeting a long-term treatment goal.

L. "State" or "Georgia" shall mean the State of Georgia, its agencies, departments, or their successors or designees, and the State's employees, agents, or assigns.

M. "Student" shall mean any patient of school age or other patient who qualifies for special education as required by law.

N. "Substantial Compliance" shall mean with regard to an individual hospital that the State has satisfied all of the requirements set forth in section III (Substantive Provisions) and IV (Implementation) of this Agreement. With regard to an individual hospital, substantial compliance is achieved if any violations are minor or occasional and are not systemic.

3

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On a systemic level, substantial compliance is achieved, when evaluating the State's compliance with this Agreement as a whole, any noted deviations from specific requirements does not bring the level of care and treatment below care consistent with generally accepted professional standards. Noncompliance with mere technicalities will not constitute failure to achieve substantial compliance.
O. "Sustained Compliance" shall mean substantial compliance as determined by the United States on two consecutive visits not more than eighteen months apart. The United States shall conduct an evaluation within ninety days of the State giving notice of its claim that a Hospital is in substantial compliance; provided, however, that the State may give notice of a claim of substantial compliance regarding any Hospital no more than once every ninety days. If the United States does not conduct an evaluation within ninety days of this notice, or conduct its second evaluation within eighteen months of the first evaluation (whichever comes fust), the parties agree that that claim of substantial compliance regarding the applicable hospital shall be dispositive for purposes of evaluating compliance with this Agreement. The time period for evaluations shall be tolled during fiscal exigencies that prevent the United States from conducting compliance activities; the United States shall provide prompt written notice thereof.
P. "Treatment Plan" shall mean a document that sets out, in an integrated manner, the individualized treatments and services to be provided to the patient to assist the patient in symptom stabilization and successful discharge from the hospital; is periodically reviewed; is revised in accordance with generally accepted professional standards and applicable laws, regulations, and policies; is based upon comprehensive assessments performed by members of an interdisciplinary team; incorporates the patient's input, preferences, strengths, and needs; and specifies methods to track and document progress toward identified goals and objectives.
Q. "United States" shall mean the United States Department of justice and its employees, agents, assigns, or successors.
III. SUBSTANTIVE PROVISIONS
In order to protect the constitutional and federal statutory rights of Patients, the State shall promptly implement the remedial measures set forth below:
A. Protection From Harm
The Georgia Psychiatric Hospitals shall provide their patients with a safe and humane environment and protect them from harm. The Georgia Psychiatric Hospitals shall:
4

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1. Create or revise, as appropriate, and implement an incident management system that comports with generally accepted professional standards. The Georgia Psychiatric Hospitals shall:

a. Create or revise, as appropriate, and implement comprehensive, consistent incident management policies and procedures that provide clear guidance regarding reporting requirements and the categorization of incidents, including those involving any physical injury or threats of serious physical injury; abuse and neglect; contraband; or suicide attempts;

b. Require all staff to complete competency-based training in the revised reporting requirements;

c. Create or revise, as appropriate, and implement thresholds for indicators of incidents, including, without limitation, patient injury, patient-on-patient assaults, self-injurious behavior, falls, and suicide attempts, that will initiate review at the unit/treatment team level and review by supervisors consistent with generally accepted professional standards and policy, regulation, and law; whenever such thresholds are reached, the treatment team shall review patient incidents and document in the patient medical record the rationale for changing/not changing the patient's current treatment regimen;

d. Create or revise, as appropriate, and implement policies and procedures addressing the investigation of serious incidents, including, without limitation, abuse, neglect, suicide attempts, unexplained injuries, and all injuries requiring medical attention more significant than first aid. The policies and procedures shall require that all investigations of such incidents are comprehensive, include consideration of staff's adherence to programmatic requirements, and are performed by investigators with no conflict of interest;

e. Require all hospital staff members charged with investigative responsibilities to complete competency-based training on investigation methodologies and documentation requirements necessary in mental health service settings;

f.

Require the thorough, competent, and timely completion of investigations

of serious incidents; monitor the performance of hospital staff charged

with investigative responsibilities; and provide administrative and

technical support and training as needed;

5

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 6 of 26

g. Require that corrective action plans are developed and implemented in a timely manner;

h. Require qualified clinical professional(s) at the applicable hospital to review all findings and recommendations made by bodies investigating patient care and safety, and develop and implement appropriate remedial measures as necessary;

1. Review, revise as appropriate, and implement policies and procedures related to the tracking and trending of incident data; require that incidents are properly investigated and responsive corrective actions are identified and implemented in response to undesirable trends; and

J.

Create or revise, as appropriate, and implement policies and procedures

regarding the creation, structure, and preservation of all records of care

and treatment of patients, including measures to address improper

removal, destruction, or falsification of any record.

2. Develop and implement a comprehensive quality management system and risk management system, consistent with generally accepted professional standards. Such a system shall:

a. Collect information related to the adequacy of safety, treatments, and services provided by the Georgia Psychiatric Hospitals;

b. Analyze the information collected in order to identify strengths and weaknesses within the current system;

c. Identify and monitor implementation of corrective and preventative actions to address identified issues; and

d. Assess and document the effectiveness of the actions taken.

B. Mental Health Care

1. Assessments and Diagnoses

The Georgia Psychiatric Hospitals shall require that their patients receive accurate, complete, and timely assessments and diagnoses, consistent with generally accepted professional standards, and that these assessments and diagnoses drive treatment interventions. More particularly, the Georgia Psychiatric Hospitals shall:

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Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 7 of 26
a. Develop and implement comprehensive policies and procedures regarding the timeliness and content of initial psychiatric assessments and ongoing reassessments;
b. Develop a clinical fonnulation of each patient that integrates relevant elements of the patient's history, mental status examination, and response to current and past medications and other interventions, that is used to prepare the patient's treatment plan;
c. Require that psychiatric reassessments are completed within time-frames that reflect the patient's needs, including prompt reevaluations of each patient for whom a restrictive intervention was used;
d. Develop diagnostic practices, consistent with generally accepted professional standards;
e. Conduct multidisciplinary assessments of patients consistent with generally accepted professional standards. Expressly identify and prioritize each patient's individual mental health problems and needs, including, without limitation, challenging behaviors and substance abuse problems;
f. Require that the infonnation gathered in the assessments and reassessments is used to justify and update diagnoses and to establish the need to perfonn further assessments for a differential diagnosis;
g. Review and revise, as needed, psychiatric assessments of all patients, providing clinically justified current diagnoses for each patient and removing all diagnoses that cannot be clinically justified. Modify treatment and medication regimens as necessary, considering factors such as the patient's response to treatment, significant developments in the patient's condition, and changing patient needs; and
h. Develop or modify instruments to conduct ongoing systematic review of the quality and timeliness of all assessments according to established indicators, including an evaluation of initial assessments, progress notes, and transfer and discharge summaries; require the director of each clinical discipline to address the process and content of assessments and reassessments, identify individual and group trends, and provide corrective action consistent with generally accepted professional standards.
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2. Treatment Planning

The Georgia Psychiatric Hospitals shall develop and implement an integrated treatment planning process consistent with generally accepted professional standards. More particularly, the Georgia Psychiatric Hospitals shall;

a. Develop and implement policies and procedures regarding the development of individualized treatment plans consistent with generally accepted professional standards.

b. Develop and implement policies and procedures to promote participation in the treatment process by: each patient, and where applicable the legal guardian; and family members if desired by the patient.

c. Require that treatment plans derive from an integration of the individual disciplines' assessments of patients, and that goals and interventions are consistent with clinical assessments. At a minimum, this should include:

(I) Review by the attending psychiatrist, or, for those patients with no psychiatric diagnosis, by the attending physician, of all proposed behavioral plans to determine that they are compatible with the clinical formulations of the case;

(2) Integration of psychiatric and behavioral data and treatments in those cases where clinically indicated; and

(3) Documentation in the patient's record of the rationale for treatment.

d. Require that treatment plans address repeated admissions and adjust treatment plans accordingly to examine and address the factors that led to re-admission.

e. Develop and implement short-term treatment goals that establish an objective, measurable basis for evaluating patient progress, including goals' that address barriers to successful placement in a community based setting.

f.

Require that treatment plans are assessed for their effectiveness and

revised in accordance with policy and as clinically indicated.

g. Provide mental health and behavioral services, including active treatment consistent with generally accepted professional standards.

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Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 9 of 26

h. Require that all psychologists who provide or supervise the provision of behavioral services have training and demonstrate competency in:

(I) performing behavioral assessments, including the functional analysis of behavior and appropriate identification of target and replacement behaviors;

(2) . the development and implementation of thresholds for behaviors or events that trigger referral for a behavioral assessment;

(3) timely review of behavioral assessments by treatment teams, including consideration or revision of behavioral interventions, and documentation of the team's review in the patient's record;

(4) the development and implementation, when indicated, of behavior support plans that are consistent with generally accepted professional standards;

(5) the development and implementation of processes for collecting objective data on target and replacement behaviors; and

(6) supervision of staff who collect behavioral data and perform behavioral interventions, including monitoring the fidelity of implementation of the behavior plan.

I.

Assess patients' cognitive deficits and strengths and select treatment

interventions based on the patient's capacity to benefit.

J.

Consistent with generally accepted professional standards and policy,

regulation, and law, screen or rescreen all patients to identifY those who

have speech or communication deficits that are barriers to treatment or

discharge and who would benefit from speech or communication therapy;

when indicated, develop and implement interventions to establish and

maintain communication behaviors that reduce or eliminate barriers to

treatment and discharge; provide sufficient qualified and trained staff to

provide adequate and timely communication intervention services that are

consistent with and supportive of behavior support plans according to the

outcome of each patient evaluation.

k. Develop and implement a qualitative review process for treatment plans consistent with generally accepted professional standards. The review

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Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 10 of 26

· process will include ongoing feedback and professional development for all professional staff.

I.

Require all treatment team staff, consisting of professionals and direct care

staff involved in the treatment team, to complete successfully competency­

based training, appropriate to their duties, on the development and

implementation of individualized treatment plans, including behavioral

plans and the development of clinical formulations, goals, interventions,

and discharge criteria.

m. Require the clinical director to review high-risk situations in a timely manner, consistent with generally accepted professional standards.

n. Develop and implement policies to require that patients with special needs, including co-occurring diagnoses of substance abuse and/or developmental disability, physical, cognitive, and/or sensory impairments are evaluated, treated, or referred for timely treatment consistent with generally accepted professional standards.

o. Develop and implement a policy for suicide risk assessment and management of suicidality.

p. Require that, with the exception of emergency interventions, no planned restrictive interventions shall be used in the Georgia Psychiatric Hospitals without prior review and approval by a Human Rights Committee, or its equivalent, as to whether the degree of restriction of rights is necessary, appropriate, and of limited duration.

q. Require that all psychotropic medications are:

(1) tailored to each patient's individual symptoms;

(2) administered as prescribed;

(3) monitored for effectiveness and potential side-effects against clearly-identified patient outcomes and time frames;

(4) modified based on clinical rationales;

(5) properly documented; and

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Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 11 of 26
(6) subject to regular review consistent with generally accepted professional standards.
r. Institute systematic monitoring mechanisms regarding medication use throughout the facility. In this regard, the Georgia Psychiatric Hospitals shall implement a procedure governing the use of pro re nata ("PRN") and "Stat" medications that includes requirements for specific identification of the signs and symptoms prior to administration ofPRN or "Stat" medication, a time limit on PRN orders, a documented rationale for the use of more than one medication on a PRN or "Stat" basis, triggers for review by the treatment team, and physician documentation to require timely, critical review of the patient's response to PRN or "Stat" medication including reevaluation of regular treatments as a result ofPRN or "Stat" use.
C. Seclusion or Restraint
The Georgia Psychiatric Hospitals shall require that the use of seclusion or restraint is used in accordance with requirements of applicable policies, regulations, and law, and consistent with generally accepted professional standards. More particularly, the Georgia Psychiatric Hospitals shall:
1. Eliminate the planned use of restrictive interventions, including planned seclusion and planned restraint, with the exception of the use of restrictive interventions for persons with diagnoses of developmental disability, which have received the prior review and approval of a Human Rights Committee, or its equivalent, as to whether the degree of restriction of rights is necessary, appropriate, and of limited duration.
2. Require that the use of restraint or seclusion:
a. Occurs only when persons pose an imminent threat to themselves or others and after less restrictive measures have been determined to be ineffective;
b. Is not an alternative to active treatment, as coercion, punishment, retaliation, or is not for the convenience of staff;
c. Is terminated at the earliest possible time;
d. Is documented in the clinical record; and
e. Is regularly monitored and assessed consistent with generally accepted professional standards and applicable policy, regulation, and law, and that 11

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 12 of 26
a qualified staff member with appropriate training makes and documents a determination of the need for continued seclusion or restraint.
3. Create or revise, as appropriate, and implement policies and procedures consistent with generally accepted professional standards and applicable law and regulation that cover the following areas:
a. The restrictive alternatives available to staff and a clear defmition of each, including restrictive alternatives available for dental and medical procedures; and
b. The training that all staff receive in identifying factors that may trigger circumstances that require the use of restraint or seclusion, the safe use of restraint or seclusion, and the use ofless-restrictive interventions.
4. Require that any order for seclusion or restraint includes:
a. The specific behaviors requiring the procedure;
b. The maximum duration ofthe order; and
c. Behavioral criteria for release, which, ifmet, require the patient's release even if the maximum duration of the initiating order has not expired.
5. Require that the patient's attending physician be consulted in a timely fashion regarding the seclusion or restraint if the attending physician did not order the intervention.
6. Require that at least every thirty minutes, if their clinical condition permits, patients in seclusion or restraint be re-informed of the behavioral criteria for their release from the restrictive intervention.
7. Require that following a patient being placed in seclusion or restraint, the patient's treatment tearn reviews the incident within one business day, and documents the review and the reasons for or against change in the patient's current pharmacological, behavioral, andlor psychosocial treatment.
8. Develop and implement a policy that addresses multiple episodes of restraint or seclusion that include revising the treatment plan if appropriate and consideration of a behavior support plan.
9. Act consistent with generally accepted professional standards and applicable law and regulations regarding assessments of any patient placed in seclusion or 12

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 13 of 26

restraints, by a physician, nurse practitioner or clinical nurse specialist licensed in the State of Georgia.

10. Require that staff successfully complete competency-based training regarding implementation of seclusion or restraint and the use of less-restrictive interventions.
D. Medical and Nursing Care

The Georgia Psychiatric Hospitals shall provide medical and nursing services to its patients consistent with generally accepted professional standards for an inpatient psychiatric facility and for long-term care, as applicable, including individualized care, services and treatment, consistent with their treatment plans. More particularly, the Georgia Psychiatric Hospitals shall:

1

Require adequate clinical oversight of the standard of care consistent with

general1y accepted professional standards.

2. Require sufficient nursing staff to provide nursing care and services consistent with generally accepted professional standards.

3. Require that before nursing staff work directly with patients, they have completed successfully competency-based training, appropriate to their duties, regarding mental health diagnoses, related symptoms, psychotropic medications, identification of side effects ofpsychotropic medications, monitoring ofsymptoms and responses to treatment, and documenting and reporting of the patient's status.

4. Require that nursing staff accurately and routinely monitor, document, and report patients' symptoms and responses to nursing interventions in a manner that enables treatment teams to assess the patient's status and to modify the treatment plan as required.

5. Require that nursing staff actively participate in the treatment team process.

6. Require that nursing staff provide input to and implement interventions in the individualized treatment plan.

7. Require that licensed nurses are appropriately supervised in the administration, monitoring, and recording of the administration of medications and any errors, consistent with generally accepted professional standards.

8. Require that, prior to assuming their duties and on a regular basis thereafter, all 13


Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 14 of 26
staff responsible for the administration of medication have completed successfully competency-based training on the completion of the Medication Administration Record.
9. Require that all failures to properly sign the Medication Administration Record and/or the Narcotics Log are treated as medication errors and that appropriate follow-up occurs to prevent recurrence of such errors.
10. Establish an effective infection control program to minimize the spread of infections or communicable diseases. The infection control program shall:
a. Actively collect data with regard to infections and conununicable diseases;
b. Analyze these data for trends;
c. Initiate inquiries regarding undesirable trends;
d. IdentifY necessary corrective action;
e. Monitor to determine whether remedies are achieved consistent with generally accepted professional standards;
f. Integrate this information into the hospital quality management system; and
g. Require that nursing staff participate in the infection control program.
II. Establish an effective physical and nutritional management program for patients who are at risk for aspiration or dysphagia, including but not limited to the development and implementation of assessments, risk assessments, and interventions for mealtimes and other activities involving swallowing. The physical and nutritional management program shall:
a. IdentifY patients at risk for aspiration or choking and assign an appropriate risk level to that patient;
b. IdentifY triggers on an individualized basis for patients identified as at risk;
c. Assess and determine appropriate and safe positioning for each at risk patient for the 24 hour day;
14

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d. Develop and implement plans that include specific instructions on implementation of the appropriate techniques for all patient activities based on the patient's assessment, with clinical justifications;
e. Monitor and document objective clinical data for at risk patients; and
f. Implement a system to review and revise plans based on appropriate triggering events and outcomes.
12. Require that staff with responsibilities for patients at risk for aspiration and dysphagia have successfully completed competency-based training on duties commensurate with their responsibilities.
13. Provide adequate, appropriate, and timely rehabilitationlhabilitation therapy services and appropriate adaptive equipment to individuals whose special needs affect their daily functional abilities, consistent with generally accepted professional standards, policy, regulation and law.
14. Establish an effective medical emergency preparedness program, including competency-based staff training; require staff familiarity with emergency supplies, their operation, maintenance and location; and conduct sufficient practice drills to attain adequate performance when confronted with an actual emergency.
15. Develop, implement, and review as necessary medical/nursing protocols for medical conditions commonly found within the patient population of the Georgia Psychiatric Hospitals, consistent with generally accepted professional standards.
E. Services to Populations with Specialized Needs
The Georgia Psychiatric Hospitals shall provide services to patients with specialized needs. More particularly, the Georgia Psychiatric Hospitals shall:
I. Provide services to patients with limited English proficiency, consistent with the requirements of the State's Limited English Proficiency and Sensory Impaired Client Services Manual and federal law.
2. Require the provision of adequate education and special education services for qualified students, including:
a. Adequate assessments of individual educational needs and 15

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 16 of 26
monitoring and reporting of individual progress, including reporting all relevant assessments and information to a new school upon discharge from the hospital;
b. Development and implementation oflndividualized Education Plans ("IEPs") consistent with the requirements of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1401; and
c. A requirement that students receive instruction and behavioral supports appropriate to their learning abilities and needs, consistent with generally accepted professional standards.
F. Discharge Planning
The Georgia Psychiatric Hospitals shall, consistent with federal law, treat patients in a marmer consistent with their clinical needs and legal status and shall, consistent with federal law, actively pursue the clinically indicated discharge of patients when not otherwise legally prohibited from doing so. The foregoing shall be satisfied if the State shall:
1. IdentifY and address in treatment planning within three days ofadmission but in all cases prior to discharge, barriers to discharge for a particular patient, including but not limited to:
a. The individual patient's symptoms of mental illness or cognitive impairment;
b. Any other barriers preventing that specific patient from transitioning to a more integrated setting, including problems identified as creating the need for readmission that can be addressed by the hospital;
c. The types of resources necessary for discharge; and
d. The patient's strengths, preferences, and personal goals.
2. Provide the opportunity for every patient to be an active participant in the discharge process, commensurate with the patient's ability and willingness to participate.
3. Include in treatment interventions the development of skills necessary to achieve
16


Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 17 of 26
successful discharge.
4. Provide hospital transition services to patients consistent with generally accepted professional standards.
5. Create a Repeat Admissions Review Coordinator position ("RARC"):
a. The State shall have at each hospital a RARC who will be a senior member of the social work department;
b. Every patient admitted with three or more admissions in a twelve month period or more than ten total admissions to any of the Georgia Psychiatric Hospitals, shall have a "repeat admissions review" conducted by the RARC or such coordinator's staff that is consistent with generally accepted professional standards. The review shall, at a minimum, specify barriers to successful discharge, reasons for repeat admissions, and recommended strategies to promote successful discharge;
c. The findings of the repeat admissions review shall be supplied to the treatment team at least one day prior to the team meeting to write the individualized treatment plan;
d. The treatment team shall consider the [mdings of the RARC and shall address the findings ofthe repeat admissions review in writing in the treatment plan, including specific reasons for adopting or rejecting the recommendations made in the repeat admissions review;
e. Upon request by any treatment team, the RARC will attend the treatment planning meeting to assist with discharge plarming; and
f. The RARC shall participate in the quality assurance or utilization review of the hospital's discharge process.
6. Create or revise, as appropriate, and implement a quality assurance or utilization review process to oversee the hospital's discharge process.
IV. IMPLEMENTATION OF THE AGREEMENT
A. The State shall implement all reforms necessary to effectuate this Agreement. The implementation of this Agreement shall begin immediately upon the Effective Date.
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Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 18 of 26
B. Within six months of the Effective Date of this Agreement, the State shall communicate with Georgia Psychiatric Hospital officials, employees, agents, and independent contractors involved in providing care to the patients at the Georgia Psychiatric Hospitals the provisions set forth in this Agreement that are applicable to their respective job duties.
C. The Georgia Psychiatric Hospitals shall comply with all applicable federal and state
 licensing requirements.

D. The State shall appoint a person at the Division ofMHDDAD to serve as a point of contact for the United States during monitoring of compliance with this Agreement. The foregoing person shall prepare reports regarding compliance with this Agreement within six months and twelve months of the Effective Date and annually thereafter, which reports shall be promptly provided to the United States along with any reports prepared by the State's technical consultants regarding compliance with this Agreement and any other reports routinely submitted to the point of contact regarding compliance with this Agreement.
E. If the State selects technical consultants that it used prior to the execution of this agreement, such action does not waive or impair the attorney work product protections and attorney client privileges that apply to the parties outside of this Agreement.
F. The State shall make reasonable efforts to coordinate its remedial actions across the Georgia Psychiatric Hospitals, so that adequate remedial measures developed at one Georgia Psychiatric Hospital may be implemented system wide.
G. For the purpose of ascertaining compliance with this Agreement, the United States and its attorneys, expert consultants, and agents shall have reasonable access to: all ofthe Georgia Psychiatric Hospitals' buildings and facilities; documents (except those documents not in the Georgia Psychiatric Hospitals' possession, custody, or control); records; State officials, employees, agents, and independent contractors; and patients, including the right to meet with patients privately when clinically appropriate and with their consent; and to patient records, documentation, and information relating to the issues addressed in this Agreement, except where covered by attorney work product protections or the attorney-client privilege. Such reasonable access shall encompass physical access to admissions and to records of patients, but this shall in no way limit the United States' ability to talk to persons. The State shall make all employees available so that they may choose to cooperate fully with the United States. The United States agrees to provide the State with at least IS-days notice of any visit or inspection, although the United States and the State agree that no notice shall be
18


Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 19 of 26
required in an emergency situation where the life, immediate health, or immediate safety of a patient is at issue. Nothing in this Agreement shall abridge the whistleblower rights of State employees or contractors under law. Such access shall continue until this Agreement is terminated in accordance with the termination provisions herein. Within 30 days of receipt of reasonable written questions from the United States concerning the State's compliance with the requirements of this Agreement, the State shall provide the United States with written answers and any requested documents. The State shall provide copies of all documents, except peer­ review documents, reasonably requested by the United States in an electronic format.
H. The State shall notifY the United States promptly upon the death of any patient and other sentinel events. The State shall forward to the United States copies of all completed incident reports and final reports of investigations related to such incidents as well as any autopsies and death summaries in the State's possession.
I. The parties and all of their agents shall, to the fullest extent allowed by law, maintain the confidentiality ofpatients' confidential, personal, and protected health information. All non-public information obtained by the United States shall be maintained in a confidential manner.
J. The State shall implement Quality Assurance mechanisms to assess its compliance consistent with generally accepted professional standards, policies, regulations, and law. The Quality Assurance program shall require:
I. Comprehensive audits -of relevant areas at the Georgia Psychiatric Hospitals by qualified professionals, to monitor compliance with the Georgia Psychiatric Hospitals' policies and procedures. A comprehensive audit of each Hospital shall be conducted within one year of the Effective Date of this Agreement, and on a semi-annual basis thereafter. The comprehensive audit shall include:
a. Review of relevant documents for both adequacy of documentation of the rationale and provision of services;
b. Interviews with appropriate staff, including not only those staff directly involved in the service being audited, but also other staff who may have relevant information, including administrators;
c. Interviews with patients as indicated;
d. Observation of activities involving patients;
19

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 20 of 26
e. Steps to detennine whether there are patients in the Georgia Psychiatric Hospitals who should be receiving appropriate services but are not, including random re-evaluations of recent admissions and assessments, and interviews of line staff who may be aware of patients who would benefit from, but are not receiving, appropriate services;
f. Written findings and the development of plans of improvement, as necessary; and
g. Periodic review of the adequacy of each Hospital's internal quality management activities.
2. Monitoring and review of the status of remedial measures implemented based on findings and recommendations made by bodies investigating patient care and safety, relevant to the area of care being assessed. Such review shall involve debriefings with relevant staff to detennine whether policies, practices, or training should be modified to minimize the risk of such events in the future.
4. Analysis of relevant key indicator data to measure compliance with the Georgia Psychiatric Hospitals' policies.
5. Regular reports at least once every six months summarizing quality assurance activities, findings, and recommendations.
K. The State shall provide reports to the United States at least once every six months during the tenn of this agreement regarding its Quality Assurance mechanisms.
V. MODIFICATION AND TERMINATION
A. If, at any time, any party to this Agreement desires to modifY it for any reason, that party shall notifY the other party to this Agreement, in writing, of the proposed modification and the reasons therefor. No modification will occur unless there is written agreement by and between the United States and the State.
B. The State will undertake its best efforts to obtain the necessary appropriations, limitations, or other expenditure authority to comply with this Agreement. If the State's executive agencies cannot comply with the tenns of this Agreement due to legislative action or inaction, the United States has the right to seek judicial enforcement of this Agreement.
C. The parties agree to file this Agreement with the United States District Court for the Northern District of Georgia, Atlanta Division, in conjunction with a complaint and a joint
20

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 21 of 26
motion, pursuant to Fed. R. Civ. P. 41(a)(2), for the conditional dismissal of the case. The motion shall request that the case be placed on the Court's inactive docket.
D. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety ofpatients served by the Georgia Psychiatric Hospitals, during the term ofthis Agreement, if the United States reasonably believes that the State has failed to fulfill any obligation under this Agreement, the United States shall, before initiating any court proceeding to remedy such failure, give written notice of the failure to the State. With the exception of an immediate or serious threat to life, health, or safety of patients of a Georgia Psychiatric Hospital, the State shall have 90 days from the date of such notice to cure or substantially cure the non-compliance and provide the United States with sufficient evidence of such cure. The Parties shall attempt to resolve any differences during this period. If the parties fail to agree upon a modification or on an extension of time for cure by the end of the 90-day cure period, and the United States determines that the failure has not been cured, the United States may, without further notice, take appropriate legal action, including filing a motion to restore the case to the court's active docket to enforce any provision of this Agreement.
E. This Agreement shall terminate five years from the Effective Date. Within one year of the Effective Date, the Georgia Psychiatric Hospitals shall be in substantial compliance regarding choking and aspiration risk assessment and prevention, suicide risk assessment and prevention, prevention of patient on patient assault, and implementation of emergency medical codes consistent with generally accepted professional standards. The Agreement may terminate earlier as to any particular hospital if the hospital has achieved sustained compliance. The burden shall be on the State to demonstrate this level of compliance. The United States agrees to modify this agreement to show the removal of a particular hospital based on its achievement of sustained compliance, and the United States will not unreasonably withhold such modification of this agreement. During the last twelve months of this Agreement, the United States shall conduct an evaluation of any of Georgia's Psychiatric Hospitals that remain subject to this Agreement. The State will undertake its best efforts to bring the Georgia Psychiatric Hospitals into compliance at the earliest possible date and will notify the United States that the State is in substantial compliance no later than twelve months before the expiration of this Agreement.
VI. GENERAL PROVISIONS
A. This Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, assigns, 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
21

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 22 of 26
assert any claim or right as a beneficiary or protected class under this Agreement in any civil, criminal, or administrative action. This agreement does not authorize, nor shall it be construed to authorize, access to State documents by persons or entities not a party to this Agreement except as allowed by applicable law.
B. The State agrees that it shall not retaliate against any person because that person has filed or may file a complaint, provided assistance or information, or participated in any other manner in the United States' investigation of the Georgia Psychiatric Hospitals or in proceedings related to this Agreement. The State agrees that it shall timely and thoroughly investigate any allegations of retaliation in violation of this Agreement and the non-retaliation provision ofCRlPA and take any necessary corrective actions identified through such investigations.
C. Nothing in this Agreement shall be construed as an acknowledgement, an admission, or
evidence ofliability of the State under CRlPA, the United States 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.
D. "Notice of Non-Compliance" under this Agreement shall be provided by overnight courier to the following or their successors:
Executive Counsel to the Governor
 Governor's Office
 201 State Capitol
 Atlanta, Georgia 30334

Georgia Attorney General
 40 Capitol Square, S.W.
 Suite 132
 Atlanta, Georgia 30334-1300

Commissioner for the Department of Human Resources
 2 Peachtree Street, N.W.
 Suite 19.240
 Atlanta, GA 30303-3142

Chief Legal Officer for the Department of Human Resources
 2 Peachtree Street, N.W.
 Suite 29.201
 Atlanta, Georgia 30303-3142

22

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 23 of 26
Director of the Division of Mental Health, Developmental Disabilities and Addictive Diseases 2 Peachtree Street Suite 22-235 Atlanta, Georgia 30303-3 142
E. "Notice" under this Agreement, with the exception of "Notice of Non-Compliance"
 described above, shall be provided by overnight courier to the following or their
 successors:

Chief of the Special Litigation Section
 601 D Street, N.W.
 Washington, D.C. 20004

Attorney General of Georgia
 40 Capitol Square, S.W.
 Atlanta, Georgia 30334

Executive Counsel to the Governor of Georgia
 20 I State Capitol
 Atlanta, Georgia 30334

F. If an unforeseen circumstance occurs that causes a failure to timely fulfill any requirements ofthis Agreement, the State shall notify the United States in writing within 20 calendar days after the State becomes aware of the unforeseen circumstance and its impact on the State's ability to perfonn under the Agreement. The notice shall describe the cause ofthe failure to perfonn and the measures taken to prevent or minimize the failure. The State shall take all reasonable measures to avoid or minimize any such failure.
G. Failure by any party to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions of this Agreement.
H. The parties shall promptly notify each other of any court or administrative challenge to this Agreement or any portion thereof.
I. In the event any provision of the Agreement is declared invalid, for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement:
23

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 24 of 26

J. This Agreement shall constitute the entire integrated agreement of the parties.
K. Each party shall bear the cost of its fees and expenses incurred in connection with this case.

Executed this f.'7'rh day of .jt=;lNLlAI2.'1

,2009.

By:.,------:-c-----=-----:----­ Grace Chung Becker Acting Assistant Attorney General On behalf ofthe United States

By::-:-_-----:c----:-

_

Shanetta Cutlar

Chief, Special Litigation Section

United States Department of Justice

By:

_

Judy Preston

Deputy Chief, Special Litigation Section

United States Department of Justice

By:~-:-:-:-=-------:c

_

David Deutsch

Mary Bohan

Timothy Mygatt

Amin Aminfar

Special Litigation Section

United States Department of Justice

24


Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 25 of 26

FORlHE UNITED STATES

~~Et!i:~e,

Acting Assistant Attorney General
 Civil Ri s Division·


D~u>.J.....,TTA Y. CUTLAR
 Chief
 Special Litigation Section

~N
Deputy Chief Special Litigation Section

DAVID DEUTSCH MARYR. BOHAN
TIMOTHY D. MYGATT "AM!N AMINFAR
Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-0212 Email: Timothy.Mygatt@usdoj.gov

Case 1:09-cv-00119-CAP Document 7-1 Filed 02/10/09 Page 26 of 26
BY:~2"£~'47-JL;~~~~==Govemoroft
•

25

 
 Case 1:09-cv-00119-CAP Document 152 Filed 09/24/10 Page 1 of 7

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA
v. THE STATE OF GEORGIA, et. al.,
Defendants.

CIVIL ACTION NO. 1:09-CV-119-CAP

O R D E R

The purpose of this order is to summarize the rulings made by

the court at the September 23, 2010 status conference as well as

address pending discovery issues.

I. Pending Motions

A. Parties’ Settlement Agreement [Doc. No. 2] and Motion to

Amend [Doc. No. 53]

On the same day this lawsuit was filed, the parties submitted

their executed settlement agreement [Doc. No. 2] to the court for

approval. The court temporarily adopted the agreement as the order

of the court pending final approval [Doc. No. 9]. Because there is

no reason to withhold final approval, the court HEREBY ADOPTS the

settlement agreement as the order of this court. The court finds

that the scope of the settlement agreement entered into between the

parties [Doc. No. 2] does not include the Olmstead issues the

plaintiff seeks to raise in the proposed amended complaint.

Case 1:09-cv-00119-CAP Document 152 Filed 09/24/10 Page 2 of 7
Moreover, these claims have been raised in a later-filed case involving the same parties. See United States v. State of Georgia, Civil Action No. 1:10-CV-0249-CAP (N.D. Ga. Jan. 28, 2010) (hereinafter “2010 Case”). Through the 2010 Case, the plaintiff may pursue the claims it seeks to add by amendment to this case. Therefore, the motion to amend [Doc. No. 53] is DENIED. As a result, the defendant’s motion to dismiss [Doc. No. 81], which the State filed “in an abundance of caution” in the event the proposed amended complaint is found to be properly filed, is now moot, and it is therefore DISMISSED.
B. Motion to Consolidate with the 2010 Case [Doc. No. 54] The plaintiff has moved to consolidate the instant case with the 2010 Case. Pursuant to Rule 42(a), whether to consolidate cases is within the discretion of the court. Under the circumstances of this case and the 2010 Case, the court finds that in order to avoid confusion and in the interests of judicial economy and efficiency, the two cases should be maintained as separate and distinct civil actions. Accordingly, the motion to consolidate [Doc. No. 54] is DENIED. This ruling does not, however, preclude the parties from utilizing the same discovery in each civil action. Additionally, the evidentiary hearing scheduled for November 8, 2010, will encompass issues from both cases.
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Case 1:09-cv-00119-CAP Document 152 Filed 09/24/10 Page 3 of 7
C. Enforcement of the Settlement Agreement The defendant has moved to enforce the settlement agreement [Doc. No. 62]. To the extent this motion seeks the court’s final approval of the agreement, the motion is GRANTED. Furthermore, the court recognizes that the plaintiff contends the State is not in substantial compliance with the agreement, and the parties will be heard on these issues at the November 8, 2010 hearing. To the extent that the motion to enforce seeks a ruling that the settlement agreement encompasses Olmstead compliance and thus provides the State with an additional four years to be in compliance with Olmstead, the motion is DENIED. As set forth above, the settlement agreement does not extend to Olmstead issues. Additionally, there is nothing within the settlement agreement that precludes the filing and litigation of the 2010 Case. D. Immediate Relief Sought by the Plaintiff [Doc. No. 55] The plaintiff has filed a motion for preliminary injunction [Doc. No. 55] in the instant case that includes allegations of noncompliance with the settlement agreement as well as Olmstead issues. In the motion, the plaintiff notes that if this court determines that the settlement agreement is still in effect, the United States seeks to file the claims raised in this motion as a motion for immediate relief in the 2010 Case [Doc. No. 55 at 4].
-3-

Case 1:09-cv-00119-CAP Document 152 Filed 09/24/10 Page 4 of 7
Because the court has determined that the settlement agreement is in effect, the instant motion should be filed in the 2010 case as a motion for immediate relief. Therefore, the clerk is DIRECTED to file a copy of the motion for preliminary injunction and all attachments and exhibits thereto [Doc. No. 55] in the 2010 Case as a pending motion for immediate relief. Additionally, the clerk is DIRECTED to file a copy of the State’s response to the motion for preliminary injunction and all attachments and exhibits thereto [Doc. No. 71] as the responsive filing to the motion for immediate relief in the 2010 Case. II. Discovery Issues
A. Schedule With respect to the updated joint preliminary report and discovery plan [Doc. No. 137], the proposed deadlines are adopted with the following exceptions: 1. trial briefs on the issues to be presented at the hearing shall be submitted no later than October 18, 2010 with responses due no later than October 28, 2010. At the conclusion of the hearings, the court will determine whether there will be a need for supplemental briefings by the parties. 2. by October 25, 2010, the parties shall exchange lists of any exhibits and/or discovery material as to which they do not stipulate authenticity. 3. all motions objecting to witnesses, exhibits, discovery material, or expert testimony to be introduced
-4-

Case 1:09-cv-00119-CAP Document 152 Filed 09/24/10 Page 5 of 7
at the hearing, as well as other motions in limine shall be filed by October 29, 2010. Responses to the filings (if desired) shall be filed by November 3, 2010.
4. The parties shall jointly file a proposed schedule for Phase Two of discovery within 14 days of the date the court issues a ruling regarding the issues presented at the November 8, 2010 hearing.
B. Protective Order
The proposed consent protective order [Doc. No. 131] is
adopted with the exception of paragraph 7. That paragraph is
replaced as follows:
As a general matter, this court will seal only those items enumerated in the court's Standing Order 04-02 regarding sensitive information and public access to electronic case files. If a party has very good cause to request the sealing of information beyond those items covered by Standing Order 04-02, the party shall first present to chambers a motion to file under seal. The party shall indicate by entry of a "notice" on the CM/ECF docket that a motion to seal has been presented to the chambers. Attached to the motion should be the material desired to be sealed. The court will review the material in camera and make a decision whether to grant or deny the motion to seal. If the court determines that the motion is to be granted, the court will forward the signed motion and accompanying materials to the Clerk of the Court for entry of the motion on CM/ECF docket and appropriate filing of the sealed materials. If the court determines that the motion is to be denied, the court will contact the filing party which may then retrieve the motion and materials.
C. Access to Discovery by the Amici Curiae
Finally, the court finds insufficient need on the part of the
amici curiae to have access to the limited amount of confidential
-5-

Case 1:09-cv-00119-CAP Document 152 Filed 09/24/10 Page 6 of 7
documents reviewed by the parties’ experts and other witnesses. Therefore, the motion for order directing the parties to provide copies of discovery to counsel for the amici curiae [Doc. No. 136] is DENIED. There is no prohibition on the plaintiff sharing discovery responses that are not confidential as defined by the protective order [Doc. No. 131]. III. Conclusion
(1) the motion to amend complaint [Doc. No. 53] is DENIED; (2) the motion to consolidate cases [Doc. No. 54] is DENIED; (3) the motion for enforcement of the settlement agreement [Doc. No. 62] is GRANTED in part and DENIED in part; (4) the motion to dismiss [Doc. No. 81] is DISMISSED as moot; (5) the motion for order directing the parties to provide counsel for the amici curiae with copies of discovery [Doc. No. 136] is DENIED; (6) the proposed updated joint preliminary report and discovery plan [Doc. No. 137] is adopted with the exceptions noted in Paragraph II(A) above; (7) the proposed protective order [Doc. No. 131] is adopted with the exception noted in Paragraph II(B) above;
-6-

Case 1:09-cv-00119-CAP Document 152 Filed 09/24/10 Page 7 of 7 (8) the Clerk is DIRECTED to filed the motion for immediate relief and the response thereto in the 2010 Case as explained in Paragraph I(D) above. SO ORDERED, this 24th day of September, 2010.
/s/ Charles A. Pannell, Jr. CHARLES A. PANNELL JR. United States District Judge
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 u.s. Department of Justice
Civil Rights Division

Office ofthe Assistant Attorney General

Washington, D.C. 20530

The Honorable Sonny Perdue Office of the Govern6r -.
203 State Capital Atlanta, Georgia 30334

MAY 30 2DJ

Re: CRIPA Investigation of the Georgia Regional 
 Hospital in Atlanta 


Dear Governor Perdue:

I am writing to report the findings of the Civil Rights Division's investigation of conditions and practices in the State's Psychiatric Hospitals pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. CRIPA gives the Department of Justice authority to seek a remedy for a pattern and practice of conduct that violates the constitutional or federal statutory rights of patients with mental illness or developmental disabilities who are treated in public institutions. The findings discussed in this letter apply particularly to the Georgia Regional Hospital in Atlanta, Georgia ("GRHA"). We will provide a supplemental letter describing any additional findings concerning the remaining hospitals in the state hospital system as soon as reasonably possible. However, as detailed below, we found conditions at GRHA to be so critically deficient that we write to you at this time to stress the urgency of necessary reforms. 1

On April 18, 2007, we notified you that we were initiating an investigation of conditions and practices in the State's Psychiatric Hospitals pursuant to CRIPA. The State agreed that the Department's inspection of four of the State's hospitals would stand as representative of all seven hospitals in the system. We began our on-site inspections with a visit to GRHA on

1

We note that many, if not all, of the findings we make

regarding GRHA are representative of conditions encountered at

the two other hospitals we have inspected to date, the Northwest

Regional Hospital in Rome and the Georgia Regional Hospital at

Savannah.

