U.S. Department of Justice
Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Avenue, NW Washington, DC 20530
June 18, 2008

Via Electronic and US Mail

Emily Sweet, Esq.
 Deborah Dorfman, Esq.
 The City of New York
 Law Department
 100 Church St.
 New York, NY 10007

Re: Investigation of Kings County Hospital Center

Dear Counsel:

We write to memorialize the concerns raised during our May
 20-23, 2008 tour of the Kings County Hospital Center (“KCHC”).
 As you know, that investigatory tour was conducted pursuant to
 our authority under two federal statutes: the Civil Rights of
 Institutionalized Persons Act, 42 U.S.C. § 1997 (“CRIPA”), and
 the pattern or practice provision of the Violent Crime Control
 and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“14141”).

As noted during our exit briefing, we have not yet reached a
 conclusion as to whether KCHC is engaging in a pattern or
 practice of violating the constitutional and federal statutory
 rights of patients. However, we did note the following concerns
 regarding fire safety and sanitation issues which pose risks of
 serious harm and should be addressed immediately. 

1. Inadequate Fire Safety. The present fire safety system
 used for evacuating patients and staff in case of fire is
 inadequate and exposes both patients and staff to an
 unnecessarily high risk of harm, including death. During the
 tour, we observed two mock fire drills during which staff failed
 to act appropriately, including: failing to inquire as to the
 location of the fire; failing to bring fire extinguishers to the
 site; delays in pulling fire alarms; failing to supervise
 patients properly; and failing to evacuate patients to a safe
 egress in a timely manner. In addition, we found a
 non-operational smoke alarm in Unit G-31. The result is that the
 facility is not adequately prepared should an actual fire occur. 


- 2 ­
This is especially critical in the G building, which is an older
 building that is not equipped with sprinklers.

2. Inadequate Sanitation. The present system for handling
 and disposing of hazardous materials also is inadequate and
 exposes patients, staff, and the Kings County community to risk
 of harm. During our tour, we found open red hazardous carts
 (which are apparently used to store hazardous waste until it can
 be properly disposed) as well as hazardous waste bags in the
 outside dumpster areas. Leaving material in such a manner
 potentially exposes members of the community to infectious
 disease and injury. Such material should be disposed of in an
 appropriate manner.

As noted above, these conditions were raised during the exit
 interview, and we were given assurances that they would be
 addressed expeditiously. Accordingly, we would appreciate an
 update on KCHC’s efforts to address the concerns as soon as
 possible, but no later than June 30.

Finally, we appreciate the cooperation and professionalism
 demonstrated by counsel and KCHC staff at KCHC during the tour
 and we look forward to working with you on the upcoming KCHC tour
 in July. If you have any questions, please contact either of us,
 Cathleen Trainor at (202) 616-9009, or Laura M. Welp at
 (202) 353-3759.

Sincerely,

/s/ David Deutsch

David Deutsch
 Senior Trial Attorney
 Special Litigation Section
 Civil Rights Division
 Tel: (202) 514-6270
 Fax: (202) 514-6273

BENTON J. CAMPBELL
 United States Attorney

By: Michael J. Goldberger
 Chief of Civil Rights
 Civil Division
 United States Attorney’s
 Office
 Eastern District of New York
 Tel: (718) 254-6052
 Fax: (718) 254-6081


 
 U.S. Department of Justice Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Avenue, NW Washington, DC 20530
August 22, 2008

Via Electronic and US Mail

Emily Sweet, Esq.
 Deborah Dorfman, Esq.
 The City of New York
 Law Department
 100 Church St.
 New York, NY 10007

Re: Investigation of Kings County Hospital Center

Dear Counsel:

We write to memorialize the concerns we raised during our
 July 28, 2008 through August 1, 2008 tour of the Kings County
 Hospital Center (“KCHC”). As you know, we conducted this initial
 investigatory tour pursuant to our authority under the Civil
 Rights of Institutionalized Persons Act, 42 U.S.C. § 1997
 (“CRIPA”).1

As we noted during the post-tour briefing we held with you
 and your clients, the City of New York (“City”) and the Health
 and Hospital Corporation (“HHC”), we have not yet reached a
 conclusion as to whether KCHC is engaging in a pattern or
 practice of violating the constitutional and federal statutory
 rights of patients. However, as set forth below, there are
 several policies and practices at KCHC which pose imminent risks
 of serious harm to patients and which should be addressed
 immediately. 

1
 As you also know, we have a concurrent investigation of
 KCHC pursuant to the pattern or practice provision of the Violent
 Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141
 (“14141”).


- 2 ­
1. Inadequate Mental Health Assessments. 

Frequently, patients with mania are not being clearly
 diagnosed and assessed by KCHC physicians. As a result, these
 patients, instead of receiving appropriate mood stabilizers, are
 being treated with anti-depressants. This improper treatment
 serves to exacerbate rather than treat the patients’ mania.
 Physicians and other staff should be trained immediately as to
 how to assess and treat mania to avoid further harm to patients
 with this disorder.

2. Inappropriate Drug Combinations. 

KCHC physicians are routinely prescribing both Thorazine
 (chlorpromazine) and Seroquel (quetiapine) to both children and
 adults. This is a potentially dangerous drug combination which
 can cause hypotension (decreased or lowered blood pressure) and
 result in falls and injuries. Prescribing these two medications
 together is contrary to generally accepted professional
 standards. KCHC should discontinue this practice immediately or,
 at a minimum, implement strict controls and monitoring on the use
 of this combination of drugs.

3. Inappropriate Use of Drugs for Sedative Effect. 

KCHC physicians also routinely prescribe medications
 apparently only for their secondary sedative effect, including
 Ativan (lorazepam), Thorazine (chlorpromazine) and Seroquel
 (quetiapine). The dosage levels at which KCHC prescribes these
 medications do not have therapeutic value to address the
 patients’ underlying disorder. Prescribing such medications
 primarily for their sedative effects – and not to treat or
 address a patient’s underlying disorder – is inappropriate and
 violates generally accepted professional standards. 

4. Inadequate Medical Care for Patients With Diabetes. 

We have serious concerns regarding the adequacy of KCHC’s
 medical management of patients with diabetes. For example, we
 reviewed the records of a patient on Unit G-53 who had
 uncontrolled diabetes; her blood sugar readings ranged from 40 to
 400 over the course of one 24-hour period. The patient’s charts 


- 3 ­
indicated that nothing was done to stabilize her condition. This
 put the patient at immediate risk of harm, including diabetic
 coma or shock. Given the metabolic changes that some medications
 cause, including atypical anti-psychotic drugs, KCHC must also
 pay more careful attention to the treatment and care of patients
 with diabetes. It should also develop policies to screen and
 manage metabolic issues relating to the use of anti-psychotic
 drugs. 

5. Inadequate Medical Emergency Response. 

Our review of records and materials, including videotape, in
 connection with the death of Esmin G. in KCHC’s CPEP unit on June
 19, 2008, raises substantial concerns regarding the adequacy of
 patient supervision and the monitoring of patients by the staff,
 including medical personnel and hospital police, and systems of
 accountability which appeared to have failed. Specifically, we
 note that, although medical and hospital police staff apparently
 observed Esmin G. lying on the floor of the CPEP waiting area,
 during the course of the entire hour she lay there, no one
 approached her to check on her status. Further, it appears that
 video monitors which should have conveyed images of Esmin G. on
 the floor were not adequately monitored. 

We also have concerns regarding the conduct of medical staff
 in running the emergency code operation beginning at
 approximately 6:40 A.M. As an initial matter, it appears that no
 one was clearly in charge of coordinating or directing the code
 for several potentially crucial minutes. From the video, it also
 appears - contrary to generally accepted medical practice - 
 medical staff did not address airway, breathing or cardiac
 issues, but rather, first took a “finger stick” to assess Esmin
 G.’s blood sugar. 

Our review of emergency medical code drills procedures
 during our recent tour buttresses these preliminary findings.
 During these drills, KCHC staff failed to respond in an
 appropriate manner and staff apparently were not adequately
 trained in conducting medical codes. 


- 4 ­
Accordingly, we urge the City to take immediate measures to
 ensure that: 1) KCHC mental health patients are adequately
 supervised and monitored at all times; 2) medical emergencies are
 responded to swiftly and adequately; and 3) KCHC staff are
 adequately trained in dealing with medical codes and emergencies.
 We make this recommendation with the recognition that KCHC
 already has begun to implement changes to try to address these
 issues. We encourage KCHC to continue to take all necessary
 measures to ensure the safety and appropriate medical treatment
 of all patients in the CPEP. 

6. Falsification of Medical Records.

Finally, we note that the entries in Esmin G.’s medical
 records are directly contradicted by the video. Specifically,
 the records state that she was walking around and went to the
 bathroom at 6:00 A.M., at a time that she is seen in the video
 lying prostrate on the CPEP floor. Additionally, during our site
 visit, we were also informed by HHC President Alan Aviles that
 HHC staff had discovered that a nurse had falsified a restraint
 record of patient Patricia R. These incidents raise serious
 concerns about the reliability of medical records in the mental
 health units. Intentionally or otherwise inaccurate records can
 cause error in treatment resulting in patient harm. We urge KCHC
 to take immediate measures to address not only the two incidents
 described in this paragraph, but also to ensure that medical
 records accurately reflect treatment. This should include
 training and education of mental health staff regarding the
 importance of accurate record-keeping and the potential harm to
 patients if false or inaccurate entries are made in patients’
 charts.

As noted above, these conditions were raised during our
 recent tour, and we were given assurances that they would be
 addressed expeditiously. Accordingly, we would appreciate an
 update on KCHC’s efforts to address the concerns as soon as
 possible, but no later than September 2, 2008.


- 5 ­
Finally, we appreciate the cooperation and professionalism
 demonstrated by counsel and KCHC staff during the tour. If you
 have any questions, please contact either of us using the
 information provided below, or through Special Litigation Section
 attorneys Cathy Trainor at (202) 616-9009, or Laura M. Welp at
 (202) 353-3759.

Sincerely,

/s/ David Deutsch

David Deutsch
 Senior Trial Attorney
 Special Litigation Section
 Civil Rights Division
 Tel: (202) 514-6270
 Fax: (202) 514-6273

BENTON J. CAMPBELL
 United States Attorney

/s/ Michael J. Goldberger

By: Michael J. Goldberger
 Chief of Civil Rights
 Civil Division
 United States Attorney’s
 Office
 Eastern District of New York
 Tel: (718) 254-6052
 Fax: (718) 254-6081


 
 U.S. Department of Justice Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Avenue, NW Washington, DC 20530
November 7, 2008

Via Electronic and US Mail

Martha Calhoun, Esq.
 Emily Sweet, Esq.
 The City of New York
 Law Department
 100 Church St.
 New York, NY 10007

Re: DOJ Investigation of Kings County Hospital Center

Dear Counsel:

We write to memorialize our concerns raised by recent
 serious incidents in the inpatient mental health units at Kings
 County Hospital Center (“KCHC”).1 As you know, we have been
 investigating conditions in KCHC’s inpatient mental health units
 pursuant to our authority under the Civil Rights of
 Institutionalized Persons Act, 42 U.S.C. § 1997 (“CRIPA”).2

As we noted during the two post-tour briefings we conducted
 with you and your clients, the City of New York (“City”) and the
 New York City Health and Hospitals Corporation (“HHC”), we have
 not yet reached a conclusion as to whether KCHC is engaging in a
 pattern or practice of violating the constitutional and federal
 statutory rights of mental health patients at KCHC. However, the
 incidents described below evidence conditions at KCHC which pose
 imminent risk of serious harm to patients and therefore require
 immediate attention.

1
 We note that this is our third letter detailing
 conditions at KCHC that pose imminent risk of serious harm to
 patients.

2
 As you also know, we have a concurrent investigation of
 KCHC pursuant to the pattern or practice provision of the Violent
 Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141
 (“14141”).


- 2 ­
1. The Recent Incidents

Two recent incidents have precipitated our concerns. The
 first involves inappropriate sexual activity on the boys’
 adolescent unit. As you have reported to us, on the evening of
 September 25, 2008, two 14-year-old youths, A.Z. and B.Y.,
 engaged in “consensual”3
 anal and oral sex in the room of a third
 patient, C.X., even though both B.Y. and A.Z. were supposed to be
 on constant fifteen minute observation.4 On the morning of
 September 26, 2008, a 16-year-old youth, E.V., also assigned to
 one-to-one supervision by KCHC staff, is alleged to have forced
 A.Z. to engage in oral sex with him.5 In addition, according to
 his chart, A.Z. also attempted suicide on two occasions, on
 September 22, 2008, and September 27, 2008.

The second incident occurred on October 15, 2008. Five
 patients on Unit G-41 reportedly engaged in a brawl. One of the
 patients, D.W., sustained a compound fracture of his thumb which
 required surgery, as well as injury to his forehead.

2. KCHC Does Not Adequately Protect Patients from Harm

Patients at KCHC have a right to live in reasonable safety.
 See Youngberg v. Romeo, 457 U.S. 307, 315, 322 (1982). Our
 review of documentation from the recent incidents at KCHC
 suggests that KCHC is not adequately protecting patients’ safety.
 The incidents reveal inadequate, ineffective, and
 counterproductive treatment resulting in serious harm, including
 frequent patient assaults and unchecked self-injurious behavior.
 The harm KCHC patients experience is multi-faceted and includes
 physical and psychological injury. The facility’s ability to
 address this harm is hampered by inadequate incident, risk, and
 quality management, including deficient investigative practices. 


3

The medical records describe the incident as


“consensual.” This classification is questionable especially in


view of the ages of the boys and their mental status.


4
 To protect the patients’ identities, we use fictitious
 initials throughout this letter. We will separately transmit to
 counsel a schedule cross-referencing the fictitious initials with
 the patients’ names.


5
 Most notably, it appears that KCHC staff did not become
 aware of these incidents until September 27, 2008, almost two
 days after the first incident and more than 24 hours after the
 second. 


- 3 ­
These problems are serious and recurring and need to be addressed
 immediately. 

We highlight two areas where the problems are particularly
 acute: failure to identify and control patient aggression and to
 address suicidal ideation and attempts.

a. Patient Aggression and Assaultive
 Behaviors Are Not Controlled

Patient aggression is not adequately controlled on many of
 the units at KCHC. In both of the sexual misconduct incidents
 described above, staff failed to properly monitor patients and
 failed to proactively address potentially aggressive behavior.
 With respect to the incident on the boys’ adolescent unit, B.Y.
 and A.Z. were supposed to be observed every fifteen minutes;
 E.V., the apparent aggressor in the second sexual incident, was
 supposedly on one-to-one constant observation. If such
 observations were conducted properly, the incidents should have
 been prevented. KCHC’s failure to properly monitor and supervise
 these youths is both disturbing and unacceptable. 

Moreover, the incident reports and medical records we
 reviewed are inconsistent. Critical information is omitted from
 some or all of the records. For example, it appears that B.Y. is
 HIV positive -- no notations of this are contained anywhere in
 the records of either A.Z. or E.V.. Similarly, it appears that
 E.V., the 16-year-old youth, was a gang member known to
 intimidate younger patients. This information, while contained
 in B.Y.’s medical record, is missing from E.V.’s own medical
 record. Accordingly, KCHC fails to provide treatment teams with
 readily available critical information necessary to provide
 appropriate care.

The October 15, 2008, five-patient brawl also demonstrates
 KCHC’s failure to control and ensure patient safety. Apparently,
 staff was unable to de-escalate the conflict before it ignited.
 Moreover, the conflict escalated into a fight without any
 intervention by staff. 

Staff, as well as patients, are often the victims of
 assaultive behavior. In addition to the October 15, 2008,
 incident, our review of the critical incidents recently provided
 to us revealed several serious incidents of patient aggression
 against staff. For example, on unit G-31, on October 5, 2008, a
 patient assaulted staff members, striking one nurse in the face.
 The patient also struck another nurse with a chair. Again, there
 was no staff or security intervention at all.


- 4 ­
b. Suicidal Ideation and Attempts Are Not
 Addressed Appropriately

A significant number of patients are admitted to KCHC for
 stabilization and protection because of suicidal ideation or
 attempts. Our preliminary review of recent incidents reveals 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. 

The medical record of one of the youths involved in the
 sexual incident is illustrative of the problem. A.Z., a
 14-year-old youth, was assessed on admittance as being
 “suicidal.” He had a history of six past psychiatric admissions
 at KCHC, most recently from March to May 2008. A.Z.’s medical
 record details a history of A.Z. threatening to hurt himself,
 including threats to end his life. His most recent admission, on
 August 21, 2008, lists “aggressive and impulsive behaviors” and
 “danger to himself and others” as the reason for his admission to
 KCHC. 

On September 21, 2008, A.Z. was involved in a physical
 altercation with E.V., the 16-year-old patient who would later
 sexually assault him. No actions or changes were made to his
 treatment plan except that the next day, A.Z. was placed on
 one-to-one observation. Later that day, September 22, 2008, A.Z.
 attempted suicide by wrapping a video game controller wire around
 his neck. 

On September 25, 2008, A.Z. was taken off constant
 one-to-one observation and placed on 15-minute observation.
 There is no explanation in the chart for the change in status.
 That same day, September 25, 2008, A.Z. was involved in the
 “consensual” sexual incident described above. The following day,
 September 26, 2008, E.V. forced A.Z. to engage in sexual conduct
 with him. 

On September 27, 2008, after KCHC officials learned of the
 sexual incidents, A.Z. was again placed on one-to-one constant
 observation. Later that same day, A.Z. again attempted to kill
 himself by wrapping a video game controller wire around his neck.
 The incident reports state merely that the patient was upset due
 to “previous incident earlier that day” but fails to describe or
 analyze the assault incidents, note the fact that patient was on
 constant observation, or that the patient had previously
 attempted suicide.


- 5 ­
Our review of the recent reports provided to the New York
 State Office of Mental Health revealed several other incidents of
 attempted suicide, some of which occurred while patients were on
 constant Level I one-on-one observation.6

Generally, we have observed no adjustments in patients’
 treatment plans as a result of patients’ assaultive and
 self-injurious behavior. The repeated and significant level of
 aggression and self-injurious behavior on the units suggests a
 fundamental failure to address the root causes of patients’
 inappropriate behavior and demonstrates a failure to intervene
 adequately to prevent future incidents. Additionally, incident
 investigation is inadequate. The investigations are cursory,
 incomplete, and lack critical information necessary to address
 clinical deficiencies. Accordingly, we urge the City to take
 immediate measures to ensure that: 

1) KCHC mental health patients are adequately supervised
 and monitored at all times; 

2) KCHC patients identified as being vulnerable to
 physical or sexual attack are adequately protected and
 that patients who are attacked receive appropriate
 treatment and care; 

3) KCHC create or revise, as appropriate, and implement
 comprehensive, consistent incident management policies
 and procedures regarding patient aggression and suicide
 ideation or attempts; 

4) KCHC provide clear guidance regarding reporting
 requirements and the categorization of incidents,
 including requiring all staff to complete
 competency-based training in the revised reporting
 requirements;

5) KCHC develop and implement policies and procedures that
 address the root causes of patients’ aggression and
 suicide ideation or attempts including appropriate
 interventions to prevent future incidents;

6) KCHC develop and implement appropriate policies and

6
 KCHC does not have appropriate policies and procedures
 that comport with generally accepted professional standards
 regarding one-to-one observation and 15-minute checks. Nor are
 such observations and monitoring conducted properly. 


- 6 ­
procedures in accordance with generally accepted
 professional standards regarding patient monitoring,
 including one-to-one observation and 15-minute patient
 checks;

7) KCHC develop and implement appropriate policies and
 procedures regarding the investigation of incidents. 

We request an update on KCHC’s efforts to address the
 concerns expressed above, as soon as possible, but no later than
 November 17, 2008. If you have any questions, please contact
 either of us using the information provided below, or through
 Special Litigation Section attorneys Cathy Trainor at (202)
 616-9009, or Laura M. Welp at (202) 353-3759.

Sincerely,

/s/ David Deutsch

David Deutsch
 Senior Trial Attorney
 Special Litigation Section
 Civil Rights Division
 Tel: (202) 514-6270
 Fax: (202) 514-6273

BENTON J. CAMPBELL
 United States Attorney

/s/ Michael J. Goldberger

By: Michael J. Goldberger
 Chief of Civil Rights
 Civil Division
 United States Attorney’s
 Office
 Eastern District of New York
 Tel: (718) 254-6052
 Fax: (718) 254-6081


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

Mayor Michael R. Bloomberg
 City Hall
 New York, NY 10007

Re: CRIPA Investigation of Kings County Hospital Center

Dear Mayor Bloomberg:

We are writing to report the findings of the Civil Rights
 Division and the United States Attorney’s Office for the Eastern
 District of New York regarding our joint investigation of
 conditions and practices at the inpatient psychiatric units and
 psychiatric emergency room at Kings County Hospital Center
 (“KCHC”) located in Brooklyn, New York. On December 7, 2007, we
 notified you that we were initiating an investigation pursuant to
 the Civil Rights of Institutionalized Persons Act (“CRIPA”),
 42 U.S.C. § 1997, and a parallel investigation of the KCHC
 Hospital Police pursuant to the Violent Crime Control and Law
 Enforcement Act of 1994, 42 U.S.C. § 14141 (“§ 14141”). The
 Department of Justice is authorized under CRIPA to seek a remedy
 for a pattern or practice of conduct that violates the
 constitutional or federal statutory rights of patients with
 mental illness who are treated in public institutions. Section
 14141 authorizes the Department of Justice to seek a remedy for a
 pattern or practice of police misconduct that violates citizens’
 constitutional rights.1

As part of our investigation, during the spring, summer and
 fall of 2008, we conducted three on-site reviews of care and
 treatment at KCHC and of the Hospital Police. On these tours, we
 were aided by expert consultants in the fields of psychiatry,
 psychology, psychiatric nursing, protection from harm, life

1
 Section 14141 does not mandate issuance of “findings.” We
 have not, however, concluded our review of incidents involving the
 Hospital Police and therefore have not yet determined whether
 Hospital Police are engaging in a pattern or practice of excessive
 use of force. 


- 2 ­
safety, discharge planning and community placement, and hospital
 police and security. While on-site, we interviewed
 administrative staff, mental health care providers, hospital
 police staff and patients, and examined the physical living
 conditions at the facility. Additionally, before, during, and
 after our on-site inspection tours, we reviewed an extensive
 array of documents, including policies and procedures, incident
 reports, and medical and mental health records. Consistent with
 our commitment to provide technical assistance and conduct
 transparent investigations, we concluded our tours with extensive
 debriefings at which our consultants conveyed their initial
 impressions and concerns to counsel, KCHC administrators and
 staff, and City officials.

We appreciate the cooperation we received from the New York
 City Health and Hospitals Corporation (“HHC”) and the New York
 City Corporation Counsel’s office. We also wish to thank the
 administration and staff at KCHC for their professional conduct,
 their responsiveness to our information requests, and the
 extensive assistance they provided during our tour. Further, we
 wish to especially thank those individual KCHC staff members,
 both newly appointed and longstanding employees, who make daily
 efforts to provide appropriate care and treatment. Those efforts
 were noted and appreciated by the Department of Justice, the
 United States Attorney’s Office and our expert consultants. We
 hope to continue to work cooperatively with HHC, KCHC and the
 City of New York to address the deficiencies found at the
 facility.

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

We note, at the outset, however, that conditions at KCHC are
 particularly disturbing. Substantial patient harm occurs
 regularly due to KCHC’s failure to properly assess, diagnose,
 supervise, monitor, and treat its mental health patients. We are
 particularly troubled by the patient death that occurred in June
 2008, where a patient was left unattended and died face down on
 the floor as staff and security guards ignored her. Further, we
 find that the number of incidents of patient-on-patient
 aggression is extraordinarily high and is continuing with little
 or no abatement. Conditions at KCHC are highly dangerous and
 require immediate attention. As a result, we issued three
 immediacy letters (see attached) during the course of our


- 3 ­
investigation.2 In the first, dated June 18, 2008, we wrote to
 express our concerns regarding serious fire safety and sanitation
 issues in the mental health units. On August 22, 2008, we sent a
 second immediacy letter, which cited several policies and
 practices at KCHC which posed imminent risks of serious harm to
 patients, including inadequate mental health assessments,
 inappropriate drug combinations, and inappropriate use of drugs
 solely for their secondary sedative effect. Each of these
 deficiencies resulted in no treatment, or minimal treatment, for
 mentally ill patients. We also identified in this letter
 inadequate care for patients with diabetes, inadequate medical
 emergency responses due to inadequate supervision and monitoring
 of patients and poorly trained personnel that contributed to the
 death of a patient in the psychiatric emergency room, and the
 falsification of medical records.

We issued a third immediacy letter on November 7, 2008.
 That letter detailed three recent serious incidents in the
 inpatient mental health units which posed imminent risk of
 serious harm to patients. That risk of harm was generated in
 large part by inadequate, ineffective, and counterproductive
 treatment and the resulting failure to identify and control
 patient aggression and to address suicidal ideation and
 attempts.3 Actual harm resulted from the incidents described in
 the letter. In one, a 14-year-old adolescent patient was
 sexually assaulted by another adolescent patient. In the other,
 six patients engaged in a brawl which resulted in one patient
 requiring surgery to fix a fractured finger.

Moreover, in addition to the notice we provided while
 on-site, KCHC has been on notice for some time of many of the
 findings we make in this letter, having been notified previously
 of deficiencies in the mental health service by other agencies.
 For example, the United States Department of Health and Human
 Services, Centers for Medicare and Medicaid Services, in August
 2008, surveyed KCHC and described KCHC’s failure to meet federal
 regulatory standards regarding: (1) protection from harm; 

2
 In each of the letters, we noted that we had not yet
 reached a conclusion as to whether KCHC was engaging in a pattern or
 practice of violating the constitutional and federal statutory
 rights of patients, but nevertheless, the issues were being raised
 at that time due to the imminent risks of serious harm to patients
 that required immediate attention.

3
 We note that once notified, KCHC began to take action to
 address the deficiencies.


- 4 ­
(2) mental health treatment; (3) nursing and health care; and
 (4) specialized needs services, resulting in injuries to
 patients, including death. See also Denial of Recertification of
 KCHC by New York State Office of Mental Health (“OMH”) (November
 2008) (describing failure to meet state regulatory standards in
 protection from harm, mental health treatment, and nursing and
 health care); New York State Department of Health (“DOH”)
 Statement of Deficiencies (July 2008); Joint Commission on
 Accreditation of Healthcare Organizations (“JCAHO”) Survey
 Findings (July 2008); New York State Commission on Quality of
 Care and Advocacy for Persons with Disabilities (“CQCAPD”) review
 (September 2006); OMH survey of KCHC child and adolescent
 inpatient psychiatric services (May 2006).