-2­
September 17 through 21, 2007. Visits to the Northwest Regional Hospital in Rome and the Georgia Regional Hospital at Savannah occurred on October 29 through November 2, 2007, and on December 17 through 21, 2007, respectively. The visit to Central State Hospital in Milledgeville is tentatively scheduled for June 9 through 13, 2008.
We conducted our on-site review with the assistance of expert consultants in the fields of psychiatry, psychology, psychiatric nursing, protec'tion from harm, and. discharge planning and community placement. While on-site, we interviewed administrative staff, mental health care providers, and patients, and examined the physical plant conditions throughout most, but not all, of the facility.2 In addition to our on-site inspection of GRHA, we reviewed a wide variety of documents, including policies and procedures, incident reports, and medical and mental health records. Consistent with our commitment to provide technical assistance and conduct a transparent investigation, we concluded our tour with an extensive debriefing at which our consultants conveyed their initial impressions and grave concerns about GRHA to counsel, administrators and staff, and State officials.
In accordance with statutory requirements, we now write to advise you formally of the findings of our investigation pertaining to GRHA, the facts supporting them, and the minimum remedial steps that are necessary to remedy the deficiencies set
2 The State, asserting that CRIPA does not afford jurisdiction over admissions, intake, and "short-term outpatient" units, refused us access to such units at GRHA (and at the regional hospitals in Rome and Savannah). The State's position is incorrect. See, SL:..9...:.., 42 C.F.R. § 483.20 (2006) (describing the State's duty to provide physician orders for immediate care at the time of admission and to perform comprehensive assessments within fourteen days of admission). By law, our investigation must proceed regardless of whether officials choose to cooperate fully. Indeed, when CRIPA was enacted, lawmakers considered the possibility that state and local officials might not cooperate in our federal investigations. See H.R. Conf. Rep. 96-897, at 12 (1980), reprinted in 1980 U.S.C.C.A.N. 832, 836. As we informed the State.'s attorneys, the State's decision to deny us access to these areas permits us to draw negative inferences about ,conditions and practices in those units. See id. While we'did not draw negative inferences in making the findings described in this letter, we reiterate that we are authorized to do so if the State continues to deny us access to these areas in the future.

-3­
forth below. 42 U.S.C. § 1997b(a). Specifically, we have concluded that numerous conditions and practices at GRHA violate the constitutional and statutory rights of its residents. In particular, we find that GRHA: (1) fails to adequately protect its patients from harm; (2) fails to provide appropriate mental health treatment; (3) fails to use seclusion and restraints appropriately; (4) fails to provide adequate nursing and health care; (5) fails to provide adequate services to populations with specialized needs; and (6) fails to provide adequate discharge planning to ensure placement in the most integrated setting. See Youngberg v. Romeo, 457 U.S. 307 (1982); Title XIX of the Social Security Act, 42 U.S.C. § 1396; 42 C.F.R. Part 483, Subpart I (Medicaid Program Provisions); 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).
We note, at the outset, three overarching concerns. First, the majority of the findings we have made have also been made by other agencies in the past. See,~, United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, Survey of Georgia Regional Hospital at Atlanta (June 14, 2006) (describing failure to meet federal regulatory standards in protection from harm, mental health treatment, nursing and health care, and specialized .needs services, resulting in injuries to patients, including death); Memorandum from Peter Buckley, M.D., and Nan Lewis, M.P.H., of the Medical College of Georgia to William P. Kissel of the Georgia Department of Human Resources entitled UAudit Summary - Georgia Regional Hospital - Atlanta" (May 3, 2007) (describing deficits in protection from harm, mental health treatment, seclusion and restraint usage, nursing and health care, and discharge planning, resulting in staff and patient injuries). Throughout this letter, we have included specific references to past findings by these entities, where appropriate. In addition, recent media coverage, including a series of investigative articles in the Atlanta Journal Constitution, has also reported that patients at GRHA are exposed to a significant risk of harm and often suffer preventable injuries and illnesses, some of which have been fatal. We found that these same conditions remain unabated, despite GRHA's notice of the deficiencies.
Second, GRHA is the very hospital where, nearly a decade ago, the United States Supreme Court made clear that the unnecessary institutionalization of persons with disabilities violates the law. Olmstead, 527 U.S. 581 (1999). Olmstead involved two women with developmental disabilities who were inappropriately confined at GRHA. The Supreme Court held that states are required to provide mental health treatment to persons

-4­
in the most integrated, appropriate settings. In the wake of the Olmstead decision, Georgia commissioned numerous studies of deficiencies in its community mental health care system, including: a February 2004 Study of the Community Service Board ("CSB") Service Delivery System (Phase I); a January 2005 Study of the CSB Service Delivery System (Phase II); and a May 2005 Georgia Mental Health System Gap Analysis. As stated in the Phase II Study by the State's Department of Audits and Accounts, these studies "point to accountability, oversight, management, and quality of care issues." Despite the mandate by the Supreme Court and the subsequent clear analysis and recommendations in Georgia's own reports, as indicated herein, our review of discharge planning at GRHA finds that Georgia still frequently fails to ensure that patients receive appropriate and sufficient services to enable them to live in the least restrictive setting consistent with their needs, and as required by federal law.
Third, the findings that we make about the Adolescent Unit are particularly disturbing. We observed several troubling incidents during our tour, including one where an adolescent tore the water cooler from the wall and had to be forcibly escorted by staff to a seclusion room. One week earlier, a disturbance on the same unit required the assistance of county police to subdue the adolescents on the unit. Moreover, we found the number of incidents on the unit of patient-on-staff abuse and patient-on­ patient aggression to be extraordinarily high. The GRHA psychiatrist assigned to the Unit described the situation as "continuing clinical chaos." Another staff member candidly stated that the adolescent patients would be safer outside of GRHA. This is a highly dangerous situation that requires immediate attention.
I. BACKGROUND
Georgia Regional Hospital at Atlanta was established in 1968 and was the first hospital facility constructed in Georgia's regional hospital system. Located on 174 acres in DeKalb County, GRHA serves residents of metropolitan Atlanta and a section of Northeast Georgia. GRHA operates 352 licensed inpatient beds in four disparate program areas: adult mental health, adolescent mental health, forensic services, and services for persons with developmental disabilities. 3 The adult mental health unit is

3

We note that the combination of populations at GRHA is

unusual. Each population and the combination of these

populations present unique health, safety, and treatment

concerns.

-5­
comprised of 124 beds and serves the six counties of metropolitan Atlanta( a population of more than four million people. The adolescent unit, comprised of 28 beds, is the sole adolescent program statewide. The forensic unit, comprised of 90 beds, serves both persons charged with a crime who require evaluation before trial, as well as persons committed by the courts to the hospital for treatment after being found incompetent to stand trial or not guilty by reason of insanity. The unit for persons with developmental disabilities provides residential care to 41 patients. In addition, four beds are reserved for temporary care for individuals who are in crisis in the community. GRHA also operates 65 beds providing residential skilled nursing care to persons with developmental disabilities who are also medically fragile.
II. LEGAL STANDARDS
The Fourteenth Amendment due process clause requires state mental health care facilities to provide patients with "adequate food, shelter, clothing, and medical care," along with conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training, including treatment, as may be reasonable in light of their constitutionally-based liberty interests. Youngberg, 457 U.S. at 315, 319, 322.
In order to secure these liberty interests, individualized treatment must be provided that will give patients "a reasonable opportunity to be cured or improve [their] mental condition." Donaldson v. O'Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated on other grounds, O'Connor v. Donaldson, 422 U.S. 563 (1975); D.W. v. Rogers, 113 F.3d 1214, 1217-18 (11th Cir. 1997) (holding that the constitutional right to psychiatric care and treatment is triggered by the State's physical confinement of an individual with mental illness; the court noted the holding of former Fifth Circuit cases, including Donaldson (which are binding upon the Eleventh Circuit if decided before September 30, 1981)); see also Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
Treatment is not adequate if it substantially departs from accepted professional judgment, practice, or standards. Youngberg, 457 U.S. at 320-23. Patients have a due process right to have all major decisions regarding their treatment be made in accordance with the judgment of qualified professionals acting within professional standards. Griffith v. Ledbetter, 711' F. Supp. 1108, 1110 (N.D. Ga. 1989).
In addition, patients' constitutional liberty interests in security compel states to provide reasonable protection from harm

- 6­
in mental health hospitals. Youngberg t 457 U.S. at 315-16. States are also compelled by the Constitution to ensure that patients are free from hazardous drugs which are "not shown to be necessarYt used in excessive dosages t or used in the absence of appropriate monitoring for adverse effects.1I Thomas S. v. FlahertYt 699 F. Supp. 1178 t 1200 (W.D.N.C. 1988) t afftd t 902 F.2d 250 (4th Cir. 1990). "Even on a short-term basis t states may not rely on drugs to the exclusion of other methods to treat people with behavior problems. 1I Id. at 1188.
It is a substantial departure from professional standards to rely routinely on seclusion and restraint rather than behavior techniques t such as social reinforcement t to control aggressive behavior. Thomas S.t 699 F. Supp. at 1189. Seclusion and restraint should only be used as a last resort. Id.; Davis v. Hubbard t 506 F. Supp. 915 t 943 (W.D. Ohio 1980). Further t professional judgment should be exercised on a case-by-case basis regarding the most appropriate setting in which individual patients should be placed. See t ~t Thomas S.t 902 F.2d at 254-55.
Medicare/Medicaid regulations governing certified psychiatric hospitals t such as those in Georgia t require adequate staffing t record keeping t caret treatment t and discharge planning. 42 C.F.R. §§ 482-483.
Furthermore t Georgia must provlde services to qualified individuals with disabilities in the most integrated setting appropriate to their needs. Title II of the Americans with Disabilities Act ("ADAII) t 42 U.S.C. § 12132 ("no qualified individual with a disability shall t by reason of such disabilitYt be excluded from participation in or be denied the benefits of the services t programs t or activities of a public entitYt or be subjected to discrimination by any such entityll) t and its implementing regulations t 28 C.F.R. § 35.130(d) ("A public entity shall administer services t programs t and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities ll ); see Olmstead t 527 U.S. at 607 (holding that states are required to provide community-based treatment for persons with mental disabilities when the Statets treatment professionals determine that such placement is appropriate t the affected persons do not oppose such treatment t and the placement can be reasonably accommodated t taking into account the resources available to the State and the needs of others with mental disabilities) .

-7­
III. FINDINGS
Significant and wide-ranging deficiencies exist in GRHA's provision of care. Certain conditions and services at GRHA substantially depart from generally accepted professional standards, and violate the constitutional and federal statutory rights of patients who reside there. In particular, we find that GRHA: (1) fails to ensure the reasonable safety of its patients; (2) fails to provide adequate mental health treatment; (3) engages in the inappropriate use of seclusion and restraints; (4) fails to provide adequate nursing care; (5) fails to provide adequate services to populations with specialized needs; and (6) fails to provide adequate discharge planning to ensure placement in the most integrated setting. Many of these deficiencies stem from a system that does not have clear, specific standards of care or an adequate number of trained supervisory, professional, and direct care staff.
A. GRHA Does Not Adequately Protect Patients from Harm
Patients at GRHA have a right to live in reasonable safety. See Youngberg, 457 U.S. at 315, 322. GRHA fails to provide a living environment that complies with this constitutional mandate. Specifically, individuals residing at GRHA are subject to frequent patient assaults that often result in serious harm, to unchecked self-injurious behavior, and to abuse and neglect. The harm GRHA residents experience is multi-faceted and includes physical injury; psychological harm; inadequate, ineffective, and counterproductive treatment; repeated hospitalizations; and excessively long hospitalizations. The facility's ability to address this harm is hampered by inadequate incident, risk, and quality management, including deficient investigative practices.
1. Incidents at GRHA Are Serious and Recurring
Our review of the incidents at GRHA revealed that they are serious, recurring, and frequently result in grave harm. We highlight three areas where the problems are particularly acute: patient aggression, accumulation· of contraband, and suicide ideation and attempts.
a. Patient Aggression and Self-Injurious Behaviors Are Not Controlled
Patient aggression is not adequately controlled on many of the units at GRHA. A melee that occurred on the Adolescent Unit just one week prior to our visit is illustrative of the problems we found with uncontrolled patient aggression at GRHA:

- 8­

•

On September 8, 2007, six adolescents began throwing tables

and chairs at the window protecting the nurses' station.

Three of the adolescents forced the door to the lobby of the

Adolescent Unit open by kicking and slamming it with their

bodies. The patients broke tables and cabinets in the lobby

area and attempted to force open the outside door. One

patient held a piece of plexiglass to his neck, threatening

to cut himself, and then cut his neck before staff was able

to take the piece of plexiglass from him. Other patients

not involved in the destructive behavior refused to stay in

their rooms and began running around the unit. Staff and

facility police were unable to restore order and had to call

DeKalb County police officers to diffuse the situation.

Our review of patient incidents reveals troubling patterns in the patient aggression: repeat victims, repeat aggressors, and units where patient aggression is particularly uncontrolled. The frequent patient-on-patient assaults at GRHA often result in serious injury to the victim, including fractures, lacerations, and head wounds, many of which can not be treated at GRHA and require treatment at the local emergency room. These incidents are not merely fights between two patients. Rather, they often involve multiple assailants. For example:

•

A.A.4 was assaulted by two patients two days after he was

admitted; his right eye was injured. Less than a week

later, A.A. was again the victim of an assault by two

patients; this time his left eye was injured.

•

B.B. was attacked by three patients, and the following day

he was attacked by two patients, one of whom participated in

the first assault.

Assaults and patient aggression are particularly problematic on the Adolescent Unit. GRHA staff are unable to provide adequate security for the patients on that unit. Among the serious incidents that occurred during our visitS was one involving C.C., a 16-year-old patient experiencing his 13th

4 To protect patients' privacy, we identify them by initials other than their own. We will separately transmit to the State a schedule that cross-references the initials with patient names.
S The DOJ team was not on the Adolescent Unit at the time of the incident, although we observed the debriefing following the incident.

- 9­
psychiatric hospitalization in two years. C.C. entered a psychiatrist's office and refused to leave. His behavior became threatening, escalating out of control as he began destroying items in the office and banging on the locked door. The psychiatrist tried unsuccessfully to call for help and finally hailed a staff member in the vicinity who called an emergency code. C.C. left the doctor's office and damaged property in the front lobby before he was eventually calmed and placed in seclusion. In a debriefing following this incident, staff uniformly reported feeling unsafe on the Adolescent Unit. The psychiatrists asserted that lack of adequately trained staff resulted in "continuing clinical chaos" on the unit. Notably, GRHA staff asserted to the DOJ team that the adolescent patients would be safer outside of GRHA.
Staff as well as patients are often the victims of assault. Indeed, staff on the Adolescent Unit are repeatedly victims of patient aggression. Our review found at least 22 incidents of patient aggression against staff on the Adolescent Unit between January and August 2007, including kicking, punching, biting, and sexual assault. For example, on January 12, 2007, D.D. approached a female staff member from behind, covered her mouth with his hand, pushed her against the wall, and attempted to sexually assault her. In another incident, E.E. took scissors from a shelf and threatened to attack a physician. On March 18, 2007, when a staff member attempted to intervene in a fight between two patients, both patients began punching and kicking the staff member for intervening in the fight. Given these conditions, it is not surprising that staff expressed fear and concern for their own and patients' safety on the Adolescent Unit.
Sexual assaults are not limited to the Adolescent Unit. Staff members and patients on other units have been similarly assaulted. For instance, one female staff member was forced into the kitchen by a male patient who pushed his body against hers and attempted to sexually assault her. In another example, a female patient reported that a male patient had come into her room and attempted to remove her pants before she persuaded him to leave.
The repeated and significant level of violence on the units suggests a fundamental failure to address the root causes of patients' aggression and demonstrates a failure to intervene adequately to prevent future incidents. The case of patient F.F. is illustrative:

- 10 ­

•

One night in late January 2007, F.F. broke a light fixture

and threw a couch across the East Unit's day room. The

following afternoon, he punched another patient in the

forehead. A few days later, he pushed his physician during

an examination and broke furniture in the day room. Ten

days later, F.F. pushed another patient to the ground, and

the patient struck his head on a chair as he fell,

lacerating his eyelid and eyebrow. The following day, F.F.

threw chairs across the cafeteria, and then went outside and

began shaking a staff member's vehicle. That evening, F.F.

hit a patient in the face. Within the next few weeks, F.F.

attacked a staff member, putting him in a choke hold and

wrestling him to the ground. We found no indication that

F.F.'s treatment team developed a behavioral support plan to

address F.F.'s aggression.

b. Contraband Is Not Controlled

Contraband is frequently recovered at GRHA, and much of this contraband has been converted into weapons by patients. During the same time frame as the aggressive incidents described above, F.F. was discovered with two razors, a large pair of scissors, a broken plastic knife, and several other pieces of contraband. A.A. used a razor to cut arteries in his neck and arms, requiring emergency room treatment. Many other patients have been found with weapons, including knives and razors, and with toothbrushes and combs sharpened into shanks. Other patients have been able to hoard or smuggle numerous pills, which, if taken at one time, could cause grave illness or even death. Given the level of patient aggression and the psychological instability of many of the patients at GRHA, the amount of contraband accumulated by patients is indicative of inadequate care and supervision.

c. Suicidal Ideation and Attempts Are Not Addressed Appropriately

A significant number of patients are admitted to GRHA for stabilization and protection because of suicidal ideation or attempts. Our review revealed a troubling number of patients who obtained the means to attempt suicide and/or who inflicted serious self-harm despite being admitted because of suicidal ideation or after declaring an intent to harm themselves. Three examples are illustrative:

•

G.G. is a 21-year-old woman first admitted to GRHA in August

2007 after running into traffic with a broken glass bottle

in her hand, threatening to kill herself. GRHA

professionals determined that G.G. was stable approximately

- 11 ­

one week after her admission and discharged her to a homeless shelter. G.G. was readmitted to GRHA with suicidal ideation only three days after her discharge. Seven hours after arriving on a residential unit, and less than 32 hours after her admission, G.G. had both the means and the opportunity to make a serious suicide attempt. She was found lying face down in a pool of blood outside her bedroom doorway, unresponsive, with a cord wrapped tightly around her neck, and bleeding from her mouth and nose. Witness statements suggest that the cord was made of shoe laces and/or a robe belt from a bag given to G.G. on the admissions unit. GRHA records indicated that staff had not checked on G.G. for more than 30 minutes, although her observation level required that she be checked every 15 minutes.

•

H.H. has repeatedly attempted suicide during her admissions

to GRHA. In July 2006, she obtained a razor and made

mUltiple cuts to her abdomen requiring suturing. Less than

two weeks later, H.H. broke a ceiling light and swallowed

the glass, requiring treatment at the emergency room. The

following month, H.H. broke a light bulb and repeatedly

lacerated her arms, again requiring attention at the

emergency room. During a subsequent admission in March

2007, H.H. again broke a ceiling light, lacerated her arms,

and allegedly ingested glass. These injuries once again

required emergency room treatment.

•

A.A. cut his neck and arms with a razor on May 8, 2007. He

was rushed to the emergency room to stop the arterial

bleeding. When staff initially entered his blood-spattered

room, A.A. shouted ftI told you I was suicidal."

2. GRHA Provides Inadequate Incident and Risk Management
(
To protect its patients in accordance with generally accepted professional standards, GRHA should have in place an incident and risk management system that helps to prevent incidents and ensures appropriate corrective action when incidents do Qccur. An effective incident and risk management system depends on: (1) accurate data collection and reporting; (2) thorough investigations; (3) identification of actual or potential risks of harm, including the tracking and trending of data; and (4) implementation and monitoring of effective corrective and/or preventive actions. Although policies and procedures describe such an incident and risk management system at GRHA, this system is not implemented, and the actual incident and risk management system falls significantly short of these

- 12 ­
standards. As indicated above, GRHA has serious, recurring incidents and inconsistent incident reporting. Moreover, GRHA fails to identify risks and to implement corrective actions, and performs inadequate investigations. As a result, patients are routinely exposed to actual and potential harm.
a. Incident Reporting Is Incomplete
The first necessary step in addressing harm like that at GRHA is to ensure complete and accurate incident reporting. Although GRHA's incident reporting policy requires that all incidents be sent to the Compliance and Risk Management Department so that they can be entered into a centralized incident and injury database, this policy is not adequately followed. During our tour, we reviewed documents generated from GRHA's incident and injury database, including a facility-wide statistical summary of all incidents and injuries for the period between January and July 2007. This database summary indicated that the Developmental Learning Center ("DLC"), a 38-bed unit, reported only three incidents in this six month period. Records maintained on the DLC unit, however, indicated that 153 incidents occurred during that same period. Neither the DLC Director nor the Director for Compliance and Risk Management, who oversees the database, were aware that the DLC's incident reports had not been forwarded to the risk management department. Thus, from January 2007 until our consultant's review of the records in September 2007 -- a period of more than eight months -- records in the risk management department reflected a nearly complete absence of harm in the DLC, and no one noticed, investigated, or corrected this highly unlikely anomaly.
Failure to forward incident reports to the risk management department, and a corresponding failure to notice that these reports are missing, is not limited to the DLC. According to our review, GRHA's risk managers had also not received any incident reports from Secure Unit II for August or September 2007, despite this unit averaging seven incidents per month. Even if this lapse was attributable to a delay, and not a failure to report, the delay itself would be a critical failure to respond promptly to incidents of harm. Indeed, we found that GRHA has been repeatedly cited by State investigators for failing to report critical incidents in a timely manner as required by State policy.
The absence of reliable incident data, coupled with GRHA's inability to recognize this issue, indicates a grave deficit in the administration's operational oversight. Without reliable data regarding incidents and injuries, GRHA is incapable of

- 13 ­

responding appropriately to prevent future harm. GRHA's failure to adequately report incidents and injuries significantly departs from generally accepted professional standards.

b. Risk of Harm Is Not Identified and Sufficient Preventive Actions Are Not Taken

Incident management focuses on the collection and aggregation of data that are meaningful to protect an individual from harm, while risk management focuses on identifying actual or potential harm from that data and taking timely action to prevent the harm from occurring or recurring. Generally accepted professional standards dictate that ~ facility's risk management program: (1) identify actual or potential risks of harm based on historical data, diagnoses, and co-occurring conditions; (2) develop timely and appropriate interventions designed to reduce or eliminate the risks of harm; and (3) monitor the efficacy of the interventions and modify them as necessary in response to further data. GRHA fails to provide adequate risk management in each of these areas.

Although GRHA's incident and injury data are significantly under-reported, trends in, the existing data are nevertheless evident. These trends, however, appear to go unrecognized at GRHA. We found numerous examples of significant incidents or escalating patterns of incidents that remain unaddressed. For example:

•

As discussed earlier, F.F. had at least seven incidents of 


aggression against peers and staff within a five-week 


period, and mUltiple incidents of seclusion and restraint. 


Notwithstanding these indications of continued crisis, F.F. 


does not appear on the facility's list of persons with a 


Behavior/Safety plan. 


•

I.I. was admitted to GRHA after he was found incompetent to 


stand trial on child molestation charges. In July 2007, 


I.I. reported to a nurse that he had inserted a bottle of

deodorant in his rectum, and was sent to the emergency room

to have it removed. The only intervention by GRHA staff

appears to have been an instruction not to insert objects in

his rectum again, and questioning from his psychiatrist

about why he had done so, which I.I. declined to answer.

I.I.' medical record does not reflect that his treatment

- 14 ­

team either revised his treatment plan or otherwise addressed this issue. 6

The failure to identify actual or potential risks to patients and respond with appropriate interventions is a significant departure from generally accepted professional standards. Even when risks are identified, however, GRHA inadequately addresses those known risks. For example:

•

A Corrective Action Plan ("CAP") was developed after H.H.'s

July 2006 suicide attempt but was not implemented at the

time of her discharge. It was not implemented when H.H. was

readmitted in March 2007 and made a similar suicide attempt,

her fourth, while at GRHA.7

•

1.1. was on "sexual protocol" which required both

line-of-sight observation and a single bedroom to prevent

1.1. from sexually assaulting other patients. On

June 14, 2007, 1.1. was assigned to the same bedroom as four

other patientsi that evening, 1.1. sexually assaulted

another patient in the room.

•

J.J. was assigned to line-of-sight observation in February

2007. Having failed to maintain this observation level, a

staff member went into J.J.'s bedroom only after hearing a

loud noise from inside and discovered J.J. choking another

patient: The victim required emergency room treatment. Had

J.J.'s line-of-sight protocol been followed, this incident

would not have occurred.

We discovered many other instances in which CAPs were not implemented in a timely manner. For example, in November 2006, several staff restrained a patient in a prone (face-down) position. The CAP involving this potentially life-threatening deviation from generally accepted professional standards was not initiated until three months· after this incident. In another egregious example, K.K. attempted to strangle herself with a string in May 2006, while on line-of-sight observation. A CAP

,

6

1.1. was discharged to a personal care home several

weeks later. There is no documentation of this incident in his

progress notes, discharge summary, or aftercare plan.

7

This is particularly troubling because of the great

similarity between her suicide attemptsi had a CAP been

implemented, her March 2007 suicide attempt might have been

prevented or the harm mitigated.

- 15 ­

was not initiated until March 2007 t 42 weeks after the incident. Moreover t we note that GRHAts failure to ensure that CAPs are completed and implemented in a timely fashion was raised in the
Medical College of Georgiats May 2007 Report. The repeated
failure to complete CAPs in a timely manner jeopardizes GRHAts
ability to protect patients from harm. GRHAts continued failure
to follow its own action plans t despite the identified risks t is a grave deviation from generally accepted professional standards.

c. Investigative Practices Are Inadequate

Generally accepted professional standards dictate that
facilities like GRHA investigate serious incidents such as
alleged abuse and neglect t serious injurYt and death. During the investigation t evidence should be systematically ide'ntified t collected t preserved t analyzed t and presented. Investigators should attempt to determine the underlying cause of the incident
bYt among other things t reviewing stafft s adherence to programmatic requirements such as policies and procedures.

The investigative process at GRHA significantly departs from
these standards t both because of irregularities in collection and preservation of evidence t and because we found instances in which serious allegations of abuse and injury were not investigated at
all. Illustrative examples include:

•

L.L. was admitted to GRHA on August 4 t 2007. She was

transferred from an acute care facility to GRHA because of

suicidal ideation. During her 44-day stay at GRHA t L.L. was

physically and sexually assaulted; her injuries included a

2-3 inch facial laceration. Neither assault was

investigated or addressed. The failure to investigate

assaults by a fellow patient during this time is especially

troubling because the assaults t which were 20 days apartt

were perpetrated by the same individual t and therefore t the

second assault was arguably preventable. Moreover t the

assaults L.L. suffered may have been the precipitating cause

of a severe regression in her mental health recovery.

•

On January 2t 2007 t M.M. reported to staff that she had been

sexually assaulted by her roommate t but there is no evidence

that this incident was ever investigated.

GRHAts failure to investigate allegations of this magnitude is a significant departure from generally accepted professional standards.

- 16 ­
In addition, we also found instances in which significant evidence was not properly identified, preserved, analyzed, and presented. The investigation surrounding the suicide attempt of patient G.G. in August 2007 illustrates the problems we found in this area. In the back of G.G.'s medical record, we discovered a manila envelope containing progress notes that related to G.G.'s attempted suicide, as well as statements by six patients who witnessed the incident. The outside of the envelope had a handwritten note stating that these documents were "removed from medical record." These additional progress notes and witness statements included relevant details about the incident that were not included in the progress note that remained in the medical chart. The additional statements describe several irregularities in G.G.'s care that may have played a significant role in the incident: (1) staff was meeting together during the incident and not observing G.G. at the 15 minute intervals required by her care plani (2) at least one staff member had argued with the patient just before her suicide attempt (an argument that escalated to shouting, and may have escalated to pushing) i and (3) staff were unable to locate emergency bags or scissors to cut the ligature from G.G.'s neck. The handwritten note on the manila envelope containing the removed materials also stated that staff had contacted the Director for Compliance and Risk Management regarding these documents.
The removal of documents from the medical record in these circumstances is highly irregular, and a significant departure from generally accepted professional standards. Equally disconcerting, however, is the fact that there appears to have been no investigation of the fact that documents were removed from the record. There is also no evidence that GRHA addressed any of the details raised in the additional progress notes and witness statements, or that the contradictory eyewitness statements were investigated and reconciled. Failing to investigate and reconcile these conflicting eyewitness statements is a serious departure from generally accepted professional standards in performing investigations.
Another example of GRHA's inadequate investigatory practices is the investigation and mortality review of the death of J.J. in April 2007. J.J. was admitted to GRHA from the Fulton County Jail on March 14, 2007 at 12:20 a.m. He spent the first two and a half hours in the Admissions Unit and was then transferred to the West Unit. At 7:00 p.m. that evening, staff found J.J. lying

- 17 ­
on his bed with coffee ground emesis8 on the sheets and the floor. He was promptly transferred to Grady Memorial Hospital I where he died five weeks later.
J.J.ls death certificate indicates that the medical examiner suggested that J.J. likely incurred an injury while at GRHA on March 141 2007 1 apparently by ingesting a foreign substance. GRHA conducted an internal investigation into J.J.ls death l but this investigation was inadequate. For example I critical information was not gathered or analyzed regarding the intensity level of J.J.ls supervisionl or whether he was supervised as required. GRHA investigators did not interview any of the staff who cared for J.J. during his brief stay at GRHA I nor determine whether he was examined by a physician after being placed on the West Unit. The investigative report is devoid of substantive information regarding the care J.J. received at GRHA. Nevertheless I the investigation concludes that: ~Staff followed hospital and DHR protocol in ensuring that [J.J.] received appropriate care. 1f There is no basis for this conclusion in the record. GRHAls investigation into J.J.ls death represents a gross deviation from generally accepted professional standards in mortality reviews. 9
3. Quality Management Is Inadequate
Generally accepted professional standards require that a facility like GRHA develop and maintain an integrated system to monitor and ensure quality of care across all aspects of care and treatment. An effective quality management program must incorporate adequate systems for data capture I retrieval I and statistical analysis to identify and track trends. The program should also include a process for monitoring the effectiveness of corrective actions taken in response to problems that are discovered.

8

Coffee ground emesis is the medical term for vomit that

contains blood.

9

When done properlYI mortality reviews often raise

programmatic issues that should be reviewed and evaluated. By

failing to require adequate mortality reviews I to follow

established procedures for conducting the reviews I and to follow

up on the reviews conducted l GRHA is failing to identify the

underlying causes of deaths and to correct deficiencies that may

prevent deaths or similar harm from occurring in the future.

- 18 ­
GRHA falls far below these standards. Instead, we found that GRHA's quality management system lacked accountability and oversight, resulting in corrective action plans and performance analyses remaining outstanding for months at time. For example, GRHA has a committee that is responsible for analyzing and addressing patient safety data and when necessary, conducting performance analyses to study and resolve adverse incidents or trends. At the committee's January 16, 2007 meeting, it noted that an analysis on sharps contraband for Central Unit remained outstanding for 25 weeks. By June 18, 2007, with the analysis still outstanding, more than 45 weeks after it had been initiated, another Central Unit patient had obtained a razor and attempted suicide.
B. Mental Health Care Is Inadequate
GRHA patients have a constitutional right to receive adequate mental health treatment. Donaldson, 493 F. 2d at 520. j The mental health services at GRHA, however, substantially depart from generally accepted professional standards. Psychiatric practices are marked by inadequate assessments and diagnoses, which in turn, lead to inadequate treatment planning and delivery of inadequate treatments and interventions. Psychology services and behavioral management services are particularly deficient. Medication management services are inadequate. Each of these failures affects the quality and effectiveness of the patients' treatment plans, which are the foundation of an adequate mental health care program. Moreover, GRHA's failure to treat a patient's ·mental health needs while hospitalized has frequently led to failed discharges and to repeated hospitalizations.
In accordance with generally accepted professional standards, each patient should have a comprehensive, individualized treatment plan based on the integrated assessment of mental health professionals. Treatment plans should define the goals of treatment, the interventions to be used in achieving these goals, and the manner in which staff are to coordinate treatment. The treatment plans should also detail an integrated plan designed to promote the patient's stabilization and/or rehabilitation so that the patient may return to the community. Taken together, treatment plans constitute the standard against which a facility evaluates the effectiveness of the services it offers. In this sense, they are critical to a hospital's ongoing efforts at quality improvement.
Treatment planning must incorporate a logical sequence of interdisciplinary care: (1) the formulation of an accurate diagnosis based on adequate assessments conducted by all relevant

- 19 ­
clinical disciplines; (2) the use of the diagnosis to identify the fundamental problems that are caused by the diagnosed illness; (3) the development of specific, measurable, and individualized goals that are designed to ameliorate problems and promote functional independence; (4) the identification of appropriate interventions that will guide staff as they work toward those goals; and (5) ongoing assessments and, as warranted, revision of the treatment plan. To be effective, the treatment plan should be comprehensive and include input from various disciplines, under the active direction and guidance of the treating psychiatrist who is responsible for ensuring that relevant and critical patient information is obtained and considered.
GRHA treatment planning substantially departs from these standards. From initial diagnosis and assessment, to the development of skills and functioning necessary for recovery and community reintegration, GRHA's treatment planning fails to meet the fundamental requirements for the treatment and rehabilitation of its patients. As a result, patients' actual illnesses are not properly assessed and diagnosed; patients are not receiving appropriate treatment and rehabilitation; patients are at risk of harm from themselves and others; patients are subject to excessive use of restrictive.treatment interventions; patients are at increased risk of relapses and repeat hospitalizations; and patients' options for discharge are significantly limited, resulting in unne.cessary prolonged hospitalization( and, with respect to forensic patients, prolonged involvement in the criminal justice system.
1. Psychiatric Assessments and Diagnoses Are Inadequate
Mental health treatment begins at the time of admission. The admissions work-up is an integral part of the course of hospitalization; it establishes the initial diagnosis and begins the course of treatment for the patient as he/she begins his/her hospital stay. We noted many deficiencies in the initial assessments we reviewed. Assessments were often not timely or thorough. Intake patient histories and medical status were often incomplete and inadequate. One example is N.N., who we witnessed having a seizure during a medical code. N.N. had been admitted to GRHA the day before. The code was poorly handled. There was considerable delay due to the lack of clarity in his chart regarding his medical status and whether his seizure medication had been continued upon admission. It was apparent that inadequate assessment and the resulting inadequate documentation contributed to poor management of this seizure.

- 20 ­
An effective treatment plan begins with a diagnosis that is clinically justified. If mental health professionals do not correctly identify a patient's psychiatric condition before developing a treatment plan, the treatment interventions will not be aligned with the patient's needs. Thorough assessments are necessary to identify presenting problems and strengths and needs of the patient, and to identify potential risks from aggressive or self-injurious behavior, potential victimization, or high risks presented by substance abuse or certain medical conditions. Adequate assessments are essential to the development of a person-centered plan that can direct rehabilitation, treatment, and care while the patient resides in the hospital, and to formulate an adequate discharge and transition plan for the patient's return to the community. Psychiatry, medicine, nursing, psychology and social work each should contribute to the assessment in accord with generally accepted professional standards.
At a minimum, an initial assessment should include: (1) an adequate review of presenting symptoms and the patient's mental status; (2) a provisional diagnosis and differential diagnosis that provides a decision tree by which diagnosis and treatment options may be clarified over time; and (3) a plan of care that includes specific medication and/or other interventions to ensure the safety of the patient and others. As more information becomes available, the assessment must be updated to include: (1) a history of the presenting symptoms from the patient based on the patient's level of functioning and from collateral sources, as available; (2) the progression of the symptoms and setting within which the symptoms occur; (3) the relevant historical findings regarding the patient's biopsychosocial functioning; (4) a review and critical examination of diagnostic conclusions made in the past in light of new information; (5) a review of medical and neurological problems, if any, and their impact on the current status of symptoms and treatment; and (6) a complete mental status examination.
In many cases, initial assessments at GRHA are cursory. The assessments used at GRHA fail to identify the strengths of the patient. They also frequently fail to assess substance abuse history, vocational and educational history, and history of community living and prior placements. A majority of psychiatric assessments contained rudimentary descriptions of current symptoms without examining in any depth the history of the symptoms and previous treatments. Each of these failings creates a serious impediment to the treatment team's ability to identify the services and supports a patient may need while in the facility and upon discharge.

- 21 ­
GRHA patients are routinely given tentative and unspecified diagnoses (often referred to as "rule out" or "not otherwise specified" ("NOS") diagnoses) as a result of these flawed assessments. We found virtually no evidence of further assessments or observations to finalize the diagnoses. Because different psychiatric conditions can have similar signs and symptoms, it is important for mental health professionals to address rule out and NOS diagnoses to ensure that a patient's treatment is appropriate for his or her actual mental health needs. At GRHA, however, rule out and NOS diagnoses persist for months, with no sign of further diagnostic refinement. The prevalent use of the "NOS" diagnosis reflects an inadequate diagnostic evaluation process and contributes to the lack of specifici ty in treatment plans. 10
0.0., who has a discharge diagnosis of Psychotic Disorder NOS, exemplifies the inadequacy of GRHA's assessments. 0.0. has had multiple readmissions to GRHA and was slated for imminent discharge, notwithstanding discussion of her active psychosis in the treatment team meeting the day before her scheduled disch~rge. The absence of a definitive diagnosis has perpetuated a generic treatment approach that has repeatedly failed this patient.
GRHA's failures in the preliminary stages of assessment and diagnosis, as well as its failure to reassess patients to refine diagnoses, grossly depart from generally accepted professional standards. Patients receive, or are at risk of receiving, treatment that, at best, is unnecessary and, at worst, may actually exacerbate their mental illnesses. The result is that the actual mental illness is often unaddressed, placing patients at risk of prolonged institutionalization and/or repeated admissions to the facility.
10 The May 3, 2007 Medical College of Georgia Survey Report ("the MCG Report") also concluded that the prevalence of the NOS diagnoses at discharge (two of the top five discharge diagnoses in 2005-2006 at GRHA were Psychotic Disorder NOS and Depressive Disorder NOS) indicates a lack of thorough diagnostic evaluation. The MCG Report described one patient who- carried an NOS diagnosis for over two years. The lack of diagnostic specificity remains a continuing problem. From July 2006 to July 2007, Psychotic Disorder NOS and Depressive Disorder NOS remained two of the top five discharge diagnoses at GRHA.

- 22 ­

2. Treatment Planning Is Inadequate

a. Treatment Plans Are Not Individualized and Do Not Address Patients' Needs

Treatment plans, which at GRHA are called Individual Recovery Plans ("IRP"), or Individual Habilitation Plans ("IHPII), are, for the most part, inadequate and fall far short of generally accepted professional standards. They are frequently minimalist, generic, and reflect neither the true scope of patients' needs nor a coherent plan for treatment. When the treatment team fails to identify or address all of a patient's presenting concerns, that patient is deprived of treatment for those concerns, and frequently subject to a longer period of institutionalization or to a repeat admission when those conditions or behaviofs become barriers to successful community integration. Multiple re-admissions are extraordinarily costly to patients and the system. Frequent relapses may cause a progressive worsening of a patient's mental illness and make the patient more intractable to treatment. Multiple re-admissions are also costly to the system of care, resulting in mUltiple assessments, care plans, and other treatments, where one adequate provision of these services would have sufficed. Examples of deficient IRPs include:

•

P.P. had 21 readmissions to GRHA in the first nine months of

2007. Her treatment plans for each of these 21 stays at

GRHA were identical.

•

Q.Q.'s IRP included a single goal related to completing an

evaluation of competency to stand trial. There were no

goals or interventions to address his assaultive behaviors.

As a result, after he assaulted his peers in the Adolescent

Unit, he was transferred to an adult forensic unit in order

to protect the other adolescents.

•

R.R.'s IRP contained as his stated goal the phrase

"incompetent to stand trial," which ended in March 2007, six

months prior to our review. R.R. has no current treatment

goals or interventions despite the fact that his psychiatric

evaluation notes diagnoses of schizophrenia and substance

abuse, and concerns with "chronic boredom, failure to accept

responsibility for his actions, impulsivity, lack of

remorse, lack of victim empathy, and poor behavioral

controls. II

•

8.8.'s IRP calls for the psychologist to meet on an

"as-needed" basis for cognitive behavioral therapy.

- 23 ­

Cognitive behavior therapy requires a systematic, planned approach to psychotherapy sessions; providing it on an "as-neededll basis is contrary to the principles of the intervention and has virtually no chance of a meaningful treatment effect. Moreover, none of the treating or supervising clinicians on this case appear to have noticed this glaring incongruity, which suggests a deficit in professional knowledge, training, andlor supervision.

•

T.T.'s IRP lists only his diagnoses ("Major Depressive

Disorder, recurrent, severe; Alcohol Dependencell ) and four

problems ("suicidal ideation, depressed mood, paranoid,

substance abusell ); the remainder of the IRP is blank. The

IRP fails to include any goals, objectives, or'interventions

to address his identified problems.

•

D.D.'s IRP lists only his diagnoses ("Psychotic d/o, NOS;

Cannabis abusell ) and a single problem statement ("Paranoid,
suspicious; h[istory] o[f] S[uicidal] I [deation] I

H[omicidal] I [deation] II) • The IRP does not include any

goals or objectives nor any interventions to address the

problems. The patient was discharged after one day with a

single progress note which concludes: "Will dlc [discharge]

him as he is stable now. 1I

•

V.V. has had 107 admissions to GRHA. Despite her continuing

need to be hospitalized, V.V.'s treatment plan rarely varies

across her more than one hundred admissions.

Inadequate assessments that fail to discern the reasons for multiple re-admissions, and treatment plans that fail to address relevant clinical presentations in a specific, individualized, strengths-based, recovery-oriented manner have resulted in repeated failures of treatment at GRHA and the subsequent failure to succeed in the community.

Treatment plans at GRHA often provide no clear alternatives if the initial, vague interventions prove ineffective, leaving staff with few alternatives to restraint, seclusion, and PRN (pro re nata or "as neededll ) medications to address challenging behaviors. Examples of vague or generic treatment plans include the following plans, which provide nearly identical goals for patients with very different diagnoses and treatment needs:

•

W.W.'s diagnoses include Impulse Control Disorder,

Post-Traumatic Stress Disorder, and moderate mental

retardation. His IRP contains a single generic goal related

to his mental illness: to "participate in developing a

- 24 ­

realistic aftercare plan that can be followed in the community. "

•

X.X.'s diagnoses include schizoaffective disorder and

borderline personality disorder. His IRP includes a goal

identical to that for W.W.

The recurrence of identical goals and objectives for patients makes evident the non-individualized nature of GRHA's treatment plans.

The lack of meaningful treatment and habilitation services for residents on the DLC unit, where the major1ty of the residents may need behavioral supports but have no co-occurring psychiatric disorder, is particularly problematic. 11 A sense of complacency pervades the DLC, where patients' limited skills or challenging behaviors seemingly are accepted as unchangeable, and is reflected in the inadequate treatment plans and interventions for the residents of these units. For example:

•

Y.Y.'s IHP does not provide for any skill training programs

despite identified challenging behaviors. Y.Y. has a

behavior plan that calls for increasing her verbal

expression of needs and desires, but no program plan

designed to accomplish this goal. Accordingly, Y.Y.'s

behaviors have remained unabated, requiring intensive 1:1

supervision for over two months' time.

•

Z.Z.'s "skill training" of learning how to hold a switch in

an "on" position is inappropriate, meaningless, and will not

enrich this person's life.

GRHA's failure to provide adequate treatment to DLC residents is exacerbated by clinically outdated and unsupportable opinions about patients with developmental disabilities. For example, the facility.ls speech therapist told us that an entire unit of residents in the DLC does not require communication skills programming because their level of development is too minimal to benefit from this training.

To conclude that challenging behaviors are an inherent and unchangeable part of the condition of mental retardation is a

11 As indicated earlier, the DLC, or Developmental Learning Center, houses residents with developmental disabilities, with the majority having no co-occurring psychiatric disorder.

- 25 ­

gross deviation from generally accepted professional standards r and suggests a lack of training and competency regarding current
practices. Because of this commonly-held view at GRHA r these behaviors are not addressed r patients are deprived of effective treatment r and these behaviors become a justification for continued institutionalization. This is an egregious violation of these patients r rights.

b. Failure to Address Repeated Admissions

GRHArs high rates of hospital re-admission are well
documented. Audits commissioned by the Governor r including the 2005 Georgia Mental Health Gap Analysis studYr concluded that a ­
30-day readmission rate 55% greater than the national average contributed to overburdening the Staters Psychiatric Hospitals. These conditions persist. In the past year r several units at GRHA routinely exceeded 100% occupancYr and high 30-day readmission rates continued as well.

The work of admitting patients and providing the crisis
stabilization necessary for new admissions leaves an already overburdened system with fewer staff resources to provide
treatment planning r interventions r and supervision for patients. Moreover r frequent re-admissions are extremely detrimental to these individual patients r disrupting their recoveries and their lives in the community. Frequent relapses and re-admissions may progressively worsen a patientrs serious and persistent mental
illness and make patients more intractable to treatment. Thus r generally accepted professional standards demand that treatment
teams routinely examine and address issues that cause individuals to be admitted repeatedly to the hospital. However r in mUltiple cases of repeated admissions we saw no evidence that the
treatment team examined or addressed the factors that led to re-admission or altered the patientrs treatment from a previous
stay at the hospital. For example:

•

As mentioned previouslYr V.V. has had 107 GRHA admissions r

with little change in her treatment plans across admissions.

•

P.P. had 21 GRHA hospitalizations in the first nine months

of 2007 r with no change in her treatment plans.

•

A.B. has had 14 GRHA admissions r including twice in 2007 r

with virtually the same treatment plan upon each admission.

Despite a diagnosis of substance abuser he received no

substance abuse treatment during his two 2007 admissions.

- 26 ­

c. Treatment for Substance Abuse Is Inadequate

There is a stark lack of treatment and interventions for patients with co-occurring diagnoses of substance abuse. It was evident in a significant number of records that this issue was one of the most serious impediments to community placement and part of the reason for frequent re-admissions to the hospital. Examples include:

•

A.C. has had 37 GRHA admissions, including twice in 2007.

She has a diagnosis of substance-induced psychotic disorder

with hallucinations, but has received no substance abuse

treatment during her many GRHA admissions. In addition,

GRHA discharged A.C. to the Union Mission night shelter

without adequate planning for community substance abuse

care.

• A.D. has had 41 admissions to GRHA. He has a dual diagnosis of schizoaffective disorder and substance abuse. After his last two admissions in 2007, he was discharged to a homeless shelter without adequate coordination with community substance abuse services.

•

A.B. has had 14 GRHA admissions, with two admissions in

2007. He has a co-occurring diagnosis of mood disorder and

substance abuse disorder. In the past year, A.B. was

discharged to a homeless shelter after his first admission

and returned to GRHA only ten days later. He received no

treatment for substance abuse while at GRHA anq no planning

for substance abuse services when he returned to the

community.

•

A.E. has had 53 GRHA admissions, with four admissions in

2007. He has a diagnosis of schizoaffective disorder and

substance-induced psychotic disorder. On her last two

admissions, A.E. was discharged to a homeless shelter

without adequate planning for substance abuse care in the

community.

•

A.F. is an adolescent with profound substance abuse problems

noted in his record. His treatment plan says A.F. is to be

enrolled in a substance abuse group, but there are no

substance abuse services offered on the Adolescent Unit.

The lack of substance abuse programming and its deleterious effects on patients at GRHA is well known to hospital and state administrators. The GRHAadministrator and the Director of the Division of Mental Health, Developmental Disabilities, and

- 27 ­
Addictive Diseases both candidly admitted this deficiency and acknowledged that the deficiency was particularly acute for adolescent patients. This deficit was also cited in theMCG audit. Notwithstanding these admissions, and in a pattern that echoes the failure of accountability throughout this system, a draft of the hospital's Corrective Action Plan generated in response to the MCG findings (dated several months prior to our visit), proclaims that corrective actions to remedy the substance abuse deficit in adolescent programming at GRHA are "complete. 1I
3. Behavioral Management Services Are Inadequate
Behavioral support plans ("BSPs lI ) at GRHA are largely nonexistent, and those that exist are largely inadequate and not well integrated into overall treatment. Many patients who were repeatedly subject to seclusion, restraint, and/or administration of PRN medications - measures that should be reserved for emergency crisis intervention - have no behavioral supports in place. This is an egregious departure from generally accepted professional standards. Staff across the facility were unable to identify events that would trigger a referral for a behavioral assessment dr a revision to an existing behavior treatment plan. For those few patients with behavioral management plans, treatment teams routinely fail to revise those plans, notwithstanding evidence of continuing or escalating problem behaviors. In addition, there are clearly too few skilled psychologists and behavioral specialists on staff to develop and monitor adequate behavior management plans for the many patients whose behaviors suggest a compelling need for such plans.
When performed, behavioral assessments depart substantially from generally accepted professional standards. The few attempts at functional assessments of behavior found in patient charts at .GRHA typically do not consider antecedent, environmental, or health factors that influence a behavior, whether a behavior is situationally appropriate, or possible reinforcers. The assessments do not contain sufficient baseline data, do not hypothesize a function for the behavior, and do not select replacement behaviors. When questioned about these deficiencies, the clinicians who prepared these functional assessments or supervised these cases appeared unfamiliar with many of the essential components of a minimally-adequate functional assessment. The inadequacies in the assessments undermine any subsequent behavioral treatment planning. An example is Q.Q., who has a behavior plan that does not define target behaviors, shows no baseline data for those behaviors, and specifies no replacement behaviors other than compliance with staff directions. His chart contained only one partially completed

- 28 ­

behavior plan monitoring checklist. Not surprisingly, Q.Q.'s disruptive behaviors continued, leading to his transfer from the adolescent unit to an adult forensic unit.

GRHA fails also to collect sufficient behavioral data on which to base treatment decisions. Generally accepted professional standards require a mental health professional to analyze objective data concerning symptoms or behavior, and not merely anecdotal information. In interviews, GRHA staff indicated that the "data" they use in assessing a patient's target behavior, replacement behaviors, or his or her progress in meeting goals comes from reviewing progress notes· or from asking line staff. The lack of accurate behavioral data hinders accurate evaluation of the progress, or lack of progress, made by patients. Accordingly, actions by treatment teams are often based on inaccurate summaries of the limited data collected, leaving teams at risk of making decisions that are not clinically indicated. Examples include:

•

A.G.'s progress notes and data sheets are inconsistent. A

progress note for A.G. dated June 1 reported zero incidents

of sexually inappropriate behaviors, agitation, or angry

outbursts for more than two weeks; however, the data sheets

indicated he was verbally abusive toward staff/peers on

May 29, May 30, and June 1, the days immediately before the

progress note. A note dated June 20 reported zero incidents

of sexually inappropriate behavior "since implementation."

Yet the data sheets documented sexually inappropriate

behavior every day but one, from June 10 through June 17.

•

A.H.'s behavior plan data monitoring sheets include many

inconsistent gaps. The data revealed numerous instances

where a reward was provided when the data indicated it had

not been earned, and numerous instances where the reward was

apparently earned but not provided.

The lack of reliable and complete behavioral data deprives treatment teams of essential information on which to make sound clinical decisions, denying patients timely and effective interventions and allowing harmful and dangerous behaviors,to persist.

Specific examples of GRHA's inadequate behavioral management services include:

•

S.S. is a resident of the adolescent unit with documented

repeated instances of serious self-injurious behaviors in

September 2007. A BSP was initiated on September 9, 2007,

- 29 ­

primarily consisting of 1:1 supervision but no other intervention. A September 19 note in her chart acknowledges that the behavior plan is not helping, but no change is recommended. The following day, we observed S.S. repeatedly bang her head against a wall while the staff assigned to provide her with 1:1 supervision recorded these events without intervening.

•

A.H.'s Treatment Plan Review Note dated August 6, 2007,

states that he "did not have a good review period. He

showed frequent agitation .

He exhibited numerous

episodes of object aggression. . Due to worsened

behavior, he was transferred on 7/17/07 to Forensics I unit

. His impulse control remains poor .

"Despite

this review documenting escalating problem behaviors, A.H.'s

treatment team failed to recommend any change in his

behavior plan.

•

A.I.'s chart contains frequent progress notes indicating

deteriorating behaviors, including assault on staff members.

The sole intervention is repeated PRN medications for

"agitation." Following three days of daily incidents of

significant aggression, which is not addressed at all in

A.I.'s treatment plan, the Treatment Plan Review Note dated

August 27, 2007, reads: "All goals are current and

appropriate, Treatment plan to continue." The following

week's Weekly Note stated that he "has become more

disorganized and aggressive. . He is up and awake for

most of the night. He is not fully compliant with his

treatment plan. The percentage of 'met' is getting lower."

Significant aggression continued to be documented through

the time of our site visit more than two weeks later, yet no

changes were made to his plan.

•

A.J.'s monthly behavior plan monitoring report documented

steadily increased monthly rates of "inappropriate sexual

behavior," increasing from three instances in April 2007 to

36 and 22 incidents in August and September, respectively.

Despite this substantial increase, there was no evidence of

a change to the behavior plan.

C. Seclusion and Restraints Are Used Inappropriately

The right to be free from undue bodily restraint is the core of the liberty protected from arbitrary governmental action by the Due Process Clause. Youngberg, 457 U.S. at 316. Thus, the State may not subject residents of GRHA to seclusion and restraint "except when and to the extent professional judgment

- 30 ­

deems this necessary to assure [reasonable] safety [for all residents and personnel within the institution] or to provide needed training." Id. at 324. Generally accepted professional standards require that seclusion and restraints: (1) will be used only when persons pose an immediate safety threat to themselves or others and after a hierarchy of less restrictive measures has been exhausted; (2) will not be used in the absence of, or as an alternative to" active treatment, as punishment, or for the convenience of staff; (3) will not be used as a behavioral intervention; and (4) will be terminated as soon as the person is no longer a danger to himself or others. GRHA's use of seclusion and restraints, including medication used as a chemical restraint, substantially departs from these standards and exposes patients to excessive and unnecessarily restrictive interventions.

Given the deleterious effects of seclusion and restraint,

and the fact that these measures restrict patients' rights and

their ability to receive appropriate care, generally accepted

professional standards require that institutions like GRHA reduce

their use of seclusion/restraint by addressing behavior problems

with less intrusive and restrictive strategies. Regrettably,

this does not occur at GRHA. Instead, many patients at GRHA have

endured frequent episodes of seclusion, restraint, and/or

sedating PRN medications, without any indication that the team

adequately assessed the patient, developed and/or reviewed the

treatment plan, or considered alternative interventions. For

example, none of the following patients, who received multiple

crisis interventions, including seclusion, restraint, and PRN

medications, appeared on a list of patients with BSPs between May

1 and July 30, 2007:

'

•

F.F. had 25 instances of seclusion or restraint in the

four-month period between January 11, 2007 and May 11, 2007.

•

A.K. had 12 instances of seclusion or restraint in the

33-day period between May 7, 2007, and June 9, 2007.

•

A.J. had 13 instances of seclusion or restraint in the

six-month period between February 16, 2007, and August 17,

2007.

•

A.L. received 12 psychotropic PRN medications in the ten day

period between June 7 and June 17, 2007.

•

A.M. received 7 psychotropic PRN medications in a single

week beginning July 9, 2007.

- 31 ­

•

A.N. received 23 psychotropic PRN medications in the two

weeks beginning May 4, 2007.

•

A.O. received 28 psychotropic PRN medications in the month

of May 2007.

•

A.P. received 11 psychotropic PRN medications in the ten

days between July 9 and July 19, 2007.

There is no effective data collection and monitoring system with respect to the use of restrictive interventions such as seclusion, restraint, and PRN medications. Typically, nursing and direct care staff on the units are responsible for this documentation, but there are no systems in place at GRHA to ensure that this information is gathered. As a result, patients who are in need of more intensive treatment, or an alternate approach to treatment, are not identified and targeted for treatment plan revisions.

In a significant departure from generally accepted professional standards, the facility does not ensure that seclusion and restraints, including manual holds and PRNs, are used only as a last resort and not in the place of active treatment, as punishment, or as a convenience for staff. In some cases, restraints are written right into the program. In addition, contrary to generally accepted practices, we also found insufficient review of restrictive programs by the facility's human rights committee. Representative examples include:

•

A.Q.'s behavior plan specifies an escalating series of

negative consequences for displays of physical aggression,

culminating in the statement: "Manual Restraint may be .

used."

•

A.R.'s behavior plan states that if his self-injurious

behavior continues, a team of "trained staff may implement a

two person hold."

•

A.J.'s behavior plan states that if he does not withdraw to

a quiet location to calm down, "staff (at least 2) using

mandt12 approved manual holds, may assist to a quiet

location."

12 The Mandt System is a program deSigned to assist staff in de-escalating inappropriate patient behaviors while treating the patient with dignity and respect.

·- 32 ­

•

Q.Q.'s behavior plan includes "a prescribed p.r.n. if

necessary" for escalating behaviors.

Throughout the facility, staff effort is focused primarily on controlling dangerous patients rather than treating them and changing their behavior. The Adolescent Unit is particularly problematic, where a volatile mix of patients, insufficient staffing and supervision, and ineffective treatment create a dangerous environment. Untrained staff lack the skills necessary to handle the large number of very impaired patients who are dangerous to themselves or others or who have specialized needs. Not surprisingly, we found that in these difficult circumstances, staff resort to seclusion and restraint and secondarily, PRN medication, in lieu of appropriate treatment.

Restrictive interventions clearly are used in place of active treatment, as punishment, and for the convenience of staff at GRHA, contrary to generally accepted standards. The facility averaged over 200 episodes of PRN use per month in the first seven months of 2007. In addition, a sample of 77 recent seclusion or restraint monitoring forms contained frequent notations that a patient was "out of control and was a threat to himself and others." However, in not a single instance were specific behaviors recorded that supported the conclusion that the patient was a threat to self or others. Moreover, there was not a single instance in these 77 examples where it was documented that alternative measures were tried prior to the use of a restrictive device, as required by generally accepted professional standards.

Furthermore, we found no system is in place to audit medical records regarding episodes of seclusion, restraints, or manual holds. This is notwithstanding assurances in the GRHA Plan of Correction, developed in response to findings of deficient seclusion and restraint documentation in the MCG Report, that "quality management staff will monitor charts with seclusion and restraint documentation for completion."

D. Medical Care Is Inadequate

Although GRHA patients are entitled to receive adequate health'care, see Youngberg, 457 U.S. at 315, the facility's basic medical care and nursing services substantially depart from generally accepted professional standards. Specifically, GRHA fails to provide basic medical care and has inadequate clinical oversight, staffing, nursing services, medication administration, infection control, physical and nutritional management, and emergency preparedness.

- 33 ­
1. Inadequate Clinical Oversight
The major role of clinical oversight in any institution is to ensure that generally accepted professional standards of practice and accountability are maintained. Specifically, staff responsible for clinical oversight should respond, in a timely manner, to identified problems and offer stable, consistent administrative guidance and supervision. GRHA fails to provide such adequate clinical oversight. Staff responsible for oversight in all of the major disciplines appear to be overwhelmed and reacting primarily to escalating crises. Repeated failures by supervisory staff to implement timely appropriate corrective action plans have led to significant and numerous harmful situations.
Both the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services and consultants from the Medical College of Georgia have chronicled grave deficiencies at GRHA, including inadequate staffing and programming, the excessive use of seclusion and restraint, and unsafe clinical situations that have resulted in injuries to patients, including death. Despite these clear findings of repeated deficiencies, these conditions remain unabated. Despite a "plan of correction" and the administration's verbalization of an understanding of the extant deficits, the system of care remains in disarray with no sense of urgency of the need for things to change. Patient and staff injuries continue to occur with an alarming regularity without adequate intervention by those responsible for clinical oversight. The critical incidents we witnessed on the Adolescent Unit reflect the egregious consequences of the failure to address burgeoning problems effectively.
2. Inadequate Staffing and Nursing Services
In addition to lack of appropriate clinical oversight, GRHA suffers from a chronic nursing shortage, which has caused a number of serious deficiencies in the nursing services provided to patients. Specifically, nursing staff: (1) fail to provide basic medical care such as monitoring vital signs and responding in a timely manner to changes in patients' medical status; (2) fail to participate actively in the treatment team process by providing 'feedback on patients' responses, or lack thereof, to medication and behavioral interventions; (3) fail to document and monitor properly the administration of medications; and (4) fail to implement adequate infection control procedures. These deficiencies expose GRHA patients to harm and a significant risk of harm, including death.

- 34 ­
In order for GRHA's nursing administration to verify that these essential elements of care are routinely provided, the department should have a formal, comprehensive, and rigorous system of monitoring the process, quality, and outcomes of the nursing department. Data generated from this system should be regularly reviewed and analyzed for trends, and plans of correction should be initiated for areas that fall below an acceptable standard of compliance. In addition, these data assist nursing management in identifying the etiology of problematic issues so that appropriate interventions can be implemented. This type of system also ensures that the Nurse Executive and facility administration are aware and responsive to the needs of department and ultimately, to the needs of the individual patients. Overall, those responsible for nursing oversight at GRHA are unaware of critical practice deficits that have become routine. In addition, there is no effective system in place that regularly reviews the practice of nursing to ensure that patients receive quality care and services.
Generally accepted professional standards require facilities like GRHA to provide sufficient nursing staff to, at a minimum, protect patients from harm, ensure adequate and appropriate treatment, and prevent unnecessary and prolonged institutionalization. GRHA, however, routinely compromises its patients' care and treatment by failing to satisfy these requirements. In the September 2007 melee on the Adolescent Unit, described infra, at page 8, in which local police were needed to restore order, the hospital's own staffing records called for three staff on each side of the housing unit, yet only two were present on each side. Before police could help restore order, the adolescent patients damaged property and at least one adolescent injured himself by cutting his neck with plexiglass.
The current Nurse Executive at GRHA admitted that recruitment and retention has been a major issue for the nursing department. She reported that there were a number of nursing vacancies but was unable to recall the exact number. Senior staff and administrators across disciplines agreed that there were excessive vacancies in nursing and direct care staff. A recurring issue is that GRHA has no formal mechanism with which to analyze the specific needs of each unit and determine the number and skill mix of nursing staff that each unit requires. Instead, nursing staff seem to be assigned to particular units based upon their schedules and availability, without serious regard to patients' needs. Although the facility has been working to revise the policy for minimum staffing ratios, there are no set criteria or models being used to determine adequate staffing levels. We found that many of the shortcomings in

- 35 ­

nursing care are exacerbated by the lack of adequate staffing l support I training l and supervision. For example I recurring deficiencies in response to codes (both in drills and actual emergencies) show that staff were not retrained in essential skills l including rescue breathing and chest compressions in cardio-pulmonary resuscitation ("CPR II ) I maintenance of emergency equipment I and use of automatic external defibrillator ("AEDII) . devices. Oxygen tanks were frequently empty and emergency bags were missing essential equipment I despite logs signed by nursing staff indicating that they had been checked. We saw no evidence that this falsification of documents had been addressed by supervisors or administrators.

3. Failure to Provide Basic Medical Care

Effective medical services depend on timelYI thorough assessments and monitoring. GRHA staff often fail to provide even the most basic carel opting instead for a reactive approach in which patients l medical needs are addressed only after problems develop. ConsequentlYI patients are exposed to a significant risk of harm and often suffer preventable injuries and illnesses. The harm at GRHA can be fatal:

•

A.S. was 14 years old when she died in February 2006 of

sepsis l likely caused by a severely impacted colon. She had been a patient at GRHA for several months. On the day.

before she died l she complained of stomach pain l and had nausea and vomiting l but no fever or other signs of infection. An on-call physician did not document an

abdominal examination or a rectal exam to rule out

impaction l a known side-effect of many antipsychotic medications used in A.S./s treatment at GRHA.

•

A.T. died at GRHA only three days after A.S./s death. He

was 33 years old and had been a patient at GRHA for several

months. Several of A.T./s medical concerns were

mishandled l including failure to monitor his bowel function despite being on medications with a known side effect of

constipation. He tOOl had a markedly-impacted colon at the

time of death.

•

Later that same year l a third patient l A.V.I died

unexpectedlYI also with an impacted colon. This death

likely would have been prevented l had the protocol allegedly adopted after A.T./s death been followed. A.V. went for

many days without a bowel movement I but this information was

not flagged on the medical log designed to communicate daily

information to physicians. While A.V./s stated cause of

- 36 ­

death was cardiovascular, his bowel obstruction clearly contributed to his death.

GRHA's failure to critically review the first death, which should have led to corrective actions that could have prevented the second and third fatalities, compounds the tragedy of these three deaths.

More examples of lapses in medical care, thankfully not fatal, include the following:

•

Mild mental retardation, attention deficit disorder, and

hyperthyroidism were noted and documented by A.V.'s

psychiatrist, but not by his nurse. As a result, none of

these issues are included in his nursing treatment plan.

•

A.W.'s nursing treatment plan indicates that he is at risk

for violence as evidenced by his self harm, aggressive

behavior, and attacks on others. However, none of the

nursing assessments address any of these issues.

•

A.X.'s assessments indicate that he was disoriented,

confused, and had a history of falls "while intoxicated.1f

His nursing treatment plan fails to address any of these

assessments. Moreover, A.X.'s nursing treatment plan

indicates that he was a risk for violence against staff.

However, his nursing assessments show no indication that

this issue was ever evaluated.

•

A.Y.'s nursing assessments are incomplete, with the section

regarding emotional and behavioral status blank. In

addition, there is nothing in the nursing assessments

indicating that A.Y. was either aggressive or has suicidal

ideation. His nursing treatment plan, however, indicated

that he was at risk for violence to self or others related

to aggression, as evidenced by threatening to kill animals

and self-injurious behavior.

4. Inadequate Medication Administration

Generally accepted professional standards of nursing practice dictate that medications be administered as prescribed and appropriately documented. Moreover, generally accepted professional standards require that staff properly complete the Medication Administration Records ("MARs lf ). Among other things, MARs list current medications, dosages, and times that medications are to be administered. Proper and timely completion of the MARs is fundamental to maintaining patient safety and

- 37 ­
reducing the likelihood of medication errors and adverse drug effects. Failure to follow accepted MARs protocol may result in patients not receiving medications or receiving them too frequently.
Our review of the MARs revealed numerous instances where several medications had not been recorded as given. Contrary to generally accepted professional standards, nurses did not perceive that these blanks were. medication variances that needed to be reported. We also found blanks on the Narcotic Logs, where the on-coming and off-going nurses are to sign after the narcotics are counted together. Because narcotics have powerful and potentially addictive effects and are often classified as controlled substances, GRHA's failure to account properly for their administration is deeply troubling. Once again, the nurses did not perceive the omissions in the Narcotic Logs as medication variances that needed to be reported. This finding indicates unacceptable nursing medication practices as well as a lack of supervision by nursing supervisors during medication administration. In addition, this finding indicates that medication variances are grossly underreported.
5. Inadequate Infection Control
Generally accepted professional standards require adequate infection control. The components of an adequate infection control program fall into two general categories: surveillance and reporting; and control and prevention.
Surveillance and reporting include data collection, tabulation, and analysis on both the population of the facility and its employees. Data on infections adquired in the community before admission to GRHA, and infections acquired while residing at the facility should be collected. This data can be used to establish baseline infection rates for different units to determine problem areas or areas where in-service education could lower infection rates. This information can also be used to identify outbreaks of infections rapidly so that concentrated efforts can be initiated to prevent the spread of the infection.
In addition, facility personnel should be monitored and data analyzed for possible exposure to, or as the source of, communicable and infectious diseases. The environment itself must be monitored as a source of potential infection hazards, especially during outbreaks of infection. Also, the facility must report all communicable diseases to the appropriate health authorities in the State.
l

- 38 ­
Control and prevention activities are of equal importance in an infection control program. In general, developing policies and procedures, staff training, patient educational programs regarding communicable diseases, and a regular committee review of facility infection control activities are components of a proactive infection control program.
GRHA's infection control program fails to meet these standards. Specifically, GRHA fails to provide adequate oversight to ensure that patients with infectious diseases are adequately treated, protected from additional infection or reinfection, and that other patients who live in the same buildings are appropriately protected from transmission of infections. At the time of our review, there was no system in place even to generate a list of patients or staff with infectious conditions such as hepatitis A, B or C, methicillin~ resistant staph ("MRSA") infections, HIV, or other common, but serious, infectious conditions that should be monitored.
Moreover, there is no system in place ensuring that any infection control data collected throughout the facility is reliable or that any plans of correction have actually been implemented. There is currently no adequate infection control program at GRHA, a facility with a high risk population for communicable diseases, which places patients there at high risk for harm.
6. Inadequate Physical and Nutritional Management
Generally accepted professional standards dictate that an effective physical and nutritional management system include: the identification of patients who are at risk for aspiration/choking and the assignment of an appropriate risk level; the identification of patients' triggers or symptoms of aspiration; adequate assessments of safe positioning for the 24-hour day; clinically-justified techniques, based on the assessment, that ensure safety during daily activities; deyeloping and implementing a plan containing specific instructions for the techniques determined by the assessment, with clinical justifications; providing competency-based training to all staff assisting these patients regarding individualized dysphagia13 plans; developing a method to monitor, track, and document clinically objective data, including triggers, lung sounds, oxygen saturations, and vital signs, to determine if treatment interventions are effective or in need of modification;
13 Dysphagia is the medical term for difficulty in swallowing.

- 39 ­
development of a mechanism for reporting triggers that generate an immediate response from a physical nutritional management team ("PNMTIf ) to re-evaluate the plan and its implementation; development of an overall monitoring system conducted by members of the PNMT to ensure that plans are being consistently implemented and that this monitoring is most intense for those with the highest level of risk; and ensuring that this system is effective so that it may be transferred into the community.
GRHA patients residing at the Skilled Nursing Facility ("SNF If ) and the Developmental Living Center ("DLCIf) who are at risk for aspiration are not provided adequate assessments, interventions, proactive monitoring of symptoms r and regular treatment plan monitoring, which places them at significant risk for harm. GRHA does not provide these patients with physical and nutritional management care consistent with generally accepted professional standards.
None of GRHA's various disciplines (nursing, physical therapy, occupational therapy, speech pathology, and dietary management), have the requisite specialized training or experience demonstrating competency with physical nutritional management. This training is necessary for the care and treatment of patients at risk for aspiration and choking.
GRHA has failed to identify adequately patients who have physical or nutritional management issues. GRHA has no written criteria that adequately identify patients at risk for aspiration and/or choking. During interviews, staff were unable to identify the patients who were at risk for aspiration. Episodes of coughing or gagging were not routinely documented in the medical record. Consequently, there is no systematic collection of clinical data to indicate if a person's dysphagia is getting better or worse. Thus, GRHA rarely evaluates or modifies the interventions from treatment plans unless there has been an acute event of pneumonia, aspirat'ion pneumonia, or respiratory distress. In some cases reviewed, there was no indication that the treatment plans were modified even when the patient experienced an acute event related to their aspiration risk. For example, A.Z., B.A., Z.Z., and N.N. were all admitted to the community hospital in 2007 for episodes of pneumonia, aspiration, and/or respiratory distress. However, none of their respective treatment plans for dysphagia included any indication that the team conducted additional assessments to evaluate the need to modify their interventions. The risks inherent in this flawed approach are not hypothetical. For example, A.Z. was admitted a second time to the hospital for aspiration pneumonia.

- 40 ­

Moreover, there is also no system in place to accurately determine which patients fall into the severe, moderate, or mild risk categories. Consequently, there is no delineation of risk to identify those patients needing the most intensive, proactive treatments and interventions. The criteria for the risk categories should include past incidents of aspiration, episodes of aspiration pneumonia, presence of a gastrostomy ("G-Tube ff ) or jejunostomy ("J-Tube ff ) tube,14 and coughing or gagging during meals and at bedtime. Developing criteria that identify patients who are at the greatest risk for physical and nutritional management problems is necessary to assist the teams in developing systems that ensure resources and interventions are appropriately focused.

Patients with dysphagia who have experienced recurrent aspiration pneumonia, pneumonia, or respiratory distress are not provided a comprehensive re-evaluation that assesses the appropriateness of the current treatment plan and modifies the interventions when necessary. There are several patients at the DCL and SNF units who have had recurrent bouts of aspiration pneumonia or pneumonia and are being fed by a J- or G-Tube. However, there was no indication that teams reassessed these patients or their treatment plans despite recurrent adverse outcomes. There was no indication that they were monitored for appropriate 24-hour positioning to ensure that the treatment plan was being implemented appropriately. Moreover, we found no proactive interventions initiated, such as monitoring lung sounds and oxygen saturations before and after meals, to detect health status changes.

Three patients illustrate the tragic consequences of deficiencies in physical and nutritional management: A.Z., B.C., and B.D., who each died of aspiration pneumonia. In each case, we found the following deficiencies:

•

aspiration risk with recurrent signs and symptoms of

dysphagia;

•

failure to adequately identify the patients as aspiration

risks and assign a risk level;

14 Gastrostomy and jejunostomy tubes, often referred to as a "G-Tube ff or a "J-Tube,ff respectively, are used for the feeding of patients. A gastrostomy tube is placed in a surgical opening in the stomach, while a jejunostomy tube is placed in a surgical opening in the jejunum, a part of the small intestine.

- 41 ­

•

no indication that individual triggers or symptoms were

identified, tracked, and documentedi

•

no adequate assessments for safe positioning and techniques

for activities such as mealtime, oral care, bathing, dental

appointments, or bedtimei

•

no clinical justifications included in any positioning

recommendationsi

•

no specific treatment plans containing specific instructions

for any activities that increased their risksi

•

no indication that staff responsible for their care received

competency-based training on their treatment plansi

•

no documentation of clinical objective data, including

triggers, routine lung sounds, and oxygen saturations to

proactively detect changes in statusi

•

no documentation that their plans were re-evaluated in

response to changes in their health statusi and

•

no indication that their treatment plans were being

regularly monitored to ensure consistency in implementation.

Compounding the tragedy of these three deaths, once again, is GRHA's failure to critically review the first death, which should have led to corrective actions that could have prevented the second and third fatalities.

GRHA has no protocol that addresses who is responsible for reviewing aspiration data, how often it should be reviewed, when other disciplines should alert the team to changes in the patient, and when the meal plan and treatm~nt plan should be reassessed. These deficiencies in recording and using objective data to inform treatment decisions is the same systemic failure as the failure to record behavior data for purposes of therapeutic intervention, and the failure to record medication data and variances to monitor proactively medical conditions and medication regimes. There is no mechanism for reporting triggers to the treatment team and no time-line requiring the team to re-evaluate the treatment plan. According, the facility has no system in place to address adequately the physical and nutritional management of patients at risk of aspiration. These systemic deficiencies have resulted in tragic harm and continue to place patients at significant risk for harm.

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7. Emergency Preparedness Is Inadequate
In accordance with generally accepted procedures, all staff should be well-trained in emergency preparedness, aware of emergency materials and where they are located, and conduct sufficient practice codes to be able to perform adequately when confronted with an actual emergency. Appropriate emergency medical response also includes physical plant readiness.
GRHA practices and procedures regarding emergency preparedness deviate substantially from generally accepted professional standards. For example, we found a significant lack of practice emergency codes. At the time of our September 2007 tour, no practice code had been conducted in the past year. Minutes from the Medical Emergency Committee detail a concern about the lack of drills and mis~ing vital medical supplies discovered during an actual emergency medical code in which a patient died. Medical Emergency Committee minutes further identified other deficiencies including: emergency equipment not reaching the scene in a timely manner because the equipment was locked in medication rooms with limited accessibility; medical code sheets not appropriately completed; delayed responses due to unclear or inadequate announcements of medical codes; lack of staff familiarity with the use of emergency medical equipment; and oxygen tanks missing regulators and/or k~ys despite documentation indicating that the tanks were checked regularly. We found that these deficiencies noted by the GRHA Medical Emergency Committee still existed.
An example is the medical code for N.N. that we observed during our on-site tour. N.N. suffered a seizure in the GRHA cafeteria. Most of the assembled staff appeared not to be assisting, but merely observing. Contrary to generally accepted professional standards, nursing did not take the lead in conducting the code ,and implementing the physician's orders. Staff spent a significant amount of time trying to locate equipment and medications from nearby units because nothing was available in the cafeteria. Eventually, mUltiple staff members brought multiple emergency crash carts, medication, oxygen tanks, and orange emergency bags. Necessary equipment and medications were missing despite the multiple emergency bags brought to the scene. Multiple requests by the physician internist for a necessary medication and equipment went unheeded, resulting in unnecessary delay. In addition, GRHA staff responding to the medical emergency did not wear protective gloves, including the nurse who eventually injected the patient with medication. The chaos observed and evidenced during the handling of this medical code is reflective of poor training and inadequate preparedness

- 43 ­
for emergencies. This is particularly troubling because of the vulnerable populations at GRHA. This is a gross and dangerous deviation from generally accepted professional standards.
The poor handling of this medical code was exacerbated by an equally inadequate review. The post-medical code debriefing, while acknowledging the lack of equipment, noted that "the response was quick and the staff who attended the code was [sic] efficient and followed directives well." Problematic issues that arose during the actual medical code were not addressed. Thus, the grave deficits we observed during this emergency code will likely continue to repeat.
Another example of a deficient code response - and a deficient review of the incident such that no lessons were learned to. inform better practice in the future - is the suicide attempt of G.G., described earlier in this letter. Although witness statements described a confused staff response, emergency bags that did not contain scissors to cut the ligature from around G.G.'s neck, and other deficiencies, these witness statements had been removed from the official file. There was no investigation of these problems with the code, and indeed, as the example of the seizure incident during our tour illustrates, the problems persist.
E. Services to Populations with 'Specialized Needs Are Inadequate
1. Services to Patients with Limited English Proficiency Are Insufficient
Pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and its implementing regulations, GRHA is required to take reasonable steps to ensure meaningful access to their programs and activities by persons with limited English proficiency ("LEP"). See also Dept. of Justice Guidance to Recipients, 67 Fed. Reg. 41455 (June 18, 2002). Georgia's Mental Health Gap Analysis in May 2005 identified glaring deficiencies in mental health services available to persons with hearing impairments or limited English proficiency. Although the State has adopted a Limited English Proficiency and Sensory Impaired Client Services Manual, we saw little evidence that the policies outlined in the Manual were followed. Examples include R.R., who received little to no mental health treatment at GRHAi this same patient, later transferred to the Regional Hospital at Savannah, surprised his treating psychiatrist there by asking for a copy of his group schedule in Spanish so that he could read and comply with it. R.R. had not previously been identified as requiring

- 44 ­
translation services r despite a months-long stay at GRHA. AccordinglYr GRHA must take steps to ensure that meaningful access is being provided to LEP persons.
2. Education and Special Education Services for Qualified Students Are Insufficient
GRHA fails to provide sufficient education services to youth throughout the facility as required by the Individuals with Disabilities Education Act ("IDEAII) r 20 U.S.C. § 1401 et seq.r Section 504 of the Rehabilitation Act of 1973 r 29 U.S.C. § 794 ("Section 504") and the Americans with Disabilities Act r 42 U. S . C. § 1210 lr et seq. ("ADAII).
The general education programr although generally strong r has a significant deficiency. The points awarded for positive behavior during school time are based on individual instructors r point systems r and this point system is neither individualized nor integrated with any behavioral treatments or interventions that may be used in the residential units. Particularly for, adolescents at the facility for more than a few daysr interventions provided at the school should be consistent with their individual treatment plans.
"Related services ll under the IDEA are those necessary to permit the student to benefit from instruction. 20 U.S.C. § 1414 (d) (2002). We found no evidence of a plan to provide special education-related services to students at the facility. Only one student on the Adolescent Unit had a behavioral support programr despite the high rate of dangerous r disruptive behaviors on that unit and the frequent use of PRN r seclusion r and restraints to control these disruptive behaviors. Behavioral supports are frequently considered necessary related services under the IDEA. We find the failure to screen and identify any special education students needing these services to be a critical deficiency.
GRHA also fails to provide sufficient special education instructors. Staff reported that the special education teacher on the SNF unit usually serves nine patients in the morning and six in the afternoon r and does not have an instructional aide. One instructor is insufficient to provide individualized instruction to this many students with this level of impairment r especially during the morning session.
Students eligible for serviqes under the IDEA are required to have an Indlvidualized Education Plan ("IEplI) r developed by the responsible education agency. Among other requirements r an

- 45 ­
IEP requires assessment of a student's progress toward annual educations goals. 20 U.S.C. § 1414(d). This requires communication of this assessment data to any school that a student attends during the review period. GRHA has no policy regarding communication of assessment data to schools to which discharged adolescents return. Staff reported such follow-up to be rare, and only upon request by the outside school. GRHA's failure to provide information concerning the student's educational progress, any educationally-relevant assessments conducted during the student's hospitalization, and recommendations for necessary accommodations to the schools to which its school-eligible patients are discharged is a substantial dep~rture from generally accepted professional standards and a critical lapse in supporting the students' successful transition and discharge.
F. Inadequate Discharge Planning and Placement in the Most Integrated Setting
Federal law requires that GRHA actively pursue the timely discharge of patients to the most integrated, appropriate setting that is consistent with the patients' needs. Olmstead, 527 U.S. at 607. Thus, at the time of admission and throughout a patient's stay, GRHA should: (1) identify, through professional assessments, the factors that likely will foster viable discharge for the patient; and (2) use these factors to drive treatment planning and intervention. Without clear and purposeful identification of such factors, patients will be denied rehabilitation and other services and supports that will help them acquire, develop, and/or enhance the skills necessary to function in a community setting.
The GRHA discharge planning process significantly deviates from generally accepted professional standards. GRHA fails to meet the discharge planning principles stated in its own policies. The State's own audits of the ~State of Georgia Behavioral Health System" prepared for the Governor in 2004 and 2005 identified egregious, systemic deficits in the coordination -of care between GRHA and the community. Based on our review of recent discharges from GRHA, these same deficits persist. Specifically, we find that: (1) discharge plans are based on inadequate assessments; (2) discharges are frequently inappropriate because of inadequate coordination of care; (3) discharge planning services are not provided in accordance 
 with GRHA policy; and (4) discharge plans fail to address 
 repeated readmissions. 