We note also that conditions at KCHC are the subject of a
 lawsuit filed by Mental Hygiene Legal Services of New York State
 (“MHLS”), the Protection and Advocacy agency4
 for the State of
 New York (see Hirschfeld o/b/o L.D. et al. v. New York City
 Health and Hospitals Corp., et al., Civil Action No. CV-07-1819
 (KAM) (E.D.N.Y. May 2, 2007)). This lawsuit challenges
 conditions of confinement at KCHC, including staff violence,
 failure to provide adequate psychiatric and medical care, the use
 of physical and chemical restraints for punishment, and physical
 conditions. In addition, the news media has reported on
 conditions at KCHC.5 Throughout this letter, we include specific
 references to past findings by these entities, where
 appropriate.6


4

The Protection and Advocacy (“P&A”) system is a nationwide


network of federally mandated disability rights agencies. In each


State and through a national office, these organizations are


required by law to pursue legal, administrative, and other


appropriate remedies to protect and advocate for the rights of


persons with disabilities. 42 U.S.C. § 10801. Mental Hygiene Legal


Services is a duly authorized agency of the State of New York and is


responsible for providing protection and advocacy services for


individuals receiving services for mental disabilities. N.Y. Mental


Hygiene Law Article 47.


5
 See, e.g., John Marzulli, Brooklyn Psych Ward a Snake Pit,
 N.Y. Daily News, Dec. 16, 2008.


6
 In addition to surveys of KCHC by federal and state
 regulatory agencies, we also reviewed a self-initiated survey of
 KCHC’s mental health facilities by Caldwell Management Associates.
 The August 2007 findings and recommendations of the consulting group
 reflected similar and often identical concerns.


- 5 ­
I. BACKGROUND

KCHC is a public acute care hospital operated by HHC, a
 public benefit corporation created by New York State legislation
 in 1970 to oversee the public health system throughout the five
 boroughs of New York City.7 The psychiatric facility at KCHC
 consists of: (1) a dedicated psychiatric emergency department,
 with a maximum capacity of 25 patients, as well as six Extended
 Observation Beds, known as the Comprehensive Psychiatric
 Emergency Program (“CPEP”); (2) a 160-bed adult inpatient unit;
 and (3) a 46-bed child and adolescent inpatient unit. For
 purposes of this findings letter, “KCHC” refers to only these
 three units, although the hospital itself provides a full range
 of other medical services.

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 treatment as may be reasonable
 in light of their constitutionally-based liberty interests.
 Youngberg v. Romeo, 457 U.S. 307, 315, 319, 322, 324 (1982); see
 Woe v. Cuomo, 638 F. Supp. 1506, 1516 (E.D.N.Y. 1986)(“[t]he
 involuntarily committed patient has a right to decent and humane
 conditions”) reversed on other grounds, 801 F.2d 627 (2d Cir.
 1986); see also P.C. v. McLaughlin, 913 F.2d 1033, 1044 (2d Cir.
 1990) quoting Doe v. New York City Department of Social Services,
 649 F.2d 134, 141 (2d Cir. 1981)(“[t]he law makes clear that
 ‘[w]hen individuals are placed in custody or under the care of
 the government, their governmental custodians are sometimes
 charged with affirmative duties, the non-feasance of which may
 violate the constitution’”); Society for Good Will to Retarded
 Children, Inc. v. Cuomo, 737 F.2d 1239, 1245, 1247 (2d Cir.
 1984).

7
 HHC provides medical, mental health and substance abuse
 services through its 11 acute care hospitals, which include Kings
 County Hospital Center, four skilled nursing facilities, six large
 diagnostic and treatment centers and more than 80 community based
 clinics. HHC Health and Home Care division also provides home
 health care services, including nursing, physical therapy, speech
 pathology, personal care, and housekeeping services. HHC is a $5.4
 billion corporation, the largest municipal hospital and health care
 system in the country, and serves 1.3 million New Yorkers, nearly
 400,000 of whom are uninsured.


- 6 ­
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 made in
 accordance with the judgment of qualified professionals acting
 within professional standards. Messier v. Southbury Training
 School, 562 F. Supp.2d 294, 301 (D. Conn. 2008); see also Hughes
 v. Cuomo, 862 F. Supp. 34, 37 (W.D.N.Y. 1994). 

In addition, patients’ constitutional right to reasonable
 safety compels public entities to provide reasonable protection
 from harm in mental health hospitals. Youngberg, 457 U.S. at
 315-16. The Due Process Clause requires individualized treatment
 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). Public entities 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, states may not rely on drugs
 to the exclusion of other methods to treat people with behavior
 problems.” Id. at 1188. Further, 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. Thomas S., 699 F.
 Supp. at 1189. Seclusion and restraint should be used only as a
 last resort. Id.

Federal Medicare/Medicaid regulations governing certified
 psychiatric hospitals, such as KCHC, also require adequate
 staffing, record keeping, care, treatment, and discharge
 planning. 42 C.F.R. §§ 482-483.

Finally, KCHC 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
 (“ADA”), 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 v. L.C., 527 U.S.
 581 (1999).


- 7 ­
III. FINDINGS

Significant and wide-ranging deficiencies exist with respect
 to KCHC’s provision of care to its mental health patients.
 Certain conditions and services at KCHC substantially depart from
 generally accepted professional standards, and therefore violate
 the constitutional and federal statutory rights of patients who
 reside there.

A principal example of KCHC’s failure to provide care
 consistent with generally accepted professional standards is the
 well-publicized collapse and death of 49-year-old patient Esmin
 Green.8 Ms. Green was admitted to the CPEP on June 18, 2008.
 She remained there for almost 24 hours, without a bed, until
 approximately 5:30 a.m. on June 19, 2008. At that time, she
 collapsed from her chair and lay prone on the floor, limbs askew.
 She remained face down on the floor for approximately one hour
 without any attention from staff. 

During that hour, surveillance video shows that several
 staff members, including one doctor and two Hospital Police
 officers, entered the waiting area, appeared to observe Ms. Green
 lying on the floor, and then left without offering any
 assistance. In addition, although the video image was broadcast
 to surveillance monitors, the monitors’ images were either
 ignored or unwatched by staff. 

Although Ms. Green can be observed on the surveillance video
 moving occasionally while she lay on the floor, she appears to
 have died before a medical code was called. When staff responded
 to the code, the surveillance video shows a disorganized, and
 largely medically inappropriate, emergency response. Further,
 after the incident, it was discovered that medical documents
 regarding the circumstances of Ms. Green’s death had been
 falsified.9

While perhaps unique in the extent of the harm that
 resulted, the tragic case of Ms. Green typifies the patterns of
 inadequate care and treatment of patients at KCHC. In
 particular, we find that KCHC: (1) fails to adequately protect
 its patients from harm; (2) fails to provide adequate mental
 health care; (3) fails to provide adequate behavioral management

8
 We use Ms. Green’s full name herein because the
 circumstances surrounding her death are matters of public record. 

9
 We describe different aspects of KCHC staff’s handling of
 Ms. Green’s collapse and death throughout this letter.


- 8 ­
services; (4) fails to provide adequate medical and nursing care;
 (5) has inadequate quality management practices; (6) fails to
 provide a safe physical environment; (7) has inadequate clinical
 leadership; and (8) fails to adequately develop discharge plans.
 Many of these deficiencies stem from a system that has neither
 clear, specific standards of care nor an adequately trained
 supervisory, professional, and direct care staff.

A. Inadequate Protection From Harm

Patients at KCHC have a right to live in reasonable safety.
 See Youngberg, 457 U.S. at 315-16, 322. Generally accepted
 professional standards require that facilities appropriately
 monitor and supervise patients in order to ensure their
 reasonable safety. KCHC fails to provide a living environment
 that complies with this constitutional mandate or generally
 accepted professional practices. There are widespread patient-
 against-patient assaults and unchecked self-injurious behaviors.
 In addition, the housing units contain environmental hazards,
 some of which pose risks of serious injury, illness, and death.
 The harm KCHC patients experience as a result of these
 deficiencies is multi-faceted, and includes physical injury;
 psychological harm; excessive and inappropriate use of
 restraints; inadequate, ineffective, and counterproductive
 treatment; and frequent re-admissions leading to excessive
 hospitalizations. The facility’s ability to address this harm is
 hampered by inadequate incident management and quality assurance
 systems.

In addition, KCHC’s policies and practices with respect to
 monitoring and supervising patients in its custody, especially
 patients assessed to be at risk, are inappropriate, ineffective,
 and often cause patient harm. As discussed below, KCHC largely
 uses close (“one-to-one”) observation and physical and chemical
 restraints to control patients who exhibit dangerous behavior,
 often to the exclusion of techniques which are less intrusive,
 less harmful, and often more effective. The frequency and extent
 of use of these measures also is inappropriate.

1. Failure to Control Patient Aggression and Assaultive
 Behaviors 

Patient aggression is not adequately controlled on many of
 the units at KCHC.10 Indeed, physical and sexual assaults are

10
 We notified counsel for KCHC of our concerns about patient
 aggression and assaultive behaviors not being adequately controlled
 in our November 7, 2008 immediacy letter.


- 9 ­
not uncommon at KCHC. Several recent incidents reported to us by
 KCHC counsel are illustrative:

• On September 25, 2008, two 14-year-old youths, A.Z. and
 B.Y., engaged in reportedly consensual anal and oral sex in
 the room of a third patient, C.X., even though both B.Y. and
 A.Z. were supposed to be checked every fifteen minutes by
 staff.11 The next morning, A.Z. was assaulted by a
 16-year-old youth, E.V., who allegedly forced A.Z. to engage
 in oral sex with him. E.V. was reportedly assigned to
 constant one-to-one supervision by KCHC staff. Notably,
 staff learned of their activity only after another patient
 disclosed the information two days after the first event.12

• On October 15, 2008, six patients on Unit G-41, all
 ondifferent levels of observation, engaged in a brawl. One
 of the patients, D.W., sustained an injury to his forehead
 and a compound fracture of his thumb which required surgery.

• On August 21, 2008, staff discovered a male patient standing
 in the activity room of Unit G-33 behind a female patient,
 F.A., engaged in sexual intercourse. During patient
 interviews by staff following the incident, the female
 patient reported that she had not consented to the sex. The
 male patient was arrested and charged with rape.

• On November 22, 2008, patient G.B., an 18-year-old male
 patient with mental retardation and autism, was admitted to
 the CPEP. On November 30, 2008, eight days later, he
 remained in the CPEP.13 On that date G.B. was found

11 As we noted in our November 7, 2008 immediacy letter,
 although the medical records described this sexual behavior as
 consensual, we believe this classification is questionable given the
 ages of the boys and their mental status. 

12 To protect the patients’ identities, we use fictitious
 initials throughout this letter. We will separately transmit to
 counsel a schedule cross-referencing the fictitious initials with
 the patients’ names.

13
 We note that the length of this patient’s stay in the CPEP
 violates the New York State Mental Hygiene Law and the Preliminary
 Injunction Consent Order dated July 2, 2008 issued by United States
 District Judge Kiyo A. Matsumoto in the Hirschfeld action. Section
 9.40 of the New York State Mental Hygiene Law prohibits a hospital
 from keeping a patient in a CPEP for more than 24 hours without
 either an assignment to one of the six Extended Observation beds in
 the CPEP, or admission to one of the inpatient units.


- 10 ­
kneeling in a restroom in the CPEP in front of another male
 patient, apparently performing oral sex. From the reports
 we have received, G.B. did not consent to the sex; indeed,
 he may not have had the mental capacity to consent.

In each of the incidents described above, our review of
 incident reports and patient records indicated that staff failed
 to properly monitor patients and failed to proactively address
 potentially aggressive behavior. This problem requires immediate
 attention.14

2. Failure to Protect Patients Expressing Suicidal
 Ideation and Attempting Self-Harm

A significant number of patients are admitted to KCHC for
 stabilization and protection because of suicidal ideation or
 suicide attempts. Our review reveals a troubling number of such
 patients who nonetheless obtained the means to attempt suicide
 and/or who inflicted serious self-harm.15

The medical record of one of the youths involved in the
 sexual incident which occurred on September 25 and 26, 2008, is
 illustrative of the problem. A.Z., a 14-year-old youth, was
 assessed on admittance as being “suicidal.” He had a history of
 six previous psychiatric admissions at KCHC, most recently from
 March to May 2008. A.Z.’s medical record details a history of
 A.Z. threatening to hurt himself, including threats to end his
 life. His most recent admission, on August 21, 2008, lists
 “aggressive and impulsive behaviors” and “danger to himself and
 others” as the reason for his admission to KCHC. 

14 KCHC informs us that it has recently instituted a new
 “Violence Reduction Program” (“VRP”). The VRP fails to promote an
 understanding of the etiology of the violent behavior or to guide
 the treatment of aggressive patients accordingly. Instead, it
 focuses on patient self-management skills and serves as an advance
 directive regarding medications that might be used pro re nata
 (“PRN”) or “as needed” as opposed to regularly scheduled
 medications. Violence prevention is not integrated into routine
 assessment, reassessment, and treatment planning. 

15
 We notified counsel for KCHC of these serious concerns in
 our November 7, 2008 immediacy letter. 


- 11 ­
On September 21, 2008, A.Z. was involved in a physical
 altercation with E.V., the 16-year-old patient who would later
 sexually assault him. No actions or changes were made to his
 treatment plan16
 until the next day, when A.Z. was placed on
 constant one-to-one observation.17 Later that day, September 22,
 2008, A.Z. attempted suicide by wrapping a video game controller
 wire around his neck. 

On September 25, 2008, A.Z. was taken off constant
 one-to-one observation and placed on 15-minute observation.
 Although generally accepted professional standards require that
 such a change in status, including the rationale for the change,
 be documented in the patient’s medical record, there is no such
 explanation in the chart. That same day, September 25, 2008,
 A.Z. was involved in the sexual incident described above. The
 following day, September 26, 2008, E.V. forced A.Z. to engage in
 sexual conduct with him. 

On September 27, 2008, after KCHC officials learned of the
 sexual incidents, A.Z. was again placed on constant one-to-one
 observation. Later that same day, A.Z. again attempted to kill
 himself by wrapping a video game controller wire around his neck.
 The incident reports state merely that the patient was upset due

16 A treatment plan is essentially a detailed roadmap of a
 patient’s entire course of treatment. Generally accepted
 professional standards require that an adequate treatment plan be
 developed under the direction of the treating psychiatrist, with
 input from all disciplines involved in the treatment of the patient,
 as well as from the individual patient. The treatment plan should
 contain, at a minimum: (1) an accurate diagnosis based on adequate
 assessments conducted by all relevant clinical disciplines; (2) a
 list of problems caused by the patients’ illnesses; (3) clearly
 articulated goals for the patient, designed to ameliorate problems
 and promote functional independence; (4) a list of appropriate
 interventions to guide staff in helping the patient achieve his or
 her stated goals; and (5) ongoing assessments and, as warranted,
 revision of the treatment plan. See Section III.B.2 infra for a
 more detailed discussion of treatment planning issues.

17
 Constant one-on-one observation is a form of supervision
 in which a staff member must continually keep a patient in view.
 DOH’s July 2008 survey and CMS’ August 2008 survey note several
 incidents in which patients classified as suicidal appeared to be
 unsupervised in the CPEP for hours. No evidence could be found
 showing contact between the suicidal patients and physician or
 nursing staff eleven to twelve hours after admission. 


- 12 ­
to a “previous incident earlier that day” but fails to describe
 or analyze the assault incidents, note the fact that patient was
 on constant observation, or that the patient had previously
 attempted suicide.

Moreover, our review of recent KCHC reports and incidents
 revealed several other incidents of attempted suicide, some of
 which occurred while patients were on constant one-on-one
 observation. Examples include:

• H.C., a patient diagnosed with “psychosis NOS” and “rule out
 schizoaffective disorder,”18 began cutting herself with a
 paper clip and then swallowed the clip the morning of May
 28, 2008, while under close observation. Later that day,
 while under constant one-to-one observation, H.C. was
 observed tying a torn hospital gown around her neck. The
 gown was taken away by staff and H.C. walked away, took
 staples from a desk and then swallowed the staples in the
 presence of staff. Both incidents were not labeled as a
 suicide attempt but rather as a “minor self-inflicted
 injury.” Her record reflects no change in her treatment
 plan. Changes to the treatment plan are necessary when
 these types of incidents occur, to eliminate or address the
 self-destructive behavior.

• I.J. is a 47-year-old male with a history of drug abuse who
 was brought to the CPEP on August 7, 2008 for psychiatric
 evaluation after reports were received that he was suicidal.
 I.J. was subsequently admitted to the adult inpatient

18 “Psychosis NOS” means “psychosis, not otherwise
 specified.” This means that the patient’s symptoms fit within a
 general diagnosis of psychosis (a severe mental disorder that
 involves a profound loss of contact with reality, including
 delusions and hallucinations), but that the evaluating physician is
 unable to come up with a more specific diagnosis based on the
 patient’s symptoms. “Rule out schizoaffective disorder” is not an
 official diagnosis, but rather a directive to assess the patient for
 symptoms of schizoaffective disorder in order to eliminate it, or
 “rule it out,” from the list of possible diagnoses. (Schizoaffective
 disorder is a disorder in which a patient exhibits symptoms of two
 diseases at once: (1) a mood disorder, such as depression; and (2)
 schizophrenia, which is a complex collection of symptoms persisting
 over time that include delusions, hallucinations, disorganized
 speech and behavior, etc. See Section III.B.1 infra for further
 discussion of the problems associated with “NOS” and “rule out”
 diagnoses.


- 13 ­
service and was placed on constant one-to-one suicidal
 observation. On August 11, 2008, I.J. attempted to tie a
 sheet around his neck and kill himself. Although the staff
 member assigned to the one-to-one observation ultimately
 intervened and removed the sheet, no action was taken to
 prevent the patient from tying the sheet around his neck in
 the first instance. During a post incident interview, I.J.
 stated that “he wanted to take his life.” A subsequent
 review by the Special Incident Review Committee (October 2,
 2008) concluded that the patient was appropriately monitored
 and that staff intervention was immediate and accordingly
 closed the case with no recommendations for further actions.

The repeated and significant level of both aggressive and
 self-injurious behavior on the units suggests a fundamental
 failure to address the root causes of patients’ inappropriate
 behavior and demonstrates that KCHC fails to intervene adequately
 to prevent future incidents. Moreover, despite the overuse of
 close observation noted in Section III.C.1 infra, these incidents
 highlight the inadequate oversight and monitoring of those with
 aggressive or self-injurious behavior. 

3. Inadequate Incident Management and Recordkeeping

Generally accepted professional standards require that
 facilities have transparent and effective systems for
 identifying, tracking, and correcting problems, adverse events,
 faulty treatment, and staff adherence to policies and procedures.
 To protect its patients, KCHC should have in place an incident
 management system that helps to prevent incidents and ensures
 appropriate corrective action when incidents do occur. An
 effective incident management system consists of several
 elements, including accurate reporting, thorough investigations,
 tracking, trending, analysis of data, and implementation and
 monitoring of effective corrective and/or preventive actions.
 The incident management system at KCHC falls significantly short
 of these standards.19 As a result, patients continue to be The
 exposed to actual and potential harm.

19
 As noted above, CMS, OMH, and DOH cited KCHC for its lack
 of adequate incident management and review systems. Specifically,
 in its August 2008 survey, CMS cited KCHC for failing to analyze
 data collected regarding adverse patient events. OMH’s November
 2008 letter finds KCHC noncompliant with standards requiring, inter
 alia, identification of “patterns and trends through the compilation
 and analysis of incident data” and reviewing “patterns and trends to
 identify appropriate preventive or corrective action.” This is a
 repeat citation by OMH from its May 2007 survey. Finally, DOH also
 cited KCHC for the same problem in its July 2008 survey.


- 14 ­
In addition, we note that KCHC’s incident investigations are
 inadequate. The documentation of investigations that we have
 reviewed is cursory, incomplete, and lacks critical information
 necessary to address clinical deficiencies. Further, we found no
 documentation or other evidence to indicate that KCHC
 systematically tracks staff adherence to policies and procedures,
 such as use of one-to-one observation and chemical or physical
 restraints. Similarly, we found no evidence that adverse events,
 such as use of Code Orange calls (KCHC terminology for calling
 for emergency assistance) or staff or patient injuries, are
 uniformly tracked and that corrective actions are taken where
 needed.

B. Failure To Provide Adequate Mental Health Care

KCHC patients have a constitutional right to receive
 adequate mental health treatment. Donaldson, 493 F.2d at 520.
 The mental health services at KCHC, however, substantially depart
 from generally accepted professional standards.

Generally accepted professional standards require that the
 treatment planning process 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) identification of the problems caused
 by patients’ illnesses; (3) establishment of goals designed to
 ameliorate problems and promote functional independence;
 (4) identification of appropriate interventions to 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, as well as the individual patient, where
 appropriate, under the active direction and guidance of the
 treating psychiatrist.

KCHC treatment planning substantially departs from these
 standards and 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 unnecessary
 hospitalization.


- 15 ­
1. Inadequacy of Psychiatric Assessments and Diagnoses

a. Inadequate Psychiatrist Assessments

Mental health treatment begins at the time of admission.
 The admissions process is designed to establish the initial
 diagnosis and sets forth the course of treatment. Thus, an
 accurate assessment is crucial to proper treatment. Clinicians
 must perform thorough assessments to identify patients’ problems,
 strengths and needs. Proper assessment also is vital to identify
 potential risks from patients who are aggressive or may engage in
 self-injurious behavior, who are potential victims, or who
 present high risks due to 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.
 Generally accepted professional standards require that
 psychiatry, medicine, nursing, psychology and social work all
 provide an assessment.

At a minimum, an initial assessment should include: (1) an
 adequate review of the patient’s symptoms and mental status;
 (2) a provisional diagnosis and differential diagnosis that
 permits diagnosis and treatment options to 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 patient’s presenting
 symptoms; (2) the progression of the symptoms and setting within
 which the symptoms occur; (3) the relevant historical findings
 regarding the patient’s biopsychosocial (biological,
 psychological and social) 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. 

Numerous deficiencies exist in the initial assessments we
 reviewed at KCHC. In many cases, initial assessments are cursory
 and untimely. Patient histories and medical status are often
 incomplete and inadequate. In addition, they are devoid of
 common psychiatric symptoms such as insomnia or loss of appetite


- 16 ­
and fail to document mania, depression, or anxiety. They 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. The absence of this important information in the
 medical record seriously impedes or limits the treatment team’s
 ability to create an effective and appropriate treatment plan,
 which can lead to serious harm. 

As a result of these flawed assessments, diagnoses are
 routinely tentative, unspecified, or inconsistent with the
 patient’s symptoms. We found many diagnoses listed as “rule out”
 or “not otherwise specified” (“NOS”). These diagnoses are used
 by KCHC merely as catch-all categories. They are not appropriate
 long-term substitutes for genuine individualized assessments.
 However, in many cases, rule out and NOS diagnoses persist with
 no further diagnostic refinement. We also saw evidence of
 misdiagnoses which have not been adjusted to conform to patient
 behavior and symptoms. The medical record of patient J.P. is
 illustrative:

• J.P., who has had multiple re-admissions to KCHC,
 exemplifies the inadequacy of KCHC’s assessments. He was
 originally brought to the CPEP by police on December 21,
 2007, when he received a diagnosis of Psychosis NOS, and
 after denying “suicidal and homicidal ideas...hallucinations
 and delusions,” was released. He returned to KCHC on
 January 26, 2008, after talking about jumping out a window.
 After again denying suicidal or homicidal ideation, J.P. was
 released. He returned to KCHC on June 13, 2008 and was
 given a diagnosis of mood disorder NOS. There is no
 accompanying psychiatric note or evaluation of his prior
 admissions. Several days later, pursuant to KCHC’s
 treatment plan for him, he began receiving medication that
 he failed to take and had failed to take previously. He was
 released again on July 3, 2008 after denying suicidal or
 homicidal ideation. Ten days later, on July 13, 2008, J.P.
 was readmitted. Even though he was diagnosed as manic, with
 a mood disorder, he was diagnosed upon this admission with
 psychosis NOS and rule out bipolar disorder. The absence of
 a definitive diagnosis has perpetuated a generic treatment
 approach that has repeatedly failed this patient. J.P.’s
 record reflects the absence of meaningful assessment,
 reassessment, or targeted treatment. The patient was
 repeatedly discharged and readmitted with no reflection on
 the reasons for his recidivism and no change in treatment.


- 17 ­
b. Inadequate Nursing Assessments

We found that nursing assessments also were deficient.
 Nurses are a primary source of information regarding patients who
 need medical attention, as they are often the first clinician to
 see and evaluate the patient. We found that initial nursing
 assessments at KCHC are cursory, and the assessment process and
 the nursing assessment form used by KCHC do not permit for
 comprehensive or individualized assessments. The assessment form
 does not have sufficient space to allow nurses to write
 individualized findings, and there is no summary section for risk
 factors that would prompt nurses to think about the patient’s
 needs in a comprehensive way. 

Some examples of inadequate nursing assessments, which in
 turn often leads to inadequate treatment, include:

• The nursing assessments we reviewed for patient H.C. lacked
 critical information. Upon her admission to the inpatient
 unit, there were no notes in her assessment indicating
 social or medical problems. However, other documentation
 contained in H.C.’s chart raised clear concerns about her
 social history and medical problems. She was noted to be
 assaultive, abusive, electively mute, upset about her
 roommate, and had been sexually abused by her brother in the
 past. In addition, she has asthma, Hepatitis C, and seizure
 disorder. None of these are noted in the nursing
 assessments.

• Thirty-seven-year-old W.H. was admitted with a history of
 mental illness and substance abuse. The CPEP nursing
 assessments of W.H. were largely illegible. Where they were
 legible, the assessments were not adequate in that they
 provided insufficient detail. For example, her speech was
 described merely as “incoherent” with no further details.
 Her thought content was described as “unable to assess”
 although W.H. was apparently communicating on some level.
 The rest of the nursing assessment stated “unable to
 assess,” though the record indicates that the social worker
 elicited information the nurse failed to capture.

• Patient X.I. was admitted in July 2008 for disorganized
 behavior and delusions. Most of the nursing assessment was
 left blank, even in sections where staff could have assessed
 X.I. without his cooperation.


- 18 ­
KCHC’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. 