- 46 ­
1. Discharge plans Are Based on Inadequate Assessments
Deficits in discharge planning begin with assessments upon admission. Complete and accurate assessments are essential to develop a treatment plan that can direct rehabilitation while in the facility and to form the basis for a viable discharge plan. The deficits in assessments, discussed at page 20, supra, were particularly evident for those patients with short lengths of stay. The absence of information on critical aspects of functioning, which have often proved to be problematic in the community and contributed to the person's admission or readmission to the facility, is a serious impediment to identifying the services and supports needed for these patients to transition successfully to community living.
We were unable to locate any pre-admission information obtained from community providers in any of the records examined. Of the records reviewed, it appeared as if each admission was treated like a first admission, and GRHA failed to take advantage of available information regarding previous admissions, successful and unsuccessful treatments, and skills that needed to be developed to live successfully in the community. These failures greatly contribute to the high rate of recidivism at GRHA.
2. Inadequate Coordination of Care Routinely Leads to Inappropriate Discharges
Contrary to generally accepted professional standards, GRHA fails to provide adequate coordination and continuity of care, and this failure routinely leads to inappropriate discharges. Moreover, the failure to provide appropriate coordination of care results in numerous negative outcomes, including placements in inappropriate locations, re-admissions to the facility, and unnecessary delays in community placement. Although GRHA policy identifies the major resources necessary for a successful return to the community, in the vast majority of cases, these resources were not considered or were not made available.
More than 300 patients in a twenty-month period were discharged to inappropriate locations such as shelters and bus stops. Our investigation revealed that, during the period between January I, 2006 and August 6, 2007, 301 patients were discharged to homeless shelters, 32 to "transportation terminal[s] ," 33 to hotels and lodges, 12 to single room occupancy apartments, and 36 to what were listed as "Temporary

- 47 ­

Locations. filS There were 19 patients who were discharged to these locations on multiple occasions during this period. Most of these patients had mUltiple previous admissions to GRHA. Many patients go through the cycle of admission and discharge mUltiple times without any improvement in the discharge planning process.

Homeless shelters are not equipped to provide the level of care required for a patient being discharged from a psychiatric hospital, many of whom have severe and persistent mental illness. Moreover, many shelters are often at or above their capacity to serve local community needs. Thus, patients discharged to homeless shelters are likely to return to the hospital and repeat the cycle of inadequate discharge mUltiple times. Research indicates that the best chance for a successful recovery outcome is achieved when the person receives adequate care during the first episode of the psychiatric illness and that the opportunities for successful recovery diminish on each future episode.

Examples of discharge to inappropriate locations include:

•

B.E., who had eight prior admissions to GRHA, including

August 2007 and again in September 2007. She was discharged

to a hotel and instructed to contact the local mental health

center. There was no specific case manager, physician, or

psychiatrist identified in her plan. No community provider

was present at her discharge treatment meeting. Despite

having returned to GRHA only ten days after her previous

discharge, there was no effort by her treatment team to

review the reasons for that discharge failure or to prevent

its recurrence.

•

A.C. was admitted to GRHA twice in 2007, and has a history

of 35 prior admissions. She has co-occurring diagnoses of

substance abuse and psychotic disorder with hallucinations,

but received no substance abuse treatment while at GRHA.

She was discharged to the Union Mission Night Shelter

without adequate planning for community substance abuse

care.

•

A.D. has had 41 admissions to GRHA. A.D. has a dual

diagnosis of schizo-affective disorder and substance abuse.

On each of his discharges, including the most recent one on

November 14, 2007, he was discharged to a homeless shelter

15 The Supreme Court, in Olmstead, stated that homeless shelters were inappropriate discharge locations. Olmstead v. L.C., 527 U.S. 581, 605 (1999).

- 48 ­

without adequate planning for community substance abuse services and treatment.

•

A.B. has a diagnosis of mood disorder and substance abuse

disorder. He was admitted to GRHA twice in 2007 and has a

history of 14 admissions. He was discharged to a homeless

shelter in February 2007 and returned to GRHA ten days

later. A.B. received no treatment for substance abuse while

at GRHA and no planning for substance abuse services when he

returned to the community.

3. Discharge Planning services Are Not Provided in Accordance with GRHA Policy

We found that, although GRHA has a number of policies and procedures that articulate an adequate discharge planning and coordination of care process, in practice, these policies and procedures are not implemented. For example, GRHA's policy requires that case expediters work with both the hospital and community providers to help them understand and carry out their responsibilities. This ensures that the hospital and community providers perform their respective roles to achieve integrated transition planning for the patient. In the vast majority of cases reviewed, the roles described in this policy were not followed. In fact, there was little documented contact between the hospital and the case expediter beyond a phone call. The community transition generally consisted of the GRHA social worker making an appointment for the person at the community mental health center and providing a bus ticket for transportation.

4. Discharge Plans Fail to Address Repeated Readmissions

GRHA discharge planners and social workers identified the following primary barriers to community placement: lack of income, family, and housing; and medication non-compliance, particularly for patients with a dual diagnosis of substance abuse. Contrary to generally accepted professional standards, these professionals reported that the State lacks sufficient Assertive Community Treatment teams, which serve as a vital link between the hospital and the community for participants. Assertive Community Treatment programs offer an array of services customized to individual needs, delivered by a community-based team of mental health practitioners, and available 24 hours per day. The State's own findings in the 2005 Georgia Mental Health Gap Analysis also discussed the dearth in this essential service. Our review of discharges from GRHA suggests that this glaring gap in provision of services, and in particular for patients with a

- 49 ­
history of repeated admissions, is as great today as it was three years ago.
In most cases, neither formal or informal supports have been developed and prepared for use by patients transitioning from GRHA. There is little indication that the facility has attempted to locate, develop, or advocate for needed supports or services that GRHA professionals know are needed to ensure successful transitions to community living.
IV. RECOMMENDED REMEDIAL MEASURES
To remedy the deficiencies discussed above and protect the constitutional and federal statutory rights of the patients at GRHA, the State of Georgia should promptly implement the minimum remedial measures set forth below:
A. Protection From Harm
The G~orgia Psychiatric Hospitals shall provide their patients with a safe and humane environment and protect them from harm. At a minimum, the Georgia Psychiatric Hospitals shall:
1. Create or revise, as appropriate, and implement an incident management system that comports with generally accepted professional standards. The Georgia Psychiatric Hospitals shall:
a. Create or revise, as appropriate, and implement comprehensive, consistent incident management policies and procedures that provide clear guidance regarding reporting requirements and the categorization of incidents, including those involving any physical injury; patient aggression; abuse and neglect; contraband; and suicide ideation or attempts;
b. Require all staff to complete competency-based training in the revised reporting requirements;
c. Create or revise, as appropriate, and implement thresholds for indicators of events, including, without limitation, patient injury, patient-on­ patient assaults, self-injurious behavior, falls, and suicide ideation or attempts, that will initiate review at both the unit/treatment team level and at the appropriate supervisory level; whenever such thresholds are reached, this will be

- 50 ­
documented in the patient medical record, with explanations given for changing/not changing the patient's current treatment regimenj
d. Create or revise, as appropriate, and implement policies and procedures addressing the investigation of serious incidents, including, without limitation, abuse, neglect, suicide ideation or attempts, unexplained injuries, and all injuries requiring medical attention more significant than first aid. The policies and procedures shall require that investigation of such incidents that are comprehensive, include consideration of staff's adherence to programmatlc requirements, and are performed by independent investigatorsj
e. Require all staff members charged with investigative responsibilities to complete competency-based training on investigation methodologies and documentation requirements necessary in mental health service settingsj
f. Monitor the performance of staff charged with investigative responsibilities and provide administrative and technical support and training as needed to ensure the thorough, competent, and timely completion of investigations of serious incidents;
g. Ensure that corrective action plans are developed and implemented in a timely manner;
h. Review, revise, as appropriate, and implement policies and procedures related to the tracking and trending of incident data, including data from patient aggression and abuse and neglect allegations, to ensure that such incidents are properly investigated and appropriate corrective actions are identified and implemented in response to problematic trends; and
i. Create or revise, as appropriate, and implement policies and procedures regarding the creation, preservation, and organization of all records relating to the care and/or treatment of patients, including measures to address improper removal, destruction, and or falsification of any record.

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2. Develop and implement a comprehensive quality improvement system consistent with generally accepted professional standards. At a minimum, such a system shall:
a. Collect information related to the adequacy of the provision of the protections, treatments, services, and supports provided by the Georgia Psychiatric Hospitals, as well as the outcomes being achieved by patients;
b. Analyze the information collected in order to identify strengths and weaknesses within the current system; and
c. Identify and monitor implementation of corrective and preventative actions to address identified issues and ensure resolution of underlying problems.
B. Mental Health Care
1. Assessments and Diagnoses
The Georgia Psychiatric Hospitals shall ensure that their patients receive accurate, complete, and timely assessments and diagnoses~ consistent with generally accepted professional standards, and that these assessments and diagnoses drive tTeatment interventions. More particularly, the Georgia Psychiatric Hospitals shall:
a. Develop and implement comprehensive policies and procedures regarding the timeliness and content of initial psychiatric assessments and ongoing reassessments; and ensure that assessments include a plan of care that outlines specific strategies, with rationales, including adjustment of medication regimens and initiation of specific treatment interventions.
b. Ensure that psychiatric reassessments are completed within time-frames that reflect the patient's needs, including prompt reevaluations of all patients requiring restrictive interventions.
c. Develop diagnostic practices, consistent with generally accepted professional standards, for

- 52 ­

reliably reaching the most accurate psychiatric diagnoses.

d. Conduct interdisciplinary assessments of patients consistent with generally accepted professional standards. Expressly identify and prioritize each patient's individual mental health problems and needs, including, without limitation, maladaptive behaviors and substance abuse problems.

e. Develop a clinical formulation of each patient that integrates relevant elements of the patient's history, mental status examination, and response to current and past medications and other interventions, and that is used to prepare the patient's treatment plan.

f. Ensure that the information gathered in the assessments and reassessments is used to justify and update diagnoses, and establish and perform further assessments for a differential diagnosis.

g. Review and revise, as appropriate, psychiatric

assessments of all patients, providing clinically

justified current diagnoses for each patient, and

removing all diagnoses that cannot be clinically

justified. Modify treatment and medication

regimens, as appropriate, considering factors such

as the patient's response to treatment,

significant developments in the patient's

".

condition, and changing patient needs.

h. Develop a monitoring instrument to ensure a systematic review of the quality and timeliness of all assessments according to established indicators, including an evaluation of initial assessments, progress notes, and transfer and discharge summaries, and require each clinical discipline's peer review system to address the process and content of assessments and reassessments, identify individual and group trends, and provide corrective action.

2. Treatment Planning

The Georgia Psychiatric Hospitals shall develop and implement an integrated treatment planning process consistent

- 53 ­
with generally accepted professional standards. More particularlYr the Georgia Psychiatric Hospitals shall:
a. Develop and implement policies and procedures regarding the development of individualized treatment plans consistent with generally accepted professional standards.
b. Ensure that treatment plans derive from an integration of the individual disciplines r assessments of patients r and that goals and interventions are consistent with clinical assessments. At a minimum r this should include:
(1) Review by psychiatrists of all proposed behavioral plans to determine that they are compatible with the psychiatric formulations of the case;
(2) Regular exchange of objective data between the psychiatrist and the psychologist and use of this data to distinguish psychiatric symptoms that require drug treatments from behaviors that require behavioral therapies;
(3) Integration of psychiatric and behavioral treatments in those cases where behaviors and psychiatric symptoms overlap; and
(4) Documentation in the patientrs record of the rationale for treatment.
c. Ensure that treatment plans address repeated admissions and adjust the plans accordingly to examine and address the factors that led to re­ admission.
d. Develop and implement treatment goals that will establish an objective r measurable basis for evaluating patient progress.
e. Ensure that treatment plans are consistently assessed for their efficacy and reviewed and revised when appropriate.

- 54 ­
f. Provide adequate and appropriate mental health services l including adequate psychological services l behavioral management I and active treatment I in accordance with generally accepted professional standards.
g. Provide psychologists with sufficient education and training to ensure:
(1) competence in performing behavioral assessments l including the functional analysis of behavior and appropriate identification of target and replacement behaviors;
(2) the development and implementation of clear thresholds for behaviors or events that trigger referral for a behavioral assessment;
(3) timely review of behavioral assessments by treatment teams I including consideration or revision of behavioral interventions I and documentation of the team/s review in the patient/s record;
(4) the development and implementation of protocols for collecting objective data on target and replacement behaviors; and
(5) assessments of each patient/s cognitive deficits and strengths to ensure that treatment interventions are selected based on the patient/s capacity to benefit.
h. Re-assess all patients at the facility to identify those who would benefit from speech and communication therapy and provide sufficient qualified and trained staff to provide services to all patients who would benefit from this service.
i. Require all clinical staff to complete successfully competency-based training on the development and implementation of individualized treatment plans l including skills needed in- the development of clinical formulations I needs I

- 55 ­
goals, and interve~tions, as well as discharge criteria.
j. Ensure that the medical director timely reviews high-risk situations, such as patients requiring repeated use of seclusion and restraints.
k. Develop and implement policies to ensure that patients with special needs, including co­ occurring diagnoses of substance abuse and/or developmental disability, and physical, cognitive and/or sensory impairments are evaluated, treated, and monitored in accordance with generally accepted professional standards.
1. Develop and implement policies for patients exhibiting suicidal ideation, including for patients identified as suicidal, develop and implement a clear and uniform policy for patient assessment and treatment.
m. Develop a system to ensure that staff receive competency-based training on individualized plans, including behavioral support plans and interventions, and document this training.
n. Ensure that restrictive interventions receive appropriate review by a Human Rights Committee, or its equivalent, to guarantee any restriction of rights are necessary, appropriate, and of limited duration.
~. Ensure that all psychotropic medications are:
(1) administered as prescribed;
(2) tailored to each patient's individual symptoms;
(3) monitored for efficacy and potential side-effects against clearly-identified target variables and time frames;
(4) modified based on clinical rationales; and
(5) properly documented.

- 56 ­
p. Institute systematic monitoring mechanisms regarding medication use throughout the facility. In this regard, the Georgia Psychiatric Hospitals shall:
(1) Develop, implement, and continually update a complete set of medication guidelines in accordance with generally accepted professional standards that address the indications, contraindications, screening procedures, dose requirements, and expected individual outcomes for all psychiatric medications in the formulary; and
(2) Develop and implement a procedure governing the use of PRN medications that includes requirements for specific identification of the behaviors that result in PRN administration of medications, a time limit on PRN uses, a documented rationale for the use of more than one medication on a PRN basis, and physician documentation to ensure timely, critical review of the patient's response to PRN treatments and reevaluation of regular treatments as a result of PRN uses.
C. Seclusion and Restraints
The Georgia Psychiatric Hospitals shall ensure that seclusion and restraints are used in accordance with generally accepted professional standards. Absent exigent circumstances i.e., when a patient poses an imminent risk of injury to himself or a third party -- any device or procedure that restricts, limits, or directs a person's freedom of movement (including, but not limited to, chemical restraints, mechanical restraints, physical/manual restraints, or time out procedures) should be used only after other less restrictive alternatives have been assessed and exhausted. More particularly, the Georgia Psychiatric Hospitals shall:
1. Eliminate the use of planned (i.e., PRN) seclusion and planned restraint.
2. Ensure that restraints and seclusion:

- 57 ­
a. Are used only when persons pose an immediate threat to themselves or others and after a hierarchy of less restrictive measures has been exhausted;
b. Are not used in the absence of, or as an alternative to, active treatment, as punishment, or for the convenience of staff;
c. Are not used as part of a behavioral intervention;
d. Are terminated as soon as the person is no longer an imminent danger to himself or others; and
e. Are used in a reliably documented manner.
3. Create or revise, as appropriate, and implement policies and procedures consistent with generally accepted professional standards that cover the following areas:
a. The range of restrictive alternatives available to staff and a clear definition of each; and
b. The training that all staff receive in the management of the patient crisis cycle, the use of restrictive measures, and the use of less­ restrictive interventions.
4. Ensure that if seclusion and/or restraint are initiated, the patient is regularly monitored in accordance with generally accepted professional standards and assessed within an appropriate period of time, and that an appropriately trained staff member makes and documents a determination of the need for continued seclusion and/or restraint.
5. Ensure that a physician's order for seclusion and/or restraint includes:
a. The speci·fic behaviors requiring the procedure;
b. The maximum duration of the order; and
c. Behavioral criteria for release, which, if met, require the patient's release even if the maximum duration of the initiating order has not expired.

- 58 ­
6. Ensure that the patient's attending physician be promptly consulted regarding the restrictive intervention.
7. Ensure that at least every thirty minutes, patients in seclusion and/or restraint be re-informed of the behavioral criteria for their release from the restrictive intervention.
8. Ensure that immediately following a patient being placed in seclusion and/or restr~int, the patient's treatment team reviews the incident within one business day, and the attending physician documents the review and the reasons for or against change in the patient's current pharmacological, behavioral, or psychosocial treatment.
9. Comply with the requirements of 42 C.F.R. § 483.360(f) regarding assessments by a physician or licensed medical professional of any resident placed in seclusion and/or restraints.
10. Ensure that staff successfully complete competency­ based training regarding implementation of seclusion and restraint policies and the use of less-restrictive interventions.
D. Medical and Nursing Care
The Georgia Psychiatric Hospitals shall provide medical and nursing services to its patients consistent with generally accepted professional standards. Such services should result in patients of the Georgia Psychiatric Hospitals receiving individualized services, supports, and therapeutic interventions, consistent with their treatment plans. More particularly, the Georgia Psychiatric Hospitals shall:
1. Ensure adequate clinical oversight to ensure that generally accepted professional standards are maintained.
2. Ensure that patients are provided adequate medical care in accordance with generally accepted professional standards.
3. Ensure sufficient nursing staff to provide nursing care and services in accordance with generally accepted professional standards.

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4. Ensure that, before nursing staff work directly with patients, they have completed successfully competency­ based training regarding mental health diagnoses, related symptoms, psychotropic medications, identification of side effects of psychotropic medications, monitoring of symptoms and target variables, and documenting and reporting of the patient's status.
5. Ensure that nursing staff accurately and routinely monitor, document, and report patients' symptoms and target variables in a manner that enables treatment teams to assess the patient's status and to modify, as appropriate, the treatment plan.
6. Ensure that nursing staff actively participate in the treatment team process and provide feedback on patients' responses, or lack thereof, to medication and behavioral interventions.
7. Ensure that nursing staff are appropriately supervised to ensure that they administer, monitor, and record the administration of medications and any errors according to generally accepted professional standards.
8. Ensure that, prior to assuming their duties and on a regular basis thereafter, all staff responsible for the administration of medication have completed successfully competency-based training on the completion of the Medication Administration-Record.
9. Ensure that all failures to properly sign the Medication Administration Record and/or the Narcotics Log are treated as medication errors, and that appropriate follow-up occurs to prevent recurrence of such errors.
10. Ensure that ~ach patient's treatment plan identifies:
a. The diagnoses, treatments, and interventions that nursing and other staff are to implement;
b. The related symptoms and target variables to be monitored by nursing and other unit staff; and
c. The frequency by which staff need to monitor such symptoms.

- 60 ­
11. Establish an effective infection control program to prevent the spread of infections or communicable diseases. More specifically, the Georgia Psychiatric Hospitals shall:
a. Actively collect data with regard to infections and communicable diseases;
b. Analyze these data for trends;
c. Initiate inquiries regarding problematic trends;
d. Identify necessary corrective action;
e. Monitor to ensure that appropriate remedies are achieved;
f. Integrate this information into the quality assurance review of the Georgia Psychiatric Hospitals; and
g. Ensure that nursing staff implement the infection control program.
12. Establish an effective physical and nutritional management program for patients who are at risk for aspiration or dysphagia, including but not limited to the development and implementation of assessments, risk assessments, and interventions for mealtimes and other activities involving swallowing.
13. Ensure that staff with responsibilities for patients at risk for aspiration and dysphagia have successfully completed competency-based training commensurate with their responsibilities.
14. Provide adequate, appropriate, and timely rehabilitation therapy services and appropriate adaptive equipment to each individual in need of such services or equipment, consistent with generally accepted professional standards.
15. Establish an effective medical emergency preparedness program, including appropriate staff training; ensure staff familiarity with emergency supplies, their operation, maintenance and location; conduct sufficient practice drills to ensure adequate performance when confronted with an actual emergency.

- 61 ­
E. Services to Populations with Specialized Needs
1. Provide adequate services to patients with limited English proficiency, co~sistent with the requirements of the State's Limited English Proficiency and Sensory Impaired Client Services Manual and federal law.
2. Provide adequate education and special education services for qualified students, including:
a. Adequate assessments of individual educational needs and monitoring and reporting of individual progress, including reporting all relevant assessments and information to a new school upon discharge from the hospital;
b. Development and implementation of IEPs consistent with the requirements of the IDEA; and
c. Ensure that students receive instruction and behavioral supports appropriate to their learning abilities and needs, ·consistent with generally accepted professional standards.
F. Discharge Planning
The State shall ensure that patients receive services in the most integrated, appropriate setting that is consistent with their needs and legal status and actively pursue the appropriate discharge of patients. More particularly, the Georgia Psychiatric Hospitals shall:
1. Identify at admission and address in treatment planning the criteria that likely will foster viable discharge for a particular patient, including but not limited to:
a. The individual patient's symptoms of mental illness, psychiatric distr~ss, or cognitive impairment;
b. Any other barriers preventing that specific patient from transitioning to a more integrated environment, especially difficulties raised in previously unsuccessful placements; and
c. The patient's strengths, preferences, and personal goals.

- 62 ­
2. Ensure that the patient is an active participant in the placement process.
3. Include in treatment interventions the development of 
 skills necessary to live in the setting in which the 
 patient will be placed, and otherwise prepare the 
 patient for his or her new living environment. 

4. Provide the patient adequate assistance in 
 transitioning to the new setting. 

·5. Ensure that professional judgments about the most integrated setting appropriate to meet each patient's, needs are implemented and that appropriate aftercare services are provided that meet the needs of the patient in the community.
6. Create or revise, as appropriate, and implement a 
 quality assurance or utilization review process to 
 oversee the discharge process and aftercare services, 
 including: 

a. Develop a system of follow-up with community placements to determine if discharged patients are receiving the care that was prescribed for them at discharge; and
b. Hire sufficient staff to implement these minimum remedial measures with respect to discharge planning.
7. The State shall ensure that it provides community-based treatment for persons with disabilities consistent with federal law.
v. CONCLUSION
We appreciate the cooperation we received from the Georgia Department of Mental Health Developmental Disabilities and Addictive Diseases, and the State's Attorney General's Office. We also wish to thank the administration and staff at each of the hospitals we visited for their professional conduct, their generally timely responses to our information requests, and the extensive assistance they provided during our tours. Further, we

- 63 ­
wish to especially thank those individual hospital staff members, both new and longstanding, who make daily efforts to provide appropriate care and treatment, and who improve the lives of patients at these facilities. Those efforts were noted and appreciated by the Department of Justice and our expert consultants.
The collaborative approach the parties have taken thus far has been productive~ We hope to continue working with the State in an amicable and cooperative manner to resolve our outstanding concerns with regard toGRHA, and in due course, any additional concerns with the remaining hospitals in the Georgia system.
Please note that this findings letter is a public document. It will be posted on the website of the Civil Rights Division. While we will provide a copy of this letter to any individual or entity upon request, as a matter of courtesy, we will not post this letter on our website until 10 calendar days from the date of this letter.
Provided that our cooperative relationship continues, we will forward our expert consultants' reports under separate cover. These reports are not public documents. Although our expert consultants' 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 issues discussed in this letter and offer practical technical assistance in addressing them. We hope that you will give this information careful consideration and that it will assist in your efforts at promptly remediating areas that require attention.
We are obliged by statute to advise you that, in the unexpected event that we are unable to reach a resolution regarding our concerns, the Attorney General is empowered to initiate a lawsuit, pursuant to CRIPA, to correct deficiencies of the kind identified in this letter, 49 days after appropriate officials have been notified of them. 42 U.S.C. § 1997b(a) (1) . We would prefer, however, to resolve this matter by working cooperatively with you. We have every confidence that we will be able to do so ,in this case. The lawyers assigned to this matter will be contacting your attorneys to discuss next steps in further detail.

/s/ Grace Chung Becker

- 65 ­
James Jackson Regional Hospital Administrator West Central Regional Hospital
Susan. Trueblood Regional Hospital Administrator Georgia Regional Hospital/Atlanta
David E. Nahmias United States Attorney Northern District of Georgia Richard B. Russell Federal Building
Maxwell ·Wood United States Attorney Middle District Of Georgia
Edmund A. Booth, Jr United States Attorney Southern District of Georgia

 
 U.S. Department of Justice
Civil Rights Division
Assistant Attorney General 950 Pennsylvania Avenue, NW - RFK Washington, DC 20530
January 15, 2009

The Honorable Sonny Perdue
 Office of the Governor
 203 State Capital
 Atlanta, Georgia 30334

Re: CRIPA Investigation of the Northwest Georgia Regional
 Hospital in Rome 

Dear Governor Perdue:

I am writing to provide the Civil Rights Division’s second
 report of findings regarding our investigation of conditions and
 practices in the State’s Psychiatric Hospitals pursuant to the
 Civil Rights of Institutionalized Persons Act (“CRIPA”),
 42 U.S.C. § 1997. CRIPA gives the Department of Justice
 authority to seek a remedy for a pattern and practice of conduct
 that violates the constitutional or federal statutory rights of
 patients with mental illness or developmental disabilities who
 are treated in public institutions. The findings discussed in
 this letter apply particularly to the Northwest Georgia Regional
 Hospital in Rome, Georgia (“NWGRH” or “Facility”). Our first
 report, dated May 30, 2008, concerned the Georgia Regional
 Hospital in Atlanta (“GRHA”).1

On April 18, 2007, we notified you that we were initiating
 an investigation of conditions and practices in the State’s
 Psychiatric Hospitals pursuant to CRIPA. The State agreed that
 the Department’s inspection of four of the State’s hospitals
 would stand as representative of all seven hospitals in the
 system. We began our on-site inspections with a visit to GRHA on
 September 17 through 21, 2007. The visit to NWGRH was on
 October 29 though November 2, 2007, and the visit to the Georgia
 Regional Hospital at Savannah occurred on December 17
 through 21, 2007. The visit to Central State Hospital in

1
 We note that many, if not all, of the findings we make
 regarding NWGRH are representative of conditions encountered at
 the two other hospitals we have inspected to date, the Georgia
 Regional Hospitals at Atlanta and Savannah.


- 2 -

Milledgeville was postponed, and we have not yet been able to
 find a mutually agreeable date for that visit. According to our
 agreement with the State, these four hospitals would be
 representative of the remaining State Psychiatric Hospitals,
 including Southwestern State Hospital, East Central Regional
 Hospital, and West Central Regional Hospital. 

We conducted our on-site review with the assistance of
 expert consultants in the fields of psychiatry, psychology,
 psychiatric nursing, protection from harm, and discharge planning
 and community placement. While on-site, we interviewed
 administrative staff, mental health care providers, and patients,
 and examined the physical plant conditions throughout most, but
 not all, of the Facility.2 In addition to our on-site inspection
 of NWGRH, we reviewed a wide variety of documents, including
 policies and procedures, incident reports, and medical and mental
 health records. Consistent with our commitment to provide
 technical assistance and conduct a transparent investigation, we
 concluded our tour with an extensive debriefing at which our
 consultants conveyed their initial impressions and grave concerns
 about NWGRH to counsel, administrators and staff, and State
 officials.

In accordance with statutory requirements, we now write to
 advise you formally of the findings of our investigation


2

As we noted in our May 30 letter, the State, asserting


that CRIPA does not afford jurisdiction over admissions, intake,


and “short-term outpatient” units, refused us access to such


units at each of the hospitals we have visited thus far. The


State’s position is incorrect. See, e.g., 42 C.F.R. § 483.20


(2006) (describing the State’s duty to provide physician orders


for immediate care at the time of admission and to perform


comprehensive assessments within fourteen days of admission). By


law, our investigation must proceed regardless of whether


officials choose to cooperate fully. Indeed, when CRIPA was


enacted, lawmakers considered the possibility that state and


local officials might not cooperate in our federal


investigations. See H.R. Conf. Rep. 96-897, at 12 (1980),


reprinted in 1980 U.S.C.C.A.N. 832, 836. As we informed the


State’s attorneys, the State’s decision to deny us access to


these areas permits us to draw negative inferences about


conditions and practices in those units. See id. While we did


not need to draw negative inferences in making the findings


described in this letter, we reiterate that we are authorized to


do so if the State continues to deny us access to these areas in


the future.


- 3 ­
pertaining to NWGRH, the facts supporting them, and the minimum
 remedial steps that are necessary to remedy the deficiencies set
 forth below. 42 U.S.C. § 1997b(a). Specifically, we have
 concluded that numerous conditions and practices at NWGRH violate
 the constitutional and statutory rights of its patients. In
 particular, we find that NWGRH: (1) fails to adequately protect
 its patients from harm; (2) fails to provide appropriate mental
 health treatment; (3) fails to use seclusion and restraints
 appropriately; (4) fails to provide adequate medical care;
 (5) fails to provide adequate services to populations with
 specialized needs; and (6) fails to provide adequate discharge
 planning to ensure placement in the most integrated setting. See
 Youngberg v. Romeo, 457 U.S. 307 (1982); Title XVIII and Title
 XIX of the Social Security Act, 42 U.S.C. §§ 1395 to 1395b-10 and
 1396 to 1396w-1; 42 C.F.R. §§ 482-483 (listing program
 requirements for participating in Medicare and Medicaid);
 Americans with Disabilities Act (“ADA”), 42 U.S.C.
 §§ 12132-12134; 28 C.F.R. § 35.130(d); Title VI of the Civil
 Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7; see also
 Olmstead v. L.C., 527 U.S. 581 (1999). 

As we noted when we wrote concerning GRHA, the majority of
 the findings we have made have also been made by other agencies
 in the past. See, e.g., Peter Buckley, M.D., and Nan Lewis,
 M.P.H., Medical College of Georgia, Audit Summary - Northwest
 Georgia Regional Hospital - Rome, September 26, 2007 (describing
 deficits in protection from harm, mental health treatment,
 nursing staffing, risk management, and performance improvement);
 United States Department of Health and Human Services, Centers
 for Medicare and Medicaid Services, Survey of Northwest Georgia
 Regional Hospital at Rome, March 3, 2004 (“CMS Survey”)
 (describing failure to meet federal regulatory standards in
 protection from harm, individualized mental health treatment, use
 of seclusion and restraints, and nursing services). Throughout
 this letter, we have included specific references to past
 findings by these entities, where appropriate. We found that
 these same conditions remain unabated, despite NWGRH’s notice of
 the deficiencies.

Nearly a decade ago, the United States Supreme Court made
 clear that the unnecessary institutionalization of persons with
 disabilities violates the law. Olmstead, 527 U.S. at 587.
 Olmstead involved two women with developmental disabilities and
 mental illness who were inappropriately confined at another of
 the State’s Psychiatric Hospitals, GRHA. Id. at 593, 597. The
 Supreme Court held that states are required to provide mental
 health treatment to persons in the most integrated, appropriate
 settings. See id. at 596-97. In the wake of the Olmstead


- 4 ­
decision, Georgia commissioned numerous studies of deficiencies
 in its community mental health care system, including: a
 February 2004 Study of the Community Service Board (“CSB”)
 Service Delivery System (Phase I); a January 2005 Study of the
 CSB Service Delivery System (Phase II); and a May 2005 Georgia
 Mental Health System Gap Analysis. As stated in the Phase II
 Study by the State’s Department of Audits and Accounts, these
 studies “point to accountability, oversight, management, and
 quality of care issues.” The finding that Georgia’s high
 hospitalization and readmission rates compared to national
 averages persist, and are “evidence of a lack of community based
 services,” was reiterated in the June 2, 2008 Governor’s Mental
 Health Service Delivery Commission’s Progress Report. Despite
 the mandate by the Supreme Court and the subsequent clear
 analysis and recommendations in Georgia’s own reports, as
 indicated herein, our review of discharge planning at NWGRH finds
 that Georgia still frequently fails to ensure that patients
 receive appropriate and sufficient services to enable them to
 live in the most integrated setting consistent with their needs,
 as required by federal law.

I. BACKGROUND

Northwest Georgia Regional Hospital in Rome, Georgia serves
 residents of the 23 counties of northwest Georgia who have mental
 illness, substance abuse issues, and developmental disabilities.
 At the time of our visit, NWGRH had approximately 280 patients.
 Inpatient units included acute and long-term adult psychiatric
 units, forensic units, and units for persons with developmental
 disabilities.3 Approximately 100 patients reside on the
 developmental service units (“DSU”), which are the units for
 persons with developmental disabilities, approximately 70
 patients reside on the forensic units, and the remainder reside
 on the adult mental health units. The Facility is located on a
 large campus that includes a number of additional programs not
 included in this review. 

II. LEGAL STANDARDS

The Fourteenth Amendment due process clause requires state
 mental health care facilities to provide patients with “adequate
 food, shelter, clothing, and medical care,” along with conditions

3
 We note that, as with GRHA, the combination of
 populations at NWGRH is unusual for a psychiatric hospital. Each
 population and the combination of these populations present
 unique health, safety, and treatment concerns.


- 5 ­
of reasonable care and safety, reasonably nonrestrictive
 confinement conditions, and such training, including treatment,
 as may be reasonable in light of their constitutionally-based
 liberty interests. Youngberg, 457 U.S. at 315, 319, 322.

In order to secure these liberty interests, individualized
 treatment must be provided to give patients “a reasonable
 opportunity to be cured or to improve [their] mental condition.”
 Donaldson v. O’Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated
 on other grounds, O’Connor v. Donaldson, 422 U.S. 563 (1975);
 D.W. v. Rogers, 113 F.3d 1214, 1217-18 (11th Cir. 1997) (holding
 that the constitutional right to psychiatric care and treatment
 is triggered by the State’s physical confinement of an individual
 with mental illness; the court noted the holding of Fifth Circuit
 cases, including Donaldson, which are binding upon the Eleventh
 Circuit if decided before September 30, 1981); see also Wyatt v.
 Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974).

Treatment is not adequate if it “is such a substantial
 departure from accepted professional judgment, practice, or
 standards as to demonstrate that the person responsible actually
 did not base the decision on such a judgment.” Youngberg,
 457 U.S. at 323. Patients have a due process right to have all
 major decisions regarding their treatment be made in accordance
 with the judgment of qualified professionals acting within
 professional standards. Griffith v. Ledbetter, 711 F. Supp.
 1108, 1110 (N.D. Ga. 1989). 

In addition, patients’ constitutional liberty interests in
 security compel states to provide reasonable protection from harm
 in mental health hospitals. Youngberg, 457 U.S. at 315-16.
 States are also compelled by the Constitution to ensure that
 patients are free from hazardous drugs which are “not shown to be
 necessary, used in excessive dosages, or used in the absence of
 appropriate monitoring for adverse effects.” Thomas S. v.
 Flaherty, 699 F. Supp. 1178, 1200 (W.D.N.C. 1988), aff’d,
 902 F.2d 250 (4th Cir. 1990). “Even on a short-term basis, it is
 not acceptable to rely on drugs to the exclusion of other methods
 to treat people with behavior problems.” Id. at 1188. 

It is a substantial departure from professional standards to
 rely routinely on seclusion and restraint rather than behavior
 techniques, such as social reinforcement, to control aggressive
 behavior. Id. at 1189. Seclusion and restraint should only be
 used as a last resort. Id.; Davis v. Hubbard, 506 F. Supp. 915,
 943 (W.D. Ohio 1980). Further, professional judgment should be
 exercised on a case-by-case basis regarding the most appropriate


- 6 ­
setting in which individual patients should be placed. See,
 e.g., Thomas S., 902 F.2d at 254-55.

Additionally, patients in a psychiatric hospital have
 certain rights protected by federal statutory law. Specifically,
 the State must provide services and activities to patients at
 NWGRH that are consistent with Title XVIII and Title XIX of the
 Social Security Act and their implementing regulations. See
 42 U.S.C. §§ 1395 to 1395b-10 and 1396 to 1396w-1; 42 C.F.R.
 §§ 482-483 (listing program requirements for participating in
 Medicare and Medicaid). Furthermore, the State must take
 reasonable steps to ensure that patients with limited English
 proficiency and sensory deficiencies are provided with meaningful
 access to programs and services. See Title VI of the Civil
 Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7; 45 C.F.R.
 § 80.3; Americans with Disabilities Act, 42 U.S.C.
 §§ 12132-12134.

Furthermore, Georgia must provide services to qualified
 individuals with disabilities in the most integrated setting
 appropriate to their needs. Title II of the Americans with
 Disabilities Act, 42 U.S.C. § 12132 (“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”), and its
 implementing regulations, 28 C.F.R. § 35.130(d)(“A public entity
 shall administer services, programs, and activities in the most
 integrated setting appropriate to the needs of qualified
 individuals with disabilities”); see Olmstead, 527 U.S. at 607
 (holding that states are required to provide community-based
 treatment for persons with mental disabilities when the State’s
 treatment professionals determine that such placement is
 appropriate, the affected persons do not oppose such treatment,
 and the placement can be reasonably accommodated, taking into
 account the resources available to the State and the needs of
 others with mental disabilities). 

III. FINDINGS

Significant and wide-ranging deficiencies exist in NWGRH’s
 provision of care. Certain conditions and services at NWGRH
 substantially depart from generally accepted professional
 standards and violate the constitutional and federal statutory
 rights of patients who reside there. In particular, we find that
 NWGRH: (1) fails to ensure the reasonable safety of its
 patients; (2) fails to provide adequate mental health treatment;
 (3) engages in the inappropriate use of seclusion and restraints;


- 7 ­
(4) fails to provide adequate medical care; (5) fails to provide
 adequate services to populations with specialized needs; and
 (6) fails to provide adequate discharge planning to ensure
 placement in the most integrated setting. Many of these
 deficiencies stem from a system that does not have clear,
 specific standards of care or an adequate number of trained
 supervisory, professional, and direct care staff. 

A. NWGRH Does Not Adequately Protect Patients From Harm

Patients at NWGRH have a right to live in reasonable safety.
 See Youngberg, 457 U.S. at 315, 322. NWGRH fails to provide a
 living environment that complies with this constitutional
 mandate. Specifically, patients at NWGRH are subject to
 self-injurious behaviors that are not responded to appropriately,
 particularly suicide attempts, and to frequent patient assaults
 that often result in serious harm. The Facility’s ability to
 address this harm is hampered by inadequate incident and risk
 management, including deficient investigative practices.

1. Incidents at NWGRH Are Serious and Recurring

Our review of the incidents at NWGRH revealed that they are
 serious, recurring, and frequently result in grave harm. We
 highlight two areas where the problems are particularly acute:
 suicide ideation and attempts and patient aggression.

a. Suicidal Ideation and Attempts Are Not Addressed
 Appropriately

A significant number of patients are admitted to NWGRH for
 stabilization and protection because of suicidal ideation or
 attempts. We found a troubling number of incidents in which
 NWGRH failed to recognize signs of suicide risk and failed to
 take appropriate action. The following incidents illustrate the
 grave harm that has resulted from these failures:

• M.U.4
 was transferred to NWGRH as an emergency involuntary
 admission on March 31, 2006, having refused to take her
 medications at a community-based residential services
 provider. Her admitting diagnosis was paranoid
 schizophrenia, and she also reportedly had a history of

4
 To protect patients’ privacy, we identify them by
 initials other than their own. We will separately transmit to
 the State a schedule that cross-references the initials with
 patient names.