2. Inadequate Treatment Plans

Generally accepted professional standards require that
 treatment plans be individualized and specifically connected to
 patient problems and needs. The KCHC population presents severe
 psychopathology and behavioral disturbances that require
 individualized and intensive treatment programs that are
 customized to address the cognitive disabilities that are a key
 part of their illnesses. However, just as KCHC does not conduct
 assessments that address patients’ specific problems or needs, it
 also uses boilerplate forms and checklists which require staff
 only to check off problems and treatment recommendations or
 briefly fill in blanks, rather than write individualized
 narratives.20

As a result, treatment plans do not specifically address
 problems that have led patients to be hospitalized. Many of the
 charts our experts reviewed reflected that patients with very
 different problems, which by generally accepted professional
 standards would require individualized treatment plans, instead
 receive exactly the same treatment plans. Moreover, patients
 with specialized needs do not have treatment plans specifically
 tailored to their needs and are not being adequately treated,
 including those with severe behavioral problems, those with
 suicidal ideation and self-injurious behaviors, and those who are
 dually diagnosed with mental illness and substance abuse or
 developmental disabilities. 

Moreover, just as KCHC’s assessments do not properly
 generate appropriate treatment plans, treatment plans do not link

20
 Various treatment planning failures by KCHC were in cited
 in OMH’s September 2004, June 2005, January 2006, September 2007,
 and August 2008 reports, such as lack of treatment goals in
 treatment plans, pre-dated treatment plans, failure to identify
 activity and therapy groups in treatment plans, missing treatment
 plan reviews, and a lack of interdisciplinary involvement in
 treatment planning.


- 19 ­
to discharge needs.21 Discharge plans, in turn, focus almost
 entirely on placement options and neglect what the patient needs
 in order to get placed and to reduce the risk of re­ hospitalization. 

Failure to provide appropriate and effective treatment
 targeted to specific patient needs is harmful in a number of
 ways. It permits dangerous behaviors to persist, it fails to
 address behavioral and psychiatric problems that led to
 hospitalization, it lengthens stays unnecessarily, it leads to
 the use of chemical and mechanical restraints, and it increases
 the likelihood of relapse and re-hospitalization. 

Nursing involvement is particularly important in the
 treatment planning process. Yet, nurses at KCHC do not appear to
 hold a central or consistent role in treatment planning. Nurses
 are largely relegated to medication management and assuring
 implementation of close observations, which are often deficient,
 as described in Section III.C.1 infra. There is also a lack of
 professional nurse interventions in any consistent manner, or in
 a manner that reflects nursing leadership in the care and
 treatment of patients. 

Examples of inappropriate treatment include: 

• R.E. is a 46-year-old male with schizoaffective disorder.
 Over the course of a one month stay, he had ten episodes
 that led to placement in four-point restraints and the use
 of STAT medications.22 Notably, there was no change in his
 treatment plan to address his behavior, and the plan was
 limited to a boilerplate reference to a number of individual
 contacts with nursing staff and a small number of unit-wide
 treatment groups.

• V.O. is a 37-year-old male diagnosed with bipolar disorder
 with mania. The medical record contains the standard
 treatment plan: mandating of twenty minutes of individual
 and group therapy three times per week. His treatment plan
 reflects no changes over time, despite nursing and doctor's

21
 An adequate treatment plan will address goals and plans
 for a patient after he or she is discharged from the hospital, both
 to aid the patient in making a successful transition to the
 community, and to prevent or minimize future hospitalizations.
 KCHC’s treatment plans fail to adequately cover these elements.

22
 STAT is a medical term meaning “immediate.” A STAT
 medication is one that is to be given immediately in response to an
 emergency or other urgency. 


- 20 ­
notes that consistently indicate that V.O. remains agitated,
 disorganized, and threatening to staff and others.

• Z.U. is a 49-year-old male with schizophrenia, multiple
 hospitalizations and a history of substance abuse. His
 treatment plan states that “pt. will participate in groups
 3xs per week for at least 45 min to improve reality
 orientation.” Our medical record review covered three
 separate admissions. His diagnosis changed across the
 admissions, but there was no substantive change in his
 treatment plan upon each admission to address his specific
 mental illness.

• R.Q. is a 20-year-old male diagnosed with schizoaffective
 disorder and mental retardation. He has had multiple
 admissions and a previous diagnosis of autism. R.Q. has a
 history of violence and his medical record documents
 multiple episodes in which he was assaulted by other
 patients or he assaulted others. There is no specific
 treatment plan to deal with his acting out or being
 victimized, except that he was transferred between units on
 multiple occasions. The treatment plan does not address his
 diagnoses of mental retardation and autism or his history of
 violence.

• L.R. is a 33-year-old male diagnosed as psychotic and
 delusional. Nursing notes consistently report he spends
 excessive time in the bathroom and he was seen repeatedly
 inducing vomiting, but his treatment plan fails to address
 these behaviors. The record also notes multiple falls, but
 there was no treatment response. A medical consult,
 conducted after L.R. was on the unit for almost three weeks,
 documented polydipsia23
 (excessive drinking of water). 
 However, there were no nursing notes in his treatment plan
 regarding his water consumption. He was transferred to the
 medical unit and then to an inpatient psychiatric unit,
 where notes indicate he was incontinent of urine and feces. 
 There is no specific treatment plan for these behavior
 problems, either.

We also reviewed the records of ten other patients who were
 dually diagnosed with mental illness and substance abuse. These
 patients were not provided any specific substance abuse

23
 Polydipsia is a common disorder characterized by drinking
 excessive amounts of water to quench a constant thirst. This
 condition is prevalent in patients who spend significant amounts of
 time in psychiatric facilities, particularly those patients
 diagnosed with schizophrenia. This condition may cause
 incontinence, vomiting, seizures, water intoxication, or even death.


- 21 ­
treatment. They were provided only once a week, unit-wide
 substance abuse groups. This treatment is not sufficiently
 frequent or individualized to address the needs of individuals
 with substance abuse problems. 

3. Lack of Systematic, Ongoing Assessment

Generally accepted professional standards require that all
 patients be assessed not just at admission, but on an ongoing
 basis. It is extremely difficult to diagnose patients fully at
 time of admission when they are acutely ill, uncooperative, and
 may be under the influence of alcohol or street drugs.
 Accordingly, diagnoses and problem lists should change as
 patients stabilize and become more comfortable admitting problems
 and symptoms.

Appropriate updating and revisions of diagnoses is uncommon
 at KCHC. KCHC has no systematic review or evaluation process for
 preparing diagnoses, and boilerplate forms make it too easy for
 staff to copy the language of previous diagnoses. Indeed, intake
 diagnoses and problem lists are often unmodified throughout
 patient stays, even as new information about patients becomes
 available over time. This contributes, as noted in the next
 section of this letter, to unmodified treatment plans, even as
 patients’ conditions change.

4. Failure to Modify Treatment Plans

A direct result of KCHC’s failure to conduct ongoing
 assessments is that it does not modify treatment plans to address
 changes in patient behavior or condition. Generally accepted
 professional standards require regular review of treatment plans
 with adjustments contingent on progress or the lack of progress.
 KCHC medical records contain updated treatment planning forms,
 but the updates generally do not reflect substantive clinical
 reviews with modifications based on patient response. We found a
 number of charts in which patients exhibited significant,
 persistent behavior problems over time, but no changes were made
 in the treatment plan. In many cases, regardless of their
 efficacy, treatment plans for various patients used exactly the
 same language repeatedly, despite clear notations in the progress
 notes that there was no change in inappropriate behavior.
 Overall, the records do not suggest a sense of urgency to provide
 active treatment to deal with recurrent problems, and there is no
 evidence that treatment teams explore options or seek
 consultations with colleagues or outside experts.


- 22 ­
Examples of non-responsive treatment planning include:

• N.S. is a 14-year-old male. The medical record notes more
 than 20 episodes of four-point restraint and administration
 of IM (intramuscular) medication for threatening behavior
 and verbal abuse during his more than seven-month stay at
 KCHC. On August 15, 2008, his attending psychiatrist
 reported that “[N.S.’s] continued stay in the acute setting
 is detrimental to his well-being. He will likely continue
 to have acting out behavior. It is recommended that he be
 in a program that is able to meet his special needs.”
 Nonetheless, his treatment plan was identical for the entire
 seven-month stay.

• T.F. is a 46-year-old female with paranoid schizophrenia.
 She is unable to care for herself and needs an interpreter
 as she speaks no English. The treatment plan we reviewed
 was minimal and not suited to her illness or her inability
 to speak English. While the treatment plan updates note a
 lack of progress, there is no substantive change in the
 treatment plan that could lead to such progress or
 improvement.

• M.M. is a 16-year-old male with a diagnosis of schizophrenia
 or bipolar disorder. He was on the child and adolescent
 unit for six months with repeated reports of aggressive
 acting out and disruptive behavior. He was placed in
 restraints multiple times for assaultive behavior, but there
 was virtually no change in his treatment plan.

5. Ineffectiveness of Treatment Team Process

A significant reason for the deficiencies cited above is
 that KCHC’s treatment team process does not comport with
 generally accepted practices. Generally accepted professional
 standards call for treatment to be guided by a multi-disciplinary
 team in which diverse professional expertise and observations are
 employed, in an inter-disciplinary process, to evaluate patients
 and develop treatment plans. 

Also, contrary to generally accepted professional standards,
 it appears that, at KCHC, treatment planning by the different
 disciplines is done in isolation rather than in an integrative
 manner. Staff members spend most of their time in treatment team
 meetings describing events that occurred the previous day or
 entering notes into patient’s charts. There is little discussion
 of treatment or substantive discussion of patients’ conditions.
 Patients do not regularly participate. There is little 
 inter-disciplinary interchange. 


- 23 ­
The fact that team meetings are not used to share expertise
 and ideas significantly limits the ability of staff to develop
 suitable treatment plans and contributes to the failure of many
 plans. It also diminishes the ability of staff to effectively
 revise plans that are not working.

We also find that nurses’ involvement in treatment
 activities was not adequate. We found that treatment on the
 adult inpatient units appears to be largely generic and
 custodial. Additionally, the nursing activity schedule for the
 units does not reflect treatment groups run by other disciplines.
 Patients’ records also fail to consistently reflect participation
 in such groups. Further, there was no documentation summarizing
 an individual patient’s treatment activities reflected in either
 the treatment plan or the discharge plan summary.

Finally, KCHC does not appear to track or review individual
 patients who are not making progress or who repeatedly exhibit
 the same problematic behaviors. This lack of oversight permits
 ineffective treatment to continue without detection or
 correction. This presents a clear danger to patients and staff
 because it permits faulty practices to be repeated, with no
 corrective action taken. We were told that new policies,
 systems, and procedures were being put in place by some of the
 new administrative and supervisory staff, but there is no
 evidence as to when and how these changes will be implemented. 

6. Inadequate Medication Management and Monitoring

Medication practices at KCHC substantially depart from the
 generally accepted professional standards. Generally accepted
 professional standards require that the pharmacological component
 of a treatment plan reflect the exercise of professional judgment
 for medication treatment including: diagnosis, target symptoms,
 risks and benefits of particular medications, and consideration
 of alternate treatments. The rationale for each patient’s course
 of treatment should be included in the physician’s progress
 notes. Psychotropic medications should be used as an integral
 part of a treatment program to manage specific behaviors in the
 least restrictive manner, to eliminate targeted
 behaviors/symptoms, and to treat specific psychiatric disorders.
 Additionally, medications should be integrated with any
 behavioral intervention plan. Medications should be carefully
 monitored and tracked. Medication changes, as well as the
 rationale for the changes, should be documented in a physician’s
 order. All lengthy administrations of medication should be


- 24 ­
periodically re-evaluated to assess their efficacy. KCHC’s
 practices fall far short of all of these requirements.24

KCHC’s practices have led to the inappropriate use of
 medication. As noted above, assessments are deficient. As a
 result, the rationale justifying why certain medications are
 prescribed is not stated in patients’ charts or is stated very
 generally (e.g., “psychosis”). In addition, medications at KCHC
 are frequently prescribed in reaction to events without an
 assessment or modification of the treatment plan. KCHC therefore
 frequently administers PRN (pro re nata or “as needed”)
 medication that is not targeted to specific symptoms of mental
 illness, and lacks adequate justification. For example, T.Z. is
 a 16-year-old adolescent with an IQ of 40. He has been both a
 victim and perpetrator of violence prior to and during his
 hospital stay. Most recently, he was admitted due to assaultive
 behavior. T.Z. continues to receive a variety of PRN medications
 that are not targeted to alleviate or address any specific
 symptoms. 

In addition, KCHC contemporaneously uses multiple
 medications in the same class to treat the same condition
 (usually referred to as intraclass polypharmacy) without a
 clinical justification. This falls outside of generally accepted
 professional standards. The problem is recognized by KCHC in a
 memorandum to “All Prescribers” dated March 28, 2008 on the
 subject “Applied Psychopharmacology.” The memorandum prohibits
 the then-common practice of simultaneous intramuscular injection
 of two antipsychotics. Nonetheless, KCHC physicians continue to
 routinely use drug combinations of anticholinergics,
 antipsychotics, and benzodiazapines that are not clinically
 justified. This can cause substantial patient harm, including
 overdose and serious side effects.

Moreover, rather than prescribing antipsychotic medications
 and benzodiazepines for their specific purpose -- medications to
 alleviate or minimize symptoms of psychosis and anxiety -- it
 appears that clinicians inappropriately prescribe these
 medications to sedate and control patients, and as a substitute
 for appropriate therapeutic interventions. This too is

24
 Notably, CMS’s August 2008 letter cites KCHC’s failure to
 provide appropriate evaluation of care -- including medication
 monitoring -– for each patient. As an example, it notes that a
 nurse responsible for entering progress notes on six patients
 acknowledged to CMS surveyors that she did not know the diagnosis or
 medications of any of those patients.


- 25 ­
inappropriate, and can cause patient harm, by subjecting patients
 to unnecessary medication.

Additionally, generally accepted professional standards
 require that facilities like KCHC adopt and incorporate the
 necessary protections and safeguards to ensure that patients are
 afforded safe and effective pharmacological treatment. Hospitals
 such as KCHC must have mechanisms to: (1) monitor practitioners’
 adherence to specific and current guidelines in the use of each
 medication; (2) report and analyze adverse drug reactions; and
 (3) report, analyze, and document actual and potential variations
 in the prescription, transcription, procurement/storage,
 dispensing and administration of medications. To the extent that
 these mechanisms exist at KCHC, they are inadequate. Because
 KCHC’s psychiatrists rarely analyze the use of PRN and STAT
 medications or patients’ reactions to them, they cannot refine
 patients’ diagnoses and adjust routinely administered
 medications. Without such monitoring, patients are at risk of
 being overly and/or improperly medicated. This practice
 constitutes chemical restraint, which violates federal
 regulations. See 42 C.F.R. § 482.13. This practice also
 substantially departs from generally accepted professional
 standards.

KCHC’s current system to track and analyze adverse drug
 reactions also is deficient and seriously under-reports problems.
 No data is compiled regarding basic components, such as a
 definition of an adverse drug reaction, a severity scale, a
 probability scale, or a description of patient outcome. There
 are no established thresholds triggering analysis of adverse drug
 reactions. There is no data analysis to indicate individual or
 group practitioner trends. And, there is no evidence that any
 data on adverse drug reactions have been used for performance
 improvement activities. For example, drug utilization
 evaluations (“DUEs”) are not used to track and analyze adverse
 drug reactions.

C. Inadequate Behavioral Management Services

Behavioral management is the use of systematic behavioral
 (social learning) strategies. These are often the best, and
 only, non-intrusive approaches to eliminate dangerous behaviors
 and teach patients more adaptive ways to behave. Accordingly,
 behavioral plans should, in accordance with generally accepted
 professional standards, contain certain basic elements, including
 an analysis of the reasons for the behavior and its frequency,
 and its causes. The plan should also identify specific
 interventions by trained staff in order to address and modify the


- 26 ­
behavior. The behavior plan should thereafter be integrated with
 the patient’s overall plan of care. 

KCHC fails to provide adequate behavioral management.
 Behavioral management plans are not well integrated into overall
 treatment, and staff lacks the skills and training necessary to
 handle the large number of very impaired patients who are
 dangerous to themselves or others or who have specialized needs.
 Contrary to generally accepted professional standards, staff at
 KCHC is focused primarily on controlling patients with
 inappropriate behavior rather than treating them and teaching
 them alternative, adaptive behavior. Accordingly, in lieu of
 appropriate treatment, staff resort to close observation (which
 is often lax as demonstrated by serious incidents described in
 Section III.A.2 supra), restraint, and inappropriate medication
 practices. Indeed, KCHC fails to use systemic behavioral (social
 learning) strategies to eliminate dangerous behaviors and teach
 patients more adaptive ways to behave. This problem is
 exacerbated by KCHC’s failure to provide a centralized system of
 oversight, review, feedback, and expert consultation, where
 necessary, to protect patients and ensure that adequate treatment
 is provided. The result is that patients with the most severe
 needs receive inadequate therapeutic care and treatment.

1. Inappropriate Use of Close Observation

Generally accepted professional standards require that close
 observation of mental health patients be used only when
 necessary. It is sometimes appropriate for patients who are at
 high risk of engaging in self-harm or harm to others. However,
 it is costly to use and removes staff from other therapeutic
 activities, is stigmatizing for patients, it restricts privacy
 and freedom, and it is often disruptive to clinical units.
 Moreover, it is a management procedure, not a treatment
 procedure, and does not teach patients more adaptive ways to
 behave. 

KCHC does not use close observation consistent with these
 principles. Rather, it purportedly uses close observation
 excessively and performs it incorrectly. At KCHC, close
 observation is initiated for almost all new patients who have
 suicidal ideation or are potentially violent. A large proportion
 of patients are maintained at this level of observation
 throughout their stay at KCHC whether or not warranted by their
 behavior. Indeed, it appears to be standard operating procedure
 at KCHC to use one-to-one in lieu of proper treatment; however,
 its use has been ineffective. For example (as described above):


- 27 ­
• The three adolescent youths who were involved in sexual
 activity on September 25, 2008 and September 26, 2008 were
 all on close observation by a different staff member prior
 to the incident. Each observation of the patients was
 indicated in the patients’ charts with the initials of the
 staff members responsible for the observation, presumably
 signifying that the required observation had occurred.
 However, neither incident was detected at the time it
 occurred. In fact, the incidents became known to staff only
 when another boy reported it two days later. Based on the
 incidents that transpired, it is implausible that KCHC staff
 was appropriately performing the required observations.

2. Inappropriate Use of Four-Point Restraints and
 Emergency (STAT) Medications To Manage Patient Behavior

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, KCHC
 may not restrain mental health patients “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
 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 have been attempted; (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. KCHC's use of restraints substantially
 departs from these standards and exposes patients to excessive
 and unnecessarily restrictive interventions.

New York Mental Hygiene Law § 33.04 and generally accepted
 professional standards require that restraints be used only when
 less restrictive procedures have not been effective. We found
 that KCHC does not consistently follow these standards. KCHC
 excessively relies upon four-point restraints and STAT
 medications to deal with patients who aggressively act out,
 regardless of whether the patients pose a continuous threat. Our
 experts also found little evidence that less restrictive means
 were employed before restraints were applied, such as proactive
 assessment to identify risky situations, moving patients to quiet
 areas, or calming conversations with trained staff. It also
 appears that restraints are often used even though the patient


- 28 ­
has changed his or her behavior and does not pose any further
 risk. 

KCHC policy also requires that restraints may not be applied
 for more than two hours and that patients should be released
 sooner if they are no longer agitated or dangerous. Most
 examples we reviewed indicate that patients remained in
 restraints for two full hours regardless of changes in their
 behavior. There is also no indication in the progress notes or
 restraint orders that patients are clearly told why they are
 being put in restraints and what the criteria are for release.
 Absent clear communication to the patient and absent evidence of
 continued risk, four-point restraint serves as a punishment for
 acting out rather than as a therapeutic vehicle or a safety
 strategy.25

3. Inappropriate Transfers of Patients In Lieu of
 Treatment

Instead of providing appropriate behavioral interventions,
 KCHC resorts to inappropriate transfers of patients between units
 as a response to inappropriate behaviors. Moving patients is
 stigmatizing, clinically disruptive, and generally does not
 improve patient behavior. Although moving a patient can be
 clinically appropriate at times, the medical records we reviewed
 do not indicate that transfers at KCHC are implemented with any
 clinical rationale. Rather, transfers appear to be used largely
 to remove a patient who engages in aggressive behavior or who is
 a victim of patient aggression. Moreover, patients are being
 transferred in lieu of providing appropriate treatment. The
 following examples are illustrative:

• V.G. is an 18-year-old woman with a diagnosis of bipolar
 disorder with mania who has been admitted to KCHC four times
 in six months. She was repeatedly agitated, intrusive,
 hostile, and sexually preoccupied. While there is no
 specific treatment plan for these problems or her sexual
 preoccupation, V.G. has repeatedly transferred from unit to
 unit due to these problems.

• M.T. is a 52-year-old male with a diagnosis of
 schizoaffective disorder. In six weeks at KCHC, he resided

25
 OMH cited KCHC for its overuse of restraints in its
 November 2008 and April 2006 surveys. Specifically, OMH found that
 restraints are not used “only when absolutely necessary to protect
 the patient or others from injury.”


- 29 ­
in three different units. He was admitted to one unit, but
 transferred to a second unit after an altercation with
 staff. He was then transferred to a third unit for
 assaultive behavior on the second unit. While on the third
 unit, he attacked a peer. M.T.’s treatment plan fails to
 address his aggressive behavior. 

D. Failure to Provide Adequate Medical and Nursing Care

1. Inadequate Assessments and Monitoring

As with psychiatric treatment, effective medical services
 depend on timely, thorough assessments and monitoring. KCHC
 staff often fail to provide even the most basic care, opting
 instead for a reactive approach in which they address patients’
 medical needs only after problems develop. This exposes patients
 to a significant risk of harm and causes patients often to suffer
 preventable injuries and illnesses. 

For example, we found that patient weights, although taken
 on admission, do not seem to be monitored consistently. Nor do
 nurses appear to note Body Mass Index values with any
 consistency, despite a KCHC policy requiring the capture and
 recording of this data. Monitoring weight gain in psychiatric
 patients is particularly important because many medications can
 produce rapid weight gain, which in turn can lead to medical
 problems, including diabetes and hypertension, that are
 exacerbated by excess weight. 

We highlighted one example of KCHC’s failure to provide
 adequate basic medical care in our August 22, 2008 immediacy
 letter (attached). In that letter, we described a patient on
 Unit G-53 who had uncontrolled diabetes. Her blood sugar
 readings ranged from 40 to 400 over the course of one 24-hour
 period.26 Her chart indicated that nothing was done to stabilize
 her condition. This put the patient at immediate risk of harm,
 including diabetic shock or stroke.

Additional examples include:

• Patient R.R. was admitted on October 2, 2007 with a
 psychiatric diagnosis of bipolar, mixed with psychotic 

26
 The normal/safe range for blood sugar is 100 or less.
 The failure to control sugar levels can result in blindness,
 stroke and other serious or even life-threatening conditions.


- 30 ­
features, and a history of substance abuse. R.R. also had
 other serious medical issues, including obesity (he weighs
 425 lbs.), hypertension, lipidemia (the presence of excess
 fat in the blood), and diabetes. R.R.’s treatment plan did
 not address any of his medical issues. Eight days after his
 admission, he was taken to the medical emergency room after
 he suffered a stroke. Only after he returned to the
 behavior health service was his medical record corrected to
 note his history of hypertension and diabetes.

• O.L. is a 41-year-old man who has been admitted to KCHC 55
 previous times since 1983 and has multiple medical records.
 Although he has a history of hypertension and heart
 arrhythmia, the medical section of his treatment plan was
 blank. Accordingly, he failed to receive an adequate
 medical assessment. 

• Q.M. walked into to the CPEP and reported that he was
 hearing voices telling him to hurt someone, and that the
 previous week voices told him to jump in front of a subway.
 The assessment performed by KCHC personnel did not find any
 risk for self harm. 

2. Failure to Provide Adequate Emergency Responses

Another essential component of adequate medical care is the
 ability to provide sufficient care in emergency situations.
 Generally accepted professional standards require that all staff
 should be well-trained in emergency preparedness, know what
 emergency materials are available and where they are located, and
 conduct sufficient practice emergency drills (called “Mock Code
 Drills” at KCHC) to be able to perform adequately when confronted
 with an actual emergency. Appropriate emergency medical response
 also includes physical plant readiness, e.g., having the proper
 equipment available at all times. 

KCHC practices and procedures regarding emergency
 preparedness deviate substantially from generally accepted
 professional standards.27 This deficiency was brought very
 clearly into focus by the death of patient Esmin Green in the
 CPEP on June 19, 2008 (described above). Our review of records
 and materials, including surveillance video, in connection with
 the death of Ms. Green indicated that, contrary to generally

27
 The August 2008 CMS survey of KCHC documented numerous
 deficiencies with KCHC’s emergency response to medical codes,
 specifically in the case of Ms. Green’s death.


- 31 ­
accepted professional standards, no one was clearly in charge of
 coordinating or directing the code for several potentially
 crucial minutes. From the video, it also appears -- contrary to
 generally accepted medical practice -- that medical staff failed
 to immediately address airway, breathing or cardiac issues
 (“ABCs”), but rather, first took a “finger stick” to assess
 Ms. Green’s blood sugar.28

KCHC’s lack of emergency preparedness goes beyond this
 single event, however. For example, we found a significant lack
 of Mock Code Drills at KCHC. There were no Mock Code Drills run
 in 2007, and none occurred during the first quarter of 2008. Two
 Mock Code Drills were run in the third quarter of 2008. However,
 both clearly reflected a failure to meet professional standards
 of practice. The following deficiencies were noted: (1) delays
 in initiating CPR; (2) staff had to be reminded to use the
 Automatic Emergency Defibrillator (“AED”) and delayed using it;
 (3) staff did not call for assistance, and a physician failed to
 adequately respond when called; (4) ABC’s were not followed; and
 (5) staff responder forgot to bring the crash cart. Notably,
 many of these same deficiencies were present in the Esmin Green
 incident. 

Given the multiple deficiencies noted on the two Mock Code
 Drills run since Ms. Green’s death, KCHC’s medical emergency
 preparedness is clearly inadequate.

3. Failure to Provide and Maintain Adequate Medical
 Documentation

Generally accepted professional standards require that
 clinical records be complete, accurately documented, readily
 accessible, and systematically organized. The records should be
 sufficiently detailed to provide for continuity of care. KCHC
 fails to ensure that patients’ medical records completely and
 accurately reflect their care. Our investigation revealed
 numerous instances of inadequate or absent documentation by
 medical and nursing staff, leading to harm or the risk of harm to
 KCHC patients.29 For example:

28
 In addition, as we pointed out in our August 22, 2008
 immediacy letter, the video also shows a nurse, when she first
 responds to Ms. Green, nudging her with her foot.

29
 KCHC has been cited for inadequate or missing
 documentation in other surveys. In September 2006, the New York
 State Commission on Quality of Care and Advocacy for Persons with


- 32 ­
• H.C.’s chart indicated no medical problems even though this
 patient, who apparently has been admitted multiple times to
 KCHC, has asthma, Hepatitis C, and a seizure disorder. Her
 nursing assessments were incomplete on earlier admissions.

• P.K. arrived in the CPEP in an acute psychosis, and
 exhibiting paranoia and poor hygiene. He was noted to be
 HIV-positive, to have a seizure disorder, and a history of
 substance abuse. The nursing assessment documentation was
 incomplete, and there were no social problems or treatment
 discharge issues noted, despite P.K.’s obvious history of
 psycho-social problems.

As noted above in the section on treatment planning,
 treatment plans were also inadequately documented by nursing
 staff. We reviewed a number of records where the treatment goals
 were omitted even though the patient’s particular problem had
 been identified. This was especially true with those patients
 whose social problems increase the likelihood of repeat
 hospitalizations. 

Further, nurses do not consistently record information in
 patients’ charts properly. Notes are not made directly below the
 last entry, nor do nurses commonly use hand drawn lines to cross
 out blank space within the record. This kind of charting creates
 a situation where, as noted below, post-dating the record becomes
 possible. 

4. Falsification of Medical Records

Disturbingly, we have become aware of at least three
 instances of falsification of records.30 The need for accurate,

Disabilities, an independent New York State governmental agency
 charged with improving the lives of people with disabilities, noted
 irregularities between KCHC’s report to OMH of the number of hours
 between patients’ arrivals at the CPEP and their departure or
 admission to an inpatient unit for 2005 and 2006. It requested an
 explanation of “how this misrepresentation was able to occur.” In
 addition, JCAHO found progress notes and medical records with
 illegible entries which it described as “precluding effective
 written communication between caregivers regarding the patient’s
 condition and progress.”

30
 Falsification of documents related to the death of patient
 Esmin Green was also cited in CMS’s August 2008 letter and DOH’s
 July 2008 letter.


- 33 ­
truthful record-keeping should be self-evident. Without accurate
 records, it is impossible for patients to receive appropriate
 clinical intervention, and substantial harm can arise. Moreover,
 given the pattern of false records that we have observed, we
 cannot be certain of the veracity or reliability of the records
 that have been presented to us. The following constitutes three
 known instances of falsification:

• When Esmin Green died on the morning of June 17, 2008, after
 lying unattended on the floor of the waiting area in the
 CPEP between 5:30 and 6:30 a.m., nursing notes asserted
 that, during that hour, Ms. Green was repeatedly observed
 alert and awake. Video surveillance tapes we reviewed
 demonstrated that this was patently false, and that no one
 attempted to assist her throughout the time she lay on the
 floor.31

• During our site visit in July 2008, we requested the records
 of patient H.C. We were told that one of the nurses
 responsible for delivering the chart to us had altered the
 record at the direction of her supervisor, an Associate
 Director of Nursing.32

• The medical records for patient G.B., who was found on his
 knees in a bathroom in the CPEP apparently engaged in oral
 sex with another patient indicate that the Psychiatric
 Health Associate (“PHA”) had, as per policy, conducted
 regular 15 minute checks on both patients. However, KCHC
 has informed us that surveillance video of the CPEP shows
 that the PHA falsified the records, and did not, in fact,
 conduct the 15 minute checks. 

E. Inadequate Quality Assurance and Performance Improvement

Generally accepted professional standards require that a
 facility like KCHC 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, retrieval, and
 statistical analysis to identify and track trends. The program

31
 We notified counsel for HHC of this serious concern in our
 August 22, 2008 immediacy letter. 

32
 The fact that this patient’s medical record was altered
 was brought to our attention by HHC officials at the end of our site
 visit in July 2008.


- 34 ­
also should include a process for developing a corrective action
 plan and a process for monitoring the effectiveness of corrective
 measures that are taken. Throughout this letter, we have
 enumerated various failures by KCHC to provide adequate care and
 treatment for its patients. With few exceptions, KCHC has failed
 to identify these problems independently, or formulate and
 implement remedies to address them. Consequently, actual and
 potential sources of harm to KCHC’s patients continue
 unaddressed.

An adequate quality management program has two components:
 (1) quality assurance (“QA”), which focuses on evaluating
 compliance with basic standards of quality that are either
 internally or externally imposed; and (2) performance improvement
 (“PI”), which focuses on identifying missed opportunities to
 improve care, identifying preventive actions, and delineating
 remedial measures to improve the care and delivery of treatment
 and services provided to patients. 

KCHC has failed to implement an appropriate quality
 assurance and performance improvement program. As a result, KCHC
 often does not identify or analyze deficiencies in the treatment
 and services provided to patients or in systems and procedures
 designed to protect patients from harm in a timely or adequate
 manner.

KCHC’s quality assurance and performance improvement
 programs often are poorly organized and fail to establish
 priorities to identity the particular issues that need to be
 addressed. The hospital does not establish criteria for
 analyzing the variety of data that they routinely collect, and
 fails to analyze appropriately the data for trends and underlying
 causes. 

Moreover, as indicated above, KCHC also lacks adequate
 procedures for investigating untoward events, serious injuries,
 and important or critical events. Our consultants found that
 staff conduct little or no follow-up to determine the cause of an
 incident, its effect on the patient, or how similar incidents
 might be avoided in the future. As a result, patients continue
 to be exposed to actual and potential harm.33

33
 Our interview with a consultant recently hired by KCHC to
 review the QA/PI process confirms our findings. The consultant
 found the current QA/PI process to be inadequate and recommended a
 review and revision of all QA/PI to conform to generally accepted
 professional standards: “real time” monitoring, with the


- 35 ­
F. Unsafe Physical Environment

The Fourteenth Amendment Due Process Clause requires public
 mental health care facilities to provide patients with “adequate
 food, shelter, [and] clothing,” along with conditions of
 reasonable care and safety. Youngberg, 457 U.S. at 324.

1. Inadequate Fire Safety Planning and Training

In accordance with generally accepted professional
 standards, KCHC must have an adequate fire safety plan and
 provide adequate training to its staff to respond to fire
 emergencies. Hospital staff must be adequately trained to
 respond to reports of fire or smoke, and be able to safely
 evacuate the patients within their care. We find that the
 present fire safety planning and training is wholly inadequate
 and exposes both patients and staff to an unnecessarily high risk
 of harm, including death. 

Staff are critically deficient in their training and
 response to fire. We observed two unannounced mock fire drills
 during which all involved staff made potentially life-threatening
 errors. For example, staff failed to inquire about the location
 of the fire, failed to pull a fire alarm to alert others to
 respond to the location, and, when other staff did respond, they
 failed to bring portable fire extinguishers to the site.
 Moreover, actions to evacuate patients were woefully
 inadequate.34 The staff also were unaware of any policy or
 procedure as to how to address patients who refused to leave the
 building in an emergency.35 Moreover, KCHC’s fire safety
 documentation is poorly designed, inapplicable to the areas used
 for behavioral health services, and lacking in appropriately

requirement of contemporaneous documentation of activities; in-
 service training of KCHC staff on QA/PI; a massive culture change
 that needed to be built into all levels by all disciplines; and
 strong leadership and commitment.

34
 During the course of the drills, we observed a physician
 leading patients down the hallway toward the fire location, and
 patients wandering unchecked by staff down the hall toward the fire.
 One unit supervisor did not know how to access the locked emergency
 exit stairwell, although we were told that the supervisor should
 have a key to the stairwell. 

35
 We notified counsel for KCHC of these serious concerns in
 our June 18, 2008 immediacy letter.


- 36 ­
critical assessments or feedback to improve the fire safety
 program.

2. Inadequate Handling and Disposal of Hazardous Materials

KCHC’s present system for handling and disposing of
 hazardous materials, including medical waste materials, exposes
 patients, staff, and the Kings County community to risk of harm.
 Generally accepted professional standards require that discarded
 materials saturated in blood or other potentially infectious
 materials be placed in red biohazard bags, and securely stored to
 prevent access.

During our tour, we found several red biohazard waste bags
 as well as a clear plastic bag that appeared to contain bloody
 linens outside in open waste carts. These bags were not secured,
 and were accessible to anyone who might walk by. In fact, a
 homeless person was observed sleeping approximately fifty feet
 from the carts. This is a violation of biohazard waste storage
 and handling practices and places individuals who may come in
 contact with these wastes at serious risk of injury or disease
 transmission.36

3. Inadequate Environmental Infection Control

KCHC fails to take appropriate steps to prevent the spread
 of infectious agents through laundering practices, storage of
 patient clothing, linen replacement, and basic housekeeping
 measures. We learned during our site tour in May 2008 that
 methicillin-resistant staphylococcus aureus (“MRSA”) has been
 identified at KCHC, although not at high levels.37 Environmental
 considerations, such as laundry, are critical in preventing the
 spread of this organism. 


36

Id.


37
 MRSA is a highly contagious bacteria commonly found in
 institutional settings that is resistant to certain antibiotics,
 including methicillin. Centers for Disease Control and Prevention,
 at http://www.cdc.gov/ncidod/dhqp/ar_mrsa_ca_public.html. The
 disease presents itself at first as a boil or sore on the skin, and
 is easily spread through contact with an infected person or with a
 surface the person has touched. Id. In some cases, MRSA can lead
 to serious complications, including surgical wound infections,
 bloodstream infections, and pneumonia. Id. 


- 37 ­
The Centers for Disease Control (“CDC”) recommend that
 laundry be washed in water at least 160 degrees Fahrenheit. The
 washing machines on units available for patients provide water at
 only 107 degrees. This creates a significant risk that patients’
 personal clothing may spread MRSA or other pathogens even after
 being laundered. Moreover, KCHC does not properly store
 patients’ clothing. Patients’ stored clothing is not routinely
 laundered or disinfected before being stored. In the CPEP,
 patients’ clothing is stored on the floor. On the child and
 adolescent unit, patients’ clothing is stored in mesh bags,
 closely packed together in a closet, where mouse excrement was
 later observed.

In addition, KCHC uses worn bedding which cannot be properly
 cleaned and disinfected between uses. For the purpose of
 infection control, bedding and similar items should be replaced
 regularly once they reach the end of their service lives.

4. Unsafe Food Handling and Preparation Practices

Pursuant to generally accepted professional standards, KCHC
 is obligated to provide adequate food to patients consistent with
 safe preparation and handling practices. Proper cooking,
 holding, and serving temperatures and time frames are critical to
 prevent the risk of food borne illness. We found deficiencies in
 food handling at KCHC that put patients at risk for transmission
 of food borne illnesses.

Food temperatures are not being routinely monitored at
 serving locations. The pantry in the second floor of the adult
 inpatient building lacked a thermometer and temperature logs.
 When questioned about this, food service staff members indicated
 that thermometers were missing from several pantries, and the
 food service director was unable to produce any temperature logs
 from serving locations for the month of May 2008. Patients who
 were served this food were placed at risk of food borne illness.

5. Failure to Address Suicide Hazards in Patient Areas

Due to the nature of the patient population, KCHC should
 proactively address suicide hazards and vigilantly observe
 patients to minimize the risk of suicide. We acknowledge that
 KCHC has taken some steps to reduce suicide hazards, but many of
 the problems still remain, especially in the CPEP.

The CPEP is a high risk area for suicides due to its
 building fixtures and overpopulation. For example, the male and
 female bathrooms both have sink handles and shower control knobs


- 38 ­
that could easily be used by a patient to tie a shoelace or some
 other ligature around, place the other end in a noose around his
 or her neck, and sit down, asphyxiating him or herself. In
 addition, these areas are not constantly visible to staff nor
 regularly monitored by staff.38

G. Inadequate Clinical Leadership

The major role of clinical leadership in any institution is
 to ensure that professional standards of practice and
 accountability are maintained. Specifically, clinical leadership
 should respond, in a timely manner, to identified problems and
 offer stable, consistent administrative guidance and supervision.
 KCHC fails to provide such adequate clinical leadership.
 Leadership in all of the major disciplines at KCHC appears to be
 overwhelmed and reacts primarily to escalating crises. Repeated
 failure by leadership to implement timely appropriate corrective
 action plans have led to significant harmful situations.

Agencies such as CMS, OMH and other outside consultants have
 cited deficiencies at KCHC, including inadequate 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 repeated “plans of
 correction” and leadership’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 leadership intervention. The critical incidents
 that occurred in the CPEP and on the child and adolescent unit
 reflect the egregious consequences of the failure of the existing
 leadership to address effectively burgeoning problems.

38
 KCHC has been notified on many prior occasions about the
 presence of suicide hazards. The September 2004, January 2006, May
 2006, May 2007, and November 2008 OMH surveys described various
 suicide hazards in patient areas. Similarly, JCAHO’s July 2008
 survey also noted the presence of suicide hazards. We do note that
 KCHC plans to move all of its mental health patients to a new
 building commencing sometime in early 2009, which may ameliorate
 some of these physical plant defects. 


- 39 ­
H. Inadequate Discharge Planning And Placement In The Most
 Integrated Setting

Within the limitations of court-imposed confinement, federal
 law requires that KCHC 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,
 KCHC 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. Treatment planning must be directed toward
 returning the patient to the community as quickly as possible.
 Consequently, generally accepted professional standards call for
 assessment of the recovery environment, identification of
 problems related to adaptation in the community and efforts to
 enhance the prospects for recovery. This must begin at admission
 and include important members of the individual's natural and
 professional support system. Readmission within a brief time
 should be treated as a failure of the discharge planning process
 and should be tracked as part of the hospital's outcome measures.
 Without clear and purposeful identification of such factors and
 related issues, 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 discharge planning process at KCHC falls significantly
 short of these generally accepted professional standards of care.
 Treatment teams typically do not consider or integrate criteria
 for discharge into treatment planning. Consequently, many
 patients whose psychiatric conditions are largely under control
 remain hospitalized because of poor daily living skills,
 aggressive conduct, incontinence, inadequate dietary management,
 failure to take medication, and/or other behaviors that prevent
 discharge and community reintegration. Although such behaviors
 often can be resolved with proper treatment, KCHC rarely
 addresses these issues in patients’ treatment plans or in the
 facility’s discharge planning. This leads to frequent re­ admissions, which in turn suggests a failure of discharge
 planning. Examples include:

• S.D., who has been admitted to KCHC 12 times in nine years
 and has made another seven visits to the CPEP during that
 time period. 

• J.P., who had been repeatedly admitted and discharged during
 the past year without any meaningful assessment,
 reassessment, or targeted treatment. 


- 40 ­
• W.H., who has had five admissions in less than three months.
 Her record reflects KCHC’s failure to: adequately assess
 prior admissions; reach a clear differential psychiatric
 diagnosis; adequately assess the clinical efficacy of past
 medication interventions; adequately address her repeated
 aggressive behavior and its relation to mania or mixed
 states and resulting poor judgment; and conduct appropriate
 mental status exams. Accordingly, W.H. has been subjected
 to a range of shifting combinations of anti-psychotics and
 discharges to settings that are inappropriate for her needs.

The failure to provide adequate, individualized treatment
 and discharge planning for these and other patients deviates from
 generally accepted professional standards and contributes to
 extended hospitalizations, unsuccessful community placements, and
 a high likelihood of readmission. Patients are harmed or exposed
 to the risk of harm by the effects of prolonged
 institutionalization and by being denied a reasonable opportunity
 to live successfully in the most integrated, appropriate setting.

IV. FINDINGS PURSUANT TO § 14141

In furtherance of our investigation pursuant to § 14141, we
 and our expert consultants in police and hospital security
 practices reviewed relevant documents, including policy memoranda
 and training materials. As in the case of our CRIPA
 investigation, we toured KCHC with our expert consultants, and
 interviewed a cross-section of Hospital Police supervisors and
 officers as well as clinical staff, including hospital
 administrators, doctors, nurses, and other behavioral health
 staff. We also interviewed representatives from HHC.

Our investigation has revealed a number of serious policy
 and procedure deficiencies in the KCHC Hospital Police
 Department.39 Most significantly, the Department lacks a
 comprehensive, coherent set of policies and procedures and those
 policies which do exist are not effectively communicated
 to officers. As a result, there is confusion among Hospital
 Police officers and clinicians regarding the role of Hospital
 Police. This can result in inappropriate conduct by officers.
 One clear example is the complete failure by two Hospital Police
 officers to assist patient Esmin Green as she lay on the floor of
 the CPEP on the morning of June 19, 2008. 

39
 We will be sending under separate cover a Technical
 Assistance letter regarding the KCHC Hospital Police Department.


- 41 ­
In addition, we have determined that supervision and
 training of new officers is inadequate. As will be detailed in
 our Technical Assistance letter, new officers are poorly trained,
 particularly with respect to engaging mental health patients, and
 supervision is lax. Finally, KCHC lacks a coherent and effective
 system for receiving, reviewing and investigating incidents and
 complaints involving the Hospital Police.

**********************

VI. RECOMMENDED REMEDIAL MEASURES 

To remedy the deficiencies discussed above and to protect
 the constitutional and federal statutory rights of the patients
 at KCHC, KCHC should promptly implement the minimum remedial
 measures set forth below: 

A. Protection From Harm

KCHC should provide its patients with a safe and humane
 environment and protect them from harm. At a minimum, KCHC
 should:

1. Create or revise, as appropriate, and implement, in
 accordance with generally accepted professional
 standards, policies and procedures for the monitoring
 and supervision of patients, especially patients at
 risk, and ensure that all policies and procedures are
 integrated into routine assessment, re-assessment, and
 treatment planning.

2. Create or revise, as appropriate, and implement
 policies and procedures that comport with generally
 accepted professional standards to address:

a. patient aggressive and assaultive behaviors; 

b. patients expressing suicidal ideation and
 attempting self harm. 

3. 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; and
 suicidal ideations and suicide attempts;


- 42 ­
4. 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;

5. Create or revise, as appropriate, and implement
 thresholds for patient injury/event indicators,
 including patient-against-patient assaults,
 self-injurious behavior, and falls, that will initiate
 review at both the unit/treatment team level and at the
 appropriate supervisory level and that will be
 documented in the patient medical record with
 explanations given for changing/not changing the
 patient's current treatment regimen;

6. Create or revise, as appropriate, and implement
 policies and procedures addressing the investigation of
 serious incidents. Such policies and procedures shall
 include requirements that investigations of such
 incidents be undertaken and that they be comprehensive,
 include consideration of staff's adherence to
 programmatic requirements, and be performed by
 independent investigators;

7. Require all staff involved in conducting investigations
 to complete successfully competency-based training on
 technical and programmatic investigation methodologies
 and documentation requirements necessary in mental
 health service settings;

8. Monitor the performance of staff charged with
 investigative responsibilities, and provide technical
 assistance and training, whenever necessary to ensure
 the thorough, competent, and timely completion of
 investigations of serious incidents;

9. Develop and implement a reliable system to identify the
 need for, and monitor the implementation of,
 appropriate corrective and preventative actions
 addressing problems identified as a result of
 investigations;

10. 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


- 43 ­
corrective actions are identified and implemented in
 response to problematic trends; and 

11. Develop and implement a comprehensive quality
 improvement system consistent with generally accepted
 professional standards of care. At a minimum, such a
 system should: 

a. collect information related to the adequacy of the provision of the protections, treatments, services, and supports provided by KCHC, 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.
12. Conduct a thorough review of all units to identify any
 potential environmental safety hazards, and develop and
 implement a plan to remedy any identified issues. At a
 minimum, KCHC should:

a. Ensure that suicidal patients are housed in an
 area that is safe for them with appropriate
 supervision and observation by staff.

b. Identify and eliminate all suicide hazards in all
 areas accessible to patients, including patient
 bedrooms and bathrooms.

B. Mental Health Care

1. Assessments and Diagnoses

KCHC 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, KCHC 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


- 44 ­
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, and ensure that nursing assessments in
 particular are adequately thorough and
 individualized. 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.


- 45 ­

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 KCHC shall develop and implement an integrated treatment
 planning process consistent with generally accepted professional
 standards. More particularly, the KCHC shall:


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


b. Review and revise, as appropriate, each patient’s
 treatment plan to ensure that it is current,
 individualized, factors in the patient’s
 particular strengths, is outcome-driven, emanates
 from an integration of each discipline’s
 assessments of patients, and that goals and
 interventions are consistent with clinical
 assessments. Revise each patient’s treatment plan
 if it is not effective.


c.

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.


d.

Ensure that individualized treatment plans are


implemented in a consistent manner in accordance


with generally accepted professional practices.


e.

Ensure that the medical director timely reviews


high-risk situations such as individuals requiring


repeated use of seclusion and restraints.


- 46 ­

f.

Provide adequate and appropriate psychiatric and


other mental health services, including adequate


psychological services and behavioral management,


in accordance with generally accepted professional


standards. Behavioral management should focus on


teaching alternative, adaptive behaviors.


g.

Develop and implement psychological evaluations to


assess each patient’s cognitive deficits and


strengths to ensure that treatment interventions


are selected based on the patient’s capacity to


benefit.


h.

Develop and implement treatment goals that will


establish an objective, measurable basis for


evaluating patient progress.


i.

Develop and implement policies to ensure that


patients who are dually diagnosed as mentally


ill/developmental disabilities or mentally


ill/substance abuse, and patients with behavioral


problems, are appropriately evaluated, treated,


and monitored in accordance with generally


accepted professional standards.


j.

For patients identified as suicidal, develop and


implement a clear and uniform policy for patient


assessment and treatment.


k.

Ensure that staff receive adequate training to


serve the needs of patients requiring specialized


care.


Such training shall include:


1. competence in performing behavioral
 assessments, 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, including consideration or
 revision of behavioral interventions, and


- 47 ­
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.

l. Ensure full participation by the patient in the
 treatment planning process.

m. Ensure that treatment plans address repeated
 admissions and adjust the plans accordingly to
 examine and address the factors that led to re­ admission.

n. Ensure that treatment plans are consistently
 assessed for their efficacy and reviewed and
 revised when appropriate.

o. Ensure that the treatment planning process is
 guided by a multi-disciplinary team in which
 diverse professional expertise and observations
 are employed, in an inter-disciplinary process, to
 evaluate patients and develop treatment plans.

3. Medication Management and Monitoring

KCHC shall provide adequate psychiatric supports and
 services for the treatment of its patients, including medication
 management and monitoring of medication side-effects in
 accordance with generally accepted professional standards. More
 particularly, KCHC shall:

a. Develop and implement policies and procedures
 requiring clinicians to document their analyses of
 the benefits and risks of chosen treatment
 interventions;

b. Ensure that the treatment plans at KCHC include a
 psychopharmacological plan of care that includes
 information on purpose of treatment, type of
 medication, rationale for its use, target behaviors,
 and possible side effects. KCHC should also reassess


- 48 ­
the diagnosis in those cases that fail to respond to
 repeat drug trials.

c. Ensure that all psychotropic medications are:

1. prescribed in therapeutic amounts;

2. tailored to each patient’s individual symptoms;

3. monitored for efficacy against clearly-identified
 target variables and time frames;

4. modified based on clinical rationales; and

5. properly documented.

d. Institute systematic monitoring mechanisms regarding
 medication use throughout the facility. In this
 regard, KCHC 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;

2. Ensure that the pharmacological component of a
 treatment plan reflects the exercise of
 professional judgement for medication treatment
 including: diagnosis, target symptoms, risks and
 benefits of particular medications, and
 consideration of alternate treatments;

3. Ensure that the rationale for each patient’s
 course of treatment is included in the physician’s
 progress notes;

4. Ensure that psychotropic medications are used as
 an integral part of a treatment program to manage
 specific behaviors in the least restrictive
 manner, to eliminate targeted behaviors/symptoms,
 and to treat specific psychiatric disorders;

5. Develop and implement a policy and procedure
 governing the use of PRN medications that includes
 requirements for specific identification of the


- 49 ­
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;

6. Develop and implement a policy and procedure, in
 accordance with generally accepted professional
 standards, governing clinical justification of
 polypharmacy, which should include attention to
 the special risks associated with the use of
 benzodiazepines, anticholinergic agents, and
 conventional and atypical antipsychotic
 medications;

7. Ensure that all medications, in accordance with
 generally accepted professional standards, are
 being prescribed for their specific purpose and
 not solely for their secondary effects.

8. Adopt and incorporate the necessary protections
 and safeguards to ensure that patients are
 afforded safe and effective pharmacological
 treatment. To this end, KCHC shall, at a minimum,
 establish mechanisms to:

a. monitor practitioners’ adherence to specific
 and current guidelines in the use of each
 medication;

b. report and analyze adverse drug reactions;
 and

c. report, analyze, and document actual and
 potential variations in the prescription,
 transcription, procurement/storage,
 dispensing and administration of medications.

C. Behavioral Management

KCHC should ensure the use of systematic behavior (social
 learning) strategies. To this end, KCHC should:

1. Ensure that behavioral plans, in accordance with
 generally accepted professional standards, contain
 certain basic elements, including:


- 50 ­
a. an analysis of the reasons for the behavior and
 its frequency and causes;

b. identification of specific interventions developed
 and implemented by trained staff in order to
 address and modify the behavior; and

c. full integration of the behavior plan into the
 patient’s overall plan of care.

2. Ensure that close observation 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, time out procedures, and over-reliance on
 the use of close observation) should be used only after
 other less restrictive alternatives have been assessed
 and exhausted. To this end, KCHC should:

3. Ensure that restraints:

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.

4. 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


- 51 ­
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.

c. Limitations on the use of four-point restraints
 and STAT emergency medications to address patient
 behaviors.

5. Ensure that if restraint is initiated, the patient is
 assessed within an appropriate period of time and an
 appropriately trained staff member makes a
 determination of the need for continued restraint.

6. Ensure that a physician's order for 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.

7. Ensure that the patient's attending physician is
 promptly consulted regarding the restrictive
 intervention.

8. Ensure that at least every thirty minutes, patients in
 restraint be re-informed of the behavioral criteria for
 their release from the restrictive intervention.

9. Ensure that immediately following a patient being
 placed in restraint, the patient's treatment team
 reviews the incident, and the attending physician
 documents the review and the reasons for or against
 change in the patient's current pharmacological,
 behavioral, or psychosocial treatment.

10. Comply with 42 C.F.R. § 483.360(f) as to assessments by
 a physician or licensed medical professional of any
 resident placed in restraints.

11. Ensure that staff successfully complete
 competency-based training regarding implementation of
 seclusion and restraint policies and the use of
 less-restrictive interventions.


- 52 ­
12. Ensure that, with respect to the use of close
 observation:

a. Develop and implement a comprehensive policy and procedure that would restrict the use of close observation to only those situations where it is necessary to protect a patient from self-harm or harm to others;
b. Ensure that staff successfully complete competency-based training on the correct application of close observation.
c. Develop a quality improvement mechanism to monitor the use of close observation.
13. Ensure that KCHC will not transfer patients between
 psychiatric units in lieu of proper treatment. To this
 end, KCHC shall:

a. develop and implement a comprehensive policy and
 procedure that would limit the transfer of
 patients from one unit to another in lieu of
 proper treatment and require that all such
 transfers be approved centrally;

b. review and assess the necessity of all transfers
 with members of the treatment teams and the
 patient. In this review, the problem behaviors
 and effective and ineffective intervention
 strategies should be discussed and the efficacy of
 transfer be evaluated. 