- 8 ­
auditory and visual hallucinations. Documentation from her
 admission indicates that she denied present hallucinations,
 but she also stated that she believed she was under
 investigation. The admitting documentation also indicates
 that she refused to answer whether she was suicidal. 
 Nevertheless, NWGRH placed her on routine observation. She
 was moved to a unit that evening. The next day, during room
 checks, M.U. was withdrawn, and NWGRH staff found her
 sitting on the floor of her room, rocking back and forth.
 That evening, when the unit was taken outside, M.U. climbed
 a tree and attempted to hang herself with her shoelaces.
 When that was unsuccessful, she dove head first out of the
 tree and died on impact. 

• S.T. was admitted to NWGRH in October 2006, and he was noted
 to have a history of self-mutilation and suicide attempts.
 On October 19, 2006, just two weeks after his admission,
 S.T. went into a bathroom without any staff present after a
 staff member had given him a razor for shaving. S.T.
 removed the blade from the razor and slit his throat from
 ear to ear, resulting in four deep lacerations. Notably,
 although S.P. was placed on one-to-one observation following
 the incident, he was not reassessed for his emotional
 stability or risk of harm, and no treatment or behavioral
 interventions were made or modified.

Our review also revealed a number of incidents in which NWGRH
 failed to take appropriate corrective actions after the risk of
 suicide became evident. These examples illustrate a failure to
 intervene adequately to prevent future incidents:

• M.P. has lived on the DSU since 2004 and has a history of
 depression. On May 4, 2007, a staff member asked M.P. about
 an injury on his head, and M.P. alleged that he had been
 pushed into the wall by another staff member, striking his
 head. NWGRH initiated an investigation, which concluded
 that the allegation could not be substantiated. During
 interviews conducted pursuant to the investigation, however,
 three staff members reported that M.P. had threatened to
 kill himself earlier that day and was hitting his head
 against the wall in the dining room and his bedroom. None
 of the three staff members reported the suicide threats or
 self-injurious behaviors before the investigation.
 Moreover, even though the investigation recommended that the
 staff be retrained on reporting of suicidal threats and
 self-injurious behaviors, no referral was made to M.P.’s
 interdisciplinary team to reassess his current suicide risk


- 9 ­
and to implement changes in his treatment and behavior
 plans.

• On June 16, 2007, D.I. attempted to strangle herself and was
 rushed to the emergency room. We found no evidence that
 this suicide attempt was reported or reviewed as required by
 NWGRH and State policies and generally accepted professional
 standards. Nor could we find any evidence that an
 investigation was conducted of the incident or that any
 corrective actions were taken. 

b. Patient Aggression Is Not Controlled

Patient aggression is not adequately controlled at NWGRH.
 We found numerous instances in which patient-on-patient assaults
 resulted in serious injury to the victim, including fractures,
 lacerations, and head wounds, as the following examples indicate:

• A patient attacked K.Z. on September 25, 2007, and K.Z.
 suffered a laceration on his forehead that required sutures
 to close. On September 5, 2007, just 20 days earlier, a
 patient attacked K.Z., resulting in a cut above K.Z.’s right
 eye that also required sutures.

• In another assault in September 2007, a patient attacked
 A.W., fracturing his nose.

• On August 31, 2007, M.E. fractured his finger during a fight
 with another patient.

• Also on August 31, 2007, S.K. needed sutures to repair his
 left eyelid after an assault by another patient.

• Similarly, on August 23, 2007, E.Y. required sutures to
 close a cut on his left eyelid due to an assault. Five
 months earlier, on April 9, 2007, a patient attacked E.Y.,
 and he sustained cuts to his face that required sutures.

• On July 3, 2007, a patient attacked K.I., resulting in cuts
 and bruises on K.I.’s scalp and left eyebrow and hearing
 loss in his left ear.

• When being assaulted by another patient on May 3, 2007, P.L.
 suffered a cut to the back of his head that needed sutures.

• On April 29, 2007, a patient assaulted K.R., and K.R. needed
 sutures to close the cut on his lip.


- 10 ­
• A patient pushed K.H. to the floor on March 10, 2007, and
 K.H. hit his head, necessitating stitches to close the
 wound.

• On October 28, 2006, a patient hit C.D., fracturing his
 jawbone bilaterally.

• L.F. needed sutures to close a large wound to his scalp
 following an assault by another patient on October 1, 2006.

These examples also demonstrate the disturbing patterns we
 found in the patient-on-patient assaults, including repeat
 victims and units where patient aggression is particularly
 uncontrolled. E.Y. was attacked in both April and August 2007,
 resulting in significant lacerations, and K.Z. was attacked twice
 in September 2007, suffering similar injuries. Moreover, the two
 attacks on K.Z. both occurred on Unit 410, the same unit on which
 A.W. was assaulted, also in the month of September 2007. The
 repeated and significant level of violence on the units suggests
 a fundamental failure to address the root causes of patients’
 aggression and demonstrates a failure to intervene adequately to
 prevent future incidents.

2. NWGRH Provides Inadequate Incident and Risk Management

To protect its patients in accordance with generally
 accepted professional standards, NWGRH should have in place an
 incident and risk management system that helps to prevent
 incidents and ensures appropriate corrective action when
 incidents do occur. An effective incident and risk management
 system depends on: (1) accurate data collection and reporting;
 (2) thorough investigations; (3) identification of actual or
 potential risks of harm, including the tracking and trending of
 data; and (4) implementation and monitoring of effective
 corrective and/or preventive actions. NWGRH’s policies and
 procedures indicate that NWGRH has developed incident and risk
 management protocols, including incident reporting protocols,
 that are consistent with generally accepted professional
 standards. Unfortunately, these protocols are not consistently
 implemented at NWGRH, and the actual incident and risk management
 system substantially departs from generally accepted professional
 standards. Specifically, NWGRH fails to report incidents in a
 consistent and timely fashion. Moreover, NWGRH fails to identify
 risks and to implement corrective actions, and performs
 inadequate investigations. As a result, patients are routinely
 exposed to actual and potential harm, as indicated previously.


- 11 ­
a. Incident Reporting Is Incomplete and Untimely

The first necessary step to address harm like that at NWGRH
 is to ensure complete, accurate, and timely incident reporting.
 If incidents are not reported properly, NWGRH’s ability to
 respond to harm or the potential for harm on both individual and
 systemic bases is significantly diminished. Our review found
 that incidents are frequently not reported in a timely manner
 and, in some instances, are never reported. These deficiencies
 expose NWGRH patients to harm, as the following examples
 demonstrate:

• D.J.’s attempted suicide, discussed above, was not reported
 or reviewed as required by NWGRH and State policies. As a
 result, no investigation was initiated and no corrective
 actions were implemented, increasing the likelihood that
 such an incident could recur.

• On September 9, 2007, a staff member noticed a large bruise
 on U.M.’s shoulder but did not report it, in violation of
 policy. Later that day, a second staff member noticed the
 bruise but did not report it, also violating policy. On the
 morning of September 10, 2007, a third staff member noticed
 the bruise but did not report it, violating reporting
 policies yet again. It was not until early in the afternoon
 of September 10, 2007, that a staff member noticed the
 bruise and reported it as required by policy. U.M. was
 diagnosed with a fractured left clavicle, and the
 investigation into the cause of the fracture revealed the
 three staff members’ failure to report their observations. 

• Our review of witness statements and progress notes dated
 August 10, 2007, revealed that O.N. had assaulted other
 patients every day for a week, but NWGRH’s aggregate
 incident report data erroneously indicated that O.N. had not
 had an incident of aggression since May 14, 2007.

• On July 11, 2007, T.C. was allegedly unnecessarily and
 improperly restrained on the admissions unit. NWGRH did not
 report this incident to the Georgia Division of Mental
 Health, Developmental Disabilities, and Addictive Diseases
 (“MHDDAD”) for five days, contrary to State policy.


- 12 ­
• K.D., a patient with developmental disabilities, has a
 history of silent aspiration, dysphagia,5
 and
 “handmouthing,” where she places her hands in her mouth as a
 soothing mechanism. At approximately 4:30 p.m. on
 April 14, 2007, K.D. began exhibiting signs that she was
 choking. These signs continued and became so severe that at
 6:00 p.m., the physician ordered increased supervision,
 vital sign measurements every two hours, and restricted her
 diet to ice chips. It was not until shortly after
 8:00 p.m., however, when K.D. began to cough and gag
 repeatedly, that a staff member reported to the nurse that
 at approximately 4:00 p.m., when K.D. was moved from her bed
 to her wheelchair, a few broken hair barrettes were observed
 on her sheets. K.D. was immediately sent to a local
 hospital for observation, and was readmitted to the local
 hospital twice over the following two days for aspiration
 pneumonia. X-rays revealed a metallic object in her gastric
 area, and at least two broken barrettes were removed during
 surgery. The failure to immediately report the broken
 barrettes on K.D.’s bed is troubling, especially given the
 level of harm suffered. More troubling, however, is that
 this incident was never reported as the ingestion of
 inedible objects, known as “pica,” and was thus not included
 in the Facility’s aggregate data on pica incidents.
 Moreover, a safety plan addressing this risk was not
 completed until June 2007, nearly two months after the
 incident took place.

• U.N. is a patient with a significant history of choking,
 aspiration, and pica. On February 10, 2007, a NWGRH staff
 member left U.N. unattended during breakfast. When the
 staff member returned, she noted that U.N. had food on his
 face, but the paper cup holding the food was missing. At
 9 a.m., a nurse attempted to give U.N. his medications, but
 he repeatedly spit them out. When the nurse inquired
 whether U.N. had eaten his breakfast, the staff reported
 that he had not eaten well and spilled his tray. It was not
 until the nurse asked to see U.N.’s tray and inquired about
 the cup that the staff member reported that the cup was
 missing. U.N. was placed on close observation, and was
 eventually sent to the local hospital. After returning
 briefly to NWGRH, U.N. began vomiting and was returned to
 the hospital. NWGRH and the local hospital both concluded
 that U.N.’s symptoms were due to the ingestion of the cup. 

5
 Dysphagia is the medical term for difficulty in
 swallowing.


- 13 ­
The failure to report the missing cup immediately, given
 U.N.’s history of pica, placed him at significant risk of
 harm.

Without reliable and timely data regarding incidents and
 injuries, NWGRH is incapable of responding appropriately to
 prevent future harm. Moreover, NWGRH has repeatedly been put on
 notice of its failure to report incidents, and to report
 incidents in a timely manner, by the State itself. The State’s
 own investigative findings and corrective action recommendations,
 made by MHDDAD, consistently note these failures, and yet they
 persist:

• On March 21, 2007, the State recommended that a staff member
 receive additional training on the reporting of incidents,
 and also receive counseling regarding her fears of
 retaliation if she reported incidents.

• On March 28, 2007, the State required NWGRH to submit a Plan
 of Correction describing the steps NWGRH would take to
 ensure that incidents are reported in a timely manner.

• On May 7, 2007, the State required NWGRH to submit a
 Corrective Action Plan describing the steps NWGRH would take
 to retrain staff members on reporting of critical incidents,
 and particularly allegations of abuse.

• On May 16, 2007, the State reported that an allegation of
 abuse was not reported promptly in violation of procedure.
 Because this allegation was not timely reported, procedures
 for immediately removing staff from client contact while an
 investigation was conducted were not followed.

• On May 31, 2007, the State reported that NWGRH staff failed
 to report a suicide threat.

• In an August 13, 2007, report, the State observed that
 allegations of physical abuse were not reported, and that
 when they were reported, it was not in a timely manner.
 According to the report: “This is a repeat recommendation
 to NWGRH. This issue was most recently noted as a concern
 by this investigator in a report dated June 22, 2007.”

NWGRH’s failure to report incidents and injuries in a consistent
 and timely manner, especially after it has been notified of this
 failure repeatedly by the State, substantially departs from
 generally accepted professional standards.


- 14 ­
b. Risk of Harm Is Not Identified and Sufficient
 Preventive Actions Are Not Taken 

Incident management focuses on the collection and
 aggregation of data that are meaningful to protect an individual
 from harm, while risk management focuses on identifying actual or
 potential harm from that data and taking timely action to prevent
 the harm from occurring or recurring. Generally accepted
 professional standards dictate that a facility’s risk management
 program: (1) identify actual or potential risks of harm based on
 historical data, diagnoses, and co-occurring conditions;
 (2) develop timely and appropriate interventions designed to
 reduce or eliminate the risks of harm; and (3) monitor the
 efficacy of the interventions and modify them as necessary in
 response to further data. NWGRH’s risk management program fails
 to meet these standards.

As an initial matter, NWGRH fails to identify actual or
 potential risks of harm through analysis of historical data. For
 example, more than half of NWGRH’s patients identified as having
 pica behaviors in 2007 reside on one unit. In 2007, these six
 patients ingested batteries, buttons, paper clips, crayons, and
 cleaning fluid. These patients have been treated at the local
 hospital on at least four occasions after ingesting an inedible
 object. Despite the potential for harm, during our visit to this
 unit we observed that numerous objects, including objects similar
 to those ingested, were easily accessible to the patients. Most
 troubling, we observed one patient at risk for pica attempting to
 obtain an item that easily could have been swallowed.

NWGRH also fails to implement appropriate interventions and
 corrective actions in a timely manner, as demonstrated by the
 following examples:

• On August 3, 2007, S.Q. eloped from his unit and was later
 discovered outside another building on campus. His
 interdisciplinary team was assigned to address this issue,
 but no corrective action had been taken by the time of our
 tour on October 29, 2007, nearly three months later.

• On July 23, 2007, F.L. fell when a staff member attempted to
 transfer him to a wheelchair. We found no record that the
 staff member had been trained on proper transfer techniques
 as of October 29, 2007.

• On July 6, 2007, S.L. fell during a transfer from his
 wheelchair to the bathing trolley, but corrective actions


- 15 ­
were not completed until September 11, 2007, more than two
 months later.

• On June 25, 2007, K.K. eloped from the same unit that S.Q.
 eloped from later in the summer. The unit leader was
 required to address the failures in supervision that
 permitted K.K. to elope and to ensure that all staff
 understood their supervisory responsibilities. These
 corrective actions were not recorded as complete until
 August 10, 2007, a week after K.K. eloped again, and a week
 after S.Q.’s elopement from the same unit.

The failure to identify patients at risk of harm and to
 complete corrective action plans in a timely manner jeopardizes
 NWGRH’s ability to protect patients from harm, and is a
 substantial departure from generally accepted professional
 standards.

c. Investigative Practices Are Inadequate

Generally accepted professional standards dictate that
 facilities like NWGRH investigate serious incidents such as
 alleged abuse and neglect, serious injury, attempted suicide, and
 death. During the investigation, evidence should be
 systematically identified, collected, preserved, analyzed, and
 presented. Investigators should attempt to determine the
 underlying cause of the incident by, among other things,
 reviewing staff’s adherence to programmatic requirements such as
 policies and procedures. The investigative report should set
 forth the evidence considered, including all interviews conducted
 and documents reviewed, and it should clearly state the
 conclusions reached and the reasons for those conclusions.

The investigative process at NWGRH substantially departs
 from these standards. We found instances in which serious
 incidents and injuries, including attempted suicide, were not
 investigated at all. In addition, we also found instances in
 which critical evidence was not collected or considered,
 significantly diminishing the quality of the investigations.
 Failing to collect and consider significant relevant information
 is a substantial departure from generally accepted professional
 standards in performing investigations. The following
 investigations each illustrate these failures:

• As previously discussed, U.M. suffered a fractured clavicle
 on September 9, 2007. The investigative report into this
 incident does not include critical relevant information. In
 particular, it does not include any account of the events


- 16 ­
that may have led to this injury. Moreover, there is no
 evidence that the investigator questioned U.M. about his
 injury or how it occurred. Ultimately, the report never
 determines what caused U.M.’s fractured clavicle.

• After M.U.’s suicide, discussed previously, NWGRH undertook
 a Root Cause Analysis (“RCA”) to determine whether any
 measures could have been taken to prevent it. The RCA
 concluded that all policies and procedures had been
 followed, and staffing ratios were sufficient. The RCA
 bases this conclusion, in part, on its finding that neither
 the admitting hospital nor M.U. herself clearly indicated
 her suicidal ideation. The RCA does not appear to consider,
 however, that M.U. was admitted under the code for
 “Dangerous to Self Due to Mental Illness,” and that this was
 the reason for her involuntary admission to the hospital and
 NWGRH. This status suggests that significant precautions
 should have been, but were not, taken.

• On February 2, 2007, N.L. alleged that she was struck by a
 staff member. There is no evidence in the investigative
 report, however, indicating that N.L. was examined by a
 nurse or other medical professional to determine whether she
 had an injury consistent with her allegation. Without
 considering this potentially critical evidence, the report
 instead concludes that the allegation could not be
 substantiated based on the staff member’s denial and the
 supporting statement of another staff member.

Our review of the investigation into N.L.’s abuse allegation
 also revealed other troubling practices that substantially depart
 from generally accepted professional standards, and these
 practices unfortunately characterized other investigations we
 reviewed at NWGRH as well. First, the investigative process was
 not initiated in a timely manner. Although the alleged abuse
 occurred on February 2, 2007, the investigation did not commence
 until February 15, 2007, nearly two weeks later. The failure to
 investigate promptly impairs the collection and preservation of
 evidence and delays the implementation of corrective action that
 may prevent future harm. Second, the investigation included
 certain inconsistencies that raise doubts about its accuracy and
 thoroughness. The investigative report is dated
 February 21, 2007, but it includes a staff interview that is
 stated as having occurred on March 1, 2007. It is troubling that
 an apparently relevant staff interview may not have been
 conducted until after the report’s conclusions were already
 reached. 


- 17 ­
B. Mental Health Care Is Inadequate

NWGRH patients have a constitutional right to receive
 adequate mental health treatment. Donaldson, 493 F.2d at 520.
 The mental health services at NWGRH, however, substantially
 depart from generally accepted professional standards.
 Psychiatric practices are marked by inadequate assessments and
 diagnoses, which in turn, lead to inadequate treatment planning
 and delivery of inadequate treatments and interventions.
 Contrary to generally accepted professional standards, treatment
 planning is not person-centered, individualized, or integrated
 across disciplines. Psychology services, physical, nutritional
 and speech therapy, and behavioral management services are
 particularly deficient. Medication practices and emergency
 services are inadequate. Each of these failures affects the
 quality and effectiveness of the patients’ treatment plans, which
 are the foundation of an adequate mental health care program.
 Many of these deficiencies directly threaten patients’ physical
 health and well being as well. Moreover, as was also the case at
 GRHA, NWGRH’s failure to treat a patient’s mental health needs
 while hospitalized has frequently led to failed discharges and to
 repeated hospitalizations.

In accordance with generally accepted professional
 standards, each patient should have a comprehensive,
 individualized treatment plan based on the integrated assessment
 of mental health professionals. Treatment plans should define
 the goals of treatment, the interventions to be used in achieving
 these goals, and the manner in which staff are to coordinate
 treatment. The treatment plans should also detail an integrated
 plan designed to promote the patient’s stabilization and/or
 rehabilitation so that the patient may return to the community.
 Taken together, treatment plans constitute the standard against
 which a facility evaluates the effectiveness of the services it
 offers. In this sense, they are critical to a hospital’s ongoing
 efforts at quality improvement. 

Treatment planning must incorporate a logical sequence of
 interdisciplinary care: (1) the formulation of an accurate
 diagnosis based on adequate assessments conducted by all relevant
 clinical disciplines; (2) the use of the diagnosis to identify
 the fundamental problems that are caused by the diagnosed
 illness; (3) the development of specific, measurable, and
 individualized goals that are designed to ameliorate problems and
 promote functional independence; (4) the identification of
 appropriate interventions that will guide staff as they work
 toward those goals; and (5) ongoing assessments and, as
 warranted, revision of the treatment plan. To be effective, the


- 18 ­
treatment plan should be comprehensive and include input from
 various disciplines, under the active direction and guidance of
 the treating psychiatrist who is responsible for ensuring that
 relevant and critical patient information is obtained and
 considered.

NWGRH treatment planning substantially departs from these
 standards. From initial diagnosis and assessment to the
 development of skills and functioning necessary for recovery and
 community reintegration, NWGRH’s treatment planning fails to meet
 the fundamental requirements for the treatment and rehabilitation
 of its patients. As a result, patients’ actual illnesses are not
 properly assessed and diagnosed; patients are not receiving
 appropriate treatment and rehabilitation; patients are at risk of
 harm from themselves and others; patients are subject to
 excessive use of restrictive treatment interventions; and
 patients are at increased risk of relapses and repeat
 hospitalizations. Further, patients’ options for discharge are
 significantly limited, resulting in unnecessarily prolonged
 hospitalization, and, with respect to forensic patients,
 prolonged involvement in the criminal justice system. 

1. Psychiatric Assessments and Diagnoses Are Inadequate

Mental health treatment begins at the time of admission. An
 admissions work-up is an integral part of the course of
 hospitalization; it establishes the initial diagnosis and begins
 the course of treatment for patients as they begin their hospital
 stay. We noted many deficiencies in the initial assessments we
 reviewed. Assessments were often not timely or thorough. Fatal
 harm can result from a failed assessment: M.U., discussed
 previously, received no suicide risk assessment before being
 given access to a courtyard area where she killed herself. 

An effective treatment plan begins with a diagnosis that is
 clinically justified. If mental health professionals do not
 correctly identify a patient’s psychiatric condition before
 developing a treatment plan, the treatment interventions will not
 be aligned with the patient’s needs. Thorough assessments are
 necessary to identify presenting problems and strengths and needs
 of the patient, and to identify potential risks from aggressive
 or self-injurious behavior, potential victimization, substance
 abuse, or certain medical conditions. Adequate assessments are
 essential to the development of a person-centered plan that can
 direct rehabilitation, treatment, and care while the patient
 resides in the hospital, and to formulate an adequate discharge
 and transition plan for the patient’s return to the community.
 Psychiatry, medicine, nursing, psychology, and social work should


- 19 ­
each contribute to the assessment in accord with generally
 accepted professional standards. 

At a minimum, an initial assessment should include: (1) an
 adequate review of presenting symptoms and the patient’s mental
 status; (2) a provisional diagnosis and differential diagnosis
 that provides a decision tree by which diagnosis and treatment
 options may be clarified over time; and (3) a plan of care that
 includes specific medication and/or other interventions to ensure
 the safety of the patient and others. As more information
 becomes available, the assessment must be updated to include:
 (1) a history of the presenting symptoms from the patient based
 on the patient’s level of functioning and from collateral
 sources, as available; (2) the progression of the symptoms and
 setting within which the symptoms occur; (3) the relevant
 historical findings regarding the patient’s biopsychosocial
 functioning; (4) a review and critical examination of diagnostic
 conclusions made in the past in light of new information; (5) a
 review of medical and neurological problems, if any, and their
 impact on the current status of symptoms and treatment; and (6) a
 complete mental status examination. 

In many cases, initial assessments at NWGRH are incomplete.
 The majority of records reviewed at NWGRH lack assessments of
 social, vocational, functional, educational, and independent
 living skills. They also uniformly fail to assess history of
 community living and prior placements. These inadequacies are
 especially troubling for patients with a history of failed
 discharges and frequent re-admissions. Each of these
 deficiencies in assessment creates a serious impediment to the
 treatment team’s ability to identify the services and supports a
 patient may need while in the Facility and upon discharge. An
 example of inadequate assessments includes:

• E.G., who has a diagnosis of schizoaffective disorder and
 mild mental retardation, resided at NWGRH from April through
 August 2007. Eighteen previous placements in different
 foster homes were disrupted by her aggressive behaviors.
 NWGRH did not perform a functional assessment to identify
 possible reasons for these behaviors or to develop a
 behavioral plan. E.G. received 31 PRN6
 medications during
 this admission, with one only two days before her discharge,
 and continued to have incidents of aggression and property
 destruction. Her treatment plan was not adjusted to address

6
 PRN, or pro re nata, medications are dispensed on an
 “as needed” basis. 


- 20 ­
her aggressive behavior. Thus, one of the primary problems
 presented at admission – E.G.’s aggressive and maladaptive
 behavior – was not assessed, not treated, and appeared not
 to be resolved at discharge. 

NWGRH patients are routinely given tentative and unspecified
 diagnoses (including “rule out” and “not otherwise specified”
 (“NOS”) diagnoses) as a result of these flawed assessments. We
 found virtually no evidence of further assessments or
 observations to finalize the diagnoses. Because different
 psychiatric conditions can have similar signs and symptoms, it is
 important for mental health professionals to address NOS
 diagnoses to ensure that a patient’s treatment is appropriate for
 his or her actual mental health needs. At NWGRH, however, NOS
 diagnoses persist for months and over multiple admissions, with
 no sign of further diagnostic testing or refinement. The
 prevalent use of the “NOS” diagnosis reflects an inadequate
 diagnostic evaluation process and contributes to the lack of
 specificity in treatment plans. For example:

• N.Y. has had numerous diagnoses over the course of 16
 admissions, and his stays are characterized by frequent
 agitation and clinical instability. There is no evidence
 that the Facility conducted psychological testing to clarify
 his diagnosis and, thus, target treatments more effectively.

• K.R. has a diagnosis of psychosis NOS, and her treatment has
 not changed significantly over the course of more than 50
 admissions. 

NWGRH’s failures in the preliminary stages of assessment and
 diagnosis, as well as its failure to reassess patients to refine
 diagnoses, substantially depart from generally accepted
 professional standards. Patients receive or are at risk of
 receiving treatment that, at best, is unnecessary and, at worst,
 may actually exacerbate their mental illnesses. The result is
 that the actual mental illness is often unaddressed, placing
 patients at risk of prolonged institutionalization and/or
 repeated admissions to the Facility. 

2. Treatment Planning Is Inadequate

a. Treatment Plans Are Not Individualized or Patient
 Centered and Do Not Address Patients’ Needs

Treatment plans, which at NWGRH are called Individual
 Recovery Plans (“IRP”) or Individual Habilitation Plans (“IHP”),
 are, for the most part, inadequate and fall far short of


- 21 ­
generally accepted professional standards. They are frequently
 minimalist, generic, and reflect neither the true scope of
 patients’ needs nor an integrated, coherent plan for treatment.
 Surveys by the Centers for Medicare and Medicaid Services
 documented incomplete assessments that result in incomplete and
 generic treatment interventions. See e.g., March 3, 2004 CMS
 Survey (treatment plans for 11 of 11 patients lacked
 comprehensive and individualized interventions). When the
 treatment team fails to identify or address all of a patient’s
 presenting concerns, that patient is deprived of treatment for
 those concerns, and frequently subject to a longer period of
 institutionalization or to a repeat admission when those
 conditions or behaviors become barriers to successful community
 integration. Even worse, treatment plans at NWGRH often reflect
 contradictory plans of care. Treatment plans do not reflect
 interdisciplinary planning and corroboration, and contradictory
 assessments from different disciplines are neither addressed nor
 reconciled. Examples of deficient IRPs include: 

• K.J. was re-admitted in July of 2007, one month after his
 last discharge. His diagnoses included depressive disorder
 and cocaine dependence. He received no treatment for
 substance abuse while in the Facility, and no referral to
 substance abuse services in the community. He was homeless
 at the time of this admission, and was discharged to a
 hotel. 

• T.C., on her 44th admission to NWGRH, had been at the
 Facility for six weeks at the time of our visit. She had
 not participated in any active treatment, and had not been
 referred for a behavioral assessment, yet received PRN
 medications for disruptive behavior 13 times in a month. 

• M.L. has a diagnosis of depressive disorder and anxiety
 disorder and was receiving two psychotropic medications,
 Buspar and Lexapro, presumably to address these disorders,
 yet his behavioral support plan (“BSP”) does not address any
 behaviors or symptoms associated with depression or anxiety. 

• F.C.’s communication assessment notes that he is considered
 “nonverbal,” yet his behavior plan suggests that he “request
 social attention by speaking to others.” 

• K.I.’s annual communication assessment recommended no formal
 communication training; at the same time, his behavioral
 assessment found that his challenging behaviors served to
 elicit attention and gain access to desired activities,
 which are maladaptive means of communicating.


- 22 ­
As discussed supra, Section III.B.1, inadequate assessments
 that fail to discern the reasons for multiple re-admissions, and
 treatment plans that fail to address relevant clinical
 presentations in a specific, individualized, strengths-based, and
 recovery-oriented manner have resulted in repeated failures of
 treatment at NWGRH and the subsequent failure to succeed in the
 community. Multiple re-admissions are extraordinarily costly to
 patients and the system. Frequent relapses may cause a
 progressive worsening of a patient’s mental illness and make the
 patient more intractable to treatment. Multiple re-admissions
 are also costly to the system of care, resulting in multiple
 assessments, care plans, and other treatments, where one adequate
 provision of these services would have sufficed. 

Treatment plans at NWGRH often provide no clear alternatives
 if the initial, vague interventions prove ineffective, leaving
 staff with few alternatives to restraint, seclusion, and PRN
 medications to address challenging behaviors. We typically found
 generic treatment objectives for patients with psychotic
 diagnoses and substance abuse diagnoses. The recurrence of 
 near-identical goals and objectives for so many patients makes
 evident the non-individualized nature of NWGRH’s treatment plans.

NWGRH does not provide sufficient treatment programming to
 patients, as noted by the State’s own audit, which found “a fair
 amount of patient inactivity and sleeping on the units.” NWGRH
 also fails to intervene when patients do not participate in even
 the limited number of treatment groups available. For example:

• F.O. attended none of the 35 groups scheduled in one week;
 his treatment team took no notice. 

• B.T. attended no activities according to his QMRP quarterly
 review, although he was credited with 100% attendance and
 engagement levels, contradictory findings that apparently
 were not challenged by his treatment team.

• T.C., noted above, did not participate in active treatment
 for the first six weeks of her current admission, which was
 her 44th. 

The lack of meaningful treatment and habilitation services
 for patients on the DSU, where the majority of the patients may
 need behavioral supports, is particularly problematic. A sense
 of staff complacency pervades the DSU, where patients’ limited
 skills or challenging behaviors seemingly are accepted by staff
 as unchangeable, and is reflected in the inadequate treatment


- 23 ­
plans and interventions for the patients of these units. For
 example:

• N.C.’s person-centered planning meeting was held without
 her, even though N.C. is described as a “very effective
 communicator via verbal productions” with excellent
 receptive language skills. The record also shows no
 participation by any family member, advocate, guardian, or
 direct care staff who knows N.C.

• None of T.M.’s training goals are related to the choices
 identified in her ISP, which is not surprising, given that
 neither T.M. nor any direct care staff participated in her
 person-centered planning meeting.

• K.I.’s plan includes only two training goals: one, within
 two years to be able to point to his pill and state its
 purpose; and two, within three years to fill out a mock
 check. The expectation of such slow and limited progress
 indicates unreasonably low expectations for K.I. Moreover,
 this plan ignores K.I.’s clear need for communication
 training to provide appropriate ways to express his
 preferences. His behavioral assessment hypothesizes that
 his challenging behaviors are associated with attempts to
 access preferred activities, that is, to communicate what
 he’d like to do. 

The State’s own audit also noted a concern with low hours of
 active treatment and patient interaction on the DSU. NWGRH’s
 failure to provide adequate treatment to DSU patients is
 exacerbated by clinically outdated and unsupportable opinions
 about patients with developmental disabilities. For example,
 G.L.’s diagnoses include “behavior problems secondary to mental
 retardation.” To conclude that challenging behaviors are an
 inherent and unchangeable part of the condition of mental
 retardation is a gross deviation from generally accepted
 professional standards, and suggests a lack of training and
 competency regarding current practices. Because of this
 commonly-held view at NWGRH, these behaviors are not addressed,
 patients are deprived of effective treatment, and these behaviors
 become a justification for continued institutionalization. This
 is an egregious violation of these patients’ rights.

b. Failure to Address Repeated Admissions

High rates of re-admission at the Georgia Regional Hospitals
 are well documented. Audits commissioned by the Governor,
 including the 2005 Georgia Mental Health Gap Analysis study,


- 24 ­
concluded that a 30-day readmission rate 55 percent greater than
 the national average contributed to overburdening the State’s
 Psychiatric Hospitals. These conditions persist.

The work of admitting patients and providing the crisis
 stabilization necessary for new admissions leaves an already
 overburdened system with fewer staff resources to provide
 treatment planning, interventions, and supervision for patients.
 Moreover, frequent re-admissions are extremely detrimental to
 these individual patients, disrupting their recoveries and their
 lives in the community. Frequent relapses and re-admissions may
 progressively worsen a patient’s serious and persistent mental
 illness and make patients more intractable to treatment. Thus,
 generally accepted professional standards demand that treatment
 teams routinely examine and address issues that cause patients to
 be admitted repeatedly to the hospital. However, in multiple
 cases of repeated admissions, we saw no evidence that the
 treatment team examined or addressed the factors that led to
 re-admission and altered the patient’s treatment from a previous
 stay at the hospital. For example:

• K.T. was admitted for the fourth time on October 27, 2007,
 and was discharged, still grossly psychotic, two days later.
 His previous admission was just a month earlier, when he was
 discharged after just three days to a homeless shelter. At
 the time of that third admission, his team expressed the
 “hope” of identifying permanent housing such as a group
 home. But he was nonetheless discharged to a shelter
 without the supports of a group home, an unsuitable
 discharge that led to his fourth admission. 

• K.J., discussed above, was also re-admitted within one month
 of his prior discharge. Despite diagnoses of depressive
 disorder and cocaine dependence, he received no treatment
 for substance abuse while institutionalized, and no referral
 to substance abuse services in the community. 

• T.C., on her 44th admission to NWGRH, had not participated
 in any active treatment, and had not been referred for a
 behavioral assessment six weeks into her current
 hospitalization, despite frequent episodes of disruptive
 behavior and resulting restraint and administration of PRN
 medications.

• N.Y. was hospitalized for the 7th time in 2007 alone, yet
 his files contained no clinical information from prior
 hospitalizations to guide the team in understanding the


- 25 ­
course of his illness and possible reasons for his repeated
 admissions. 

c. Treatment for Substance Abuse Is Inadequate

There is a stark lack of treatment for patients with
 co-occurring diagnoses of substance abuse. It was evident in a
 significant number of records that this issue was one of the most
 serious impediments to community placement and part of the reason
 for frequent re-admissions to the hospital. In addition to lack
 of treatment in the Facility, we did not find a single referral
 for community substance abuse treatment in the discharge plans we
 reviewed for patients with a substance abuse problem. Among the
 more egregious examples were:

• N.T., with diagnoses of schizoaffective disorder and opiate
 dependence, reported using heroin for the past nine months.
 She was discharged following her 19th admission to the home
 of a family friend.

• K.U., with diagnoses of psychotic disorder, mood disorder,
 alcohol dependence, cocaine dependence, opiate abuse, and
 alcohol withdrawal, reported that he lived in an environment
 that was “drug infested.” He was nonetheless discharged
 after ten days with no connection to substance abuse
 treatment.

The lack of substance abuse programming and its deleterious
 effects on patients at NWGRH is well known to hospital and State
 administrators. CMS cited NWGRH on February 7, 2007, for failing
 to provide adequate discharge planning in the case of a patient
 discharged with a bus ticket, a boxed lunch, and the address of
 an out-of-state shelter, but no provision for follow-up
 psychiatric care or substance abuse programming. We found
 numerous instances of similarly deficient discharge planning in
 our visit more than eight months later. In a pattern that echoes
 the failure of accountability throughout this system, the
 Facility’s Chief of Social Work was unfamiliar with the plan of
 correction submitted to CMS that promised monthly audits of
 discharge plans overseen by the Chief of Social Work. 

3. Behavioral Management Services Are Inadequate 

a. Behavioral Services Are Not Timely

Behavioral support plans (“BSPs”) at NWGRH are largely
 nonexistent, and those that exist are largely inadequate and not
 well integrated into overall treatment. Many patients who were


- 26 ­
repeatedly subject to seclusion, restraint, and/or administration
 of PRN medications – measures that should be reserved for
 emergency crisis intervention – have no behavioral supports in
 place. This is an egregious departure from generally accepted
 professional standards. Routinely, even when a treatment team
 makes a recommendation for a BSP, these plans are not developed
 and implemented in a timely manner. Examples of failure to
 provide, or of inordinate delay in providing behavior management
 services include:

• N.Y., on his 7th admission in 2007, was subject to repeated
 PRNs and restraint, but had no behavior supports
 consistently in place.

• K.Q., whose challenging behaviors include rectal digging,
 aggression, and agitated movement (which his treatment team
 characterizes as “buck dancing”), waited nine months from
 referral to approval of a BSP.

• O.N., whose challenging behaviors include self-injury and
 physical and verbal aggression, showed marked increases in
 problematic behaviors in May, June, and August 2007, while
 his BSP remained “under development.” The BSP had not been
 implemented by the time of our tour in late October.

• T.C. received multiple PRN medications and restraints due to
 agitation and aggression over a six-week period, but
 attended no active treatment and received no counseling; at
 the time of our tour, she had not been referred for an
 individual behavioral intervention.

• Q.M.’s treatment notes indicate that she does not understand
 her treatment and is confused and disorganized. She had
 received frequent PRNs during her year-long hospitalization,
 yet the hospital had not provided her with a functional
 assessment or behavioral treatment plan. We saw no evidence
 that her treatment plan had been adjusted despite her poor
 response to the current plan. 

• D.D. was administered emergency medications at least nine
 times during the four months he waited for NWGRH to develop
 a BSP.

• A behavior specialist prepared a BSP for G.L. in May 2006,
 but it was not approved and implemented for more than five
 months. During this wait, G.L. continued to harm himself
 frequently. 


- 27 ­
• K.C. was admitted in January 2007, in part, because of
 unmanageable behaviors at home. While at the Facility, he
 continued to engage in self-injurious behaviors and physical
 aggression, behaviors that were noted by his treatment team
 in its monthly reviews. Despite continued maladaptive
 behaviors, and significant spikes in these behaviors in May
 and August, no behavior support plan was developed for more
 than nine months. 

b. Behavioral Plans Are Not Modified Appropriately

For those few patients with behavioral management plans,
 treatment teams routinely fail to revise those plans,
 notwithstanding evidence of continuing or escalating problem
 behaviors. For example:

• G.L., whose BSP was delayed for more than five months in
 2006, continued to engage in self-injurious behavior
 frequently in during the first quarter of 2007.
 Nonetheless, his QMRP Quarterly review for that quarter
 recommended “[n]o changes at this time.” His substantially
 increased aggression and episodes of taking others’ food in
 the following quarter drew the same response from his team:
 “Continues current programing . . . [N]o changes at this
 time.” 

• K.Y. showed an onset of physical aggression and increased
 verbal aggression in the first two quarters of 2006, yet his
 BSP was not revised; his current BSP states that he “has
 displayed neither maladaptive behaviors nor depressive or
 psychotic symptoms since his admission . . .,” an assertion
 clearly inconsistent with this record. 

NWGRH has too few skilled psychologists and behavioral
 specialists on staff to develop and monitor adequate behavior
 management plans for the many patients whose behaviors suggest a
 compelling need for such plans. At the time of our visit, the
 Chief of Psychology’s caseload included 110 patients on the
 mental health units, plus 105 patients on the DSU. Generally
 accepted professional standards would require at least five more
 psychologists to service these units. Two forensic psychologists
 were responsible for 67 forensic patients and all necessary court
 evaluations. A total of six behavior specialists were also
 assigned to the units. Generally accepted professional standards
 require the work of the behavior specialists to be supervised by
 a doctoral-level psychologist – adding to the psychologists’
 already-impossible workload. 


- 28 ­
c. Behavioral Plans Substantially Depart From
 Generally Accepted Professional Standards

The few behavioral assessments in place at NWGRH
 substantially depart from generally accepted professional
 standards. In some cases, patients with behavior plans had no
 functional assessments of the problematic behaviors to support
 the behavior plan. In others, the functional analysis was
 deficient in one or more significant ways: many failed to
 hypothesize the function of the challenging behavior; did not
 consider antecedent, environmental, or health factors that
 influence a behavior; did not contain sufficient baseline data;
 failed to identify target or replacement behaviors; and suggested
 inappropriate and even dangerous replacement behaviors. These
 inadequacies in behavioral assessments undermine all subsequent
 behavioral treatment planning. Examples include:

• L.Q.’s BSP suggests that, as a replacement behavior for his
 aggression, L.Q. should stand up, move around, and “feel[]
 around the walls” as an indication that he wishes to go for
 a walk. L.Q. is legally blind. The suggested replacement
 behavior to “feel[] around the walls” is demeaning and
 deviates grossly from generally accepted professional
 standards. 

• L.Q.’s BSP also suggests that rectal digging may be an
 appropriate self-stimulatory behavior to engage in when he
 is in a private place. Encouraging as a replacement
 behavior an activity that can easily lead to injury or
 illness evidences questionable clinical judgment. 