D. Medical and Nursing Care

KCHC shall provide medical and nursing services to its
 patients consistent with generally accepted professional
 standards. Such services shall result in KCHC patients receiving
 individualized services, supports, and therapeutic interventions,
 consistent with their treatment plans. More particularly, KCHC
 shall:

1. Ensure adequate clinical leadership to ensure that
 professional standards of practice are maintained.


- 53 ­
2. Ensure that patients are provided adequate medical care
 in accordance with generally accepted professional
 standards.

3. Develop and implement appropriate policies and
 procedures, in accordance with general accepted
 professional standards, to ensure adequate medical and
 nursing assessments and monitoring.

4. Ensure that, before they work directly with patients,
 all nursing staff have successfully completed
 competency-based training regarding mental health
 diagnoses, related symptoms, psychotropic medications,
 identification of side effects of psychotropic
 medications, monitoring of symptoms and target
 variables, and documenting and reporting of the
 patient’s status.

5. Ensure that nursing staff monitor, document, and report
 accurately and routinely, 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 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.

8. Establish an effective infection control program to
 prevent the spread of infections or communicable
 diseases.

9. Establish an effective emergency preparedness program,
 including appropriate staff training; staff awareness
 of emergency materials and their location; and
 conducting sufficient practice codes to be able to


- 54 ­
perform in a competent fashion when confronted with an
 actual emergency.

10. Provide and maintain adequate medical documentation in
 accordance with generally accepted professional
 standards. Ensure that all clinical records are
 complete, accurately documented, readily accessible,
 and systematically organized.

1l. Develop and maintain an integrated system to monitor
 and ensure quality of care across all aspects of care
 and treatment, including adequate systems for data
 capture, retrieval, and statistical analysis to
 identify and track trends. The program also should
 include a process for developing a corrective action
 plan and a process for monitoring the effectiveness of
 corrective measures that are taken. 

E. Fire and Life Safety

In order to provide patients with the environmental safety
 and security that generally accepted professional standards
 require, KCHC shall, at a minimum:

1. Develop and implement adequate policies and
 procedures regarding fire prevention including
 emergency planning and drills.

2. Ensure that emergency drills are conducted on a
 regular basis.

3. Implement competency based testing for staff
 regarding fire/emergency procedures.

4. Ensure that emergency keys are appropriately marked,
 available, and consistently stored in a quickly
 accessible location.

5. Develop and implement policies and procedures for
 cleaning, handling, storing, and disposing of
 biohazardous materials.

6. Destroy any linens that cannot be sanitized
 sufficiently to kill any possible bacteria. Inspect
 and replace all worn linens as often as necessary.

7. Develop and implement policies and procedures for
 laundering, disinfecting, and appropriately storing
 patients’ extra personal clothing until the
 patients’ discharge.


- 55 ­
8. Ensure that laundry is washed and dried at the
 proper temperatures and the laundry delivery
 procedures protect patients from exposure to
 contagious disease, bodily fluids, and pathogens by
 preventing clean laundry from coming into contact
 with dirty laundry or contaminated surfaces.

9. Develop and implement policies and procedures to
 ensure adequate cleaning of the facilities with
 meaningful inspection processes and documentation.
 Such policies should include oversight and
 supervision, as well as establish daily cleaning
 requirements for toilets, showers, housing areas,
 and other areas accessible to patients.

10. Provide training for food service workers in the
 areas of food safety and food handling to reduce the
 risk of food contamination and food-borne illnesses.

11. Ensure that foods are served and maintained at
 proper temperatures.

F. Discharge Planning

KCHC shall actively pursue the appropriate discharge of
 patients and ensure that patients receive services in the most
 integrated, appropriate setting that is consistent with their
 needs. More particularly, KCHC 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 or psychiatric distress;

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. Include in treatment interventions the development
 of skills necessary to live in the setting in which


- 56 ­
the patient will be placed, and otherwise prepare
 the patient for his or her new living environment.

3. Provide the patient adequate assistance in
 transitioning to the new setting;

4. 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.

5. Ensure that the patient is an active participant in
 the placement process.

6. Create or revise, as appropriate, and implement a
 quality assurance or utilization review process to
 oversee the discharge process and aftercare
 services.

7. Ensure that appropriate steps are taken to provide
 continuity of care with appropriate community
 providers in order to prevent decompensation and
 reinstitutionalization.

G. KCHC Hospital Police Policies, Procedures and Practices40

KCHC shall provide policing services that comport with the
 requirements of the United States Constitution and laws, as well
 as with generally accepted professional standards for hospital
 security services. To that end, KCHC should:

1. Develop a coherent, comprehensive, integrated set of
 Hospital Police policies and practices that provides
 clear guidance for officer conduct, including but
 not limited to policies to guide Hospital Police
 officers’ interactions with psychiatric inpatients,
 and Hospital Police officers’ use of force; 

2. Develop a comprehensive training program, including
 adequate field training for new officers and
 adequate in-service training for all officers; 

3. Develop comprehensive policies and procedures on

40
 This is a general list of remedies as a more specific
 assessment will be provided under separate cover.


- 57 ­
supervisory oversight of line officers, including
 supervisory review of use of force and other incidents;
 and

4. Establish an adequate record management system
 whereby all incidents involving the Hospital Police,
 including but not limited to uses of force, as well
 as all other types of interactions with patients,
 are documented, recorded, assigned discrete control
 numbers, and investigated where appropriate.

V. CONCLUSION

Please note that this findings letter is a public document.
 It will be posted on the Civil Rights Division’s website.41
 Although 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 the Civil Rights Division’s website until ten
 calendar days from the date of this letter.

We hope to continue working with the City, HHC, and KCHC in
 an amicable and cooperative fashion to resolve our concerns
 expressed in this letter. Assuming that our cooperative
 relationship continues, we are willing to send our consultants'
 written evaluations -- which are not public documents -- under
 separate cover. Although the consultants' reports do not
 necessarily reflect the official conclusions of the Department of
 Justice, the observations, analysis, and recommendations
 contained therein provide further elaboration of the issues
 discussed in this letter and offer practical technical assistance
 to help address them. We hope that you will give this
 information careful consideration and that it will assist in
 facilitating a dialogue addressing the areas that require
 attention.

41
 http://www.usdoj.gov/crt/split/


- 58 ­
We are obligated to advise you that, in the unexpected event
 that we are unable to reach a resolution regarding our concerns,
 the Attorney General may initiate a lawsuit pursuant to CRIPA and
 § 14141 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 the City and
 are confident that we will be able to do so. The DOJ lawyers
 assigned to this investigation will be contacting the City’s
 attorneys to discuss this matter in further detail. If you have
 any questions regarding this letter, please call Tammie M. Gregg,
 Deputy Chief of the Civil Rights Division's Special Litigation
 Section, at (202) 616-2009, or Michael J. Goldberger, Chief of
 Civil Rights, Civil Division, in the United States Attorney’s
 Office, Eastern District of New York, at (718) 254-6052. 


Sincerely,


/s/ Benton J. Campbell ___________________ Benton J. Campbell United States Attorney Eastern District of New York

/s/ Loretta King
 ____________________________ Loretta King
 Acting Assistant Attorney

General 


cc: Michael A. Cardozo, Esq.
 Corporation Counsel

Alan D. Aviles
 President
 New York City Health and Hospitals Corporation

Richard A. Levy
 General Counsel 
 New York City Health and Hospitals Corporation

Jean Leon
 Executive Director
 Kings County Hospital Center 


 
 UNITED STATES DISTRICT COURT FOR THE
 EASTERN DISTRICT OF NEW YORK


UNITED STATES OF AMERICA,

)


)


Plaintiff,

)


)


v.

)

)

THE CITY OF NEW YORK; THE NEW )

YORK CITY HEALTH AND HOSPITALS )

CORPORATION; THE KINGS COUNTY )

HOSPITAL CENTER; ALAN D. AVILES, )

President, New York City Health and

)

Hospitals Corporation, in his official

)

capacity only; ANTONIO MARTIN,

)

Executive Director, Kings County Hospital )

Center, in his official capacity only;

)

JOSEPH P. MERLINO, M.D., Deputy

)

Executive Director for Behavioral

)

Health Services, Kings County Hospital )

Center, in his official capacity only,

)

)


Defendants.

)


)


_________________________________________ )


Civ. No. --

COMPLAINT

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

undersigned attorneys, hereby alleges upon information and belief:

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

States of America pursuant to the Civil Rights of Institutionalized Persons

Act of 1980, 42 U.S.C. § 1997, to enjoin the named Defendants from depriving

persons institutionalized at the Kings County Hospital Center inpatient

psychiatric units and the Kings County Hospital Center Comprehensive

Psychiatric Emergency Program (collectively, “KCHC”), located in Brooklyn, New York, of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States. This Complaint is also filed pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“§ 14141”), which gives the Attorney General authority to file suit to remedy a pattern or practice of misconduct by law enforcement officers that deprives persons 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. § 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint as Attachment A and is incorporated herein. 5. Venue in the Eastern District of New York is proper pursuant to 28 U.S.C. § 1391.
- 2 ­

DEFENDANTS 6. Defendant City of New York (“City”) is responsible for the oversight of the public health care system in all five boroughs of New York City and as such has responsibility for the protections, services, and supports provided to patients at KCHC, an inpatient facility housing individuals in need of emergency and long-term psychiatric inpatient services. 7. Defendant Health and Hospitals Corporation (“HHC”) is a public benefit corporation which owns and operates KCHC. HHC provides medical, mental health and substance abuse services and is responsible for the care and treatment provided to KCHC patients. 8. Defendant Kings County Hospital Center is a public, full-service acute care hospital located in Brooklyn, New York and operated by the HHC. The Kings County Hospital Center encompasses and controls the day-to-day operations of the inpatient psychiatric service and the Comprehensive Psychiatric Emergency Program (“CPEP”). References to KCHC in the Complaint and Consent Judgment are understood by the parties to mean the CPEP and the inpatient psychiatric service only, as described herein in paragraph 1. 9. Defendant ALAN AVILES is the President of the HHC and has authority over the Kings County Hospital Center and over the care of
- 3 ­

patients at the Kings County Hospital Center. Defendant AVILES is sued in his official capacity.
10. Defendant ANTONIO MARTIN is the Executive Director of the Kings County Hospital Center and is responsible for the day-to-day operations of KCHC. Defendant MARTIN is sued in his official capacity.
11. Defendant JOSEPH P. MERLINO, M.D., is the Deputy Executive Director for Behavioral Health Services at the Kings County Hospital Center and is responsible for the day-to-day administration of behavioral health services at KCHC. Defendant Merlino is sued in his official capacity.
12. Defendants are legally responsible, in whole or in part, for the operation and conditions of KCHC, and for the health and safety of persons institutionalized at KCHC.
13. Defendants are governmental authorities or agents thereof with responsibility for the administration of KCHC within the meaning of 42 U.S.C. § 1997a and 42 U.S.C. § 14141(a).
14. At all relevant times, the Defendants or their predecessors in office have acted or failed to act, as alleged herein, under color of law.
FACTUAL ALLEGATIONS 15. KCHC is an institution within the meaning of 42 U.S.C. § 1997(1).
- 4 ­

16. Individuals are confined to, or reside at, KCHC because they have been determined by the courts or Defendants to have mental illness or other disabilities requiring protections, supports, and services.
17. Defendants are obligated to operate KCHC 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 KCHC patients.
18. The protections, supports, and services at KCHC substantially depart from generally accepted professional standards of care, thereby exposing the individuals residing there to significant risk of harm, and in some cases, to actual harm, as set forth in the letter issued by Acting Assistant Attorney General Loretta King on January 30, 2009, detailing the United States’ investigative findings of conditions at KCHC (“Findings Letter”). The Findings Letter is appended to this Complaint as Attachment B and is incorporated by reference herein.
19. The protections, supports, and services substantially depart from generally accepted professional standards of care in the following specific respects, among others, and detailed in the Findings Letter:
a. the provision of reasonably safe conditions, including protection from harm and environmental conditions, so as
- 5 ­

to ensure the reasonable safety and personal security of KCHC patients; b. the provision of adequate treatment planning, necessary to protect KCHC patients’ liberty interests, sufficient to ensure their safety and freedom from undue or unreasonable restraint; c. the provision of adequate psychiatric, psychological and medical and nursing care services to KCHC patients; d. the provision of adequate and appropriate hospital policing services; and e. the provision of adequate discharge planning and community placement services. 20. KCHC patients are “qualified individual[s] with a disability” under the ADA, 42 U.S.C. §§ 12101, 12131. 21. The City and the City of New York Health and Hospitals Corporation are “public entities” under Title II of the ADA, 42 U.S.C. § 12131. 22. Defendants have violated the ADA by excluding KCHC patients, by reason of their disability, from placement in the most integrated setting appropriate to their needs by failing and continuing to fail to ensure that
- 6 ­

KCHC patients 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 KCHC patients are served in the most integrated setting appropriate to each patient’s individual needs.
VIOLATIONS ALLEGED 23. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 22, as if fully set forth herein. 24. The acts and omissions alleged in Paragraphs 18 and 19 and outlined in the Findings Letter constitute a pattern or practice and infringe upon the KCHC 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 by other federal law, and deprive KCHC patients of such rights, privileges, or immunities. 25. The acts and omissions alleged in Paragraph 22 and outlined in the Findings Letter violate the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the regulations promulgated thereto, 28 C.F.R. Part 35, by failing to administer services, programs, or activities to KCHC patients in the most integrated setting appropriate to their needs.
- 7 ­

26. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in Paragraphs 18, 19, and 22 and in the Findings Letter that deprive KCHC patients of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.
PRAYER FOR RELIEF 27. The Attorney General is authorized under 42 U.S.C. § 1997 to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Honorable Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in paragraphs 18, 19, and 22 above, and that this Court require Defendants to take such actions as will ensure lawful conditions are afforded to patients at KCHC. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Respectfully submitted, /s Erich H. Holder ___________________________ ERIC H. HOLDER, Jr. Attorney General of the United States
- 8 ­

/s Benton J. Campbell _______________________ BENTON J. CAMPBELL United States Attorney Eastern District of New York
/s Michael J. Goldberger _________________________ MICHAEL J. GOLDBERGER Federal Bar No. Chief of Civil Rights United States Attorney’s Office Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 (718) 254-6052 michael.goldberger@usdoj.gov

Thomas E. Perez ___________________________ THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
/s Sameul Bagenstos ______________________ SAMUEL BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
/s Tammie Gregg ___________________________ TAMMIE GREGG Principal Deputy Chief Special Litigation Section
/s David Deutsch ___________________________ DAVID DEUTSCH CATHLEEN S. TRAINOR LAURA M. WELP Attorneys Civil Rights Division Special Litigation Section U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 5026 Washington, DC 20530 (202) 514-6270
- 9 ­

david.deutsch@usdoj.gov - 10 ­

 
 IN THE UNITED STATES DISTRICT COURT FOR THE
 EASTERN DISTRICT OF NEW YORK


UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

)

THE CITY OF NEW YORK,

)

NEW YORK CITY HEALTH AND HOSPITALS )

CORPORATION, ALAN AVILES, PRESIDENT, )

NEW YORK CITY HEALTH AND HOSPITALS )

CORPORATION, in his official capacity,

)

ANTONIO MARTIN, EXECUTIVE

)

DIRECTOR, KINGS COUNTY HOSPITAL

)

CENTER, in his official capacity, and

)

JOSEPH MERLINO, DEPUTY EXECUTIVE )

DIRECTOR FOR BEHAVIORAL HEALTH

)

SERVICES, KINGS COUNTY HOSPITAL, in )

his official capacity,

)

)

Defendants.

)

)

_______________________________________ )

Civil No. _______

CONSENT JUDGMENT


I. INTRODUCTION

A. This Consent Judgment (“Agreement”) is entered into between the United States of America (“United States”) and the City of New York (“NYC”), the New York City Health and Hospitals Corporation (“HHC”), Alan Aviles, President of HHC, in his official capacity, Kings County Hospital Center (“KCHC”), Antonio Martin, as Executive Director of KCHC and Joseph Merlino, as Deputy Executive Director for Behavioral Health Services at KCHC (collectively, “Defendants”).
This Agreement addresses the results of the United States’ investigation into the conditions of care and treatment of mental health patients (hereinafter, “Patients”) at KCHC’s behavioral health units, i.e., its psychiatric inpatient units and the emergency psychiatric unit (the Comprehensive Psychiatric Emergency Program, or “CPEP,” which includes the psychiatric emergency service and the Extended Observation Unit (“EOU”)) in Brooklyn, New York, pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, and the Violent Crime and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“ § 14141”).
B. The United States commenced its investigation into conditions at KCHC’s behavioral health units (hereinafter, “KCHC” shall refer to KCHC’s behavioral health units only, unless otherwise indicated) on December 7, 2007, when the United States notified Defendants, pursuant to CRIPA and § 14141, of its investigation. The United States conducted on-site inspections of KCHC on May 20-23, 2008, July 28-August 1, 2008, and September 18-19, 2008. By letter dated January 30, 2009, the United States notified NYC of the findings of its investigation concerning KCHC (the “findings letter”).
C. It is the position of the United States that in its care and treatment of Patients, KCHC violates the rights of these Patients that are secured or protected by the United States Constitution and the laws of the United States.
D. Each and every provision of this Agreement is entered into by agreement of the Parties, after thorough negotiations. The purpose of this Agreement is to achieve the substantive outcomes set forth within this Agreement.
E. The Parties agree that the provisions of this Agreement are a lawful, fair, adequate, and reasonable resolution of this investigation.
F. In entering into this Agreement, Defendants do not admit any violation of the United States Constitution or federal law. This Agreement shall not be used as evidence of liability in any other legal proceeding.
G. Nothing in this Agreement shall be construed as an acknowledgment or admission by the United States that Defendants have acted, or continue to act, in full compliance with the United States Constitution or federal law.
1


H. This Agreement is binding on Defendants and their agencies, departments, successors, or independent contractors including agents and/or assigns that may have responsibility for implementation of the requirements of this agreement, either currently or in the future.
II. DEFINITIONS
As used in this Agreement, the following definitions apply to the terms below, without regard to case, gender, tense, or number:
A. “Adequate” or “appropriate” shall mean that level of service required for compliance with all applicable federal laws and regulations, and with generally accepted professional standards.
B. “Competency-based training” shall mean the provision of knowledge and skills sufficient to enable the trained person to meet specified standards of performance as validated by that person’s demonstration that he or she can use such knowledge or skills effectively in the circumstances for which they are required.
C. “Consistent with generally accepted professional standards” shall mean a decision by a qualified professional that substantially complies with and is based upon contemporary, accepted professional judgment, practice, or standards.
D. “CPEP” shall mean the Emergency Psychiatric Service and the Extended Observation Unit (“EOU”) of Kings County Hospital Center’s Comprehensive Psychiatric Emergency Program.
E. “Effective Date” shall be the date on which this Agreement is entered as an order of the Court.
F. “HHC” shall mean the New York City Health and Hospitals Corporation, its agencies, departments, or their successors or designees, and HHC’s employees, agents, or assigns.
G. Mental Hygiene Legal Service (“MHLS”) shall mean the plaintiff and his counsel in Hirschfeld o/b/o L.D. et al. v. New York City Health and Hospitals Corp., et al., Civil Action No. CV-07-1819 (KAM) (E.D.N.Y. May 2, 2007).
H. “Patients” shall mean behavioral health patients at KCHC’s psychiatric inpatient units and the CPEP.
I. “Physician” shall mean a person licensed to practice medicine in the State of New York.
J. “Psychiatrist” shall mean a physician licensed to practice medicine in New York State who: (a) is a diplomate of the American Board of Psychiatry and Neurology or is eligible to be certified by that board; or (b) is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board, as defined by New York State Mental Hygiene Law § 9.01.
K. “Psychotropic medication” shall mean any substance used in the treatment of mental illness which exerts an effect on the mind and is capable of modifying mental activity or behavior.
L. “Qualified Professional” shall mean an individual who is competent, whether by education, training, or experience, to make the particular decision at issue.
2


M. “Registered Nurse” or “RN” shall mean an individual licensed as a registered professional nurse by the State of New York.
N. “Restraint” shall mean any device or procedure that restricts, limits, or directs a person’s freedom of movement, including, but not limited to, chemical, mechanical, or physical/manual restraints.
O. “Sentinel Event” shall mean an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. The phrase, “or the risk thereof” includes any process variation for which a recurrence would carry a significant chance of a serious adverse outcome. Such events are called “sentinel” because they signal the need for immediate investigation and response.
P. “The City” or “NYC” shall mean the City of New York, its agencies, departments, or their successors or designees, and the City’s employees, agents, or assigns.
Q. “Treatment Plan” shall mean a document or a portion of a document (which can include an Electronic Medical Record) which sets out, in an integrated and coherent manner, all of the individualized treatments, protections, support services, and activities to be provided to the Patient; is periodically reviewed; is revised as appropriate; is based upon comprehensive assessments performed by an interdisciplinary team comprised of qualified professionals in accordance with generally accepted professional standards; reflects, to the fullest extent practical, the Patient’s input and family input (where appropriate), preferences, strengths, and needs; and specifies methods to track and document progress toward identified goals and objectives.
R. “United States” shall mean the Civil Rights Division of the United States Department of Justice and the United States Attorney’s Office for the Eastern District of New York, and their employees, agents, assigns, or successors.
III. SUBSTANTIVE PROVISIONS
To remedy the deficiencies discussed in the findings letter and protect the constitutional and federal statutory rights of Patients at Kings County Hospital Center, Defendants shall promptly implement the minimum remedial measures set forth below:
A. Protection From Harm
KCHC shall provide its Patients with a safe and humane environment and protect them from harm. At a minimum, KCHC shall:
1. Create or revise, as appropriate, and implement, in accordance with generally accepted professional standards, policies and procedures for the monitoring and supervision of Patients, especially Patients at risk, and ensure that all policies and procedures are integrated into routine assessment, re-assessment, and treatment planning.
3


2. Create or revise, as appropriate, and implement policies and procedures that comport with generally accepted professional standards to address:
a. Reduction of violence and Patient aggressive and assaultive behaviors, including, but not limited to, sexual assaults. Such policies and procedures shall include, but not be limited to, training of appropriate staff members in prevention and management of assaultive and aggressive behavior, including de-escalation techniques;
b. Patients expressing suicidal ideation; and
c. Patients who attempt self-harm.
3. 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 of Patients by staff; and suicidal ideation and suicide attempts. These policies and procedures will include the mandatory requirement that staff with knowledge of such incidents report them; the establishment of means to anonymously report the improper removal, destruction, modification and/or falsification of any record; and specific processes by which these reports will be recorded and immediately investigated by a named individual or individuals accountable for investigation and resolution of the report.
4. 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 accuracy of data and improper removal, destruction, and/or falsification of any record.
5. Create or revise, as appropriate, and establish and implement thresholds that will initiate substantive review for Patient injury events, including Patient-against-Patient assaults, Patient-against-staff assaults, self-injurious behavior, and falls. Such review shall take place at both the unit and treatment team level and at the appropriate supervisory level and will be documented in the Patient’s medical record with explanations given for changing/ not changing the Patient’s current treatment regimen.
6. Create or revise, as appropriate, and implement policies and procedures addressing the investigation of serious incidents. “Serious incidents” shall include, but not be limited to: Patient death; abuse or neglect of a Patient; serious Patient injury, including injuries resulting from suicide attempts and other self-injurious behaviors; sentinel events; and other incidents which result in significant harm to Patients or imminently threaten the safety of Patients. Such policies and procedures shall include requirements that comprehensive investigations of such incidents be undertaken; that upon learning of the incident, KCHC will promptly notify the United States and MHLS; that federal reporting and state regulatory requirements and guidelines regarding deaths caused by restraints will be followed; and that the Patient[s] involved will be interviewed, if possible, as part of the investigation. These investigations will include consideration of staff’s adherence to programmatic requirements and federal and state regulatory requirements and guidelines, and be performed by independent investigators.
4


Independent investigators means investigators who have not been involved in the incident or part of the decision making process for the incident or event which is under investigation.
7. Require all staff involved in conducting investigations to successfully complete competency-based training on technical and programmatic investigation methodologies and documentation requirements necessary in mental health service settings.
8. Monitor the performance of staff charged with investigative responsibilities, and provide technical assistance and training, whenever necessary, to ensure the thorough, competent, and timely completion of investigations of serious incidents.
9. Develop and implement a reliable system to identify the need for, and monitor the implementation of, appropriate corrective and preventative actions addressing problems identified as a result of investigations of incidents involving Patient harm.
10. 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, and reports as described in paragraph 3 above, to ensure that such incidents are properly investigated and appropriate corrective actions are identified and implemented in response to both individual incidents and problematic trends.
11. Develop and implement a comprehensive quality assurance/performance 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 KCHC, 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.
12. Conduct a thorough review of all units to identify any potential environmental safety hazards, and develop and implement a plan to remedy any identified issues. At a minimum, KCHC shall:
a. Ensure that suicidal Patients are housed in an area that is safe for them, with appropriate supervision and observation by staff;
b. Identify and eliminate suicide hazards to the fullest extent possible in all areas accessible to Patients, including Patient bedrooms and bathrooms.
5


B. Mental Health Care

1. Assessments and Diagnoses

KCHC shall ensure that its 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, KCHC shall:

a. Develop and implement policies and procedures regarding triage in the CPEP, including, but not limited to policies and procedures regarding:

(i)

The timing of triage for Patients upon entering the CPEP;

(ii)

Forms to be used in conducting triage;

(iii)

Determinations regarding whether a Patient should be retained if she

desires to leave the CPEP;

(iv)

Individuals determined to have mental retardation or developmental

disabilities;

(v)

Individuals determined to be intoxicated;

(vi)

Individuals determined to be at risk for violence and/or predatory

behavior;

(vii)

Individuals determined to evidence suicidal ideation or self-harm

behaviors;

(viii) Individuals with acute medical conditions;

(ix)

Re-evaluation of Patients and status updates of Patients while in the

CPEP regularly and as appropriate; and

(x)

Treatment of minors in the CPEP, including identification, escort

and oversight protocols; designation of separate waiting and

examination areas for minors; and access to therapy with family

participation.

b. Develop and implement comprehensive policies and procedures regarding the timeliness and content of initial psychiatric assessments and ongoing re­ assessments; and ensure that assessments include a plan of care, including the treatment plan, that outlines specific strategies, with rationales, including adjustment of medication regimens and initiation of specific treatment interventions. With respect to any Patient deemed to need inpatient admission, such policies and procedures shall provide for at least one re-evaluation, every eight hours for all Patients who remain in the CPEP following the initial determination of the need for inpatient admission.

6


c. Ensure that psychiatric re-assessments are completed within time frames that reflect the Patient’s needs, including prompt re-evaluations of all Patients requiring restrictive interventions.
d. Develop and implement psychiatric diagnostic practices consistent with generally accepted professional standards.
e. Conduct interdisciplinary assessments of Patients which are thorough and individualized and which are consistent with generally accepted professional standards, including, but not limited to, psychology and nursing assessments where indicated. Expressly identify and prioritize each Patient’s individual mental health problems and needs, including, but not limited to, maladaptive behaviors, substance abuse problems, trauma history, where clinically appropriate, medical problems, and social and service needs including housing and transportation.
f. 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, including community and family supports and is used to prepare the Patient’s treatment plan.
g. Ensure that the information gathered in the assessments and re-assessments is used to refine diagnoses over time. Ensure that, if a Patient’s condition changes over time, any continued assessment which is performed results in new or additional diagnoses, where appropriate.
h. 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.
i. 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.
j. Develop and implement a monitoring instrument to ensure a systematic review of the quality and timeliness of all assessments and re-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 re-assessments, identify individual and group trends, and provide corrective action.
k. Ensure that, for Patients with limited English proficiency (“LEP”, i.e., an individual whose primary language is not English and who has a limited ability to read, write, speak or understand English) or a disability that affects communication, all significant medical and clinical interactions with Patients, including treatments, obtaining informed consent for medications, treatment planning, discharge planning, and information about rights, are as effective as communications with others and are conducted in the Patient’s language of
7


preference. Whenever possible, communication services will be conducted on a face-to-face basis using qualified speakers or interpreters. With respect to a Patient with a disability that affects communication, primary consideration shall be given to the Patient’s requested auxiliary communication aid or service. If factors such as an emergency or time constraints arise, other appropriate interpretive and/or translation services may be used to ensure effective communication.

l. Ensure that within seven days of admission or when mental status permits, all school-age children receive as part of the comprehensive interdisciplinary admission process an evaluation of cognitive functioning performed by or under the supervision of a licensed psychologist. If performed under the supervision of a licensed psychologist, the individual performing the assessment will have received appropriate training in psychological assessment and be currently enrolled in a doctoral degree granting program in psychology. At minimum, this evaluation will include a review of all prior and available psychological/psychiatric records, cognitive and academic achievement testing records, a review of available academic records, a thorough mental status examination, including cognitive screening to gain an estimate of basic cognitive ability.

(i)

Ensure that once the treatment team has all necessary information, if

clinically warranted and deemed appropriate for treatment and

discharge planning, identified school-age children will undergo

formal cognitive and/or academic achievement testing to assess

current cognitive and academic functioning.

(ii)

Ensure that, where appropriate, Defendants coordinate with the New

York City Department of Education to provide required educational

services to all school-age children.

2. Treatment Planning

KCHC shall develop and implement an integrated treatment planning process consistent with generally accepted professional standards. More particularly, KCHC shall:

a. Either prior to admission or within 24 hours of an individual’s admission to the inpatient service, ensure that the individual receives an admission psychiatric evaluation that includes:

(i)

Psychiatric history, including a review of presenting symptoms;

(ii)

Complete mental status examination;

(iii)

Admission diagnoses;

(iv)

Laboratory tests ordered;

8


(v)

Consultations ordered; and

(vi)

Consideration of co-occurring medical conditions and physical

status, including a review of the medical admission history and

physical examinations conducted.

The salient data elicited during the evaluations described in paragraphs (a)(i-vi) shall be integrated into the Patient’s treatment plan.

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

c. Review and revise, as appropriate, each Patient’s treatment plan to ensure that it is current and individualized; factors in the Patient’s particular strengths; is outcome-driven; emanates from an integration of each discipline’s assessments of Patients; ensures that goals and interventions are consistent with clinical assessments; and is revised by KCHC if it is not effective.

d. Ensure that staff fully involve each Patient in the treatment planning process, to the extent that the Patient is capable of, and willing to, participate in that process.

e. Ensure that individualized treatment plans are implemented in a consistent manner in accordance with generally accepted professional standards.

f. Develop and implement policies and practices consistent with generally accepted professional standards to engage Patients, as fully as possible, in psychosocial rehabilitation that:

(i)

Is based on the individual Patient’s assessed needs and is directed

toward increasing the individual Patient’s ability to engage in more

independent life functions;

(ii)

Has documented objectives, measurable outcomes, and standardized

methodology;

(iii)

Is aligned with the individual Patient’s objectives that are identified

in the individual Patient’s plan of care, including the treatment plan;

(iv)

Utilizes the individual Patient’s strengths, preferences, and interests;

(v)

Focuses on the individual Patient’s psychiatric risk factors,

substance abuse, and re-admission due to relapse, where appropriate;

(vi)

Is provided in a manner consistent with each individual Patient’s

cognitive strengths and limitations;

9


(vii)

Documents progress for review by the interdisciplinary team as part

of the plan of care, including the treatment plan review process;

(viii)

Is provided 7 days a week, for a minimum of 4 hours each day for each individual Patient and that additional activities designed to enhance the individual Patient’s quality of life are offered at, among other times, evenings and weekends, and that takes place as much as practicable in the Patient’s language of preference.

(ix)

Is provided to individual Patients in a manner and for a period that is

commensurate with their medical status;

(x)

Routinely takes place as scheduled; and

(xi)

Is consistently reinforced by staff on the therapeutic milieu.

To the extent that a Patient declines or resists receiving appropriate psychosocial treatment, KCHC shall make all reasonable efforts to provide the Patient with the services.

g. Ensure that adequate individualized and group exercise and recreational options are provided, consistent with generally accepted professional standards.

h. Ensure that, consistent with generally accepted professional standards, family support services are provided where feasible to individuals who have an assessed need for such services, in their language of preference, and that these services, and their impact where ascertainable, for addressing the indicated problem(s), are appropriately documented in each individual Patient’s chart.

i. Ensure that staff educates Patients regarding the purposes of their treatment, rehabilitation and enrichment services and that Patients are informed of the contents of their treatment plan and that Patients and/or their advocates are provided a copy of their treatment plans upon request, as appropriate.

j. Ensure that clinical staff informs Patients and any advocates or family members of the Patients’ choosing orally and, where appropriate, in writing, about their right to informed consent and to refuse treatment and educates Patients orally and, where appropriate, in writing, about their medications, including, but not limited to, reasons for the chosen treatment, the expected results, and the potential common and/or serious side effects of medications, and that clinical staff regularly ask Patients about common and/or serious side effects they may experience.

k. Ensure that interdisciplinary teams review, assess, develop and implement clinical strategies in accordance with generally accepted professional standards to overcome Patients’ barriers to participation in treatment services. Such review shall, where appropriate, take place with the participation of Patients and any advocates or family members of the Patients’ choosing.

10


l. Ensure that the Deputy Executive Director for Behavioral Health Services or his or her designee assesses in a timely manner high-risk situations such as individuals requiring repeated use of restraints. All restraints will be reviewed by the service medical directors. The use of restraints on any Patient more than once during an admission will be reviewed by the Deputy Executive Director for Behavioral Health or his or her designee.

m. Provide adequate and appropriate psychiatric and other mental health services, including adequate psychological services and behavioral management, in accordance with generally accepted professional standards. Behavioral management should focus on teaching alternative, adaptive behaviors.

n. Develop and implement psychological evaluations, where indicated, to assess Patients’ cognitive deficits and strengths to ensure that treatment interventions are selected based on the Patient’s capacity to benefit.

o. Develop and implement treatment goals that will establish an objective, measurable basis for evaluating Patient progress.

p. Develop and implement policies to ensure that Patients who are dually diagnosed as mentally ill/developmentally disabled or cognitively impaired or mentally ill/substance abuse, and Patients with behavioral problems, are appropriately evaluated, treated, and receive appropriate services in accordance with generally accepted professional standards.

q. For Patients identified as suicidal, develop and implement a clear and uniform policy for Patient assessment and treatment.

r. Ensure that staff receive adequate training to serve the needs of Patients requiring specialized care. Such training shall include, as appropriate:

(i)

Competence in performing behavioral assessments, including the

functional analysis of behavior and appropriate identification of

target and replacement behaviors (i.e., existing maladaptive

behaviors and the desired substitutes for those behaviors);

(ii)

Implementation of clear criteria for behaviors or events that trigger

referral for a behavioral assessment;

(iii)

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;

(iv)

Implementation of protocols for collecting objective data on target

and replacement behaviors; and

(v)

Assessing each Patient’s cognitive deficits and strengths to ensure

that treatment interventions are selected based on the Patient’s

capacity to benefit.

11


s. Ensure that treatment plans address the reasons for repeated admissions by individual Patients and adjust their plans accordingly to examine and address the factors that led to their re-admission, consistent with generally accepted standards.

t. Develop policies and procedures that provide for the identification of Patients with repeated admissions to the CPEP whose treatment plans will be reviewed by the Deputy Executive Director for Behavioral Health Services or his or her designee.

u. Ensure that treatment plans are consistently assessed for their efficacy and reviewed and revised when appropriate.

v. Ensure that the treatment planning process is guided by a multi-disciplinary team in which diverse professional expertise and observations are employed, in an inter-disciplinary process, to evaluate Patients and develop treatment plans.

3. Medication Management and Monitoring

KCHC shall provide adequate psychiatric supports and services for the treatment of its Patients, including medication management and monitoring of medication side effects in accordance with generally accepted professional standards. More particularly, KCHC shall:

a. Ensure that Patients’ treatment plans at KCHC include a psychopharmacological plan of care that includes information on the purpose of treatment, type of medication, rationale for its use, target behaviors, and possible side effects. The plan of care shall also include the time within which the medication should be reconsidered if the intended benefits have not been observed. KCHC should also reassess the diagnoses in those cases that fail to respond to repeat drug trials.

b. Develop and implement policies and procedures requiring clinicians to document their analyses of the benefits and risks of subsequent chosen treatment interventions in the Patient’s chart.

c. Ensure that all psychotropic medications are, in accordance with generally accepted professional standards:

(i)

Prescribed in therapeutic amounts and that prescriptions are

clinically justified;

(ii)

Tailored to each Patient’s individual symptoms;

(iii)

Monitored for efficacy against clearly-identified symptoms, goals,

and time frames;

(iv)

Modified based on clinical rationales; and

12


(v)

Properly documented including the informed consent of the Patient

when needed, or, for Patients under guardianship, the authorized

guardian.

d. Institute systematic monitoring mechanisms regarding medication use throughout the facility. In this regard, KCHC shall:

(i)

Develop, implement and maintain an updated and comprehensive set

of psychiatric practice guidelines, including but not limited to

administration of medications, in accordance with generally

accepted professional standards, that address the indications,

contraindications, screening and monitoring procedures, dose

requirements, and expected outcomes.

(ii)

Ensure that the pharmacological component of a treatment plan

reflects the exercise of professional judgment for medication

treatment including: diagnosis, target symptoms, risks and benefits

of particular medications, and consideration of alternate treatments.

(iii)

Ensure that the rationale for each Patient’s course of treatment is

documented by the physician;

(iv)

Ensure that psychotropic medications are used as an integral part of

a treatment program to manage specific behaviors in the least

restrictive manner, to eliminate targeted behaviors/symptoms, and to

treat specific psychiatric disorders;

(v)

Develop and implement policies and procedures governing the use

of pro re nata (“PRN” or “as needed”) and STAT (emergency)

medications, which, among other things, specifically address PRN

and STAT uses of psychotropic medications, that includes

requirements for specific identification of the behaviors that result in

PRN and STAT administration of medications, a time limit on PRN

uses, a documented rationale for the use of more than one

medication on a PRN and STAT basis, physician documentation to

ensure timely, critical review of the Patient’s response to PRN and

STAT medication administration and re-evaluation of regular

treatments as a result of PRN and STAT uses;

(vi)

Not administer medication on a PRN basis over the objection of the

Patient;

(vii)

Develop and implement policies and procedures, in accordance

with generally accepted professional standards, governing clinical

justification of polypharmacy, which should include attention to the

special risks associated with the use of benzodiazepines,

anticholinergic agents, and conventional and atypical antipsychotic

medications. For any use of psychiatric intraclass polypharmacy,

the prescribing physician shall provide explicit written treatment

rationale for the prescription. Such use of polypharmacy shall be

13


reviewed promptly by appropriate KCHC managing clinical personnel. Appropriate KCHC clinical personnel shall regularly review polypharmacy policies and procedures;

(viii)

Ensure that all medications, in accordance with generally accepted professional standards, are being prescribed for their specific purpose and not solely for their secondary, sedating effects;

(ix)

Adopt and incorporate the necessary protections and safeguards to

ensure that Patients are afforded safe and effective pharmacological

treatment. To this end, KCHC shall, at a minimum, establish

mechanisms to:

(A)

Monitor practitioners’ adherence to specific and current

guidelines in the use of each medication;

(B)

Promptly report and timely analyze individual adverse

drug reactions; and

(C)

Regularly review with appropriate KCHC clinical

personnel patterns of significant adverse drug reactions

which cause significant harm, i.e., drug reactions that

result in unintended, undesirable, unexpected or

excessive responses to medication given at normal

doses; and

(D)

Report, analyze, and document actual and potential

variations in the prescription, transcription,

procurement/storage, dispensing and administration of

medications.

C. Behavioral Management

KCHC shall ensure the use of systematic behavior (social learning) strategies. To this end, KCHC shall:

1. Ensure that behavioral plans, in accordance with generally accepted professional standards, contain certain basic elements, including:

a. an analysis of the reasons for the behavior and its frequency and causes;

b. identification of specific interventions developed and implemented by trained staff in order to address and modify the behavior; and

c. full integration of the behavioral plan into the Patient’s overall plan of care, including the treatment plan.

2. During the term of this Agreement or any extension of this Agreement, when mechanical restraints are required and medically approved, employ no other restraints than four-point restraints.

14


3. Not employ chemical restraints at any time.
4. Not employ seclusion at any time. Seclusion means the involuntary confinement of a Patient alone in a room or area from which the Patient is prevented from leaving.
5. Develop and implement policies and procedures on the use of restraints that are consistent with generally accepted professional standards. To this end, KCHC shall ensure that:
a. Restraints are used only when Patients pose an immediate threat to themselves or others and after a hierarchy of less restrictive measures has been exhausted, or after less restrictive interventions have been determined to be ineffective to protect the patient, a staff member, or others from harm. Where a determination is made that less restrictive interventions would be ineffective to protect individuals from harm, that determination and the justification therefor shall be documented.
b. Restraints are not used in the absence of, or as an alternative to, active treatment, as punishment, or for the convenience of staff;
c. Restraints are not used as part of a behavioral intervention or behavioral management technique;
d. Policies and procedures are established regarding limitations on the use of restraints on Patients at risk of harm from restraints, including but not limited to Patients who are obese, have serious respiratory or cardiac problems, have histories of sexual or physical abuse, have serious physical disabilities, or are intoxicated;
e. Restraints are terminated as soon as the Paatient is no longer an imminent danger to himself or others;
f. Restraints can be terminated by a nurse without the requirement of a doctor’s consent; and
g. The practices and procedures in subparagraphs (a) through (f) are reliably documented.
6. Ensure that close observation, time-outs, and other procedures that restrict, limit, or direct a Patient’s freedom of movement are not used in lieu of other appropriate behavioral management technique and are used in accordance with generally accepted professional standards. To this end, KCHC shall:
a. Develop clear definitions of “close observation” and the various levels of close observation which are utilized by KCHC and include these definitions in policies and procedures;
b. Develop and implement a comprehensive policy and procedure that would restrict the use of close observation to only those situations where it is necessary to protect a Patient from self-harm or harm to others;
15


c. Ensure that staff successfully complete competency-based training on the correct application of close observation;
d. Develop and implement a quality improvement mechanism to monitor the use of close observation;
7. Create or revise, as appropriate, and implement policies and procedures consistent with generally accepted professional standards that address the following areas:
a. The range of restrictive alternatives available to staff and a clear definition of each;
b. The training that all staff receive in the prevention and management of the patient crisis cycle (the emergence of disruptive or violent behavior, escalation of that behavior, and return of the Patient to pre-crisis status), of behaviors that result in crises or incidents, the use of restrictive measures, and the use of less-restrictive interventions; and
c. Limitations on the use of restraints and STAT medications to address Patient behaviors, consistent with federal and state law requirements.
8. Ensure that once the use of restraints is initiated, the Patient is assessed within one hour and an appropriately trained staff member makes a determination of the need for continued restraints.
9. Comply with 42 C.F.R. § 482.13(e) (regarding standards for restraints) and 42 C.F.R. § 482.13(f) (regarding staff training requirements for restraints) as to assessments by a physician or licensed medical professional of any Patient placed in restraints.
10. Ensure that a psychiatrist’s order for restraints 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.
11. Ensure that the Patient’s attending psychiatrist is promptly consulted regarding the restrictive intervention.
12. Ensure that at least every thirty minutes, a Patient in restraints is re-informed of the behavioral criteria for his/her release from the restrictive intervention.
13. Ensure that when a Patient is placed in restraints, a treatment team promptly reviews the incident, and the attending psychiatrist documents the review and the reasons for or against change in the Patient’s current pharmacological, behavioral, or psychosocial treatment. If the team reviewing the restraints is not the Patient’s primary treatment team, the Patient’s primary treatment team shall promptly conduct such a review. 16

14. Ensure that staff successfully complete competency-based training regarding implementation of restraints policy and the use of less-restrictive interventions.
15. Ensure that KCHC will not transfer Patients between psychiatric units in lieu of proper treatment. To this end, KCHC shall:
a. Develop and implement a comprehensive policy and procedure so that the transfer of Patients from one unit to another is not performed in lieu of proper treatment and require that all such transfers be approved by the Deputy Executive Director for Behavioral Health Services or his/her designee;
b. Review and assess the necessity of all transfers by members of the treatment teams and the Patient. In this review, the problem behaviors and effective and ineffective intervention strategies should be discussed and the efficacy of transfer be evaluated.
c. Establish policies and procedures to ensure effective communication of critical clinical information before a transfer is made.
D. Medical and Nursing Care
KCHC shall provide medical and nursing services to its Patients consistent with generally accepted professional standards. More particularly, KCHC shall:
1. Ensure that prior to admission or within 24 hours of an individual’s admission to the inpatient service, the individual receives an admission medical assessment that includes:
a. A review of systems;
b. Medical history;
c. Physical examination;
d. Diagnostic formulation;
e. Management of acute medical conditions; and
f. Initial treatment plan.
2. Ensure adequate clinical leadership to ensure that professional standards of practice are maintained.
3. Ensure that Patients are provided adequate medical care in accordance with generally accepted professional standards.
4. Develop and implement appropriate policies and procedures, in accordance with generally accepted professional standards, to ensure adequate medical and nursing assessments and monitoring. 17

5. Ensure that, before they work directly with Patients, all nursing staff have successfully completed competency-based training regarding mental health diagnoses, related symptoms, psychotropic medications, identification of side effects of psychotropic medications, monitoring of symptoms and achievement of targets of treatment, and documenting and reporting of the Patient’s status.
6. Ensure that nursing staff monitor, document, and report accurately and routinely Patients’ symptoms and the achievement of targets of treatment in a manner that enables treatment teams to assess the Patient’s status and to modify, as appropriate, the treatment plan.
7. Ensure that nursing staff actively and effectively participate in the treatment team process and provide feedback on Patients’ responses, or lack thereof, to medication and behavioral interventions.
8. 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 goals to be monitored by nursing and other unit staff; and
c. The frequency by which staff need to monitor such symptoms.
9. Establish an effective infection control program to prevent the spread of infections or communicable diseases.
10. Establish an effective program for responding to medical emergencies including appropriate staff training; staff awareness of emergency materials and their location; and conducting sufficient practice code drills to be able to perform in a competent fashion when confronted with an actual emergency.
11. Provide and maintain adequate medical documentation in accordance with generally accepted professional standards. Ensure that all clinical records created on or after the Effective Date and those prepared in the future are complete, accurately documented, readily accessible, and systematically organized; ensure that all clinical records prepared before the Effective Date are complete, accurately documented, readily accessible and systematically organized, to the extent reasonably feasible.
12. Provide 24 hour medical coverage in the CPEP by a physician who is physically present. The physician will also be available for consultation on the inpatient psychiatric unit.
18


E. Quality Assurance/Performance Improvement
Develop, implement and maintain an integrated system to monitor and ensure quality of care across all aspects of care and treatment, including adequate systems for data capture, retrieval, and statistical analysis to identify and track trends. The program also should include a process for developing a corrective action plan and a process for monitoring the effectiveness of corrective measures that are taken.
F. Fire and Life Safety
In order to provide Patients with the environmental safety and security that generally accepted professional standards require, KCHC shall, at a minimum:
1. Develop and implement adequate policies and procedures regarding fire prevention, including emergency planning and drills.
2. Ensure that emergency drills are conducted on a regular basis and are performed consistent with generally accepted professional standards.
3. Implement competency based testing for staff regarding fire/emergency procedures.
4. Develop and implement appropriate documentation and evaluation tools to enable management and staff to document and identify strengths and weaknesses in the fire prevention and life safety programs;
5. Ensure that emergency keys are appropriately marked, available, and consistently stored in a quickly accessible location.
6. Develop and implement policies and procedures for cleaning, handling, storing, and disposing of biohazardous materials.
7. Develop and implement policies and procedures for disposal of any linens that cannot be sanitized sufficiently to kill any possible bacteria. Inspect and replace all worn linens as often as necessary.
8. Develop and implement policies and procedures for laundering, disinfecting, and appropriately storing Patients’ extra personal clothing until the Patients’ discharge.
9. Ensure that laundry is washed and dried at the proper temperatures and the laundry handling procedures protect Patients from exposure to contagious disease, bodily fluids, and pathogens by preventing clean laundry from coming into contact with dirty laundry or contaminated surfaces.
10. Develop and implement policies and procedures to ensure adequate cleaning of the facilities with meaningful inspection processes and documentation. Such policies should include oversight and supervision, as well as establish daily cleaning requirements for toilets, showers, housing areas, and other areas accessible to Patients.
11. Provide training for food service workers in the areas of food safety and food handling to reduce the risk of food contamination and food-borne illnesses.
19


12. Ensure that foods are served and maintained at proper temperatures.
G. Discharge And Aftercare Planning
KCHC shall actively pursue the appropriate discharge of Patients and create discharge and aftercare plans designed to satisfy the requirement that Patients receive services in the most integrated, appropriate setting in which Patients reasonably can be accommodated, as clinically appropriate, that is consistent with their needs. KCHC shall ensure that the discharge and aftercare plan developed for Patients is Patient-driven, recovery-oriented, and is created with the participation of and input from the Patient, (unless the Patient refuses to participate) and, as feasible, any representatives of the Patient’s choice. Discharge and aftercare planning shall be provided consistent with federal law, and to the extent that it has the ability to, KCHC will take appropriate steps, as set forth in paragraph 7 below, so that community placement services are provided consistent with federal law. Discharge planning shall begin at admission and continue throughout the course of the Patient’s hospitalization until the Patient is discharged. More particularly, KCHC will:
1. Utilize appropriate interdisciplinary discharge planning forms and aftercare instructions, which shall be clearly and precisely explained to the Patient in the person’s language of preference, or using appropriate interpretation and translation services.
2. At admission or as soon as reasonably possible thereafter, identify and address in treatment planning the criteria that likely will foster appropriate discharge for a particular Patient, including but not limited to:
a. The individual Patient’s symptoms of mental illness or psychiatric distress;
b. Any other barriers preventing the individual Patient from transitioning to a more integrated environment, especially difficulties raised in previously unsuccessful placements; and
c. Those factors which would likely foster successful discharge, including the Patient’s strengths, preferences personal life goals, and support network.
3. Ensure that, consistent with generally accepted professional standards, each Patient has a professionally developed discharge and aftercare plan that is integrated within the Patient’s plan of care, including the treatment plan, that addresses his or her particular discharge considerations, and that includes:
a. Measurable interventions regarding these discharge considerations;
b. The staff responsible for implementing the interventions;
c. The time frames for completion of the interventions;
d. A statement of the Patient’s need, if any, for supervision, medication, aftercare services, and assistance in finding employment;
20


e. A specific recommendation of the type of residence in which the Patient is to live and a listing of services and supports available to the Patient in such residence;
f. A listing of organizations, facilities, and individuals who are available to provide services and supports in accordance with the identified needs of the Patient;
g. The notification of the appropriate school district and the committee on special education regarding the proposed discharge or release of a Patient under 21 years of age, consistent with applicable federal and state laws relating to confidentiality of such information; and
h. An evaluation of the Patient’s need and potential eligibility for public benefits following discharge, including public assistance, Medicaid, Medicare and Supplemental Security Income, in cooperation with local social service districts.
4. 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.
5. Ensure that, beginning at the time of admission and throughout the individual’s stay at KCHC, the Patient is an active participant in the discharge and aftercare planning process, to the fullest extent possible, given the individual’s level of functioning.
6. To the extent that it is able, consistent with paragraph 7 below, 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.
7. Provide transition supports and services consistent with generally accepted professional standards. In particular, KCHC shall
a. Ensure that Patients who have met discharge criteria are discharged expeditiously, subject to the availability of suitable placements;
b. Provide adequate assistance to individual Patients in transitioning to the new setting;
c. Take appropriate steps so that there is continuity of care with appropriate community providers in order to minimize the risk of decompensation and reinstitutionalization;
d. Develop policies and procedures and prepare and cause to be implemented, post-discharge follow-up procedures, including but not limited to case management, designed to:
21