• BSPs for Y.B., K.C., and G.L. include the planned use of
 manual holds or restraints, a gross departure from generally
 accepted professional standards. 

NWGRH fails also to collect sufficient behavioral data on
 which to base treatment decisions, and staff told us that no data
 at all are collected on replacement behaviors. Generally
 accepted professional standards require a mental health
 professional to analyze objective data concerning symptoms or
 behavior, and not merely anecdotal information. The lack of
 accurate behavioral data hinders accurate evaluation of the
 progress, or lack of progress, made by patients. Accordingly,
 actions by treatment teams are often based on inaccurate and
 limited data, leaving teams at risk of making decisions that are
 not clinically indicated. Examples include: 


- 29 ­
• D.I. has a behavior plan to reduce his intrusiveness, and
 his prior treatment plan included a communication goal to
 “verbally express wants, needs, and feelings with
 intelligibility.” His new plan discontinues the
 communication goal without addressing whether he had made
 any progress. Improved communication skills could help
 reduce maladaptive, intrusive behaviors, and the team’s
 decision to drop that goal does not appear to be based on
 objective data.

• O.N.’s BSP cites baseline data from a previous admission in
 2005-06, and includes no data from his current admission,
 even though he had been at the Facility for at least four
 months in 2007. 

• The replacement behaviors on F.C.’s BSP are identical in
 2005 and 2007, although there are no data to determine
 whether he has made any progress in acquiring replacement
 behaviors. The data on his target behaviors, however varies
 widely, suggesting that whether or not he acquired
 replacement behaviors, they were not serving the purpose of
 reducing maladaptive target behaviors.

Behavioral data in individual charts is not current, and
 appears typically to be updated only annually. The failure to
 implement timely behavioral supports, to evaluate and revise
 behavior plans as clinically indicated, and to collect objective
 data with which to support clinical decisions are all egregious
 departures from generally accepted professional standards.

C. Seclusion and Restraints Are Used Inappropriately

The right to be free from undue bodily restraint is the core
 of the liberty protected from arbitrary governmental action by
 the Due Process Clause. Youngberg, 457 U.S. at 316. Thus, the
 State may not subject patients of NWGRH to seclusion and
 restraint “except when and to the extent professional judgment
 deems this necessary to assure [reasonable] safety [for all
 residents and personnel within the institution] or to provide
 needed training.” Id. at 324. Generally accepted professional
 standards require that seclusion and restraints: (1) will be
 used only when persons pose an immediate safety threat to
 themselves or others and after a hierarchy of less restrictive
 measures has been exhausted; (2) will not be used in the absence
 of, or as an alternative to, active treatment, as punishment, or
 for the convenience of staff; (3) will not be used as a
 behavioral intervention; and (4) will be terminated as soon as
 the person is no longer a danger to himself or others. NWGRH’s


- 30 ­
use of seclusion and restraints, including medication used as a
 chemical restraint, substantially departs from these standards
 and exposes patients to excessive and unnecessarily restrictive
 interventions. 

Given the deleterious effects of seclusion and restraint,
 and the fact that these measures restrict patients’ rights and
 their ability to receive appropriate care, generally accepted
 professional standards require that institutions like NWGRH
 reduce their use of seclusion/restraint by addressing behavior
 problems with less intrusive and restrictive strategies. We
 found that, while NWGRH has reduced the use of physical restraint
 and seclusion — which is commendable — the use of chemical
 restraint remains high, and when physical restraint and seclusion
 are used, the time periods that patients are subject to them is
 excessive. 

Throughout the Facility, staff effort is focused primarily
 on controlling patients rather than treating them and replacing
 their maladaptive behaviors. On the adult mental health units,
 for example, only two of the 110 patients had behavior plans,
 despite many instances of challenging behaviors. Untrained staff
 lack the skills necessary to handle the large number of highly
 challenged patients who are dangerous to themselves or others or
 who have specialized needs. Not surprisingly, we found that in
 these difficult circumstances, staff resort to seclusion,
 restraint, and, secondarily, PRN medication, in lieu of
 appropriate treatment. Restrictive interventions clearly are
 used in place of active treatment, as punishment, and for the
 convenience of staff at NWGRH, contrary to generally accepted
 professional standards. 

Use of antipsychotic medications for behavior control is
 chemical restraint. We found numerous instances where
 medications are being used as a form of behavior control, rather
 than as form of treatment for symptoms of psychosis. In many of
 these instances, the patient had no behavioral treatment plan, or
 the existing behavior plan was not utilized sufficiently. For
 example, N.Y. has been given multiple PRN medications for
 behavior control, including Ativan, Zyprexa, Thorazine, Geodon,
 and Haldol. N.Y. did not have a behavioral treatment plan in
 place when he was given any of these medications. The use of
 medications as chemical restraint, especially when there is no
 behavioral treatment plan in place, is a substantial departure
 from generally accepted professional standards. Moreover, the
 use of medications for these purposes has a significant potential
 for harm because of the side effects linked to exposure to
 antipsychotic medications, including irreversible motor


- 31 ­
disorders, such as tardive dyskinesia, and the inability to
 control levels of glucose and lipids in the blood.

Furthermore, in a significant departure from generally
 accepted professional standards, NWGRH does not ensure that
 seclusion and restraints, including manual holds and PRNs, are
 used only as a last resort and not in the place of active
 treatment, as punishment, or as a convenience for staff. In some
 BSPs, such as those of Y.B., K.C., and G.L., restraints are
 written right into the program. 

Our review also noted that, while the use of physical
 restraints and seclusion at NWGRH is relatively low compared to
 the other State Psychiatric Hospitals we visited, the duration of
 the restraint or seclusion is often extended. The following uses
 of mechanical restraint illustrate their extended use at NWGRH:

• On September 14, 2007, L.C. was mechanically restrained for
 four hours; the day before, L.C. was also mechanically
 restrained for four hours. On September 11, 2007, just two
 days previous, L.C. was mechanically restrained for eight
 hours, while the day before she was mechanically restrained
 for nearly three and a half hours; 

• On September 13, 2007, N.G. was mechanically restrained for
 nearly three hours;

• K.R. was mechanically restrained for three and a half hours
 on August 25, 2007; he had previously been restrained for
 the same length of time on April 28, 2007;

• On May 13, 2007, E.G. was mechanically restrained for over
 two and a half hours; she had previously been restrained for
 three hours and 15 minutes on April 17, 2007;

• T.I. was mechanically restrained on April 28, 2007, for four
 hours;

• On April 15, 2007, B.M. was mechanically restrained for
 nearly seven and a half hours; and

• On April 4, 2007, O.D. was mechanically restrained for
 nearly ten hours.

As with mechanical restraints, use of seclusion at NWGRH,
 when used, is often extended:


- 32 ­
• On September 10, 2007, L.C. was held in seclusion for four
 hours; as noted above, over the next four days L.C. also
 spent nearly 20 hours in mechanical restraints;

• On July 4, 2007, K.N. was held in seclusion for seven hours
 and 45 minutes; and

• On June 30, 2007, S.N. was held in seclusion for seven
 hours.

The extended use of mechanical restraints and seclusion at
 NWGRH suggests that they are not being terminated as soon as the
 person is no longer a danger to himself or others. The failure
 to terminate the use of mechanical restraints or seclusion when
 the person is no longer a danger is a substantial departure from
 generally accepted professional standards.

In addition, contrary to generally accepted practices, we
 found insufficient review of restrictive programs by the
 Facility’s human rights committee, and inappropriate exclusion
 from treatment as a punishment for problem behaviors. Examples
 include:

• S.K. was restricted from day treatment for one week because
 he tried to kiss a staff member.

• U.W. was restricted from day programs because he brought
 cigarettes back to the unit.

• B.R.’s behavior contract includes “24 hour social isolation”
 and “24 hours media restriction” that do not appear to have
 been approved by the human rights committee. 

D. Medical Care Is Inadequate

Although NWGRH patients are entitled to receive adequate
 health care, see Youngberg, 457 U.S. at 315, the Facility’s basic
 medical care and nursing services substantially depart from
 generally accepted professional standards. NWGRH, like GRHA,
 fails to provide basic medical care and has inadequate clinical
 oversight, pharmacological practices, medication administration,
 infection control, physical and nutritional management, emergency
 preparedness, and staffing. Our findings regarding medical care
 echo many of those previously made in the State’s own survey by
 the Medical College of Georgia.


- 33 ­
1. Inadequate Clinical Oversight

The major role of clinical oversight in any institution is
 to ensure that generally accepted professional standards of
 practice and accountability are maintained. These standards
 require that nursing departments have a nursing and medical
 quality assurance program. Such a program provides internal
 monitoring for a nursing department and permits a facility to
 identify its problematic areas and correct them. A regular
 review of provided services also allows the nursing department to
 ensure that the services it purports to provide are those that it
 actually provides. 

A quality assurance program for nursing consists of a number
 of monitoring instruments that measure the quality of care and
 services that are provided by the nursing department. These data
 are then regularly reviewed, analyzed, tracked, and trended. For
 areas that yield a low level of compliance, a plan of correction
 should be developed and implemented to increase the compliance
 rates for areas that are found to be deficient. Monitoring
 permits nursing management and facility administration to be
 aware and responsive to the needs of a department. It also
 assists nursing management in determining what types of
 interventions are needed when problem areas are identified and in
 tracking outcomes after interventions have been initiated. 

NWGRH’s nursing department does not have a program that
 monitors, tracks, identifies trends, and recognizes when a
 particular system is in need of corrective action. The data
 provided in response to our request for all nursing monitoring
 data, which was sparse, was not able to be interpreted in any
 meaningful way. Predictably, then, NWGRH’s nursing services have
 several problematic areas that have not been identified by
 nursing leadership and, as a result, poor nursing practices have
 not been addressed. 

Interviews with nursing management and staff confirmed that
 monitoring, if it is done at all, is done informally and
 inconsistently. Indeed, the lack of monitoring is disturbing
 given that the Medical College of Georgia survey identified
 problems with NWGRH’s nursing care, but no actions have been
 taken to address these problems.

2. Failure to Provide Basic Medical Care

Effective medical services depend on timely, thorough
 assessments and monitoring. Generally accepted professional
 standards require nursing assessments to be designed to collect


- 34 ­
specific, individual data to assist the team and the patient with
 case formulation, diagnosis, and treatment planning. The nursing
 assessments we reviewed at NWGRH did not meet these standards. 
 At best, the nursing assessments were superficial and had little
 to no clinical relevance. Based on our review, NWGRH does not
 have a system in place ensuring that nursing assessments and
 documentation are adequate, complete, and accurate. For example,
 upon her admission, E.Y. was noted to be at risk for falls. The
 nurse’s note indicates that, on the same day as her admission,
 E.Y. fell in her room and complained of leg pain. The following
 day she fell twice, and a nurse noted she had a knot on the back
 of her head. Her assessments following the falls, to the extent
 they were performed, do not indicate whether any vitals signs
 were taken, which leg was injured, or whether a neurological
 check was conducted. E.Y. had numerous other falls that lacked
 adequate nursing assessments — she fell a total of six times in
 one month without any proactive interventions except being placed
 in a bed with side rails. E.Y. experienced a dramatic change in
 her mental status following one fall: she became drowsy, her
 speech became slurred and disconnected, and she required
 hospitalization for a procedure to relieve pressure on her brain.
 In short, E.Y. was not appropriately assessed by nursing to
 determine her status after each fall. E.Y.’s treatment plan
 indicates that physical therapy could have been consulted for her
 risk of falls, but no such consult was initiated. The failure of
 basic nursing care and lack of interventions to address her risk
 of falls resulted in significant harm to E.Y.

The nursing assessments for O.G. were similarly incomplete.
 O.G. was sent to the emergency room for dehydration,
 malnourishment, and medical instability. But the nursing notes
 stated only that he was sent to the emergency room for evaluation
 — no symptoms or vital signs were recorded. The note upon his
 return to NWGRH included orders to encourage oral intake; no
 further assessment of his status was included in his record. 
 D.J. was also transported to an emergency room without an
 adequate nursing assessment. In her case, the nurse’s note
 indicated that D.J. had symptoms suggesting a possible stroke or
 infarction.7 But there is no indication of when these symptoms
 began, and no vital signs were taken or neurological checks
 conducted before D.J.’s transportation to the emergency room.
 The nursing assessment, as with the cases described above, was
 incomplete and unacceptable. 

7
 Infarction is a condition in which tissue dies because
 its blood supply is blocked.


- 35 ­
We also reviewed numerous assessments lacking information
 required for basic medical care. For example, the psychiatric
 nursing assessment for K.H. presented only a generic picture of
 his condition at admission. The only written description of him
 noted that he was “agitated” and that he was “cooperative at
 times” and “uncooperative at times.” While the nurse indicated
 that he had Hepatitis C and tachycardia,8
 his problem list did
 not include either of these issues. The psychiatric nursing
 assessment for another patient, D.O., was incomplete. Although
 the nurse noted that the patient had stomach surgery resulting
 from a gunshot wound to the abdomen, the only related
 documentation was vague: “some bowel and kidney complications.”
 D.O. was taken to the hospital for severe diarrhea and nausea
 several days after this incomplete assessment. Similarly, while
 the nursing assessment for M.N. indicated that she had
 hypertension, cellulitis, and a urinary tract infection, it
 failed to indicate that she was significantly obese. Such an
 omission places her at medical risk and is also a factor in
 selection of an appropriate psychotropic medicine. The omission
 extended to treatment: M.N.’s treatment plan did not address her
 obesity in any way. Thus, the nursing assessments at NWGRH are
 inadequate; they do not facilitate sound clinical judgments in
 planning appropriate interventions and place the patients
 residing there at significant risk for harm.

The health care plans at NWGRH are similarly inadequate.
 The purpose of a health care plan is to guide therapeutic
 interventions systematically, document progress, and achieve the
 expected individual outcomes. These plans should be
 individualized and should identify priorities for care and
 interventions that are consistent with current generally accepted
 professional standards. The numerous plans we reviewed all had
 essentially identical goals, objectives, and recommendations,
 reflecting a lack of individualization and no identification of
 priorities in a given patient’s care. The listed interventions
 provided no guidance regarding treatment modalities, and the
 plans failed to include proactive interventions addressing risk
 factors.

We reviewed a sample of health care plans for NWGRH patients
 identified as at risk for aspiration. None of the health care
 plans included aspiration as a health risk. Proactive
 interventions, such as obtaining lung sounds and oxygen
 saturation to determine changes in health status, were absent in

8
 Tachycardia is the medical term for a rapid heart rate,
 usually defined as over 100 beats per minute.


- 36 ­
the health care plans for these at-risk patients. Instead, the
 health care plans we reviewed included the generic statement
 “monitor and maintain good physical health over the next 12
 months.” The harm caused by non-individualized treatment can be
 seen in the following examples:

• E.D. was sent to the hospital because of coffee ground
 emesis,9
 respiratory congestion, and possible pneumonia. 
 E.D. is also at risk for aspiration. But his health care
 plan did not include these health issues or related
 interventions to assist staff in providing care. 

• D.H. was diagnosed with the infectious disease
 methicillin-resistant staph (“MRSA”) and is also at high
 risk for aspiration due to gastro-esophageal reflux disease.
 His health care plan did not include either of these major
 health issues nor did it include regular assessment of his
 health status. The generic quality of his health care plan
 provides no guidance to staff.

• T.H. has been identified as at high risk for aspiration.
 His health care plan did not include this risk and therefore
 does not provide for interventions to prevent aspiration or
 assess any potential status change. T.H. has been sent to
 the hospital three times in three months for episodes of
 difficulty breathing, rhonchi,10
 lethargy, and pneumonia. 
 Despite repeated hospital visits, his health care plan
 requires no proactive assessments or interventions.

• N.N. has similarly been identified as at high risk for
 aspiration and has no health care plan that addresses this
 risk. She too has endured repeated trips to the hospital
 for episodes of dehydration, fever, lethargy, and possible
 aspiration pneumonia.

• K.D. has been sent to the hospital twice for aspiration
 pneumonia and choking; her health care plan did not include
 aspiration as a risk.

• D.M. was sent to the hospital four times in two weeks: the
 first time for fever, cough, and respiratory distress, the
 second time for respiratory distress and symptoms of

9
 Coffee ground emesis is the medical term for vomit that
 contains blood.

10
 A coarse rattling sound usually caused by the
 accumulation of mucus or other material in a bronchial tube.


- 37 ­
pneumonia, and the third and fourth times for pneumonia.
 Her health care plan did not include her risk for aspiration
 or any preventative interventions.

• R.H. was sent to the hospital for shortness of breath,
 cough, and pneumonia, but R.H.’s health care plan did not
 include her risk for aspiration or any preventative
 interventions.

Health care plans at NWGRH are alarmingly inadequate. They
 provide no clinical template for health care and fail to identify
 and address significant health issues so that positive outcomes
 may be achieved. Many patients suffered acute health issues;
 their health care plans failed to address these issues, and were
 not modified to prevent recurrences. The health care plans at
 NWGRH depart substantially from generally accepted professional
 standards, resulting in harm to patients.

3. Pharmacology Practices are Inadequate

Medication practices at NWGRH substantially depart from
 generally accepted professional standards in several critical
 respects. Contrary to accepted practice, pharmacological
 treatments are frequently the only interventions used to manage
 symptoms and behaviors, as discussed in Section III.C, supra. 
 Many patients receive psychotropic medication – or multiple
 medications – for the purpose of sedation or to manage behavior,
 without underlying behavioral support plans. N.Y. and E.G.,
 discussed previously, are two egregious examples of patients who
 received multiple medications for disruptive behavior without any
 behavioral support plans in place. 

We also found medication prescription practices that are
 inconsistent with generally accepted professional standards.
 Polypharmacy, the practice of prescribing multiple medications to
 address the same indications, is widespread, and many records
 lack appropriate justification for this practice. For example,
 K.U., K.R., and K.N. were each receiving five such medications
 without sufficient clinical justification. Moreover, a number of
 medications were prescribed (and in some instances, not
 prescribed) in a manner inconsistent with generally accepted
 professional standards. For example, we observed orders for the
 emergency administration of Depakote and serotonin-specific
 re-uptake inhibitors, although these medications take weeks to be
 effective, and are thus inconsistent with emergency dosing.
 These practices substantially depart from generally accepted
 professional standards in pharmacology.


- 38 ­
4. Inadequate Medication Administration

Generally accepted professional standards dictate that
 medications be administered according to nursing procedures that
 ensure that the correct patient receives the prescribed dosage of
 the prescribed medication by the prescribed route at the
 prescribed time. Moreover, generally accepted professional
 standards require that nursing staff properly complete Medication
 Administration Records (“MARs”). Among other things, MARs list
 current medications, dosages, and times that medications are to
 be administered. Proper and timely completion of the MARs is
 fundamental to maintaining patient safety and reducing the
 likelihood of medication errors and adverse drug effects.
 Failure to follow accepted MARs protocol may result in patients
 not receiving medications or receiving them too frequently, which
 could result in serious harm.

Our review of the MARs revealed numerous instances in which
 NWGRH administered medicine in manner that deviates substantially
 from generally accepted professional standards. Specifically, we
 found MARs that had blanks and MARS that were signed before
 medication was actually administered or signed in bulk after all
 medication had been administered. We also found missing
 signatures in the Narcotics Logs, where the on-coming and
 off-going nurses are to sign after the narcotics are counted
 together. Because narcotics have powerful and potentially
 addictive effects and are often classified as controlled
 substances, NWGRH’s failure to account properly for their
 administration is deeply troubling. Also troubling is the
 failure of the nursing staff to understand their duty to report
 the errors indicated above as medication variances. These
 errors, and the failure of nurses to record them as variances,
 indicate both a gross underreporting of medication variations at
 NWGRH and a serious lack of supervision of medication
 administration. 

5. Inadequate Infection Control

Generally accepted professional standards require adequate
 infection control. The components of an adequate infection
 control program fall into two general categories: surveillance
 and reporting; and control and prevention. 

Surveillance and reporting include data collection on
 infections acquired in the community before admission to NWGRH
 and on infections acquired while residing at the Facility. These
 data can be used to establish baseline infection rates for
 different units to determine problem areas or areas where


- 39 ­
in-service education could lower infection rates. This
 information can also be used to identify outbreaks of infections
 rapidly so that concentrated efforts can be initiated to prevent
 the spread of the infection.

In addition, Facility personnel should be monitored and data
 analyzed for possible exposure to, or as the source of,
 communicable and infectious diseases. The environment itself
 must be monitored as a source of potential infection hazards,
 especially during outbreaks of infection. Further, the Facility
 must report all communicable diseases to the appropriate health
 authorities in the State. 

Control and prevention activities are of equal importance in
 an infection control program. In general, developing policies
 and procedures, staff training, patient educational programs
 regarding communicable diseases, and regular committee review of
 infection control activities are components of a infection
 control program that complies with generally accepted
 professional standards. 

NWGRH’s infection control program fails to meet these
 standards. NWGRH focuses on data collection at the expense of
 adequate treatment of patients with infectious diseases. The
 Infection Control Nurse has virtually no connection with the unit
 staff actually caring for patients with infectious diseases; the
 Infection Control Nurse does not review, and plays no role in
 developing, health care plans for these patients.
 Unsurprisingly, we found numerous patients with infectious
 diseases who had no provision in their respective health care
 plans for interventions related to their infectious diseases:

• One patient, E.E., was noted to have heavy growth of MRSA.
 Her medical record did not, however, reflect any treatment
 plan addressing either the care of the lesion or the need to
 take precautions related to it. The record did include a
 nurse’s note that a call had been placed to the Infection
 Control Nurse to discuss MRSA compliance, but the
 documentation indicated that there was no answer. We found
 no other documentation indicating that the infection control
 program played any role in ensuring that E.E. received
 proper treatment or that other patients in her unit were
 protected.

• The admission notes for K.H. indicated that he had
 Hepatitis C, but his medical record included no treatment
 plan for this issue. As a result, K.H. was not provided
 with any type of education regarding transmission of the


- 40 ­
disease or needed life-style changes that may have led to a
 long-term positive outcome. Further, we found no indication
 that the infection control program had any involvement with
 his case.

• Echoing the case of K.H., we found seven patients residing
 in the same unit and included in the infection control list
 as having Hepatitis B. None of their health care plans
 mention Hepatitis B, nor did we find any indication that the
 infection control program was involved in their cases.

NWGRH’s infection control data collection efforts have no
 accompanying analysis regarding possible unit-level transmission
 of infectious disease. Moreover, NWGRH has not performed an
 analysis to demonstrate the efficacy, or lack thereof, of the
 activities and interventions of the infection control program.
 Our review found no data addressing employee health issues or
 patients who refuse tuberculin skin tests or immunizations.
 Further, there is no system in place ensuring that infection
 control data collected throughout the Facility is reliable, and
 data reliability from the units is problematic. The
 unreliability of infection data and the limited use to which it
 is put demonstrates that the infection control program at NWGRH
 is inadequate. Consequently, patients are at a high risk for
 harm. 

6. Inadequate Physical and Nutritional Management

Generally accepted professional standards dictate that an
 effective physical and nutritional management system include:
 the identification of patients who are at risk for
 aspiration/choking and the assignment of an appropriate risk
 level; the identification of patients’ triggers or symptoms of
 aspiration; adequate assessments of safe positioning for the
 24-hour day; clinically-justified techniques, based on the
 assessment, that ensure safety during daily activities; the
 development and implementation of a plan containing specific
 instructions for the techniques determined by the assessment,
 with clinical justifications; the provision of competency-based
 training to all staff assisting these patients regarding
 individualized dysphagia plans; the development of a method to
 monitor, track, and document clinically objective data, including
 triggers, lung sounds, oxygen saturations, and vital signs, to
 determine if treatment interventions are effective or in need of
 modification; the development of a mechanism for reporting
 triggers that generate an immediate response from a physical
 nutritional management team (“PNMT”) to re-evaluate the plan and
 its implementation; development of an overall monitoring system


- 41 ­
conducted by members of the PNMT to ensure that plans are being
 consistently implemented and that this monitoring is most intense
 for those with the highest level of risk; and assurance that this
 system is effective so that it may be transferred into the
 community.

NWGRH patients residing at the DSU who are at risk for
 aspiration are not provided adequate assessments, interventions,
 proactive monitoring of symptoms, and regular treatment plan
 monitoring, which places them at significant risk for harm.
 NWGRH does not provide these patients with physical and
 nutritional management care consistent with generally accepted
 professional standards.

None of NWGRH’s various disciplines, including nursing,
 physical therapy, occupational therapy, speech pathology, and
 dietary management, have the requisite specialized training or
 expertise in treating patients with physical and nutritional
 management needs. NWGRH fails to identify patients who have
 physical or nutritional management issues adequately, and the
 draft policies NWGRH has developed in this area fall far short of
 addressing the individualized needs of persons at risk for
 aspiration.

NWGRH’s failures in training its staff and in identifying
 patients having physical and nutritional management issues
 includes patients facing serious risks of harm from aspiration
 and choking. In our review, we found no written criteria that
 adequately identified patients at risk for aspiration and
 choking. When asked, staff members were unable to articulate how
 to identify patients at risk for aspiration. Even for those
 patients who had been identified as at risk, NWGRH did not assess
 the degree of risk. Patients with recurrent episodes of
 aspiration pneumonia would, for example, normally be considered
 at the highest level of risk, but NWGRH made no such designation.
 As a result, NWGRH does not focus its most intensive, proactive
 treatments and interventions on the patients who need them.
 Indeed, there is little difference in the clinical care and
 treatment plans for patients who had no designated risk of
 aspiration and for patients who had a significant risk of
 aspiration. 

For example, NWGRH designated four patients living on one
 unit as being at risk for aspiration. Our review of the
 alternative positioning for all of these patients showed that
 each patient had the same three generic alternative positions.
 None had clinical assessments indicating that these positions
 were evaluated as safe. Nor did we find follow-up assessments


- 42 ­
indicating that these positions were safe. The alternative
 positions for these patients may therefore actually increase
 their risk for aspiration; we found no clinical data indicating
 otherwise. This lack of safety assessments extended to other
 high-risk activities, including oral care, bathing, dental
 appointments, and during sleep.

The mealtime plans we reviewed also lacked information to
 guide staff in feeding patients designated as at risk for
 aspiration. Mealtime plans for tube-fed patients — a group at
 the highest risk for aspiration — contained no special
 instructions for positioning during feeding or how long after the
 feeding the patient should remain in a specific upright position.
 Moreover, staff assigned to assist patients with meals and other
 activities did not receive competency-based training on carrying
 out the requirements of mealtime plans or treatment plans. The
 widespread absence of information guiding the treatment of
 at-risk patients is therefore compounded by the absence of any
 system to ensure that staff are competent in adequately executing
 treatment and mealtime instructions.

We observed numerous instances of inadequate staff
 assistance during mealtimes. Staff did not follow any procedure
 in keeping patients upright after meals. Our mealtime
 observations also showed that patients in wheelchairs were not in
 correct body alignment, thereby increasing their risk of
 aspiration. We observed a number of these patients coughing and
 gagging throughout their meals. Staff members stated that such
 coughing and gagging was a regular occurrence, and further
 indicated that they respond by feeding the patients slowly. This
 is not what we observed. Instead, we observed staff members
 responding to coughing and gagging by encouraging more food and
 fluids, a practice which increases the risk of aspiration.
 Furthermore, staff members did not respond to episodes of
 coughing or gagging by calling a nurse for assessment before
 continuing a meal. Nor did staff document these episodes of
 coughing and gagging — known triggers or symptoms of
 aspiration — in the patients’ charts.

The failure to document episodes of coughing and gagging at
 mealtimes is symptomatic of NWGRH’s deficiencies regarding
 aspiration risk. NWGRH does not identify individualized symptoms
 of aspiration or triggers to be monitored for patients who are at
 risk for aspiration. Consequently, no clinical data exists that
 would permit the PNMT team to evaluate the effectiveness of its
 interventions, except an actual episode of pneumonia, aspiration
 pneumonia, or respiratory distress. Without clinical data
 gathering that would enable early intervention to prevent an


- 43 ­
episode of aspiration or aspiration pneumonia, NWGRH operates
 reactively, resulting in harm.

We observed such reactive treatment in the case of N.T., who
 displayed chronic symptoms of aspiration that were inadequately
 addressed. N.T. had been on a pureed diet with liquids thickened
 to a honey consistency for over a year. Interviews with staff
 indicated that N.T. had significant difficulties in swallowing,
 and would cough, hold food in his mouth, and refuse food during
 mealtimes. His record contained only a bare statement that his
 swallowing function had declined, but no monitoring appears to
 have been conducted. N.T. eventually developed unstable vital
 signs and was sent to the community hospital, where he was
 diagnosed with aspiration pneumonia. Upon his return to NWGRH,
 all of his previous treatment plans were reinstated without
 review. NWGRH ultimately determined that the diet it had
 provided to N.T. for at least a year had been causing him to
 aspirate. He now receives nothing by mouth and is given all
 nourishment through a tube.

The example of N.T. also shows that NWGRH does not initiate
 24-hour dysphagia treatment plans even when an acute event, such
 as aspiration pneumonia, occurs. Such a plan should contain
 specific and individualized instructions and proactive
 interventions to address all activities during a patient’s
 24-hour day. But staff perception of N.T., as a result of their
 lack of training and expertise in dysphagia, is that he is no
 longer at risk of aspiration because he now has a tube. But N.T.
 does, in fact, remain at high risk for aspiration, a fact only
 partially reflected in the speech therapist’s note that N.T.
 “could remain at risk for aspiration.” N.T. continues to be at
 significant risk for harm.

N.T. is not the only patient at risk for harm due to the
 lack of safe, appropriate, and adequate interventions. Our
 review yielded a number of other examples:

• Y.O. has issues with weight loss and has had episodes of
 vomiting, difficulty in swallowing, coughing, and elevated
 temperatures. He has had several tests showing that he has
 a significant swallowing disorder and that he aspirates, but
 there has been no systematic tracking of his triggers for
 aspiration. He has not been given a treatment plan or
 intervention that adequately address his dysphagia and
 aspiration. Y.O. is therefore at risk for harm.

• N.N., a patient at risk for aspiration, was repeatedly sent
 to the emergency room for dehydration, fever, lethargy, and


- 44 ­
pneumonia. Staff members indicated that she coughs
 frequently during mealtime. Nevertheless, NWGRH does not
 regularly collect data indicating when she began to
 experience triggers or how often they occurred, nor were
 lung sounds and oxygen saturation levels regularly taken to
 note changes in her status. Without this data, NWGRH is not
 adequately monitoring her aspiration risk.

• D.M. is also at risk for aspiration. She has had repeated
 visits to the emergency room for fever, cough, respiratory
 distress, bronchitis, and pneumonia. NWGRH has failed to
 institute proactive interventions and a systematic review of
 her condition, despite her repeated visits to the emergency
 room.

The lack of effective response by NWGRH, even to repeated
 acute instances of illness, is demonstrated in three other
 patients at risk for aspiration that we reviewed, each of whom
 made repeated trips to the emergency room. K.D. was sent to the
 emergency room three times — twice on the same day — for choking,
 turning blue, and pneumonia. E.N. was sent four times with
 multiple seizures, medication toxicity due to dehydration,
 lethargy, and aspiration pneumonia. And T.H. was sent to the
 emergency room three times for difficulty breathing, rhonchi, and
 pneumonia.

These examples demonstrate that there is no system in place
 at NWGRH to ensure that patients at risk for aspiration are
 provided with safe, appropriate, and adequate treatment
 interventions. Patients with dysphagia who have experienced
 recurrent respiratory distress, pneumonia, or aspiration
 pneumonia are not comprehensively reevaluated to assess the
 appropriateness of the current treatment plan and to modify
 interventions when necessary. The failure to reassess these
 patients and to provide proactive interventions is a gross
 departure from generally accepted professional standards. These
 deficiencies have resulted in harm and continue to place patients
 with physical and nutritional issues at serious risk of harm.

7. Emergency Preparedness Is Inadequate

In accordance with generally accepted professional
 standards, all staff should be well-trained in emergency
 preparedness, aware of emergency materials and where they are
 located, and conduct sufficient practice codes to be able to
 perform adequately when confronted with an actual emergency.
 Appropriate emergency medical response also includes physical
 plant readiness. 


- 45 ­
NWGRH practices and procedures regarding emergency
 preparedness substantially depart from generally accepted
 professional standards. This deviation is well-illustrated by
 the medical emergency drills we reviewed, a significant number of
 which were failed drills. In several of the drills, there was an
 absence of leadership, as the first-arriving nurse did not take
 charge of the code. One drill continued for 14 minutes without a
 physician arriving, and the nursing manager was unable to find
 the site of the drill. These drills also featured a variety of
 improper practices, including improper use of the Automated
 External Defibrillator (“AED”), incorrect positioning of the
 victim, and an inability to perform CPR correctly. Indeed, a
 review of documentation for current staff members showed that 197
 employees had not been certified in CPR, while 146 held expired
 CPR certifications. NWGRH has no system in place to ensure that
 staff are properly trained and updated in CPR. Perhaps more
 egregiously, the nurse executive indicated that he was unaware
 that there were significant issues regarding drills. These
 repeated errors and lack of training place patients at the
 Facility at significant risk for harm.

These serious deficits in training exist throughout NWGRH’s
 emergency preparedness programs. For example, we observed nurses
 who did not know how to turn on oxygen tanks, despite emergency
 preparedness documentation indicating that they were completing
 this task daily. In once instance, we observed a nurse struggle
 to turn a tank on, ask another nurse for assistance, and, after
 several failed joint attempts, successfully turn the tank on only
 to discover that it was empty. The monitoring sheet for the
 oxygen tank, however, indicated that it was full. We found
 numerous other instances where oxygen tanks had not been checked
 appropriately, according to NWGRH’s own documentation. This
 pattern of unacceptable nursing practice was prevalent throughout
 the Facility.

Nor were nurses trained appropriately in testing suction
 machines or AED. Suction machine testing done by nurses was
 superficial, essentially demonstrating only that the suction
 machines could turn on rather than actually perform their
 intended function. Documentation indicated, however, that the
 suction machines were tested daily to ensure functionality.
 Nurses were unaware of when AED batteries should be changed to
 ensure functionality, and we did not find a single AED with
 documentation showing the installation date for its battery.
 Failures with respect to testing emergency equipment and
 documenting such testing extended to supervision by Nurse
 Managers. The managers did not observe staff checking emergency


- 46 ­
equipment, nor did they review the emergency equipment logs for
 accuracy. 

Poor preparedness and training in handling emergency code
 drills has significant ramifications for NWGRH’s response to
 actual emergency codes. Moreover, errors in that response are
 not likely to be corrected by NWGRH’s emergency code review
 process. Our review of actual codes showed the review process to
 be both incomplete and superficial. These reviews lacked
 important information related to the conduct of the code and,
 further, made no recommendations to improve conduct of future
 emergency codes. For example, in two separate codes, NWGRH’s
 official review indicated that the AED showed that no shock was
 necessary. But records from the code itself indicated that the
 AED had not actually been applied; application of the AED is
 necessary for the AED to show that no shock was necessary. The
 absence of any critical review of these emergency codes permits
 the deficient practices outlined above to continue. As such,
 NWGRH departs from generally accepted standards of practice both
 in the substance of its emergency preparedness and in its
 procedures for reviewing that preparedness.

8. Inadequate Staffing and Nursing Services

The deficiencies in medical and nursing care identified
 above are exacerbated by chronic staffing shortages. Generally
 accepted professional standards require facilities like NWGRH to
 have staff sufficient to provide nursing services that, at a
 minimum, protect patients from harm, ensure adequate and
 appropriate treatment, and prevent unnecessary and prolonged
 institutionalization. 

The current nurse executive at NWGRH admitted that
 recruitment and retention has been a major issue for the nursing
 department. He reported that NWGRH needed to fill 68 Registered
 Nurse vacancies and 46 Licensed Practical Nurse vacancies. 
 Further, according to the nurse executive, the nursing department
 was struggling to maintain minimum staffing ratios.
 Nevertheless, the nurse executive was unable to produce any
 meaningful data about which shifts and units had fallen below
 minimum staff ratios or departmental turnover rates. Shortages
 have also resulted in many units having inadequate nurse
 management. Despite the nurse executive’s evident awareness of
 the nursing shortage, we found no indication that a system had
 been established to review the effect of the shortage on clinical
 outcomes.


- 47 ­
Moreover, the State’s own 2007 survey by the Medical College
 of Georgia noted the nursing staff shortage and its potential
 effect on the services provided to patients at the NWGRH.
 NWGRH’s corrective action plan promised that staffing problems
 would be addressed, but the nursing executive was unable to
 articulate the safeguards that had been implemented to ensure
 safe practices during the current staffing shortage. Our review
 showed that a number of shifts at NWGRH fall below minimum
 staffing levels each week. The nursing executive reported that
 NWGRH was in the process of working on revising the policy for
 minimum staffing ratios, but he was unable to describe the model,
 or to produce any data or criteria, used in determining what
 would constitute adequate staffing levels. 

NWGRH’s failure to provide adequate nursing staff, along
 with the deficits in care and treatment that necessarily result
 from the critical and ongoing shortages at NWGRH, is a
 substantial departure from generally accepted professional
 standards.

E. Services to Populations with Specialized Needs Are
 Inadequate

1. Services to Patients with Limited English Proficiency
 Are Insufficient

Pursuant to Title VI of the Civil Rights Act of 1964,
 42 U.S.C. § 2000d et seq., and its implementing regulations,
 NWGRH is required to take reasonable steps to ensure meaningful
 access to their programs and activities by persons with limited
 English proficiency (“LEP”). See 45 C.F.R. Part 80 (Department
 of Health and Human Services regulations). Georgia’s Mental
 Health Gap Analysis in May 2005 identified glaring deficiencies
 in mental health services available to persons with hearing
 impairments or limited English proficiency. Although the State
 has adopted a Limited English Proficiency and Sensory Impaired
 Client Services Manual, we saw little evidence that the policies
 outlined in the Manual were followed. Examples include G.R.,
 whose record indicates that he was unable to receive adequate
 treatment and services because of his limited English language
 ability. U.M. also has extremely limited English language
 ability, which made it impossible for him to assist in the
 investigation of his unexplained injury – a broken clavicle. The
 language barrier thus was a barrier to his participation in
 treatment and to efforts to protect him from future harm. The
 records of two acutely psychotic patients, J.P. and O.G., state
 that they “refused” interpretation services, but do not evidence
 any attempt by the Facility to address these refusals, which


- 48 ­
effectively denied these patients psychiatric care. NWGRH’s
 failure to ensure that meaningful access to necessary services is
 being provided to persons with LEP violates federal law.

2. Services to Patients with Sensory Impairment
 Are Insufficient

Title II of the Americans with Disabilities Act prohibits
 discrimination against persons with disabilities in the provision
 of benefits and services. Patients with vision and hearing
 impairments receive inadequate services at NWGRH. For example,
 at the time of our visit, there was no vision specialist on
 staff, no Braille instruction, and no orientation or mobility
 instruction for patients who are legally blind. To the contrary,
 staff told us that the treatment team had been reluctant to
 provide P.C. with a cane typically used by persons with limited
 sight for fear that he would use it as a weapon. The treatment
 plan for, another patient, P.P., who is legally blind, encourages
 him to “feel around the walls” as the preferred method of
 communicating that he would like to go for a walk. R.D., who has
 a hearing impairment, has been at the Facility for nearly two
 years. At the time of our visit, her treatment team was starting
 to pursue hearing aides for her; reportedly she had destroyed
 some in the past. Although the audiologist recommended using
 sign language, no staff member on her unit can sign. These
 examples evidence a profound lack of attention to the needs of
 patients with hearing and vision loss. They also suggest that
 the State has taken no effective action to remedy deficiencies in
 services to persons with sensory impairments, although these
 deficiencies were clearly identified in the State’s own Mental
 Health Gap Analysis in 2005. These deficiencies violate federal
 law. 

F. Inadequate Discharge Planning and Placement in the Most
 Integrated Setting

Federal law requires that NWGRH actively pursue the timely
 discharge of patients to the most integrated, appropriate setting
 that is consistent with the patients’ needs. Olmstead, 527 U.S.
 at 607. Thus, at the time of admission and throughout a
 patient’s stay, NWGRH should: (1) identify, through professional
 assessments, the factors that likely will foster viable discharge
 for the patient; and (2) use these factors to drive treatment
 planning and intervention. Without clear and purposeful
 identification of such factors, patients will be denied
 rehabilitation and other services and supports that will help
 them acquire, develop, and/or enhance the skills necessary to
 function in a community setting.