(i) Determine whether the residence in which the former Patient is living is adequate and appropriate for the needs of such individual;
(ii) Coordinate with agencies and providers to assure that the services specified in the discharge plan are being implemented, or that alternative clinically appropriate and indicated services are being provided; and
(iii) Recommend, and, where indicated, take reasonable steps to assure, provision of, alternative services.
Nothing in this section shall be construed to require KCHC to provide such services if the Patient, so long as he or she is competent, chooses not to accept them.
8. Create or revise, as appropriate, and implement a quality assurance or utilization review process to evaluate the discharge and post-discharge follow-up process.
9. Develop and implement policies and procedures to address Patients who return to KCHC, either to the CPEP or to an inpatient unit in less than 90 days and/or who have more than three (3) admissions within a calendar year. Such processes shall include the identification of specific factors relating to each Patient’s repeated admissions as well as a plan for attempting to address such factors so as to reduce the likelihood of future admissions.
10. Maintain and analyze data on Patients who return to KCHC, either to the CPEP or to an inpatient unit, in less than 90 days and/or who have more than three (3) admissions within a calendar year. For such patients, KCHC shall develop a plan to address identified factors for each Patient. The plan shall be placed prominently in the patients’ chart and shall document the identified factors.
11. The Defendants shall designate an independent clinical staff member or members to serve as a repeat admissions review coordinator or a committee (the “RARC”).
a. Every Patient admitted with three (3) or more admissions in a twelve month period or more than five (5) total admissions to KCHC shall have a “repeat admissions review” conducted by the RARC or the RARC’s staff (if the RARC is an individual) or a designated member of the RARC (if the RARC is a committee), that is consistent with generally accepted professional standards. The review shall, at a minimum, identify barriers to successful discharge, reasons for repeat admissions, and recommended strategies to promote successful discharge;
b. The findings of the repeat admissions review shall be supplied to the treatment team promptly but no more than seven days after the patient’s admission to the inpatient unit;
c. The treatment team shall consider the findings of the RARC and shall address the findings of the repeat admissions review in writing in the treatment plan, including specific reasons for adopting or rejecting the recommendation made
22

in the repeat admissions review;
d. Upon request by any treatment team, the RARC will attend the treatment planning meeting to assist with discharge and aftercare planning; and
e. The RARC shall participate in the quality assurance or utilization review of KCHC’s discharge and aftercare process.
H. KCHC Hospital Police Policies, Procedures and Practices
KCHC shall provide policing services with respect to Patients that comport with the requirements of the United States Constitution and laws, as well as with generally accepted professional standards for peace officers providing hospital security services. To that end, KCHC shall:
1. Develop and implement a coherent, comprehensive, integrated set of Hospital Police policies and procedures that provides clear guidance for officer conduct, including but not limited to policies to guide Hospital Police officers’ interactions with Patients and Hospital Police officers’ use of force;
2. Develop and implement a comprehensive training program, including adequate field training for new officers and adequate in-service training for all officers, that is appropriately documented and reviewed by supervisory and command personnel;
3. Develop and implement comprehensive policies and procedures and training on supervisory oversight of line officers, including supervisory and command review of use of force and other incidents that involve hospital police intervention or enforcement actions;
4. Establish an adequate record management system whereby all incidents involving the Hospital Police, including but not limited to uses of force, as well as all other types of interactions with Patients, are documented, recorded, and assigned discrete control numbers;
5. Develop and implement a coherent and comprehensive set of policies and procedures regarding the duties of Behavioral Health Associates (“BHAs”), including but not limited to policies to guide BHAs’ interactions with Patients and to deploy BHAs to interact with Patients. BHAs shall perform, as part of the clinical team and in addition to their clinical functions, safety and security duties in all psychiatric units, including the CPEP. BHAs shall, among other things, be trained to perform CPR and shall be supervised in performing this function by the Department of Nursing. The BHAs will not wear police uniforms, and will not be armed with any weapon or tool regularly employed for law enforcement purposes by individuals having peace officer or police officer status, including but not limited to batons of any nature;
6. Develop and implement policies defining those events which require a formal investigation. Establish: time requirements for conducting such investigations; protocols for supervisory and command review; and procedures for appropriate recording and documentation of interviews of police personnel, clinical or other staff, and other parties whose statements might be relevant to said investigation; and
23

7. Ensure that Hospital Police perform only law enforcement duties; Hospital Police shall not participate in physical or chemical restraints of Patients in clinical situations and, in particular, shall not restrain Patients in order for the Patients to be medicated. Nothing in this paragraph shall be construed to restrict the Hospital Police’s legitimate law enforcement responsibilities.
I. Training and Policy Manuals and Accountability
The Defendants shall require all staff to successfully complete competency-based training necessary to implement the terms of this Agreement. Such training shall, where appropriate, be ongoing and/or include regular in-service refresher training to ensure continued competency. KCHC also shall develop, maintain and regularly update comprehensive policies and practice manuals in accordance with generally accepted professional standards for all clinical staff. In addition, KCHC shall develop and implement policies and procedures to ensure staff accountability.
IV. IMPLEMENTATION OF AND COMPLIANCE WITH THIS AGREEMENT
The Defendants shall implement all reforms necessary to effectuate this Agreement. The implementation of this Agreement shall begin immediately upon the Effective Date.
A. Within two weeks of the Effective Date, the Defendants shall communicate the provisions set forth in this Agreement to KCHC officials, employees, agents, and independent contractors involved in providing care to the Patients at KCHC.
B. The Defendants shall comply with all federal and State licensing requirements applicable to the KCHC.
C. The Defendants shall ensure that Patients admitted prior to the Effective Date of this Agreement and still hospitalized at KCHC are afforded all of the requirements provided by this Agreement.
D. The Defendants shall appoint a Settlement Agreement Coordinator at KCHC to oversee compliance with this Agreement and to serve as a point of contact for the United States during review of compliance with this Agreement. The Settlement Agreement Coordinator shall provide DOJ with reports regarding compliance with this Agreement. With the reports, the Settlement Agreement Coordinator will provide the raw data upon which the compliance reports are based, along with any reports prepared by the Defendants’ technical consultants regarding compliance with this Agreement and any other reports routinely submitted to the point of contact regarding compliance with this Agreement. KCHC shall provide such reports and data to DOJ and the subject matter experts (described in section G. below) 45 days before each DOJ site visit to KCHC. If DOJ provides KCHC less than 45 days’ notice of a site visit, the Settlement Agreement Coordinator shall provide reports regarding compliance no less than 14 days before the site visit. If less than 45 days’ notice is provided, the parties will work out a reasonable schedule for the production of documents.
E. Within 45 days of the Effective Date of this Consent Judgment, the Defendants shall provide the United States with a plan of correction agreement (“POCA”) to implement the provisions of the Consent Judgment. The POCA shall set forth specific goals, objectives, and tasks to be completed to implement the provisions of the Judgment; target and deadline dates for 24

implementation of goals, objectives, and tasks; and compliance assessment methods and requirements to ensure compliance with the POCA and the Judgment in a timely and effective manner.
1. The POCA shall also designate persons responsible for oversight and implementation of tasks outlined in the POCA.
2. The POCA shall set forth specific data to be collected and maintained and identify reports from such data to be provided to the United States and the subject matter experts.
3. The POCA shall set forth any additional reports regarding Defendants’ compliance with this agreement that will be provided to the United States and the subject matter experts.
4. If the United States has any objection to the POCA, it will provide its objections and recommended modifications to the POCA within two weeks of receipt of the POCA from the Defendants. If the POCA states with respect to any area that KCHC will develop a policy or procedure with respect to a particular area covered by the POCA, the United States will have two weeks from the date of establishment of the specific policy or practice to object or comment. The parties shall have two weeks to resolve any disagreements regarding the POCA after the United States provides its objections and recommended modifications. If they are unable to reach agreement, the Court will resolve the dispute. The parties agree that minor or de minimis differences in the terms of the POCA will not be brought before the Court. However, regardless of the terms of the POCA, Defendants shall nonetheless be responsible for substantially complying with the terms of this Agreement, as provided herein.
5. All policies and procedures developed in accordance with this Agreement shall be considered part of the POCA. The POCA, once finalized, shall be considered part of this Consent Judgment.
G. Compliance with this Agreement shall be assessed by a team of subject matter experts selected by the United States (the “compliance review team”). Defendants and MHLS shall have input on the composition of the compliance review team. Defendants shall bear all reasonable fees and costs of the subject matter experts on the compliance review team. The parties recognize the importance of ensuring that the fees and costs borne by the City are reasonable, and accordingly, fees and costs will be one factor considered in selecting the expert consultants. In the event that any dispute arises regarding the payment of the experts’ fees and costs, the parties will attempt to resolve such dispute cooperatively. If they are unable to reach agreement, the Court will resolve the dispute.
H. The parties acknowledge that conditions at KCHC are the subject of a lawsuit filed by Mental Hygiene Legal Service of New York State, Hirschfeld o/b/o L.D. et al. v. New York City Health and Hospitals Corp., et al., Civil Action No. CV-07-1819 (KAM) (E.D.N.Y.). This lawsuit challenges conditions of confinement at KCHC similar to many of the conditions found to exist in the United States’ investigation, and that this Agreement is designed to remedy. Accordingly, the Parties shall raise no objection if MHLS elects to use the same subject matter experts to assess compliance with its own agreement with the City, at its own expense. To the extent that any agreement between MHLS and the City calls for review of 25

matters other than those identified in this Agreement, the experts shall prepare separate reports regarding those matters.
I. In the event that MHLS elects to employ the same subject matter experts on its compliance review team that compose the compliance review team for this Agreement, the United States will coordinate efforts with MHLS to ensure, to the extent practicable, that the experts’ reports are consolidated.
J. In order to assess the Defendants’ implementation of each substantive provision of this Agreement, the compliance review team will conduct regular compliance reviews to ensure that Defendants have implemented and continue to implement all measures required by this Agreement. The first compliance review will be conducted approximately three months from the Effective Date. Thereafter, compliance reviews will be conducted approximately every six months, unless the United States determines that a different schedule is appropriate, until this Agreement is terminated. The compliance review team will prepare a report to the United States and a consolidated report which will be provided to the Defendants.
K. For the purpose of ascertaining compliance with this Agreement, the compliance review team, the United States and its attorneys, subject matter experts and agents shall have reasonable access to: all of the relevant KCHC buildings and facilities; relevant KCHC documents and records; relevant KCHC officials, employees, agents, and independent contractors; and KCHC Patients, including the right to meet with Patients privately. Such access shall continue until this Agreement is terminated in accordance with the termination provisions herein. Within 30 days of receipt of written questions from the United States concerning the Defendants’ compliance with the requirements of this Agreement, the Defendants shall provide the United States with written responses and any requested documents. The Defendants shall provide copies of all documents reasonably requested by the United States without charge.
L. The United States and the compliance review team shall provide the Defendants with technical assistance designed to help the Defendants achieve substantial compliance with the Agreement.
M. The Defendants shall notify the United States immediately of serious incidents as defined in III.A.6. The Defendants shall forward to the United States copies of all incident reports and final reports of investigations related to such incidents, as well as any autopsies, mortality reviews, and death summaries.
N. The Parties and all of their agents shall, to the fullest extent allowed by law, maintain the confidentiality of Patients’ medical and personal information. All non-public information obtained by the United States shall be maintained in a confidential manner.
The provision of any confidential and/or privileged materials to the United States pursuant to this Agreement shall not constitute or be construed as a waiver of confidentiality or a waiver of any privilege by HHC, the City of New York or any City agency, including their officials, employees, representatives and agents, or the successors or assigns of any of the foregoing.
O. To evaluate compliance with § III.G. above, the United States might visit community placements to which Patients of KCHC have been or may be discharged. The Defendants shall assist in facilitating the visits to such community placements. 26

P. In addition to the involvement of MHLS in the selection of the compliance review team in this case as set forth in Section G. above, throughout the term of this Agreement, the Parties shall consult with MHLS regarding the status of the Defendants’ compliance with this Agreement. Specifically, the parties agree that:
1. The Defendants shall provide MHLS with access to all documents and materials provided to the United States or to the compliance review team in connection with the assessment of compliance with this Agreement;
2. MHLS will be given an opportunity to comment and provide input into the assessments made by the United States and/or the compliance review team towards the determination of substantial compliance with this Agreement.
Q. MHLS shall be entitled to provide information to the United States that it believes in good faith is relevant to the instant action or the City’s compliance with this action.
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 all other Parties to this Agreement, in writing, of the proposed modification and the reasons therefor. If the Parties reach agreement on the requested modification, it shall be reduced to writing, signed, and filed with the Court for approval.
B. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of Patients, during the term of this Agreement, if the United States believes that the Defendants have 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 Defendants setting forth the basis for its conclusion, including specific findings in the subject matter experts’ compliance assessment reports, if any, and any data, documents or reports supporting the determination such a belief is based upon.
1. With the exception of an immediate or serious threat to life, health, or safety of Patients served by the facilities, the Defendants shall have 30 days from the date of such notice to cure the failure and provide the United States with sufficient proof of its cure or a plan to cure the failure and proof of implementation of that plan. If the Parties agree that modification of this Agreement is required to cure the failure, the modification shall be reduced to writing, signed, and filed with the Court for approval. The Parties shall attempt to resolve any differences regarding the identified non­ compliance during this period.
2. If the parties cannot resolve any such differences within the thirty-day cure period, the United States may move this Court for an order enforcing the provisions of this Agreement. The United States shall bear the burden of proving that the alleged non­ compliance is systemic.
3. If the parties agree to a plan to cure an alleged violation and the United States believes that the violation has still not been cured, the United States must provide at least thirty (30) days notice before any motion is made for enforcement of this Agreement.
27


C. In the event that conditions or practices at KCHC appear to pose an immediate and serious threat to the life, health, or safety of Patients confined to those facilities, and, as a result, the United States believes that the Defendants have failed to fulfill any obligation under this Agreement that could mitigate such threat, the notice and cure provisions outlined in the preceding paragraph shall not apply to any court action initiated by the United States.
D. This Agreement shall terminate five years after the Effective Date of this Agreement, if the United States certifies at that time that the Defendants have maintained Substantial Compliance with all provisions of this Agreement for the previous twelve months. “Substantial Compliance” indicates that the Defendants have achieved compliance with most or all requirements of the relevant provisions of the Agreement. Any alleged noncompliance must be systemic. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, shall not constitute failure to maintain substantial compliance. At the same time, intermittent compliance during a period of sustained noncompliance shall not constitute substantial compliance.
E. This Agreement may terminate prior to the five year date if the United States certifies that the Defendants have substantially complied with each of the provisions of the Agreement and have maintained Substantial Compliance for at least two years. The burden shall be on Defendants to demonstrate this level of compliance.
F. If, after the end of the five year period described in Section D. above, the United States determines that Defendants are not in Substantial Compliance, and Defendants dispute that determination, Defendants may move for relief from this Court. Defendants may also move for termination if the United States takes no action at the end of the five year period. In any such motion, Defendants shall bear the burden of demonstrating that they are in Substantial Compliance as set forth in section D above.
G. Notwithstanding the provisions of paragraphs D through F above, that portion of this Agreement regarding the KCHC Hospital Police, set forth above at Section III.H., may terminate if the United States certifies that the Defendants have maintained Substantial Compliance with the requirements of that section for two years, regardless of whether the United States has certified that KCHC has maintained Substantial Compliance with respect to the other provisions of this Agreement.
H. In the event that Defendants believe that they have maintained Substantial Compliance with some of the requirements of this Agreement, the parties agree to discuss the possibility of requesting that the Court release defendants from the requirements of those portions with which Defendants have maintained Substantial Compliance. Defendants recognize that the United States is not required to agree to such a release and that one basis for not agreeing to such a release may be that the various portions of this Agreement are inextricably intertwined.
I. Forty-five months after the Effective Date of this Agreement, the Court will conduct a status conference regarding the Defendants’ compliance with this Agreement. At this status conference, the Court will entertain requests for supplemental relief with respect to any area where it appears to the United States that the Defendants may not attain substantial compliance with the Agreement within five years of the Effective Date. If the United States believes that the Defendants have failed to fulfill any obligation under this Agreement, the
28


United States shall, no less than 30 days before the status conference, give written notice of the failure to the Defendants setting forth the basis for its conclusion, including specific findings in the subject matter experts’ compliance assessment reports, if any, and any data supporting the determination.
VI. GENERAL PROVISIONS
A. This Agreement is enforceable only by the Court and the Parties and is binding upon the Parties, by and through their officials, agents, employees, assigns, and successors.
B. The Defendants agree that they 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 KCHC or in proceedings related to this Agreement. The Defendants agree that they shall timely and thoroughly investigate any allegations of retaliation in violation of this Agreement and the non-retaliation provision of CRIPA, and take any necessary corrective actions identified through such investigations.
C. “Notice” under this Agreement shall be provided by electronic mail and overnight delivery and shall be provided as follows to: Martha Calhoun, Esq. and Emily Sweet, Esq., New York City Law Department, 100 Church Street, New York, New York 10007.
D. If an unforeseen circumstance occurs that causes a failure to timely fulfill any requirement of this Agreement, the Defendants shall notify the United States in writing within 20 calendar days after the Defendants become aware of the unforeseen circumstance and its impact on the Defendants’ ability to perform under the Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The Defendants shall take all reasonable measures to avoid or minimize any such failure.
E. 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.
F. The Parties agree to defend the provisions of this Agreement. The Parties shall notify each other of any court or administrative challenge to this Agreement within a time period sufficient for the other party to act in response to that challenge. In the event any provision of the Agreement is challenged in any city or state court, the Parties agree to seek removal to federal court. 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.
G. Notwithstanding the requirement that no modification to this Agreement will occur unless there is written Agreement by all Parties, to the extent any other federal authority, statute, or regulation amends, supercedes, or modifies this Agreement, this Agreement shall be amended, superceded, or modified accordingly.
H. This Agreement shall constitute the entire integrated agreement of the Parties. With the exception of the United States’ findings letter referenced in paragraph I.B., no prior drafts or prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions in this Agreement.
29


I. Each party shall bear the cost of their fees and expenses incurred in connection with this case, except as provided in paragraph IV.G.

FOR THE UNITED STATES:
/s Benton J. Campbell _________________________ BENTON J. CAMPBELL United States Attorney Eastern District of New York
/s Michael J. Goldberger ________________________ MICHAEL J. GOLDBERGER Chief of Civil Rights Civil Division United States Attorney’s Office Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 (718) 254-6052

/s Thomas E. Perez ______________________ THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
/s Samuel Bagenstos ______________________ SAMUEL BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
/s Tammie M. Gregg _______________________ TAMMIE M. GREGG Principal Deputy Chief Special Litigation Section
/s David Deutsch ___________________________ DAVID DEUTSCH CATHLEEN TRAINOR LAURA M. WELP Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 514-6270

30


FOR DEFENDANTS:

MICHAEL A. CARDOZO Corporation Counsel of the City of New York 100 Church Street, Room 2-110 New York, New York 10007
/s Martha A. Calhoun By: __________________________
MARTHA A. CALHOUN EMILY SWEET (212) 788-0923

SO ORDERED THIS

DAY OF

, 2010

_____________________________ HON. KIYO A. MATSUMOTO UNITED STATES DISTRICT JUDGE

31


TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................... 1
 II. DEFINITIONS. ....................................................................................................................... 2
 III. SUBSTANTIVE PROVISIONS............................................................................................. 3

A. Protection From Harm. ............................................................................................... 3
 B. Mental Health Care. .................................................................................................... 6

1. Assessments and Diagnoses ................................................................................. 6
 2. Treatment Planning............................................................................................... 8
 3. Medication Management and Monitoring............................................................ 12
 C. Behavioral Management. .......................................................................................... 14
 D. Medical and Nursing Care. ....................................................................................... 17
 E. Quality Assurance/Performance Improvement. ........................................................ 19
 F. Fire and Life Safety................................................................................................... 19
 G. Discharge And Aftercare Planning. .......................................................................... 20
 H. KCHC Hospital Police Policies, Procedures and Practices. ..................................... 23
 I. Training and Policy Manuals and Accountability..................................................... 24
 IV. IMPLEMENTATION OF AND 
 COMPLIANCE WITH THIS AGREEMENT...................................................................... 24
 V. MODIFICATION AND TERMINATION. .......................................................................... 27
 VI. GENERAL PROVISIONS.................................................................................................... 29


 
 Case: 1:10-cv-60 As of: 04/13/2017 12:12 PM EDT 1 of 4
CLOSED,CONSOLIDATED
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:10−cv−00060−KAM−RML

United States of America v. The City of New York et al Assigned to: Judge Kiyo A. Matsumoto Referred to: Magistrate Judge Robert M. Levy Cause: 28:1345 USA Plaintiff
Plaintiff

Date Filed: 01/07/2010 Date Terminated: 01/08/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Michael J. Goldberger United States Attorneys Office Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201−1820 (718)254−6052 Fax: (718)254−6083 Email: Michael.Goldberger@usdoj.gov ATTORNEY TO BE NOTICED

V. Relator Sidney Hirschfeld

represented by Beth Haroules New York Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 212−344−3005 Fax: (212) 344−3005 Email: bharoules@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant The City of New York
Defendant The New York City Health and Hospitals Corporation Defendant The Kings County Hospital Center
Defendant

represented by Mark Galen Toews New York City Law Department 100 Church Street New York, NY 10007 212−788−1281 Fax: 212−788−0877 Email: mtoews@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Mark Galen Toews (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Galen Toews (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-60 As of: 04/13/2017 12:12 PM EDT 2 of 4

Alan D. Aviles President, New York City Health and Hospitals Corporation, in his official capacity only

represented by Mark Galen Toews (See above for address) ATTORNEY TO BE NOTICED

Defendant
Antonio Martin Executive Director, Kings County Hospital Center, in his official capacity only

represented by Mark Galen Toews (See above for address) ATTORNEY TO BE NOTICED

Defendant
M.D. Joseph P. Merlino Deputy Executive Director for Behavioral Health Services, Kings County Hospital Center, in his official capacity only

represented by Mark Galen Toews (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/07/2010 01/07/2010 01/07/2010 01/08/2010 02/23/2010 02/24/2010
03/03/2010
07/08/2010

# Docket Text
1 COMPLAINT against Alan D. Aviles, Antonio Martin, Joseph P. Merlino, The City of New York, The Kings County Hospital Center, The New York City Health and Hospitals Corporation, filed by United States of America. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet) (Davis, Kimberly) (Entered: 01/08/2010)
Summons Issued as to Alan D. Aviles, Antonio Martin, Joseph P. Merlino, The City of New York, The Kings County Hospital Center, The New York City Health and Hospitals Corporation. (Davis, Kimberly) (Entered: 01/08/2010)
2 Notice of Related Case (Davis, Kimberly) (Entered: 01/08/2010)
3 CONSENT JUDGMENT. Ordered by Judge Kiyo A. Matsumoto on 1/7/2010. (Brucella, Michelle) (Entered: 01/08/2010)
4 Letter advising the Court that the POCA has been tendered by Alan D. Aviles, Antonio Martin, Joseph P. Merlino, The City of New York, The Kings County Hospital Center, The New York City Health and Hospitals Corporation (Calhoun, Martha) (Entered: 02/23/2010)
Minute Entry for proceedings held before Judge Kiyo A. Matsumoto: Telephonic Status Conference held on 2/24/2010. Plaintiff appeared by Beth Haroules, Esq., Dennis Feld, Esq., and David Flugman, Esq. Defendants appeared by Martha Calhoun, Esq., Emily Sweet, Esq., and Deirdre Newton, Esq. The United States appeared by Michael Goldberger, Esq., David Deutsch, Esq., and Cathleen Trainor, Esq. The parties reported on a recent alleged serious incident at the Kings County Hospital Center's psychiatric facility. The court ordered as follows: (i) By 2/26/10, defendants shall notify the court via ECF as to what, if any, provisions are currently in place with respect to screening employees who are hired to work in the KCHC psychiatric facility. (ii) If no provisions are currently in place or the current provisions are deemed inadequate by the parties, the parties shall file a report via ECF by 3/26/10 notifying the court as to what protocols and procedures the parties have agreed to implement in this regard and how they intend to monitor that implementation. (Tape #4:07 − 4:19.)(Ginns, Laura) (Entered: 02/24/2010) (Entered: 02/24/2010)
ORDER: Defendants are ordered to comply with the court's minute entry dated 2/24/10 which directed defendants to notify the court by 2/26/10 as to what, if any, provisions are currently in place with respect to screening employees who are hired to work in the KCHC psychiatric facility. Defendants shall file such report as soon as possible and by no later than 3/4/10. Ordered by Judge Kiyo A. Matsumoto on 3/3/2010. (Ginns, Laura) (Entered: 03/03/2010)
ORDER: In accordance with the court's 1/7/10 minute entry, the parties shall provide a status report updating the court regarding the completion of the review and comment period with respect to the POCA by 7/16/10. Ordered by Judge Kiyo A. Matsumoto on 7/8/2010. (Williams−Jackson, Sandra) (Entered: 07/08/2010)

Case: 1:10-cv-60 As of: 04/13/2017 12:12 PM EDT 3 of 4

12/14/2010 12/16/2010
01/28/2011 01/31/2011
08/19/2011 04/27/2012 06/14/2012 11/27/2012 06/03/2013 06/20/2013 12/23/2013 12/27/2013
01/10/2014
07/08/2014 07/28/2014
08/18/2014 09/24/2014

Case Consolidated., Cases associated: Create association to 1:07−cv−01819−KAM., per chambers approval on 12/14/2010 Associated Cases: 1:10−cv−00060−KAM −RML, 1:07−cv−01819−KAM (Brown, Marc) (Entered: 12/14/2010)
5 Letter enclosing corrected plan of corrective action by Alan D. Aviles, Antonio Martin, Joseph P. Merlino, The City of New York, The Kings County Hospital Center, The New York City Health and Hospitals Corporation (Sweet, Emily) (Entered: 12/16/2010)
6 Letter regarding the subject matter experts' report of compliance with Consent Judgment by United States of America Associated Cases: 1:10−cv−00060−KAM −RML, 1:07−cv−01819−KAM (Goldberger, Michael) (Entered: 01/28/2011)
7 Letter Submitting Revised Letter Summarizing Experts' Report re Compliance with Consent Judgment by United States of America (Attachments: # 1 Revised Letter Summarizing Experts' Reports re Compliance with Consent Judgment) Associated Cases: 1:10−cv−00060−KAM −RML, 1:07−cv−01819−KAM (Goldberger, Michael) (Entered: 01/31/2011)
8 Letter summarizing the report of the expert compliance assessment team for April and May 2011 by United States of America (Goldberger, Michael) (Entered: 08/19/2011)
9 Letter Summarizing the Report of Expert Compliance Assessment Team by United States of America (Florio, Kelly) (Entered: 04/27/2012)
10 NOTICE of Appearance by Mark Galen Toews on behalf of All Defendants (aty to be noticed) (Toews, Mark) (Entered: 06/14/2012)
11 Letter to the Court forwarding the experts' compliance report by United States of America (Goldberger, Michael) (Entered: 11/27/2012)
12 Letter to the Court summarizing the sixth report of the expert compliance assessment team by United States of America (Goldberger, Michael) (Entered: 06/03/2013)
13 NOTICE of Appearance by Beth Haroules on behalf of Sidney Hirschfeld (aty to be noticed) (Haroules, Beth) (Entered: 06/20/2013)
14 Letter summarizing seventh expert compliance tour by United States of America (Goldberger, Michael) (Entered: 12/23/2013)
ORDER: On or before January 10, 2014, the defendant is ordered to provide the court with dates by which it will address and remedy each of the findings set forth in the government's 12/23/13 letter, which notes deficiencies and areas of needed improvement. Ordered by Judge Kiyo A. Matsumoto on 12/27/2013. (Matsumoto, Kiyo) (Entered: 12/27/2013)
15 Letter responding to the Court's order requesting information regarding defendants compliance with consent judgment by Alan D. Aviles, Antonio Martin, Joseph P. Merlino, The City of New York, The Kings County Hospital Center, The New York City Health and Hospitals Corporation (Calhoun, Martha) (Entered: 01/10/2014)
16 Letter to the Court summarizing Tour 8 expert compliance tour by United States of America (Goldberger, Michael) (Entered: 07/08/2014)
ORDER: On or before August 18, 2014, defendants are ordered to provide the court with dates by which they will address and remedy each of the findings set forth in the government's 7/8/13 letter ( 16 ), which notes deficiencies and areas of needed improvement. Ordered by Judge Kiyo A. Matsumoto on 7/28/2014. (Alagesan, Deepa) (Entered: 07/28/2014)
17 Letter by Alan D. Aviles, Antonio Martin, Joseph P. Merlino, The City of New York, The Kings County Hospital Center, The New York City Health and Hospitals Corporation (Toews, Mark) (Entered: 08/18/2014)
18 Letter Summarizing the Compliance Review of the Hospital Police at KCHC by United States of America (Attachments: # 1 Compliance Report) (Goldberger, Michael) (Entered: 09/24/2014)

Case: 1:10-cv-60 As of: 04/13/2017 12:12 PM EDT 4 of 4

02/10/2015 12/07/2015 06/01/2016 01/10/2017
01/17/2017

19 STATUS REPORT − Expert Compliance Assessment by United States of America (Goldberger, Michael) (Entered: 02/10/2015)
20 Letter Summarizing the Report of the Expert Compliance Assessment Team− Tour Ten by United States of America (Goldberger, Michael) (Entered: 12/07/2015)
21 Letter summarizing the 11th report of the expert compliance assessment team by United States of America (Goldberger, Michael) (Entered: 06/01/2016)
22 Letter Summarizing the Report of the Subject Matter Experts and Informing the Court that Defendant has Maintained Substantial Compliance with the Requirements of the Consent Judgment for One Year and Requesting that this Case be Closed by United States of America (Goldberger, Michael) (Entered: 01/10/2017)
ORDER ORDER re 22 1/10/17 Letter, filed by United States of America summarizing the report of the expert compliance assessment team at Kings County Hospital Center's Behavioral Health Service and requesting that the case be closed based on improvements pursuant to the Consent Judgment of 1/7/10. The court appreciates the parties' status report and efforts to ameliorate the conditions at the above facility and orders that this case be closed. Ordered by Judge Kiyo A. Matsumoto on 1/17/2017. (Matsumoto, Kiyo) (Entered: 01/17/2017)

 
 Case 1:10-cv-00060-KAM-RML Document 14 Filed 12/23/13 Page 1 of 6 PageID #: 225 U.S. Department of Justice

United States Attorney's Office Eastern District of New York

By Hand and ECF

271 Cadman Plaza East Brooklyn, New York 11201
December 23, 2013

Honorable Kiyo A. Matsumoto United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201

Re: United States of America v. City of New York (Kings County Hospital Center) Civil Action No. CV-10-0060 (KAM)

Dear Judge Matsumoto:

The United States respectfully submits this letter, with the approval of all the parties in this action and the related Hirschfeld action, to summarize the report of the expert compliance assessment team from their most recent tour of Kings County Hospital Center’s Behavioral Health Service (“KCHC”). The compliance report details the level of KCHC’s compliance with the Consent Judgment entered in this action on January 7, 2010. A copy of the experts’ report is attached to this letter, which is being hand-delivered to the Court because of its size.

As reflected in the report, KCHC has made enormous progress in the last six months. In a nutshell, although KCHC still has work to do in some areas, it has become a good facility, and has the potential to become a model for other hospitals in New York City and the country. KCHC is now in at least partial compliance with all requirements of the Consent Judgment, and in many areas, in compliance. The following is a summary of the findings of the expert consultants’ tour:

A. Protection from Harm

Overall, KCHC has made significant progress in almost all areas related to Protection from Harm. It appropriately assesses patients to determine if they are at risk of harm or causing harm to others. Violence reduction protocols, including early intervention to avoid escalation, are in place, and are being effectively carried out. As a result, overall patient aggression is significantly lower than in the past, and KCHC is using data analysis to recognize and address aggression and reduce it further. KCHC does need to do more work to ensure that it properly integrates risk assessment into treatment planning. Additionally, some work needs to be done to improve the use of psychosocial interventions to address risks for aggression, sexual violence/victimization and suicide.

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Serious incident investigations continue to be strong, and documentation and review of patient injury events, including assaults, has improved. KCHC needs to improve coordination and monitoring of the investigatory process. KCHC has substantially improved its quality improvement (“QI”) and data collection processes. Data is now collected and analyzed regarding all aspects of care and treatment, and KCHC generates data reports which drive improvements in patient care and which address patient concerns and complaints.
B. Mental Health Care
1. Assessments and Diagnoses
KCHC is now in substantial compliance with several of the Consent Judgment’s requirements regarding initial assessment and diagnosis of patients, and is very close to substantial compliance with a number of other provisions. Upon admission, patients are timely assessed through a triage process that commences upon admission to the CPEP, and which is appropriately followed up and updated throughout individuals’ time at KCHC. The CPEP performs timely cognitive testing to identify individuals who may have developmental disabilities and ensure that they are treated appropriately. For the most part, the CPEP properly assesses individuals who are determined to be intoxicated, but some additional training is required to ensure that staff uses the assessment tools properly. Minors admitted to the CPEP receive appropriate special attention. However, KCHC needs to take additional steps to increase family participation in the treatment planning process.
On the inpatient units, KCHC is conducting effective interdisciplinary assessments which are individualized and appropriate. Some greater involvement of psychology is needed, however. Psychiatric diagnoses are now justified far more often than in the past, with specific diagnostic criteria. Documentation supporting diagnoses has substantially improved. Treatment and medication regimens are modified over time and the use of inappropriate medications and polypharmacy has dropped significantly. However, diagnoses are not always supported by documented DSM-V criteria. KCHC needs to more judiciously diagnose adults as having schizoaffective disorder and more evidence is required before children are diagnosed as having ADHD. In addition, treatment is not consistently modified based on the patient’s response to treatment or changes in the patient’s condition or needs.
2. Treatment Planning
KCHC has made substantial progress in treatment planning, an area of significant weakness in the past. It has now achieved at least partial compliance in a significant number of the provisions in this area. KCHC has developed an effective methodology for developing treatment plans (now called Individual Recovery Plans (“IRPs”)) and its approach to developing IRPs is appropriately interdisciplinary and integrated. KCHC is increasingly using the “recovery model” for treatment, meaning that the goal is not simply to control behaviors, but to work in a patient centered environment to assist the patient towards quickly recovering and successfully reintegrate into the community. This is still a work in progress, however. KCHC needs to accomplish some greater individualization of treatment plans and treatment teams still vary too much, particularly with respect to ensuring patients’ objectives are included in the IRP. Our on site review of charts reflects that changes in symptoms, while better documented, do not consistently lead to appropriate changes in diagnoses. Responses or lack of responses to
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medication are not consistently used to help refine diagnoses. Psychosocial rehabilitation is increasingly used in treatment, but it needs to be more individualized and psychologists need to play a greater role in developing treatment plans. The Behavioral Support Team (“BST”) has become effective in conducting behavioral assessments and developing individualized behavioral plans, but it needs to give more attention to identifying patients who could benefit from such plans.
3. Medication Management and Monitoring
KCHC has invested significant time and creativity to improve the quality of medication management and monitoring. A full-time, dedicated psychopharmacologist is assigned to the Behavioral Health Service, and this has resulted in substantial improvements, including ensuring that medications are prescribed in only therapeutic amounts and that prescriptions are clinically justified and tailored to each patient’s individual symptom. Psychiatrists newly hired by KCHC have been vigorously trained in the new model of treatment planning and prescribing. As a result, polypharmacy is substantially reduced. When it is used, it is carefully monitored and reviewed regularly. KCHC uses STAT medications appropriately, for the most part and medications are no longer being used for their secondary sedative effect. Treatment teams show some inconsistency in adherence to patients’ psychopharmacological plans of care, and more training is needed to ensure that treatment team decisions incorporate appropriate standards for prescribing.
C. Behavioral Management
KCHC’s BST director continues to be a major institutional strength. The BST has developed excellent policies and its behavioral philosophy is being spread throughout the disciplines at KCHC, particularly nursing. However, the quality of behavioral programming has suffered because of staff turnover in the BST. There has been an increased reliance on unit psychologists, who need to become more consistently effective in helping patients learn adaptive techniques to address behavioral issues. Behavioral plans are more often integrated into IRPs, but some additional work needs to be done in this area
The data that the experts reviewed reflects that overall, KCHC is using mechanical restraints far less frequently in the past, and when it does use restraint, uses only four point restraints, as the Consent Judgment requires. KCHC terminates restraints at the earliest possible time, and without the requirement that a doctor approve. Restraints are almost never used as punishment, but KCHC needs to develop a monitoring or other tool to ensure that restraints are not used as an alternative to active treatment. KCHC continues to reduce use of close observation (e.g., 1:1, observation every 15 minutes). However, KCHC needs to develop better monitoring tools to ensure that it uses these techniques only when necessary.
D. Medical and Nursing Care
KCHC has significantly improved its monitoring of acute medical conditions and has included medical assessment in the initial treatment planning process. This has led to improved coordination, integration of information and enhanced patient care, reducing the potential for medical emergencies and crises. Complete medical assessments are usually conducted on a
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timely basis within the first 24 hours of admission. KCHC has developed an effective program to address medical emergencies. Medical documentation has improved, but the electronic medical record system remains confusing and difficult to use.
Medical care on the children’s and adolescent units is not at the same level as on the adult services. There is still no consistent pediatric leadership provided relative to youth medical needs. Pediatric leadership is still not involved in monitoring and evaluating the practices of pediatricians in BHS. The expert team expressed serious concerns about whether young patients were receiving care based on clinicians’ understanding of patients’ comprehensive needs and adequate involvement in developing coordinated recovery plans. The coordination of care and integration of medical issues with behavioral health issues remains compromised in spite of wellconsidered attempts to improve these areas.
Overall, nursing has improved significantly at KCHC. Nursing is better integrated into all levels of the organization, particularly in treatment planning. Nursing leadership is now very strong, and there is ongoing coaching, training and supervision, creating a new environment in which nurses are more engaged with patients. There are still too many patients in bed during the day, but nursing staff is employing new strategies to address this problem. Further, KCHC’s Human Resources Department has presented barriers to improvement in the BHS nursing unit. There are too many sustained nursing vacancies and serious hiring delays. Also, where nursing management has found that nurses have not met job standards, including in situations involving allegations of staff abuse or neglect, the Human Resources department has not supported management by taking timely and appropriate action.
E. Quality Assurance/ Performance Improvement
BHS has maintained and strengthened the robust Quality Assurance/Performance Improvement (“QA/PI”) system that was present during the last tour, and is closer to achieving substantial compliance with this requirement. The QA/PI system is even further integrated throughout the BHS, providing insight into all disciplines’ strengths and areas which need improvement. Very few additional refinements in QI are required—KCHC needs only to continue to collect its data and sharpen its analytical tools, such as its inter-rater reliability methodology (inter-rater reliability is a measure of reliability used to assess the degree to which different judges or raters agree in their assessment decisions).
F. Fire And Life Safety
KCHC is in substantial compliance in this area. The one issue from the last review of this area, the need to hire additional fire safety officers, has been resolved. Fire drills are conducted properly and KCHC properly documents all of its fire safety reviews. Emergency keys are properly marked and consistently stored in a quickly accessible location. Overall, the facility is clean and well maintained. Linens and other laundry are kept clean. The food service is well run, and food is maintained and served at proper temperatures.
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G. Discharge and Aftercare Planning
KCHC’s discharge planning process remains strong. Discharge planning begins at admission and is an integral part of treatment planning from the onset. The facility needs to do a better job of identifying barriers to discharge and skills which will ensure a successful discharge to the community. KCHC needs to develop additional measurable goals to ensure that it is complying with the requirements of the Consent Judgment and, more importantly, effectively conducting discharge planning. Significant gaps in certain community services and supports continue to exist and result in repeat admissions and greater lengths of hospitalization than necessary. The lack of sufficient community resources still significantly restricts KCHC’s discharge planning process and causes lengths of stay to be too long, but social work management continues to work hard to develop new contacts and identify appropriate resources. KCHC’s Monitoring Referral Linkage Unit (“MRLU”), which is responsible for ensuring that patients who are discharged receive continuity of care and are linked with and follow up with community resources and treatment, is increasingly effective.
H. KCHC Hospital Police Policies, Procedures and Practices
As we have noted in our previous reports, the Hospital Police (“HP”) at KCHC has improved dramatically. The department now has only very limited contact with psychiatric patients, and officers are not allowed on BHS units unless they are called by clinical staff to investigate a criminal incident. The HP is efficiently and professionally managed, and has a comprehensive set of policies and procedures. Officers receive appropriate training prior to being released to patrol duty, and supervisors ensure that officers receive substantial guidance. Officers maintain logbooks and other documentation properly, and these are reviewed regularly by supervisory personnel.
However, HP is now only in partial compliance with in the training requirements of the Consent Judgment. HP trains its officers in Crisis Intervention policies only once, upon hiring, and does not provide regular a refresher course to officers, something that should occur at least once every two years. Similarly, KCHC does not provide annual Fire/Safety training for Hospital Police. Fire Safety certification is awarded to HP staff based upon the results of a written test. If an officer passes the test, she is not required to undergo any training. Further HP records reflect that only about half of the HP officers even took the Fire/Safety test in 2012 and 2013. All HP officers should receive fire safety training annually.
I. Training
KCHC has made substantial progress during this reporting period. It now has a Staff Development Director who can build on KCHC’s existing foundation for an appropriate training program. Interdisciplinary training has advanced with a special focus on violence reduction protocols and treatment planning. The percentage of staff members who are trained in all competency areas has increased, but needs to improve further.
In sum, conditions of treatment at KCHC are much better than even a year ago. If KCHC continues to improve, and corrects the remaining deficiencies identified in our report, there is
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every expectation that KCHC will come into substantial compliance with all the requirements of the Consent Judgment. However, as is evident from the Report and the Compliance Summary Chart, there are areas of the Consent Judgment where KCHC is currently only in partial compliance. KCHC needs to continue to improve and take additional steps into order to achieve compliance with all the requirements of the Consent Judgment.
We will continue to monitor KCHC’s implementation of the requirements of the Consent Judgment. As always, the parties are available to the Court to answer any questions or address any concerns it may have.
Respectfully submitted,
LORETTA E. LYNCH United States Attorney
By: ________/s/_________________ MICHAEL J. GOLDBERGER Assistant U.S. Attorney (718) 254-6052

cc: All parties (by email)

________/s/_________________ DAVID DEUTSCH Senior Trial Attorney Special Litigation Section Civil Rights Division United States Department of Justice (202) 514-6270

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United States Attorney's Office Eastern District of New York

By Hand and ECF

271 Cadman Plaza East Brooklyn, New York 11201
January 10, 2017

Honorable Kiyo A. Matsumoto United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201

Re: United States of America v. City of New York (Kings County Hospital Center) Civil Action No. CV-10-0060 (KAM)

Dear Judge Matsumoto:

The United States respectfully submits this letter, with the approval of the parties to this action, to summarize the report of the expert compliance assessment team from its most recent tour of Kings County Hospital Center’s Behavioral Health Service (the BHS). The report details the level of the BHS’s compliance with the Consent Judgment entered in this action on January 7, 2010. The report is attached to this letter, which is being hand-delivered to the Court because of its size.

We are pleased to inform the Court that, as described below, the BHS has achieved and
maintained substantial compliance with the Consent Judgment for the past year. Accordingly, the parties request that the Court issue an order closing this case.1

It has been seven years since the parties signed the Consent Judgment. The United States’ subject matter experts agree that, since then, the BHS has greatly improved the quality of care and treatment and effectively addresses the critical needs of the vulnerable, seriously mentally ill population in the socio-economic catchment area served by the BHS. In many respects, the BHS has surpassed the requirements of the Consent Judgment and become a model acute care psychiatric facility. Below, we summarize the improvements in care and treatment in each section of the United States’ Consent Judgment.

A. Protection From Harm

When we commenced this action, one of the most glaring deficiencies was the BHS’ failure to properly identify and address patient aggression. The frequency of violence, suicide and self-harm

1 The plaintiffs’ attorneys in the related Hirschfeld action will be contemporaneously filing a letter concurring in the United States’ request and seeking to have the Court close that case as well. The Consent Judgment in that action incorporates the United States’ Consent Judgment by reference but also contains additional terms.

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was alarming. The BHS did not identify patients at risk of such harmful behavior or take steps to prevent it. Hospital Police (discussed in section H. below) were posted on the units ostensibly to prevent violence, but their presence often made conditions worse. Officers often acted with unnecessary physical force.
Today, aggression on the units, while not completely eliminated, has greatly diminished. The BHS has developed clinical approaches to identify and address potential aggression and selfharm. Hospital Police are no longer present on the units. Instead, non-uniformed Behavioral Health Associates (BHAs), who have clinical training, are responsible for addressing potential violence and all staff have been trained in techniques to de-escalate agitated patients. The BHS has also developed an innovative peer counseling program, in which former patients at the BHS work with current patients. As a result of these changes, rates of suicide attempts and self-harm have dropped significantly. The BHS also has developed a comprehensive Quality Assurance/Performance Improvement system (discussed below) that readily and effectively addresses incidents, including aggression, when they occur, to identify root causes and develop and monitor corrective action.
In the past, the BHS used physical restraints to control and discipline patients. As a direct result of the reduction in aggression, the BHS’ use of physical restraints also has dropped to record lows. One unit we visited on our trip in September had not used restraints since January. The BHS now uses restraints only when there is an immediate threat of harm to self or others that cannot be deescalated. It carefully monitors and removes patients from restraints at the earliest possible time.
B. Mental Health Care
Treatment at the BHS has been revolutionized in the past seven years. No longer driven solely by psychiatrists’ boilerplate assessments about what is best to control patients’ behavior, treatment is interdisciplinary, individualized and focused on patients’ needs and recovery goals. Upon admission to the psychiatric emergency room, or Comprehensive Psychiatric Emergency Program (CPEP), patients are quickly triaged to assess their current psychiatric condition and related issues such as intoxication, potential for harm to self or others and acute medical conditions. Assessments and diagnoses in the CPEP are clinically appropriate and thorough. Diagnoses and treatment, including medication regimens, are generally appropriate, timely, and refined over time as patients’ conditions change.
As we noted in our reports to the Court over the past seven years, Treatment Planning has been a core concern. When we conducted our investigation in 2008 and 2009, patients with very different problems received identical treatment plans. The plans rarely supported discharge back to the community at the earliest possible time into the most integrated setting appropriate to patients’ needs.
Although treatment plans remain somewhat uneven, the BHS has made significant improvements have been made in this area, particularly within the last year, Most treatment plans now are individualized, person centered and recovery oriented. Importantly, patients and, as appropriate, family members, not just clinical staff, are encouraged to and do have input into treatment plans. The BHS also has a well-developed program for psychosocial and therapeutic rehabilitation that allows patients to learn important coping skills. Exercise and physical activities
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also are available as part of the overall treatment program.
Medication management has also changed substantially. The BHS has hired a dedicated psycho-pharmacist who ensures that the BHS engages in safe and effective pharmacological treatment. No longer does the BHS administer medications for their secondary sedative effects, i.e., chemical restraint, a practice which caused patient harm and was a substitute for proper therapeutic interventions.
C. Behavioral Management
The BHS had almost no behavioral management program when we first visited the facility in 2007. Inappropriate behaviors were addressed with medication, physical restraints or close monitoring by staff on a 1:1 basis. As noted above, the BHS no longer uses chemical restraint and physical restraints are used much less frequently. In their place, the BHS has developed programs to help patients learn to control inappropriate behaviors. Central to this is the Behavioral Support Team, made up of clinical professionals who work with patients to help them address potentially problematic behaviors. The BHS also employs a neuropsychologist who helps to identify and adapt treatment and discharge plans for patients with cognitive impairments or learning problems.
D. Medical and Nursing Care
Many of the patients admitted to the CPEP or the inpatient units in the BHS have co-existing medical conditions, including diabetes, asthma and obesity. In the past, these conditions were often overlooked and their relationship and interaction with psychiatric disorders disregarded. Medical care at the BHS now is of the same quality and depth as psychiatric care. Every patient has a medical examination within twenty-four hours of admission, and physicians and nurses play a significant role in determining treatment and discharge plans.
In 2007, partly out of fear of patient violence, nurses minimized interactions with patients. Nurses now have become increasingly important in the lives of patients, embracing their role as front line caregivers. They also play an important role in treatment planning. Although nursing leadership still needs to continue to develop further, nursing practices have improved significantly over the last seven years.
One important note: the BHS faces significant challenges ensuring sufficient staffing levels, particularly in nursing and psychiatry. We have learned that, because of a shortage of psychiatrists and psychologists, nurse practitioners and psychologists are being assigned Unit Chief duties. This has not produced any specific concerns at this time, but the BHS must be vigilant to ensure that staff are not given responsibilities for which they are not qualified.
E. Quality Assurance and Performance Improvement
In order for any health care facility to identify its strengths and areas that need improvement, it must have strong data collection and analysis processes. Effective self-monitoring is the hallmark of good healthcare systems. In 2009, we found that the BHS’s quality assurance and performance improvement programs were poorly organized and that it failed to analyze the data it did collect for
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trends and underlying causes. In addition, the BHS lacked adequate procedures for investigating incidents, including those which caused serious injuries. Our consultants found that staff conducted little or no follow-up to determine the cause of an incident, its effect on the patient, or how similar incidents might be avoided in the future. As a result, patients continued to be exposed to actual and potential harm.
Today, the BHS has institutionalized a culture of continued performance improvement which permeates the entire system of care. Several committees meet regularly to review reports, analyze incidents and determine appropriate remedial action. Overall, the Quality Assurance and Performance Improvement processes at the BHS now help to identify and address deficiencies in care and treatment, thereby substantially reducing the possibility of future patient harm. The BHS must remain vigilant and continue to strengthen its ability to identify and act on trends that may reflect systemic improvement opportunities.
F. Fire and Life Safety
The physical environment and sanitation in the BHS are significantly improved from when we first visited in 2008. At that time, the BHS was in the “G” Building, an antiquated, unsanitary facility. In the “G” Building, linens and mattresses were stained, worn and torn. Patients’ clothes were not washed or disinfected before being stored and in the CPEP, patients’ clothes were stored on the floor. There were inadequate fire safety protocols. Hazardous materials, including medical waste, were not discarded consistent with generally accepted methods. Food was prepared in an unsanitary manner.
The BHS is now housed in the new “R” Building, which opened in late 2009. This new building is clean, light and airy, and provides patients with a more positive and therapeutic environment. Linens and laundry are kept clean, and patients’ clothes are stored in closets. Medical waste is handled properly. Food is maintained in warming units until it is distributed in a comfortable dining room. Like much of the new BHS, the “R” Building is intended to help people recover and return to the community.
G. Discharge Planning
A critical aspect of any successful inpatient mental health treatment program is discharge planning. That is, from the moment a patient is admitted into the BHS, treatment and treatment planning should be focused on setting achievable goals to allow him or her to return to the community as soon as possible, and to successfully reintegrate and remain in the community. When we first visited the BHS in 2008, the BHS had virtually no discharge planning process at all. Treatment teams typically did not consider or integrate criteria for discharge into treatment planning. Consequently, many patients whose psychiatric conditions were stabilized remained hospitalized unnecessarily. The BHS, an acute care facility designed to expeditiously return individuals to the community, had an average inpatient length of stay of more than 30 days. Patients who were discharged were often sent back into the community without continuity of care or follow up by the BHS beyond ensuring that the individual reached his or her designated destination. As a result, individuals often were readmitted to the BHS within a few weeks of discharge.
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Discharge planning is now robust and an integral part of treatment planning. Social workers, who are responsible for coordinating discharge plans, are important members of interdisciplinary treatment teams. The teams work to ensure that patients are discharged to an appropriate setting in the community, consistent with the community integration requirements of the Americans with Disabilities Act. Even in the face of shortages of appropriate community housing and services, the BHS has reached out to service providers and developed a network of contacts that facilitates quality community placements. The focus on community outreach has helped to make the BHS a focal point for community providers in the area.
The BHS has also created a Repeat Admission Review Committee (RARC) that assesses and attempts to address underlying reasons that particular individuals do not succeed in the community and are repeatedly re-admitted for treatment. It also has a Monitoring, Referral and Linkage (MRL) Unit that tracks discharged individuals up to 90 days, to ensure successful transitions back to the community.
H. Hospital Police
When we conducted our investigation in 2007 and 2008, the Hospital Police lacked a comprehensive, coherent set of policies that were effectively communicated to officers. Supervision and training of officers was inadequate, particularly when engaging mental health patients. KCHC also lacked a coherent and effective system for receiving, reviewing and investigating incidents and complaints against the Hospital Police. This resulted in inappropriate conduct by officers, including assaults on patients and handcuffing patients to beds and even radiators.
By July 2014, we determined that the Hospital Police had been substantially reformed. Hospital Police now perform only law enforcement duties. It has developed comprehensive policies and procedures that provide clear guidance for officer conduct. It is headed up by a retired NYPD supervisor and is professional and appropriately supervised. Hospital Police have no clinical role in the BHS. In fact, they have virtually no interaction with BHS patients, other than to monitor the entrances to the BHS and take crime reports on units when called upon by clinical staff.
I. Training and Policy Manuals and Accountability
In 2009, BHS policies were vague, accountability was not clear, and training for staff was virtually non-existent. Currently, the policies are well written and reviewed in a timely manner, and accountability is clear. BHS has developed competency based orientation programs for all employees, annual update trainings to ensure continued competency, and ongoing continuing education opportunities for all staff. Participation rates for all of these educational offerings are tracked to ensure that staff avail themselves of the training opportunities that are vital to support patient care improvements.
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As set forth in more detail in the attached report, we find that the BHS has maintained substantial compliance over the past six-month period since we last wrote to the Court. Accordingly, pursuant to the terms of the Consent Judgment, we respectfully submit that this case should be closed. As always, the parties are available to the Court to answer any questions or address any concerns it may have.
Respectfully submitted, ROBERT L. CAPERS United States Attorney By: ___________/s/_____________ MICHAEL J. GOLDBERGER Assistant U.S. Attorney (718) 254-6052 cc: All parties (by email and ECF)
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