- 49 ­
The NWGRH discharge planning process substantially departs
 from generally accepted professional standards. Futhermore,
 NWGRH fails to meet the discharge planning principles stated in
 its own policies. The State’s own audits of the “State of
 Georgia Behavioral Health System,” prepared for the Governor in
 2004 and 2005, identified egregious, systemic deficits in the
 coordination of care between NWGRH and the community. Based on
 our review of recent discharges from NWGRH, these same deficits
 persist. Specifically, we find that: (1) discharge plans are
 based on incomplete and inadequate assessments; (2) discharge
 planning services are not provided in accordance with NWGRH
 policies, although those policies are consistent with generally
 accepted professional standards; (3) inadequate coordination of
 care leads routinely to inappropriate discharges; and
 (4) discharge plans fail to address repeated readmissions.

1. Discharge Plans Are Based on Inadequate Assessments

Deficits in discharge planning begin with assessments upon
 admission. Complete and accurate assessments are essential to
 develop a treatment plan that can direct rehabilitation while in
 a facility and to form the basis for a viable discharge plan. In
 addition to the deficits in assessments discussed previously in
 this letter, the majority of charts we reviewed were missing
 assessments of social, vocational, functional, educational,
 self-care, and independent-living skills, particularly for those
 patients with short lengths of stay. The absence of information
 on critical aspects of functioning is a serious impediment to
 identifying the services and supports needed for these patients
 to transition successfully to community living. NWGRH fails to
 take advantage of available information regarding previous
 admissions, successful and unsuccessful treatments, and skills
 that needed to be developed to live successfully in the
 community. These failures greatly contribute to the high rate of
 recidivism at NWGRH.

As described previously, treatment teams at NWGRH routinely
 fail to adjust treatment plans even when objective signs show
 that the current plan is ineffective. Thus, patients do not
 receive supports and services to address problematic symptoms and
 behaviors that often disrupt community placements. The case of
 E.G., discussed previously, is one example. Her aggressive
 behaviors had disrupted 18 prior foster home placements, and the
 behaviors continued throughout her stay at NWGRH, requiring PRN
 medications 31 times, including just two days before her
 discharge. Despite this, there was no change in her treatment to
 address aggressive behavior. 


- 50 ­
2. Discharge Planning Services Are Not Provided in
 Accordance with NWGRH Policy

We found that, although NWGRH has a number of policies and
 procedures that articulate an adequate discharge planning and
 coordination of care process, in practice, these policies and
 procedures are not implemented. For example, NWGRH’s policy for
 discharge of patients to personal care homes, which are among the
 most frequent placements, require adequate discharge planning to
 ensure that the home is suitable to the individual’s needs. The
 procedures require the treatment team meeting to include a
 liaison from the Community Service Board (“CSB”), to develop a
 list of any specialized care recommendations, and facilitate a
 leave of absence pending discharge to the home in order to
 facilitate adjustment to the new home. We saw only one case in
 which the Facility’s discharge policies had been followed, for
 A.N. In every other discharge that we reviewed there was
 noncompliance: no contact with the CSB, no specialized care
 recommendations, and no placement of patients on extended leave
 to the new home pending discharge. This noncompliance is
 particularly troubling because many patients discharged from
 NWGRH have major impairments in multiple areas of functioning,
 and would typically require substantially more supervision and
 oversight than a personal care home can usually provide. 

NWGRH policy also notes that shorter lengths of stay may not
 permit contacts with outpatient providers before the day of
 discharge. In those cases, the case manager is supposed to
 contact the provider on the day of discharge and make aftercare
 arrangements, document these on the discharge letter, and fax it
 to the provider. We did not find a single aftercare plan
 complying with NWGRH policy in any of the discharge records we
 reviewed. For patients discharged to homeless shelters, the case
 manager is supposed to call and verify that the shelter is still
 receiving clients. We spoke with administrators of Must
 Ministries, a homeless shelter in Marietta, Georgia, who
 confirmed that, in their experience, NWGRH’s practice does not
 follow this policy. Discharged patients typically arrive at the
 shelter without an advance phone call, and the shelter is not
 able to provide the level of care needed by individuals with
 serious mental illness or substance abuse disorders. These
 failures violate NWGRH policies and are a substantial departure
 from generally accepted professional standards. 


- 51 ­
3. Inadequate Coordination of Care Routinely Leads to
 Inappropriate Discharges

Contrary to generally accepted professional standards, NWGRH
 fails to provide adequate coordination and continuity of care,
 and this failure routinely leads to inappropriate discharges.
 The failure to appropriately coordinate continuing care results
 in numerous negative outcomes, including placements in
 inappropriate locations, re-admissions to the Facility, and
 unnecessary delays in community placement. 

NWGRH declined to provide for our review aggregate
 information on the discharge location of all recently discharged
 patients. Nonetheless, during our review of individuals’
 records, we noted multiple examples of patients discharged to
 inappropriate locations, including patients with a history of
 repeat admissions discharged to homeless shelters without
 appropriate support:

• L.L. was discharged from her 18th admission to a Salvation
 Army homeless shelter, with no contact from the local
 Community Service Board.

• K.N. was discharged following his third admission with a bus
 ticket, five days of medication, and the address of a rescue
 mission shelter in a different state.

• K.T. was discharged from his third and fourth admissions to
 a homeless shelter.

Homeless shelters are not equipped to provide the level of
 care required for a patient being discharged from a psychiatric
 hospital, many of whom have severe and persistent mental
 illness.11 NWGRH’s own documents note that NWGRH’s professionals
 are aware that shelters do not have sufficient structure or
 supervision for persons with mental illness. Patients discharged
 to homeless shelters are likely to return to the hospital and
 repeat the cycle of inadequate discharge multiple times.
 Research indicates that the best chance for a successful recovery
 outcome is achieved when the person receives adequate care during
 the first episode of the psychiatric illness and that the
 opportunities for successful recovery diminish on each future
 episode. NWGRH’s failure to provide adequate coordination and

11
 Indeed, as we noted in the findings letter regarding
 GRHA, the Supreme Court, in Olmstead, stated that homeless
 shelters were inappropriate discharge locations. Olmstead v.
 L.C., 527 U.S. 581, 605 (1999).


- 52 ­
continuity of care, routinely resulting in inappropriate
 discharges, is a substantial departure from generally accepted
 professional standards. 

4. Discharge Plans Fail to Address Repeated Readmissions

In addition to many discharges to inappropriate locations
 without sufficient supports, we noted approximately 240 patients
 who were discharged and re-admitted to the hospital within the
 first nine months of 2007. Dozens of these patients had lifetime
 histories of more than 20 re-admissions. That so many patients
 go through the cycle of admission and discharge multiple times
 indicates significant flaws in the discharge planning process. 

NWGRH is not adequately addressing the significant barriers
 to successful discharge that many patients face. NWGRH social
 workers identified housing as a primary barrier to community
 placement. The Chief of Social Work denied that sufficient
 substance abuse treatment was a placement barrier for those
 patients with substance abuse history, but in our review of
 discharge plans, we saw no referrals for this essential service.
 The State’s own findings in the 2005 Georgia Mental Health Gap
 Analysis also discussed the dearth of sufficient Assertive
 Community Treatment teams, which serve as a vital link between
 the hospital and the community for participants. Assertive
 Community Treatment programs offer an array of services
 customized to individual needs, delivered by a community-based
 team of mental health practitioners, and available 24 hours per
 day. Our review of discharges from NWGRH suggests that this
 glaring gap in provision of services, and in particular for
 patients with a history of repeated admissions, is as great today
 as it was three years ago.

In most cases, neither formal or informal supports have been
 developed and prepared for use by patients transitioning from
 NWGRH. There is little indication that the Facility has
 attempted to locate, develop, or advocate for needed supports or
 services that NWGRH professionals acknowledge are needed to
 ensure successful transitions to community living. NWGRH’s
 failure to address repeat admissions and barriers to successful
 placement deviates substantially from generally accepted
 professional standards. 

IV. RECOMMENDED REMEDIAL MEASURES

To remedy the deficiencies discussed above and protect the
 constitutional and federal statutory rights of the patients at


- 53 ­
NWGRH, the State of Georgia should promptly implement the minimum
 remedial measures set forth below:

A. Protection From Harm

The Georgia Psychiatric Hospitals shall provide their
 patients with a safe and humane environment and protect them from
 harm. At a minimum, the Georgia Psychiatric Hospitals shall:

1. Create or revise, as appropriate, and implement an
 incident management system that comports with generally
 accepted professional standards. The Georgia
 Psychiatric Hospitals shall:

a. Create or revise, as appropriate, and implement comprehensive, consistent incident management policies and procedures that provide clear guidance regarding reporting requirements and the categorization of incidents, including those involving any physical injury; patient aggression; abuse and neglect; contraband; and suicide ideation or attempts;
b. Require all staff to complete competency-based training in the revised reporting requirements;
c. Create or revise, as appropriate, and implement thresholds for indicators of events, including, without limitation, patient injury, patient-on-patient assaults, self-injurious behavior, falls, and suicide ideation or attempts, that will initiate review at both the unit/treatment team level and at the appropriate supervisory level; whenever such thresholds are reached, this will be documented in the patient medical record, with explanations given for changing/not changing the patient’s current treatment regimen;
d. Create or revise, as appropriate, and implement policies and procedures addressing the investigation of serious incidents, including, without limitation, abuse, neglect, suicide ideation or attempts, unexplained injuries, and all injuries requiring medical attention more significant than first aid. The policies and procedures shall require that investigation of such incidents that are comprehensive, include

- 54 ­
consideration of staff’s adherence to programmatic
 requirements, and are performed by independent
 investigators; 

e. Require all staff members charged with
 investigative responsibilities to complete
 competency-based training on investigation
 methodologies and documentation requirements
 necessary in mental health service settings; 

f. Monitor the performance of staff charged with
 investigative responsibilities and provide
 administrative and technical support and training
 as needed to ensure the thorough, competent, and
 timely completion of investigations of serious
 incidents;

g. Ensure that corrective action plans are developed
 and implemented in a timely manner;

h. Review, revise, as appropriate, and implement
 policies and procedures related to the tracking
 and trending of incident data, including data from
 patient aggression and abuse and neglect
 allegations, to ensure that such incidents are
 properly investigated and appropriate corrective
 actions are identified and implemented in response
 to problematic trends; and

i. Create or revise, as appropriate, and implement
 policies and procedures regarding the creation,
 preservation, and organization of all records
 relating to the care and/or treatment of patients,
 including measures to address improper removal,
 destruction, and/or falsification of any record.

2. Develop and implement a comprehensive quality
 improvement system consistent with generally accepted
 professional standards. At a minimum, such a system
 shall: 

a. Collect information related to the adequacy of the
 provision of the protections, treatments,
 services, and supports provided by the Georgia
 Psychiatric Hospitals, as well as the outcomes
 being achieved by patients;


- 55 ­
b. Analyze the information collected in order to
 identify strengths and weaknesses within the
 current system; and

c. Identify and monitor the implementation of
 corrective and preventative actions to address
 identified issues and ensure resolution of
 underlying problems.

B. Mental Health Care

1. Assessments and Diagnoses

The Georgia Psychiatric Hospitals shall ensure that their
 patients receive accurate, complete, and timely assessments and
 diagnoses, consistent with generally accepted professional
 standards, and that these assessments and diagnoses drive
 treatment interventions. More particularly, the Georgia
 Psychiatric Hospitals shall:

a. Develop and implement comprehensive policies and
 procedures regarding the timeliness and content of
 initial psychiatric assessments and ongoing
 reassessments; and ensure that assessments include
 a plan of care that outlines specific strategies,
 with rationales, including adjustment of
 medication regimens and initiation of specific
 treatment interventions.

b. Ensure that psychiatric reassessments are
 completed within time-frames that reflect the
 patient’s needs, including prompt reevaluations of
 all patients requiring restrictive interventions.

c. Develop diagnostic practices, consistent with
 generally accepted professional standards, for
 reliably reaching the most accurate psychiatric
 diagnoses.

d. Conduct interdisciplinary assessments of patients
 consistent with generally accepted professional
 standards. Expressly identify and prioritize each
 patient’s individual mental health problems and
 needs, including, without limitation, maladaptive
 behaviors and substance abuse problems.

e. Develop a clinical formulation of each patient
 that integrates relevant elements of the patient’s


- 56 ­
history, mental status examination, and response
 to current and past medications and other
 interventions, and that is used to prepare the
 patient’s treatment plan.

f. Ensure that the information gathered in the
 assessments and reassessments is used to justify
 and update diagnoses, and establish and perform
 further assessments for a differential diagnosis.

g. Review and revise, as appropriate, psychiatric
 assessments of all patients, providing clinically
 justified current diagnoses for each patient, and
 removing all diagnoses that cannot be clinically
 justified. Modify treatment and medication
 regimens, as appropriate, considering factors such
 as the patient’s response to treatment,
 significant developments in the patient’s
 condition, and changing patient needs.

h. Develop a monitoring instrument to ensure a
 systematic review of the quality and timeliness of
 all assessments according to established
 indicators, including an evaluation of initial
 assessments, progress notes, and transfer and
 discharge summaries, and require each clinical
 discipline’s peer review system to address the
 process and content of assessments and
 reassessments, identify individual and group
 trends, and provide corrective action.

2. Treatment Planning

The Georgia Psychiatric Hospitals shall develop and
 implement an integrated treatment planning process consistent
 with generally accepted professional standards. More
 particularly, the Georgia Psychiatric Hospitals shall:

a. Develop and implement policies and procedures
 regarding the development of individualized
 treatment plans consistent with generally accepted
 professional standards.

b. Ensure that treatment plans derive from an
 integration of the individual disciplines’
 assessments of patients, and that goals and
 interventions are consistent with clinical
 assessments. At a minimum, this should include:


- 57 ­
(1) Review by psychiatrists of all proposed
 behavioral plans to determine that they
 are compatible with the psychiatric
 formulations of the case;

(2) Regular exchange of objective data
 between the psychiatrist and the
 psychologist and use of this data to
 distinguish psychiatric symptoms that
 require drug treatments from behaviors
 that require behavioral therapies; 

(3) Integration of psychiatric and
 behavioral treatments in those cases
 where behaviors and psychiatric symptoms
 overlap; and

(4) Documentation in the patient’s record of
 the rationale for treatment. 

c. Ensure that treatment plans address repeated
 admissions and adjust the plans accordingly to
 examine and address the factors that led to 
 re-admission.

d. Develop and implement treatment goals that will
 establish an objective, measurable basis for
 evaluating patient progress.

e. Ensure that treatment plans are consistently
 assessed for their efficacy and reviewed and
 revised when appropriate.

f. Provide adequate and appropriate mental health
 services, including adequate psychological
 services, behavioral management, and active
 treatment, in accordance with generally accepted
 professional standards. 

g. Provide psychologists with sufficient education
 and training to ensure:

(1) competence in performing behavioral
 assessments, including the functional
 analysis of behavior and appropriate
 identification of target and replacement
 behaviors;


- 58 ­
(2) the development and implementation of
 clear thresholds for behaviors or events
 that trigger referral for a behavioral
 assessment;

(3) timely review of behavioral assessments
 by treatment teams, including
 consideration or revision of behavioral
 interventions, and documentation of the
 team’s review in the patient’s record;

(4) the development and implementation of
 protocols for collecting objective data
 on target and replacement behaviors; and

(5) assessments of each patient’s cognitive
 deficits and strengths to ensure that
 treatment interventions are selected
 based on the patient’s capacity to
 benefit.

h. Re-assess all patients at the Facility to identify
 those who would benefit from speech and
 communication therapy and provide sufficient
 qualified and trained staff to provide services to
 all patients who would benefit from this service.

i. Require all clinical staff to complete
 successfully competency-based training on the
 development and implementation of individualized
 treatment plans, including skills needed in the
 development of clinical formulations, needs,
 goals, and interventions, as well as discharge
 criteria.

j. Ensure that the medical director timely reviews
 high-risk situations, such as patients requiring
 repeated use of seclusion and restraints.

k. Develop and implement policies to ensure that
 patients with special needs, including
 co-occurring diagnoses of substance abuse and/or
 developmental disability, and physical, cognitive
 and/or sensory impairments are evaluated, treated,
 and monitored in accordance with generally
 accepted professional standards.


- 59 ­
l. Develop and implement policies for patients
 exhibiting suicidal ideation, including for
 patients identified as suicidal, develop and
 implement a clear and uniform policy for patient
 assessment and treatment.

m. Develop a system to ensure that staff receive
 competency-based training on individualized plans,
 including behavioral support plans and
 interventions, and document this training. 

n. Ensure that restrictive interventions receive
 appropriate review by a Human Rights Committee, or
 its equivalent, to guarantee any restriction of
 rights are necessary, appropriate, and of limited
 duration. 

o. Ensure that all psychotropic medications are:

(1) administered as prescribed; 

(2) tailored to each patient’s individual
 symptoms;

(3) monitored for efficacy and potential
 side-effects against clearly-identified
 target variables and time frames;

(4) modified based on clinical rationales;
 and

(5) properly documented.

p. Institute systematic monitoring mechanisms
 regarding medication use throughout the Facility.
 In this regard, the Georgia Psychiatric Hospitals
 shall:

(1) Develop, implement, and continually
 update a complete set of medication
 guidelines in accordance with generally
 accepted professional standards that
 address the indications,
 contraindications, screening procedures,
 dose requirements, and expected
 individual outcomes for all psychiatric
 medications in the formulary; and


- 60 ­
(2) Develop and implement a procedure
 governing the use of PRN medications
 that includes requirements for specific
 identification of the behaviors that
 result in PRN administration of
 medications, a time limit on PRN uses, a
 documented rationale for the use of more
 than one medication on a PRN basis, and
 physician documentation to ensure
 timely, critical review of the patient’s
 response to PRN treatments and
 reevaluation of regular treatments as a
 result of PRN uses.

C. Seclusion and Restraints

The Georgia Psychiatric Hospitals shall ensure that
 seclusion and restraints are used in accordance with generally
 accepted professional standards. Absent exigent circumstances
 i.e., when a patient poses an imminent risk of injury to himself
 or a third party — any device or procedure that restricts,
 limits, or directs a person’s freedom of movement (including, but
 not limited to, chemical restraints, mechanical restraints,
 physical/manual restraints, or time out procedures) should be
 used only after other less restrictive alternatives have been
 assessed and exhausted. More particularly, the Georgia
 Psychiatric Hospitals shall:

1. Eliminate the use of planned (i.e., PRN) seclusion and
 planned restraint.

2. Ensure that restraints and seclusion:

a. Are used only when persons pose an immediate
 threat to themselves or others and after a
 hierarchy of less restrictive measures has been
 exhausted;

b. Are not used in the absence of, or as an
 alternative to, active treatment, as punishment,
 or for the convenience of staff; 

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

d. Are terminated as soon as the person is no longer
 an imminent danger to himself or others; and

e. Are used in a reliably documented manner. 


- 61 ­
3. Create or revise, as appropriate, and implement
 policies and procedures consistent with generally
 accepted professional standards that cover the
 following areas:

a. The range of restrictive alternatives available to
 staff and a clear definition of each; and

b. The training that all staff receive in the
 management of the patient crisis cycle, the use of
 restrictive measures, and the use of
 less-restrictive interventions.

4. Ensure that if seclusion and/or restraint are
 initiated, the patient is regularly monitored in
 accordance with generally accepted professional
 standards and assessed within an appropriate period of
 time, and that an appropriately trained staff member
 makes and documents a determination of the need for
 continued seclusion and/or restraint. 

5. Ensure that a physician’s order for seclusion and/or
 restraint includes:

a. The specific behaviors requiring the procedure;

b. The maximum duration of the order; and

c. Behavioral criteria for release, which, if met,
 require the patient’s release even if the maximum
 duration of the initiating order has not expired. 

6. Ensure that the patient’s attending physician be
 promptly consulted regarding the restrictive
 intervention. 

7. Ensure that at least every thirty minutes, patients in
 seclusion and/or restraint be re-informed of the
 behavioral criteria for their release from the
 restrictive intervention. 

8. Ensure that immediately following a patient being
 placed in seclusion and/or restraint, the patient’s
 treatment team reviews the incident within one business
 day, and the attending physician documents the review
 and the reasons for or against change in the patient’s


- 62 ­
current pharmacological, behavioral, or psychosocial
 treatment. 

9. Comply with the requirements of 42 C.F.R. § 483.360(f)
 regarding assessments by a physician or licensed
 medical professional of any resident placed in
 seclusion and/or restraints.

10. Ensure that staff successfully complete
 competency-based training regarding implementation of
 seclusion and restraint policies and the use of
 less-restrictive interventions. 

D. Medical and Nursing Care

The Georgia Psychiatric Hospitals shall provide medical and
 nursing services to its patients consistent with generally
 accepted professional standards. Such services should result in
 patients of the Georgia Psychiatric Hospitals receiving
 individualized services, supports, and therapeutic interventions,
 consistent with their treatment plans. More particularly, the
 Georgia Psychiatric Hospitals shall:

1. Ensure adequate clinical oversight to ensure that
 generally accepted professional standards are
 maintained.

2. Ensure that patients are provided adequate medical care
 in accordance with generally accepted professional
 standards.

3. Ensure sufficient nursing staff to provide nursing care
 and services in accordance with generally accepted
 professional standards.

4. Ensure that, before nursing staff work directly with
 patients, they have completed successfully
 competency-based training regarding mental health
 diagnoses, related symptoms, psychotropic medications,
 identification of side effects of psychotropic
 medications, monitoring of symptoms and target
 variables, and documenting and reporting of the
 patient’s status. 

5. Ensure that nursing staff accurately and routinely
 monitor, document, and report patients’ symptoms and
 target variables in a manner that enables treatment


- 63 ­
teams to assess the patient’s status and to modify, as
 appropriate, the treatment plan.

6. Ensure that nursing staff actively participate in the
 treatment team process and provide feedback on
 patients’ responses, or lack thereof, to medication and
 behavioral interventions.

7. Ensure that nursing staff are appropriately supervised
 to ensure that they administer, monitor, and record the
 administration of medications and any errors according
 to generally accepted professional standards. 

8. Ensure that, prior to assuming their duties and on a
 regular basis thereafter, all staff responsible for the
 administration of medication have completed
 successfully competency-based training on the
 completion of the Medication Administration Record. 

9. Ensure that all failures to properly sign the
 Medication Administration Record and/or the Narcotics
 Log are treated as medication errors, and that
 appropriate follow-up occurs to prevent recurrence of
 such errors. 

10. Ensure that each patient’s treatment plan identifies:

a. The diagnoses, treatments, and interventions that
 nursing and other staff are to implement; 

b. The related symptoms and target variables to be
 monitored by nursing and other unit staff; and 

c. The frequency by which staff need to monitor such
 symptoms.

11. Establish an effective infection control program to
 prevent the spread of infections or communicable
 diseases. More specifically, the Georgia Psychiatric
 Hospitals shall:

a. Actively collect data with regard to infections
 and communicable diseases;

b. Analyze these data for trends;

c. Initiate inquiries regarding problematic trends; 


- 64 ­
d. Identify necessary corrective action;

e. Monitor to ensure that appropriate remedies are
 achieved;

f. Integrate this information into the quality
 assurance review of the Georgia Psychiatric
 Hospitals; and

g. Ensure that nursing staff implement the infection
 control program.

12. Establish an effective physical and nutritional
 management program for patients who are at risk for
 aspiration or dysphagia, including but not limited to
 the development and implementation of assessments, risk
 assessments, and interventions for mealtimes and other
 activities involving swallowing.

13. Ensure that staff with responsibilities for patients at
 risk for aspiration and dysphagia have successfully
 completed competency-based training commensurate with
 their responsibilities.

14. Provide adequate, appropriate, and timely
 rehabilitation therapy services and appropriate
 adaptive equipment to each individual in need of such
 services or equipment, consistent with generally
 accepted professional standards. 

15. Establish an effective medical emergency preparedness
 program, including appropriate staff training; ensure
 staff familiarity with emergency supplies, their
 operation, maintenance and location; conduct sufficient
 practice drills to ensure adequate performance when
 confronted with an actual emergency.

E. Services to Populations with Specialized Needs

1. Provide adequate services to patients with limited
 English proficiency or sensory deficiencies, consistent
 with the requirements of the State’s Limited English
 Proficiency and Sensory Impaired Client Services Manual
 and federal law. 


- 65 ­
F. Discharge Planning

The State shall ensure that patients receive services in the
 most integrated, appropriate setting that is consistent with
 their needs and legal status and actively pursue the appropriate
 discharge of patients. More particularly, the Georgia
 Psychiatric Hospitals shall: 

1. Identify at admission and address in treatment planning
 the criteria that likely will foster viable discharge
 for a particular patient, including but not limited to:

a. The individual patient’s symptoms of mental
 illness, psychiatric distress, or cognitive
 impairment;

b. Any other barriers preventing that specific
 patient from transitioning to a more integrated
 environment, especially difficulties raised in
 previously unsuccessful placements; and

c. The patient’s strengths, preferences, and personal
 goals.

2. Ensure that the patient is an active participant in the
 placement process.

3. Include in treatment interventions the development of
 skills necessary to live in the setting in which the
 patient will be placed, and otherwise prepare the
 patient for his or her new living environment.

4. Provide the patient adequate assistance in
 transitioning to the new setting. 

5. Ensure that professional judgments about the most
 integrated setting appropriate to meet each patient’s
 needs are implemented and that appropriate aftercare
 services are provided that meet the needs of the
 patient in the community. 

6. Create or revise, as appropriate, and implement a
 quality assurance or utilization review process to
 oversee the discharge process and aftercare services,
 including:

a. Develop a system of follow-up with community
 placements to determine if discharged patients are


- 66 ­
receiving the care that was prescribed for them at
 discharge; and

b. Hire sufficient staff to implement these minimum
 remedial measures with respect to discharge
 planning. 

7. The State shall ensure that it provides community-based
 treatment for persons with disabilities consistent with
 federal law.

. . . . . . . . . . .

V. CONCLUSION

We appreciate the cooperation we received from the Georgia
 Department of Mental Health Developmental Disabilities and
 Addictive Diseases, and the State’s Attorney General’s Office
 during our visit to NWGRH. We also wish to thank the
 administration and staff at NWGRH for their professional conduct,
 their generally timely responses to our information requests, and
 the extensive assistance they provided during our tour. Further,
 we wish to especially thank the hospital’s staff members, both
 new and longstanding, who make daily efforts to provide
 appropriate care and treatment, and who improve the lives of
 patients at these facilities. Those efforts were noted and
 appreciated by the Department of Justice and our expert
 consultants. 

Please note that this findings letter is a public document.
 It will be posted on the website of the Civil Rights Division.
 While we will provide a copy of this letter to any individual or
 entity upon request, as a matter of courtesy, we will not post
 this letter on our website until 10 calendar days from the date
 of this letter.

As discussed in our letters of June 27, 2008, and November
 20, 2008, we will forward our expert consultants’ reports under
 separate cover once we are confident that you intend to use the
 reports to address the deficiencies outlined in our findings
 letters. These reports are not public documents. Although our
 expert consultants’ 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 issues discussed in this
 letter and offer practical technical assistance in addressing
 them. We hope that State chooses to cooperate with us so we may
 provide them to you in the near future, and that you will give


- 67 ­
this information careful consideration and use it to assist in
 your efforts at promptly remediating areas that require
 attention.

We are obliged by statute to advise you that, in the event
 that we are unable to reach a resolution regarding our concerns,
 the Attorney General is empowered to initiate a lawsuit, pursuant
 to CRIPA, to correct deficiencies of the kind identified in this
 letter, 49 days after appropriate officials have been notified of
 them. 42 U.S.C. § 1997b(a)(1). We remain amenable to
 expeditiously resolving this matter by working cooperatively with
 you. The lawyers assigned to this matter will be contacting your
 attorneys to discuss next steps in further detail.

If you have any questions regarding this letter, please call
 Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special
 Litigation Section, at (202) 514-0195.

Sincerely,

/s/ Grace Chung Becker

Grace Chung Becker
 Acting Assistant Attorney General
 Civil Rights Division

cc: The Honorable Thurbert E. Baker
 Attorney General
 Office of the Attorney General Of Georgia

B.J. Walker
 Commissioner
 Georgia Department of Human Resources

Gwendolyn Skinner
 Director
 Georgia Division of Mental Health, Developmental
 Disabilities 

Marvin Bailey
 Regional Hospital Administrator
 Central State Hospital

Ben Walker 
 Regional Hospital Administrator
 East Central Regional Hospital


- 68 ­
Charles Li, MD
 Regional Hospital Administrator
 Georgia Regional Hospital/Savannah

Thomas Muller, MD
 Regional Hospital Administrator
 Northwest Regional Hospital

Joseph Leroy, MD
 Regional Hospital Administrator
 Southwestern State Hospital

James Jackson
 Regional Hospital Administrator
 West Central Regional Hospital

Susan Trueblood
 Regional Hospital Administrator
 Georgia Regional Hospital/Atlanta

David E. Nahmias
 United States Attorney
 Northern District of Georgia
 Richard B. Russell Federal Building

Maxwell Wood
 United States Attorney
 Middle District Of Georgia

Edmund A. Booth, Jr
 United States Attorney
 Southern District of Georgia

Winston A. Wilkinson 
 Director, Office for Civil Rights
 U.S. Department of Health and Human Services
 200 Independence Avenue, S.W.
 Room 509F, HHH Building
 Washington, D.C. 20201


 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

___________________________________ )

CIVIL ACTION NO. 1:09-CV-119-CAP

MOTION FOR IMMEDIATE RELIEF

Pursuant to Federal Rule of Civil Procedure 65, the United States moves the

Court for immediate relief based on the imminent and serious threat of harm to the

life, health, and safety of individuals in Georgia’s State Hospitals in violation of

the Constitution and federal statutory law. The State of Georgia continues to fail to

serve individuals with disabilities in the most integrated setting appropriate to their

needs, and preventable deaths, suicides, and assaults continue to occur with

alarming frequency in the Hospitals.

As more fully set forth in the attached Memorandum of Law, there is a

substantial likelihood that the United States will prevail on the merits, irreparable

harm is being inflicted upon individuals in Georgia’s State Hospitals, the balance

of equities favors granting the relief, and the public interest would be advanced by the relief. A proposed order also is attached.
- 2 -

Respectfully submitted, FOR THE UNITED STATES:

SALLY Q. YATES Acting United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
SHANETTA Y. CUTLAR Chief Special Litigation Section
JUDITH C. PRESTON Deputy Chief Special Litigation Section

/s/ (Express Permission) MINA RHEE [GA Bar 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Mina.Rhee@usdoj.gov

/s/ Robert A. Koch MARY R. BOHAN [DC Bar 420628] TIMOTHY D. MYGATT [PA Bar 90403] ROBERT A. KOCH [OR Bar 072004] EMILY A. GUNSTON [CA Bar 218035] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 305-2302 Robert.Koch@usdoj.gov

- 3 -

Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch ROBERT A. KOCH Attorney Special Litigation Section
- 4 -

CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the foregoing MOTION TO CONSOLIDATE with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties in this matter via electronic notification or otherwise:
Jason S. Naunas Mark J. Cicero Assistant Attorneys General State Law Department 132 State Judicial Building 40 Capitol Square, S.W Atlanta, GA 30334-1300
Kenneth S. Canfield Doffermeyer, Shields, Canfield & Knowles, LLC 1355 Peachtree St., Suite 1600 Atlanta, GA 30309
Ira A. Burnim Alison N. Barkoff Bazelon Center for Mental Health Law 1101 15th St. NW, Suite 1212 Washington, DC 20005
Joshua H. Norris Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue, Suite 430 Decatur, GA 30030
This 28th day of January, 2010.
/s/ Robert A. Koch ROBERT A. KOCH Attorney Special Litigation Section
- 5 -

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF GEORGIA, et al.,

)

)

Defendants.

)

___________________________________ )

CIVIL ACTION NO. 1:09-CV-119-CAP

MEMORANDUM OF LAW IN SUPPORT OF THE UNITED STATES’ MOTION FOR IMMEDIATE RELIEF

Pursuant to Federal Rule of Civil Procedure 65, the United States moves the

Court for immediate relief based on the imminent and serious threat of harm to the

life, health, and safety of individuals served by Georgia’s seven State hospitals

(collectively, the “hospitals”). The State of Georgia continues to fail to serve

individuals confined in the hospitals (“individuals in the hospitals”) in the most

integrated setting appropriate to their needs, and preventable deaths, suicides, and

assaults continue to occur with alarming frequency in the hospitals.

The needlessly prolonged institutionalization of many individuals with

disabilities is a fundamental cause of the harm. The State provides services to far

too many individuals with disabilities in the most segregated setting

imaginable—the hospitals. The State’s own treatment professionals have

determined that community placement is appropriate for more than 800 individuals currently confined to the hospitals1. Even for those individuals who lack a
treatment professional’s recommendation for community placement, the hospitals
are not the most integrated setting in many cases. See Disability Advocates, Inc.
(DAI) v. Patterson 653 F. Supp.2d 184, 259 (E.D.N.Y. 2009) (Olmstead plaintiffs
“need not prove ‘qualification’ [for community services] in the form of
determinations from [their] ‘treatment professionals.’”) (citing cases). The great
majority of those individuals do not oppose community placement. Yet, they
remain institutionalized, segregated from the community, and at risk of irreparable
bodily harm caused by the State’s admitted departures from generally accepted
professional standards and the Constitution in providing services within the
institutions.
1 In its reports to the Office for Civil Rights, United States Department of Health and Human Services, the State reported that 804 of the 923 individuals with developmental disabilities in the hospitals in June 2009 were placed on the State’s Olmstead list, signifying the State’s determination that these individuals could be served in a community setting and did not oppose such a placement. For individuals with mental illness, the State placed 54 of 651 individuals with mental illness on its Olmstead list (the State excluded from its count some individuals whose commitment status was determined by a criminal court, for example, individuals who had been committed by a court after being found not guilty by reason of insanity). See Exhibit 1, Olmstead Monthly Report FY 2009.
- 2 -

Immediate relief is necessary to stop the ongoing severe and irreparable harm. That relief must target the conditions at the hospitals that place individuals confined there at the most imminent risk–conditions that have led to suicides, homicides, rapes, and other assaults–while requiring the State to make significant progress now in moving individuals in the hospitals out of that unsafe and inappropriate institutional environment. A year of experience under the Settlement Agreement (“Agreement”), attached as Exhibit 2, has taught that an effective remedy for unconstitutional conditions at the hospitals is inseparable from an effective effort to place in community settings the hundreds of individuals in the hospitals who are inappropriately institutionalized. Conversely, any remedy that focuses merely on the conditions at the hospitals will, as the Governor’s recent budget request shows, encourage the State to direct resources away from building the necessary community capacity and toward a focus on the hospitals–an inequity that will only perpetuate the inappropriate and harmful institutionalization of Georgians with mental disabilities.
The status of the Agreement in this case is unclear. That Agreement has not been effective in bringing the State into compliance with federal law, and there is a fundamental disagreement between the parties regarding the scope of the Agreement, particularly regarding the United States’ claims pursuant to the
- 3 -

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12132-12134, and Olmstead v. L.C., 527 U.S. 581 (1999). Moreover, although this Court entered the Agreement as an interim order (Document 9), it rejected the parties’ joint motion to enter the Agreement as a final order (Document 2), and we do not intend to pursue a renewed motion to enter the Agreement. Accordingly, this motion for immediate relief may be understood as a motion for a preliminary injunction. The United States has, today, filed a separate action bringing a claim under the ADA. We have asked that the ADA case be consolidated with this case. If the Court agrees that the Agreement is no longer in effect, the United States requests relief based on the Amended Complaint in this case and the Complaint filed in the ADA case. If the Court determines that the Agreement is still in effect, the United States files this brief as a motion to enforce the Agreement and as a motion for immediate relief in the ADA case.2 I. FACTUAL BACKGROUND
On January 15, 2009, the United States filed the original Complaint in this action, alleging that certain conditions and aspects of care at the hospitals deprive
2 Even if the Court determines that the Settlement Agreement is still in effect, the United States may bring this Motion for immediate relief without waiting 90 days, as the conditions, care, and treatment that are the subject of this Motion “pose an immediate and serious threat to the life, health, or safety of patients served by the State Psychiatric Hospitals.” See Agreement, Ex. 2, ¶ V.D.
- 4 -

the individuals confined to those hospitals of rights, privileges, or immunities secured or protected by the Constitution and the laws of the United States. The hospitals provide inpatient services to persons with mental illnesses, addictive diseases, and developmental disabilities.
Also on January 15, 2009, the United States and the State entered into the Agreement, which resolved the United States’ investigation of the hospitals under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. In accordance with the Agreement, on January 15, 2009, the United States filed the Complaint initiating this action with the Court and, on the same day, filed a joint motion with the State requesting that the Court conditionally dismiss the case and retain jurisdiction to enforce the terms of the Agreement. See Agreement, Ex. 2 ¶ V.C.
On January 23, 2009, the majority of the advocacy groups now appearing as amici curiae sent a letter to the Court expressing concern about the Agreement. Following the Court’s order, the parties met with representatives of the amici on May 14, July 14, and August 25, 2009, to address the concerns raised by the advocates, but many of these concerns remain unresolved.
While these meetings were proceeding, the United States, accompanied by expert consultants in the fields of psychiatry, psychology, psychiatric nursing,
- 5 -

protection from harm, and discharge planning and community integration, conducted compliance tours of six of the seven hospitals.3 These compliance tours
included interviews with hospital administrators, clinical staff, direct care staff, and
individuals in the hospitals, as well as review of a wide variety of documents,
including policies and procedures, incident reports, and medical and mental health
records.
The compliance tours have revealed that conditions in the hospitals continue
to pose an immediate and serious threat to the life, health, and safety of the
individuals in the hospitals, and that serious harm continues to occur. See, e.g.,
ECRH Compliance Letter and Expert Report (Sept. 9, 2009); GRHS Compliance
Letter and Expert Report (Nov. 19, 2009); Findings Letter for CSH, GRHS,
ECRH, SWSH, and WCGRH (Dec. 8, 2009) (Attached as Exhibits 3-5,
respectively). Between April 2009 and January 2010, the United States also sent
3 The six hospitals were: ECRH (May 4-8, 2009), GRHS (June 22-26, 2009), GRHA (August 3-7, 2009), SWSH (October 13-16, 2009), CSH (November 2-7, 2009; January 11-15, 2010), and WCGRH (November 30 through December 3, 2009). The United States also conducted two emergency tours of CSH following an alleged homicide (April 8-9, 2009 and June 30 through July 1, 2009). During the investigation leading to the filing of the original Complaint, the United States visited GRHA (September 17-21, 2007), GRHS (December 17-21, 2008), and the seventh of the hospitals, NWGRH (October 29 through November 2, 2007).
- 6 -

Defendants 11 emergency letters requesting immediate information, follow-up, and/or corrective actions to address conditions or practices that posed an immediate and serious threat to the life, health, and/or safety of individuals in the hospitals. The letters concerned a homicide at CSH, questionable medical deaths at CSH, a rape at SWSH, two alleged rapes at ECRH, a suicide at GRHS, a suicide attempt at ECRH, life-threatening conditions at CSH, a questionable medical death at SWSH, and a suicide at SWSH. See Exhibits 6-16.
Demonstrably, the Agreement has not been effective in bringing the State into compliance with the Constitution and federal statutory law. By January 15, 2010, the Agreement required the State to be in substantial compliance with generally accepted professional standards in four “priority areas” that addressed immediate and serious threats to the life, health, and safety of the individuals in the hospitals: suicide risk assessments and prevention, prevention of patient-on-patient assaults, choking and aspiration risk assessments and prevention, and implementation of emergency medical codes. See Agreement, Ex. 2, ¶ V.E.. Throughout our compliance monitoring, our experts found that the hospitals substantially departed from generally accepted professional standards in the four priority areas and in other areas critical to preventing the threat of immediate and
- 7 -

serious harm in the hospitals. See Osgood Decl., Ex. 17; El-Sabaawi Decl., Ex. 18; Oswald Decl., Ex. 19; Franczak Decl., Ex. 20.
Moreover, the State’s Report of Compliance and Plan of Implementation (“POI”), System-wide Comprehensive Audit (“Audit”), and Quality Management Report (“QM Report”), all submitted on January 15, 2010, confirm our experts’ assessments. The State concedes that it does not provide care consistent with the Constitution in any of the four priority areas at any of the seven hospitals. See Audit, Ex. 21, pp. 1-18. The State estimates that the earliest date by which it could fully implement any of the provisions of the Agreement in compliance with generally accepted professional standards is July 15, 2010. See POI, Ex. 22, pp. 3-6.
The State’s own documents further acknowledge that individuals in the hospitals are not being released from the hospitals by their discharge dates and both the number of individuals waiting to leave the hospitals and the amount of time they are waiting have increased. According to Defendants’ own Olmstead Monthly Progress Report, in September 2009, there were 765 persons with developmental disabilities on the Olmstead list. The total number of individuals with developmental disabilities on the Olmstead list stayed relatively constant during the period from September 2008 through September 2009. Moreover, the
- 8 -

number of placements slowed considerably in July, August, and September 2009. Between September 2008 and September 2009, the average number of days on the Olmstead list for persons with developmental disabilities doubled, and 86 individuals remained waiting for more integrated services after the date set by their treatment team for their discharge had come (and gone). Olmstead Monthly Progress Report, Ex. 1.
We note that part of the relief sought in this motion is the expansion of community services and supports that are largely already available in the community. See e.g., Sonny Perdue, “The Governor’s Olmstead Budget Report (FY 2009 through FY 2011) (“Olmstead Budget Report”), Ex. 24. Therefore, we do not seek a fundamental alteration of the State’s program of services. Instead, we ask that services already available, albeit in limited supply, be made available in sufficient supply to enable individuals in the hospitals to be served in the most integrated setting appropriate to their needs. We do not demand an inequitable allocation of resources given the needs of others with disabilities. See Olmstead, 527 U.S. at 604. Not only is funding an expanded array of community services a substantially less expensive option than continuing to provide services through needless institutionalization, but discharging individuals from the hospitals would remove those individuals from the immediate and serious threats of harm therein,
- 9 -

and would help alleviate the gross under-staffing concerns identified by the State itself. II. LEGAL STANDARDS
“To obtain a preliminary injunction, the moving party must show (1) a substantial likelihood of success, (2) irreparable harm, (3) that the balance of equities favors granting the injunction, and (4) that the public interest would not be harmed by the injunction.” Mesa Air Group, Inc., v. Delta Air Lines, Inc., 573 F.3d 1124, 1128 (11th Cir. 2009). “Preliminary injunctive relief derives from the necessity to restrain or compel conduct in those extraordinary situations where irreparable injury might result from delay or inaction.” Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1133 (11th Cir. 2005). The United States hereby requests a hearing on this Motion for Immediate Relief. III. THE UNITED STATES WILL LIKELY PREVAIL ON THE MERITS.
A. Hundreds of Individuals Remain Inappropriately Institutionalized in the Hospitals in Violation of the ADA and Olmstead.
Hundreds of individuals, at minimum, remain institutionalized in the hospitals in violation of their rights under the ADA and Olmstead. The ADA
- 10 -

requires that the State provide services to qualified individuals with disabilities4 in the most integrated setting appropriate to their needs. See 42 U.S.C. § 12132 (“[N]o 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.”), and its implementing regulations, 28 C.F.R. § 35.130(d); see also Olmstead, 527 U.S. at 607. Yet the State provides services to far too many individuals with disabilities in the most segregated setting imaginable—the hospitals. See Franczak Decl., Ex. 20. Institutionalization stigmatizes individuals and prevents them from building lives in the community, forming personal relationships, and obtaining employment. Id., ¶12. As the Supreme Court explained in Olmstead, inappropriate institutionalization “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and “severely diminishes the everyday life activities of individuals.” Olmstead, 527 U.S. 600-601. In Georgia, inappropriate
4 There is no dispute that the individuals in the hospitals are qualified individuals with disabilities under the ADA and its implementing regulations. They are individuals whose disabilities have substantially limited their participation in major life activities.
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institutionalization has claimed the lives of numerous individuals with disabilities and threatened the lives and safety of many more. See § B, infra.
In construing the anti-discrimination provision contained within the ADA, the Supreme Court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. The Court applied the integration mandate of the regulations implementing Title II of the ADA: “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).
A violation of the integration mandate is made out if the institutionalized individual is “qualified” for community placement–that is, that he or she can “handle or benefit from community settings” and does not oppose community placement. Olmstead, 527 U.S. at 601-603. The State, however, may interpose a defense that community placement would “entail a fundamenta[l] alter[ation]’ of [its] services and programs.” Id. at 603 (plurality opinion). The Olmstead plurality explained that a state can show fundamental alteration by demonstrating that it has “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a
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reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Id. at 605-606.
The United States has a strong likelihood of succeeding on the merits of its Olmstead claim. First, evidence indicates that literally hundreds of individuals in the hospitals can “handle or benefit from community settings.” Olmstead, 527 U.S. 601-602. For the more than 800 of these individuals who have been placed on the Olmstead list, “the State’s treatment professionals have determined that community placement is appropriate,” id., at 587, consistent with the facts of Olmstead itself.
The State has determined that all individuals with developmental disabilities in the hospitals can be served in more integrated settings. Franczak Decl., Ex. 20, ¶ 15. Yet, in June 2009, more than 900 individuals with developmental disabilities remained institutionalized in the hospitals. See Olmstead Monthly Progress Report, Ex. 1. And 50 or more additional individuals with mental illness in the hospitals appear on the State’s monthly report of those determined appropriate for community placement, yet the State reports that fewer than a third of those individuals are released from the hospitals. Id. Many more have never been assessed by a treatment professional to determine whether they could be
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served in the community, nor has the question of what services would be required for them to do so been addressed effectively by a treatment professional.
Although Olmstead itself involved two plaintiffs whose treatment professionals had determined community placement was appropriate, the integration mandate is not limited to that narrow fact setting. The regulation that creates the integration mandate does not refer to treating professionals; it simply requires services to be administered “in the most integrated setting appropriate to the needs of” the individual 28 CFR §35.130(d). The regulation does not in any way purport to limit the evidence on which a plaintiff may rely in showing that a more integrated setting is appropriate. And a requirement that Olmstead plaintiffs come to court armed with the recommendation of a state’s treating professional would “allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.” Frederick L., 157 F. Supp.2d at 540; see also DAI, 653 F. Supp.2d at 258 (“The court does not read Olmstead as creating a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a ‘treatment provider’ and found eligible to be served in a more integrated setting.”); Joseph S., 561 F. Supp.2d at 291 (“[I]t is not clear whether Olmstead even requires a specific
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determination by any medical professional that an individual with mental illness may receive services in a less restrictive setting or whether that just happened to be what occurred in Olmstead.”).
As one of the United States’s experts concluded, “many, if not the majority, of the individuals in the state hospitals are institutionalized when they could be more appropriately served in a community-based setting.” Oswald Decl. Ex. 17, ¶ 12. Another expert explained that many individuals in the hospitals are institutionalized only because there are insufficient community and mobile crisis services in the State. Franczak Decl. Ex. 20, ¶ 37. “[I]n most states,” he explained, “many of these individuals experiencing short term crises would not have to be hospitalized.” Id., at ¶ 10. Many other individuals in the hospitals, he found, experienced a cycle of needless repeated institutionalization.” Ibid. Systemic deficiencies in treatment, discharge, and transition planning have kept these individuals from receiving a treating professional’s recommendation of community placement. See Franczak Decl., Ex. 20, ¶ 11-15. But all “could be served successfully in the community” and there is no indication that substantial numbers oppose community placement. Franczak Decl., Ex.20, ¶ 17.
Placing qualified individuals in the hospitals in appropriate community settings would work only a “reasonable modification” of the State’s program.
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Olmstead, at 603. The State already provides to individuals in the community services of the type the individuals in the hospitals would need to live in the community. See Olmstead Budget Report, Ex. 23 (funded services include supportive housing, crisis stabilization, substance abuse treatment, supported employment, peer support, mental health mobile crisis, transportation, psychosocial rehabilitation and more). But those services are woefully inadequate to meet the needs of those individuals. In a presentation to a coalition of advocacy groups in January 2010, the State conceded:
the State on paper has a relatively complete array of services available. It is recognized that not all services are available in all parts of the State and that capacity of some services in limited in many parts of the State. See State of Georgia Planning Initiative on Mental Health and Addictive Services, Georgia DBHDD (undated document), attached as Exhibit 25. State audits and commissions have repeatedly reached this same conclusion. See, e.g., Governor Sonny Perdue's Mental Health Service Delivery Commission Final Report (December 4, 2008) ("Mental Health Commission Report"), Ex. 26. The United States’ Olmstead claim rests on the demand that those services already in limited supply be made available in sufficient supply to enable individuals who are currently inappropriately segregated in an institution to be discharged from that
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setting into the community and provided appropriate services there. See DAI at 269 (it is a reasonable modification to expand existing community programs to include currently institutionalized individuals).
A number of barriers have kept individuals in the hospitals from receiving services in appropriate community settings. Some of those barriers are internal to the hospitals. The hospitals do not provide individuals in the hospitals with a plan for transition to community services until after the treatment team has determined that the individual is appropriate for community placement–a perverse requirement that an expert characterized as “exactly backwards.” Franczak Decl, Ex. 20, ¶ 14. Individuals who stay in the hospitals for less than 60 days at a time do not receive an adequate determination of what services are required to support them in a more integrated setting–even if they are repeatedly readmitted to the Hospital. Id., ¶ 1415. And when they do discharge individuals, the hospitals often discharge them to inappropriate settings like “night shelters, transportation terminals, and the public buildings and streets”–settings that lack necessary supports and typically receive no advance notice of the discharge. Id., ¶ 28. These discharges to inappropriate settings “place the affected individuals at risk of significant harm.” Id., ¶ 30. See also Olmstead (recognizing that discharge to a homeless shelter is inappropriate). One person recently discharged from a Hospital to a shelter was three months
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pregnant, and was discharged with several prescriptions, but no connection to a medical care provider or other behavioral health supports. Franczak Decl., Ex.20, ¶ 30. Another had a history of ten prior admissions, but was nonetheless discharged to a shelter. He was readmitted a few days later, after experiencing an overdose of medication. Id., ¶ 30.
Individuals are needlessly institutionalized and discharged to these inappropriate settings and re-admitted due to a lack of adequate community capacity in Georgia. For example, “[i]nsufficient supported housing opportunities in the State result in individuals having to reside in inappropriate settings that do not support their recovery and their return to the community.” Franczak Decl., Ex. 20, ¶ 35. Supported housing “is a setting in which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community.” DAI, 653 F. Supp.2d at 218-219. Development of a comprehensive, statewide supported housing program was identified as a priority by the Governor’s Mental Health Commission in 2008. The State’s 2009 draft Olmstead report indicated “that a minimum of 2,000 supportive housing units over a five year period will be needed to serve individuals with mental illness in the State.” See Letter from Georgina Verdugo, Director, Office for Civil Rights, Department of Health and Human Services to Governor Perdue (Jan. 26, 2010)
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(“OCR Letter”), Ex. 27. Supported housing is a centerpiece of an Olmsteadcompliant mental health system, but Georgia’s efforts to set up such housing have been woefully insufficient to meet the need. Moreover, the State has failed to provide sufficient community-based services such as assertive community treatment, intensive case management, and community crisis intervention, all of which operate hand in glove with supported housing to prevent unnecessary hospitalization. See Franczak Decl., Ex. 20, ¶ 36-37; Mental Health Commission Report, Ex. 26; see also DAI at 220-221 (discussing the importance of these services to community integration).
There are too few crisis, community support, and mobile crisis intervention services for individuals with disabilities, many of whom are re-institutionalized due to short-term crises that could have been stabilized in the community. For example, one individual with a developmental disability who had enjoyed a community placement was readmitted to a Hospital, according to his records, because “there was no where for him to remain in the community” during an investigation of possible care giver abuse following an incident. Franczak Decl., Ex. 20, ¶ 10.
The State’s lack of assertive community treatment or intensive case management services causes individuals to have to be hospitalized when they are
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not adherent to their medication regimes. These services, which are inadequate in Georgia, are effective because they can improve medication adherence and prevent hospitalization. An intensive staffing ratio of 1:12 allows more intensive supervision for persons who require this level of care. Many individuals with mental illness in the hospitals need assertive community treatment upon discharge, but do not receive this service because they do not exist in sufficient supply. Franczak Decl., Ex. 20, ¶ 36. An assertive community treatment (“ACT”) team typically costs at least $1.2 million for one year, id., yet the State’s proposed budget through FY 2011 does not fund even one additional ACT team. See Olmstead Budget Report, Ex., 23 at 9.
Immediate relief is necessary to break these barriers to appropriate community placement and ensure that meaningful numbers of individuals in the hospitals move out of their inappropriate institutional placements now. The State cannot establish that such relief would work a fundamental alteration, because that defense is available only when the State has a “comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated.” Olmstead. at 605-06 (plurality opinion). The courts of appeals have not settled on a single standard for
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determining what makes a proper Olmstead plan. Compare Frederick L. v. Department of Public Welfare of Com. Of Pennsylvania, 364 F.3d. 487 (3d Cir. 2004) with Sanchez v. Johnson, 416 F.3d. 1051 (9th Cir. 2004). But the courts of appeals have all agreed that, at a minimum, the plan must be “comprehensive, detailed, and most importantly, ‘effectively working.’” DAI 653 F. Supp. 2d at 304 (quoting Sanchez, 416 F.3d at 1067); see also Pennsylvania Protection & Advocacy v. Dep’t of Public Welfare, 402 F.3d 374, 384 (3d Cir. 2005) (permitting a fundamental alteration defense “only if the accused agency has developed and implemented a plan to come into compliance with the ADA”) (citing Frederick L., 364 F.3d at 500). “[R]outine, individualized review of patients does not amount to a sufficient deinstitutionalization plan.” Ibid.
Georgia has not implemented anything close to such a comprehensive plan, even though Olmstead was decided over a decade ago and involved these very institutions. As the United States Department of Health and Human Services recently concluded, since July 2008 the State’s rate of discharge has decreased: “The number of institutionalized individuals with mental illness and developmental disabilities waiting past their discharge dates for community services has steadily increased, and the amount of time they are waiting has risen preciptiously as well.” OCR Letter, Ex. 27, at 30. Georgia’s Olmstead coordinator has not made and
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published “meaningful annual estimates of the needs for community services.” Id. at 4. The State has repeatedly delayed its multi-year Olmstead plan. Id. at 5-6. And the results speak for themselves–the State has not made meaningful progress in reducing hospital censuses in any recent year.
“In considering the resources available to the State,” a court cannot look at the state’s current budget for community services in isolation; rather, “the relevant budget is the ‘mental health budget,’ which includes any money the state receives, allots for spending, and/or spends on services and programs for individuals with mental illness.” DAI, 653 F.Supp.2d at 269. And the court must consider not just short-term outlays and transition costs, “but also savings that will result if the requested relief is implemented.” Ibid.
Providing services to support a person with mental illness or a person with a developmental disability living in the community costs substantially less than providing services in an institutional setting. The figures used in a draft Olmstead Behavioral Health Initiative Five-Year Community Funding Plan, supported by data from Georgia’s own Department of Community Affairs, support a substantial cost savings when serving a person with mental illness in the community. See Franczak Decl., Ex. 20 ¶ 42. The United States’s likelihood of success on the merits of the Olmstead claim is therefore very strong.
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B. Preventable deaths, suicides, and assaults continue to occur in the Hospitals.
The harm of unnecessary institutionalization in the hospitals is compounded by–and contributes to–the unconstitutional and life-threatening conditions in the hospitals. These conditions require targeted relief in the hospitals, and they underscore the urgency of moving individuals with disabilities out of inappropriate institutional placements now. The Constitution requires that Defendants provide reasonable care and safety to individuals in the hospitals. Defendants fail to meet this obligation. Specifically, the Fourteenth Amendment Due Process Clause requires a state mental health care facility to provide “adequate food, shelter, clothing, and medical care,” Youngberg v. Romeo, 457 U.S. 307, 315 (1982), along with “conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests,” id. at 324. Individualized treatment must be provided to give individuals in the hospitals “a reasonable opportunity to be cured or to improve [their] mental condition.” Donaldson v. O’Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated on other grounds, O’Connor v. Donaldson, 422 U.S. 563 (1975); see D.W. v. Rogers, 113 F.3d 1214, 1217-18 (11th Cir. 1997) (holding that the constitutional right to psychiatric care and treatment is triggered by the State’s physical
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confinement of an individual with mental illness; the court noted the holding of Fifth Circuit cases, including Donaldson, which are binding upon the Eleventh Circuit if decided before September 30, 1981); see also Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974).
The measure of inadequate treatment is whether it substantially departs from generally accepted professional judgment, practice, or standards. Youngberg, 457 U.S. at 320-23. Individuals in the hospitals have a due process right to have all major decisions regarding their treatment be made in accordance with the judgment of qualified professionals acting within professional standards. Griffith v. Ledbetter, 711 F. Supp. 1108, 1110 (N.D. Ga. 1989). For example, states must ensure that individuals in the hospitals are not given hazardous drugs that are “not shown to be necessary, used in excessive dosages, or used in the absence of appropriate monitoring for adverse effects.” Thomas S. v. Flaherty, 699 F. Supp. 1178, 1200 (W.D.N.C. 1988), aff’d., 902 F.2d 250 (4th Cir. 1990).
The State concedes that it does not provide care and safety that is consistent with generally accepted professional standards—the constitutional standard—in any of the four priority areas at any of the seven hospitals, despite the Agreement’s requirement that the State do so by January 15, 2010. See Audit, Ex. 21, pp. 1-18; Agreement, ¶ V.E; Youngberg, 457 U.S. at 320-23. The State’s Audit sets forth
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the outcomes the State has determined that it must attain in order to provide care and safety consistent with the Constitution, and not one of hospitals has attained substantial compliance with all of the required outcomes in any of the four priority areas. See Audit, Ex. 21, p. 2-18.
Although constitutional violations threaten safety and welfare in a variety of contexts, including medical and nursing care and nutrition management, the most imminent and life-threatening constitutional violations–and the ones that call out for immediate relief from this Court–relate to the longstanding and widespread pattern of violence and suicides in the hospitals. The hospitals fail to assess suicide risk, prevent suicides, and prevent patient-on-patient assault, in a substantial departure from generally accepted professional standards and in violation of the Constitution. The State admits that it has not attained substantial compliance with any of the outcomes required to meet generally accepted professional standards in these areas at any of the hospitals. See Audit, Ex. 21, pp. 7-15. In other words, the State concedes that it systemically violates the Constitution in each of these areas at each of the hospitals.
Our experts agree. See El-Sabaawi Decl., Ex. 18, ¶¶ 13-25; Oswald Decl., Ex. 19, ¶¶ 15-26. Initial suicide and violence risk assessments often are not completed at all or, if they are completed, lack critical information, in a substantial
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departure from generally accepted professional standards. See El-Sabaawi Decl., Ex. 18, ¶ 14-19. Reassessments are similarly inadequate and untimely. See id., ¶ 20. In addition, treatment plans fail to include behavioral interventions for dangerous and maladaptive behaviors, in a substantial departure from generally accepted professional standards, so individuals in the hospitals do not receive adequate treatment to protect themselves and others from potential violence. See Oswald Decl., Ex. 19, ¶ 15.
Moreover, the hospitals’ incident, risk, and quality management systems fail to manage the risks of suicide and violence, in a substantial departure from generally accepted professional standards. See Osgood Decl., Ex. 17, ¶¶ 6-43. Internal investigations into abuse, neglect, and suspicious injuries in the hospitals systematically fail to include information that is necessary to finding the root cause of an incident or to delve sufficiently into the possible origins of incidents. See id. ¶ 9. The hospitals fail to reliably and adequately analyze the data that they collect, rendering State and Hospital officials incapable of recognizing adverse trends and correcting issues that directly lead to patient harm and death. See id. ¶ 10. And, for risks that they identify, the hospitals fail to implement corrective and preventive actions in a timely manner, if at all, or to monitor those actions as necessary to reduce or eliminate the risk of harm. See id. ¶ 11.
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Without adequately assessing risks of suicide or violence, identifying risks
or trends of harm, or objectively measuring and monitoring the quality of care, the
hospitals cannot even begin to recognize serious issues affecting the health and
safety of individuals in the hospitals, much less develop and implement remedial
measures designed to prevent further grievous harm. See id. ¶ 12. As a result of
these systemic constitutional violations, individuals in the hospitals suffer grave
harm that is frequent, recurrent, and preventable. See id. ¶ 13.
Individuals in the hospitals continue to be killed with alarming frequency.
For example:
• In April 2009, an individual at CSH assaulted and killed another individual in the Hospital. See id. ¶ 36. The aggressor had been accused of two separate homicides prior to his admission, including killing his jail cell mate immediately before his transfer to CSH in January 2009. Yet the State failed to adequately supervise him and failed to develop a behavior plan for him before he killed a fellow patient. See id.; Oswald Decl., Ex. 19, ¶ 18.
• In October 2008, a patient at WCGRH died of a ruptured spleen due to blunt force trauma. Earlier that morning he had complained of not feeling well and, hours later, was found naked on the floor in his own urine. The State treated him by giving him antipsychotic medication, despite his displaying no psychotic symptoms. The State failed to investigate, much less determine, how he suffered trauma so significant that it ruptured his spleen, or why he was given antipsychotic medication while he internally bled to death. See Osgood Decl., Ex. 17, ¶ 34.
• In August 2008, a patient at WCGRH assaulted and killed another patient. Earlier that morning, the victim had assaulted the aggressor, and both patients had a history of aggression. When the aggressor and victim later
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confronted one another, the State failed to intervene, despite an instructor in de-escalation techniques standing close by. Instead, the aggressor assaulted the victim, who fell and struck his head, knocking him unconscious and causing blood to trickle out of his ear. The State failed to call an emergency code blue, so an ambulance did not arrive for 50 minutes. The victim died a few days later from blunt force trauma to the head. The State transferred the aggressor to CSH but failed to include in the discharge summary any information about this incident or the extent of his aggressive behaviors. The aggressor currently remains at CSH, and the State still has failed to implement adequate behavioral interventions to prevent him from seriously injuring others. See id. ¶ 33.
Individuals in the hospitals kill, and attempt to kill, themselves with
alarming frequency in the hospitals. For example:
• A mere three weeks ago, at SWSH, a patient committed suicide within 24 hours of being transferred to an alternative unit on campus grounds. The patient had been admitted a month prior for attempting to hang herself, her third attempt in recent years, yet the State failed to prevent her from acquiring a shoe string that she then used to strangle herself. One day prior to successfully taking her own life, the woman expressed suicidal thoughts, paranoia, and significant anxiety regarding her transfer. The State failed to complete a suicide risk assessment before transferring her, in violation of State policy, and erroneously stated in her discharge summary that her suicidal thoughts had completely disappeared. See id. ¶ 43.
• In August 2009, a patient at GRHS committed suicide by tipping his bed up on end to create a tie-off point on which to hang himself. The State failed to heed our experts’ warnings throughout our on-site visits about the suicide risks of the beds. Moreover, GRHS failed to heed our experts’ warnings during an on-site visit two months prior to the suicide about the deficiencies in its suicide assessments and risk management system. See id. ¶ 39.
• In April 2006, a patient at NWGRH committed suicide within 24 hours of her admission by climbing high into a tree and jumping to her death in front of staff and patients. The State failed to place her on heightened observation
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even though she was an emergency involuntary admission with a diagnosis of paranoid schizophrenia, a history of auditory and visual hallucinations, and had refused to answer whether she was suicidal. Consequently, when her unit was taken outside, she climbed a tree, tried to hang herself with her shoelaces, and then jumped out of the tree to her death. See id. ¶ 14.
• In September 2009, a patient at ECRH attempted to commit suicide by hanging himself with a sheet tied around his neck, the same way he had tried to kill himself at CSH eight months earlier. Despite these similarities, the State failed to investigate, much less determine, how to avoid a third strangulation attempt. Instead, the investigation of the September suicide attempt focused primarily on staff’s response to the emergency code blue call and recommended only that “ECRH should review with staff the need for accuracy in reporting, particularly of times of events.” See id. ¶ 40.
• In August 2007, a patient was admitted at GRHA after running into traffic with a broken glass bottle in her hand, threatening to kill herself. Approximately one week after her admission, the State discharged her to a homeless shelter. She returned suicidal three days later. A mere seven hours after she arrived on a residential unit, the State failed to follow its own heightened observation level for her, and found her lying face down in a pool of blood outside her bedroom doorway, unresponsive, with a cord wrapped tightly around her neck, bleeding from her mouth and nose. State employees then removed from her medical record progress notes and eyewitness statements describing both the lapse in observation level and an argument between the patient and staff shortly before the suicide attempt. See id. ¶ 27.
• In October 2006, a patient at NWGRH attempted to commit suicide by slitting his throat from ear to ear with a razor. The State had given the patient the razor and let him go into the bathroom unattended, despite the patient having a history of suicide attempts and self-mutilation. After the suicide attempt, the State never reassessed the patient’s emotional stability or risk of harm, and never made or modified treatment or behavioral interventions. See id. ¶ 16.
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Physical and sexual assaults continue to occur with alarming frequency in
the hospitals. For example:
• In October 2009, a State employee at CSH pulled a patient out of his chair, walked him down the hallway, pulled him into his room, shut the door, and beat him. See id. ¶ 41.
• In August 2009, at ECRH, an individual with intellectual disabilities reported being raped by a peer on his living unit. The State failed to investigate when and by whom the victim was sexually assaulted. Before having received the results of the emergency services rape examination, which revealed semen in the victim’s peri-anal region, the State concluded that the allegation was unsubstantiated because of a lack of physical evidence. See id. ¶ 38.
• In December 2008, staff at SWSH found a 22-year-old patient, who had a history of sexually assaultive behavior and an admission for being incompetent to stand trial for charges that he molested a seven-year-old boy, in the bed of a 64-year-old patient known to be easily frightened and intimidated by others. The State had placed the two together as roommates and then failed to investigate the incident, even though the patients gave conflicting accounts as to whether sexual relations had occurred. Seven months later, in July 2009, the 22-year-old patient threatened and raped the 64-year-old in the restroom. As part of that investigation, the victim reported that the perpetrator had raped him seven months earlier. See id. ¶ 37.
• In September 2007, a patient at NWGRH suffered a fractured clavicle. Staff noticed a large bruise on the patient’s shoulder but did not report the bruise until a day later. The State never questioned the patient about the injury or how it occurred, and never determined its cause. See id. ¶ 31.
• In June 2007, a patient at GRHA sexually assaulted another patient. The aggressor patient was on “sexual protocol,” which required that he be on line-of-sight observation and that he sleep in a single bedroom to prevent him from sexually assaulting other patients. The State failed to follow its
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own protocol. The State assigned the aggressor to a bedroom with four other patients and, the very first night, he sexually assaulted one of them. The State later discharged the aggressor to a personal care home and failed even to mention the sexual assault in his progress notes, discharge summary, or aftercare plan. See id. ¶ 25.
• In February 2007, a patient at GRHA choked another patient to the point of sending the victim to the emergency room. The aggressor patient was on line-of-sight observation at the time, but the State failed to follow its own heightened observation level for him and only discovered the choking after hearing loud noises coming from his bedroom. See id. ¶ 19.
These constitutional violations continue unabated, posing an immediate and
serious threat to the life, health, and safety of individuals in the hospitals. They
underscore the need to move individuals in the hospitals out of inappropriate
placements in the hospitals now.
IV. THE INDIVIDUALS IN THE HOSPITALS ARE SUFFERING IRREPARABLE HARM
Death constitutes irreparable harm. Schiavo ex rel. Schindler v. Schiavo ex
rel. Schiavo, 403 F.3d 1223, 1232 (11th Cir. 2005). Additionally, rapes and sexual
assaults cause physical and possibly permanent mental damage that money cannot
effectively remedy. See Coker v. Georgia, 433 U.S. 584, 611-12 (1977) (Burger,
C.J., dissenting) (finding that rape causes serious psychological and physical harm,
and likely has an irreparable long range effect). Jones ‘El v. Berge, 164 F. Supp.
2d 1096, 1123 (W.D. Wis. 2001) (holding that “pain, suffering and the risk of
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death” constitute irreparable harm sufficient to support a preliminary injunction) (citing Von Colln v. County of Ventura, 189 F.R.D. 583, 598 (C.D. Cal. 1999) (“Defendants do not argue that pain and suffering is not irreparable harm, nor could they.”)) Duran v. Anaya, 642 F. Supp. 510, 526-27 (D.N.M. 1986) (preliminarily enjoining prison from reducing medical and mental health care staff because resulting deaths, extreme pain, and self-mutilation constitute irreparable harm). As detailed above, the inappropriate institutionalization of hundreds in Georgia’s hospitals, combined with the extensive constitutional violations there, are putting individuals in the hospitals at imminent risk of serious physical and psychological harm, and even death.
Moreover, “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Charles Alan Wright, et. al., Federal Practice and Procedure § 2948.1 (2d ed. 1995) (citing Elrod v. Burns, 427 U.S. 347, 373-74 (1976). “[A]n alleged constitutional infringement will often alone constitute irreparable harm.” R.G. v. Koller, 415 F. Supp. 2d 1129, 1162 (D. Haw. 2006) (quoting Associated Gen. Contractors of Cal. v. Coal. for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir.1991) (quoting Goldie's Bookstore v. Superior Ct., 739 F.2d 466, 472 (9th Cir.1984)).
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Many, if not the majority, of the individuals in the hospitals are institutionalized when they could be more appropriately served in a community-based setting. See Oswald Decl., Ex. 19, ¶ 12; Franczak Decl., Ex. 20, ¶¶ 14-17. As long as these people remain unnecessarily instituionalized, segregated from the community, they remain at risk of irreparable physical and psychological harm. See Fanczak Decl., Ex. 20, ¶¶ 9-13. Indeed, “[a]ll individuals inappropriately institutionalized face ongoing and significant harm.” Id. ¶ 13. Immediate relief is therefore necessary. V. THE BALANCE OF EQUITIES FAVORS GRANTING THE
INJUNCTION This Court must next determine whether the above threatened irreparable injuries outweigh whatever damage the proposed injunction may cause the Defendants. Mesa Air Group, Inc, 573 F.3d at 1128. The severe injuries exemplified above all heavily outweigh the costs to the Defendants of ending the unnecessary segregation and remedying the unsafe conditions. Providing services to support a person with mental illness living in the community costs substantially less than providing services in an institutional setting. See Franczak Decl., Ex.20, ¶ 42.
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Moreover, depriving institutionalized individuals of their Constitutional rights can not be justified by a lack of funding. Ramos v. Lamm, 639 F.2d 559, 574 fn. 19 (10th Cir. 1980). “Protection of constitutional rights is a compelling public interest” and protection of Constitutional rights “weighs heavily in the balancing of harms, for the protection of those rights is . . . a benefit . . . to all citizens.” R.G. v. Koller, 415 F. Supp. 2d 1129, 1162 (D. Haw. 2006), citing Int'l Soc'y for Krishna Consciousness v. Kearnes, 454 F.Supp. 116, 125 (E.D.Cal.1978). VI. THE PUBLIC INTEREST WOULD BE ADVANCED BY GRANTING
THE REQUESTED RELIEF Last, this Court must determine that the preliminary injunction would not be adverse to the public interest. Mesa Air Group, Inc., 573 F.3d 1124, 1128 (11th Cir. 2009). This factor weighs unquestionably in favor of the preliminary injunction, because “there is the highest public interest in the due observance of all the constitutional guarantees.” United States v. Raines, 362 U.S. 17, 27 (1960). Beyond the Constitution, Congress highlighted the public interest in protecting institutionalized persons from these types of harms when it enacted the Civil Rights of Institutionalized Person Act. Moreover, there is a strong public interest in eliminating the harm that attends unnecessary and inappropriate institutionalization. As noted in Olmstead,
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the unjustified segregation of persons with disabilities perpetuates unwarranted assumptions that they are incapable or unworthy of participating in community life. Olmstead, 527 U.S. at 600. Moreover, it severely diminishes the individuals’ ability to enjoy activities of daily life, such as family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Id., at 601. “The Mental Health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Jaffee v. Redmond, 518 U.S. 1, 11 (1996). Thus, the public interest strongly supports targeting the most immediate life-threatening needs in the hospitals and providing individuals with disabilities with services in the most integrated setting appropriate to their needs.
VII. RELIEF REQUESTED To remedy these violations of the Constitution and federal statutory law, the United States respectfully requests that the Court order the following relief, as well as any other immediate relief the Court deems appropriate after a hearing on this motion: 1. The State shall promptly take such steps as are necessary to ensure
that all individuals in the hospitals and those at risk of admission to the hospitals are served in the most integrated community settings
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appropriate with appropriate services, supports, and other necessary resources made available. 2. The State shall promptly place in the most integrated setting in the community and provide with appropriate services all those individuals in the hospitals who can be served in the community and who do not oppose such a placement. 3. Within 14 days of this Order, an Independent Monitor shall be chosen to monitor the State’s implementation of this Order. The State shall bear the costs of the Independent Monitor. The Independent Monitor shall have substantial experience in expanding community services for people with mental disabilities and in moving people with mental disabilities out of inappropriate institutional placements. The Parties, with the input of the amici, shall jointly choose the individual who will be appointed as the Independent Monitor and shall notify the Court of their joint selection. If the Parties and the amici are unable to agree on the individual within 14 days of this Order, the Parties and the amici shall jointly petition the Court to make the selection. In this petition, the Parties and the amici will be permitted to propose the names of three alternate candidates for the position, from which the
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Court shall select the Independent Monitor. The Parties and the amici shall submit the candidates’ curricula vitae, along with other pertinent information regarding the proposed candidates, at the time of the submission of the names of the candidates. 4. Within one month from his or her appointment, the Independent Monitor shall issue a comprehensive action plan (“Action Plan”). The Action Plan shall contain the following components: a. The Action Plan shall set forth specific numerical targets and
timetables for reduction of the census of the hospitals. These targets shall ensure that individuals who are inappropriately institutionalized will move to appropriate community settings at a reasonable pace, with a substantial number of individuals with psychiatric disabilities, and a substantial number of individuals with developmental disabilities, to move to appropriate community settings within nine months of the issuance of the Action Plan. The Action Plan shall consider the savings that can be realized from the closure of Hospital beds and redirected to develop community capacity.
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b. The Action Plan shall identify with specificity the barriers to moving individuals in the hospitals to integrated settings. The Action Plan shall specify all such barriers, whether they relate to the discharge planning process or to community capacity. The Action Plan shall identify specific policy changes that are necessary to overcome those barriers, including specific numbers of additional supported housing slots, ACT teams, ICM case managers, and mobile crisis interventions, together with timetables for adopting those changes.
c. The Action Plan shall identify specific and targeted changes in the policies and practices of the hospitals that will adequately address the suicide risks and resident-on-resident assaults in the hospitals.
d. The Action Plan shall identify potential sources of funding for community services and actions the State must take to access those sources, including actions to maximize appropriate federal funds to reallocate mental health budget funds to the community.
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5. The Parties and Amici shall have an opportunity to object to the Action Plan. Any such objections shall be raised with the Court within two weeks of the Independent Monitor’s issuance of the Action Plan. If not the subject of timely objection, or once approved by the Court, the Action Plan shall be entered as an order of this Court pursuant to Fed. R. Civ. P. 65.
6. The State shall implement the Action Plan. In particular, the State shall meet the numerical requirements and timetables in the Action Plan and take steps to ensure that all individuals in the hospitals are protected from harm, included harm from resident-on-resident assaults and self-harm.
7. Beginning two months after his/her appointment, the Independent Monitor shall monthly file with the Court a report detailing the Defendants’ compliance with the Action Plan.
8. Within one month of this Order and every month thereafter, the State shall provide the Independent Monitor with a list of individuals in the hospitals that the State deems appropriate for community placement and a list of all other individuals in the hospitals. All individuals in the hospitals not on the community placement list shall, within 60 - 39 -

days, be evaluated by the Independent Monitor, or someone under the Independent Monitor’s auspices, to determine the barriers to community placement for each such individual. The Independent Monitor shall also evaluate the monthly lists to identify systemic problems that are barriers to community placement and set forth actions that the State must take to redress these problems. The State shall promptly take action to remove barriers for each Individual in the Hospital and to address identified systemic problems. VIII. CONCLUSION For the forgoing reasons, the United States requests that the Court order immediate relief and that the Court set a hearing date to consider this request.
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Respectfully submitted, FOR THE UNITED STATES:

SALLY Q. YATES Acting United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
SHANETTA Y. CUTLAR Chief Special Litigation Section
JUDITH C. PRESTON Deputy Chief Special Litigation Section

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/s/ (Express Permission) MINA RHEE [GA Bar 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Mina.Rhee@usdoj.gov

/s/ Robert A. Koch MARY R. BOHAN [DC Bar 420628] TIMOTHY D. MYGATT [PA Bar 90403] ROBERT A. KOCH [OR Bar 072004] EMILY A. GUNSTON [CA Bar 218035] Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6270 Email: Robert.Koch@usdoj.gov

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Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch ROBERT A. KOCH Attorney Special Litigation Section
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CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the foregoing MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties in this matter via electronic notification or otherwise:
Jason S. Naunas Mark J. Cicero Assistant Attorneys General State Law Department 132 State Judicial Building 40 Capitol Square, S.W Atlanta, GA 30334-1300
Kenneth S. Canfield Doffermeyer, Shields, Canfield & Knowles, LLC 1355 Peachtree St., Suite 1600 Atlanta, GA 30309
Ira A. Burnim Alison N. Barkoff Bazelon Center for Mental Health Law 1101 15th St. NW, Suite 1212 Washington, DC 20005
Joshua H. Norris Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue, Suite 430 Decatur, GA 30030
This 28th day of January, 2010.
/s/ Robert A. Koch ROBERT A. KOCH Attorney Special Litigation Section

 
 Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. STATE OF GEORGIA, et al.,
Defendants.

)

)

)

)

Civil Action No.

)

1:09-CV-0119-CAP

)

)

)

NOTICE OF TERMINATION OF SETTLEMENT AGREEMENT AND JOINT REQUEST TO CLOSE CASE
On October 21, 2010, upon the parties’ joint request, the Court administratively closed this case [doc. no. 175] while the parties implemented their Settlement Agreement [doc. no. 7-2]. Plaintiff and Defendants hereby jointly notify the Court that the Settlement Agreement terminated, by its terms, on January 15, 2014.
Section IV.E of the Agreement provides that “[t]he Agreement shall terminate five years from the Effective Date.” This section contemplates that the State will attain substantial compliance prior to termination. With the exception of the discharge and transition planning provisions in Section III.F.1, 3, 4, and 5d of the Settlement Agreement, the parties agree that the State has attained substantial compliance. The parties further agree that the discharge and transition planning provisions contained in Section III.F.1, 3, 4, and 5d of the Settlement Agreement in

Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 2 of 5
this case are subsumed within Section III.D of the 2010 Settlement Agreement entered in the related case, Civil Action No. 1:10-CV-249 [see doc. no. 112]. The parties also agree that effective implementation of the discharge and transition planning terms are essential to compliance with the 2010 Settlement Agreement and will be subject to the Court’s jurisdiction and enforcement, if necessary, in Civil Action No. 1:10-CV-249.
There is no further need for the Court to retain jurisdiction for purposes of enforcing the now-terminated Settlement Agreement in this case. Accordingly, the parties respectfully ask the Court to close this case permanently.
Respectfully submitted, this 5th day of February, 2014.
(signatures on following pages)
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Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 3 of 5

FOR PLAINTIFF:

SALLY QUILLIAN YATES United States Attorney Northern District of Georgia

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division

/s/ Aileen Bell Hughes AILEEN BELL HUGHES Georgia Bar No. 375505 Assistant United States Attorney Northern District of Georgia
600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Telephone: (404) 581-6302 Facsimile: (404) 581-6163 Email: Aileen.Bell.Hughes@usdoj.gov

EVE HILL Senior Counselor Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
KATHERINE HOUSTON Trial Attorney

U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Telephone: (202) 305-2302 Facsimile: (202) 514-0212

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Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 4 of 5

FOR DEFENDANTS:
SAMUEL S. OLENS Attorney General Georgia Bar No. 033887
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098
SHALEN S. NELSON Senior Assistant Attorney General Georgia Bar No. 636575
JENNIFER DALTON Senior Assistant Attorney General Georgia Bar No. 614120
State Law Department 40 Capitol Square, S.W. Atlanta, Georgia 30334 Telephone: (404) 656-3357 Facsimile: (404) 463-1062 Email: jnaunas@law.ga.gov

/s/ Mark H. Cohen
(with express permission)
MARK H. COHEN Special Assistant Attorney General Georgia Bar No. 174567
Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Telephone: (404) 885-3597 Facsimile: (404) 962-6753 Email: mark.cohen@troutmansanders.com
JOSH BELINFANTE Special Assistant Attorney General Georgia Bar No. 047399
Robbins Ross Alloy Belinfante Littlefield LLC 999 Peachtree Street, N.E., Suite 1120 Atlanta, GA 30309 Telephone: (678) 701-9381 Facsimile: (404) 856-3250 Email: josh.belinfante@robbinsfirm.com

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Case 1:09-cv-00119-CAP Document 187 Filed 02/05/14 Page 5 of 5
CERTIFICATE OF SERVICE The undersigned hereby certifies that this Notice of Termination of Settlement Agreement and Joint Request to Close Case was electronically filed with the Clerk of Court using the CM/ECF system, which serves notification of such filing to all counsel of record. This 5th day of February, 2014.
/s/ Aileen Bell Hughes AILEEN BELL HUGHES Georgia Bar No. 375505 Assistant United States Attorney Northern District of Georgia